WWW.EXFILE.COM, INC. -- 14723 -- MATRITECH, INC. -- EXHIBIT 10.2 TO FORM 8-K


    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

     

    
      
        	
                1.1
                  FDA

              	
                means
                  the United States Food and Drug Administration.

              
	 	 
	
                1.2
                  Field

              	
                means
                  the non-prescription, over the counter (OTC), direct to consumer
                  market
                  which includes but may not be limited to retail
                  pharmacies.

              
	 	 
	
                1.3
                  Identified 

              	 
	
                Confidential
                  

              	 
	
                Information

              	
                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

              
	 	 


      

       

      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

      
        	 	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; 
	
                 

              	 
	
                1.4
                  Products

              	
                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.

              
	
                 

              	 
	
                1.5
                  Territory

              	
                United
                  States of America.

              


      

    

     

    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.

    


    
      
        
        

      

      
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    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 Agreement may be extended by a mutual written agreement
      entered into at least 270 days prior to the end of the Term.

    


    In
      addition to the foregoing, either party may terminate this Agreement if the
      other commits any material breach of any of the provisions of this Agreement
      and, in the case of such a breach which is capable of remedy, fails to remedy
      the breach within thirty (30) days after receipt of a written notice giving
      full
      particulars of the breach and requiring it to be remedied. In the case of such
      a
      breach which is not capable of remedy, there will be no opportunity to remedy
      and this Agreement will terminate upon receipt of such written notice. Either
      party may also terminate this Agreement if the other shall be adjudicated
      bankrupt, goes into receivership or trusteeship, makes a voluntary arrangement
      with its creditors or enters into any similar proceeding of the same nature,
      goes into liquidation (except for the purposes of an amalgamation,
      reconstruction or other reorganization and in such manner that the company
      resulting from the reorganization effectively agrees to be bound by or to assume
      the obligations imposed on such party under this Agreement), or ceases, or
      threatens to cease, to carry on business.

    


    7.0    Warranty

    


    Matritech
      gives
      a
      limited warranty to Inverness that the Product will comply with the
      specifications contained on its labelling and inserts until the date of
      expiration of the Product, which is shown on the Product. Matritech specifically
      disclaims on behalf of itself and any and all of its suppliers and assemblers,
      all other conditions, warranties and other terms relating to the Product.
      Matritech further warrants that the Product will not infringe the intellectual
      property rights related to biologicals of any third party, other than those
      rights belonging to Inverness. Inverness acknowledges that certain patent and
      license rights are provided to Matritech under the manufacturing agreement
      of
      even date herewith, and agrees to amend such agreement to the extent permissible
      if necessary to effect this agreement. Except for Matritech’s indemnity
      regarding biologicals explicitly set forth above, neither party shall provide
      an
      indemnity to the other party regarding third party infringement. Except for
      the
      preceding warranties in the first sentence of this section, EACH PARTY DISCLAIMS
      ANY AND ALL WARRANTIES OR CONDITIONS OF ANY KIND WHATSOEVER, EXPRESS, IMPLIED,
      STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION THOSE FOR MERCHANTABILITY,
      SATISFACTORY QUALITY, INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, ALL
      OF
      WHICH ARE EXPRESSLY EXCLUDED. 

    


    
      
        
        

      

      
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    Inverness
      agrees that it will not give (or purport to give) or enter into (or purport
      to
      enter into) on behalf of Matritech any representation or warranty in relation
      to
      the Product except to the extent provided by Matritech in the immediately
      preceding paragraph. Inverness agrees to indemnify and hold Matritech harmless
      from and against all liabilities relating to the Product and against all costs
      and expenses associated with claims in respect of such liabilities, in each
      case
      to the extent that the liabilities result from a breach by Inverness of the
      terms of the preceding sentence.

    


    Inverness
      may not return Product without prior approval from Matritech, which approval
      may
      not be unreasonably withheld. If, however, Product fails to perform in
      accordance with its specifications then Inverness may return such defective
      Product within (30) days after notification by Matritech. Inverness' sole remedy
      in the event Product fails to perform (as documented by Matritech) is the return
      at Matritech's expense of all or any portion of the Product that
      failed to perform for a refund of the purchase price paid by Inverness plus
      applicable shipping expenses.

    


    8.0    Limitation
      of Liability

    


    EXCEPT
      AS
      PROVIDED UNDER WARRANTY ABOVE, EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT
      SHALL BE LIMITED TO THE AMOUNTS HAVING BEEN ACTUALLY PAID BY INVERNESS UNDER
      THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL,
      CONSEQUENTIAL, INCIDENTIAL, MULTIPLE OR PUNITIVE DAMAGES, HOWEVER CAUSED AND
      ON
      ANY THEORY OF LIABILITY, WHETHER OR NOT FOR BREACH OF CONTRACT, NEGLIGENCE
      OR
      OTHERWISE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
      OF
      SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF
      ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT.
      NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THIS LIMITATION
      ON
      LIABILITY SHALL NOT APPLY TO DAMAGES ARISING FROM INFRINGEMENT OR BREACH OF
      THE
      CONFIDENTIALITY OBLIGATIONS OF EITHER PARTY.

     

    9.0    Product
      Liability Insurance

    


    Each
      party shall carry products liability insurance with respect to the Product
      sold
      or distributed by it in such amounts and against such risks and losses as are
      commercially reasonable. Each party shall be solely responsible for any premium
      for such insurance. 

    


    10.0    Indemnification

    


    Each
      of
      the parties agree to indemnify, defend and hold the other party harmless against
      any cost, loss, liability, or expense (including attorneys’ fees) arising out of
      any third party claim, resulting from or relating to any breach of this
      Agreement; provided
      that the
      

     

    
      
        
        

      

      
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    indemnifying
      party is notified promptly in writing of the claim, has sole control over its
      defense or settlement, and the party seeking indemnification provides reasonable
      assistance in the defense of the same. Each party agrees, that it will not
      settle any such claims, unless such settlement does not adversely affect the
      other party’s rights under this Agreement or requires the indemnified party to
      perform any actions.

    


    11.0    Confidentiality

    


    Except
      in
      accordance with the terms of this Agreement, neither party shall, either during
      the period of this Agreement or at any subsequent time, disclose to any other
      person any Identified Confidential Information disclosed to it by the other
      party under this Agreement, and each party shall use commercially reasonable
      efforts, and in any event at least as rigorous as those it uses to protect
      its
      own confidential information, to keep the other party’s Identified Confidential
      Information confidential. 

    


    12.0    Assignment

    


    This
      Agreement is personal to the parties and neither of them may, without the
      written consent of the other, assign or transfer any of its rights, or
      sub-contract or otherwise delegate any of its obligations, under this Agreement;
      provided, however, that a party may assign this Agreement to an entity or person
      who acquires all or substantially all of its business (or segment, such as
      Matritech’s NMP22 product line) by merger, sale of assets or otherwise.
      Notwithstanding the foregoing, neither party may assign this Agreement to any
      competitor of the other party (that is, neither party may assign it to any
      company which sells bladder cancer diagnostic tests) without the prior written
      consent of such party, which consent may be withheld by such party in its sole
      discretion. Any attempted assignment, delegation or transfer by a party in
      violation hereof shall be null and void. Subject to the foregoing, this
      Agreement shall be binding on the parties and their successors and assigns.
      

    


    13.    Miscellaneous

    


    Each
      of
      the parties agrees to comply with all applicable governmental laws, rules,
      regulations and policies. This Agreement shall be governed by and construed
      in
      all respects in accordance with the laws of the Commonwealth of Massachusetts
      without giving effect to its conflicts of law principles. Each of the parties
      consents to venue and jurisdiction in any court of competent jurisdiction
      sitting within the Commonwealth of Massachusetts. 

     

    
      
        
        

      

      
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      In
        witness whereof, the parties executed this Agreement as of the date first
        above
        written.




    
      	 	 
	 	 
	Matritech, Inc. 	Inverness Medical Innovations,
              Inc. 
	 	 
	By:
              /s/ Stephen D.
              Chubb                               
               	By:
              /s/ Ron
              Zwanziger                                    
	Its:_
              CEO                                                            
               	Its:_
              CEO                                                        
               
	 	 
	 	By: /s/
              Anne Warner__ 
              _____________ 
	 	Its: _Asst.
              Sec’y___________________ 
	 	 


    

         

     

     

     

     

     

     

    
 

    
      
        
        

      

      
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