exhibit_101.htm


                                                                                          

      
                                                                    Exhibit 10.1

         

        Confidential
Treatment Requested:

        Confidential
Portions of this document have been redacted and have been filed separately with
the Commission



      

       

      SETTLEMENT AND LICENSE
AGREEMENT

       

      This
Settlement and License Agreement (“Agreement”), is made
and entered into effective September 22, 2008, (the “Effective Date”) by and
between:

       

      Boston
Scientific Corp. (“BSC”) and Target
Therapeutics, Inc. (“TTI” and,
collectively with BSC, “Boston Scientific”); and

       

      Micrus
Endovascular Corporation (“Micrus”);

       

      Each of
Boston Scientific and Micrus may be referred to herein individually as a “Party” or jointly as
the “Parties.”

       

      WHEREAS, the Parties to this
Agreement are parties to Boston Scientific Corp. and Target
Therapeutics, Inc. v. Micrus Corp., Civil Action No. C04-04072 (JW),
pending in the United States District Court for the Northern District of
California (hereinafter “the
Litigation”);

       

      WHEREAS, the Parties wish to
enter into this binding and enforceable Agreement between them, to finally
resolve and settle the Litigation and avoid potential future litigations
relating to the BSC Licensed Patents and Micrus Licensed Patents (each as
defined below) and Micrus’s antitrust and state law claims raised in the
Litigation;

       

      WHEREAS, Boston Scientific and
Micrus deny any and all claims of liability relating in any way to the claims or
counterclaims raised in the Litigation;

       

      NOW THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties on behalf of themselves and their Affiliates hereby
enter into this Agreement under the following terms.

       

      ARTICLE
1

       

      


       

      DEFINITIONS

       

      1.1 The
following definitions shall apply for purposes of this Agreement:

       

      A. “Affiliates” as used
herein means any entity that is directly or indirectly controlled by a Party, is
under common control with a Party, or is an entity that controls a Party but
only for so long as such control exists.  For this purpose, “control”
(including the terms “controlled by” and “under common control with”) means
direct or indirect possession of the power to direct or cause the direction of
the management and policies of an entity, whether through ownership of voting
shares, by contract or otherwise.

       

      B. “BSC Licensed Patents”
means all patents and patents issuing from applications owned by Boston
Scientific or its Affiliates, or which Boston Scientific or its Affiliates have
any rights to sublicense, as of the Effective Date of this Agreement, that have
one or more claims for which the point of novelty is [***]

       


      
        
          
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      (the
specifically enumerated patents being the “[***] Patents”), and
any and all patents and patents issuing from applications claiming priority
thereto or from which any of these patents claim priority directly or
indirectly, such as divisions, continuations, and continuations-in-part, and
reexaminations, reissues, renewals, extensions, supplementary protection
certificates, and the like of such patents, and foreign equivalents thereof, and
such patents whose term has been extended by statutory patent term adjustments
or extensions in any jurisdiction.  Notwithstanding the foregoing, BSC
Licensed Patents expressly excludes the [***]), and any and all patents and
patents issuing from applications claiming priority thereto or from which any of
these patents claim priority directly or indirectly, such as divisions,
continuations, and continuations-in-part, and reexaminations, reissues,
renewals, extensions, supplementary protection certificates, and the like of
such patents, and foreign equivalents thereof, and such patents whose term has
been extended by statutory patent term adjustments or extensions in any
jurisdiction, except to the extent the [***] Patent, [***] patents, [***]
Patents and any of the other foregoing patents claim priority to the [***]
Patents.

       

      The [***]
Patents are licensed to TTI by The Regents of the University of California
(“The Regents”)
pursuant to a royalty-bearing license agreement, with the right to
sublicense.

       

      C. “Excluded
Patents.”  Notwithstanding the foregoing, BSC Licensed Patents
expressly exclude [***], and any and all patents and patents issuing from
applications claiming priority thereto directly or indirectly, such as
divisions, continuations, and continuations-in-part, and reexaminations,
reissues, renewals, extensions, supplementary protection certificates, and the
like of such patents, and foreign equivalents thereof, and such patents whose
term has been extended by statutory patent term adjustments or extensions in any
jurisdiction (the “Excluded
Patents”).

       

      D. “Micrus Licensed
Patents” means all patents and patents issuing from applications owned by
Micrus or its Affiliates, or which Micrus or its Affiliates have any rights to
sublicense, as of the Effective Date of this Agreement, that have one or more
claims for which the point of novelty is [***], including, but not limited
to,

       


      
        
          
             

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      [***],
and any and all patents and patents issuing from applications claiming priority
thereto or from which any of these patents claim priority directly or
indirectly, such as divisions, continuations, and continuations-in-part, and
reexaminations, reissues, renewals, extensions, supplementary protection
certificates, and the like of such patents, and foreign equivalents thereof, and
such patents whose term has been extended by statutory patent term adjustments
or extensions in any jurisdiction.

       

      1.2 The
following additional definitions are provided herein:

       

      A. “California
Court” – Section
2.2

       

      B. “Releasing
Parties”
– Section
3.1

       

      C. “Claim(s)” – Section
3.1

       

      D. “Micrus
License”
– Section
4.1

       

      E. “BSC License” – Section
4.2

       

      F. “Improvement” – Section
4.5

       

      ARTICLE
2

       

       

       

      DISMISSAL
OF LITIGATION

       

      2.1 Dismissal of the
Litigation.  Boston Scientific and Micrus shall execute a
stipulation for dismissal of the Litigation, using the form attached as Exhibit
A, and Micrus shall file such jointly executed stipulation within ten (10) days
of the Effective Date.

       

      2.2 Continuing
Jurisdiction.  The Parties hereby agree that the Honorable
James Ware (if available) and the United States District Court for the Northern
District of California, San Jose Division (the “California Court”) shall have
personal and exclusive jurisdiction over them for the limited purpose of
enforcing or interpreting any portion of this Agreement.  Said
jurisdiction may be invoked by or against either Party by filing a request to
re-open Case No. C04-04072 (JW), which request shall specifically identify the
Agreement provision in question and the nature of the dispute or
disagreement.  If for any reason Judge Ware is not available, then the
Parties agree that the action should be assigned to another California Court
judge.  The California Court’s continuing
jurisdiction for purposes of enforcing this Agreement shall be noted in the
stipulation and order for dismissal of the Litigation.

       

      2.3 Defenses
Preserved.  Nothing in this Agreement shall prejudice any
defenses which either Party may assert in the event that the other Party
hereafter alleges infringement of the BSC Licensed Patents or Micrus Licensed
Patents, or raises any other claim or cause of action released under this
Agreement, including, without limitation, Micrus’s antitrust and
state law counterclaims raised in the Litigation.

       


      
        
          
             

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      ARTICLE
3

       

      


       

      MUTUAL
RELEASES

       

      3.1 Releases.  Each
Party, on its own behalf and on behalf of its respective predecessors,
successors, direct or indirect parent or subsidiary companies, Affiliates,
agents, representatives, attorneys, controlling persons, heirs, and assigns
(“The Releasing
Parties”), waives and
releases, acquits and forever discharges the other Party and each of its
respective past or present predecessors, successors, direct or indirect parent
or subsidiary companies, Affiliates, agents, distributors, customers,
manufacturers (but only to the extent the manufacturers have made products for
or on behalf of a Party and not on behalf of a third party), officers,
directors, employees, representatives, attorneys, controlling persons, heirs,
and assigns from any and all claims, counterclaims, and causes of action
(collectively “Claims”) arising
prior to the Effective Date to which the rights, licenses, releases, and
covenants expressly granted under this Agreement would be a complete defense had
the claim, counterclaim, or cause of action arisen on or after the Effective
Date including, without limitation, all of the patent and non-patent claims,
counterclaims, and causes of action alleged and pleaded by the Parties in the
Litigation.  For clarification, the releases herein apply to, without
limitation, all claims, counterclaims and causes of action raised in the
Litigation.  Notwithstanding the foregoing, the releases herein do not
apply to any acquirer of Micrus or its Affiliates or the Affiliates of such
acquirer except in the case of commercialized products, products in clinical
trial, or products for which regulatory approval has been applied for in the
United States, in each case, made, sold or furnished by Micrus prior to the
Effective Date.  The releases do not apply to claims, counter-claims,
defenses, or causes of action for the infringement or alleged infringement of
any claims of the [***]  Patents, the Excluded Patents, and the
patents expressly excluded from the BSC Licensed Patents, including without
limitation the [***] Patent and [***] patents.

       

      3.2 Section 1542 of the Civil Code of
California.  The foregoing releases extend to Claims referenced
in Section 3.1, which the Releasing Parties do not know or suspect to exist in
their favor, which if known by them would have materially affected their
decision to enter into this release.  Boston Scientific and Micrus
represent and agree that they have been fully advised by their respective
attorneys regarding the contents of Section 1542 of the Civil Code of
California.  Section 1542 reads as follows:

       

      A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.

       

      The
Releasing Parties expressly waive and relinquish all rights and benefits under
the above Section 1542, and any similar law or common law principal of similar
effect in any jurisdiction with respect to the Claims released
herein.

       


      
        
          
             

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      ARTICLE
4

       

      


       

      LICENSES

       

      4.1 Micrus License to
BSC.  As of the Effective Date, and subject to the restrictions
set forth herein, including Sections 4.5 and Article 5, Micrus grants to Boston
Scientific and its Affiliates a non-exclusive, non-transferable (except as set
forth in Sections 4.5 and 5.2), non-sublicensable, irrevocable, worldwide,
paid-up, royalty free license or sublicense under the Micrus Licensed Patents,
to make on its own behalf (and not on behalf of any third party), have made on
its own behalf (and not on behalf of any third party), use, sell, have sold on
its own behalf (and not on behalf of any third party), offer for sale, have
offered for sale on its own behalf (and not on behalf of any third party),
import and have imported on its own behalf (and not on behalf of any third
party), coil and delivery wire products and apparatus, and to perform coiling
methods, utilizing [***], in each case for the neurovascular field (“Micrus License”).

       

      4.2 BSC License to
Micrus.  As of the Effective Date, and subject to the
restrictions set forth herein, including Sections 4.5 and Article 5, Boston
Scientific grants to Micrus and its Affiliates a non-exclusive, non-transferable
(except as set forth in Sections 4.5 and 5.1), non-sublicensable, irrevocable,
worldwide, paid-up, royalty free license or sublicense under the BSC Licensed
Patents, to make on its own behalf (and not on behalf of any third party), have
made on its own behalf (and not on behalf of any third party), use, sell, have
sold on its own behalf (and not on behalf of any third party), offer for sale,
have offered for sale on its own behalf (and not on behalf of any third party),
import and have imported on its own behalf (and not on behalf of any third
party), coil and delivery wire products and apparatus, and to perform coiling
methods, utilizing [***], in each case for the neurovascular field (“BSC License”).

       

      4.3 Pass-Through Payment
Obligations.  Notwithstanding the foregoing, if a Party, as
licensor, has rights to certain patents, which fall within the scope of this
Agreement as a BSC Licensed Patent or Micrus Licensed Patent, as the case may
be, by virtue of a license granted to it by a third party, and the Party's right
to sublicense such Licensed Patents is subject to a payment in any form to such
third party, then:  (i) the Party shall notify the other Party in
writing of such payment obligation and the Licensed Patents to which it applies;
and (ii) the other Party shall have the option at its own election of declining
the License to such Licensed Patents or accepting the License to such Licensed
Patents together with responsibility for any payment owed to the third party for
such License.  Acceptance of any such License may be subject to
approval of the third party in accordance with the terms of the license from the
third party and/or execution of a mutually acceptable agreement between the
other Party and the third party.  Boston Scientific and Micrus each
warrants and represents to the other that, as of the Effective Date, with
respect to the Micrus products and methods identified by Boston Scientific as
infringing in the Litigation or the Boston Scientific products and methods
identified by Micrus as infringing in the Litigation, as the case may be, none
of the respective BSC Licensed Patents

       


      
        
          
             

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      or Micrus
Licensed Patents is subject to pass-through payment obligations subject to the
terms herein with the sole exception of the [***] Patents.  Neither
Party may, after the Effective Date, convert a Micrus Licensed Patent or a BSC
Licensed Patent that is not presently subject to a pass-through payment
obligation to a pass-through payment obligation.

       

      4.4 No Implied
License.  Except as expressly set forth in this Agreement, no
other rights or licenses are granted to the Licensed Patents and all right,
title and interest in the Licensed Patents are reserved by the applicable
Party.  Nothing in this Agreement shall be construed as conferring by
implication, estoppel, or otherwise any license or other right under any patent
or intellectual property of Micrus or Boston Scientific, except as expressly
granted herein.  Nothing in this Agreement shall be construed as a
warranty or representation that any acts licensed or immunized hereunder will be
free from infringement of the intellectual property of a Party or third party,
other than to the extent of the licenses, covenants, and releases that have been
expressly granted herein.

       

      4.5 Licenses Are
Personal.  The BSC License and Micrus License are personal and
may only be transferred with the sale of all or substantially all of the assets
and respective business or division of a Party as provided in this Section 4.5
and Article 5.  Notwithstanding the foregoing, if during the term of
the Agreement, a third party acquires either Party or the assets and relevant
business unit of either Party, or if either Party or relevant assets and
business unit is merged into a third party, the existing products or services
and any future derivative products or services of the third party, even if of
the same kind or similar to those of the acquired Party licensed under this
Agreement between Boston Scientific and Micrus, shall not be licensed under the
terms of this Agreement between Boston Scientific and Micrus.  The BSC
License and Micrus License herein may be transferred to such acquiring third
party only with respect to (i) commercialized products; (ii) products in
clinical trial; and (iii) products for which regulatory approval has been
applied for in the United States, in each case, made, sold or furnished by the
acquired or transferring Party and its Affiliates prior to the acquisition or
merger, and future Improvements of those products, all of which shall continue
to benefit from the licenses granted pursuant to the BSC or Micrus Licenses (as
the case may be).  For purposes of this Agreement, an Improvement is a
product that does not contain a feature that meets a claim limitation of a BSC
Licensed Patent or Micrus Licensed Patent (as the case may be) that was not met
by that Party’s predecessor product  For clarification, an
Improvement shall not extend to [***].

       

      ASSIGNMENT
OF AGREEMENT

       

      4.5 Assignment and Transfer by
Micrus.  Micrus may not assign or otherwise transfer (by
operation of law or otherwise) this Agreement, or the rights, licenses and
obligations contained herein, in whole or in part without the prior written
consent of Boston Scientific, except that, subject to the restrictions in
Section 4.5, Micrus may assign this Agreement without the written consent of
Boston Scientific to a corporation or other business entity succeeding to all or
substantially all the assets and business of Micrus to which this Agreement
relates, by merger or purchase, provided that such corporation or other business
entity shall expressly assume in writing (a copy of which shall be delivered to
BSC) all of the terms and conditions of this Agreement including the limitation
on licenses and covenants to acquiring or merging third

       


      
        
          
             

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      parties
as set forth in Sections 4.2 and 4.5.  A change of control transaction
will constitute an assignment for purposes of this section.

       

      4.6 Assignment and Transfer by Boston
Scientific.  Boston Scientific may not assign or otherwise
transfer (by operation of law or otherwise) this Agreement, or the rights,
licenses and obligations contained therein, in whole or in part without the
prior written consent of Micrus, except that, subject to the restrictions in
Section 4.5, Boston Scientific may assign this Agreement without the written
consent of Micrus to a corporation or other business entity succeeding to all or
substantially all the assets and business of Boston Scientific to which this
Agreement relates including, without limitation, the Boston Scientific
Neurovascular Division, by merger or purchase, provided that such corporation or
other business entity shall expressly assume in writing (a copy of which shall
be delivered to Micrus) all of the terms and conditions of this Agreement
including the limitation on licenses and covenants to acquiring or merging third
parties as set forth in Sections 4.1 and 4.5.  A change of control
transaction will constitute an assignment for purposes of this
restriction.

       

      ARTICLE
5

       

      


       

      TERM

       

      5.1 Term.  The term of
this Agreement and the licenses herein will commence on the Effective Date and
expire on the date on which the last of the BSC Licensed Patents or Micrus
Licensed Patents expires.

       

      ARTICLE
6

       

      


       

      COVENANTS
NOT TO SUE

       

      6.1 Boston Scientific Covenants Not To
Sue.

       

      A. Covenant Not To Sue
Micrus.  Boston Scientific covenants not to sue Micrus and its
Affiliates (in this Section 7.1(A), Affiliates expressly excludes any acquirer
of Micrus or its Affiliates or the Affiliates of such acquirer) for alleged
infringement of the [***] Patent, [***] Patents or the Excluded Patents (as
defined above in Section 1.1(B)) based on Micrus’s and its
Affiliates’
making, using, selling, offering for sale, importing or exporting medical
devices or methods, on its own behalf (and not on behalf of any third party),
that are [***], that are substantially equivalent in design and function to the
design and functionality of Micrus’s accused products
in the Litigation (including all Micrus products identified by Boston Scientific
as infringing in its pleadings, disclosures or otherwise in discovery in the
Litigation).  For clarification, this covenant not to sue with respect
to the [***] Patents shall not extend to [***].

       


      
        
          
             

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      B. Covenant Not To Sue
Acquirer.  BSC further covenants not to sue any acquirer of
Micrus or its Affiliates or the Affiliates of such acquirer for alleged
infringement of the [***] Patent, [***] Patents or Excluded Patents based on the
manufacture, use, sale, offer for sale, import, or export of medical devices, on
its own behalf or its Affiliates’ behalf (and not
on behalf of any third party), that are: (i) [***]; (ii) commercialized
products, products in clinical trial, or products for which regulatory approval
has been applied for in the United States, in each case, made, sold or furnished
by Micrus and its Affiliates prior to the acquisition or merger, and future
Improvements of those products; and (iii) substantially equivalent in design and
function to the design and functionality of Micrus’s accused products
in the Litigation (including all Micrus products identified by Boston Scientific
as infringing in its pleadings, disclosures or otherwise in discovery in the
Litigation).  For clarification, this covenant not to sue shall extend
only to products meeting all three criteria listed above.  For
clarification, this covenant not to sue with respect to the [***] Patents shall
not extend to [***].

       

      6.2 Mutual Covenants Not to
Sue.  Each Party covenants not to sue the other Party or any of
its Affiliates for any claim that such other Party’s or any of its
Affiliates’
manufacture, use, sale, offer for sale, lease, importation, distribution or
other transfer of its or its Affiliates’ licensed products
and methods (as identified and defined in Sections 4.1 and 4.2) constitutes
contributory infringement or inducement of infringement of any BSC Licensed
Patent or Micrus Licensed Patent.  This covenant not to sue contained
in this Section 7.2 does not apply to any acquirer of a Party or its Affiliates
or the Affiliates of such acquirer except with respect to (i) commercialized
products; (ii) products in clinical trial; and (iii) products for which
regulatory approval has been applied for in the United States, in each case,
made, sold or furnished by a Party prior to the acquisition or merger, and
future Improvements of those products.

       

      6.3 Combinations of Acquired
Items.  End-users (including hospitals, physicians and their
staff) and distributors for a Party (but expressly excluding other medical
device manufacturers) who obtain, directly or indirectly, a licensed product
(such licensed products set forth in Article 4) or a product subject to a
covenant not to sue (granted in Sections 7.1 or 7.2) from either Party or any of
its Affiliates (“Acquired Item”) shall be immune
from suit, under any claim of a patent for which a license, release, or covenant
is granted under this Agreement covering the combination of an Acquired Item
with another Acquired Item or with one or more other items, for making, using,
selling, offering for sale, importing, distributing, or otherwise transferring a
combination of one or more Acquired Items with another Acquired Item or with one
or more other items, but only to the extent that:  (i) the use, sale,
offering for sale, importing, distributing or other transfer of such one or more
Acquired Items by a Party or its Affiliate would absent this Agreement,
constitute direct infringement, contributory infringement or inducement of
infringement of such claim, and (ii) such claim would not be infringed by such
other items separate and apart from the combination with the Acquired
Items.  The determination of infringement in (i) above shall assume
the existence of any necessary knowledge or intent required to constitute
infringement.

       

      


       


      
        
          
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      6.4 If a
Party assigns to a third party, or transfers to a third party any right, title,
or interest in, any patents subject to any of the covenants in this Article 7,
then the assigning party shall require that such third party is subject to the
terms set forth in this Article 7 as applicable to such transferred or assigned
patent, right, title, or interest.

       

      ARTICLE
7

       

      


       

      FINAL
APPROVAL AND RELEASE BY THE REGENTS;

       

      PAYMENTS
TO THE REGENTS

       

      7.1 Final Approval And Release by The
Regents.  The Parties understand and agree that this Agreement
was conditioned on, and subject to, the written release of Boston Scientific and
Micrus by The Regents of any royalty obligations relating to the BSC License and
payment by Micrus to The Regents of $1,650,000.

       

      ARTICLE
8

       

      


       

      CONFIDENTIALITY

       

      8.1 Confidentiality.  Neither
this Agreement, nor its substance, nor the fact or substance of discussions that
have taken place between the Parties may be disclosed publicly or privately to a
third party (other than The Regents) without the written consent of both
Parties, except that each Party may:  (i) inform Affiliates, advisors,
counsel, and employees with a need to know as such Party reasonably deems
necessary; or (ii) make appropriate disclosures as may be required by a court of
law; or (iii) make appropriate disclosures if necessary in connection with tax
audits or for a party to fulfill its corporate financial reporting obligations
under GAAP; or (iv) make appropriate disclosures if necessary for a Party to
comply with disclosure obligations of applicable securities law.

       

      ARTICLE
9

       

      


       

      MISCELLANEOUS

       

      9.1 Costs, Expenses, and
Attorneys’ Fees.  Each Party
shall bear its own costs, expenses, and attorneys’ fees incurred in
connection with the Litigation and this Agreement.

       

      9.2 Mediation for Future
Disputes.  The Parties agree that in the event a bona fide
dispute between them arises under this Agreement, (a) the CEO (in the case of
Micrus) or the President of Boston Scientific Neurovascular Division (in the
case of BSC), as the case may be, of the Party asserting a claim or demand
(“Complainant”) will notify in
writing the CEO (in the case of Micrus) or the President of Boston Scientific
Neurovascular Division (in the case of BSC), as the case may be, of the other
Party (“Respondent”) regarding the
nature of' the dispute (“the Demand”),
(b) within 10 business days of the date of the Respondent receives the Demand,
the CEO of Micrus and the President of Boston Scientific Neurovascular Division
will discuss the Demand and any claim or demand of the Respondent as well, (c)
if the discussion does not

       


      
        
          
             

            


          

           


        

        
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      resolve
the demands or disputes raised by the Party in the Demand(s), the Parties agree
to identify and meet with a third party neutral to further attempt to resolve,
by non-binding mediation, the Demand(s) within 60 days of service of the first
Demand served (“Dispute Resolution
Period”).  If
the Parties are unable to agree on a third party neutral, each Party will select
its own mediator, which two mediators together shall select the third party
neutral who will mediate the demands or disputes raised by the Parties in the
Demand(s).  All claims and defenses of the Parties shall be preserved
during the Dispute Resolution Period. If the non-binding mediation does not
resolve the Demand(s), then the Complainant may file a suit against the
Respondent in an appropriate venue as per the terms of this Agreement, and
Respondent shall not, for a period of 30 days after completion of the mediation,
seek to file or file any action for declaratory relief or other action relating
to the Complainant's Demand.

       

      9.3 Representations and Warranties of
Each Party.  Each Party, as licensor, warrants
that:  (i) it is a corporation, company or entity duly organized and
validly existing under the laws of the state or other jurisdiction of its
incorporation or formation; (ii) it has the power and authority to execute and
deliver this Agreement and to perform its obligations hereunder; (iii) it has
the right to grant the applicable licenses or sublicenses and releases
hereunder; (iv) neither it, nor any of its Affiliates, will enter into any other
agreement or understanding in conflict with the provisions contained in this
Agreement; and (v) it will not participate in the creation or acquisition of an
Affiliate where a primary purpose of such creation or acquisition is to extend
the benefits of this Agreement to a third party and agrees that any such attempt
to extend such benefits shall not extend the rights, licenses, releases, and
covenants granted under this Agreement to such third party.

       

      Each
Party, as licensor, does not:

       

      
        	
                (a)  

              	
                make
      any other warranties;

              


      

       

      
        	
                (b)  

              	
                assume
      any liability relating to infringement or product liability
      claims;

              


      

       

      
        	
                (c)  

              	
                warrant
      that the applicable BSC License or Micrus License is sufficient to make,
      use, sell, offer for sale or import applicable licensed
      products;

              


      

       

      
        	
                (d)  

              	
                make
      any warranties or admissions as to the validity and enforceability of the
      applicable BSC Licensed Patents and Micrus Licensed
    Patents.

              


      

       

      9.4 Warranty of Legal
Representation.  Each Party represents and warrants to the
other Party that it has been represented by legal counsel in connection with
this Agreement and all exhibits hereto, and acknowledges that legal counsel has
participated in the drafting hereof.  In interpreting and applying the
terms and provisions of this Agreement, the Parties agree that no presumption
shall exist or be implied against the Party which drafted such terms and
provisions.

       

      9.5 Disclaimer.  OTHER
THAN THE REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN, NO PARTY MAKES ANY
REPRESENTATION OR WARRANTY

       


      
        
          
             

            


          

           


        

        
          10

          
            

          

        

        
           


        

      


      OF ANY
KIND AND DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY
IMPLIED WARRANTIES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR RELATING IN ANY WAY TO PATENTABILITY, VALIDITY, ENFORCEABILITY, OR
INFRINGEMENT.

       

      9.6 No Assignment.  Each
Party represents that it has not assigned, transferred, or purported to assign
or transfer any Claim that is the subject matter of this Agreement.

       

      9.7 Limitation of
License.  Nothing contained in this Agreement shall be
construed as conferring any rights by implication, estoppel or otherwise,
under:  (a) any non patent intellectual property right; or (b) any
patents or patent applications, other than the BSC Licensed Patents, Excluded
Patents, and Micrus Licensed Patents.  Neither Party is required
hereunder to furnish or disclose to the other any technical or other information
including copies of the Licensed Patents.

       

      9.8 Enforcement.  Neither
Party, nor any of its Affiliates, shall have any obligation hereunder to
institute any action or suit against third parties for infringement of any of
its Licensed Patents or to defend any action or suit brought by a third party
which challenges or concerns the validity and enforceability of any of its
Licensed Patents.  Neither Party, nor any of its Affiliates, shall
have any right to institute any action or suit against third parties for
infringement of any of the Licensed Patents of the other Party or any of its
Affiliates.

       

      9.9 Waiver.  No failure
or delay on the part of either Party to exercise any right or remedy under this
Agreement shall be construed or operate as a waiver thereof, nor shall any
single or partial exercise of any right or remedy preclude the further exercise
of such right or remedy.

       

      9.10 Third-Party
Beneficiaries.  This Agreement is solely for the benefit of,
and may be only enforced by Boston Scientific and/or Micrus, except in the case
where this Agreement is properly transferred in accordance with Section 4.5 and
Article 5.  This Agreement does not (whether expressly, by
implication, or otherwise) create or confer any rights on any other entity or
person to bring claims or seek remedies under this Agreement.

       

      9.11 Severability.  In
the event that any provision of this Agreement is found to be prohibited by law
and invalid, or for any other reason such provision is held unenforceable, in
whole or in part, it shall be considered severable and shall be ineffective only
to the extent of such prohibition, invalidity or unenforceability without
invalidating or having any other adverse effect upon any other provision of the
Agreement.

       

      9.12 Entire
Agreement.  This Agreement sets out the entire agreement and
understanding between the Parties relating to its subject matter and supersedes
all prior oral or written representations, agreements, arrangements or
understandings between them relating to such subject matter, including the
Non-Binding Term Sheet for Patent Cross License Agreement dated August 6,
2008.

       

      9.13 Governing Law.  This
Agreement shall be governed by and interpreted under the laws of the State of
California, without regard to conflict of laws.

       

       


      
        
          
             

            


          

           


        

        
          11

          
            

          

        

        
           


        

      


      9.14 Headings.  The
headings appearing herein have been inserted solely for the convenience of the
Parties hereto and shall not affect the construction, meaning or interpretation
of this Agreement or any of its terms and conditions.

       

      9.15 Amendments.  No
amendment, change, modification or alteration of the terms and conditions of
this Agreement or any appendix hereto shall be binding upon any Party unless in
writing and signed by that Party.

       

      9.16 Limitation of
Liability.  EXCEPT FOR A BREACH OF SECTION 9.1 ABOVE, IN ANY
ACTION AT LAW OR EQUITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, NEITHER
PARTY, NOR ANY OF ITS AFFILIATES, SHALL BE LIABLE TO THE OTHER PARTY FOR ANY
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY OR
SUBSIDIARY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

       

      9.17 Prosecution and Maintenance of
Patents.  Each Party, as licensor, and its Affiliates shall, at
its own expense, control and be solely responsible for the prosecution and
maintenance of its Licensed Patents.  Nothing in this Agreement
implies an obligation on either Party or any of its Affiliates to apply for,
prosecute or maintain any patent or patent right.

       

      9.18 No Joint
Venture.  Nothing herein shall be deemed to constitute the
Parties. or their Affiliates, as joint venturers, partners or agents of each
other.  Neither Party or its Affiliates shall be liable for any debts,
accounts, obligations or other liabilities of the other party or its
Affiliates.  Neither party or its Affiliates is authorized to incur
any debts or other obligations of any kind on the part of or as agent for the
other, except as may be specifically authorized in writing.

       

      9.19 Notices.  Any notice
required or permitted to be given or made under this Agreement by any Party
shall be in writing, sent to such other Party at its address and fax number
indicated below, or to such other address as the addressee shall have last
furnished in writing to the addresser, and shall be effective upon receipt by
the addressee.

       

      If to
Boston Scientific:

       

      Boston
Scientific Corp.

      Attn:  General
Counsel

      One
Boston Scientific Place

      Natick,
MA 01760-1537

       

      If to
Micrus:

       

      Micrus
Endovascular Corporation

      Attn:  CEO

      821 Fox
Lane

      San Jose,
CA  95131

      


      9.20 Counterparts.  This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the
same
instrument.  A facsimile signature shall have the same force and
effect as an original signature.

       


      
        
          
             

            


          

           


        

        
          12

          
            

          

        

        
           


        

      


      IN WITNESS WHEREOF, the
Parties have executed this Agreement as of the date set forth
below.

       

      
        	 
      	
                MICRUS
      ENDOVASCULAR CORPORATION

              
	 
      	 
      
	
                Dated:  September
      22, 2008

              	
                By:

              	 
      /s/ Gordon Sangster
	 
      	 
      	
                Gordon
      Sangster

                Chief
      Financial Officer

              
	 
      	 
      
	 
      	
                BOSTON
      SCIENTIFIC CORPORATION, AND TARGET THERAPEUTICS, INC.

              
	 
      	 
      
	
                Dated:  September
      22, 2008

              	
                By:

              	 
      /s/ Peter Gafner
	 
      	 
      	
                Peter
      Gafner, Esq.

              
	 
      	 
      	
                Vice
      President, Cardiovascular
Litigation

              


      


      
        
           


        

        
          13

          
            

          

        

        
           


        

      


      


       

      EXHIBIT
A

       

      
        	
                [SEE
      SIGNATURE PAGE FOR ATTORNEY

                NAMES]

                 

                 

                 

                 

                 

                 

                 

                 

                 

              
	
                UNITED
      STATES DISTRICT COURT

                NORTHERN
      DISTRICT OF CALIFORNIA

                SAN
      JOSE DIVISION

              
	
                BOSTON
      SCIENTIFIC CORP. and TARGET THERAPEUTICS, INC.,

                 

                Plaintiff
      and

                Counterdefendant,

                 

                v.

                 

                MICRUS
      CORPORATION,

                 

                Defendant
      and Counterclaimant.

                 

              	
                Case
      No. C 04- 04072 (JW)

                 

                STIPULATION
      OF DISMISSAL WITH PREJUDICE BETWEEN BOSTON SCIENTIFIC AND MICRUS AND
      [PROPOSED] ORDER

              


      

      


      Pursuant
to Fed. R. Civ. P. 41(a)(1)(ii) and 41(c), the plaintiffs, Boston Scientific
Corp. and Target Therapeutics, Inc., and defendant Micrus Corporation, hereby
move for an order dismissing the above-entitled action, including all claims and
counterclaims, in its entirety, with prejudice, with each party to bear its own
costs, expenses and attorneys fees.  The parties respectfully request
that the Court retain jurisdiction to enforce the terms of their settlement
agreement under the authority of Kokkonen v. Guardian Life Insurance
Company of America, 511 U.S. 375, 381-82 (1994).  The parties
waive all right to appeal from this Stipulation and dismissal.


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      IT
IS SO STIPULATED.

       

      Consent
to the entry of the foregoing dismissal and attached [Proposed] Order is hereby
acknowledged.

       

      Pursuant
to General Order 45, § X(B), counsel for Micrus attests under penalty of perjury
that counsel for Boston Scientific concurs in the filing of this stipulation.

       

      Dated:  September
____, 2008

      


      BOSTON
SCIENTIFIC CORP.
and                                                                         MICRUS
CORPORATION

      TARGET
THERAPEUTICS, INC.

      


      By: /s/ Heather P.
Sobel                                                                           By: /s/ Douglas E.
Lumish

      


      FOLGER
LEVIN & KAHN
LLP                                                                               WEIL,
GOTSHAL & MANGES LLP

      Michael
F. Kelleher (Bar No.
165493)                                                                     Douglas
E. Lumish (Bar No. 183863)

      Embarcadero
Center
West                                                                                      
Rip J. Finst (Bar No. 234478)

      275
Battery Street, 23rd
Floor                                                                                  Silicon
Valley Office

      San
Francisco, CA
94111                                                                                         Redwood
Shores Parkway

      Telephone:
415-986-2800                                                                                         
Redwood Shores, CA 94065

      Fax:
415-986-2827                                                                                                    
 Telephone: 650-802-3000

      Fax:
650-802-3100

      Attorneys
for Defendant and

      Counterclaimant

      


      GOODWIN
PROCTER LLP

      J.
Anthony Downs (Pro Hac Vice)

      Roland H.
Schwillinski (Pro Hac Vice)

      Michael
G. Strapp (Pro Hac Vice)

      Heather
P. Sobel (Pro Hac Vice)

      Exchange
Place

      Boston,
MA 02109-2881

      Telephone:
617-570-1000

      Fax:
617-570-1231

      Attorneys
for Plaintiff and

      Counterdefendant

      


      



      
        
           


        

        
           


          
            

          

        

        
           


        

      


      


       

      [PROPOSED]
ORDER

       

      Pursuant
to stipulation, IT IS HEREBY ORDERED:

       

      This case
is dismissed with prejudice.  Each party shall bear its own attorneys’
fees and costs.

      


       

      


       

      
        	
                Dated:  September
      ____, 2008

              	 
      
	 
      	
                Hon.
      James Ware

                United
      States District Judge