EXHIBIT
10.2
Distribution Agreement
Distribution Agreement made this 3rd day of
November, 2006 by and between Inverness Medical Innovations, Inc.,
with offices at 51 Sawyer Road, Suite 200, Waltham, MA 02453 on
behalf of itself and its subsidiaries (“Inverness”) and
Matritech, Inc., a Delaware corporation with its principal place of
business at 330 Nevada Street, Newton, MA 02460
(“Matritech”).
Whereas, the
parties are desirous of entering into arrangements for the
distribution by Inverness of the NMP22 ®
BladderChek ® Test to OTC Customers in the event
that clearance for such sales is obtained from the FDA (as
hereinafter defined) in the United States,
Now, therefore,
in consideration of the premises and for other good and valuable
consideration, the receipt and legal sufficiency of which are
hereby acknowledged, the parties agree as follows:
1.0
Definitions
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1.1
FDA
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means the
United States Food and Drug Administration.
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1.2
Field
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means the
non-prescription, over the counter (OTC), direct to consumer market
which includes but may not be limited to retail
pharmacies.
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1.3
Identified
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Confidential
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Information
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means any
information or data, regardless of whether it is in tangible form,
disclosed by either party (the “disclosing party”) that
the disclosing party has either marked as confidential or
proprietary, or has identified in writing as confidential or
proprietary within thirty (30) days of disclosure to the other
party (the “receiving party”); provided ,
however , that reports and/or information related to a
disclosing party’s business plans, strategies, technology,
research and development, current and prospective customers,
billing records, and products or services shall be deemed
Identified Confidential Information of the disclosing party even if
not so marked or identified. Confidential Information shall not
include any information which a) can be demonstrated to have been
in the public domain or publicly known prior to the date of
disclosure by disclosing party; or b) can be demonstrated, from
written records, to have been in the receiving party’s
possession from another source not under obligation of secrecy to
the disclosing party prior to disclosure by the disclosing party;
or c) becomes part of the public domain or publicly known by
publication or otherwise, not due to any unauthorized act by
the
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receiving
party; or d) can be demonstrated to have been independently
developed by the receiving party without the use of the disclosing
party’s Confidential Information;
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1.4
Products
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means
Matritech’s NMP22 BladderChek Test, a point of care, urine
test, an aid in the detection and management of bladder cancer, and
subsequent versions thereof.
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1.5
Territory
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United States
of America.
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2.0
Regulatory Approvals
Matritech shall
secure all necessary regulatory approvals for the marketing and
sale of the Product within the Field in the Territory. Matritech
shall be responsible for and shall the conduct of all necessary
clinical trials and the submission of all regulatory filings with
the FDA or elsewhere to obtain regulatory approvals for marketing
and sale of the Product within the Field in the Territory. The
first $[ ** ] of the documented costs of any such trials shall be
borne by Matritech, after which Inverness shall pay any such costs.
Inverness agrees to cooperate with Matritech in its efforts to
secure regulatory approval.
3.0
Appointment as Distributor
On the date of
this Agreement and subject to commercially reasonable minimum
purchase requirements to be negotiated in good faith at a later
date, Matritech appoints Inverness as, and Inverness accepts
appointment as, Matritech’s exclusive distributor of the
Product within the Field in the Territory.
4.0
Orders
Inverness
agrees to place all orders for the Product in writing to Matritech
for a delivery date at least thirty (30) days after the Order date.
Matritech shall use commercially reasonable efforts to deliver the
Product on the specified delivery date plus or minus 10 days.
Delivery is F.O.B. place of manufacture. Inverness may select
carrier for shipment. Transportation and insurance charges,
expenses and costs are not included in the prices of the Product.
All sales are net thirty days of delivery. Title and risk of loss
automatically passes to Inverness when the Product is placed with a
common carrier for shipment to Inverness or shipment to another
party as directed by Inverness. Inverness agrees to submit to
Matritech, on or before the first of each month, non-binding
forecasts, advising Matritech of its estimated order activity
during the succeeding twelve (12) month period. All Product sold by
Inverness shall be sold with the original labels provided by
Matritech.
5.0
Price
The price
Inverness will pay to purchase the Product from Matritech will be
calculated by the parties in good faith prior to the sale thereof
such that [ ** ].
6.0
Term and Termination
The term of
this Distribution Agreement shall be for five years from the date
of this Agreement. Notwithstanding the foregoing, Inverness may
terminate this Agreement at any time during the first year with 30
days notice. Thereafter, either party may terminate this Agreement
with or without cause during the term on 270 days written notice.
This
