www.EXFILE.com  888.775-4789  BOSTON SCIENTIFIC CORP. FORM 10-Q


    EXHIBIT
      10.8

    
SCS
      LICENSE AGREEMENT

     

    This
      SCS
      License Agreement (the "Agreement"), which is agreed to be effective as
      hereinafter provided, is by and between St. Jude Medical, Inc., a Minnesota
      corporation having its principal place of business at One Lillehei Plaza, St.
      Paul, Minnesota, 55117 ("St. Jude"), and Boston Scientific Corporation, a
      Delaware corporation having its principal place of business at One Boston
      Scientific Place, Natick Massachusetts, 01760-1537 ("BSC").

     

    RECITALS

     

    A. 
Advanced
      Bionics Corporation ("ABS"), a wholly-owned subsidiary of BSC and Advanced
      Neuromodulation Systems, Inc. ("ANS"), a wholly-owned subsidiary of St. Jude,
      are adverse parties in the following currently pending litigation matters
      (collectively referred to as the "SCS Cases"):

     

      
      1) Advanced
      Neuromodulation Systems, Inc. v. Advanced Bionics Corporation,
      Civil
      Action No. 4:04cv131 (E.D. Tex);

     

      
      2) Advanced
      Bionics Corporation v. Advanced Neuromodulation System, Inc.,
      Civil
      Action No. 4:04cv131 (E.D. Tex.); and

     

      
      3) the arbitration proceeding before the International Institute for Conflict
      Prevention and Resolution, Case No. G-06-08A.

     

    


    B. 
St.
      Jude
      and BSC and certain of their respective Affiliates are engaged in, inter
      alia,
      the
      design, development, manufacture, and sale of devices for spinal cord
      stimulation.

     

    C. 
St.
      Jude
      and BSC and certain of their respective Affiliates own or hold certain rights
      in
      the Patents-In-Suit.

     

    D. 
Pursuant
      to a Settlement Agreement dated July 29, 2006, St. Jude and BSC have agreed
      to
      terminate the SCS Cases in return for, inter
      alia,
      the
      granting of certain rights by and between St. Jude and BSC concerning the
      Patents-In-Suit (the "Settlement Agreement").

     

    Now
      therefore, in consideration of the covenants and agreements set forth herein
      and
      the Settlement Agreement, pursuant to which a number of additional cases between
      St. Jude and BSC are either resolved or limited in scope, and for valuable
      consideration receipt of which is hereby acknowledged, St. Jude and BSC mutually
      agree as follows:

     

    ARTICLE
      I

     

    Definitions
      of Certain Terms

     

    For
      the
      purposes of this Agreement, the following terms shall have the meaning specified
      below. Whenever used in the Agreement, "include," "includes," and "including"
      shall be deemed to be followed by "without limitation," whether or not it is
      followed by such words.

     

    Section
      1.01.
      Affiliate.
      "Affiliate" means any person or entity that controls or is controlled by or
      is
      under common control with St. Jude or BSC on the Effective Date or at any time
      thereafter.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    For
      purposes of this Section 1.01, ownership, directly or indirectly, of more than
      fifty percent (50%) of the capital stock or other comparable ownership interest
      of the corporation or entity carrying the right to vote for or appoint directors
      or their equivalent (if not a corporation) shall constitute control thereof.
      "Affiliate" of a third party means a person or entity that controls, is
      controlled by, or under common control with, such third party.

     

    Section
      1.02. Patents-In-Suit.
      "Patents-In-Suit" means U.S. Patent Nos. 6,516,227; 6,381,496; 6,216,045;
      6,154,678; and 4,793,353.

     

    Section
      1.03.
      BSC
      Licensed Patents.

     

    (a) 
"BSC
      Licensed Patents" means U.S. Patent Nos. 6,516,227 and 6,381,496, including
      all
      divisionals, continuations, continuations-in-part, reissues, reexaminations
      and
      foreign counterparts, except as set forth in Section 1.03(c),
      below.

     

    (b) 
Without
      limiting the foregoing, the term "BSC Licensed Patents" specifically includes,
      but is not limited to, all present patents and patent applications listed on
      Exhibit A of this Agreement. BSC believes that Exhibit A is a complete listing
      of its U.S. patents and patent applications within the foregoing definition
      of
      BSC Licensed Patents which are in existence as of the Effective Date, and any
      errors, overinclusions, or omissions from Exhibit A will be deemed to be
      inadvertent and not a material breach. Present foreign patents and patent
      applications, including foreign counterparts of U.S. patents and patent
      applications listed on Exhibit A, have intentionally not been included in
      Exhibit A but are deemed to be BSC Licensed Patents if they are covered by
      the
      foregoing definition in this Section 1.03.

     

    (c) 
Notwithstanding
      the foregoing, the term "BSC Licensed Patents" specifically excludes the
      following:

     

      
      (1) Claims
      3-15 and 20-53 of U.S. Patent No. 6,516,227;

     

      
      (2) Claims
      2,
      6 and 10 of U.S. Patent No. 6,895,280; and 

     

      
      (3) any
      patent claim with priority based on U.S. Patent Nos. 6,516,227 or 6,895,280
      that
      claims multiple independent current sources for generating
      independently-controlled stimulus currents on multiple electrodes, thereby
      having the equivalent function to the device as claimed in any of the claims
      excluded pursuant to sub-sections (1) and (2), above.

     

    Section
      1.04.
      St.
      Jude Licensed Patents.

     

    (a) 
"St.
      Jude
      Licensed Patents" means U.S. Patent Nos. 6,154,678 and 4,793,353, including
      all
      divisionals, continuations, continuations-in-part, reissues, reexaminations
      and
      foreign counterparts.

     

    (b) 
"St.
      Jude
      Licensed Patents" also means U.S. Patent No. 6,216,045, including all
      divisionals, continuations, continuations-in-part, reissues, reexaminations,
      and
      foreign counterparts, for use in the SCS Field and excludes any use outside
      of
      the SCS Field.

     

    (c) 
Without
      limiting the foregoing, the term "St. Jude Licensed Patents" specifically
      includes, but is not limited to, all present patents and patent applications
      listed on Exhibit A of this Agreement. St. Jude believes that Exhibit A is
      a
      complete listing of its U.S. patents and patent

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    applications
      within the foregoing definition of St. Jude Licensed Patents which are in
      existence as of the Effective Date, and any errors, overinclusions, or omissions
      from Exhibit A will be deemed to be inadvertent and not a material breach.
      Present foreign patents and patent applications, including foreign counterparts
      of U.S. patents and patent applications listed on Exhibit A, have intentionally
      not been included in Exhibit A but are deemed to be St. Jude Licensed Patents
      if
      they are covered by the foregoing definition in this Section 1.04.

     

    Section
      1.05.
      SCS
      Field.
      "SCS
      Field" shall mean spinal cord stimulation to treat or manage chronic pain of
      the
      trunk and limbs. 

     

    Section
      1.06.
      Effective
      Date.
      "Effective Date" shall mean July 29, 2006.

     

     ARTICLE
      II

     

    Cross
      License

     

    Section
      2.01.
      License.
      Subject
      to the terms, conditions, and limitations set forth herein:

     

    (a) 
St.
      Jude
      grants (and will cause its Affiliates to grant) to BSC and its Affiliates a
      non-exclusive, irrevocable, perpetual, fully paid-up (except for royalties
      due
      to a third party, if any) worldwide license or sublicense, as the case may
      be,
      without the right to sublicense, under the St. Jude Licensed Patents to make,
      have made, use, sell, have sold, offer for sale, distribute, have distributed,
      and otherwise dispose of products, including supplying or causing to be supplied
      components thereof for use therein, and further including importing products,
      or
      components thereof for use therein, into any jurisdiction where St. Jude
      Licensed Patents are effective and which are manufactured in accordance with
      a
      method of any St. Jude Licensed Patent.

     

    (b) 
BSC
      grants (and will cause its Affiliates to grant) to St. Jude and its Affiliates
      a
      non-exclusive, irrevocable, perpetual, fully paid-up (except for royalties
      due
      to a third party, if any) worldwide license or sublicense, as the case may
      be,
      without the right to sublicense, under the BSC Licensed Patents to make, have
      made, use, sell, have sold, offer for sale, distribute, have distributed, and
      otherwise dispose of products, including supplying or causing to be supplied
      components thereof for use therein, and further including importing products,
      or
      components thereof for use therein, into any jurisdiction where BSC Licensed
      Patents are effective and which are manufactured in accordance with a method
      of
      any BSC Licensed Patent.

     

    (c) 
If
      any
      party has products made for it under the above license grant, such products
      must
      bear its or one of its Affiliates’ trade names or trademarks; however, such
      products may bear third-party trade names or trademarks for materials or
      components used in such products.

     

    (d) 
The
      licenses granted in this Section 2.01 shall be irrevocable except for the
      specific exceptions described in the change of control situations contemplated
      by provisions of Section 9.02 below.

     

    Section
      2.02.
      Regarding
      OEM Activities.
      The
      licenses granted or to be granted under this Article II shall not be used in
      such a way as to manufacture products on an original equipment manufacturer
      (“OEM”) basis for any person or entity other than St. Jude and its Affiliates or
      BSC and its Affiliates. The licenses granted or to be granted under this Article
      II shall apply to and for the benefit of products manufactured by a party to
      this Agreement for a third party who is licensed under the appropriate patents
      of the other party to this Agreement where, and to the extent that,
      the

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    third
      party's license permits such third party to "have made" such products for such
      third party. Nothing in this Agreement shall preclude the use of the licenses
      granted or to be granted under this Article II by a party or its Affiliate
      for
      the purpose of having products manufactured by a third party on an OEM basis
      for
      such party or its Affiliate; provided, however, that such products must bear
      the
      trademark or trade name of such party or its Affiliate. Notwithstanding the
      foregoing, such products may bear third-party trade names or trademarks for
      materials or components used in such products.

     

    Section
      2.03.
      Certain
      Conditions, Limitations and Understandings.
      The
      licenses and sublicenses granted under this Agreement are expressly made subject
      to the following conditions, limitations and understandings:

     

    (a) 
The
      licenses are personal to the parties hereto, and are nonassignable and
      nontransferable, except as set forth in Section 9.02 below.

     

    (b) 
The
      parties and their Affiliates shall have the right, in their sole and absolute
      discretion, to control the maintenance, abandonment, extension, and licensing
      of
      their own patents including the BSC Licensed Patents and St. Jude Licensed
      Patents; provided however, that no such license or other transfer of interest
      shall in any manner abridge the rights of the other party granted under this
      Agreement.

     

    (c) 
The
      owner
      of a BSC Licensed Patent or St. Jude Licensed Patent shall have the right to
      enforce, or not to enforce, such patents in its sole and absolute discretion
      against all persons and organizations other than a party or Affiliate of a
      party
      hereto.

     

    (d) 
The
      licenses granted herein shall not extend to any technical know-how or design
      information, manufacturing, marketing, and/or processing information or
      know-how, designs, drawings, mask works, specifications, software source code,
      algorithms, clinical data, or other documents directly or indirectly pertinent
      to the use of the BSC Licensed Patents or St. Jude Licensed Patents, or to
      the
      use of any trademarks or trade names, service marks, or software copyrights
      or
      other copyrights (including copyright registrations) of any party, and the
      parties acknowledge that there is no obligation upon any party or its Affiliates
      to provide such information, know-how, designs, drawings, mask works,
      specifications, software source code, algorithms, clinical data, or other
      documents.

     

    (e) 
Except
      as
      otherwise expressly provided in this Agreement, all licenses are granted for
      the
      life of the covered patents.

     

    (f) 
All
      licenses and sublicenses required to be granted by Affiliates under this
      Agreement shall be subject to the terms and conditions set forth in this
      Agreement.

     

    (g) 
Any
      assignment or other transfer by a party or its Affiliate of that entity's
      interest in (i) a BSC Licensed Patent or (ii) a St. Jude Licensed Patent shall
      be made subject to the rights of the other party and its Affiliates under this
      Agreement.

     

    (h)              
      Any
      license extended to an Affiliate shall continue only so long as "Affiliate"
      status is maintained, or as permitted pursuant to the other party’s
      consent.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    ARTICLE
      III

     

    Representations,
      Warranties and Limitations

     

    Section
      3.01.
      Certain
      Representations and Warranties.

     

    (a) 
Each
      party represents and warrants to the other party as follows and acknowledges
      that each of the following representations and warranties has been relied upon
      by the other party and is material to the other party's decision to enter into
      the Agreement: each party hereto has the requisite power and authority,
      corporate and otherwise, to execute and perform the Agreement, to grant the
      licenses and sublicenses provided for herein, and, except as provided in this
      Section 3.01, to cause such party’s Affiliates to execute and perform the
      Agreement and to grant the licenses and sublicenses provided for
      herein.

     

    (b) 
To
      the
      extent that a party shall lack the requisite authority to cause an Affiliate
      of
      such party to execute or perform this Agreement or to grant the licenses or
      sublicenses as provided in this Agreement, then such party shall defend,
      indemnify, and hold harmless the other party and its Affiliates, and all
      officers, directors, employees, attorneys, agents, successors, and assigns
      of
      the other party and its Affiliates, against any and all legal expenses, costs,
      and judgments arising from claims, controversies, demands, rights, disputes,
      grievances, or causes of action that would have been avoided had such party
      caused such Affiliate to execute or perform the Agreement or to grant the
      licenses or sublicenses as provided in this Agreement.

     

    (c) 
Neither
      party hereto is a party to any license, agreement or other instrument which
      would prohibit or restrict the granting of the licenses or sublicenses
      herein.

     

    Section
      3.02.
      Disclaimers.
      Nothing
      contained in this Agreement shall be construed as:

     

    (a) 
A
      warranty or representation by any party hereto as to the validity, scope, or
      enforceability of any BSC Licensed Patents or St. Jude Licensed Patents;
      or

     

    (b) 
A
      warranty or representation by any party hereto that anything made, used, sold,
      or otherwise disposed of under any license granted in this Agreement is or
      will
      be free from infringement of patents of third parties; or

     

    (c) 
An
      obligation to bring or prosecute actions or suits against third parties for
      patent infringement, or as an agreement by the parties to assist each other
      in
      any manner in the defense of any claim of infringement brought by a third party;
      or

     

    (d) 
An
      obligation to file or prosecute any patent application, to secure the grant
      of
      any patent or any reissue or extension thereof, or to pay any maintenance fee
      or
      annuity or tax or take any other steps to maintain any patent; or

     

    (e) 
A
      representation, warranty, or extension of warranties of any kind, expressed
      or
      implied, or an assumption of responsibility by any party with respect to the
      use, sale, or other disposition by the other party or its agents,
      representatives, distributors, or users of products incorporating or made by
      use
      of inventions licensed under this Agreement.

     

    Section
      3.03.
      Limitations.
      Each
      party shall be responsible for its design, manufacture, instructions for use,
      quality control, and all safety-related activities relating to its own products,
      whether or not manufactured under license from the BSC Licensed Patents or
      the
      St. Jude Licensed

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Patents,
      and shall not be responsible for the products of the other party, the other
      party's Affiliates, or any other party or person.

     

    ARTICLE
      IV

     

    Term

     

    Section
      4.01.
      Term.
      This
      Agreement shall be effective as of the Effective Date and shall continue in
      force and effect until the expiration of the last to expire of the patents
      licensed and sublicensed pursuant to the provisions of this
      Agreement.

     

    ARTICLE
      V

     

    Confidentiality/Publicity
      Concerning Agreement

     

    Section
      5.01.
      Confidentiality/Publicity
      Concerning Agreement.
      It is
      intended that, to the extent possible, the terms of this Agreement remain
      confidential. No party or any Affiliate of a party shall originate any
      publicity, news release, or other such general public announcement or make
      any
      other disclosure to any third party regarding the terms of this Agreement
      without the express written consent of the other party (without limitation,
      the
      foregoing provision is not intended to limit communications deemed reasonably
      necessary or appropriate by a party or its Affiliate to its employees,
      shareholders, directors, officers, accountants, auditors and legal counsel).
      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 is considered
      necessary by counsel to fulfill an obligation under securities laws or the
      rules
      of the New York Stock Exchange or other applicable stock exchange or to protect
      any intellectual property right in any territory so long as the disclosing
      party
      provides notice to the other party at least five (5) business days prior to
      such
      disclosure. However, the Parties agree that, with regard to any required
      disclosure to the Securities and Exchange Commission regarding this Agreement
      or
      the fact that it has been executed that is made on or around the Effective
      Date,
      prior notice to the other party shall not be required.

     

    ARTICLE
      VI

     

    Notice

     

    Section
      6.01.
      Notice.
      Any
      notice or other communication to be made pursuant to this Agreement shall be
      sent to the other party at its address listed below or at such other address
      such party may hereinafter designate to the other party in writing:

     

    If
      to
      BSC:

     

    President
      and CEO

    Boston
      Scientific Corporation

    One
      Boston Scientific Place

    Natick,
      MA 01760-1537

    Facsimile
      No.: (508) 650-8956

    


     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    with
      a
      copy to:

     

    General
      Counsel

    Boston
      Scientific Corporation

    One
      Boston Scientific Place

    Natick,
      MA 01760-1537

    Facsimile
      No.: (508) 650-8956

     

     

     

    If
      to St.
      Jude:

     

    President
      and CEO

    St.
      Jude
      Medical, Inc.

    One
      Lillehei Plaza

    St.
      Paul,
      MN 55117

    Facsimile
      No.: (651) 481-7690 

     

     

     

    with
      a
      copy to: 

     

    General
      Counsel

    St.
      Jude
      Medical, Inc.

    One
      Lillehei Plaza

    St.
      Paul,
      MN 55117

    Facsimile
      No.: (651) 481-7690 

     

    Notice
      shall be deemed to have been given (i) at the expiration of two (2) business
      days from the date of delivery of a facsimile transmission, provided that a
      copy
      is deposited postage prepaid for delivery with the postal service or given
      for
      delivery to an express courier service on the same date as the sending of the
      facsimile, or (ii) ten (10) business days from the date the communication is
      deposited postage prepaid with the postal service or given to an express courier
      service, unless actual receipt of the notice at an earlier date is established.
      Without limitation of the foregoing, a written receipt signed by the addressee
      or its duly appointed representative situated at the addresses set forth
      hereinabove shall constitute sufficient evidence of service. Either party may
      change its address and facsimile information by written notice given in
      accordance with the provisions of this Section.

     

    ARTICLE
      VII

     

    Loss
      of Patents

     

    Section
      7.01.
      Loss
      of Patents.
      The
      loss of any patent(s) or patent application(s) embraced by the term "BSC
      Licensed Patents" or "St. Jude Licensed Patents" by any party hereto, through
      abandonment, failure to renew, declaration of invalidity, or otherwise, shall
      not be cause to terminate this Agreement or the licenses granted hereunder
      with
      respect to all other BSC Licensed Patents or St. Jude Licensed Patents and
      such
      loss, or any declaration of noninfringement, invalidity, or unenforceability,
      shall not be deemed a failure of consideration.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    ARTICLE
      VIII

     

    Alternative
      Dispute Resolution

     

    Section
      8.01.
      Alternative
      Dispute Resolution.

     

    (a) 
Any
      dispute concerning whether any party’s actions are licensed under Article II of
      this Agreement, that is not resolved by negotiation as provided in subsection
      (c) of this Section 8.01 shall be resolved by binding Alternative Dispute
      Resolution ("ADR") in the manner described in Exhibit B.

     

    (b) 
Any
      dispute that arises out of or relates to this Agreement, including an alleged
      breach of this Agreement but excluding any dispute within the scope of
      subsection (a) of this Section 8.01, between (i) St. Jude or a St. Jude
      Affiliate and (ii) BSC or a BSC Affiliate that is not resolved by negotiation
      as
      provided in subsection (c) of this Section 8.01 shall be resolved by binding
      Alternative Dispute Resolution ("ADR") in the manner described in Exhibit
      C.

     

    (c) 
The
      parties recognize that a bona fide
      dispute
      may arise from time to time as to certain matters that relate to this Agreement.
      In all such instances, any party may, by written notice to the other party,
      have
      such dispute referred to their respective employees designated below or their
      successors, for attempted resolution by good faith negotiations within sixty
      (60) days after such notice is received. Such designated employees are as
      follows:

     

    For
      BSC: 

     

    General
      Counsel

    Boston
      Scientific Corporation

    One
      Boston Scientific Place

    Natick,
      MA 01760-1537

    Facsimile
      No.: (508) 650-8956

     

    For
      St.
      Jude: 

     

    General
      Counsel

    St.
      Jude
      Medical, Inc.

    One
      Lillehei Plaza

    St.
      Paul,
      MN 55117

    Facsimile
      No.: (651) 481-7690 

     

    Any
      settlement reached by the parties under this Section 8.01 shall not be binding
      until reduced to writing and signed by authorized officers of St. Jude and
      BSC.
      If the designated employees are unable to resolve such dispute within such
      sixty-day period, any party may invoke the ADR provisions of this Section
      8.01.

     

    ARTICLE
      IX

     

    General
      Provisions

     

    Section
      9.01.
      Modification.
      The
      Agreement may not be modified, changed, or terminated orally. No change,
      modification, addition, or amendment shall be valid unless given in writing
      expressly indicating an intent to modify the Agreement and duly executed by
      the
      parties.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Section
      9.02.
      Assignment
      and Transfer.
      The
      licenses and other rights granted in this Agreement shall be nonassignable
      and
      nontransferable except in connection with the sale of a party’s spinal cord
      stimulation products business (whether by the sale of all or substantially
      all
      of a party’s assets or its subsidiaries' assets related to spinal cord
      stimulation products, sale of stock of one or more subsidiary companies, merger,
      or otherwise). Except as permitted herein, a purported transfer of the license
      or other rights granted herein shall be null and void and shall give the other
      party hereto the right to terminate the license granted to the transferring
      party without terminating the licensed granted by the transferring party.
      Subject to the foregoing, this Agreement shall be binding upon and inure to
      the
      benefit of St. Jude, BSC, and their respective Affiliates and
      successors.

     

    Section
      9.03.
      Assurances.
      BSC
      shall in all events remain fully responsible for, and shall assure its own
      and
      its Affiliates' performance of, all of their respective obligations under this
      Agreement, and St. Jude shall in all events remain fully responsible for, and
      shall assure its own and its Affiliates' performance of, all of their respective
      obligations under this Agreement.

     

    Section
      9.04.
      Entire
      Agreement.

     

    Other
      than for the agreements listed in Exhibit D, hereto, which shall still remain
      in
      full force and effect in accordance with their terms and conditions, this
      Agreement constitutes the entire agreement among the parties with respect to
      the
      subject matter hereof and supersedes any and all negotiations, correspondence,
      understandings and agreements, whether written or oral, between the parties
      respecting the subject matter hereof. Except for the license agreements listed
      in Exhibit D, any license agreement covering any BSC Licensed Patents or St.
      Jude Licensed Patents in existence between the parties prior to the Effective
      Date shall be deemed terminated as of the Effective Date and superseded by
      this
      Agreement.

     

    Section
      9.05.
      Governing
      Law.
      Recognizing that the laws within the United States and international
      jurisdictions vary in their content and effect with respect to similar subject
      matter, and that the parties desire uniformity and predictability in
      interpretation and enforcement of this Agreement, the parties have agreed to
      the
      following provisions regarding applicable law to govern this Agreement: All
      matters affecting the interpretation, form, validity, and performance of this
      Agreement shall be decided under the laws of the State of Minnesota (without
      regard to principles of conflicts of laws), including its procedural laws;
      provided, however, that (a) nothing in Minnesota state procedural law shall
      be
      deemed to alter or affect the applicability of the Federal Arbitration Act
      as
      governing arbitration of disputes as provided in this Agreement, and (b) no
      Minnesota state arbitration laws or arbitration rules shall be
      applicable.

     

    Section
      9.06.
      Force
      Majeure.
      No
      party (including any of its Affiliates) shall be liable in damages for, nor
      shall this Agreement be terminable or cancelable by reason of, any delay or
      default in any party's performance hereunder if such default or delay is caused
      by events beyond such party's reasonable control including, but not limited
      to,
      acts of God, action of any government or agency thereof, war or insurrection,
      civil commotion, destruction of facilities or materials by earthquake, fire,
      flood or storm, labor disturbances, epidemic, or failure of public utilities
      or
      common carriers. The party (or Affiliates) so affected shall give prompt notice
      to the other parties of such cause, and shall take whatever reasonable steps
      are
      necessary to relieve the effect of such cause as rapidly as possible. All
      parties (or Affiliates) agree to endeavor to resume their performance hereunder
      if such performance is delayed or interrupted by reason of force
      majeure.

     

    Section
      9.07.
      Counterparts.
      This
      Agreement may be executed simultaneously in two or 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    more
      counterparts, each of which shall be deemed to be an original.

     

    Section
      9.08.
      Captions.
      The
      captions in this Agreement are intended solely as a matter of convenience and
      are for reference only, and shall be given no effect in the construction or
      interpretation of this Agreement.

     

    Section
      9.09.
      Severability
      of Provisions.
      Should
      any part or provision of this Agreement be held unenforceable or in conflict
      with the law of any jurisdiction, the validity of the remaining parts or
      provisions shall not be affected by such holding.

     

    Section
      9.10.
      No
      Agency.
      At no
      time shall any party or its Affiliate hold itself out to be the agent, employee,
      lessee, sublessee, partner, or joint venture partner of the other party or
      its
      Affiliates. Nothing in this Agreement shall be construed to create any
      relationship between the parties other than that of licensor/licensee (or
      sublicensor/sublicensee) as provided in this Agreement. No party or its
      Affiliates shall have any express or implied right or authority to assume or
      create any obligations on behalf of or in the name of the other party or its
      Affiliates or to bind the other party or its Affiliates with regard to any
      other
      contract, agreement, or undertaking with a third party.

     

    Section
      9.11.
      Further
      Assurances.
      At such
      time and from time to time on and after the Effective Date upon request by
      a
      party, the other party will execute and deliver or will cause to be executed
      and
      delivered, all such further acts, acknowledgments, and assurances that may
      be
      reasonably required for carrying out the purposes of this Agreement. Such
      further assurances may include, but not be limited to, an acknowledgment by
      Affiliates of a party that such Affiliates are bound by the terms and provisions
      of this Agreement or an acknowledgment that a particular patent is a BSC
      Licensed Patent or a St. Jude Licensed Patent.

     

    Section
      9.12.
      Construction
      Against Waiver.
      No
      waiver of any term, provision, or condition of this Agreement, whether by
      conduct or otherwise, in any one or more instances shall be deemed to be or
      construed as a further or continuing waiver of any such term, provision, or
      condition of this Agreement; nor shall any failure to enforce any provision
      hereof operate as a waiver of such provision or of any other
      provision.

     

    
 

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    IN
      WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
      in
      duplicate and duly attested by their corporate officers duly authorized for
      this
      purpose. 

     

    BOSTON
      SCIENTIFIC CORPORATION.

     

    By:
      /s/
      Paul W.
      Sandman                         
          

    Executive
      Vice President, Secretary

    and
      General Counsel 

    


     

    ATTEST:

     

    By: /s/
      Lawrence J. Knopf         


     

    ST.
      JUDE
      MEDICAL, INC.

     

    By:
      /s/
      Pamela S.
      Krop                          
               


    Vice
      President, General Counsel and Secretary

    


     

    ATTEST:

     

    By:
      /s/ James W. A. Ladner       

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Exhibit
      A

    Licensed
      Patents

    


    BSC
      Licensed Patents:

    


    
      	1.  	
              U.S.
                Patent No. 6,381,496

            


    

    
      	2.  	
              U.S.
                Patent No. 6,516,227

            


    

    
      	3.  	
              U.S.
                Patent No. 6,895,280

            


    

    
      	4.  	
              U.S.
                Patent Application Publication No.
                20050107841

            


    

    
      	5.  	
              U.S.
                Patent Application Publication No.
                20030114899

            


    

    


    St.
      Jude
      Licensed Patents:

    


    
      	1.  	
              U.S.
                Patent No. 4,793,353

            


    

    
      	2.  	
              U.S.
                Patent No. 6,154,678

            


    

    
      	3.  	
              U.S.
                Patent No. 6,216,045

            


    

    
      	4.  	
              U.S.
                Patent No. 6,981,314

            


    

    
      	5.  	
              U.S.
                Patent No. 7,047,627

            


    

    
      	6.  	
              U.S.
                Application Publication
                No. 20050138791

            


    

    
      	7.  	
              U.S.
                Application Publication No. 20050138792

            


    

    
      	8.  	
              U.S.
                Application Publication No. 20050192655 

            


    

    


    


    
 

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Exhibit
      B

    ADR
      Procedure Pursuant to Section 8.01(a)

    


    1. 
Upon
      the
      expiration of the 60-day period for good faith negotiations pursuant to Section
      8.01(c), any party may initiate arbitration with the American Arbitration
      Association (“AAA”) by filing a Notice of Arbitration pursuant to the
      then-existing AAA rules for commercial arbitration. Should any provision of
      the
      applicable AAA rules conflict in any way with any provision of this Agreement,
      this Agreement shall govern. 

    


    2.              
      Within
      twenty (20) days after filing the Notice of Arbtiration, the parties shall
      appoint a single, neutral arbitrator. The arbitrator shall have substantial
      experience in patent infringement litigation and in determining whether a
      product embodies patent claims. If the parties are unable to agree on the
      arbitrator within the time specified above, AAA will select a so-qualified
      arbitrator within three (3) business days thereafter.

    


    3. 
The
      parties shall not be entitled to any discovery.

    


    4. 
Fifty
      (50) days after filing the Notice of Arbitration, each party will submit to
      the
      arbitrator an opening brief, not to exceed 40 pages in length, setting forth
      its
      position on the merits of the dispute. The text must be spaced at least 24
      points vertically and the font must be at least 12 points. Claim charts
      regarding infringement, non-infringement, or invalidity, attached to the brief
      as exhibits for the convenience of the arbitrator, will not count towards the
      page limit.

    


    5. 
Eighty
      (80) days after filing the Notice of Arbitration, each party will submit to
      the
      arbitrator a reply brief, not to exceed 40 pages in length, setting forth its
      responses to the other party’s opening brief. The reply brief may not raise any
      issues not already raised in the parties’ opening briefs and must conform to the
      same spacing/font requirements as the opening briefs.

    


    6. 
No
      more
      than one-hundred twenty (120) days after filing the Notive of Arbitration,
      the
      arbitrator shall provide a written, reasoned decision to the
      parties.

    


    


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Exhibit
      C

    ADR
      Procedure Pursuant to Section 8.01(b)

    


    1. 
Upon
      the
      expiration of the 60-day period for good faith negotiations pursuant to Section
      8.01(c), any party may initiate arbitration with the American Arbitration
      Association (“AAA”) by filing a Notice of Arbitration pursuant to the
      then-existing AAA rules for commercial arbitration. Should any provision of
      the
      applicable AAA rules conflict in any way with any provision of this Agreement,
      this Agreement shall govern. 

    


    2.              
      Within
      twenty (20) days after filing the Notice of Arbtiration, the parties shall
      appoint a single, neutral arbitrator. The arbitrator shall have substantial
      experience in commercial licensing, preferably in the medical devices industry.
      If the parties are unable to agree on the arbitrator within the time specified
      above, AAA will select a so-qualified arbitrator within three (3) business
      days
      thereafter.

    


    3. 
The
      parties shall be entitled to discovery as ordered by the arbitrator; however,
      it
      is the intention of the parties that any such discovery be limited in scope
      in
      order to reduce the cost and burden to the parties. The arbitrator shall take
      this intention into account when ordering discovery so that any discovery so
      ordered is narrowly-tailored to lead to relevant information while minimizing
      the burden and cost of such discovery on the parties.

    


    4. 
The
      arbitrator will be empowered to award specific performance of the Agreement,
      as
      well as compensatory damages, costs, and attorneys' fees to the prevailing
      party, as the arbitrator deems appropriate. No punitive damages of any kind
      shall be awarded.

    


    5.              
      The
      arbitration shall be conducted in such a way that the arbitrator issues a
      decision and award no later than six (6) months after commencement of the
      arbitration. 

     

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Exhibit
      D

    Additional
      Agreements Still in Effect

    


    


    None.