exv10w11






Exhibit 10.11




AGREEMENT TO TERMINATE

THE LICENSE AND COOPERATION AGREEMENT

WITH RESPECT TO NEUROBIOLOGICAL TECHNOLOGIES, INC.




     This Agreement to terminate the License and Cooperation Agreement with respect to
Neurobiological Technologies, Inc. (“NTI Termination Agreement”) is effective as of July 31, 2009
(“Effective Date”), between Merz + Co. GmbH & Co. (“Merz”) and Neurobiological Technologies, Inc.
(“NTI”);



     Whereas Merz, NTI and Children’s Medical Center Corporation (“CMCC”) are parties to that
certain License and Cooperation Agreement dated April 16, 1998 (the “Agreement”);



     Whereas, pursuant to the Agreement, CMCC and NTI have each granted to Merz certain rights and
licenses relating to Products (as defined in the Agreement), including without limitation products
containing memantine for certain indications;



     Whereas the Agreement contemplates that, under certain circumstances, CMCC and Merz may wish
to continue their relationship, pursuant to the applicable terms and conditions, independent of
NTI’s involvement; and



     Whereas, NTI and Merz have agreed that it is in the mutual best interest of the parties to
have the Agreement terminated with respect to NTI, on the terms and conditions set forth in this
NTI Termination Agreement;



     Now, therefore, in consideration of the promises and the mutual covenants set forth herein,
NTI and Merz agree as follows:



     1. As of the Effective Date, the Agreement shall be, and is hereby, terminated with respect to
NTI. In accordance with its terms, the Agreement will continue in full force and effect as between
Merz and CMCC to the extent the terms and conditions of the Agreement apply to the rights and
obligations flowing between Merz and CMCC.



     2. Each of NTI and Merz agrees that all of CMCC’s current rights with respect to Merz under
the Agreement are preserved and that this NTI Termination Agreement shall impose no additional
obligations (financial or otherwise) upon CMCC. Each of NTI and CMCC agree that this NTI
Termination Agreement shall impose no additional obligations (financial or otherwise) upon Merz
with respect to CMCC and that the rights and licenses granted to Merz pursuant to the Agreement
with respect to NTI’s Confidential Information shall survive this Termination Agreement and
continue in full force and effect.



 









 





     3. Within 10 Business Days following the receipt of CMCC’s agreement and consent below, Merz
shall pay to NTI US$4,900,000.00, by wire transfer of immediately available funds to an account
designated by NTI in writing



     4. NTI and Merz acknowledge and agree that payment of the foregoing US$4,900,000.00 shall
satisfy in full all of Merz’s financial obligations to NTI under the Agreement, notwithstanding
anything in the Agreement to the contrary.



     5. NTI, on behalf of itself, its attorneys, administrators, successors, heirs and assigns,
hereby releases and forever discharges Merz, its current and former directors, officers,
principals, employees, attorneys, agents, shareholders, predecessors, successors, assigns, parent
companies, subsidiaries, divisions and Affiliates (as defined in the Agreement), from all claims,
demands, assessments, agreements, actions, suits, causes of action, damages, injunctions,
restraints and liabilities, of whatever kind or nature, in law, equity or otherwise, whether now
known or unknown or which have ever existed or that may now exist, which NTI has, has had or may
have against any one or more of them arising out of, or related to the Agreement, provided,
however, that nothing herein shall constitute a release of any obligations of Merz under this NTI
Termination Agreement or a release of claims against Merz unrelated to the Agreement.



     6. Merz, on behalf of itself, its attorneys, administrators, successors, heirs and assigns,
hereby releases and forever discharges NTI, its current and former directors, officers, principals,
employees, attorneys, agents, shareholders, predecessors, successors, assigns, parent companies,
subsidiaries, divisions and Affiliates (as defined in the Agreement), from all claims, demands,
assessments, agreements, actions, suits, causes of action, damages, injunctions, restraints and
liabilities, of whatever kind or nature, in law, equity or otherwise, whether now known or unknown
or which have ever existed or that may now exist, which Merz has, has had or may have against any
one or more of them arising out of, or related to the Agreement, provided, however, that nothing
herein shall constitute a release of any obligations of NTI under this NTI Termination Agreement or
a release of claims against NTI unrelated to the Agreement.



     7. This NTI Termination Agreement, and any disputes arising out of or in connection herewith,
shall be governed by and construed in accordance with the laws of the State of New York, excluding
its rules governing conflicts of laws.



     8. This NTI Termination Agreement is the entire agreement of the parties and supersedes any
prior agreements between them with respect to the termination of the Agreement.


IN WITNESS WHEREOF, the parties have cause their duly authorized representatives to execute this
NTI Termination Agreement.



Merz Pharmaceuticals GmbH




	 	 	 	 	 
	Date:

	 	06 August 2009	 	 






 









 






	 	 	 	 	 
	By:

	 	/s/ Dr. Martin Zugel
 

	 	 
	 
	 	 	 	 
	Name: 

	 	Dr. Martin Zugel	 	 
	 
	 	 	 	 
	Title:

	 	CEO	 	 
	 
	 	 	 	 
	Merz Pharmaceuticals GmbH

	 
	 	 	 	 
	Date:

	 	06 August 2009	 	 
	 
	 	 	 	 
	By:

	 	/s/ Patrick M. Jochum
 

	 	 
	 
	 	 	 	 
	Name:

	 	Patrick M. Jochum	 	 
	 
	 	 	 	 
	Title:

	 	Chief Litigation Counsel	 	 
	 
	 	 	 	 
	Neurobiological Technologies, Inc.

	 
	 	 	 	 
	Date:

	 	Aug. 7, 2009	 	 
	 
	 	 	 	 
	By:

	 	/s/ Matthew M. Loar
 

	 	 
	 
	 	 	 	 
	Name:

	 	Matthew M. Loar	 	 
	 
	 	 	 	 
	Title:

	 	Chief Financial Officer	 	 
	 
	 	 	 	 




AGREEMENT AND CONSENT OF CHILDREN’S MEDICAL CENTER CORPORATION



Subject to Section 2, Children’s Medical Center Corporation agrees to this amendment and
modification of the Agreement to terminate the Agreement with respect to NTI.



Children’s Medical Center Corporation.




	 	 	 	 	 
	Date:

	 	August 7, 2009	 	 
	 
	 	 	 	 
	By:

	 	/s/ Erik Halvorsen
 

	 	 
	 
	 	 	 	 
	Name:

	 	Erik Halvorsen	 	 
	 
	 	 	 	 
	Title:

	 	Director Technology & Business Development