(resc) Trademark License Agreement

Exhibit 10.1(e)


FORM OF TRADEMARK LICENSE


THIS TRADEMARK LICENSE is entered into as of 4th day of January, 2002 ("Effective Date") by and between Elan Pharmaceuticals, Inc., ("Elan") a corporation organized and existing under the laws of Delaware, having its principal place of business at 800 Gateway Boulevard, South San Francisco, CA 94080 ("Elan") and Athena Diagnostics, Inc., a corporation organized and existing under the laws of Delaware, having its principle place of business at Four Biotech Park, 377 Plantation Street, Worcester, MA 01605 ("Athena").


WHEREAS, Elan owns the registered and common law rights in the trademarks identified on Exhibit A in connection with its pharmaceutical and diagnostic business (hereinafter "Trademarks");


WHEREAS, Elan wishes to grant Athena, and Athena wishes to obtain from Elan, the right and license to use the Trademarks in connection with the advertising, distribution, sale and provision of Services in the Territory on the terms and subject to the conditions set forth in this Trademark License;


NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, Elan and Athena hereby covenant and agree as follows:


1. DEFINITIONS


1.1 "Effective Date" means the date upon which this Trademark License is executed, as defined above.


1.2 "Trademarks" means the trademarks set forth on Exhibit A attached hereto.


1.3 "Party" shall mean a party to this Trademark License.


1.4 "Services" means diagnostic and prognostic clinical testing services and related services.


1.5 "Term" means the period of time identified in Section 10.1 of this Trademark License.


1.6 "Territory" means worldwide.


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1.7 "Trademark License" means the terms and conditions of this trademark license, and Exhibit A attached hereto.


2. GRANT OF LICENSE


2.1 Grant of License. Subject to the terms and conditions of this Trademark License, Elan hereby grants Athena, and Athena hereby accepts, a nonexclusive and royalty-free license to use the Licensed Trademarks on and in connection with the advertising, distribution, sale and provision of the Services, and in connection with the company name Athena Diagnostics, Inc.


2.2 Sublicensing. Athena may sublicense its rights pursuant to this Trademark License subject to the prior written consent of Elan, which Elan shall not unreasonably withhold. Each sublicense agreement shall: (i) require the sublicensee to comply with the applicable terms and conditions of this Trademark License; and (ii) provide that the sublicense will automatically be assigned to Elan upon the termination of this Trademark License. Athena shall take all necessary steps to exercise quality control over all Services advertised, distributed, sold or provided under such sublicense to ensure that the quality standards required by this Trademark License are being maintained. Any sublicense agreement, however, shall permit Elan to exercise such quality control directly over any sublicensee.


3. OWNERSHIP


3.1 Ownership of the Trademarks. Athena acknowledges and agrees that Elan is the sole owner of all right, title and interest in and to the Trademarks and all associated goodwill, that Athena acquires no interests under this Trademark License to the Trademarks, other than the limited license to use the Trademarks explicitly granted in this Trademark License, and that all goodwill associated with Athena `s use of the Trademarks inures solely to the benefit of Elan. Nothing in this Trademark License shall be construed to limit or restrict any right of Elan to use, register, license, transfer, assign or encumber the Trademarks, subject only the rights explicitly granted to Athena hereunder.


3.2 Assignment of Rights. If Athena acquires any rights in the Trademarks by operation of law or otherwise, Athena shall immediately assign such rights to Elan, along with all associated goodwill.


3.3 No Derogation of Elan's Rights. Athena shall not: (i) do anything that might harm the reputation or goodwill of Elan or its Trademarks; (ii) take any action inconsistent with Elan's ownership of the Trademarks; or (iii) challenge Elan's rights or interest in the Trademarks.


4. QUALITY CONTROL


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4.1 Quality Standards and Local Laws. Athena shall maintain the quality of the Services at least at a level: (i) consistent with the quality standards of Athena in existence as of the date of this Trademark License; (ii) consistent with the existing high quality image of Elan; and (iii) that meets or exceeds industry standards. The Services must also comply with all laws, government regulations and requirements of the jurisdiction into which the Services are offered, and Athena shall not violate or infringe any rights of any third party.


4.2 Inspections. Athena shall allow Elan, upon Elan's reasonable request, to inspect the labs, clinics and facilities at which the Services are performed.


4.3 Termination of Affected Services. In the event that any of the Services do not comply with the quality standards set forth in this Trademark License, Athena shall immediately cease performance of such Services. Further, Athena shall take prompt action to remedy any such nonconformities and, in any event, shall not advertise or perform any Services that do not meet the quality standards set forth in this Trademark License.


4.4 Elan's Right to Enjoin Services. In the event that any of the Services, in the reasonable opinion of Elan, are the subject of a claim or inquiry by any person, agency or commission with competent authority in the Territory because of quality or safety concerns, or is the subject of ...