Deed and Amendment dated December 22, 2011
Exhibit 10.1
Deed and Amendment dated December 22, 2011
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Parties
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Minifab (Aust) Pty Ltd ACN 100 768 474
of of ▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
(MiniFAB)
TearLab Research, Inc.
of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇.▇.▇.
(TearLab)
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Introduction
The parties wish to amend the Principal Agreement on the terms of this Deed and Amendment.
It is agreed
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1
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Definitions and interpretation
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1.1
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Definitions
In this Deed and Amendment:
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(1)
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Deed and Amendment means this document, including any schedule or annexure to it; and
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(2)
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Principal Agreement means Manufacturing and Development Agreement between MiniFAB and TearLab dated 1 August 2011.
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1.2
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Interpretation
Clause 1.2 of the Principal Agreement applies to the interpretation of this Deed and Amendment (where references to “Agreement” are to be read as references to this Deed and Amendment).
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1.3
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Previous definitions
Unless the contrary intention appears, a word or phrase defined in the Principal Agreement has the same meaning in this Deed and Amendment.
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2
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Amendment of Principal Agreement
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2.1
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With effect from the date of this Deed and Amendment, the Principal Agreement is amended as follows:
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(1)
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The table under the section entitled “Minimum Order Requirements and Annual Production Capacity” in Schedule 3 (“Manufacturing and Ordering Schedule for the First Product”) of the Principal Agreement is deleted and replaced with the following table:
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Year
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Minimum Order
Requirements
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Expected Limit
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Consequences for failure to meet Minimum Order Requirements (Minimum Order Liquidated Damages)
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Annual Production
Capacity
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2010
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****[REDACTED]****
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****[REDACTED]****
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An amount equal the Fixed Price Amount of the Product (as set out in the Pricing Schedule) payable multiplied by the difference between the Minimum Orders Requirement and the actual quantity of the Product ordered by TearLab from MiniFAB during the year. To be calculated on an annual basis.
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****[REDACTED]****
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2011
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****[REDACTED]****
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****[REDACTED]****
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****[REDACTED]****
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2012
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****[REDACTED]****
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****[REDACTED]****
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****[REDACTED]****
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2013
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****[REDACTED]****
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****[REDACTED]****
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****[REDACTED]****
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2014
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****[REDACTED]****
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****[REDACTED]****
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****[REDACTED]****
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2015
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****[REDACTED]****
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****[REDACTED]****
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****[REDACTED]****
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(2)
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The table under the section entitled “Selling Price” in Schedule 4 (“Pricing Schedule for the First Product”) of the Principal Agreement is deleted and replaced with the following table:
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Year
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Fixed Price Amount
(AUD) per unit
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Net Sales Amount
Percentage
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2010
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****[REDACTED]****
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****[REDACTED]****
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2011
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****[REDACTED]****
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****[REDACTED]****
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2012
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****[REDACTED]****
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****[REDACTED]****
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2013
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****[REDACTED]****
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****[REDACTED]****
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2014
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****[REDACTED]****
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****[REDACTED]****
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2015
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****[REDACTED]****
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****[REDACTED]****
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3
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Amendments not to affect accrued rights and obligations
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3.1
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The variations to the Principal Agreement do not affect the validity or enforceability of the Principal Agreement as amended.
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3.2
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Nothing in this Deed and Amendment:
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(1)
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prejudices or adversely affects any right, power, authority, discretion or remedy arising under the Principal Agreement before the date of this Deed and Amendment; or
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(2)
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discharges, releases or otherwise affects any liability or obligation arising under the Principal Agreement before the date of this Deed and Amendment.
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4
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Confirmation
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4.1
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Each party is bound by the Principal Agreement as varied by this Deed and Amendment.
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5
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General
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5.1
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Further assurance
Each party must promptly at its own cost do all things (including executing and if necessary delivering all documents) necessary or desirable to give full effect to this Deed and Amendment.
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5.2
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Costs and outlays
Each party must pay its own costs and outlays connected with the negotiation, preparation and execution of this Deed and Amendment.
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5.3
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Governing law
The law of England, United Kingdom governs this Deed and Amendment.
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Executed as a deed and amendment and delivered on the date shown on the first page.
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Executed by MiniFAB (Aust) Pty Ltd
ACN 100 768 474 in accordance with
section 127 of the Corporations ▇▇▇ ▇▇▇▇:
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇ ▇▇▇▇▇▇
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Director/company secretary
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Director
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Name of director/company secretary
(BLOCK LETTERS)
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Name of director
(BLOCK LETTERS)
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Signed and sealed for and on behalf of
TearLab Research, Inc. by its authorised
representative in the presence of:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Signature of witness
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Signature of authorised representative
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name of witness
(BLOCK LETTERS)
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Name of authorised representative
(BLOCK LETTERS)
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▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Address of witness
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