Unassociated Document


    INTELLECTUAL
      PROPERTY ASSIGNMENT AGREEMENT

     

    This
      Assignment Agreement (this“Agreement”)
      dated
      as of August 6, 2007 (the “Effective
      Date”)
      is by
      and between Medtronic, Inc., a Minnesota corporation (“MDT”),
      and
      Biophan Technologies, Inc., a Nevada corporation (“Biophan”). MDT and Biophan
      are individually a “Party”,
      and
      together are the “Parties,”
to
      this Agreement.

     

    WHEREAS,
      MDT has determined that it is in its business interest to acquire certain
      Intellectual Property of Biophan and Biophan has determined it is in its
      business interest to sell such Intellectual Property to MDT.

     

    NOW
      THEREFORE, in consideration of the mutual covenants and agreements set forth
      herein, and for other good and valuable consideration, the receipt and
      sufficiency of which are hereby acknowledged, the Parties agree as
      follows:

     

    1.  DEFINITIONS.
      As
      used
      herein, the following terms will have the following meanings:

     

    “Action”
means
      any Claim, action, cause of action or suit (whether in contract or tort or
      otherwise), litigation (whether at law or in equity, whether civil or criminal),
      controversy, assessment, arbitration, investigation, hearing, charge, complaint,
      demand, patent interference, opposition, Third Party requested patent
      re-examination, notice or proceeding, in each case, to, from, by or before
      any
      Governmental Authority.

     

    “Affiliate”
of
      a
      specified person (natural or juridical) means a person that now or hereafter
      directly, or indirectly through one or more intermediaries, controls, or is
      controlled by, or is under common control with, the person specified. “Control”
shall mean ownership of more than 50% of the shares of stock entitled to vote
      for the election of directors in the case of a corporation, and more than 50%
      of
      the voting power in the case of a business entity other than a corporation;
      provided that, with respect to Biophan, except for the purposes of Section
      2.2,
“Affiliate” shall not include Myotech, LLC (“Myotech”) or TE Bio, LLC, and
      Section 2.2 shall not apply to Myotech unless and until Biophan owns over 50%
      of
      the Myotech member interests or other indicia of ownership. 

     

    “Ancillary
      Agreements”
means
      any agreements, certificates, instruments and documents executed and delivered
      pursuant to any of Sections 3.3 (a), (c) to (e), (h) and (i) of this Agreement.
      

     

    “Assigned
      Intellectual Property Rights”
means
      all Intellectual Property of Biophan as of the Closing date which are necessary
      to practice the Technology, including, but not limited to, the Assigned Patent
      Rights. 

     

    “Assigned
      Patent Rights”
means
      (a) the Patent Rights related to the patents set forth on Schedule 1 hereto;
      and
      (b) all counterpart Patent Rights of any of the Patent Rights in subpart (a).
      

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    “Biophan”
is
      defined in the Preamble to this Agreement.

     

    “Biophan
      Disclosure Schedule”
is
      defined in the Preamble to Article 4 of this Agreement.

     

    "Biophan
      Field"
      means
      any technology related to medical devices, methods and compositions that
      (a) minimize unwanted MRI imaging artifacts; (b) create enhanced imaging
      modalities, such as intraluminal imaging and spectroscopy; (c) track and/or
      localize surgical tools in an MRI environment; and/or (d) provide high
      performance transmission of information or power in
      vivo
      by
      photonic means. 

     

    “Boston
      Scientific License”
means
      the License Agreement dated June 30, 2005, between Biophan and Boston Scientific
      Scimed, Inc.

     

    “Business
      Day”
means
      any weekday other than a weekday on which banks located in Minneapolis,
      Minnesota are authorized or required to be closed.

     

    “Claim”
means
      any assertion of right whatsoever (including those arising from debts, bonds,
      promises, damages, equitable claims and judgments), whether liquidated or
      unliquidated, known or unknown, fixed or contingent, direct or indirect, or
      imputed.

     

    “Closing”
is
      defined in Section 3.3 (Closing Time and Place).

     

    “Code”
is
      defined in Section 3.1 (Payments).

     

    “Confidential
      Information”
means
      (i) the non-public information in this Agreement, and the Ancillary Agreements;
      (ii) the details of the discussions and drafts leading up to the execution
      of
      this Agreement or the Ancillary Agreements; and (iii) any information or
      compilation of information of one of the Parties hereto (the “Disclosing
      Party”)
      which
      becomes known to another Party (the “Receiving
      Party”)
      that
      is not generally known to the public, including trade secrets, whether disclosed
      before or after the date of this Agreement, excluding information
      which:

     

    (a) was
      already in the possession of the Receiving Party prior to the Receiving Party’s
      receipt from the Disclosing Party (provided that the Receiving Party is able
      to
      provide the Disclosing Party with reasonable documentary proof thereof and,
      if
      received from a third party, that such information was acquired without breach
      of a confidentiality or non-disclosure obligation related to such
      information);

     

    (b) is
      or
      becomes a matter of public knowledge through no act of the Receiving Party
      or
      its Affiliates or Representatives in violation of this Agreement;

     

    (c) is
      disclosed to the Receiving Party or its Affiliates on a nonconfidential basis
      by
      a Third Party who lawfully obtained such information and is under no obligation
      to maintain the confidentiality of such information; or

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (d) has
      been
      independently developed by the Receiving Party without breach of this Agreement
      or use of any Confidential Information of the Disclosing Party (provided that
      the Receiving Party is able to provide the Disclosing Party with reasonable
      documentary proof thereof).

     

    Information
      meeting the above definition shall be treated as Confidential Information
      regardless of its source, and all information identified as being “confidential”
or “trade secret” or labeled with words of similar import shall be presumed to
      be Confidential Information. Confidential Information includes information
      being
      held in confidence by a Disclosing Party for the benefit of a third
      party.

     

    “Consents”
is
      defined in Section 4.3 (Consents).

     

    “Contractual
      Obligation”
means,
      with respect to any Person, any legal, valid and binding contract, agreement,
      deed, note, debenture, warrant, option, mortgage, lease, license, commitment,
      promise, undertaking, arrangement or understanding, whether written or oral,
      or
      other document or instrument to which or by which such Person is a party or
      otherwise subject or bound or to which or by which any property, business,
      operation or right of such Person is subject or bound, in each case as amended
      or otherwise modified and in effect. 

     

    “Disclosing
      Party”
is
      defined in “Confidential Information.”

     

    “Dispute”
means
      any dispute, controversy, Action, or other issue relating to or arising under
      or
      in connection with this Agreement or any of the Ancillary Agreements, their
      subject matter, or their formation, interpretation, performance or breach,
      including fraud in the inducement and the validity, scope and enforceability
      of
      the agreement to arbitrate set forth in Section 8.13 (Alternative Dispute
      Resolution).

     

    “Effective
      Date”
is
      defined in the Preamble.

     

    “Encumbrance”
means
      any interest relating to or arising out any lien, license, covenant not to
      sue,
      option, pledge, security interest, mortgage, right of first offer or first
      refusal, buy/sell agreement and any other restriction or covenant with respect
      to, or condition governing the use, construction, transfer, receipt of income
      or
      exercise of any other attribute of legal or equitable ownership.

     

    “Exploit”
means
      make, have made, use, import, export, offer to sell, sell or otherwise dispose
      of. “Exploited,”
      “Exploitation”
and
      other variants or variations of the word “Exploit” shall have correlative
      meanings. 

     

    “Field”
means
      use of Technology in or for a medical device. 

     

    “Filings”
is
      defined in Section 4.3 (Consents).

     

    “Governmental
      Authority”
means
      any United States federal, state or local or any foreign government, or
      political subdivision thereof, or any multinational governmental 

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    organization
      or authority or any governmental authority, agency or commission in each case
      entitled to exercise any administrative, executive, judicial, legislative,
      police, regulatory or taxing authority or power, any court or tribunal (or
      any
      department, bureau or division thereof), or any arbitrator or arbitral
      body.

     

    “Governmental
      Order”
means
      any order, writ, judgment, injunction, decree, stipulation, ruling,
      determination or award entered by or with any Governmental Authority, but
      excluding any action or inaction in the course of the ex parte preparation
      or
      prosecution of any Patent Right and any order, writ, judgment, injunction,
      decree, stipulation, ruling, determination or award of general
      applicability.

     

    “Indemnified
      Party”
means
      a
      Person to whom indemnification is provided under this Agreement.

     

    “Indemnifying
      Party”
means
      a
      Person providing indemnification under this Agreement.

     

    “Intellectual
      Property”
means
      all forms of intellectual property in any jurisdiction and under any law,
      whether now or hereafter existing, including (a) inventions, discoveries, patent
      applications, patents (including letters patent, industrial designs, and
      inventor’s certificates), design registrations, invention disclosures, and
      applications to register industrial designs, and any and all rights to any
      of
      the foregoing anywhere in the world, including any provisionals, substitutions,
      extensions, supplementary patent certificates, reissues, re-exams, renewals,
      divisions, continuations, continuations in part, continued prosecution
      applications, and other similar filings or notices provided for under the laws
      of the United States or of any other country; and (b) trade secrets and other
      confidential or non-public technical information, including ideas, formulas,
      compositions, inventor’s notes, discoveries, improvements, concepts, know-how,
      manufacturing and development information, data resulting or derived from
      research activities, Inventions, invention disclosures, unpatented blue prints,
      drawings, specifications designs, plans, proposals and technical data.


     

    “Invention”
means
      any invention, discovery, know-how, trade secret, data, information, technology,
      process or concept, whether or not patented or patentable, and whether or not
      memorialized in writing.

     

    “Legal
      Requirement”
means
      any United States federal, state or local or foreign law, statute, standard,
      ordinance, code, rule, regulation, resolution or promulgation, or any
      Governmental Order, or any license, franchise, permit or similar right granted
      under any of the foregoing, or any similar provision having the force or effect
      of law.

     

    “Liability”
means,
      with respect to any Person, any liability or obligation of such Person whether
      known or unknown, whether asserted or unasserted, whether determined,
      determinable or otherwise, whether strict, absolute or contingent, whether
      accrued or unaccrued, whether liquidated or unliquidated, whether incurred
      or
      consequential, 

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    whether
      due or to become due and whether or not required under U.S. generally accepted
      accounting principles to be accrued on the financial statements of such
      Person.

     

    “Losses”
means
      all Actions, Claims, Liabilities, damages, judgments, amounts paid in
      settlement, assessments, Taxes, losses, fines, penalties, expenses, costs and
      fees (including reasonable attorneys’ fees), and amounts, costs and reasonable
      attorneys’ fees associated with seeking indemnification hereunder.

     

    “MDT”
is
      defined in the Preamble.

     

    “Notices”
is
      defined in Section 4.3 (Consents).

     

    “Organizational
      Documents”
means,
      with respect to any Person (other than an individual), (a) the certificate
      or
      articles of incorporation or organization and any joint venture, limited
      liability company, operating or partnership agreement, trust agreement and
      instrument and other similar documents adopted or filed in connection with
      the
      creation, formation or organization of such Person and (b) all by laws, voting,
      agreements and similar documents, instruments or agreements relating to the
      organization or governance of such Person, in each case as amended or
      supplemented.

     

    “Party”
and
      “Parties”
are
      defined in the Preamble.

     

    “Patent
      Rights”
means
      (i) any and all U.S. and foreign: (a) patents (including utility and design
      patents); (b) patent applications (including utility and design patent
      applications), including all provisional applications, substitutions,
      continuations, continuations-in-part, divisions, renewals, and all patents
      granted thereon; and (c) patents-of-addition, reissues, reexaminations and
      extensions or restorations by existing or future extension or restoration
      mechanisms, including supplementary protection certificates or the equivalent
      thereof, (d) patent rights obtained from Third Parties through an interference
      proceeding based upon any patent or application in (a)-(c),and (ii) any other
      form of government-issued right substantially equivalent to any of the foregoing
      now or hereafter recognized including, for example, statutory invention
      disclosures or the like.

     

    “Payment”
is
      defined in Section 3.1 (Payments).

     

    “PCT
      Application 66143“
means
      PCT Application No. US2007/66143, entitled Resonant Tuning Module for
      Implantable Devices and Leads, filed April 6, 2007.

     

    “Person”
means
      any individual or corporation, association, partnership, limited liability
      company, joint venture, joint stock or other company, business trust, trust,
      organization, Governmental Authority or other entity of any kind.

     

    “Receiving
      Party”
is
      defined in “Confidential Information.”

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    “Representative”
means,
      with respect to any Person, any director, officer, employee, agent, consultant,
      advisor, partner, trustee or other representative of such Person, including
      legal counsel, accountants and financial advisors.

     

    “Tangible
      Materials”
means
      documents, files (including electronic files), diagrams, drawings, plans,
      specifications, designs, schematics, records, reports, lab or research
      notebooks, drawings, flow charts, specifications, written descriptions,
      invention disclosures, source code, data, photographs of three-dimensional
      prototypes and models, or other written, graphic or tangible materials or
      embodiments (other than three-dimensional prototypes and models) relating to
      the
      Assigned Patents, and all correspondence and files relating to the prosecution
      of the Assigned Patents, in each case, within the possession, custody or control
      of Biophan or its Affiliates.

     

    “Tax”
or
      “Taxes”
means
      any and all federal, state, local or foreign income, gross receipts, license,
      payroll, employment, excise, severance, stamp, occupation, premium, windfall
      profits, capital stock, franchise, profits, withholding, social security (or
      similar, including FICA), unemployment, disability, real property, personal
      property, sales, use, transfer, registration, value added, alternative or add-on
      minimum, estimated or other tax of any kind, including any interest, penalty
      or
      addition thereto, whether disputed or not.

     

    “Technology”
means
      any technology, including, but not limited to, electrochemical and magnetic
      shielding, filtering, shunting or generation of cancellation current, that
      is
      used or useful in products providing for or enhancing of the safety or
      compatibility (as used herein, “compatibility” excludes MRI imaging
      compatability) of a product with respect to an MRI scan of a
      patient.

     

    “Third
      Party”
means
      any Person other than the Parties and their Affiliates.

     

    “Third
      Party Claim”
means
      any Claim by a Third Party with respect to any matter that may give rise to
      a
      Claim for indemnification under this Agreement.

     

    	2.  	
            ASSIGNMENT,
              LICENSES AND COVENANTS NOT TO SUE.

          


     

    2.1  Assigned
      Patent Rights.
      Effective as of the Closing, subject to the terms of this Agreement, Biophan
      hereby sells, conveys, assigns and transfers to MDT all its interests in and
      to
      the Assigned Intellectual Property Rights, together with the right to sue and
      collect for past infringement. MDT accepts the Assigned Intellectual Property
      Rights, provided,
      that
      MDT does not assume any liabilities or obligations of Biophan related to the
      Assigned Intellectual Property or otherwise.

     

    2.2  Biophan’s
      Covenant Not To Sue.
      

     

    (a) IP
      Covenant.
      Effective as of the date hereof and for a period of seven (7) years hereafter,
      Biophan hereby irrevocably covenants, agrees and warrants that Biophan shall
      not, and shall cause its Affiliates not to, sue, assert or commence any Action
      or proceeding (or participate in, join or otherwise aid in 

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    any
      Action) against MDT or its Affiliates (or their employees, agents, customers,
      distributors, sales representatives, end users or suppliers with respect to
      products of MDT or its Affiliates) for past or future infringement or
      misappropriation of any of the Assigned Intellectual Property Rights at any
      time
      anywhere in the world for Exploiting any products or services or practicing
      any
      methods.

     

    (b) Limited
      Right to Extend Covenant to Third Parties.
      The
      covenant not to sue in Sections 2.2(a) shall inure to the benefit of the
      respective permitted successors and assigns of MDT and its Affiliates, and
      may
      be extended by MDT and its Affiliates with respect to any product line, to
      any
      Third Party that acquires substantially all the assets relating to such product
      line; provided, however, that the covenant not to sue shall not apply to St.
      Jude Medical, Boston Scientific Scimed, Inc. or Greatbatch, Inc. or their
      successors. 

     

    (c)
       Termination.
      The
      covenants not to sue in Section 2.2(a) shall terminate, as applicable, (i)
      effective simultaneously with the Closing, if the Closing shall occur, or (ii)
      upon termination of the Parties obligation to proceed to the Closing pursuant
      to
      Section 3.4 provided that before such termination Biophan shall have satisfied
      all of the conditions to Closing set forth in Section 3.3.

     

    	3.  	
            PAYMENTS;
              CLOSING.

          


     

    3.1  Payments.
      MDT
      shall pay the following to Biophan in exchange for the rights granted
      hereunder:

     

    (a)  In
      exchange for the consideration set forth in Section 2.2 and for Biophan’s
      agreements set forth in Section 6.11, MDT shall pay Biophan as follows (the
      “Initial
      Consideration”):

     

    (i)
      on
      the date hereof, MDT shall pay Biophan Five Hundred Thousand Dollars
      ($500,000);

     

    (ii)
      on
      the date that is thirty (30) days after the date hereof, provided that Biophan
      is not in material breach of its obligations hereunder and the Closing shall
      not
      have occurred by such date, MDT shall pay Biophan Five Hundred Thousand Dollars
      ($500,000); and 

     

    (iii)
      on
      the date that is sixty (60) days after the date hereof, provided that Biophan
      is
      not in material breach of its obligations hereunder and the Closing shall not
      have occurred by such date, MDT shall pay Biophan Five Hundred Thousand Dollars
      ($500,000).

     

    (b) In
      exchange for the Assigned Intellectual Property Rights, subject to the terms
      hereof, at the Closing, MDT shall pay Biophan Ten Million Dollars ($10,000,000)
      (such amount, the “Closing Payment”); provided that such Closing Payment shall
      be reduced to Nine Million Dollars ($9,000,000) in the event that 

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    the
      Closing occurs on a date that is more than fifty-nine (59) days after the date
      hereof and MDT makes the payment described in Section 3.1(a)(iii). 

     

    3.2  Method
      of Payment.
      Payments of the Initial Consideration and the Closing Payment shall be made
      by
      wire transfer to an account designated by Biophan. The amounts payable hereunder
      shall be paid in United States dollars. 

     

    3.3  Closing
      Time and Place.
      The
      Closing of the purchase and sale of the Assigned Intellectual Property Rights
      and the transactions contemplated by the Ancillary Agreements (the “Closing”)
      shall
      take place three (3) Business Days after all of the conditions to closing set
      forth in this Section 3.3 shall have been satisfied or waived by MDT in writing.
      At the Closing, MDT shall make the payment described in Section 3.1(b).
      Notwithstanding anything to the contrary herein, MDT’s obligation to proceed to
      the Closing shall be conditioned on the following: 

     

    (a) MDT’s
      receipt of written certification from the Secretary or an Assistant Secretary
      of
      Biophan dated as of the Closing Date as to (i) the incumbency and specimen
      signature of each officer of Biophan executing this Agreement or any of the
      Ancillary Agreements and (ii) the resolutions adopted by the Board of Directors
      of Biophan authorizing the execution, delivery and performance of this Agreement
      and the consummation of the transactions contemplated hereby, each as amended,
      modified and in effect as of the Closing Date;

     

    (b) All
      permissions, releases, Consents or approvals, governmental or otherwise,
      necessary on the part of Biophan to consummate the transactions contemplated
      this Agreement shall have been obtained, including, but not limited to MDT’s
      receipt of a letters from the appropriate persons authorizing the release of
      all
      Encumbrances such persons have upon the Assigned Intellectual Property, and
      terminations of, or authorizations to file partial terminations as they relate
      to the Assigned Intellectual Property Rights for each UCC financing statement
      naming any of such holders as a “secured party,” to the extent such UCC
      statements related to Assigned Intellectual Property;

     

    (c)
       MDT
      shall
      have received a certificate, dated as of the date of the Closing, executed
      by
      the an authorized officer of Biophan representing and warranting to MDT that
      (i) each of Biophan’s representations and warranties in this Agreement are
      true and correct in all respects both on the date of this Agreement and on
      the
      date of the Closing with the same force and effect as if made on and as of
      the
      date of the Closing except to the extent such representations are made expressly
      as of an earlier date, which representations will be true and correct in all
      respects as of such earlier date; and (ii) all of the covenants and
      obligations that Biophan is required to perform or to comply with pursuant
      to
      this Agreement at or prior to the Closing have been performed and complied
      with
      in all respects;

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (d) There
      shall not have been issued and be in effect any order, decree or judgment of
      or
      in any court or tribunal of competent jurisdiction which makes the consummation
      of the transactions contemplated hereby illegal;

     

    (e) No
      suit,
      action or other proceeding shall be pending or threatened by any third party
      or
      by or before any court or Governmental Authority in which it is sought to
      restrain or prohibit or to obtain damages or other relief in connection with
      this Agreement or the consummation of the transactions contemplated by this
      Agreement, and no governmental investigation that might result in any such
      suit,
      action or other proceeding shall be pending or threatened;

     

    (f) MDT
      and
      Biophan shall have agreed to the terms of and entered into a consulting
      agreement on reasonable terms and conditions and providing for Biophan’s
      provision of consulting services to MDT for a period of at least one year
      following the Closing, subject to the availability to Biophan as employees
      or
      consultants of the two (2) full-time employees who are most knowledgeable about
      the Technology (provided that Biophan agrees that it shall not take action
      to
      terminate such employees prior to the Closing or during the term of such
      consulting agreement); and

     

    (g) MDT
      shall
      have received from Biophan such instruments of transfer, assignment, conveyance
      and other instruments sufficient to convey, transfer and assign to MDT all
      right, title and interest in the Assigned Intellectual Property Rights, free
      and
      clear of all Encumbrances, all in form and substance reasonably satisfactory
      to
      MDT and its counsel.

     

    3.4  Termination
      of Closing.
      The
      respective obligations of the Parties to consummate the Closing may be
      terminated and abandoned at any time at or before the Closing only as
      follows:

     

    (a) By
      and at
      the option of MDT if the Closing shall not have occurred within 90 days from
      the
      date hereof; provided that MDT shall not have breached in any material respect
      its obligations under this Agreement in any manner that shall have been the
      proximate cause of, or resulted in, the failure to consummate the
      Closing.

     

    (b) By
      and at
      the option of Biophan if the Closing shall not have occurred within 90 days
      from
      the date hereof; provided that Biophan shall not have breached in any material
      respect its obligations under this Agreement in any manner that shall have
      been
      the proximate cause of, or resulted in, the failure to consummate the
      Closing.

     

    (c) By
      and at
      the option of MDT, if Biophan shall be in material breach of its obligations
      under this Agreement and such breach is not cured within fourteen (14) days
      of
      MDT’s notice of such breach is sent to Biophan.

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (d) At
      any
      time, without liability of any party to the others, upon the mutual written
      consent of Biophan and MDT.

    


    The
      termination of the Parties’ obligation to consummate the Closing shall have no
      effect on any other rights or obligations of the Parties hereunder, including,
      but not limited to, obligations under Section 2.2. 

     

    


     

    	4.  	
            BIOPHAN’S
              REPRESENTATIONS AND WARRANTIES.

          


     

    Biophan
      represents and warrants to MDT that the statements contained in this Section
      4
      are true, correct and complete as of the date hereof and as of the Closing,
      except as set forth in the Biophan’s disclosure schedule accompanying this
      Agreement (the “Biophan Disclosure Schedule”). The Biophan Disclosure Schedule
      will be arranged in paragraphs corresponding to the lettered and numbered
      paragraphs contained in this Section 4.

     

    4.1   Authorization.
      Biophan
      is a Nevada corporation duly organized, validly existing and in good standing
      under the laws of the State of Nevada. Biophan has the full corporate power
      and
      authority to execute and deliver this Agreement and each Ancillary Agreement
      to
      which it is a party and to perform its respective obligations under this
      Agreement and under each such Ancillary Agreement. All corporate actions or
      proceedings to be taken by or on the part of Biophan to authorize and permit
      the
      execution and delivery by Biophan of this Agreement and each of the Ancillary
      Agreements to which it is a party and to perform its respective obligations
      under this Agreement and under such Ancillary Agreements have been duly taken.
      This Agreement has been duly executed and delivered by Biophan and constitutes
      the legal, valid and binding obligation of Biophan, enforceable in accordance
      with its terms and conditions subject to bankruptcy, insolvency, reorganization,
      moratorium and other similar laws of general application affecting the rights
      and remedies of creditors and to general principles of equity. Each of the
      Ancillary Agreements to which Biophan is a party will be, as of the Closing,
      duly executed and delivered by Biophan and will constitute, as of the Closing,
      the legal, valid and binding obligation of Biophan, enforceable in accordance
      with its terms and conditions subject to bankruptcy, insolvency, reorganization,
      moratorium and other similar laws of general application affecting the rights
      and remedies of creditors and to general principles of equity.

     

    4.2  Noncontravention.
      Neither
      the execution and delivery of this Agreement and the Ancillary Agreements nor
      the consummation of the transactions contemplated hereby and thereby by Biophan
      will (i) conflict with or result in a breach of or default under the
      Organizational Documents of Biophan, (ii) violate any material Legal Requirement
      to which any of Biophan or its Affiliates or any of their assets or property
      is
      subject, (iii) conflict with or result in a breach of, default under, right
      to
      accelerate payment under or obligation to make any payment pursuant to or loss
      of material rights under, or modify or terminate any material Contractual
      Obligation by which Biophan or its Affiliates or any of their assets or property
      is bound or subject, (iv) result in the 

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    creation
      or imposition of any Encumbrance upon or forfeiture of any of the Assigned
      Patent Rights, or (v) result in the creation of any Claim that could result
      in
      the creation or imposition of any Encumbrance upon or forfeiture of any of
      the
      Assigned Patent Rights.

     

    4.3  Consents.
      No
      approval, authorization, permit, license, waiver or consent is required from
      any
      Third Party (including any Governmental Authority) (collectively, the
“Consents”)
      and no
      filing or notice is required to be made with or given to any Third Party
      (including any Governmental Authority) (respectively, the “Filings”
and
      the
“Notices”)
      for
      Biophan and its Affiliates to accomplish the transactions contemplated by this
      Agreement and the Ancillary Agreements.

     

    4.4  Litigation.
      There
      is no Action pending or, to the Knowledge of Biophan, threatened against or
      involving any of Biophan or its Affiliates that could adversely affect (i)
      the
      Assigned Intellectual Property Rights or (ii) the ability of Biophan or its
      Affiliates to consummate the Closing or perform any obligations under this
      Agreement or the Ancillary Agreements. For purposes of this Section
      4.4,
      threatened Actions shall include requests for interference, Third Party requests
      for re-examination and requests for oppositions. 

     

    4.5  Title.
      Biophan owns, and as of the Closing shall own, all rights, title and interests
      in and to the Assigned Intellectual Property Rights and
      has
      the full right and power to assign good title to the Assigned Intellectual
      Property Rights, in each case free and clear of all Encumbrances and all Claims.
      There is no agreement granting rights under the Assigned Intellectual Property
      Rights or imposing obligations with respect to the Assigned Intellectual
      Property Rights.  

     

    4.6  Intellectual
      Property.

     

    (a) Completeness.
      The
      Assigned Patent Rights listed on Schedule 1 include all Patent Rights in which
      Biophan or any of its Affiliates has any right, title or interest in the Field,
      including without limitation any rights under licenses. Biophan has provided
      MDT
      with correct and complete copies of all such Patent Rights.

     

    (b) Representations
      Regarding Intellectual Property.
      With
      respect to each patent and patent application included within the Assigned
      Intellectual Property Rights:

     

    (i) each
      issued, unexpired patent: (a) is, to the knowledge of Biophan, valid and
      enforceable; and (b) has been properly obtained in accordance with all
      applicable rules and regulations governing the prosecution of applications
      for
      such patent, and Biophan and its Affiliates and their Representatives have
      not
      engaged in any fraud or other misconduct with regard to the prosecution or
      procurement of such patent; 

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (ii) no
      claim
      has been asserted or threatened by any person, with respect to the use of the
      Assigned Intellectual Property Rights or challenging or questioning the validity
      or effectiveness of any license or agreement with respect thereto, and, to
      the
      knowledge of Biophan, no valid basis for any such claim exists;

     

    (iii) to
      the
      knowledge of Biophan, no person, business or products has infringed, misused
      or
      misappropriated the Assigned Intellectual Property Rights or currently is
      infringing, misusing or misappropriating any such rights, and to the knowledge
      Biophan, neither the use of the Assigned Intellectual Property Rights, nor
      the
      manufacture, marketing, distribution, use or sale of any product or service
      currently under development by Biophan, infringes on the Intellectual Property
      of any person in a manner; 

     

    (iv) for
      each issued, unexpired patent or pending patent application, in all material
      respects, (A) all necessary application, annuity, maintenance and renewal fees
      in connection with all patent and patent applications have been paid and (B)
      all
      necessary documents and certificates in connection therewith have been filed
      with the relevant authority for the purpose of maintaining the patent
      registrations or applications; and 

     

    (v) no
      issued, unexpired patent is undergoing cancellation, re-examination, termination
      or withdrawal proceedings.

     

    4.7  Solvency;
      Fair Consideration.
      As of
      the Closing, Biophan shall be solvent. As of the Closing, the sum of Biophan’s
      assets, at a fair valuation, shall be greater than the sum of its debts, and
      Biophan shall be able, and will be able immediately following the consummation
      of the transactions contemplated by this Agreement, generally to pay its debts
      as they become due. The obligations of Biophan under this Agreement will not
      render Biophan insolvent. Biophan is receiving fair consideration and reasonably
      equivalent value in exchange for the assets transferred by Biophan to MDT and
      the obligations incurred by Biophan and its Affiliates pursuant to this
      Agreement. The transactions contemplated by this Agreement and the Ancillary
      Agreements shall not cause Biophan to be left with unreasonably small capital.
      Biophan shall retain sufficient current capital to fund its operations and
      meet
      its obligations under this Agreement for a period of at least twelve months
      after the Closing.

     

    	5.  	
            MDT’S
              REPRESENTATIONS AND WARRANTIES.

          


     

    MDT
      represents and warrants to Biophan that the statements contained in this Section
      5 are true and correct as of the date hereof and on the Closing date.


     

    5.1  Organization.
      MDT is
      a Minnesota corporation duly incorporated, validly existing and in good standing
      under the laws of the State of Minnesota. 

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    5.2  Authorization.
      MDT has
      the full corporate power and authority to execute and deliver this Agreement
      and
      each Ancillary Agreement to which it is a party and to perform its respective
      obligations under this Agreement and under each such Ancillary Agreement. All
      corporate actions or proceedings to be taken by or on the part of MDT to
      authorize and permit the execution and delivery by MDT of this Agreement and
      each of the Ancillary Agreements to which it is a party and to perform its
      respective obligations under this Agreement and under such Ancillary Agreements
      have been duly taken. This Agreement has been duly executed and delivered by
      MDT
      and constitutes the legal, valid and binding obligation of MDT, enforceable
      in
      accordance with its terms and conditions subject to bankruptcy, insolvency,
      reorganization, moratorium and other similar laws of general application
      affecting the rights and remedies of creditors and to general principles of
      equity. Each of the Ancillary Agreements to which MDT is a party will be, as
      of
      the Closing, duly executed and delivered by MDT and will constitute, as of
      the
      Closing, the legal, valid and binding obligation of MDT, enforceable in
      accordance with its terms and conditions subject to bankruptcy, insolvency,
      reorganization, moratorium and other similar laws of general application
      affecting the rights and remedies of creditors and to general principles of
      equity.

     

    5.3  Noncontravention.
      Neither
      the execution and delivery of this Agreement and the Ancillary Agreements nor
      the consummation of the transactions contemplated hereby and thereby by MDT
      will
      (i) conflict with or result in a breach of or default under the Organizational
      Documents of MDT, or (ii) violate any material Legal Requirement to which MDT
      or
      any of its assets or property is subject.

     

    5.4  Consents.
      No
      Consents, Filings or Notices are required for MDT to accomplish the transactions
      contemplated by this Agreement and the Ancillary Agreements. 

     

    5.5  No
      Other Representations and Warranties.
      Except
      as expressly set forth in Section 5 of this Agreement, MDT makes no
      representation or warranty, express or implied, at law or in equity with respect
      to this Agreement, or otherwise.

     

    	6.  	
            COVENANTS.

          


     

    6.1  Closing.
      Subject
      to the terms and conditions of this Agreement, each of the Parties will use
      its
      commercially reasonable efforts to take, or cause to be taken, all actions
      and
      to do, or cause to be done, all things necessary, proper or advisable in order
      to consummate and make effective the transactions contemplated by this
      Agreement, including, with respect to Biophan, using such commercially
      reasonably efforts to satisfy the conditions to the Closing set forth in Section
      3.3.

     

    6.2  Protection
      of the Subject Intellectual Property.
      From
      the Effective Date until the Closing, Biophan shall, and shall cause its
      Affiliates and Representatives to:

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (i) use
      commercially reasonable efforts to preserve and to maintain and protect their
      rights, title and interests in and to the Assigned Intellectual Property
      Rights;

     

    (ii) use
      commercially reasonable efforts to pay or otherwise satisfy all of its and
      their
      respective Liabilities in respect of the Assigned Intellectual Property Rights;
      and

     

    (iii) comply
      with all Legal Requirements applicable to the Assigned Intellectual Property
      Rights.

     

    6.3  Boston
      Scientific License Agreement.
      The
      Parties acknowledge and agree that certain of the Assigned Intellectual Property
      Rights are subject to certain rights of Boston Scientific Scimed, Inc. pursuant
      to the Boston Scientific License Agreement. The Parties further acknowledge
      and
      agree that the following provisions shall apply to the Boston Scientific
      Agreement:

     

    (a)
       Biophan
      will not assign, and MDT will not assume, the Boston Scientific License
      Agreement and MDT shall have no obligations to Boston Scientific Scimed, Inc.
      thereunder.

     

    (b)
       Biophan
      will continue to perform all of its obligations in full compliance with and
      pursuant to the terms of the Boston Scientific License Agreement.

     

    (c) As
      of the
      Closing, Biophan hereby assigns to MDT all rights, title and interests Biophan
      has to “Royalties” with respect to “Non-Exclusive Products” (as term is defined
      in the Boston Scientific License Agreement) and shall remit such amounts to
      MDT
      upon receipt thereof from Boston Scientific Scimed, Inc.. 

     

    6.4  PCT
      Application 66143.
      Promptly after the Closing, the Parties shall cooperate with each other and
      use
      good faith efforts to amend PCT Application 66143 so that the claims of PCT
      Application 66143 are directed only to inventions in the Field, and to file
      a
      continuation or other appropriate application claiming priority to PCT
      Application 66143 (“Ancillary
      Application”),
      whereby the claims of the Ancillary Application are directed only to inventions
      in the Biophan Field. Upon the filing of the Ancillary Application, MDT agrees
      to sell, convey, assign and transfer, and hereby sells,
      conveys, assigns and transfers to Biophan all its interests in and to the
      Ancillary Appilcation, together with the right to sue and collect for past
      infringement. The Parties acknowledge that the objective of this Section 6.4
      is
      to have each Party own a patent application containing the claims of PCT
      Application 66143 that are directed to its particular field, but not any claims
      that are directed to the field of the other Party. 

     

    6.5  Further
      Assurances.
      From
      time to time upon request by MDT, Biophan will, and will cause its Affiliates
      to, execute, acknowledge and deliver, or will cause to be done, executed,
      acknowledged and delivered, all such further acts, deeds, assignments,
      transfers, license grants, conveyances, powers of attorney, and assurances
      that
      may be 

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    required
      to carry out the purposes of this Agreement. Without limiting the foregoing,
      following the Closing, Biophan shall take such further actions that are
      reasonably necessary to accomplish the complete transfer and assignment of
      Biophan’s rights, title and interests in and to the Assigned Intellectual
      Property Rights to MDT, and to assist MDT as reasonably necessary with the
      lawful filing and prosecution of Patent Rights, interferences, and oppositions,
      and with MDT’s determination of whether to continue requests for interferences
      with respect to the Assigned Patent Rights. During the period between the
      Effective Date and the Closing, Biophan will notify MDT in writing within ten
      (10) Business Days after Biophan becomes aware that any interference is declared
      involving any of the Assigned Patent Rights.

     

    6.6  Third
      Party Actions.
      Except
      as agreed to by the Parties in writing, following the Closing, MDT will have
      the
      sole and exclusive right and discretion to enforce the rights, title and
      interests in and to the Assigned Intellectual Property Rights against Third
      Parties, subject to the applicable terms of the Boston Scientific License
      Agreement. Following the Closing, MDT will decide whether or not to institute
      any proceeding against any Third Party with respect to any alleged infringement
      or misappropriation of the rights, title and interests in and to the Assigned
      Intellectual Property Rights in its sole and absolute discretion and will keep
      all proceeds of any such proceedings. If MDT is unable to enforce any obligation
      or other right without Biophan being party to an Action, then Biophan shall
      voluntarily join as a party in such Action as necessary to enforce any such
      obligation or other right; provided,
      that
      MDT agrees in advance to reimburse Biophan for its reasonable fees, costs and
      expenses relating thereto. Following the Closing, Biophan shall not testify
      (whether by declaration, affidavit, or in person) and Biophan shall not
      challenge or assist any Third Party in challenging the validity, enforceability
      or value of the Assigned Intellectual Property Rights, in each case other than
      under subpoena or similar legal order. Biophan shall not, and shall cause its
      Affiliates not to, assist any Third Party in the assertion of any Patent Rights
      in the Field against MDT or its Affiliates, other than under subpoena or other
      legal process. 

     

    6.7  Confidentiality.
      The
      Receiving Party agrees to maintain the confidentiality of the Confidential
      Information of the Disclosing Party and agrees not to disclose or use (except
      as
      permitted or required for performance by the Receiving Party of its rights
      or
      duties hereunder or under the Ancillary Agreements) any Confidential Information
      of the Disclosing Party. The Receiving Party further agrees to cause its and
      its
      Affiliates’ present and future employees, officers, agents and consultants to
      comply with the foregoing. If the Receiving Party is requested or required
      to
      disclose any Confidential Information of the Disclosing Party pursuant to any
      order or decree of a court of competent jurisdiction or any applicable law,
      the
      Receiving Party shall endeavor to provide the Disclosing Party with advance
      written notice of any such request or requirement (to the extent practicable)
      and shall provide reasonable assistance to the Disclosing Party if the
      Disclosing Party desires to seek a protective order or other appropriate remedy.
      If, in the absence of a protective order or other remedy, the Receiving Party
      is
      nonetheless legally compelled to disclose Confidential Information, the
      Receiving Party may, without liability hereunder, disclose that portion of
      the


     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    Disclosing
      Party’s Confidential Information that the Receiving Party’s legal counsel
      advises is legally required to be disclosed. 

     

    6.8  Public
      Statements.
      The
      Parties acknowledge and agree that as of the Effective Date, Biophan shall
      issue
      the press release set forth in Schedule 6.8 (the “Press
      Release”).
      Except for the Press Release, no Party or its Affiliate shall publicly disclose
      information regarding the terms of this Agreement or the Ancillary Agreements
      or
      the transactions contemplated hereunder or thereunder. Notwithstanding the
      foregoing provision, the Parties and their respective Affiliates shall not
      be
      prohibited from making any disclosure or release that is required by law, court
      order, or applicable regulation or that is required to protect any intellectual
      property right in any territory; provided,
      however, that prior to any such disclosure or release, the party proposing
      to so
      disclose or release information regarding the terms of this Agreement or the
      Ancillary Agreements shall notify the other parties, and the parties shall
      cooperate to seek applicable limitations on the public availability of any
      information that either MDT or Biophan considers sensitive or
      confidential.
      Notwithstanding the foregoing, in no event shall either Party be prohibited
      from
      making any disclosure or release that is considered necessary by its legal
      counsel to fulfill an obligation under applicable securities laws or stock
      exchange rules or regulations, subject to the prior review of such release
      by
      the other Party.

     

    6.9  Patent
      Prosecution.
      Except
      as specifically agreed to by the Parties in writing, following the Closing,
      Biophan will have no right or obligation to file, prosecute or maintain any
      Patent Rights included in the Assigned Patent Rights. MDT will have no
      obligation to file, prosecute or maintain any Patent Rights included in the
      Assigned Patent Rights. Notwithstanding the foregoing, the Parties agree as
      follows:

     

    (a) Biophan
      Field Covenant.
      Biophan
      hereby irrevocably and perpetually covenants, agrees and warrants that Biophan
      shall not, and shall cause its Affiliates not to, amend any patent application
      owned or controlled by it to include a claim that covers the Field
      (“Field
      Claim”).
      The
      covenant in this Section 6.9(a) shall inure to the benefit of the respective
      permitted successors and assigns of MDT and its Affiliates, and may be extended
      by MDT and its Affiliates with respect to any product line, to any Third Party
      that acquires substantially all the assets relating to such product line. In
      the
      event that Biophan or its Affiliates breaches its covenant in this Section
      6.9(a), then Biophan agrees to grant (and to cause its Affiliate to grant),
      and
      hereby grants, to MDT and its Affiliates an irrevocable, perpetual, paid-up,
      worldwide, transferable and assignable, exclusive license, with the right to
      sublicense, to practice methods falling within the scope of the Field Claim
      in
      the Field and to Exploit products falling within the scope of the Field Claim
      in
      the Field. 

     

    (b)
       MDT
      Field Covenant.
      MDT
      hereby irrevocably and perpetually covenants, agrees and warrants that MDT
      shall
      not, and shall cause its Affiliates not to, amend any of the patent applications
      set forth on Schedule 6.9(b) to include a claim that covers the Biophan Field
      (“Biophan
      Field Claim”).
      The
      covenants in this Section 6.9(b) shall inure to the benefit of the respective
      

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    permitted
      successors and assigns of Biophan and its Affiliates. The covenants in this
      Section 6.9(b) shall run with the patent applications set forth on Schedule
      6.9(b) and shall be binding on any Third Party acquiring any of the patents
      applications set forth on Schedule 6.9(b). In the event that MDT or its
      Affiliates breaches its covenant in this Section 6.9(b), then MDT agrees to
      grant (and to cause its Affiliate to grant), and hereby grants, to Biophan
      and
      its Affiliates an irrevocable, perpetual, paid-up, worldwide, transferable
      and
      assignable, exclusive license, with the right to sublicense, to practice methods
      falling within the scope of the Biophan Field Claim in the Biophan Field and
      to
      Exploit products falling within the scope of the Biophan Field Claim in the
      Biophan Field. 

     

    6.10  Tangible
      Materials.
      Biophan
      shall, as soon as reasonably practicable deliver any Tangible Materials that
      are
      in the possession of Biophan or its Affiliates or Representatives.

     

    6.11 Exclusivity.
      Biophan
      agrees that, during the period ending upon the earlier of (a) 90 days after
      the
      date hereof, or (b) such date as MDT terminates its obligation to proceed to
      the
      Closing pursuant to Section 3.4, Biophan will not discuss or negotiate with
      any
      party (other than MDT or its affiliates), or encourage the submission of
      inquiries, proposals or offers from any party (other than MDT or its
      affiliates), or otherwise provide information to any other person, with respect
      to the sale of or investment in Biophan (whether by merger, combination, sale
      of
      assets, sale of stock, or otherwise) or the sale, licensing, distribution,
      or
      other disposition of all or any rights in the Assigned Intellectual Property
      Rights, and that Biophan will, and it will direct its employees, agents,
      advisors and affiliates, to affirmatively and immediately upon its execution
      of
      this Agreement, discontinue any discussions or negotiations with any party
      (other than MDT or its affiliates) with respect to any of the foregoing.


    


    	7.  	
            INDEMNIFICATION.

          


     

    7.1  Indemnification
      by Biophan.
      Biophan
      and its Affiliates shall jointly and severally indemnify, defend and hold
      harmless MDT and its Affiliates and Representatives, whether or not involving
      a
      Third Party Claim, against all Losses relating to or arising out
      of:

     

    (a)  (i)
      the
      breach of any representation or warranty of Biophan under Section 4 of this
      Agreement or (ii) the breach of any covenant or obligation of Biophan or its
      Affiliates in this Agreement or any of the Ancillary Agreements;

     

    (b)  any
      Third
      Party Claim arising under or relating to a right to assign title to the Assigned
      Patent Rights, including any ability of Biophan or its Affiliates to grant
      any
      license or make assignments hereunder or any restriction on Biophan’s or its
      Affiliates’ rights to or make assignments of right, title and interest in and to
      the Assigned Patent Rights and any Claim or Action by or on behalf of Boston
      Scientific Scimed, Inc. that the transactions 

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    contemplated
      by this Agreement result in a breach of the Boston Scientific License Agreement;
      or

     

    (c) any
      Contractual Obligation of Biophan or its Affiliates to make any payments to
      any
      Third Party arising out of or relating to the payment of the Closing
      Payments.

     

    7.2  Indemnification
      by MDT.
      MDT
      shall indemnify, defend and hold harmless Biophan and its Affiliates and
      Representatives, whether or not involving a Third Party Claim, against all
      Losses relating to or arising out of:

     

    (a)  the
      breach of any representation or warranty of MDT in Section 5 of this Agreement
      or the breach of any covenant or obligation of MDT in this Agreement or any
      of
      the Ancillary Agreements;

     

    (b)  any
      Claims or Actions by any Third Party arising out of or relating to the
      Exploitation by MDT or its Affiliates of or relating to products, product
      systems or procedures derived from or based on the Assigned Intellectual
      Property Rights other than any Claim or Action by or on behalf of Boston
      Scientific Scimed, Inc. under the Boston Scientific License Agreement; provided,
      however, that MDT shall indemnify Biophan as to any Claims by Boston Scientific
      Scimed, Inc. alleging Boston Scientific Scimed, Inc. is entitled to a license
      of
      any claims in any patent within the definition of the Assigned Patent Rights
      that (i) were inserted in the Assigned Patent Rights after the Closing; and
      (ii)
      do not include new matter; and

     

    (c)  any
      Claims or Actions by any Third Party for product liability, product warranty
      or
      similar Claim or Action arising out of or relating to the licensing or
      sublicensing by MDT under the Assigned Intellectual Property
      Rights.

     

    7.3  Survival.
      The
      terms of this Agreement and all provisions hereof, including all
      representations, warranties, promises, agreements and covenants, are contractual
      and not mere recitals and shall survive the execution and delivery of this
      Agreement and the Closing under this Agreement and, except as expressly stated
      herein, shall continue in full force and effect thereafter; provided that
      nothing in this Section 7.3 shall be interpreted as requiring that the
      representations and warranties set forth in Article 4 be and remain true and
      correct at times after the Closing subject to MDT’s right pursuant to Section
      7.1 to make Claims based on the breach or inaccuracy of such representations
      and
      warranties as of the Closing and times prior thereto.

     

    7.4  Notice
      of Claims.
      If an
      Indemnified Party intends to seek indemnification pursuant to this 

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    Agreement,
      such Indemnified Party shall promptly notify the Indemnifying Party in writing
      of the Claim for which indemnification is sought, including any Third Party
      Claims in respect of which indemnification is sought under this Agreement.
      Any
      such notice shall set forth in reasonable detail, in light of the circumstances
      then known to the Indemnified Party, the facts, circumstances and basis of
      the
      Claim and, if the Claim relates to a Third Party Claim, shall include copies
      of
      all papers served upon or received by the Indemnified Party relating thereto.
      Any delay in the provision of such notice and accompanying materials shall
      not
      affect any rights under this Agreement except to the extent that the
      Indemnifying Party is actually and materially prejudiced thereby (and except
      that the Indemnifying Party shall not be liable for any expenses incurred during
      the period in which the Indemnified Party failed to give such
      notice).

     

    7.5  Third
      Party Claims.
      The
      Indemnified Party shall have the sole and exclusive right to control of the
      defense of any Third Party Claim with counsel of its choice, and the Indemnified
      Party’s reasonable legal fees and expenses shall constitute part of the Losses
      indemnified under this Agreement. The Indemnified Party may consent to the
      entry
      of any judgment or enter into any compromise or settlement with respect to,
      the
      Third Party Claim; provided, that the Indemnifying Party will not be bound
      by
      the entry of any such judgment consented to, or any such compromise or
      settlement effected, without its prior written consent (which consent will
      not
      be unreasonably withheld or delayed)

     

    7.6  Knowledge
      and Investigation.
      The
      right of any Indemnified Party to indemnification pursuant to this Section
      7
      will not be affected by any investigation conducted or knowledge acquired (or
      capable of being acquired) at any time, whether before or after the execution
      and delivery of this Agreement or the Closing, with respect to the accuracy
      of
      any representation or warranty, or performance of or compliance with any
      covenant or agreement under this Agreement.

     

    7.7 Equitable
      Remedies.
      In
      addition to any other relief or remedies afforded by law or in equity, if either
      Party or any of its Affiliates breaches its obligations under this Agreement,
      the other Party shall be entitled, as a matter of right and without posting
      any
      bond or other security, to injunctive relief in any court of competent
      jurisdiction. This shall not preclude the granting of any other appropriate
      relief including, without limitation, money damages against the breaching Party
      for breach of this Agreement.

     

    	8.  	
            MISCELLANEOUS.

          


     

    8.1  Interpretation.
      Except
      as otherwise explicitly specified to the contrary, (a) references to a Section,
      Exhibit or Schedule means a Section of or Schedule or Exhibit to this Agreement,
      unless another agreement is specified, (b) the word “including” will be
      construed as “including but not limited to,” and will not be construed as
      limiting the general language to which it relates, and the items or matters
      that
      follow the word “including” or the words “including but not limited to” or
“including without limitation” or similar words in this Agreement shall be
      construed as illustrative, but not exclusive or complete, examples of what
      is
      intended to be so included, (c) the term “or” is not limiting and means
“and/or,” (d) references to a particular statute or regulation include all rules
      and regulations thereunder and any predecessor or successor statute, rules
      or
      regulation, 

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    in
      each
      case as amended or otherwise modified from time to time, (e) words in the
      singular or plural form include the plural and singular form, respectively,
      (f)
      references to a particular Person include such Person’s successors and assigns
      to the extent not prohibited by this Agreement and (g) references to “Dollars”
or “$” shall be to U.S. Dollars. The Parties have participated jointly in the
      negotiation and drafting of this Agreement. In the event an ambiguity or
      question of intent or interpretation arises, this Agreement shall be construed
      as if drafted jointly by the Parties and no presumption or burden of proof
      shall
      arise favoring or disfavoring any Party by virtue of the authorship of any
      of
      the provisions of this Agreement.

     

    8.2  No
      Third Party Beneficiaries.
      Except
      as specifically provided in this Agreement, this Agreement shall not confer
      any
      rights or remedies upon any Person other than the Parties and their respective
      successors and permitted assigns.

     

    8.3  Entire
      Agreement.
      Excepts
      as agreed to by the parties in writing, this Agreement, the Schedules and
      Exhibits hereto, and the Ancillary Agreements constitute the entire agreement
      among the Parties and supersedes any prior understandings, agreements or
      representations by or among the Parties, whether written or oral, with respect
      to the subject matter hereof.

     

    8.4  Assignment.
      No
      Party may assign either this Agreement or any of its rights, interests or
      obligations under this Agreement without the prior written approval of the
      other
      Parties; provided,
      however, that MDT may, without notice to or consent of Biophan, (i) assign
      all
      of its rights and interests and delegate all of its obligations under this
      Agreement to a Third Party in connection with the sale of all or substantially
      all of the capital stock of MDT or all or substantially all of the assets to
      which this Agreement relates (whether by merger, consolidation or otherwise)
      to
      such Third Party, provided that such Third Party executes a counterpart to
      this
      Agreement acknowledging and agreeing to assume all such obligations of MDT
      and
      its Affiliates under this Agreement; (ii) assign all of its rights and interests
      to one or more of its Affiliates; (iii) assign right, title and interest in
      and
      to any of the Assigned Intellectual Property Rights to any party; and (iv)
      designate one or more of its Affiliates to perform its obligations under this
      Agreement provided that such designation shall not relieve MDT from its
      obligations under this Agreement. Subject to the foregoing, this Agreement
      shall
      be binding upon and inure to the benefit of the Parties named herein and their
      respective successors and permitted assigns.

     

    8.5  Counterparts.
      This
      Agreement may be executed in one or more counterparts, each of which shall
      be
      deemed an original but all of which together shall constitute one and the same
      instrument.

     

    8.6  Headings.
      The
      Section headings contained in this Agreement are inserted for convenience only
      and shall not affect in any way the meaning or interpretation of this
      Agreement.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    8.7  Notices.
      All
      communications between Biophan and MDT relating to this Agreement and the
      subject matter hereof shall be directed to the persons designated to receive
      notices set forth in this Section 8.7 or such other individuals as they may
      designate. All notices, requests, demands, Claims and other communications
      under
      this Agreement shall be in writing. Any notice, request, demand, Claim or other
      communication under this Agreement shall be deemed duly given (i) when delivered
      personally to the recipient, (ii) upon confirmation of facsimile (with a
      confirmation copy to be sent by overnight delivery) or (iii) one Business Day
      following the date sent when sent by overnight delivery, at the following
      address:

     

    If
      to
      Biophan:
      

    


    Biophan
      Technologies, Inc. 

    15
      Schoen
      Place

    Pittsford,
      NY 14534

    Fax:
      (585) 267-4831

    Attention:
      CEO

    


    with
      copies to:

    


    Melissa
      Mahler, Esq.

    15
      Schoen
      Place

    Pittsford,
      NY 14534

    


    If
      to
      MDT:

    


    Medtronic,
      Inc.

    710
      Medtronic Parkway

    Minneapolis,
      MN 55432-5604

    Attention:
      General Counsel

     

    Any
      Party
      may change the address to which notices, requests, demands, Claims and other
      communications under this Agreement are to be delivered by giving the other
      Party notice in the manner herein set forth.

     

    8.8  Governing
      Law.
      This
      Agreement shall be governed by and construed in accordance with the domestic
      laws of the State of Minnesota without giving effect to any choice or conflict
      of law provision or rule (whether of the State of Minnesota or any other
      jurisdiction) that would cause the application of the laws of any jurisdiction
      other than the State of Minnesota. The parties hereto submit to the exclusive
      jurisdiction of the State and Federal courts in the State of Minnesota and
      Hennipen County with respect to any dispute. 

     

    8.9  Amendments
      and Waivers.
      No
      amendment of any provision of this Agreement shall be valid unless the same
      shall be in writing and signed by MDT and Biophan. No waiver by any Party of
      any
      provision of this Agreement or any default, 

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    misrepresentation
      or breach of warranty or covenant under this Agreement, whether intentional
      or
      not, shall be valid unless the same shall be in writing and signed by the Party
      making such waiver nor shall such wavier be deemed to extend to any prior or
      subsequent default, misrepresentation or breach of warranty or covenant under
      this Agreement or affect in any way any rights arising by virtue of any prior
      or
      subsequent such occurrence. Any consent, waiver or amendment signed by Biophan
      shall be deemed the consent, waiver or amendment of Biophan and its Affiliates
      and any consent, waiver or amendment signed by a Representative of MDT shall
      be
      deemed the consent, waiver or amendment of MDT’s Affiliates pursuant
      hereto.

     

    8.10  Severability.
      Any
      term or provision of this Agreement that is invalid or unenforceable in any
      situation in any jurisdiction shall not affect the validity or enforceability
      of
      the remaining terms and provisions hereof or the validity or enforceability
      of
      the offending term or provision in any other situation or in any other
      jurisdiction. In the event that any term or provision of this Agreement would,
      under applicable law, be invalid or unenforceable in any respect, each Party
      intends that such provision will be construed by modifying or limiting it so
      as
      to be valid and enforceable to the maximum extent compatible with, and possible
      under, applicable law. For any such invalid or unenforceable provision, the
      Parties shall use commercially reasonable efforts to negotiate a substitute
      valid and enforceable provision while preserving to the fullest extent possible
      the intent and agreements of the Parties set forth herein.

     

    8.11  Expenses.
      Except
      as expressly stated otherwise, each of the Parties will bear his or its own
      costs and expenses (including legal and accounting fees and expenses) incurred
      in connection with this Agreement, the Ancillary Agreements and the transactions
      contemplated hereby and thereby.

     

    


     

    [Signature
      Page Follows]


    
      
         

      

      
         

        
          

        

      

      
         

      

    


    


    IN
      WITNESS WHEREOF, each of the undersigned has executed this Agreement as an
      agreement under seal as of the date first above written.

     

     

    
      	 	
              MEDTRONIC, INC.  

               

               

              By: 
                 /s/
                Dan Lemaitre

            
	 	
              Name:Dan
                Lemaitre

              Title:Vice
                President Corporate Strategy and
                Development

            
	 	
               

               

              BIOPHAN TECHNOLOGIES, INC.

               

              By:   /s/
                John Lanzafame

            
	 	
              Name:
                John Lanzafame 

              Title:
                Chief
                Operating Officer