informed in a
timely manner of the status of, and of their respective activities regarding,
any litigation or settlement thereof concerning PRODUCT, THERANOSTIC PRODUCT or
DIAGNOSTIC PRODUCT in the TERRITORY; provided, however, that no settlement or
consent judgment or other voluntary final disposition of any suit defended or
action brought by a MERCK KGAA pursuant to this Section 12 may be entered into
without the consent of the GENAISSANCE (such consent not to be unreasonably
withheld or delayed). To the extent that either PARTY initiates an action
pursuant to Section 12.7, if the PARTIES reasonably fail to agree upon the terms
of any such settlement, consent judgment or other voluntary final disposition,
the PARTY wishing to continue any litigation shall solely bear the monetary loss
or monetary benefit from the future outcome of such litigation and shall
guarantee to the other PARTY that wished to make such settlement that such other
PARTY will obtain, either from the proceeds of such litigation (if any) or from
the PARTY an amount at least as large as it would have obtained from such
settlement had it been entered.
13.
RIGHT OF FIRST NEGOTIATION
13.1
UNTIL THE FIRST COMMERCIAL SALE, BY GENAISSANCE OR A SUB-LICENSEE OF
GENAISSANCE, OF THE FIRST PRODUCT OR THE TERMINATION OF THIS AGREEMENT, WHATEVER
COMES EARLIER, MERCK KGAA SHALL NOTIFY GENAISSANCE PRIOR TO THE COMMENCEMENT OF
HUMAN CLINICAL TRIALS IF IT WANTS TO DEVELOP OR COMMERCIALLY EXPLOIT, DIRECTLY
OR INDIRECTLY THROUGH A THIRD PARTY, ANY PHARMACEUTICAL PRODUCT CONTAINING A
DERIVATIVE OR ANY DUAL SSRI AND 5-HT1A PARTIAL AGONIST OR ANY SSRI OR ANY 5-HT1A
PARTIAL AGONIST FOR THE TREATMENT OF ANY INDICATION LISTED IN SCHEDULE 4 ("MERCK
COMPOUND").
THEREAFTER, GENAISSANCE WILL HAVE THE FIRST RIGHT FOR A PERIOD OF
[***] AFTER SUCH NOTIFICATION TO NEGOTIATE A DEVELOPMENT AND COMMERCIALIZATION
AGREEMENT FOR SUCH COMPOUND OR PRODUCT.
MERCK KGAA MAY NOT ENTER INTO AN
AGREEMENT WITH ANY THIRD PARTY IN RESPECT OF SUCH MERCK COMPOUND BASED UPON
INFORMATION MATERIALLY DIFFERENT THAN
48
THAT GIVEN GENAISSANCE WITH RESPECT TO SUCH MERCK COMPOUND, WITHOUT PROVIDING
GENAISSANCE WITH SUCH DIFFERENT INFORMATION AND GRANTING GENAISSANCE AN
ADDITIONAL [***] AFTER PROVIDING SUCH INFORMATION TO NEGOTIATE A DEVELOPMENT AND
COMMERCIALIZATION AGREEMENT FOR SUCH MERCK COMPOUND. AS USED IN THIS SECTION
13.2 AND IN SECTION 13.2, "SSRI" SHALL MEAN A SELECTIVE SEROTONIN REUPTAKE
INHIBITOR, WHICH IS A SUBSTANCE THAT ACTS AT A SYNAPSE BY INHIBITING OR
PREVENTING THE REUPTAKE OF SEROTONIN (5-HYDROXY-TRYPTAMINE), "5HT1A PARTIAL
AGONIST" SHALL MEAN A SUBSTANCE THAT ELICITS A LOWER MAXIMAL RESPONSE OF THE
5HT1A RECEPTOR, WHEN COMPARED TO AN EQUAL CONCENTRATION OF SEROTONIN, AND "DUAL
SSRI/5-HT1A PARTIAL AGONIST" SHALL MEAN A SUBSTANCE THAT COMBINES THE PROPERTIES
OF AN SSRI AND A 5-HT1A PARTIAL AGONIST.
FOR THE AVOIDANCE OF DOUBT, THIS
SECTION 13.1 IS NOT APPLICABLE TO SARIZOTAN (5HT1A AND DOPAMINE D4 AGONIST) FOR
THE INDICATION OF PARKINSON'S DISEASE AND EMD 281014 (5HT2A ANTAGONIST) AND ITS
DERIVATIVES CLAIMED IN PATENT NUMBER EP1198453 FOR ALL INDICATIONS.
13.2
Until the first commercial sale, by GENAISSANCE or a