Indemnification by Licensee. Licensee will indemnify, defend and hold harmless Axsome, each of its Affiliates, and each of its and its Affiliates’ employees, officers, directors and agents (each, a “Axsome Indemnified Party”) from and against any and all liability, loss, damage, expense (including reasonable attorneys’ fees and expenses) and cost (collectively, a “Liability”) that the Axsome Indemnified Party may be required to pay to one or more Third Parties resulting from or arising out of:

Indemnification by Licensee. Licensee shall indemnify, defend and hold harmless Merck and its Affiliates, and each of its and their respective employees, officers, directors and agents (each, a “Merck Indemnified Party”) from and against any and all liability, loss, damage, cost, and expense (including reasonable attorneys” fees), subject to the limitations in Section 11.05 (collectively, a “Liability”) that a Merck Indemnified Party may incur, suffer or be required to pay resulting from or arising out of # the development, Manufacture, promotion, distribution, use, marketing, sale or other disposition of the and/or Licensed Product by Licensee, its Affiliates or sublicensees, # any breach by Licensee of any of its representations, warranties and covenants contained in Sections 10.01 and 10.03 herein, and # the negligence and/or willful misconduct of Licensee, its Affiliates or sublicensees. Notwithstanding the foregoing, Licensee shall have no obligation under this Agreement to indemnify, defend or hold harmless any Merck Indemnified Party with respect to any Liabilities that result from the gross negligence or willful misconduct of Merck, Merck Indemnified Party or any of their respective employees, officers, directors or agents or that result from Merck’s breach of its obligations under this Agreement.

Licensee Data. Licensee, at no cost to Axsome, shall provide Axsome with any and all data obtained from any of the research activities that were conducted, pursuant to either of [Sections 3.3.1 or 3.3.2]2], by, on behalf of or under the direction of Licensee or its Affiliates (“Licensee Data”). Licensee shall grant Axsome a right and license to use (including the right to provide access to and to license or sublicense to Third Parties, including Axsome’s Upstream Licensors) such Licensee Data in support of the Development for use or Commercialization of Licensed Products and to otherwise support the Commercialization of products containing the Licensed Compound for use outside the Territory. Licensee acknowledges that Axsome and its Upstream Licensors shall retain all right, but have no obligation, to conduct clinical trials, both outside and within the Territory, of any products containing any Licensed Compound for purposes of seeking Regulatory Approval of and Commercializing such products solely outside of the Territory, including seeking approval of additional indications for such products. Upon Licensee’s request, and solely to the extent necessary for Licensee to obtain Regulatory Approval of Licensed Products for use in such additional indications, Axsome shall provide Licensee access to and a right to use any data arising out of the aforementioned clinical trials conducted by or on behalf of Axsome.

Licensee Enforcement. In the event that either Licensee or Merck becomes aware of any alleged or threatened commercially material infringement in a country in the Territory of any issued patent within the Compound Patent Rights or Joint Patent Rights, it will notify the other Party in writing to that effect. Licensee shall have the first right (but not the obligation) to enforce any such Compound Patent Right or Joint Patent Right against any such infringer or alleged infringer, at its own expense, and control, and litigate and settle, such suit as set forth herein. Merck shall reasonably cooperate in any such suit at Licensee’s expense; and where necessary, Merck shall join in, or be named as a necessary party to, such suit. Licensee shall not enter into any settlement of any claim described in this Section 8.04(a) that, in the reasonable judgment of Merck would violate any law or regulation, admits to the invalidity or unenforceability of the Compound Patent Rights or Joint Patent Rights, incurs any financial liability on the part of Merck, requires an admission of liability, wrongdoing, or fault on the party of Merck, without Merck’s prior written consent (in each case, such consent not to be unreasonably withheld). Merck shall have the right, prior to commencement of the trial, suit or action brought by Licensee, to join any such suit or action, and in such event shall pay one-half of the costs of such suit or action.

Licensee shall, at its own expense, provide attorneys reasonably acceptable to Harvard to defend against any actions brought or filed against any Indemnitee hereunder with respect to the subject of indemnity contained herein, whether or not such actions are rightfully brought. Any Indemnitee seeking indemnification hereunder shall promptly notify Licensee of such Claim; provided further that any failure of or delay in such notification shall not affect Licensee’s indemnification obligation unless and to the extent such failure or delay is materially prejudicial to Licensee. The Indemnitees shall provide Licensee, at Licensee’s expense, with reasonable assistance and full information with respect to such Claim and give Licensee sole control of the defense of any Claim. Neither Licensee nor Harvard shall settle any Claim without the prior written consent of the other, which consent shall not be unreasonably withheld.

Section # Indemnification. Licensee acknowledges that Licensor is entering into this Agreement as an accommodation to Licensee, and accordingly Licensee shall indemnify Licensor from any damages, losses or claims arising from performance or non-performance of this Agreement except for those resulting from Licensor’s gross negligence or willful misconduct.

Record Keeping by Licensee. Licensee and its Affiliates shall keep complete and accurate records in sufficient detail to enable the royalties payable hereunder to be determined. Upon ​ days prior written notice from Merck, Licensee shall permit an independent certified public accounting firm of nationally recognized standing selected by Merck and reasonably acceptable to Licensee, at Merck’s expense, to have access during normal business hours to examine the pertinent books and records of Licensee, its Affiliates and/or sublicensees as may be reasonably necessary to verify the accuracy of the royalty reports hereunder. ​. Licensee may designate competitively sensitive information that such auditor may not disclose to Merck, provided, however, that such designation shall not encompass the auditor’s conclusions. The accounting firm shall disclose to Merck only whether the royalty reports are correct or incorrect and the specific details concerning any discrepancies. No other information shall be provided to Merck. All such accounting firms shall sign a confidentiality agreement (in form and substance reasonably acceptable to Licensee) as to any of Licensee’s or its Affiliate‘s confidential information that such accounting firms are provided, or to which they have access, while conducting any audit pursuant to this [Section 7.05(a)].

Licensee Right to Negotiate. In the event Licensee or a Related Party obtains any license(s) or immunity from suit under the intellectual property of a Third Party in connection with the manufacture, distribution, use, sale, offer for sale or import of a Licensed Product, and if the total royalty burden exceeds ​ of annual Net Sales, then for every ​ above ​, Licensee will be entitled to reduce the royalty payable to Merck by ​ up to a maximum of ​ in total. In any event, Merck’s applicable royalty will never be reduced by more that ​.

INDEMNIFICATION. IN ADDITION TO AMOUNTS PAYABLE AS ELSEWHERE PROVIDED IN THIS SECTION 2.18, THE BORROWERS HEREBY AGREE TO PROTECT, INDEMNIFY, PAY AND SAVE THE LENDERS AND THE AGENT HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, DAMAGES, LOSSES, COSTS, CHARGES AND EXPENSES (INCLUDING ANY REASONABLE ATTORNEYS’ FEES) WHICH ANY LENDER OR THE AGENT MAY INCUR OR BE SUBJECT TO AS A CONSEQUENCE, DIRECT OR INDIRECT, OF THE ISSUANCE OF ANY LETTER OF CREDIT OR THE PROVISION OF ANY CREDIT SUPPORT OR ENHANCEMENT IN CONNECTION THEREWITH UNLESS RESULTING FROM SUCH LENDER’S OR THE AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THE AGREEMENT IN THIS SECTION 2.18(H)(I) SHALL SURVIVE PAYMENT OF ALL OBLIGATIONS AND THE TERMINATION OF THIS AGREEMENT.

Indemnification. Each Borrower shall pay, indemnify, defend, and hold the Agent-Related Persons, the Lender-Related Persons, the Issuing Bank, and each Participant (each, an “Indemnified Person”) harmless (to the fullest extent permitted by law) from and against any and all claims, demands, suits, actions, investigations, proceedings, liabilities, fines, costs, penalties, and damages, and all reasonable and documented out-of-pocket fees and disbursements of attorneys, experts, or consultants and all other reasonable and documented out-of-pocket costs and expenses actually incurred in connection therewith or in connection with the enforcement of this indemnification (as and when they are incurred and irrespective of whether suit is brought) (which in the case of legal fees shall be limited to the attorneys’ fees of one outside counsel to all Indemnified Persons taken as a whole and one local counsel to all Indemnified Persons taken as a whole in each relevant jurisdiction (which may include a single counsel acting in multiple jurisdictions) (and, solely in the case of an actual or perceived conflict of interest where the Indemnified Person affected by such conflict of interest has informed Parent in writing of such conflict and thereafter retains its own counsel, one additional counsel in each relevant jurisdiction to each group of Indemnified Persons similarly situated taken as a whole, and, in all cases excluding, for the avoidance of doubt, the allocated costs of internal counsel)), at any time asserted against, imposed upon, or incurred by any of them # in connection with or as a result of or related to the execution and delivery (provided, that Borrowers shall not be liable for costs and expenses (including attorneys’ fees) of any Lender (other than Wells Fargo) incurred in advising, structuring, drafting, reviewing, administering or syndicating the Loan Documents), enforcement, performance, or administration (including any restructuring or workout with respect hereto) of this Agreement, any of the other Loan Documents, or the transactions contemplated hereby or thereby or the monitoring of Parent’s and its Restricted Subsidiaries’ compliance with the terms of the Loan Documents (provided, that the indemnification in this [clause (a)] shall not extend to # disputes solely between or among the Lenders that do not involve any acts or omissions of any Loan Party, or # disputes solely between or among the Lenders and their respective Affiliates that do not involve any acts or omissions of any Loan Party; it being understood and agreed that the indemnification in this [clause (a)] shall extend to Agent (but not the Lenders unless the dispute involves an act or omission of a Loan Party) relative to disputes between or among Agent, on the one hand, and one or more Lenders, or one or more of their Affiliates, on the other hand, or # any claims for Taxes, which shall be governed by [Section 16], other than Taxes which relate to primarily non-Tax claims), # with respect to any actual or prospective investigation, litigation, or proceeding related to this Agreement, any other Loan Document, the making of any Loans or issuance of any Letters of Credit hereunder, or the use of the proceeds of the Loans or the Letters of Credit provided hereunder (irrespective of whether any Indemnified Person is a party thereto), or any act, omission, event, or circumstance in any manner related thereto, and # in connection with or arising out of any presence or release of Hazardous Materials at, on, under, to or from any assets or properties owned, leased or operated by any Loan Party or any of its Restricted Subsidiaries or any Environmental Actions, Environmental Liabilities or Remedial Actions related in any way to any such assets or properties of any Loan Party or any of its Restricted Subsidiaries (each and all of the foregoing, the “Indemnified Liabilities”). The foregoing to the contrary notwithstanding, no Borrower shall have any obligation to any Indemnified Person under this [Section 10.3] with respect to any Indemnified Liability that a court of competent jurisdiction finally determines to have resulted from the gross negligence, bad faith, or willful misconduct of, or a material breach of its obligations under any Loan Document by, such Indemnified Person or its officers, directors, employees, attorneys, or agents. This provision shall survive the termination of this Agreement and the repayment in full of the Obligations. If any Indemnified Person makes any payment to any other Indemnified Person with respect to an Indemnified Liability as to which Borrowers were required to indemnify the Indemnified Person receiving such payment, the Indemnified Person making such payment is entitled to be indemnified and reimbursed by Borrowers with respect thereto. WITHOUT LIMITATION, THE FOREGOING INDEMNITY SHALL APPLY TO EACH INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED LIABILITIES WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF ANY NEGLIGENT ACT OR OMISSION OF SUCH INDEMNIFIED PERSON OR OF ANY OTHER PERSON.