LICENSE AND COOPERATION AGREEMENT

EXHIBIT 10.1

THE SYMBOL ‘*’ IS USED THROUGHOUT THIS EXHIBIT TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.

LICENSE AND COOPERATION AGREEMENT

This License and Cooperation Agreement (the “Agreement”) is made and is effective as of this date of April 16, 1998 (“Effective Date”), between

Merz + Co. GmbH & Co., a company organized under the laws of Germany, with its principal place of business at Eckenheimer Landstrase 100-104, 60318 Frankfurt a. M., Germany (“Merz”),

and

Neurobiological Technologies Inc., a company organized under the laws of the State of Delaware, U.S.A., with its principal place of business at 1387 Marina Way South, Richmond, CA 94804, U.S.A., (“NTI”),

and

Children’s Medical Center Corporation, a non-profit organization organized under the laws of the State of Massachusetts with its principal place of business at 300 Longwood Avenue, Boston, Massachusetts, U.S.A., (“CMCC”),

in reference to the following facts:

Now, therefore, in consideration of the promises and the mutual covenants contained herein, the parties agree as follows:

Article 1—Definitions

1.1 “CMCC Indications” shall mean the use of the Product within the scope of the CMCC Patents.

1.2 “CMCC Patents” shall mean all of the following intellectual property rights:

(i) The United States and foreign patents and/or patent applications listed in Exhibit A hereto, including any patents or patent applications, divisionals and continuations thereof;

(ii) The United States and foreign patents issued from the applications listed in Exhibit A hereto and from divisionals and continuations of those applications;

(iii) Claims of United States and foreign continuation-in-part applications, and resulting patents, which relate to subject matter specifically described in the United States and foreign patent applications described in Exhibit A hereto;

(iv) Claims of all after filed foreign patent applications, and of the resulting patents, which relate to subject matter specifically described in the United States patent and/or patent applications described in subparagraphs (i), (ii) or (iii) of this Article 1.2; and

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(v) Any reissues, divisionals, amendments or extensions of the United States or foreign patents described in subparagraphs (i), (ii), (iii) or (iv) of this Article 1.2.

It is further understood that certain patents listed in Exhibit A hereto related to nitrosylating compositions, including nitrosomemantine, are not included in the CMCC Patents.

1.3 “Confidential Information” shall mean and include any and all data and information not in the public domain, including know-how and trade secrets relating to, or contained or embodied in the products, technology, services, business, finances, or affairs of any party. Confidential Information may be communicated orally, visually, in writing or in any other recorded or tangible form. Subject to the provisions set forth in Article 12.1 with respect to CMCC, all data and information hereunder will be considered to be Confidential Information (i) if the disclosing party has marked them as such, (ii) if the disclosing party has, orally or in writing, advised the receiving party of their confidential nature, or (iii) if, due to their character or nature, a reasonable person in a like position and under like circumstances would treat them as confidential.

1.4 “Compound” shall mean any raw material necessary for the manufacturing of the Products.

1.5 “First Commercial Sale” shall mean the date on which Merz first sells bulk Memantine, Products, or finished Products to a Marketing Partner or to any other Person for any of the Indications governed by this Agreement in a particular jurisdiction or receives Royalty Income from any Marketing Partner with respect to the sale of the Products in a particular jurisdiction.

1.6 “Indication” shall mean the use of the Product for potential diagnosis and treatment of diseases and conditions in human beings, except for ophthalmologic diseases.

1.7 “Intellectual Property Rights” shall mean and include all patents, copyrights, trademarks, trade names, or any other proprietary rights which the parties may own, adopt, use or register and which relate to, are embodied in, or are associated with any of the Products and/or any applications or registrations therefor.

1.8 “Marketing Partner(s)” shall mean any other Person with whom Merz enters into an agreement for the development, manufacture, marketing and/or distribution of the Products for any of the CMCC Indications and/or the Merz Indication.

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1.9 “Merz Indication” shall mean the use of the Product for potential treatment of dementia relating to Alzheimer’s disease.

1.10 “Merz Patents” shall mean the patent rights listed in Exhibit B hereto.

1.11 “Person” shall mean and include any individual, corporation, trust, estate, partnership, joint venture, company, association, governmental bureau or agency, or other entity regardless of its type or nature.

1.12 “Product(s)” shall mean (i) Memantine for the Indications neuropathic pain, AIDS related dementia and any other Indications developed or patented by CMCC and/or NTI, or licensed to CMCC and/or NTI, (ii) any other adamantan derivative developed and/or patented by CMCC and/or NTI and/or licensed to CMCC and/or NTI for the Indication neuropathic pain, AIDS related dementia and/or other neurological/neuropsychiatric Indications, (iii) any combination product which includes Memantine developed or patented by CMCC and/or NTI and/or licensed to CMCC and/or NTI, and (iv) Memantine for the Indication of dementia relating to Alzheimer’s disease, as developed by the parties heretofore and in the future.

1.13 “Representative” shall mean all partners, shareholders, officers, directors and employees of a party to this Agreement.

1.14 “Royalty Income” shall mean any royalty income derived from any license, development and/or marketing agreement for Products between Merz and any Marketing Partner as contemplated in this Agreement; provided, however, that “Royalty Income” shall not include any revenues from the supply and sale of Compound to any such Marketing Partner as set forth in Article 9 hereof, and shall not include any down-payments, lump-sum payments and/or milestone payments as specified in Article 8.5 hereof.

1.15 “Territory” shall mean the worldwide territory, unless otherwise expressly specified in this Agreement.

1.16 “Trademark” shall mean the designs, logos, marks, names and service marks used for the Product.

Article 2—Representation and Warranties

Each party represents and warrants:

2.1 That it possesses full power and authority to enter into this Agreement and to perform the obligations hereunder;

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2.2 That its Representative whose signature is affixed hereto has been fully authorized to sign this Agreement;

2.3 That upon its Effective Date, the provisions of this Agreement shall constitute its legal, valid and binding obligations enforceable in accordance with these terms;

2.4 That it has no agreement with any other Person nor any other conflict that would preclude it from fully complying with its obligations under this Agreement and/or any applicable law or regulations, and that all required consents of any and all third parties, if any, to enter into this Agreement and perform the obligations hereunder, have been obtained prior to the execution of the Agreement; provided, however, that the parties hereby acknowledge that no party has obtained any approval by or from the United States Food and Drug Administration for the sale, distribution and/or use of the Products in the Territory prior to the execution of this Agreement. Each party shall, at its sole expense, defend and hold one or both of the other parties and its Representatives harmless from any liabilities or actions brought against one or both of the other parties, if and to the extent such liabilities or actions are based on a claim that (i) the first party breached an agreement with any other Person for the marketing and licensing of the Product, or (ii) the first party misappropriated any trade secret or improperly disclosed any Confidential Information of any other Person; and

2.5 Without limiting the generality of the foregoing, CMCC hereby specifically represents and warrants that as of the Effective Date, to the best knowledge of the CMCC Technology Transfer Office, it alone owns the CMCC Patents, and that the CMCC Patents (i) have been duly registered as described in Exhibit A hereof, and (ii) have not been abandoned. CMCC further warrants and represents that the CMCC Technology Transfer Office has no knowledge of any pending or threatened claims of infringement and has not received any notice of any claim of infringement from any third party regarding the use of Memantine or any adamantan derivatives.

Article 3—Purpose and Scope of Cooperation

3.1 The purpose of the cooperation among the parties is [the performance of clinical trials, securing of regulatory approval, and] the development and commercialization of Products within the Territory, including but not limited to the marketing and licensing of the parties’ respective Intellectual Property Rights for the manufacture, distribution, sale and use of the Products throughout the Territory in accordance with the terms and conditions of this Agreement. In furtherance of this purpose, Merz shall be responsible for identifying one or more suitable Marketing Partners for the Products in the Territory in accordance with Article 3.2.

3.2 The Parties hereby agree that one (1) suitable Marketing Partner for the Merz Indication and the CMCC Indications should be identified. The parties hereby expressly

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acknowledge that in view of the anticipated market share and the amount of the currently available pre-clinical and clinical data, the search for a suitable Marketing Partner will initially focus on a Marketing Partner for the development and marketing of Memantine for the Merz Indication; provided, however, that all reasonable efforts shall be made to find one (1) Marketing Partner for all Indications covered by this Agreement, in accordance with Article 10 hereof. If, despite Merz’ reasonable commercial efforts, it is not possible to find one (1) Marketing Partner for the development of all such Indications, commercially reasonable efforts shall be employed to cooperate with such Marketing Partner to identify one or more additional Marketing Partners for the development of Memantine for the other Indications, in accordance with Article 10 hereof.

3.3 The parties acknowledge that it is in their best interest to expeditiously pursue the marketing and licensing opportunities for the Products in the Territory as set forth in this Agreement. Merz and NTI will therefore commit sufficient personnel, efforts and resources to this cooperation project to achieve the objectives of this Agreement, as reasonably determined by Merz.

3.4 Subject to Articles 7.3 and 10.1 and notwithstanding Article 3.1 hereof, nothing in this Agreement shall be construed to impose on any one of the parties the obligation to (i) perform joint development work with respect to the Products or any derivatives of the Products; (ii) assist any of the other parties in obtaining financing and funding for its research and development work; or (iii) engage in any sales activities for the Products in the Territory other than the activities expressly set forth in this Agreement.

3.5 The relationship of the parties established by this Agreement is one of independent contractors, and nothing in this Agreement shall be construed as giving any one of the parties the power to direct or control the daily activities of any other party, to constitute the parties as principal and agent, employer and employee, or partners. Neither one of the parties shall have any right, power or authority to act on behalf of, or bind, any of the other parties, and neither one of the parties shall represent to any third party that it has such right, power or authority, except as contemplated herein.

Article 4—License Grant

4.1 Subject to the provisions of this Article 4.1 and Articles 4.4 and 4.5 hereof, CMCC hereby grants to and Merz hereby accepts from CMCC the exclusive and fully transferable and/or sublicenseable license to CMCC Patents, as listed in Exhibit A hereto, to develop, make, have made, use and market the Products in the Territory in accordance with the terms and conditions described in this Agreement. Subject to Article 10 hereof, Merz shall have the right, at its sole option, to further research and develop, or to conduct or have conducted further clinical studies, regarding Memantine for the CMCC Indications. Merz shall use its commercially reasonable efforts to require any Marketing Partner who manufactures Products as they pertain to the CMCC Indications for the sale

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in the United States of America to substantially manufacture such Products in the United States of America. Notwithstanding the exclusive license granted to Merz under this Article 4.1, Merz hereby acknowledges that CMCC has granted a license to Allergan to utilize certain of the CMCC Patents solely in connection with Indications for ophthalmologic diseases. The license granted hereunder shall not be construed to confer upon Merz by implication, estoppel, or otherwise any rights as to any technology not governed by CMCC Patents.

4.2 NTI hereby grants an exclusive and fully transferable or sublicenseable license to Merz, and Merz hereby accepts such license, to use all of NTI’s Confidential Information related to and/or required for the commercial exploitation of the Products in the Territory; provided, however, that such license shall not include any Confidential Information relating to the general business information and financial information of NTI.

4.3 Subject to the obligations set forth in Article 10.1 hereof, Merz shall have the right to engage NTI’s services to further research and develop and to conduct further clinical studies on Memantine for the CMCC Indications on terms to be mutually agreed upon.

4.4 Notwithstanding anything herein to the contrary, CMCC shall retain a royalty-free, non-exclusive, irrevocable license to practice, and to sublicense other non-profit organizations to practice, the CMCC Patents it owns for non-commercial research purposes only. Merz shall not assert any claim of infringement of the Merz Patents against CMCC or any such non-profit organization, sublicensed by CMCC pursuant to this Article 4.4, provided that the CMCC Patents are utilized for non-commercial research purposes only.

4.5 Notwithstanding the provisions of Article 4.1 hereof, the license granted hereunder to Merz shall be subject to the rights of the United States government, if any, under Public Laws 96-517, 97-226, and 98-620, codified at 35 U.S.C. sec. 200-212 and regulations promulgated thereunder.

Article 5—Merz’ Responsibilities and Obligations

5.1 Merz shall have the exclusive right and the obligation to use commercially reasonable efforts to promote and market the Products for the Merz Indication as well as the CMCC Indications in the Territory and to identify one or more Marketing Partners for the development of these Indications in accordance with Articles 3.2 and 10.3 hereof.

5.2 The parties hereby expressly acknowledge that Merz has entered into marketing arrangements, license agreements and/or has business plans for the marketing, licensing and commercial exploitation of the Products for the Merz Indication in (i) Austria, Germany, Switzerland, (ii) Japan, and (iii) other countries as listed in Exhibit F and that the rights conferred upon Merz’ licensees under those marketing and/or license

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agreements shall remain unaffected by this Agreement. Notwithstanding the inclusion of the foregoing countries in the Territory and subject to Exhibit C, Merz shall have no obligation whatsoever hereunder to NTI and/or CMCC, including the sharing of Royalty Income, down-payments, lump-sum payments and/or milestone payments, with respect to any such marketing, licensing or the commercial exploitation of Products for the Merz Indication, in any of the foregoing countries.

5.3 Merz shall have the right to refer to this cooperation in connection with its negotiation of development, licensing and marketing agreements with Marketing Partners for Products for the Merz Indication and/or the CMCC Indications as provided for in this Agreement.

5.4 Merz hereby acknowledges that CMCC has licensed certain of the CMCC Patents to Allergan for use solely in the ophthalmologic field of use. It is the intent of CMCC that each of Merz and Allergan focus its commercial development efforts within its respective field of use. Merz has requested that CMCC provide Merz with the name, address, and description of the field of use of Allergan and the name and telephone number of the principal contact of Allergan within thirty (30) days of the Effective Date. Merz and CMCC agree that the provisions of Exhibit E hereto shall govern the interaction and communication between Merz and Allergan. To ensure that both Merz and Allergan are aware of these reciprocal provisions, CMCC shall make a copy of this Article 5.4 and Exhibit E available to Allergan, and CMCC shall provide copies of the corresponding provisions of its agreement with Allergan available to Merz, within twenty (20) days after the Effective Date.

Article 6—CMCC’s Responsibilities and Obligations

6.1 CMCC hereby authorizes NTI to provide Merz with any CMCC Confidential Information pertaining to and relevant for the commercial exploitation of the patent rights in Memantine for the CMCC Indications as previously provided by CMCC to NTI.

6.2 CMCC shall not, through its Technology Transfer Office or Public Affairs Office, or in any other official communication, without the prior written consent of Merz, (i) provide any information to any other Person regarding the capabilities, performance or use of the Products for any of the CMCC Indications; or (ii) make any representations to any other Person that Merz and/or the Marketing Partner has endorsed, warranted or guaranteed the Products for any of the CMCC Indications.

Article 7—NTI’s Responsibilities and Obligations

7.1 Subject to the provisions of this Agreement, NTI shall use commercially reasonable efforts, consistent with its financial and technical resources, to actively support Merz in the marketing of the Products in the Territory to Marketing Partners and

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licensees, including but not limited to (i) evaluating marketing and licensing opportunities; (ii) initiating contacts with potential Marketing Partners, and (iii) upon Merz’ request, assisting in the negotiation of marketing and licensing agreements.

7.2 NTI shall provide to Merz within thirty (30) days of the Effective Date a data package with all Confidential Information pertaining to and relevant for the commercial exploitation of the CMCC Patents in Memantine and/or any other adamantan derivatives for the CMCC Indications developed by NTI, including any Confidential Information heretofore or hereafter provided by CMCC to NTI pertaining to the CMCC Indications. NTI shall further provide Merz with periodic updates relating to any further research and development and/or improvement regarding the Products pursuant to Article 10 hereof. NTI hereby agrees that Merz shall have the right of access to, review and use of any and all Confidential Information of NTI relevant in the context of any required regulatory product approval (e.g., NDAs) provided, however, that NTI shall not be required to disclose any of its financial data to Merz.

7.3 NTI shall, upon Merz’ request, provide Merz with reasonable assistance in connection with any applications for any required regulatory approvals for the Products in any country within the Territory.

Article 8—License Fees and Profit Sharing

8.1 In consideration for the rights licensed by CMCC to Merz under Article 4.1 of this Agreement Merz shall pay to CMCC US $ [*] (US Dollars [*] ) as a one-time lump-sum license fee. The payment shall be due within five (5) business days of the signing of this Agreement by the last party and shall be made via wire transfer to the bank account of CMCC with [*] (ABA # [*] ), Account No. [*] , Account Name: [*] ; Contact: [*] (Tel. No. [*] ).

8.2 Merz shall also pay US $2,100,000 (US Dollars Two Million One Hundred Thousand) to NTI for the license granted to Merz relating to NTI’s Confidential Information pursuant to Article 4.2 and the waiver of its licensee rights under the Exclusive License Agreement, provided, however, that any such payment shall be conditioned upon NTI delivering to Merz a board resolution approving this Agreement. The payment shall be due within five (5) business days of the execution of this Agreement by the last party and shall be made via wire transfer to the bank account of NTI with [*] (ABA # [*] ), Account No. [*] .

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8.3 Merz acknowledges and agrees that the payments payable to CMCC and NTI under Article 8.1 and 8.2 respectively are in addition to any share of Royalty Income payable to CMCC and NTI by Merz hereunder.

8.4 In consideration for the rights conveyed and the obligations undertaken hereunder by each one of the parties, each party shall be entitled to a percentage share in the Royalty Income derived from the marketing and licensing of Products for the Indications governed by this Agreement as set forth in Exhibit C attached hereto. Payment of the percentage share of Royalty Income, if any, due to CMCC and NTI shall be paid by Merz to CMCC and NTI respectively within thirty (30) days of the end of each calendar quarter by wire transfer to the bank accounts of CMCC and NTI respectively.

8.5 Merz shall pay to CMCC an amount equal to [*] % and to NTI an amount equal to [*] %, the aggregate of which shall not exceed [*] ( [*] )%, of all down-payments, lump-sum payments and milestone payments, other than Royalty Income, received by Merz pursuant to any licensing, development and marketing agreement entered into with any Marketing Partner for Products pursuant to this Agreement. The amounts payable by Merz to CMCC and NTI under this Article 8.5 shall be paid within thirty (30) days after the end of the calendar quarter in which such payments were received by Merz.

8.6 All amounts payable to CMCC and NTI shall be paid in United States Dollars (US$) and shall be paid to the accounts specified in Article 8.1 and 8.2 respectively. For purposes of determining the amounts payable with respect to any Royalty Income or any other amount payable by Merz to NTI and CMCC under Article 8.5, which Merz has not received in United States Dollars, the currency conversion shall be made by using the average of the exchange rate between the United States Dollars and the currency in which Royalty Income or other income under Article 8.5 was received by Merz prevailing at Deutsche Bank during the last calendar quarter prior to the due date of the payment.

8.7 In the event that any amount payable to CMCC and/or NTI hereunder is not paid on the due date as provided herein, such overdue amount shall bear interest at the rate of [*] ( [*] )% per year or the maximum amount permitted by law, whichever is less, until such time such overdue amount has been paid.

8.8 Merz shall furnish CMCC and NTI with a report on a quarterly basis, including the information listed in Exhibit D hereof. Each report shall be submitted to CMCC and NTI along with the amounts payable, if any, to CMCC and NTI respectively under Article 8.4. Merz shall keep full, true and accurate books of account in accordance with generally accepted accounting principles to enable CMCC and NTI to ascertain the payments made by Merz to NTI and CMCC under this Agreement. Said books of account shall be kept at

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Merz’ principal place of business for a period of at least five (5) years following the end of the calendar year to which they pertain. CMCC and NTI shall have the right, at their own expense, to audit such books of account to the extent they pertain to payments made pursuant to this Agreement and to the extent necessary to verify the reports provided by Merz to CMCC and NTI hereunder.

Article 9—Supply of Compound, Bulk Memantine and Finished Products

9.1 In the event that Merz supplies and sells the Compound, directly or indirectly, to one or more Marketing Partners for use in the manufacturing of any of the Products for any or all Indications governed by this Agreement, the parties hereby expressly acknowledge and agree that any and all revenues derived by Merz from the sale of such Compound shall be solely for the benefit of Merz, and Merz shall not be obligated to share any such revenues with any of the other parties to this Agreement; provided, however, that, subject to the provisions of Article 5.2 hereof, if the price for the Compound specified in Merz’ supply agreement with such Marketing Partner exceeds [*] existing at the time of the execution of this Agreement, Merz shall pay to CMCC and NTI their respective share of the excess revenue as defined hereafter in accordance with the allocation of Royalty Income as set forth in Article 8.4 and Exhibit C of this Agreement. For purposes of this Article “excess revenues” shall mean the difference between [*] . Merz shall (i) furnish CMCC and NTI with a certificate executed by an independent certified public accountant as to the [*] and (ii) provide NTI and CMCC with reports of such sales of the Compound in accordance with the provisions of Exhibit D hereof.

9.2 Subject to Article 5.2 hereof, in the event that Merz directly or indirectly supplies and sells bulk Memantine products or finished Products to one or more Marketing Partners or any other third party for any or all Indications governed by this Agreement, the parties shall in good faith negotiate an allocation among Merz, NTI and CMCC of a percentage share of the sales price for such bulk Memantine products or finished Memantine products; provided, however, that the allocation of revenue set forth in Article 9.1 above regarding the sale and supply of Compound to Marketing Partners shall be taken into consideration. Merz shall provide NTI and CMCC with reports of all such sales of bulk Memantine products and/or finished Products in accordance with the provisions of Exhibit D hereof. If the parties fail to reach an agreement on the appropriate allocation of such revenues within a period of sixty (60) days after the date on which such negotiations commenced, any party shall be entitled to institute arbitration proceedings in accordance with Article 18 hereof solely for the purpose of determining the respective percentage share of the sales price of each of the parties.

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Article 10—Further Development and Research

10.1 NTI shall, at its own risk and expense, initiate Phase IIb clinical studies for neuropathic pain. The Phase IIb clinical studies for neuropathic pain shall be initiated by December 31, 1998. NTI shall use commercially reasonable efforts to complete such studies for neuropathic pain within approximately fifteen (15) months after the commencement of the studies; provided, however, that any improvement of any Product developed as a result of such Phase IIb clinical studies for neuropathic pain pursuant to this Article 10.1 shall also be governed by the rights and obligations set forth in this Agreement. In addition, NTI shall at is own risk and expense, initiate and conduct the clinical studies for AIDS related dementia in accordance with the requirements of the AIDS Clinical Trial Group (“ACTG”); provided, however, that any improvement of any Product developed as a result of such clinical studies for AIDS related dementia pursuant to this Article 10.1 shall also be governed by the rights and obligations set forth in this Agreement. NTI shall inform Merz and CMCC on a regular basis about all such research and development work, including, but not limited to, Phase IIb clinical studies and ACTG studies, and Merz reserves the right to supervise any such further research and development as Merz reasonably deems necessary. Any submission that NTI proposes to make to the Food and Drug Administration with respect to all such research and development work, including, but not limited to, Phase IIb clinical studies and/or the ACTG studies shall be subject to the prior review, comment and approval by Merz. Merz hereby grants to NTI a limited, non-exclusive license to use the Merz Patents, and a limited, non-exclusive sublicense to use the CMCC Patents and any related CMCC Confidential Information licensed to Merz hereunder, if any for the sole and exclusive purpose of conducting such Phase IIb clinical studies and ACTG studies.

10.2 If NTI fails to initiate and conduct either the Phase IIb clinical studies for neuropathic pain and/or AIDS related dementia in accordance with the ACTG studies therefor, CMCC and Merz shall each have the right to terminate this Agreement with respect to NTI with immediate effect in accordance with Articles 17.2 and 17.6 hereof. Upon termination in accordance with this Article 10.2, NTI shall have no further rights under this Agreement; provided, however that Merz’ obligation to negotiate in good faith an allocation to NTI of a percentage share of any revenue derived by Merz from the commercialization and marketing of any Products or any derivatives thereof for any new Indication under, and limited to the circumstances set forth in Article 10.11 hereof, shall survive the termination of the Agreement. The relationship between Merz and CMCC shall remain unaffected by such termination, and the terms of this Agreement, to the extent they apply to CMCC and Merz, shall continue to govern the relationship between Merz and CMCC. Merz shall be entitled to retain NTI’s percentage share of the Royalty Income and any share of income under Article 8.5.

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10.3 In the event that (i) NTI does not initiate or conduct Phase IIb clinical studies for neuropathic pain and AIDS related dementia as set forth in Article 10.1 above; or (ii) NTI completes the Phase IIb clinical studies for neuropathic pain and AIDS related dementia in accordance with the ACTG studies therefor, and the results of such studies warrant further research and development work, including but not limited to Phase III clinical studies for the Indication neuropathic pain, as determined by Merz, Merz shall use its commercially reasonable efforts to cause a Marketing Partner to conduct further research and development of Memantine for the CMCC Indications. If the first Marketing Partner, who is willing to develop the Merz Indication, is not willing to conduct such further research and development of Memantine for the CMCC Indications, Merz shall use its commercially reasonable efforts to identify a second Marketing Partner for the further research and development of the CMCC Indications within [*] after concluding an agreement with the first Marketing Partner, and reach an agreement with such Marketing Partner as soon as practicable thereafter.

10.4 If Merz is unable to reach an agreement with any Marketing Partner within [*] ( [*] ) months for the CMCC Indications as set forth in Article 10.3 hereof, CMCC shall have the right to seek a Marketing Partner for the CMCC Indications within [*] ( [*] ) months. Merz will then use commercially reasonable efforts to enter into a sublicense with the Marketing Partner identified by CMCC.

10.5 If neither Merz nor CMCC is able to identify a Marketing Partner for the CMCC Indications as set forth in Articles 10.3 and 10.4 hereof, the Agreement may be terminated in accordance with Article 17 hereof by mutual agreement of CMCC and Merz. If this Agreement is terminated by mutual agreement of Merz and CMCC, Merz shall have no further rights in the CMCC Patents, and neither Merz nor NTI shall have any further obligations with respect to the CMCC Patents and/or the CMCC Indications. CMCC shall be free to conduct further research and development with respect to the CMCC Patents and the CMCC Indications. Upon termination of the Agreement in accordance with this Article 10.5, Merz shall have no further payment obligations of any Royalty Income, down-payments, milestone payments or lump sum payments to CMCC and/or NTI as set forth in Article 8 hereof, provided, however, that (i) nothing in this Article or in this Agreement shall be construed as to release any of the parties to this Agreement from any obligation, including payment obligations, that matured prior to the effective date of such termination, and (ii) Merz’ obligation to negotiate in good f