SETTLEMENT AGREEMENT
EXHIBIT
10.6
This
Settlement Agreement ("Agreement") is entered into as of this 29th day of July,
2006, by and between Boston Scientific Corporation, a corporation organized
and
existing under the laws of the State of Delaware ("BSC"), Guidant Corporation,
a
corporation organized and existing under the laws of the State of Indiana
("Guidant"),
Cardiac Pacemakers, Inc., a corporation organized and existing under the laws
of
the State of Minnesota ("CPI"), Guidant Sales Corporation, a corporation
organized and existing under the laws of the State of Indiana ("GSC"), and
Advanced Bionics Corporation, a corporation organized and existing under the
laws of the State of Delaware ("ABC"), on the one hand (hereinafter collectively
referred to as the "BSC Parties"), and St. Jude Medical, Inc., a corporation
organized and existing under the laws of the State of Minnesota ("St. Jude"),
St. Jude Medical S.C., Inc., a corporation organized and existing under the
laws
of the State of Minnesota ("SJMSC"), Pacesetter, Inc., a corporation organized
and existing under the laws of the State of Delaware ("Pacesetter"), and
Advanced Neuromodulation Systems, Inc., a corporation organized and existing
under the laws of the State of Texas ("ANS"), on the other hand (hereinafter
collectively referred to as the "St. Jude Parties"). The BSC Parties and the
St.
Jude Parties shall collectively be referred to as the "Parties" in this
Agreement.
RECITALS
WHEREAS,
there currently are pending between the BSC Parties and the St. Jude Parties
the
following cases:
| 1. |
Cardiac
Pacemakers, Inc. et
al. v. St. Jude Medical, Inc. et al.,
Civil Action No. 1-96-cv-1718 DFH/TAB, (S.D. Ind.) (the "Indiana
case");
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| 2. |
Pacesetter,
Inc. et al. v. Cardiac Pacemakers, Inc. et
al.,
Case No. 02-1337 DWF/SRN, (D. Minn.) (the "Minnesota Pacesetter
case");
|
| 3. |
Cardiac
Pacemakers, Inc. et
al. v. St. Jude Medical, Inc. et al.,
Civil Action No. 04-1016 JMR/FLN (D. Minn.) (the "Minnesota CPI
case");
|
| 4. |
Guidant
Corp. et al. v. St. Jude Medical, Inc. et al.,
Civil Action No. 04-0067-SLR (D. Del.) (the "Delaware
case");
|
| 5. |
Pacesetter,
Inc. et al. v. Intermedics, Inc. et
al.,
Case No. CV 06-3166 GHK(FFMx) (C.D. Cal.) (the "California
case");
|
| 6. |
Advanced
Neuromodulation Systems, Inc. v. Advanced Bionics Corp.,
Civil Action No. 4:04cv131 (E.D. Tex); Advanced
Bionics Corp. v. Advanced Neuromodulation Systems, Inc.,
Civil Action No. 4:04cv131 (E.D. Tex.); and the Advanced
Neuromodulation Systems, Inc. v. Advanced Bionics Corp
arbitration, Institute for Conflict Prevention and Resolution Case
No.
G-06-08A (the "ANS/ABC cases");
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all
of
which are collectively referred to herein as the "Litigation";
WHEREAS,
the BSC Parties and the St. Jude Parties entered into discussions in an effort
to resolve the Litigation;
WHEREAS,
in connection with the discussions with the BSC Parties (and with their
permission), the St. Jude Parties entered into discussions with representatives
of MFV (as defined below) in an effort to resolve the Indiana case and the
Delaware case, but the St. Jude Parties' efforts at negotiating a resolution
of
those cases with the representatives of MFV were unsuccessful;
WHEREAS,
the Parties now wish to settle certain cases of the Litigation and to limit
the
issues remaining in the rest of the Litigation, upon the terms and conditions
set forth in this Agreement (and the Exhibits hereto);
NOW,
THEREFORE, in consideration of the promises and of the mutual covenants
hereinafter set forth, and of the good and valuable consideration flowing from
each party to the other, the Parties hereto, intending to be legally bound
hereby, covenant and agree as follows:
ARTICLE
I
Definitions
Section
1.01. Affiliates.
"Affiliates" as used herein shall have the meaning set forth in the CRM License
Agreement.
Section
1.02. CRM
License Agreement.
"CRM
License Agreement" as used herein shall mean the license agreement relating
to
cardiac rhythm management products by and between Boston Scientific Corporation
and St. Jude Medical, Inc., dated July 29, 2006, an executed copy of which
is
attached hereto as Exhibit A.
Section
1.03. SCS
License Agreement.
"SCS
License Agreement" as used herein shall mean the license agreement relating
to
spinal cord stimulation products by and between Boston Scientific Corporation
and St. Jude Medical, Inc., dated July 29, 2006, an executed copy of which
is
attached hereto as Exhibit B.
Section
1.04. Medtronic
Action.
The
"Medtronic Action" as used herein shall mean the litigation captioned
Medtronic,
Inc. v. Guidant Corporation, et al.,
case
number 05-1515, currently pending in the U.S. Court of Appeals for the Federal
Circuit, and any continuation of that action at the district court or appellate
court levels following the issuance of a mandate by the Federal
Circuit.
Section
1.05 MFV. "MFV"
as
used herein shall mean Xxxxxxxx Family Ventures, LLC, a limited liability
company organized under the laws of the State of Maryland. MFV is also a
plaintiff adverse to the St. Jude Parties in the Indiana case and the Delaware
case.
Section
1.06. SCS
Field.
"SCS
Field" as used herein shall have the meaning set forth in the SCS License
Agreement.
Section
1.07.
Derivative
Product.
"Derivative Product” as used herein shall mean any product subsequently approved
by applicable regulatory authorities for use in spinal cord stimulation to
manage chronic pain of the trunk and limbs that is of substantially equivalent
design and functionality as a product that is commercially marketed and sold
as
of the Effective Date. In the interest of clarity, a future product shall be
considered a "Derivative Product" unless it is covered by a patent (other than
the Licensed Patents) that does not cover a product commercially marketed and
sold as of the Effective Date. Whether a future product is a "Derivative
Product" shall be determined on a patent-by-patent basis; a future product
that
is not a "Derivative Product" with respect to one patent shall not be exposed
to
claims of infringement based on any other patent for which the product is a
"Derivative Product."
Section
1.08. Effective
Date.
"Effective Date" as used herein shall mean July 29, 2006.
ARTICLE
II
Dismissal
of Certain Cases and Narrowing of Issues In Remaining Cases
Section
2.01. Contemporaneously
with the execution of this Agreement, the Parties shall execute and promptly
file with the appropriate courts the following documents:
| a. |
A
stipulation for dismissal with prejudice of the Minnesota Pacesetter
case
in the form of Exhibit C;
|
| b. |
A
stipulation for dismissal with prejudice of the Minnesota CPI case
in the
form of Exhibit D;
|
| c. |
A
stipulation for dismissal with prejudice of the California case in
the
form of Exhibit E;
|
| d. |
A
stipulation for dismissal with prejudice of the ANS/ABC cases in
the form
of Exhibits F and G;
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The
foregoing cases constitute the "Dismissed Litigation." Those cases not so
dismissed pursuant to this Section 2.01 constitute the "Remaining
Litigation."
Section
2.02. The
Parties further agree that the issues remaining to be litigated in the Remaining
Litigation shall be circumscribed and continue only within the following
parameters:
| a. |
The
Indiana case.
|
| i. |
In
consideration for the St. Jude Parties' covenants and agreements
in
Sections 2.02, 2.03 and 2.04 of this Agreement, the BSC Parties covenant
and agree that plaintiffs in the Indiana case shall withdraw and/or
not
further pursue any damages claim for lost profits, price erosion,
an "up
front" royalty payment, prejudgment interest, or attorneys’ fees against
the St. Jude Parties. In addition, the BSC Parties covenant and agree
that
plaintiffs in the Indiana case shall only pursue a damages claim
based on
pulse generators and leads which plaintiffs contend infringe the
patent
claim asserted in the Indiana case, and will withdraw and/or not
pursue
any damages claim based on other products, whether through a "convoyed
sales" theory or otherwise. Notwithstanding such covenant and agreement,
it is understood that the defendants in the Indiana case shall continue
to
be free to argue that damages are not warranted due to non-infringement,
invalidity and/or other defenses, except as set forth in Section
2.02(a)(ii), below. The BSC Parties further covenant and agree that
plaintiffs in the Indiana case shall limit any claim for damages
to a
reasonable royalty theory, with a royalty that shall not exceed three
percent (3%) of the net sales revenue from any sales found to infringe
the
patent in suit, and that plaintiffs shall not be entitled to receive
any
payment in connection with the Indiana case, by way of judgment or
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otherwise,
that exceeds three percent (3%) of the net sales revenue from any
sales
found to infringe the patent in
suit.
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| ii. |
In
consideration for the BSC Parties' covenants and agreements in Sections
2.02, 2.03 and 2.04 of this Agreement, the St. Jude Parties covenant
and
agree that they will withdraw and/or not further pursue their fraud
claim
and any claim for attorneys’ fees. In addition, the St. Jude Parties
covenant and agree not to seek to introduce any evidence of Guidant
product recalls; provided, however, that the BSC Parties covenant
and
agree to ensure that plaintiffs will not seek to introduce any evidence
of
St. Jude product recalls. The St. Jude Parties further covenant and
agree
that (1) defendants in the Indiana case will not seek discovery on
or
introduce any evidence in pleadings or court relating to Xx. Xxxxxxxx’x
conduct or plaintiffs’ conduct vis a vis Xx. Xxxxxxxx in connection with
the trial of this matter in June 2001 and related information revealed
after that trial; and (2) defendants in the Indiana case will not
pursue
any claim or defense (e.g., unclean hands, inequitable conduct,
unenforceability, estoppel, misuse, and/or fraud) based, in-whole
or
in-part, on Xx. Xxxxxxxx’x conduct in connection with the trial of this
matter in June 2001 or based, in-whole or in-part, on plaintiffs’ conduct
vis a vis Xx. Xxxxxxxx in connection with the trial of this matter
in June
2001 and related information revealed after that trial. Defendants
will
remain free to pursue any defense (including, but not limited to,
inequitable conduct, unenforceability and misuse) to the extent that
such
defense is not based in
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whole
or in part on Xx. Xxxxxxxx’x conduct in connection with the trial of this
matter in June 2001 or based, in-whole or in-part, on plaintiffs’ conduct
vis a vis Xx. Xxxxxxxx in connection with the trial of this matter
in June
2001 and related information revealed after that trial; and plaintiffs
will remain free to argue that any such defense is not warranted
or is not
properly before the Indiana court, whether based on law of the
case,
waiver, failure of proof, judgment as a matter of law, or other
ground.
|
| b. |
The
Delaware case.
|
| i. |
In
consideration for the St. Jude Parties' covenants and agreements
in
Sections 2.02, 2.03 and 2.04 of this Agreement, the BSC Parties covenant
and agree that plaintiffs in the Delaware case shall withdraw and/or
not
further pursue any damages claim for lost profits, price erosion,
an "up
front" royalty payment, enhanced damages (i.e.,
treble damages and/or attorneys' fees), or prejudgment interest,
against
the St. Jude Parties. In addition, the BSC Parties covenant and agree
that
plaintiffs in the Delaware case shall only pursue a damages claim
based on
pulse generators and leads which plaintiffs contend infringe the
patent
claims asserted in the Delaware case, and will withdraw and/or not
pursue
any damages claim based on other products, whether through a "convoyed
sales" theory or otherwise. Notwithstanding such covenant and agreement,
it is understood that the defendants in the Delaware case shall continue
to be free to argue that damages are not warranted due to
non-infringement, invalidity and/or other defenses, except as set
forth
in
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|
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Section
2.02(b)(ii), below. The BSC Parties also covenant and agree that
plaintiffs in the Delaware case shall withdraw their request for
and/or
not further pursue an injunction until all appeals have been exhausted
and
any judgment of infringement is final and no longer appealable.
The BSC
Parties further covenant and agree that plaintiffs in the Delaware
case
shall limit any claim for damages to a reasonable royalty theory,
with a
royalty that shall not exceed three percent (3%) of the net sales
revenue
from any sales found to infringe the patent in suit, and that plaintiffs
shall not be entitled to receive any payment in connection with
the
Delaware case, by way of judgment or otherwise, that exceeds three
percent
(3%) of the net sales revenue from any sales found to infringe
the patent
in suit.
|
| ii. |
In
consideration for the BSC Parties' covenants and agreements in Sections
2.02, 2.03 and 2.04 of this Agreement, the St. Jude Parties covenant
and
agree that they will withdraw and/or not further pursue their fourth
("no
error"), sixth ("intervening rights"), and eighth ("claim splitting")
affirmative defenses, and any claim for attorneys’ fees. In addition, the
St. Jude Parties covenant and agree not to seek to introduce any
evidence
of Guidant product recalls; provided, however, that the BSC Parties
covenant and agree to ensure that plaintiffs will not seek to introduce
any evidence of St. Jude product
recalls.
|
| iii. |
Notwithstanding
any contrary outcome of the Delaware case, the Parties agree that
defendants in the Delaware case shall not be placed in a position
that is
worse than that of Medtronic as a result of the final resolution
of
the
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Medtronic
Action. In particular, should Medtronic obtain a final,
non-appealable judgment in the Medtronic Action invalidating one
or more
patent claims which plaintiffs in the Delaware case have asserted
against
the defendants in the Delaware case, the Parties agree that
defendants in the Delaware case shall owe no damages or payments
to the
plaintiffs on any such patent claim(s). In addition, the Parties
agree that, should Medtronic agree to a settlement with BSC and/or
MFV of the Medtronic Action on terms more favorable than the terms
plaintiffs have sought from the defendants in the Delaware case,
then
plaintiffs in the Delaware case shall limit their pursuit of any
claim for
damages in the Delaware case such that any damages claim is no
less
favorable for the defendants in the Delaware case than the terms
of the
settlement in the Medtronic Action are favorable for Medtronic,
and any
damages or payments owed by the defendants in the Delaware case
shall be
so limited.
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Section
2.03. Further
Agreements.
The BSC
Parties agree that St. Jude and its Affiliates shall be free to seek to
negotiate an agreement with MFV resolving the Indiana case and the Delaware
case
and that the BSC Parties will take no action to interfere with the further
efforts of St. Jude and its Affiliates to negotiate with MFV a resolution of
such cases. In connection with, and contingent upon, MFV's settlement of the
Indiana case and the Delaware case with St. Jude and its Affiliates, the BSC
Parties covenant, consent and agree to: (1) license or sublicense the MFV patent
portfolio to the St. Jude and/or its Affiliates (as provided in Section 2.06
of
the CRM License Agreement) and/or permit MFV to provide St. Jude and/or its
Affiliates with such a license or sublicense directly on the same or different
terms as St. Jude and MFV may agree;
and
(2)
dismiss the Indiana case and the Delaware case for no royalty or other
consideration payable to BSC (including, by way of example, no payment of any
settlement proceeds to BSC and no reimbursement of the costs of litigation
BSC
or any of its Affiliates may have incurred). The BSC Parties further covenant
and agree that any license or sub-license resulting from a settlement between
St. Jude and its Affiliates and MFV may be on different terms than those terms
under which BSC and/or its Affiliates are currently licensed by MFV, but, in
any
event, shall not be on terms less favorable to St. Jude and/or its Affiliates
than the terms under which BSC and/or its Affiliates are currently licensed
by
MFV. The BSC Parties also covenant and agree to execute any further documents
or
make any additional undertakings that may be necessary to effectuate the
provisions of this Section 2.03. The St. Jude Parties covenant and agree that
St. Jude and/or its Affiliates will be solely responsible for any payments
to
MFV in connection with any settlement with MFV resolving the Indiana case and
the Delaware case.
Section
2.04. Conduct
of the Remaining Litigation.
The BSC
Parties and the St. Jude Parties further covenant and agree to conduct remaining
portions of the Indiana case and the Delaware case as follows:
a. Scheduling
of the Indiana Case.
The BSC
Parties and the St. Jude Parties covenant and agree that plaintiffs and
defendants will cooperate in good faith to negotiate and make such adjustments
to the pre-trial and trial schedule in the Indiana case as are mutually
acceptable such that no party suffers prejudice in meeting any applicable
discovery, pretrial or trial deadlines. In order to effectuate the foregoing,
the Parties covenant and agree to develop a jointly proposed pre-trial and
trial
schedule through good faith negotiations and to jointly request that the Court
in the Indiana case vacate the
existing
pre-trial and trial schedule if they cannot agree on a schedule that maintains
the existing trial date.
b. Scheduling
of the Delaware Case.
The BSC
Parties and the St. Jude Parties covenant and agree that plaintiffs and
defendants will cooperate in good faith to negotiate and make such adjustments
to the pre-trial and trial schedule in the Delaware case as are mutually
acceptable such that no party suffers prejudice in meeting any applicable
discovery, pretrial or trial deadlines. In order to effectuate the foregoing,
the Parties covenant and agree to develop a jointly proposed pre-trial and
trial
schedule through good faith negotiations and to jointly request that the Court
in the Delaware case vacate the existing pre-trial and trial
schedule.
c. Use
of
This Agreement in the Remaining Litigation.
The BSC
Parties and the St. Jude Parties covenant and agree that this Agreement, along
with all of the other agreements and stipulations that are to be executed by
the
Parties as contemplated herein, shall be protected under Federal Rule of
Evidence 408 and any other applicable state or federal privileges or immunities
from use as evidence with respect to settlements or offers to compromise and
that neither plaintiffs nor defendants shall seek to introduce this Agreement
or
the CRM License Agreement as evidence in either the Indiana case or the Delaware
case for any purpose other than as may reasonably be required to enforce and
effectuate the provisions of this Agreement.
d. No
Admissions.
The BSC
Parties and the St. Jude Parties covenant and agree that nothing in this
Agreement shall be construed as an admission of liability by any party and
that
neither plaintiffs nor defendants will seek to use or construe this
Agreement
in the Indiana case or the Delaware case as an admission of liability by any
party.
Section
2.05. Additional
Agreements Regarding the Xxxxx Arbitration.
With
respect to the arbitration claims asserted by ANS against Xxxxxxxxxxx (Reno)
Xxxxx (International Institute for Conflict Prevention and Resolution Case
No.
G-06-07A) (the "Xxxxx Arbitration"), the BSC Parties additionally covenant
and
agree to deliver to St. Jude within five (5) business days of the Effective
Date, a signed, written release and stipulation from Xxxxxxxxxxx (Reno) Xxxxx
in
which Xx. Xxxxx has agreed to a mutual dismissal with prejudice of the
arbitration between ANS and Xx. Xxxxx that is pending before the International
Institute for Conflict Prevention and Resolution, Case No. G-06-07A (the "Xxxxx
Arbitration") and releasing all related claims between Xx. Xxxxx and the St.
Jude Parties.
ARTICLE
III
Cross
Licenses
Section
3.01. As
part
of the consideration for entering into this Agreement, the Parties shall execute
contemporaneously with the execution of this Agreement the CRM License Agreement
and the SCS License Agreement. The Parties further covenant and agree to cause
each of their Affiliates that holds any ownership interest in the Licensed
Patents (as defined in the CRM License Agreement or SCS License Agreement,
as
appropriate) to execute and deliver to the other party within thirty (30) days
after the Effective Date a Consent and Agreement to be Bound by License,
substantially in the form of Exhibit I, hereto, with regard to the CRM License
Agreement, and the SCS License Agreement. The Parties agree that their sole
remedy for any failure by a party to cause an Affiliate to execute and deliver
a
required Consent and Agreement
to
be
Bound by License pursuant to this Section 3.01 shall be limited to the
provisions of Section 7.06 of this Agreement.
ARTICLE
IV
Mutual
Releases
Section
4.01. All
claims and counterclaims in the Dismissed Litigation shall be dismissed with
prejudice, and each party, for itself and its successors and assigns, hereby
releases, acquits, and forever discharges the other party and its Affiliates,
successors, and assigns, and all their respective officers, directors,
employees, agents, and representatives from all such claims and counterclaims.
Neither these releases, nor the dismissal of the ANS/ABC Cases, are intended
to
prejudice or impair the rights created or preserved in the SCS License
Agreement, and the Parties specifically agree not to assert otherwise.
Section
4.02.
Each
party, for itself and its successors and assigns, and its Affiliates and their
respective successors and assigns, hereby expressly waives any right that it
may
have under the laws or statutes of any jurisdiction that limits the extension
of
a release to certain types of claims, including, but not limited to, California
Civil Code § 1542, which provides that: "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."
ARTICLE
V
Termination
of Japanese Distribution Agreement
Section
5.01. The
Parties hereby agree that the Distribution Agreement by and between Advanced
Neuromodulation Systems, Inc. and Boston Scientific Corporation dated June
20,
2002, (the "Japanese Distribution Agreement") and the respective rights and
obligations of St.
Jude
and its Affiliates and BSC and its Affiliates set forth therein are terminated
in all respects except for those provisions that by their terms were
contemplated to survive any termination of the Japanese Distribution Agreement
(the "Surviving Obligations"). Other than for the Surviving Obligations, each
of
the parties, for itself, its successors and assigns, hereby covenants not to
xxx, releases and forever discharges the other parties, their respective
successors, assigns, affiliated entities, directors, officers, shareholders,
and
legal representatives, of and from any claims, demands, actions, cause and
causes of action, suits, liabilities, obligations, promises, injuries or
damages, of any name, nature or description in law or in equity, whether known
or unknown, asserted or unasserted, suspected or unsuspected, or fixed or
contingent, which the releasing party now has, or ever had, or which it shall
or
may have in the future, arising out of or in connection with the Japanese
Distribution Agreement.
ARTICLE
VI
Covenant
Not to Xxx on Spinal Cord Stimulation Products
Section
6.01. The
St.
Jude Parties and their Affiliates hereby covenant not to xxx the BSC Parties
and/or their Affiliates, their respective successors, assigns, affiliated
entities, directors, officers, shareholders, and legal representatives,
distributors, resellers, customers, and end users with respect to any alleged
infringement of patent or other intellectual property rights owned or held
by
St. Jude and/or its Affiliates by any products used in spinal cord stimulation
to manage chronic pain that are currently commercially marketed and sold as
of
the Effective Date anywhere in the world, pursuant to FDA, CE xxxx, or MHLW
approval, and all Derivative Products.
Section
6.02. The
BSC
Parties and their Affiliates hereby covenant not to xxx the St. Jude Parties
and/or their Affiliates, their respective successors, assigns, affiliated
entities,
directors,
officers, shareholders, and legal representatives, distributors, resellers,
customers, and end users with respect to any alleged infringement of patent
or
other intellectual property rights owned or held by BSC and/or its Affiliates
by
any products used in spinal cord stimulation to manage chronic pain that are
currently commercially marketed and sold as of the Effective Date anywhere
in
the world, pursuant to FDA, CE xxxx, or MHLW approval, and all Derivative
Products.
ARTICLE
VII
Representations
and Warranties
Section
7.01. Each
of
the Parties represents and warrants that it has the power and authority to
execute, deliver, enter into and perform this Agreement and that it is legally
permitted to grant the rights granted and to make all covenants and perform
all
obligations required by this Agreement, including all of the exhibits hereto.
Section
7.02.
Each of
the Parties represents and warrants that to the extent that any third-party
consents are required for the performance of any of its obligations under this
Agreement, it has obtained all such required consents. Notwithstanding the
foregoing, to the extent that a third party consent is required for sublicensing
under Section 2.02 of the CRM License Agreement, this Section 7.02 is not
intended as a representation and warranty by any party that such consent has
been secured.
Section
7.03.
The BSC
Parties represent and warrant to the St. Jude Parties that all plaintiffs in
the
Delaware case and the Indiana case shall conduct those cases in accordance
with,
and subject to, the covenants and agreements set forth in Sections 2.02 and
2.04, above, which are incumbent on the BSC Parties.
The
Parties agree that the St. Jude Parties' sole remedy for any breach of this
Section 7.03 by the BSC Parties shall be as set forth in the provisions of
Section
7.06, except that any breach of this Section 7.03 by the BSC Parties as a result
of a failure to conduct those cases in accordance with, and subject to, the
covenants and agreements in Section 2.02 shall also operate to relieve the
St.
Jude Parties from their obligations under Section 2.02, above, to an extent
that
is commensurate with the failure of the BSC Parties. Absent agreement of the
Parties, the extent of relief that shall be afforded the St. Jude Parties from
their obligations under Section 2.02, above, shall be determined by the Court
in
which the failure of the BSC Parties arose.
Section
7.04.
The
St.
Jude Parties represent and warrant to the BSC Parties that defendants in the
Delaware case and the Indiana case shall conduct those cases in accordance
with,
and subject to, the covenants and agreements set forth in Section 2.02, above,
which are incumbent on the St. Jude Parties. The Parties agree that any breach
by the St. Jude Parties of this Section 7.04 shall not result in termination
of
the Parties' other rights and obligations as set forth in the other provisions
of this Agreement and that the sole remedy for breach of this Section 7.04
by
the St. Jude Parties as a result of a failure to conduct those cases in
accordance with, and subject to, the covenants and agreements in Section 2.02
shall be to relieve the BSC Parties from their obligations under Section 2.02,
above, to an extent that is commensurate with the failure of the St. Jude
Parties. Absent agreement of the Parties, the extent of relief that shall be
afforded to the BSC Parties from their obligations under Section 2.02, above,
shall be determined by the Court in which the failure of the St. Jude Parties
arose.
Section
7.05.
The
BSC
Parties represent and warrant that, with regard to the Indiana case and the
Delaware case and subject to the terms of Section 2.02, above, BSC and/or its
Affiliates shall fully perform all obligations required of BSC and/or its
Affiliates and enforce all rights to which BSC and/or its Affiliates are
entitled under its current agreements with MFV, except that
BSC
and
its Affiliates waive any right to any settlement proceeds and/or reimbursement
of the costs of litigation pursuant to Section 2.03, above, in the event of
an
agreement between St. Jude and its Affiliates and MFV resolving the Indiana
case
and the Delaware case. The
BSC
Parties further represent and warrant that until final, non-appealable judgments
are entered in both the Indiana case and the Delaware case, or both of those
cases are otherwise fully resolved and dismissed, neither BSC nor any of its
Affiliates will modify, alter or waive any of their obligations or
rights under any current agreement with MFV without first providing notice
to
and receiving written consent from the St. Jude Parties, which consent shall
not
be unreasonably withheld.
Section
7.06.
Each
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 (collectively,
the
"Indemnified Parties"), against any and all legal expenses, costs, settlements,
judgments, claims, controversies, demands, rights, disputes, grievances, causes
of action, damages, enhanced damages, injunctions, attorneys' fees or
prejudgment interest imposed on or incurred by any of the Indemnified Parties
by
reason of any failure, inaccuracy, or breach of any of the representations
and
warranties of such party pursuant to this Article VII or failure to obtain
the
consent of an Affiliate pursuant to Section 3.01, above.
ARTICLE
VIII
Confidentiality/Publicity
Concerning Agreement
Section
8.01. 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
IX
Notices
Section
9.01. 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 the
BSC Parties:
President
and CEO
Boston
Scientific Corporation
Xxx
Xxxxxx Xxxxxxxxxx Xxxxx
Xxxxxx,
XX 00000-0000
Facsimile
No.: (000) 000-0000
with
a
copy to: General Counsel
If
to the
St. Jude Parties:
President
and CEO
St.
Jude
Medical, Inc.
Xxx
Xxxxxxxx Xxxxx
Xx.
Xxxx,
XX 00000
Facsimile
No.: (000) 000-0000
with
a
copy to: General Counsel
Notice
shall be deemed to have been given: (i) at the expiration of two (2) business
days from the date of delivery by facsimile transmission, provided 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 9.01.
ARTICLE
X
Alternative
Dispute Resolution
Section
10.01. (a) Except
as
to any dispute concerning Sections 2.02 and 2.04, any dispute that arises out
of
or relates to this Agreement, including an alleged breach of this Agreement
but
excluding any dispute under Section 8.01(a) of the CRM License Agreement or
Section 8.01(a) of the SCS License Agreement, between (i) St. Jude or a St.
Jude
Affiliate and (ii) BSC or a BSC Affiliate which is not resolved by negotiation
as provided in subsection (b) of this Section 10.01 shall be resolved by binding
Alternative Dispute Resolution (“ADR”) in the manner described in Exhibit H.
Disputes relating to Sections 2.02 and 2.04 of this Agreement
may
be
resolved by the Court in the Indiana case or the Delaware case, as appropriate,
or by negotiation as provided in subsection (b) of this Section 10.01; however,
if the dispute is not resolved by such means, then the dispute shall be resolved
by the ADR procedure of Exhibit H.
(b) 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
the
BSC Parties:
General
Counsel
Boston
Scientific Corporation
Xxx
Xxxxxx Xxxxxxxxxx Xxxxx
Xxxxxx,
XX 00000-0000
Facsimile
No.: (000) 000-0000
For
the
St. Jude Parties:
General
Counsel
St.
Jude
Medical, Inc.
Xxx
Xxxxxxxx Xxxxx
Xx.
Xxxx,
XX 00000
Facsimile
No.: (000) 000-0000
Any
settlement reached by the Parties under this Section 10.01 shall not be binding
until reduced to writing and signed by authorized officers of BSC and St. Jude.
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
10.01.
ARTICLE
XI
General
Provisions
Section
11.01. Modification.
This
Agreement may not be modified, changed, or terminated orally. No change,
modification, addition, or amendment shall be valid unless given in a writing
expressly indicating an intent to modify the Agreement and duly executed by
the
Parties.
Section
11.02. Entire
Agreement.
This
Agreement, along
with all of the other agreements and stipulations that are to be executed by
the
Parties as contemplated herein, 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.
Section
11.03. 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
11.04. 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
11.05. Counterparts.
This
Agreement may be executed simultaneously in two or more counterparts, each
of
which shall be deemed to be an original.
Section
11.06. 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
11.07. 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
11.08. 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. 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
11.09. 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 Settlement Agreement.
Section
11.10. 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.
Section
11.11. Protective
Orders.
The
court-entered confidentiality agreements and protective orders shall remain
in
full force and effect after dismissal of the Dismissed Litigation, and the
Parties shall remain bound by their terms. Each party shall sequester protected
information and documents produced in the Litigation (including all copies
thereof), as well as other materials containing information that the other
party
has designated as confidential and subject to protective order. Within ninety
(90) days of the Effective Date, each party may identify any information and/or
document(s) produced in one or more of the Minnesota Pacesetter case, the
Minnesota CPI case, or the Indiana case that the party desires to use in the
Delaware case as well as any information and/or document(s) produced in one
or
more of the Minnesota Pacesetter case, the Minnesota CPI case, or the Delaware
case that the party desires to use in the Indiana case. Absent an objection
for
good cause by the non-identifying party, the identifying party shall thereafter
be entitled to use the information and/or document(s) as though
produced
in the Indiana case and/or the Delaware case, as appropriate. Should the
non-identifying party have good cause to object to the use of any information
and/or document(s) so identified, the non-identifying party shall provide the
basis for such objection within ten (10) court days of the identification of
the
information and/or document(s). If an objection is made, the parties shall
promptly meet and confer to attempt a good faith resolution. If a resolution
is
not reached, the non-identifying party can request that the court in the Indiana
case and/or the Delaware case, as appropriate, preclude any use of the
objectionable information and/or document(s) by the identifying
party.
IN
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
and duly attested by their corporate officers authorized for this
purpose.
BOSTON
SCIENTIFIC CORPORATION
By:
/s/
Xxxx X.
Xxxxxxx
Executive
Vice President, Secretary
and
General Counsel
ATTEST:
By: /s/
Xxxxxxxx X. Xxxxx
ST.
JUDE
MEDICAL, INC.
By:
/s/
Xxxxxx X.
Xxxx
Vice
President, General Counsel
and
Secretary
ATTEST:
By:
/s/
Xxxxx W.A. Xxxxxx
EXHIBIT
A
CRM
License Agreement
(filed
as
an exhibit to issuer’s Quarterly Report on Form 10-Q
for
the
fiscal quarter ended September 30, 2006)
EXHIBIT
B
SCS
License Agreement
(filed
as
an exhibit to issuer’s Quarterly Report on Form 10-Q
for
the
fiscal quarter ended September 30, 2006)
EXHIBIT
C
Form
of Dismissal of Minnesota Pacesetter Case
UNITED
STATES DISTRICT COURT
DISTRICT
OF MINNESOTA
|
PACESETTER,
INC., and ST. JUDE MEDICAL S.C., INC.,
Plaintiffs,
|
Case
No. 02-CV-1337 DWF/SRN
|
|
v.
|
STIPULATION
OF DISMISSAL UNDER FRCP 41(a)(1)(ii) &
41(c)
|
|
CARDIAC
PACEMAKERS, INC. and GUIDANT SALES CORPORATION,
Defendants.
|
The
parties to this action having settled their dispute, it is stipulated and agreed
by and among the parties to this action, represented by their attorneys, as
follows:
1. The
Second Amended Complaint is hereby dismissed with prejudice to the
plaintiffs.
2. Any
and
all pending motions or requests for relief by any of the parties are hereby
withdrawn.
3. Each
party is to bear its own costs and attorneys’ fees.
So
agreed
and stipulated.
|
Xxxxxxx
X. Xxxxxxx
|
Xxxxxxx
X. Xxxxxxx
|
|
|
XXXXXX
& XXXXXXX LLP
|
Xxxxxxx
X. Xxxx
|
|
|
00
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
|
Xxxxx
X.X. Xxxxx
|
|
|
Xxxxxxxxxxx,
XX 00000
|
Xxxxx
Xxxx Chosy
|
|
|
(000)
000-0000
|
FAEGRE
& XXXXXX LLP
|
|
|
00
Xxxxx Xxxxxxx Xx., Xxxxx 0000
|
||
|
Xxxxxxx
X. Xxxxx
|
Minneapolis,
MN 55402-3901
|
|
|
SIDLEY
& AUSTIN LLP
|
(000)
000-0000
|
|
|
000
Xxxx Xxxxx Xxxxxx
|
||
|
Xxx
Xxxxxxx, XX 00000
|
||
|
(000)
000-0000
|
||
|
Xxxxx
X. Xxxxxx
|
||
|
H.
Xxxx Xxxx
|
||
|
XXXXXX,
XXXX & XXXXXXXX LLP
|
||
|
0000
Xxxx Xxxx Xxxx
|
||
|
Xxxx
Xxxx, XX 00000
|
||
|
(000)
000-0000
|
||
|
So
ordered:
|
||
| U.S. District Judge | Date |
Exhibit
D
Form
of Dismissal of Minnesota CPI Case
UNITED
STATES DISTRICT COURT
DISTRICT
OF MINNESOTA
|
CARDIAC
PACEMAKERS, INC. and GUIDANT SALES CORPORATION,
Plaintiffs,
|
Case
No. 04-CV-1016 JMR/FLN
|
|
v.
|
STIPULATION
OF DISMISSAL UNDER FRCP 41(a)(1)(ii) &
41(c)
|
|
ST.
JUDE MEDICAL, INC., ST. JUDE MEDICAL, S.C., INC., and PACESETTER,
INC.,
Defendants.
|
The
parties to this action having settled their dispute, it is stipulated and agreed
by and among the parties to this action, represented by their attorneys, as
follows:
4. The
Second Amended Complaint is hereby dismissed with prejudice to the
plaintiffs.
5. The
counterclaims of the First Amended Answer to the Second Amended Complaint are
hereby dismissed with prejudice to the defendants.
6. Any
and
all pending motions or requests for relief by any of the parties are hereby
withdrawn.
7. Each
party is to bear its own costs and attorneys’ fees.
So
agreed
and stipulated.
|
Xxxxxxx
X. Xxxxxxx
|
Xxxxxx
Xxx
|
|
|
Xxxxxxx
X. Xxxx
|
Xxxxx
X. Xxxxxx
|
|
|
Xxxxx
X.X. Xxxxx
|
Xxxx
X. Xxxxxxxxxx
|
|
|
Xxxxx
Xxxx Xxxxx
|
XXXXX
& XXXXXXX LLP
|
|
|
FAEGRE
& XXXXXX LLP
|
0000
Xxxxxx xx xxx Xxxxx, Xxxxx 000
|
|
|
00
Xxxxx Xxxxxxx Xx., Xxxxx 0000
|
Xxx
Xxxxxxx, XX 00000-0000
|
|
|
Xxxxxxxxxxx,
XX 00000-0000
|
(000)
000-0000
|
|
|
(000)
000-0000
|
|
Xxxxx
X. Xxxxxx
|
||
|
H.
Xxxx Xxxx
|
||
|
XXXXXX,
XXXX & XXXXXXXX LLP
|
||
|
0000
Xxxx Xxxx Xxxx
|
||
|
Xxxx
Xxxx, XX 00000
|
||
|
(000)
000-0000
|
||
|
Xxxxxxx
X. Xxxxx
|
||
|
HALLELAND
XXXXX XXXXX & XXXXXXX, P.A.
|
||
|
Pillsbury
Center South, Suite 600
|
||
|
000
Xxxxx Xxxxx Xxxxxx
|
||
|
Xxxxxxxxxxx,
XX 00000-0000
|
||
|
(000)
000-0000
|
||
| So ordered: | ||
| U.S. District Judge | Date | |
EXHIBIT
E
Form
of Dismissal of California Case
UNITED
STATES DISTRICT COURT
CENTRAL
DISTRICT OF CALIFORNIA
WESTERN
DIVISION
|
PACESETTER,
INC., ST. JUDE MEDICAL, INC., and ST. JUDE MEDICAL S.C.,
INC.,
Plaintiffs,
v.
INTERMEDICS,
INC., CARDIAC PACEMAKERS, INC., GUIDANT SALES CORPORATION, and DOES
I
through L, inclusive,
Defendants.
|
CASE
NO.: CV 06-3166 GHK (FFMx)
STIPULATION
OF DISMISSAL
|
The
parties to this action having settled their dispute, it is stipulated and agreed
by and among the parties to this action, represented by their attorneys, as
follows:
8. The
Complaint is hereby dismissed with prejudice to the plaintiffs.
9. Each
party is to bear its own costs and attorneys’ fees.
So
agreed
and stipulated.
|
Xxxxxx
Xxx
|
Xxxxxxx
X. Xxxxxxx
|
|
|
Xxxxx
X. Xxxxxx
|
Xxxxxxx
X. Xxxx
|
|
|
Xxxx
X. Xxxxxxxxxx
|
Xxxxx
X.X. Xxxxx
|
|
|
IRELL
& XXXXXXX LLP
|
Xxxxx
Xxxx Xxxxx
|
|
|
1800
Avenue of the Stars, Suite 000
|
XXXXXX
& XXXXXX XXX
|
|
|
Xxx
Xxxxxxx, XX 00000-0000
|
00
Xxxxx Xxxxxxx Xx., Xxxxx 0000
|
|
|
(000)
000-0000
|
Xxxxxxxxxxx,
XX 00000-0000
|
|
|
(000)
000-0000
|
||
|
Xxxx
X. Xxxxxx
|
||
|
Xxxxx
X. Xxxxxx
|
||
|
Xxxxxxxx
Xxxxxxx
|
||
|
XXXXXX
& XXXXXXX LLP
|
||
|
000
Xxxx Xxxxx Xxxxxx
|
||
|
Xxx
Xxxxxxx, XX 00000-0000
|
||
|
(000)
000-0000
|
||
| So ordered: | ||
| U.S. District Judge | Date | |
EXHIBIT
F
Form
of Dismissal of ANS/ABC Texas Case
UNITED
STATES DISTRICT COURT
EASTERN
DISTRICT OF TEXAS
SHERMAN
DIVISION
|
ADVANCED
NEUROMODULATION SYSTEMS, INC.,
Plaintiff/Counter-Defendant,
|
Case
No. 04-CV-00131 (Xxxxxx)
|
|
v.
|
STIPULATION
OF DISMISSAL UNDER FRCP 41(a)(1)(ii) &
41(c)
|
|
ADVANCED
BIONICS CORPORATION,
Defendant/Counter-Plaintiff.
|
The
parties to this action having settled their dispute, it is stipulated and agreed
by and among the parties to this action, represented by their attorneys, as
follows:
10. The
First
Amended Complaint is hereby dismissed with prejudice to the
plaintiff/counter-defendant.
11. The
counterclaims contained in the Second Amended Answer and Counterclaims are
hereby dismissed with prejudice to the defendant/counter-plaintiff.
12. Any
and
all pending motions or requests for relief by any of the parties are hereby
withdrawn.
13. Each
party is to bear its own costs and attorneys’ fees.
So
agreed
and stipulated.
|
Xxxxxx
X. Xxxxx, Xx.
|
Xxxxx
Xxxx
|
|
|
Xxxxxxx
X. Xxxxx
|
XXXXXXXX
& XXXXXX LLP
|
|
|
Xxxxxxxxxxx
X. Xxxxxxxx
|
0000
Xxxxxxx Xxxxxx
|
|
|
XXXXX
XXXXX L.L.P.
|
Suite
3300
|
|
|
0000
Xxxx Xxxxxx
|
Xxxxxx,
XX 00000
|
|
|
Xxxxxx,
Xxxxx 00000-0000
|
(214)
969-1700
|
|
|
(214)
953-6500
|
||
|
Xxxxxxx
Xxxx
|
||
|
Xxxxx
X. Xxxxxxx
|
Xxxxxxxx
Xxxxxxx
|
|
|
Xxxxxxxx
X. Xxxxxxxx
|
Xxxx
Xxxx
|
|
|
SIEBMAN,
BURG, XXXXXXXX & XXXXXXXX
|
Xxxx
Xxxxxxx
|
|
|
Federal
Courthouse Square
|
HOWREY
XXXXX XXXXXX & WHITE
|
|
|
300
X. Xxxxxx
|
0000
Xxxxxxxxxxxx Xxxxxx, X.X.
|
|
|
Xxxxxxx,
XX 00000
|
Xxxxxxxxxx,
X.X. 00000
|
|
|
(000)
000-0000
|
(000)
000-0000
|
|
| So ordered: | ||
| U.S. District Judge | Date |
EXHIBIT
G
Form
of Dismissal of ANS/ABC Arbitration
INTERNATIONAL
INSTITUTE FOR
CONFLICT
PREVENTION AND RESOLUTION
|
ADVANCED
NEUROMODULATION
SYSTEMS,
INC.,
Claimant,
v.
ADVANCED
BIONICS CORPORATION,
Respondent,
ADVANCED
NEUROMODULATION
SYSTEMS,
INC.,
Claimant,
x.
XXXXXXXXXXX
XXXX XXXXX,
Respondent,
|
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
|
Xxxxxxx
X. Xxxxxxxx, Arbitrator
File
Nos. G-06-07A and G-06-08A
|
STIPULATION
OF DISMISSAL
The
parties to this action having settled their dispute, it is stipulated and agreed
by and among the parties to this action, represented by their attorneys, as
follows:
1.
Advanced
Neuromodulation Systems, Inc.’s (ANS) Notice of Arbitration against Advanced
Bionics Corporation (“Bionics”) is hereby dismissed with prejudice to
ANS.
2.
ANS’s
Notice of Arbitration against Xxxxxxxxxxx Xxxx Xxxxx (“Xxxxx”) is hereby
dismissed with prejudice to ANS.
3.
Any
defenses or counterclaims arising out of the facts or circumstances underlying
this action that could have been made by Bionics or Xxxxx are hereby dismissed
with prejudice to Bionics and Xxxxx.
4.
Relief
sought in all pending motions by any of the parties is denied.
5.
Each
party is to bear its own costs and attorneys’ fees.
IT
IS SO
ORDERED.
SIGNED
this _____________ day of July, 2006.
|
XXXXXXX
X. XXXXXXXX
ARBITRATOR
|
Agreed
and stipulated:
|
_____________________________
Xxxxxx
X. Xxxxx, Xx.
State
Bar No. 02664100
xxxxxx.x.xxxxx@xxxxxxxxxx.xxx
Xxxxxxx
X. Xxxxx
State
Bar No. 00786924
xxx.xxxxx@xxxxxxxxxx.xxx
Xxxxxxxxxxx
X. Xxxxxxxx
State
Bar No. 00795077
xxxxx.xxxxxxxx@xxxxxxxxxx.xxx
XXXXX
XXXXX L.L.P.
200
0 Xxxx Xxxxxx
Xxxxxx,
Xxxxx 00000-0000
(0
00) 000-0000 (Telephone)
(0
00) 000-0000 (Facsimile)
ATTORNEYS
FOR ADVANCED
NEUROMODULATION
SYSTEMS, INC.
|
_____________________________
Xxxxxxx
X. Xxxx
Xxxx
X. Xxxx
XXXXXX,
XXXXX, XXXXXX &
WHITE,
LLP
1299
Pennsylvania Avenue, N. W.
Washington,
DC 00000
(000)
000-0000 (Telephone)
(202)
0 00-00 00 (Facsimile)
ATTORNEYS
FOR ADVANCED BIONICS
CORPORATION
_____________________________
Xxxx
X. Xxxx
Texas
Bar No. 0079 0000
Xxxxx
X. Xxxxxxxx
Xxxxx
Bar No. 24027823
JENKENS
&
XXXXXXXXX
A
Professional Corporation
0000
Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxx 00000-0000
(00
0) 000-0000 (Telephone)
(0
00) 000-0000 (Facsimile)
ATTORNEYS
FOR XXXXXXXXXXX XXXX
XXXXX
|
EXHIBIT
H
ADR
Procedure Pursuant to Section 10.01
1.
Upon
the
expiration of the 60-day period for good faith negotiations pursuant to Section
10.01(b), 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 Arbitration, 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
I
Form
Language for Consent and Agreement to Be Bound (Section
3.01)
BSC
Affiliates:
For
Consent and Agreement to Be Bound to the CRM License Agreement:
Reference
is hereby made to the CRM License Agreement dated as of July 29, 2006, by and
between Boston Scientific Corporation and St. Jude Medical, Inc. (the "License
Agreement"). The undersigned Affiliate of Boston Scientific Corporation hereby
consents to, and agrees to be bound by, all of the terms and conditions of
the
License Agreement to which Boston Scientific Corporation is bound.
For
Consent and Agreement to Be Bound to the SCS License Agreement:
Reference
is hereby made to the SCS License Agreement dated as of July 29, 2006, by and
between Boston Scientific Corporation and St. Jude Medical, Inc. (the "License
Agreement"). The undersigned Affiliate of Boston Scientific Corporation hereby
consents to, and agrees to be bound by, all of the terms and conditions of
the
License Agreement to which Boston Scientific Corporation is bound.
St.
Jude Affiliates:
For
Consent and Agreement to Be Bound to the CRM License Agreement:
Reference
is hereby made to the CRM License Agreement dated as of July 29, 2006, by and
between Boston Scientific Corporation and St. Jude Medical, Inc. (the "License
Agreement"). The undersigned Affiliate of St. Jude Medical, Inc. hereby consents
to, and agrees to be bound by, all of the terms and conditions of the License
Agreement to which St. Jude Medical, Inc. is bound.
For
Consent and Agreement to Be Bound to the SCS License Agreement:
Reference
is hereby made to the SCS License Agreement dated as of July 29, 2006, by and
between Boston Scientific Corporation and St. Jude Medical, Inc. (the "License
Agreement"). The undersigned Affiliate of St. Jude Medical, Inc. hereby consents
to, and agrees to be bound by, all of the terms and conditions of the License
Agreement to which St. Jude Medical, Inc. is bound.
