Third Party Infringement. Except as otherwise provided in this Section 5.5, Licensee will have the first right, but not the obligation, to institute litigation or take other steps to remedy Third Party Infringement, and any such litigation or steps will be at Licensee’s expense. Licensee will not, without the prior written consent of Axsome (such consent not to be unreasonably withheld, delayed or conditioned), enter into any compromise or settlement relating to such litigation that # admits the invalidity or unenforceability of any Licensed Patent Right, # requires that any Licensed Patent Right be abandoned or # otherwise adversely affects the rights or interest of Axsome or, if applicable with respect to such Licensed Patent Right, the Upstream Licensor of such Licensed Patent Right. In order to establish standing, Axsome, upon request of Licensee, agrees to timely commence or to join in any such litigation or to request that the applicable Upstream Licensor join in such litigation, in each case at Licensee’s expense, and in any event to cooperate with Licensee in such litigation or steps at Licensee’s expense. Axsome and any applicable Upstream Licensor will have the right to consult with Licensee about such litigation and to participate in and be represented by independent counsel in such litigation at Axsome’s expense. Any recoveries obtained by Licensee in connection with any such litigation or steps taken in relation to such infringement shall first be used to reimburse Licensee for the reasonable out-of-pocket costs incurred by Licensee in litigating such Third Party Infringement and the remainder, if any, shall be retained by Licensee for its own account, provided that # such recoveries treated as Net Sales in the Calendar Quarter in which they are received for all purposes under this Agreement.

Licensee Election to Not Enforce or Defend. If Licensee fails to institute litigation or otherwise take steps to remedy Third Party Infringement within one hundred twenty (120) days of its receipt of notice, then Axsome will have the right, but not the obligation, upon twenty (20) days’ prior notice to Licensee, at Axsome’s expense, to institute any such litigation or take other steps to remedy Third Party Infringement, and any such litigation or steps will be at Axsome’s expense; provided that any recoveries (whether by way of judgment, settlement or otherwise) resulting from such litigation or steps relating to such Third Party Infringement, after deducting Axsome’s out of pocket expenses (including counsel fees and expenses) in pursuing such claim, will be retained by Axsome. Axsome will not, without the prior written consent of Licensee (such consent not to be unreasonably withheld, delayed or conditioned), enter into any compromise or settlement relating to such litigation that # admits the invalidity or unenforceability of any Licensed Patent Right or # requires Axsome to abandon any Licensed Patent Right. Licensee, upon request of Axsome, agrees to timely join in any such litigation, at Axsome’s expense, and in any event to cooperate with Axsome in such litigation or steps at Axsome’s expense. Licensee will have the right to consult with Axsome about such litigation and to participate in and be represented by independent counsel in such litigation at Licensee’s expense.

Other Actions by Third Parties. Each Party will promptly notify the other Party in the event of any legal or administrative action by any Third Party involving any Licensed Patent Rights of which it becomes aware, including any nullity, revocation, interference, reexamination, inter partes review, post grant review or compulsory licensing proceeding. Axsome will have the first right, but not the obligation, to defend against any such action involving any Licensed Patent Rights, in its own name or Licensee’s name (to the extent permitted by Applicable Law), and any such defense will be at Licensee’s expense. Licensee, at Axsome’s request, agrees to join in any such action at Licensee’s expense and in any event to cooperate with Axsome at Licensee’s expense. If Axsome fails to defend against any such action involving a Licensed Patent Right, then Licensee will have the right to defend such action, in its own name and at its own expense.

Third Party Infringement. If either Party has a reasonable basis to believe that a Third Party is or may be engaging in commercially significant infringement of any Licensed Trademark in the Territory, such Party shall notify the other Party in writing and provide it with any evidence of such infringement that is reasonably available. Licensee shall have the right and option to respond to any infringement or potential infringement with respect to any Licensed Trademark that Licensee is using in the Territory by appropriate steps, including filing an infringement suit or taking other similar action, and shall notify Axsome of, and consult with Axsome from time to time regarding, any such suit or other action. Axsome shall provide reasonable assistance to Licensee, including providing access to relevant documents and other evidence, making its employees available at reasonable business hours, and joining the action to the extent necessary to allow Licensee to maintain the action. Any amounts recovered by Licensee pursuant to this [Section 5.3.2], whether by settlement or judgment, shall first be used to reimburse Licensee for the costs of such enforcement action and the remainder, if any, shall be retained by Licensee for its own account, provided that # such recoveries treated as Net Sales in the Calendar Quarter in which they are received for all purposes under this Agreement.