CONFIDENTIAL
TREATMENT REQUESTED


 


CONFIDENTIAL
PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. INFORMATION
THAT WAS OMITTED IN THE EDGAR VERSION HAS BEEN NOTED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED BY THE MARK “[***]”.


 


Dated


 


Manufacturing,
Supply and Development Agreement


 


Parties


 


MiniFAB
(Aust) Pty Ltd 


ACN
100 768 474


 


TearLab
Research, Inc.


 


Contact


 


Andrew
Perry


Norton
Rose Fulbright Australia


Level
15, RACV Tower, 485 Bourke Street, Melbourne, Victoria 3000


Tel:
+61 (0)3 8686 6488


www.nortonrosefulbright.com


Our
ref: 2626784


 


[***]
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treatment has been requested with respect to the omitted portions.




 




    	 	 	 



    	 



    

 


Contents


 


	1.	Definitions
    and interpretation	1
	2.	not
    used	6
	3.	Manufacture
    of Product	6
	4.	Capex,
    NRE and Tooling	8
	5.	Forecasting
    and ordering	10
	6.	Delivery	12
	7.	Price	13
	8.	Disaster
    Recovery Planning	15
	9.	Development
    of New Products	15
	10.	Intellectual
    Property	20
	11.	Obligations
    of MiniFAB	22
	12.	Meeting	23
	13.	Amendments
    to Specifications	24
	14.	Registrations,
    safety and Product liability	25
	15.	Insurance	25
	16.	Warranties	26
	17.	Sub-Contractors	26
	18.	Term,
    breach and termination	27
	19.	Liability
    and indemnity	29
	20.	Confidentiality	31
	21.	Disputes	32
	22.	Force
    Majeure	34
	23.	Notices	34
	24.	General	35
	Schedule
    1 - Pricing Schedule	38
	Pricing
    Schedule - Discovery Test Card: Discovery Dry Eye Panel Osmolarity & MMP9	38
	Schedule
    2 Finished Product	40
	Annexure
    A Requirement Definitions of Product	41
	Annexure
    B Specifications for Product	42


 


[***]
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treatment has been requested with respect to the omitted portions.


 




    	 	 	 



    	 



    

 


Agreement
dated           August 2018


 


	Parties	MiniFAB
                                         (Aust) Pty Ltd ACN 100 768 474

        of
        9 The Centreway, Mount Waverley, Victoria 3149,

        

        

	 	Australia
	 	(MiniFAB)
	 	 
	 	TearLab
    Research, Inc.
	 	of
    150 La Terraza Blvd., Suite 101, Escondido, CA 92025, U.S.A.
	 	(TearLab)


 











Introduction


 


	A.	MiniFAB
    and TearLab entered into a manufacturing and development agreement on 19 July 2011 which was subsequently varied by a deed
    executed in or about May 2013 and a further subsequent variation about March 2016 (the agreement, as amended, being the Original
    Agreement).


 


	B.	The
    parties have agreed to enter into this new Agreement to provide for:


 


	 	(1)	the
    manufacture and supply of certain products, being initially the first Discovery product developed under the Original Agreement;


 


	 	(2)	the
    terms and conditions governing the development of future products or variations to the Discovery products;


 


It
is agreed


 


	1.	Definitions
    and interpretation





 


	1.1	Definitions





 


In
this Agreement:


 


	 	(1)	Affiliate
    means with respect to any person, any other person controlling, controlled by or under direct or indirect common control
    with such person. A person will be deemed to control a corporation (or other entity) if such person possesses, directly or
    indirectly, the power to direct or cause the direction of the management and policies of such corporation (or other entity),
    whether through the ownership of voting securities, by contract or otherwise.
	 	 	 
	 	(2)	Agreement
    means this document, including any schedule or annexure to it;
	 	 	 
	 	(3)	Base
    Cost has the meaning given in clause 7.6(2);
	 	 	 
	 	(4)	Business
    Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in Melbourne,
    Australia or California, United States;
	 	 	 
	 	(5)	cGMP
    means current Good Manufacturing Practices, as established by the FDA;


 


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	 	(6)	Commercially
    Reasonable Efforts means the exercise of such efforts and commitment of such resources by MiniFAB as would be expended
    on, or committed by MiniFAB for, a comparable development or manufacturing program of a similar scope and at a similar stage
    in development or product lifecycle, comparable profit margin and potential, competitive landscape, and risk profile, in each
    case with due regard to the nature of efforts and cost required for such development or manufacturing and taking into account
    payments made by TearLab, or obligated to be made by TearLab, under this Agreement;
	 	 	 
	 	(7)	Confidential
    Information of a party means any Information (and all of its tangible and intangible embodiments of any kind whatsoever)
    provided by that party or its Representatives to the other party or its Representatives whether provided orally or in any
    form and is marked, identified as or otherwise acknowledged to be confidential at the time of disclosure to the other party;
    provided, however, that information, data and results generated by MiniFAB in the course of performing activities under this
    Agreement, that relate to TearLab’s technology or to the development of Product or prototypes thereof shall be deemed
    the Confidential Information of TearLab;
	 	 	 
	 	(8)	Dedicated
    Improvements has the meaning given in clause 10.3;
	 	 	 
	 	(9)	Default
    Rate means the aggregate of 5% per annum and the average mid rate per cent per annum calculated to the nearest 4 decimal
    places of the 3 month Australian Bank Bill Swap Reference Rate as determined by reference to Reuters Monitor Service page
    BBSW at or about 10.00 am (Sydney time) on the first Business Day of each month. If that page is replaced, the service ceases
    to be available, or the basis on which that rate is calculated or displayed is changed and in the opinion of the MiniFAB (after
    consultation with TearLab) it ceases to reflect MiniFAB’s cost of funding to the same extent as at the date of this
    Agreement, MiniFAB may specify another page or service displaying the appropriate rate after consultation with TearLab;
	 	 	 
	 	(10)	Delivery
    Point means the TearLab’s nominated warehouse in California, or such other place as may be agreed from time to time;
	 	 	 
	 	(11)	Effective
    Date means the date of execution of this Agreement by the last party signing it;
	 	 	 
	 	(12)	End
    Date means 30 August 2028;
	 	 	 
	 	(13)	FDA
    means the United States Food and Drug Administration;
	 	 	 
	 	(14)	Force
    Majeure means any cause which is not within the reasonable control of the party affected by it including, acts of God,
    war declared or undeclared, civil disturbance, acts or omissions of government or other competent authority, fire, lightning,
    explosion or flood, but excludes any cause due to lack of demand or market success for the Products;
	 	 	 
	 	(15)	Governmental
    Agency means any court, administrative agency or commission or other governmental agency, body or instrumentality, domestic
    or foreign;
	 	 	 
	 	(16)	Information
    means any information or know-how pertaining to, or in the possession or control of, a party including, information concerning
    its business, systems, technology and affairs, such as:


 


	 	(a)	financial,
    technological, strategic or business information, concepts, plans, strategies, directions or systems;
	 	 	 
	 	(b)	research,
    development, operational, legal, marketing or accounting information, concepts, plans, strategies, directions or systems;


 


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	 	(c)	technology,
    source and object codes for computer software, Intellectual Property rights and technical and historical information relating
    thereto;
	 	 	 
	 	(d)	customer
    and supplier information; and
	 	 	 
	 	(e)	information
    relating to the Product.


 


	 	(17)	Insolvency
    Event in the context of:


 


	 	(a)	MiniFAB
    means:


 


	 	(i)	a
    receiver, receiver and manager, official manager, trustee, administrator, other controller (as defined in the Corporations
    Act 2001 (Cth)) or similar official is appointed, or steps are taken for such appointment, over any of the equipment or
    undertaking of MiniFAB;
	 	 	 
	 	(ii)	MiniFAB
    is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts within the meaning of the
    Corporations Act 2001 (Cth) or is presumed to be insolvent under the Corporations Act 2001 (Cth);
	 	 	 
	 	(iii)	MiniFAB
    ceases to carry on business; or
	 	 	 
	 	(iv)	an
    application or order is made for the liquidation of MiniFAB or a resolution is passed or any steps are taken to liquidate
    or pass a resolution for the liquidation of MiniFAB otherwise than for the purpose of an amalgamation or reconstruction; and


 


	 	(b)	TearLab
    means:


 


	 	(i)	a
    receiver, receiver and manager, controller, managing controller, administrator, official manager, trustee or provisional or
    official liquidator is appointed over the assets or undertaking of TearLab ;
	 	 	 
	 	(ii)	TearLab
    :


 


	 	(A)	suspends
    payments of its debts generally;
	 	 	 
	 	(B)	enters
    into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors
    or any class of them;
	 	 	 
	 	(C)	files
    a petition in Chapter 7 bankruptcy under the U.S. Bankruptcy Code; or
	 	 	 
	 	(D)	ceases
    to carry on business; or


 


	 	(iii)	an
    order is made or resolution passed for the winding up or dissolution of TearLab other than for the purposes of solvent reconstruction
    or amalgamation; or
	 	 	 
	 	(iv)	in
    the case of TearLab, if TearLab Corporation suffers an ‘Event of Default’ under clause 11.01(i) of the ‘Term
    Loan Agreement’ (dated March 4, 2015 between TearLab Corporation, as borrower, and Capital Royalty Partners II L.P.
    and others (CRG), as lenders) and that default is not waived by the lenders.


 


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	 	(18)	Intellectual
    Property means any copyright, design (whether registered or unregistered), trademark (whether registered or unregistered),
    patent or patent application or invention, circuit layout, know-how, confidential information (whether such information is
    in writing or recorded in any other form) and other proprietary or personal rights arising from intellectual activity in the
    business, industrial, scientific or artistic fields;
	 	 	 
	 	(19)	Loss
    means any loss, damage, cost, interest, expense, fee, penalty, fine, forfeiture, assessment, demand, liability or damages
    incurred by a person to the extent resulting from any action, suit, claim, proceeding or cause of action brought against such
    party by a third party.
	 	 	 
	 	(20)	Manufacture
    means all the activities required to produce Product which complies with the Specifications including the manufacture,
    packaging, labelling, storage, handling and shipment of the Product;
	 	 	 
	 	(21)	MiniFAB
    Facility means the facility at 1 Dalmore Drive, Caribbean Business Park, Scoresby, Victoria, Australia;
	 	 	 
	 	(22)	Monthly
    Manufacturing Limit means initially 417,000 units of Product per month as varied in accordance with clause 5.2;
	 	 	 
	 	(23)	Phase
    1 and Phase 2 have the meanings given in clause 4.3;
	 	 	 
	 	(24)	Price
    means the price payable by TearLab to MiniFAB for the supply of the Product, inclusive of all packaging, labelling, freight,
    insurance and all other shipping and handling charges, as set out in the Pricing Schedule;
	 	 	 
	 	(25)	Pricing
    Schedule means the Pricing Schedule set out in Schedule 1;
	 	 	 
	 	(26)	Product
    means the Discovery Test Card, together with the Reagents, capsule and applicable packaging, all as further described
    in Schedule 2;
	 	 	 
	 	(27)	Purchase
    Order means an order for Product as provided for in clause 5.1(2);
	 	 	 
	 	(28)	Quarter
    means each period of 3 months beginning 1 January, 1 April, 1 July and 1 October;
	 	 	 
	 	(29)	Reagent
    means all components required to formulate:


 


	 	(a)	running
    buffer;
	 	 	 
	 	(b)	capture
    antibodies;
	 	 	 
	 	(c)	control
    antibodies; and
	 	 	 
	 	(d)	conjugate
    solution,


 


	 	(30)	Reagent
    Cost means all costs associated with Reagents, including procurement efforts, shipping costs and import duties, and includes
    costs associated with quality control of Reagents and storage costs of Reagents after receipt in stores;
	 	 	 
	 	(31)	Registrations
    means all registrations or approvals required from the relevant Regulatory Authority or Authorities for the export, import,
    storage, promotion, supply, sale or other distribution in the Product;
	 	 	 
	 	(32)	Regulatory
    Authority means any Governmental Agency having responsibility for the regulation of, oversight of or whose approval is
    required for the manufacture, marketing, sale or supply of the Product or the facilities in which they are manufactured, processed
    or stored;


 


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	 	(33)	Regulatory
    Requirements means, collectively:


 


	 	(a)	all
    laws and regulations and any and all other requirements of the FDA or any other Regulatory Authority that are mandatory to
    the manufacture, packaging, labelling, storage, handling and shipment of the Product by MiniFAB and, subject to clause 11.3,
    includes cGMP; and
	 	 	 
	 	(b)	all
    standards set by the International Organization for Standardization (ISO) that are mandatory to the manufacture, packaging,
    labelling, storage, handling and shipment of the Product by MiniFAB, including ISO 13485 (Medical Devices Quality Management
    System), ISO 10993-1 (Biocompatibility), ISO 10993-5 (Biocompatibility: Cytotoxicity), and ISO 10993-10 (Biocompatibility:
    Sensitization and Irritation),


 


but
excludes any law, regulation, requirement or standards that apply to the design, trials, marketing, sales or supply of the Product
(and which do not also apply to the manufacture of the Product and/or to MiniFAB’s supply to TearLab hereunder);


 


	 	(34)	Representative
    of a party means the employees, directors, agents or advisors of that party;
	 	 	 
	 	(35)	Requirement
    Definitions or PRD means the written documentation guiding MiniFAB’s development of the Product, including detailed
    requirement definitions for the Product, as agreed by the parties. The Requirement Definitions may be modified from time to
    time by mutual agreement of TearLab and MiniFAB in the course of ongoing development work for such Product, and MiniFAB agrees
    to use Commercially Reasonable Efforts to accommodate changes to the Requirement Definitions as TearLab may from time to time
    request;
	 	 	 
	 	(36)	Specifications
    means, with respect to a Product, the Procurement Specification, being the definitive written documentation guiding the
    manufacture, packaging, labelling, storage and handling of such product, prepared and agreed in accordance with clause 3.1,
    and as modified from time to time by mutual agreement of TearLab and MiniFAB in accordance with clause 13;
	 	 	 
	 	(37)	TearLab
    IP has the meaning given in clause 10.2;
	 	 	 
	 	(38)	Technical
    Agreement means the technical agreement entered into between MiniFAB and TearLab with respect to the Product, as may be
    amended or replaced from time to time, which specifies their respective responsibilities for quality control and quality assurance
    and related activities and qualifications with respect to the Product;
	 	 	 
	 	(39)	Term
    means the term of this Agreement, including any extended term under clause 18.1; and
	 	 	 
	 	(40)	Volume
    Threshold means the sales by TearLab of the Product to end user customers exceed 1.075 million units over a period of
    3 consecutive 3 month periods, that is months: 1, 2 and 3; 2, 3 and 4: and 3, 4 and 5.


 


	1.2	Interpretation


 


	 	(1)	Reference
    to:


 


	 	(a)	one
    gender includes the others;
	 	 	 
	 	(b)	a
    person includes a body corporate;
	 	 	 
	 	(c)	a
    party includes the party’s executors, administrators, successors and permitted assigns;


 


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	 	(d)	a
    statute, regulation, code or other law or a provision of any of them includes:


 


	 	(i)	any
    amendment or replacement of it; and
	 	 	 
	 	(ii)	another
    regulation or other statutory instrument made under it, or made under it as amended or replaced; and


 


	 	(e)	dollars
    means US dollars unless otherwise stated.


 


	 	(2)	“Including”
    and similar expressions are not words of limitation.
	 	 	 
	 	(3)	Where
    a capitalized word or expression is given a particular meaning, other parts of speech and grammatical forms of that capitalized
    word or expression have a corresponding meaning.
	 	 	 
	 	(4)	Headings
    and any table of contents or index are for convenience only and do not form part of this Agreement or affect its interpretation.
	 	 	 
	 	(5)	A
    provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible
    for the preparation of the Agreement or the inclusion of the provision in the Agreement.
	 	 	 
	 	(6)	If
    an act must be done on a specified day which is not a Business Day, it must be done instead on the next Business Day.


 


	2.	not
    used





 


	3.	Manufacture
    of Product





 


	3.1	Development
    of Specifications





 


The
Specifications may be modified or amended by mutual written agreement of the Parties. In the event that TearLab requests changes
to the Specifications MiniFAB agrees to use Commercially Reasonable Efforts to accommodate such requested changes.


 


	3.2	Product
    compliance





 


MiniFAB
shall set up the manufacturing process, manufacture the Product, and assemble and package the Product, all in accordance with
the Specifications and all Regulatory Requirements. MiniFAB shall label the Product with such labels, tradenames, and trademarks
as directed by TearLab.


 


	3.3	Reagents
    and other third party components





 


	 	(1)	The
    parties acknowledge that in producing the Product, MiniFAB will procure and incorporated Reagents and other components sourced
    from third party suppliers. While MiniFAB will use all reasonable efforts to quality assure those third party components,
    MiniFAB will not be liable on any basis (including under clause 19.2) for any Product failing to meet the Specifications,
    including any related delay, where that failure is due to a defect in:


 


	 	(a)	a
    Reagent; or
	 	 	 
	 	(b)	any
    other ‘excluded third party component’ as agreed by the parties (Excluded Third Party Component);


 


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	 	(2)	A
    failure to comply with the Specifications that results from a defect in a third party component will not constitute a breach
    of any warranty given by MiniFAB under this Agreement.
	 	 	 
	 	(3)	To
    the extent that a defect in relation to the Reagent or Excluded Third Party Component results in an additional cost in the
    production or supply of a Product, that additional cost will be added to the cost of goods in relation to the relevant Product.
	 	 	 
	 	(4)	TearLab
    has the right to approve the selection of Reagent suppliers and any other Excluded Third Party Component’ suppliers.
    TearLab has the right to approve terms and specifications with such suppliers regarding Inspection, Quality Control, and Nonconforming
    Product. MiniFAB will be liable for any Reagent or Excluded Third Party Components failing to meet the Specifications, including
    any related delay, where that failure is due to:


 


	 	(a)	a
    defect in Reagents or Excluded Third Party Components supplied by a non-approved supplier; or
	 	 	 
	 	(b)	a
    failure of MiniFAB to comply with approved terms regarding Inspection, Quality Control, and Nonconforming Product.


 


TearLab’s
rights to approve, under clause 3.3(4), shall not be unreasonably withheld. If TearLab have not responded to a request from MiniFAB
to approve a Reagents or Excluded Third Party Components supplier or the terms and specifications with such suppliers within 15
days then the request will be considered approved.


 


	3.4	Supply
    and Purchase Obligations





 


	 	(1)	MiniFAB
    shall manufacture the Product exclusively for TearLab; and MiniFAB shall sell the Product exclusively to TearLab or its designee;
    and unless the Parties otherwise agree MiniFAB shall not otherwise manufacture, sell, or distribute the Product to any third
    party.
	 	 	 
	 	(2)	TearLab
    must exclusively order the Product from MiniFAB unless there are Exceptional Circumstances or clause 3.4(6) applies. For the
    purposes of this Agreement, Exceptional Circumstances mean:


 


	 	(a)	an
    inability by MiniFAB to provide the Product for 60 days; or
	 	 	 
	 	(b)	a
    3 month period in which each delivery of Product has at least 10% of the Product failing to meet the Supply Requirements,
    and MiniFAB being unable to supply conforming replacement Product such that MiniFAB would have to exceed the Monthly Manufacturing
    Limit in the following two months in order to ensure that it was able to supply the forecast requirements of Product in those
    two months.


 


In
the case that there are Exceptional Circumstances, MiniFAB may notify TearLab when the Exceptional Circumstances have been overcome
and TearLab will be required, from 60 days after such notification, to be supplied exclusively with Product from MiniFAB; provided
that TearLab shall have the right to fully honour any supply commitments incurred by TearLab resulting from the Exceptional Circumstances,
to the extent that such commitment are not inconsistent with this Agreement.


 


	 	(3)	Without
    limiting clause 3.4(2) and for the avoidance of doubt, TearLab may not assign or licence any of the TearLab IP (as defined
    in clause 10.4(1)) to anyone else with the intention or effect of allowing someone else to manufacture the Product except
    as expressly permitted under this Agreement (including without limitation if there are Exceptional Circumstances or clause
    3.4(6) applies).


 


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	 	(4)	MiniFAB
    hereby acknowledges that TearLab needs to obtain a reliable supply of the Product that meet certain quality, quantity and
    timing requirements, and agrees to comply with the following Supply Requirements:


 


	 	(a)	ensure
    that each batch of Product is in full compliance with the Specifications (allowing for any failure rates specified in the
    Specifications); and
	 	 	 
	 	(b)	ensure
    that it does not for 3 successive months deliver to TearLab less than 95% of quantity of Product ordered by TearLab for delivery
    in those months in accordance with this agreement, after taking account of replacement Product.


 


	 	(5)	If
    MiniFAB fails to comply with the Supply Requirements then:


 


	 	(a)	MiniFAB
    must provide TearLab with the reasons for the non-compliance;
	 	 	 
	 	(b)	the
    parties must meet and discuss the reasons given by MiniFAB;
	 	 	 
	 	(c)	the
    parties must, acting reasonably, negotiate a mutually agreed remedy plan to address the reasons for the non-compliance; and
	 	 	 
	 	(d)	MiniFAB
    must implement the agreed remedy plan.


 


	 	(6)	If
    MiniFAB:


 


	 	(a)	gives
    notice to TearLab of Exceptional Circumstances or TearLab reasonably determines that the Exceptional Circumstances have occurred;
    or
	 	 	 
	 	(b)	fails
    to meet Supply Requirements


 


more
than 3 times in any 18 month period and is unable to satisfy TearLab (acting reasonably) that it will be able to maintain a reliable
supply of the Product that meet the Specification, quantity and timing requirements, then TearLab may order the Product from an
alternative supplier.


 


	 	(7)	MiniFAB
    acknowledges and agrees that in consideration for Customer’s agreement to purchase the Product exclusively from MiniFAB,
    TearLab shall be entitled to all remedies (which remedies shall be cumulative) available under this Agreement and under applicable
    law, including without limitation the reasonable cover remedy, subject to TearLab duty to reasonably mitigate any losses it
    may incur.


 


	4.	Capex,
    NRE and Tooling





 


	4.1	Capex





 


	 	(1)	The
    parties will invest the capital expenditure (capex) necessary to develop production capacity for the Product to be
    supplied in accordance with this Agreement and in the proportions set out in clause 4.1(2).
	 	 	 
	 	(2)	TearLab
    will pay for 65% of capex as incurred. MiniFAB will pay for the remaining 35% of capex, which will be recoverable from TearLab
    in accordance with clause 4.1(3). Any capex amount incurred by MiniFAB in excess of the 35% will be recoverable from TearLab
    by monthly invoice. The parties’ obligations with respect to contributions to the capex amount are limited to an aggregate
    capex of $1 million AUD for Phase 1. Total contributions to the capex amount in respect of Phase 2 are subject to agreement
    but anticipated to be in the vicinity of $3 million AUD.


 


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	 	(3)	MiniFAB
    will recover the cost of its capex contributions through an amortised cost component in the Price for the Product charged
    to TearLab. The amortised amount will become payable once the monthly card volumes reach 200,000 per month. When all capex
    has been recovered, that cost component will be deleted. An amortised cost component will be reintroduced to cover any future
    capex as and when required.
	 	 	 
	 	(4)	The
    total amount of capex outstanding at any time will accrue interest at the Default Rate, with interest calculated and capitalised
    at the end of each month.
	 	 	 
	 	(5)	While
    any capex is outstanding to the account of MiniFAB the amortised amount repayable by TearLab in each Quarter will be the aggregate
    of the ‘amortised amounts’ specified in the then-current Pricing Schedule.
	 	 	 
	 	(6)	If
    the project does not proceed to Phase 2 by 1 January 2020 or is terminated by TearLab, TearLab will pay to MiniFAB all capex
    expended by MiniFAB on the project to date.
	 	 	 
	 	(7)	Despite
    anything to the contrary in clause 4.1(3), if monthly card volumes have not reached 200,000 per month within three and a half
    years of the beginning of Phase 2, TearLab will commence payment of the amortised amount at the rate of $0.30 per card on
    the basis of the actual number of cards purchased from MiniFAB, unless otherwise agreed.


 


	4.2	NRE
    and Tooling





 


	 	(1)	TearLab
    will be responsible for the payment or reimbursement of all non-recurrent expenditure (NRE and Tooling).
	 	 	 
	 	(2)	TearLab’s
    obligation with respect to the NRE and Tooling amount is limited to $1.2 million AUD for Phase 1 and is subject to agreement
    in respect of Phase 2 but is anticipated to be in the vicinity of $2 million AUD.
	 	 	 
	 	(3)	MiniFAB
    will give a discount of 20% from its standard rates in respect of the labour component of the NRE for Phase 1.
	 	 	 
	 	(4)	Any
    future NRE and Tooling will be paid or reimbursed to MiniFAB by TearLab.
	 	 	 
	 	(5)	MiniFAB
    will invoice TearLab monthly to recover NRE and Tooling expended by MiniFAB.


 


	4.3	Production
    phases





 


	 	(1)	The
    parties acknowledge that development and production of the Product will proceed in two phases:


 


	 	(a)	Phase
    1 is the initial development and production up to the point where a viable Product is produced and is ready for market at
    volumes of 10,000 cards per month.
	 	 	 
	 	(b)	Phase
    2 is the further investment of production capacity.


 


	 	(2)	Phase
    two will not commence until MiniFAB is satisfied that there is a commercially viable Product and a route to market.


 


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	 	(3)	In
    reaching agreement in respect of capex and NRE for Phase 2, the parties expect that an open book approach to costs will be
    adopted (or such other risk control as agreed).


 


	5.	Forecasting
    and ordering





 


	5.1	Basic
    Forecast





 


	 	(1)	15
    Business Days before the 1st day of each calendar month, TearLab must submit to the Supplier a forecast of the
    quantity of the Product that TearLab expects to take delivery of in each of the next 12 months. This will be on the basis
    that:
	 	 	 
	 	(2)	Month
    1, 2 and 3 – will be a firm order for Product (Purchase Order), which the Supplier must accept and comply with,
    provided it is no more than 120% of the quantity specified in Month 2 of the prior forecast, does not breach the Upper Limit
    Rule below and is no more than the Monthly Manufacturing Limit;
	 	 	 
	 	(3)	Months
    4 and 5 are constrained forecasts and cannot be more than 120% of the quantity specified in Months 3 and 4 respectively of
    the prior forecast;
	 	 	 
	 	(4)	Months
    6 through 12 are best efforts forecasts by TearLab but are not binding in any way; and
	 	 	 
	 	(5)	The
    total of months 1 through to 6 multiplied by 1.2 represents an aggregate upper limit on the total orders for Product that
    the Supplier can be required to manufacture and deliver in that 6 month period (the Upper Limit Rule).
	 	 	 
	 	(6)	A
    Purchase Order constitutes an irrevocable offer in respect of the relevant month made by TearLab to the Supplier for the Product
    for the delivery of the Product to the Delivery Point all in accordance with the terms and conditions of this Agreement. Once
    received by the Supplier, the Purchase Order is firm and may not be cancelled or modified without the Supplier’s prior
    written consent.
	 	 	 
	 	(7)	Subject
    to clauses 5.1(8) and 5.2, MiniFAB must accept a Purchase Order if the quantity of the Product the subject of the Purchase
    Order is no more than 120% of the most recent forecast for that month, it does not breach the Upper Limit Rule and is no more
    than the Monthly Manufacturing Limit (Complying Order). In addition, MiniFAB agrees to use Commercially Reasonable
    Efforts to accept and satisfy an order which is not a Complying Order. In the event that TearLab places an order which is
    not a Complying Order, MiniFAB shall:


 


	 	(a)	accept
    the Purchase Order with respect to quantities that would mean the order is a Complying Order; and
	 	 	 
	 	(b)	notify
    TearLab in writing of those quantities (if any) exceeding such quantity as MiniFAB is prepared to deliver, which together
    with the quantities accepted under clause 5.1(7)(a) will be taken to comprise the Purchase Order.


 


	 	(8)	If
    MiniFAB believes, on reasonable grounds, that a Purchase Order is materially incorrect or, to the extent a Purchase Order
    is not a Complying Order, MiniFAB is not capable of satisfying the Purchase Order to the extent of such excess, MiniFAB must
    notify TearLab as soon as possible. If MiniFAB does not reject a Purchase Order to the extent of such excess within 5 Business
    Days of receipt of the Purchase Order, then MiniFAB is deemed to have accepted the Purchase Order in full. Any rejection by
    MiniFAB of a Purchase Order that is not provided for in this clause 5.1(8) is deemed to be a material breach of this Agreement
    for the purposes of clause 18.2(1).


 


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	5.2	Capacity
    increase


 


	 	(1)	When
    the Volume Threshold is reached, provided that there is at least two years remaining in the Term, upon request by TearLab
    MiniFAB and TearLab will meet in good faith to determine whether the projected manufacturing volume requirements for the remainder
    of the Term warrant investment in an increase in its annual production capacity of Product to 10 million units (or some other
    capacity increase that is economically viable).
	 	 	 
	 	(2)	If
    the parties determine that an increase in its annual production capacity is warranted (including TearLab being satisfied that
    the capital expenditure is proportionate to the economic value likely to be derived), then MiniFAB will initiate an increase
    in its annual production capacity of Product to 10 million units per annum (or such other capacity increase as is agreed).
    MiniFAB will use Commercially Reasonable Efforts to have such increased capacity online within 18 months of such event occurring.
    When such increased capacity is on-line MiniFAB will advise TearLab and advise the new Monthly Manufacturing Limit.
	 	 	 
	 	(3)	When
    MiniFAB advises TearLab of the new Monthly Manufacturing Limit under clause 5.2(1), the increased capacity will be deemed
    to be a Requested Capacity Increase of 5 million Product units per annum for the purposes of clause 5.3(2).


 


	5.3	Manufacturing
    Limit


 


	 	(1)	TearLab
    may, at any time initiate discussions to determine whether the projected manufacturing volume requirements for the remainder
    of the Term warrant investment in an increase in MiniFAB’s annual production capacity (noting that on the basis of current
    manufacturing technology, economical increases will be in steps of 5 million Product units per annum). If the parties determine
    that an increase in annual production capacity is warranted, then TearLab may request that the production capacity be increased
    (Requested Capacity Increase).
	 	 	 
	 	(2)	If
    new facilities are required to meet the Requested Capacity Increase, there will be an 18 month lead time for the Requested
    Capacity Increase to come on-line. Otherwise, there will be a 12 month lead time for the Requested Capacity Increase to come
    on-line. Once the Requested Capacity Increase comes on-line MiniFAB will advise TearLab of the new Monthly Manufacturing Limit.


 


	5.4	Management
    of stock levels of Product


 


	 	(1)	TearLab
    will use all reasonable endeavours to order sufficient quantities of Product to ensure that, subject to MiniFAB performing
    its obligations under this Agreement, TearLab maintains on hand in the United States a sufficient stock of Product which has
    been delivered by MiniFAB to satisfy three months expected demand (Target Stock).


 


	5.5	Minimum
    Order Requirement


 


In
any given period of 6 calendar months, TearLab must place in those 6 months aggregate Purchase Orders equal to 50% of the aggregate
of the forecast orders for Product provided in the respect of the first month of that period (the Minimum Orders). If TearLab
fails to do so, then it must pay to MiniFAB an amount equal to the Price (as set out in the Pricing Schedule) multiplied by the
difference between the Minimum Orders and the actual aggregate Purchase Orders. Unless otherwise agreed, such amount, if any,
will be calculated and invoiced by MiniFAB within 60 days of the end of the relevant 6 month period, and be payable by TearLab
within 40 days of invoice. Where any such sum is paid, it will be deemed to be equivalent to a Purchase Order of the relevant
number of Products in the month in which it is paid, and be taken into account in any further calculation under this clause in
respect of that month.


 


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	6.	Delivery


 


	6.1	Product


 


MiniFAB
will manufacture the Product ordered in respect of a month and deliver it CIP (Incoterms 2010) for no delivery charge to the Delivery
Point by the end of the relevant month. In the event that any two or more consecutive monthly orders by TearLab in accordance
with clause 4 are delivered more than forty-five (45) day after the end of the month to which they relate (unless some later date
has been agreed), then TearLab shall be entitled to a five percent (5%) discount on the Price of the Products which were not delivered
at the end of that 45 day period. Provided that the Products are delivered within 90 days after the end of the relevant month,
then the discount set out above is the sole and exclusive remedy of TearLab for any loss, damage or liability suffered or incurred
by TearLab in connection with the delay. To avoid doubt, delivery occurs when the Products are available for inspection at the
Delivery Point.


 


	6.2	Inspection
    and Nonconforming Product


 


	 	(1)	TearLab
    has the right to enter the MiniFAB Facility and inspect the Product within 14 days after delivery (or such longer time as
    provided in the Technical Agreement) and must accept the Product if they meet the Specifications. The Product will be deemed
    accepted if TearLab does not inspect the Product within such 14 day period. If TearLab fails to object in writing within the
    applicable period, then TearLab must accept the delivered Product. TearLab may reject the delivered Product only if the Product
    fail to meet the Specifications. If TearLab rejects the delivered Product, TearLab must provide MiniFAB in writing the reasons
    for the rejection and the reasonably available evidence to substantiate those reasons.
	 	 	 
	 	(2)	If
    TearLab rejects any Product, then MiniFAB shall promptly supply conforming replacement Product as soon as possible, whether
    or not MiniFAB agrees that TearLab properly rejected such Product. MiniFAB agrees to notify TearLab in writing if such replacement
    Product cannot be despatched from the MiniFAB Facility within five (5) Business Days.
	 	 	 
	 	(3)	If
    TearLab properly rejected the original Product, then:


 


	 	(a)	TearLab’s
    payment for the rejected Product shall be deemed payment for the replacement Product; and
	 	 	 
	 	(b)	If
    it takes MiniFAB more than 1 month after the original required delivery date to deliver the replacement Product, then TearLab
    shall be entitled to a 5 percent (5%) discount on the Price of the rejected Product, and provided the replacement Product
    are delivered within 2 months of the original required delivery date then that discount is the sole and exclusive remedy of
    TearLab for any loss, damage or liability suffered or incurred by TearLab in connection with the rejected Product.


 


	 	(4)	If
    TearLab was not entitled to reject the original Product in accordance with clause 6.2(1) then TearLab shall pay for both the
    rejected Product and the replacement Product.
	 	 	 
	 	(5)	If
    the parties disagree whether TearLab properly rejected the original Product, then the parties shall refer such matter to a
    mutually acceptable, independent testing laboratory (the Testing Lab) to determine whether such Product were properly
    rejected. The fees and costs of the Testing Lab shall be borne by TearLab if the Testing Lab determines that the Product were
    improperly rejected and by MiniFAB if the Testing Lab determines that the Product were properly rejected. If the Testing Lab
    is unable to determine whether the rejected Product met the Specifications, then either party may submit the matter to the
    dispute resolution process in clause 21.


 


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    	 	12	 



    	 



    

 


	 	(6)	TearLab
    may withhold payment for any rejected Product (and only the rejected Product) until:


 


	 	(a)	MiniFAB
    delivers conforming Product, or
	 	 	 
	 	(b)	the
    Testing Lab or dispute resolution process determines that the Product rejected by TearLab met the Specifications.


 


	6.3	Risk
    and title


 


	 	(1)	Risk
    in the Product will remain with MiniFAB until the Product is provided at the Delivery Point.
	 	 	 
	 	(2)	Property
    in the Product supplied by MiniFAB to TearLab under this Agreement does not pass to TearLab until the money owing for the
    Product has been paid in full. If TearLab in the meantime takes custody of the Product, TearLab retains them as bailee of
    MiniFAB. Once title to Products passes to TearLab, MiniFAB retains a lien on them in respect of other monies payable to it
    by TearLab.


 


	6.4	Quality
    Control 


 


MiniFAB
shall conduct all quality control testing of the Product supplied under this Agreement prior to delivery in accordance with the
relevant Technical Agreement and applicable Laws. MiniFAB shall, and shall cause its subcontractors to, retain records and samples
of Product relating to such testing, and samples (identified by batch number) of the Product supplied to TearLab, in each case
in conditions and for times as required by applicable Law (collectively, Delivery Samples), and shall provide TearLab with
reasonable access to the Delivery Samples for testing and other purposes on TearLab’s request. If TearLab conducts quality
control testing of Product after their delivery to TearLab, TearLab must use the same analytical methodology as used by MiniFAB.
Upon written request from TearLab, MiniFAB shall provide a reasonably detailed description of the analytical methodology used
by MiniFAB for quality control testing of the Product.


 


	7.	Price


 


	7.1	Pricing
    Schedule


 


The
Price for the Product is set out in the Pricing Schedule.


 


	7.2	Provisions
    of the Pricing Schedule 


 


To
the extent the Pricing Schedule contains any provisions inconsistent with the body of this Agreement the provisions of the Pricing
Schedule apply.


 


	7.3	Invoicing


 


MiniFAB
will invoice TearLab the Price for Product after shipment to the Delivery Point.


 


	7.4	Payment


 


TearLab
must pay all undisputed invoices within 40 days after date of the invoice.


 


	7.5	Interest


 


If
TearLab fails to pay an amount on the due date for any undisputed payment, TearLab must additionally pay interest at the Default
Rate on the amount outstanding. Interest will be calculated and payable monthly, computed on the last day of each month on the
maximum outstanding during that month, from the due date until all amounts are paid in full. MiniFAB may apply any payments received
from TearLab against the interest on outstanding amounts first.


 


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	7.6	Price
    adjustments


 


	 	(1)	The
    Price of the Product includes an identified component in respect of Reagents (Reagent Cost). The Reagent Cost is a
    pass-through cost, and the Price (cost of goods) may be varied by notice to TearLab to reflect any increase or decrease in
    the Reagent Cost.
	 	 	 
	 	(2)	The
    Price of the Product includes certain assumed supply cost components in respect of manufacturing and delivery of the Product
    (Base Cost). The Base Cost is the aggregate of the costs comprised of the items set out in the costing assumptions
    in the Specification. The Price (cost of goods) will be varied to reflect any increase or decrease in the Base Cost in accordance
    with clauses 7.6(3) to 7.6(6).
	 	 	 
	 	(3)	If
    the Base Cost increases up to 10% the Price may be varied by notice to TearLab to reflect any increase in the Base Cost. If
    Base Cost subsequently decreases within this range then, subject to subclause 7.6(8), the Price will be reduced to TearLab,
    limited to original Base Cost.
	 	 	 
	 	(4)	Subject
    to clause 7.6(6), if the Base Cost increases by more than 10% the Price will increase by 50% of the amount of the increase
    that is greater than the increase in the Base Cost calculated in clause 7.6(3). If Base Cost subsequently decreases within
    this range then, subject to subclause (8), the Price will be reduced 50% limited to original Base Cost plus 10%.
	 	 	 
	 	(5)	If
    the Base Cost decreases below original Base Cost then, subject to subclause (8), the Price will be reduced by 50% of the amount
    of the decrease in the Base Cost. If Base Cost subsequently increases, the Price will be increased 50% up to original Base
    cost.
	 	 	 
	 	(6)	If
    the Base Cost increases by more than 20% the parties will negotiate in good faith to set a new Price to reflect the amount
    of the increase in the Base Cost.
	 	 	 
	 	(7)	If
    labour costs increase by more than 15% the parties will negotiate in good faith to set a new Price to reflect the amount of
    the increase in the Base Cost.
	 	 	 
	 	(8)	The
    parties acknowledge that by an addendum to the Original Agreement (referred to in clause 12.3) the price for the ‘TCI
    cards’ produced under that agreement was varied to the detriment of MiniFAB, and the parties have agreed to value that
    detriment to at $[***]. The parties have agree that $[***] is the value of a discount pool (Pool Value) to which the
    value of any Price reduction that TearLab would otherwise be entitled to receive under clauses 7.6(3), (4) or (5) (savings)
    will first be applied. If TearLab would otherwise be entitled to receive a reduced Price under clauses 7.6(3), (4) or (5),
    the savings will be applied against the Pool Value and TearLab will continue to pay the same (unreduced) Price until the aggregate
    of the savings exceeds the Pool Value.


 


	7.7	Exchange
    rate variation


 


	 	(1)	Without
    limiting any other provision in relation to pricing, for so long as the exchange rate for the Australian dollar remains within
    the range of 0.7 to 0.8 US dollars (Review Range), the price remains firm. If the exchange rate moves outside of that
    range either party may initiate a price review.
	 	 	 
	 	(2)	If
    a party initiates a price review under this clause 7.7, the parties will, in good faith, agree a new review range, being a
    ten-cent US range to reflect where the Australian dollar is then currently trading. That new review range, when agreed, will
    then be the Review Range for the purposes of clause 7.7(1), which will be varied accordingly and continue to apply as varied.


 


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    	 	14	 



    	 



    

 


	 	(3)	If
    a new Review Range is agreed under clause 7.7(2), the Price (excluding the Reagent Cost) will be amended to reflect the proportional
    change in the Review Range.


 


	7.8	Discounted
    initial cards and recovery


 


	 	(1)	MiniFAB
    will give TearLab a discount on the Price of the first [***] cards sold to TearLab. The card Price for the first [***] cards
    will be $[***] (a discount of $[***]per card).
	 	 	 
	 	(2)	The
    amount of the discount on each card ($[***] in total) will be treated in the same way as the capex outstanding to the account
    of MiniFAB and added to the outstanding capex amount, and will be recoverable from the amortised amount payable by TearLab
    in respect of each card in accordance with clause 4.1.


 


	8.	Disaster
    Recovery Planning


 


	8.1	Duplicate
    final assembly Cell


 


Once
the Volume Threshold is reached, provided there is at least 2 years remaining on the Term, MiniFAB and TearLab will meet in good
faith to determine whether the projected manufacturing volume requirements for the remainder of the Term warrant investment in
a duplicate final assembly and packaging cell at an alternative and separate secured location within the MiniFAB Facility.


 


	9.	Development
    of New Products


 


	9.1	R&D
    Services


 


	 	(1)	R&D
    Services for New Products include:


 


	 	(a)	project
    management services relating to the development of the New Product;
	 	 	 
	 	(b)	assisting
    TearLab in the development, validation and finalisation of the Requirement Definitions for the New Product;
	 	 	 
	 	(c)	assisting
    TearLab in the development, validation and finalisation of the Specifications for the New Product;
	 	 	 
	 	(d)	using
    Commercially Reasonable Efforts to develop processes, methodology and technology to manufacture the New Product;
	 	 	 
	 	(e)	using
    Commercially Reasonable Efforts to evaluate and recommend appropriate technology necessary to manufacture the New Product;
	 	 	 
	 	(f)	using
    Commercially Reasonable Efforts to develop and construct plant and equipment necessary to manufacture the New Product; and
	 	 	 
	 	(g)	such
    other services as specified in a Development Order.


 


	 	(2)	R&D
    Services exclude:


 


	 	(a)	the
    initial formulation of and research on the Requirement Definitions for the New Product;


 


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	 	(b)	carrying
    out experiments, clinical tests or other validation methodologies in relation to the New Product;
	 	 	 
	 	(c)	preparations
    or filings relating to obtaining Registration for the New Product;
	 	 	 
	 	(d)	sales,
    distribution, marketing or public release of the New Product;
	 	 	 
	 	(e)	patent
    review; and
	 	 	 
	 	(f)	legal
    or other professional advisory services.


 


	9.2	Request
    for development


 


	 	(1)	TearLab
    may, from time to time, request MiniFAB in writing to provide R&D Services to develop a New Product (Development Request).
	 	 	 
	 	(2)	Subject
    to clause 9.2(4), if and when TearLab elects, in its discretion, to develop a New Product, TearLab agrees that it will provide
    an opportunity for MiniFAB to provide the R&D Services with respect to the New Product, as follows:


 


	 	(a)	TearLab
    shall provide a written Development Request for the New Product pursuant to clauses 9.2(1) and 9.2(3);
	 	 	 
	 	(b)	the
    parties shall discuss in good faith the anticipated activities under the Development Request and capabilities required to
    perform such activities;
	 	 	 
	 	(c)	if
    MiniFAB does not wish to undertake to perform the applicable R&D Services for the New Product, MiniFAB agrees to promptly
    notify TearLab in writing;
	 	 	 
	 	(d)	if
    MiniFAB wishes to perform the applicable R&D Activities for the New Product, MiniFAB shall propose the financial terms
    under which it is willing to undertake the R&D Services specified in the Development Request; and
	 	 	 
	 	(e)	if
    MiniFAB has appropriate capability (with respect to technical approach and development schedule) to perform such R&D Activities
    for the New Product as set forth in the Development Request, and offers to perform such activities on terms taken as a whole
    (including without limitation financial terms that are at least as favorable to TearLab as the terms proposed by a third party,
    as well as other material terms including but not limited to, scope , and intellectual property rights) that are at least
    as favorable to TearLab as other bids for conducting such R&D Services TearLab receives from third parties with capability
    of performing such R&D Services, then TearLab shall engage MiniFAB for the conduct of such R&D Services for the New
    Product. In such event, the parties shall prepare and sign a mutually agreed written Development Order, which shall set forth
    the activities to be conducted, timelines, deliverables, financial terms, and other mutually agreed terms and conditions regarding
    such R&D Services. Such Development Order shall be consistent with the intellectual property provisions and other applicable
    terms and conditions of this Agreement.


 


	 	(3)	A
    Development Request must include:


 


	 	(a)	a
    detailed description of the New Product;
	 	 	 
	 	(b)	draft
    Requirement Definitions for the New Product; and
	 	 	 
	 	(c)	a
    draft project plan including a proposed timetable.


 


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	 	(4)	MiniFAB
    will consider a Development Request and notify TearLab in writing whether or not MiniFAB accepts the Development Request within
    20 Business Days of receipt of the request. If MiniFAB fails to respond within that time period, then it is deemed to have
    rejected the Development Request. To avoid doubt, MiniFAB is not required to provide any reason for rejecting a Development
    Request. It is understood that the Development Request is intended as an opportunity for the parties to negotiate terms and
    conditions on which MiniFAB may conduct the applicable R&D Services for TearLab. Accordingly, (i) MiniFAB shall not be
    obligated to accept any Development Request, and (ii) except as expressly set forth in clause 9.2(2)(e) with respect to the
    New Product, TearLab shall not be obligated to engage MiniFAB to conduct R&D Services Without limiting the foregoing,
    if MiniFAB rejects (or is deemed to have rejected) the Development Request for the New Product, then despite clause 9.2(2),
    TearLab may engage another service provider to provide R&D Services in respect of that Development Request. TearLab shall
    have no obligation to offer to MiniFAB any further opportunity, or to engage MiniFAB, to perform any R&D Services except
    as expressly set forth under clause 9.2(2).
	 	 	 
	 	(5)	Without
    limiting anything else in this clause 9, if TearLab wishes to develop any New Product that is relevant to MiniFAB’s
    technology, it must provide MiniFAB with the opportunity to submit a proposal for the performance of the work by providing
    a Development Request. TearLab may also tender the development work in respect of the New Product to any other person, but
    it must give MiniFAB a final opportunity to quote on the work before offering the job to someone else.


 


	9.3	Development
    Order


 


	 	(1)	If
    MiniFAB accepts a Development Request, then:


 


	 	(a)	MiniFAB
    will provide TearLab with a revised draft project plan including proposed milestones and payment milestones; and
	 	 	 
	 	(b)	the
    parties must meet within 20 Business Days of the acceptance to meet and discuss the Development Request with the intent to
    finalise a Development Order.
	 	 	 
	 	(c)	The
    project plan shall identify the specific expertise to be applied to the development and clear deliverables for each phase
    of the project. A list of assumptions and risks should be identified.


 


	 	(2)	The
    parties will act reasonably in negotiating the terms of the Development Order.
	 	 	 
	 	(3)	To
    avoid doubt, neither party is bound by a Development Request, a Development Order or any obligations to develop a New Product
    until the relevant Development Order is signed by both parties.


 


	9.4	Provision
    of R&D Services


 


	 	(1)	MiniFAB
    will provide the R&D Services in accordance with the relevant Development Order in a diligent and ethical manner, with
    due care and skill and to a high professional standard, in accordance with this Agreement, and all applicable Regulatory Requirements.
	 	 	 
	 	(2)	MiniFAB
    will use Commercially Reasonable Efforts to meet any milestones agreed in the relevant Development Order. Each Development
    Order may specify the agreed-upon remedies that shall apply for any failure by MiniFAB to meet such milestones, or otherwise
    fail to perform the R&D Services in accordance with clause 9.4(1).


 


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	9.5	Responsibilities
    of each party


 


	 	(1)	MiniFAB
    is responsible for and will bear the costs and expenses associated with:


 


	 	(a)	the
    provision of the R&D Services in accordance with the relevant Development Order (Development Expenses); and
	 	 	 
	 	(b)	the
    construction and acquisition of any plant and equipment and other related capital expenditures relating to the R&D Services.


 


	 	(2)	TearLab
    will develop, validate and finalise the Requirement Definitions and the Specifications of the New Product in consultation
    with MiniFAB. MiniFAB will assist TearLab in accordance with the R&D Services.
	 	 	 
	 	(3)	TearLab
    is solely responsible for and will bear all costs and expenses associated with all activities relating to the research and
    development of the New Product that are not expressly included as part of R&D Services as identified in the project plan
    or that are expressly excluded from the R&D Services.


 


	9.6	Ownership
    of Requirement Definitions and Specifications


 


The
Requirement Definitions and the Specifications of any Product or New Product and all Intellectual Property rights relating to
any Product or New Product, the Requirement Definitions and the Specifications therefor are and will remain to be owned solely
by TearLab. MiniFAB hereby assigns all Intellectual Property subsisting in the foregoing to TearLab. Project design including
drawings and procedures that are created as a result of the R&D services, shall be provided to TearLab upon request and TearLab
at their discretion may request changes that shall be mutually agreed upon. Manufacturing documentation including procedures shall
be made available for TearLab to review.


 


	9.7	Payment
    for R&D Services


 


TearLab
will pay MiniFAB for the provision of the R&D Services in accordance with payment milestones specified in the relevant Development
Order.


 


	9.8	Other
    matters relating to Development Order


 


Prior
to the Successful Completion of a New Product, the parties will meet and negotiate (acting reasonably) the following items relating
to the New Product:


 


	 	(1)	the
    Pricing Schedule for the New Product;
	 	 	 
	 	(2)	the
    Manufacturing and Ordering Schedule (including the Annual Production Capacity) for the New Product, if any; and
	 	 	 
	 	(3)	if
    the New Product is a replacement or successor of an existing Product, variations to the Manufacturing and Ordering Schedule
    of the existing product (including the Annual Production Capacity and Expected Limit) for that existing Product.


 


	9.9	Prototype
    Acceptance Testing


 


	 	(1)	If
    required under the relevant Development Order, the parties will conduct acceptance testing of the New Product in accordance
    with this clause 9.9.
	 	 	 
	 	(2)	Promptly
    upon completion of the development of the New Product, MiniFAB shall manufacture and supply to TearLab a reasonable number
    of prototype units for the purposes of TearLab’s testing and evaluation, together with such documentation (including
    without limitation the QA test report), materials and equipment reasonably necessary for TearLab to perform testing and evaluation
    of the prototype. It is understood that the mutually agreed Development Order may provide for the supply and testing of multiple
    sets of prototype units for the New Product at different stages of development (such as, for example, alpha prototypes and
    beta prototypes).


 


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	 	(3)	TearLab
    may reject the prototype of the New Product only if it does not conform to the Requirement Definitions. TearLab must accept
    the prototype of the New Product if it conforms to the Requirement Definitions.
	 	 	 
	 	(4)	If
    TearLab rejects the prototype then TearLab must notify MiniFAB of the reasons for such rejection and MiniFAB will have a mutually
    agreed upon time not to exceed 30 days days to cure such defect or non-conformance or dispute TearLab’s rejection pursuant
    to the dispute resolution process under clause 19. TearLab may require MiniFAB to resubmit revised prototype units to TearLab
    for testing and evaluation until the prototype fully conforms to the Requirement Definitions of the Product.
	 	 	 
	 	(5)	Upon
    TearLab’s acceptance of the New Product (“Acceptance”), TearLab shall promptly inform MiniFAB in
    writing.


 


	9.10	Successful
    Completion


 


Successful
Completion in relation to a New Product means:


 


	 	(1)	if
    the relevant Development Order provides a definition – the meaning ascribed to that term in the Development Order; or
	 	 	 
	 	(2)	the
    Acceptance of a New Product by TearLab, as such term is defined in clause 9.9.


 


	9.11	Discontinuance
    – Unable to finalise Requirement Definitions


 


If
the parties are unable to finalise the Requirement Definitions for the New Products by the deadline specified in the relevant
Development Order (or after a reasonable time if no such deadline is specified), then either party may discontinue the relevant
Development Order by notifying the other party in writing, in which case TearLab will be solely responsible for all Development
Expenses incurred up to that point in time and any other unavoidable costs reasonably incurred by MiniFAB in connection with the
discontinuance.


 


	9.12	Discontinuance
    – TearLab


 


TearLab
may discontinue the development of any New Product at any time upon written notice, in which case MiniFAB will invoice, and TearLab
must pay, all outstanding amounts that are payable in accordance with the payment milestones specified in the Development Order
for the R&D Services actually rendered by MiniFAB prior to the termination of the relevant Development Order. It is understood
and agreed that any R&D Services with respect to the New Product will be undertaken in reasonable stages as per the product
plan, in order to provide TearLab an opportunity to evaluate the results of the R&D Services in each such stage and to determine
whether TearLab, in its discretion, wishes to cease development of the New Product. In the event that TearLab unilaterally discontinues
development of the New Product and terminates the corresponding R&D Services (other than as a result of MiniFAB’s inability
or unwillingness to conduct such R&D Services, or as set forth in clause 18.2) prior to MiniFAB’s shipment of beta prototypes,
then TearLab agrees that it will provide an opportunity for MiniFAB to provide the R&D Services with respect to development
of its next subsequent New Product (excluding any New Products then already under contract for development by third parties) as
set forth in clause 9.2(2), subject to the terms of clause 9.2(4).


 


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	9.13	Definitions
    used in this clause 


 


	 	(1)	New
    Products means any test cards other than the Product, as specified in Schedule 2;


 


	10.	Intellectual
    Property


 


	10.1	Ownership
    of Requirement Definitions and Specifications


 


The
Requirement Definitions and the Specifications of the Product and all Intellectual Property rights relating to the Product, the
Requirement Definitions and the Specifications are and will remain owned solely by TearLab.


 


	10.2	TearLab
    Background IP


 


TearLab
shall retain ownership of any pre-existing Intellectual Property rights in materials, information, tools and methodologies provided
by TearLab to MiniFAB for use by MiniFAB for the purposes of undertaking activities under this Agreement and any improvements
to them.


 


	10.3	MiniFAB
    Background IP


 


	 	(1)	MiniFAB
    shall retain ownership of any pre-existing Intellectual Property rights in materials, information, tools and methodologies
    provided by MiniFAB for the purposes of undertaking activities under this Agreement, and any improvements to them (except
    to the extent that those improvements relate solely to the Product (Dedicated Improvements)) (collectively, “MiniFAB
    Background IP”) and MiniFAB hereby grants TearLab a worldwide, non-exclusive, royalty-free license (with the right
    to grant and authorize sublicenses) to make, have made, use, offer for sale, sell and otherwise exploit MiniFAB Background
    IP as may be required to make, have made, use, offer for sale, sell and otherwise exploit the Product or incorporated into
    processes or procedures for manufacturing or testing the Product in accordance this Agreement.
	 	 	 
	 	(2)	All
    MiniFAB Background IP shall be treated by TearLab and its sublicensees and their third party manufacturers as Confidential
    Information of MiniFAB; provided, however, that


 


	 	(a)	TearLab
    may disclose the MiniFAB Background IP to actual and potential investors, sublicensees, advisors and/or contract manufacturers
    of Base Cards or finished Products, in each case under reasonable and customary terms of confidentiality; and
	 	 	 
	 	(b)	TearLab
    and its sublicensees and contract manufacturers may disclose such information as is reasonably necessary in seeking regulatory
    approvals in connection with the manufacture, clinical development, use or commercialization of Product.


 


	10.4	Limited
    licences


 


	 	(1)	Subject
    to the terms and conditions of this Agreement, TearLab grants a non-exclusive licence (TearLab Licence) in respect
    of any Intellectual Property, know-how and technical information owned (or licensed with the right to sublicense) by TearLab
    relating to the Manufacture or final assembly of the finished Product (TearLab IP) to:


 


	 	(a)	MiniFAB
    to perform MiniFAB’s obligations under this Agreement, which licence may not be sublicensed (except to the extent necessary
    to allow MiniFAB to subcontract as permitted under clause 17), is royalty free and continues only during the Term;


 


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    	 	20	 



    	 



    

 


	 	(b)	MiniFAB
    to reproduce, use and modify the TearLab IP solely for the purposes of manufacturing, marketing, distributing and selling
    the Product in accordance with clause 18.5, which licence may be sublicensed, is royalty bearing in accordance with clause
    18.6(2)(e), and continues for the term provided in clause 18.6(2)(b), and is irrevocable.


 


	 	(2)	Under
    the licences granted in clauses 10.4(1)(a) MiniFAB may only use the TearLab IP to the extent necessary or desirable to perform
    their obligations under this Agreement.


 


	10.5	Provision
    of TearLab IP materials


 


TearLab
will provide or otherwise make available all information and materials relating to the TearLab IP known to or possessed by TearLab
that are reasonably necessary to enable MiniFAB to perform their obligations under this Agreement.


 


	10.6	Ownership
    of TearLab IP and Improvements to TearLab IP


 


	 	(1)	All
    TearLab IP, together with all improvements to TearLab IP, including any modifications and developments made thereto by MiniFAB,
    and any Dedicated Improvements (collectively, TearLab Improvements), shall be the sole property of TearLab. MiniFAB
    hereby assign to TearLab their entire right, title and interest in TearLab Improvements. TearLab Improvements will be included
    in TearLab IP and covered by the TearLab Licence.
	 	 	 
	 	(2)	All
    TearLab IP shall be treated by MiniFAB as Confidential Information of TearLab.
	 	 	 
	 	(3)	MiniFAB
    shall promptly disclose to TearLab all TearLab Improvements, and provide TearLab with copies of all information available
    to MiniFAB regarding TearLab Improvements.
	 	 	 
	 	(4)	To
    the extent any of the rights that the parties intend to be assigned by MiniFAB to TearLab (as set forth in clause 10.1 and
    this clause 10.6) cannot be assigned by MiniFAB to TearLab, MiniFAB (as relevant) hereby grant to TearLab an exclusive, royalty-free,
    transferable, irrevocable, worldwide license (with rights to sublicense through multiple tiers of sub-licensees) to practice
    such non-assignable rights, title and interest. To the extent any of such rights can be neither assigned nor licensed by MiniFAB
    to TearLab, MiniFAB hereby irrevocably waive and agree never to assert such non-assignable and non-licensable rights, title
    and interest against TearLab or any of TearLab’s licensees or successors in interest to such non-assignable and non-licensable
    rights.


 


	10.7	IP
    Warranties and indemnity


 


	 	(1)	TearLab
    warrants that TearLab has the right and authority to grant the TearLab Licence.
	 	 	 
	 	(2)	TearLab
    shall indemnify and at all times holds harmless MiniFAB against any Losses resulting from a third person’s claim against
    MiniFAB alleging that the use of TearLab IP by MiniFAB constitutes an infringement of any Intellectual Property of that third
    person; provided, however, that TearLab shall not be obligated to indemnify MiniFAB, and MiniFAB shall indemnify and at all
    times hold harmless TearLab against any such Losses (i.e., Losses arising from third party claims of infringement), to the
    extent the alleged infringement results from any modifications and developments made to TearLab IP by MiniFAB other than in
    accordance with instructions contained in any Specifications.


 


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	10.8	Assurance
    of TearLab Licence


 


MiniFAB
acknowledges that certain parts of the TearLab IP may incorporate or exploit Intellectual Property that is licensed from University
of California, San Diego (UCSD IP). If MiniFAB’s rights under clause 18.5 take effect, TearLab will (providing MiniFAB
remains within the licensure requirements):


 


	 	(1)	provide
    MiniFAB with all information and materials relating to the UCSD IP, including explanations on which parts of the TearLab IP
    incorporate or exploit the UCSD IP;
	 	 	 
	 	(2)	use
    its best endeavours to procure a sub-licensable licence direct to MiniFAB to allow MiniFAB reproduce, use and modify the UCSD
    IP solely for the purposes of manufacturing, marketing, distributing and selling the Product in accordance with clause 18.5,
    which licence is only to take effect from the date as provided in clause 18.5; and
	 	 	 
	 	(3)	facilitate,
    and provide all reasonable assistance to MiniFAB in relation to, any negotiations for a direct licence between MiniFAB and
    the University of California, San Diego in respect of the UCSD IP.


 


	10.9	Infringement
    and protection of TearLab IP


 


TearLab
is solely responsible for the protection, defence and maintenance of the TearLab IP. However, MiniFAB will promptly notify TearLab
if they are aware of any infringement of the TearLab IP by any third person.


 


	10.10	Product
    Moulds


 


	 	(1)	Notwithstanding
    the previous provisions of this clause 10, all injection moulds directed to the Product that are paid for directly by TearLab
    and invoiced as a separate item or amortized in the cost of the Product (after full cost recovery) will belong to TearLab,
    otherwise they will be owned by MiniFAB.
	 	 	 
	 	(2)	All
    rights in and to such injection moulds, shall be owned by MiniFAB and are not part of TearLab IP. MiniFAB will cooperate with
    TearLab in good faith to assist TearLab in such manner as TearLab may reasonably request if such moulds are required to be
    duplicated.
	 	 	 
	 	(3)	In
    the event that this Agreement is terminated for any reason, MiniFAB will still provide reasonable assistance to TearLab under
    clause 10.10(2) on reasonable commercial terms as agreed between MiniFAB and TearLab.


 


	11.	Obligations
    of MiniFAB


 


	11.1	Cooperation
    with TearLab


 


MiniFAB
will: (a) make documentation appropriately redacted as mutually agreed (excluding background IP) for the Product supplied under
this Agreement available to TearLab for inspection, review, retention and approval, as appropriate, including analytical and product
design documentation, internal progress reports, regulatory compliance files and quality assurance files, as requested by TearLab
and agreed by MiniFAB. Manufacturing documentation and other relevant information, as agreed between the parties and appropriately
redacted, will be made available remotely to TearLab for inspection and review only; (b) reasonably cooperate with TearLab in
responding to all requests for information from customers and the relevant Regulatory Authorities having jurisdiction to make
such requests; and (c) on a quarterly basis, prepare and submit to TearLab a production capacity development plan addressing MiniFAB’s
efforts to increase production capacity to meet TearLab’s forecasts, and participate in a review thereof with TearLab. TearLab
must bear any reasonable pre-approved out-of-pocket costs incurred by MiniFAB pursuant to this clause 11.1. If TearLab refuses
to pre-approve any such reasonable costs described in the preceding sentence on request by MiniFAB, then MiniFAB is released from
its obligations under this clause 11.1 in respect of the obligations that are subject of, and to the extent subject of, those
costs that TearLab refused to pre-approve.


 


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	11.2	Regulatory
    licences


 


MiniFAB
must at its own cost obtain and comply with all necessary licences, consents, permits and regulations which may from time to time
be required by the relevant Regulatory Authorities to carry out their obligations under this Agreement. Where necessary, TearLab
is responsible for obtaining all Registrations and approvals for the export of the Products from Australia or supply of the Products
anywhere in the world.


 


	11.3	Regulatory
    approvals and exemptions


 


As
between the parties, TearLab shall be responsible, in its discretion, for activities in seeking Registrations and other regulatory
approvals from applicable Regulatory Authorities with respect to the Product (including any CLIA waiver from the FDA in respect
of the FDA 510(k) application for the TearLab system which uses the Product developed under the Original Agreement).


 


	11.4	Lot
    records


 


Without
limiting the generality of clause 11.1, on a monthly basis, MiniFAB must retain and furnish to TearLab for analysis by TearLab’s
Quality Department quality control records, to the extent required by the Specifications and all applicable Regulatory Requirements.


 


	11.5	Facility
    Audits


 


TearLab
shall have the right, during normal business hours and upon reasonable notice, to audit MiniFAB’s facility (or any one of
such facilities) at which the Products are manufactured for compliance with the Specifications, the Regulatory Requirements, and
the terms and conditions of this Agreement. MiniFAB shall give TearLab prior written notice (whenever reasonably feasible) of
any Governmental Agency inspection of any facility, and shall permit a representative of TearLab to be present at such inspection.
MiniFAB shall promptly provide to TearLab copies of all notices, correspondence and other materials delivered to or received from
the Governmental Agency regarding such facility or the Products.


 


	12.	Meeting


 


	12.1	During
    the Term, MiniFAB and TearLab will endeavour to meet at least every 6 months to discuss and review the state of the relationship
    between them. Each of them must ensure that at least one of its senior representatives attend each meeting. Any such meeting
    may be teleconferenced.
	 	 
	12.2	MiniFAB
    and TearLab will alternate to organise the meeting. The person responsible for organising the meeting must prepare a formal
    agenda prior to the meeting and organise formal minutes to be taken and distributed to all attendees after the meeting takes
    place. Each party may provide its suggest agenda items. The compulsory topics for the agenda are as follows:


 


	 	(1)	review
    of previous minutes; and
	 	 	 
	 	(2)	progress
    of any development and registration.


 


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	12.3	The
    parties acknowledge that the Pricing Schedule is based on various assumptions relating to demands, pricing and profitability
    of the Product. If either MiniFAB or TearLab reasonably considers that these assumptions are not valid, then they will, on
    request from the other party, discuss the impact of these invalid assumptions on the Pricing Schedule. The parties may (but
    are not obliged to) agree to amend the Pricing Schedule in accordance with the process set out in clause 24.4, inclusive of
    the minimum order amount. The parties also acknowledge that, by an addendum dated [date], the Original Agreement was varied
    to provide for renegotiation of the price for the ‘TCI cards’ produced under that agreement, if orders fall below
    minimum order quantities for the aggregate of the TCI cards and the Product ordered under this Agreement.


 


	13.	Amendments
    to Specifications


 


	13.1	Compliance
    with Regulatory Requirements


 


In
the event that TearLab or MiniFAB becomes aware of any changes or any pending changes in any applicable Regulatory Requirements
which could affect the manufacture of the Product, TearLab or MiniFAB, as applicable must promptly notify the other in writing
of any such change or proposed change and the Specifications of the Product must then, if necessary be amended by mutual written
agreement of the MiniFAB and TearLab. Such change will become effective and binding on MiniFAB from a date agreed by MiniFAB and
TearLab. Costs and expenses reasonably incurred by MiniFAB to implement the amendments to the Specifications required under this
clause 13.1 may be reflected in the Price of Product as set forth in clause 13.3.


 


	13.2	Voluntary
    changes


 


Either
MiniFAB or TearLab may suggest changes in the Specifications by notifying the other in writing in reasonable detail of such suggested
changes. MiniFAB and TearLab must negotiate in good faith with a view to agreeing to the suggested changes and who will bear the
cost of the same. If they agree in writing upon the suggested changes, including the lead-time for implementing such changes,
the relevant Specifications must be amended accordingly, and any such change will become effective and binding on MiniFAB from
a date agreed by them. Notwithstanding the foregoing, TearLab shall not be obligated to agree to any change to Specifications
proposed by MiniFAB.


 


	13.3	Cost
    of amendments to Specifications or changes in Regulatory Requirements


 


Unless
otherwise agreed by the parties, it is understood that the Price of the Product will be adjusted up or down by an amount equal
to the increase or decrease in MiniFAB’s costs (as determined by the parties’ mutually agreed cost model, which shall
not include amounts allocable to other products or to facilities or equipment not utilized for Product) as a result of changes
in Regulatory Requirements and/or changes in the Specifications. Subject to clauses 13.1 and 13.2, TearLab is responsible for
all pre-approved reasonable out-of-pocket costs and expenses incurred by MiniFAB to implement any changes to the Specifications
under this clause 13. It is understood and agreed that if TearLab pays for the purchase of capital equipment under this clause
13.3, then (i) TearLab shall be the owner of such equipment, (ii) such equipment shall not be used in the manufacture or testing
of any products other than the Product, and (iii) and the parties shall reasonably cooperate to execute and file such documents
as are reasonably required to evidence and protect TearLab’s ownership interest in such equipment. In the event MiniFAB
proposes an upward adjustment in the Price of Product under this clause 13.3, TearLab shall have the right, at its sole cost,
to designate an independent accounting firm reasonably acceptable to MiniFAB to audit MiniFAB’s books and records to verify
the amount of the cost increase claimed by MiniFAB to determine the rights of the parties as described above in this clause 13.3.


 


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	14.	Registrations,
    safety and Product liability


 


	14.1	Registrations
    of Products


 


TearLab
is responsible for the sales, marketing and distribution of the Product, and is also responsible for:


 


	 	(1)	obtaining
    all necessary Registrations for the Product; and
	 	 	 
	 	(2)	maintaining
    records of all sales of Product sufficient to adequately administer a recall, market withdrawal or correction for such period
    as is required under applicable regulations.


 


MiniFAB
agrees to maintain all applicable records relating to the Manufacture of Product supplied hereunder for a period of 5 years after
they are supplied hereunder, as more particularly set forth in the relevant Technical Agreement. Thereafter, MiniFAB shall notify
TearLab in writing before destroying any such records and, if requested by TearLab, agrees to transfer all such records to TearLab
or its designee at TearLab’s expense.


 


	14.2	Adverse
    events


 


TearLab
must promptly disclose to MiniFAB during the Term any information it acquires which relates to the safety of the Product, including,
inter alia, all side effects, injury, toxicity or sensitivity reactions including unexpected or increased incidence and severity
thereof. All such information will be treated as Confidential Information of TearLab.


 


	14.3	Notification
    of defects


 


In
the event MiniFAB becomes aware of any defect in the Product it will immediately notify TearLab in writing and provide it with
a full disclosure of the defect or non-compliance.


 


	14.4	Recalls


 


	 	(1)	The
    parties each must notify the other promptly and in writing if any Product is requested or required to be the subject of a
    recall, market withdrawal or correction (Recall).
	 	 	 
	 	(2)	TearLab
    is solely responsible for the handling and disposition of any Recall and will assume all regulatory responsibility for such
    matters, including responsibility for all communications with the relevant Governmental Agencies. MiniFAB shall diligently
    cooperate with TearLab in the administration of any recall.
	 	 	 
	 	(3)	If
    a Recall is necessary because the Product does not comply with the relevant Requirements, and that non-compliance is caused
    by the fault of MiniFAB then MiniFAB will bear the reasonable cost of the Recall. In all other cases TearLab is solely responsible
    for the cost of the Recall.
	 	 	 
	 	(4)	For
    the purposes of clause 14.4(3), ‘reasonable cost’ means those costs incurred as a direct result of the non-compliance,
    and which costs are to be reduced to the extent that TearLab contributed to or failed to reasonably mitigate such costs.


 


	15.	Insurance


 


	15.1	Required
    Insurance from MiniFAB


 


MiniFAB
must take out and maintain during the Term:


 


	 	(1)	all
    insurances required by law, including workers compensation insurance in accordance with relevant law; and
	 	 	 
	 	(2)	public
    liability insurance for an amount of not less than A$2 Million per claim and in the aggregate.


 


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	15.2	Required
    Insurance from TearLab


 


TearLab
must take out and maintain during the Term:


 


	 	(1)	all
    insurances required by law, including workers compensation insurance in accordance with relevant law; and
	 	 	 
	 	(2)	product
    liability insurance for an amount of not less than US$2 Million per claim in the aggregate.


 


	15.3	Evidence
    of insurance


 


Each
party must, if reasonably requested by the other party, provide the other party with evidence that the each insurance required
to be taken out by the party pursuant to this clause 15 exists and is current.


 


	16.	Warranties


 


	16.1	Product
    warranties


 


MiniFAB
warrants that


 


	 	(1)	the
    Product Manufactured under this Agreement will comply with the Specifications and shall be free from defects in material and
    workmanship;
	 	 	 
	 	(2)	the
    facilities for Manufacture of the Product shall be maintained and operated in compliance with all applicable Regulatory Requirements;
    and
	 	 	 
	 	(3)	all
    Product shall be Manufactured in compliance with the Specifications.


 


	17.	Sub-Contractors


 


	 	(1)	MiniFAB
    may engage sub-contractors to perform MiniFAB’s obligations for the assembly of Product under this Agreement upon express
    prior written consent of TearLab, which consent shall not be unreasonably withheld.
	 	 	 
	 	(2)	Without
    limitation, it is agreed that if TearLab is not comfortable that a proposed sub-contractor has the requisite capabilities
    and that such proposed sub-contractor will protect TearLab’s Intellectual Property rights and that such proposed sub-contractor
    will comply with the terms and conditions set forth in this Agreement (including assignment of intellectual property), or
    if such proposed sub-contractor is involved in the manufacture, development or commercialization of products competing with
    the Product, then it shall be reasonable for TearLab to withhold approval of such proposed sub-contractor.
	 	 	 
	 	(3)	The
    appointment of sub-contractors shall not affect or diminish MiniFAB’s responsibilities and obligations under this Agreement,
    and MiniFAB shall ensure the compliance of each such subcontractor with the confidentiality obligations and other obligations
    of MiniFAB set forth in this Agreement. 


 


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	18.	Term,
    breach and termination


 


	18.1	Term


 


	 	(1)	This
    Agreement commences on the Effective Date and continues for an initial period ending on the End Date.
	 	 	 
	 	(2)	At
    the end of each term this Agreement shall automatically renew for an additional term of five (5) years, unless either party
    provides the other party with a written notice of non-renewal at least 6 months prior to the end of the then current term.


 


	18.2	Termination
    for cause - MiniFAB


 


Notwithstanding
clause 18.1, MiniFAB may terminate this Agreement effective immediately upon the giving of written notice to TearLab if:


 


	 	(1)	TearLab
    commits a material breach of this Agreement and fails to correct the breach within 60 days after written notice to do so;
	 	 	 
	 	(2)	TearLab
    fails to carry out any material provision of this Agreement and the failure is not capable of remedy; or
	 	 	 
	 	(3)	an
    Insolvency Event occurs in relation to TearLab.


 


	18.3	Termination
    for cause - TearLab


 


Notwithstanding
clause 18.1, TearLab may terminate this Agreement effective immediately upon the giving of written notice to MiniFAB (Defaulting
Party) if:


 


	 	(1)	MiniFAB
    commits a material breach of this Agreement and fails to correct the breach within 60 days after written notice to do so;
	 	 	 
	 	(2)	MiniFAB
    fails to carry out any material provision of this Agreement and the failure is not capable of remedy; or
	 	 	 
	 	(3)	an
    Insolvency Event occurs in relation to the MiniFAB .


 


	18.4	Effect
    of termination


 


	 	(1)	Upon
    termination or expiry of this Agreement for any reason other than due to an Insolvency Event in relation to TearLab or breach
    by TearLab:


 


	 	(a)	MiniFAB
    will complete the delivery of all outstanding Purchase Orders;
	 	 	 
	 	(b)	TearLab
    will be bound to purchase and MiniFAB will be bound to manufacture into Product, sell and supply, the whole of its stock of
    cards held by it. This is subject to an upper limit equal to the then outstanding limit on total orders created by the Upper
    Limit Rule, with TearLab having an option to purchase any excess quantity that may be available.


 


MiniFAB
will invoice and TearLab will pay for the Product in accordance with the usual terms of this Agreement.


 


	 	(2)	Upon
    termination or expiry of this Agreement for any reason:


 


	 	(a)	TearLab
    must pay all outstanding undisputed invoices for all completed Purchase Orders; and
	 	 	 
	 	(b)	each
    party must immediately return the Confidential Information of the other party to the other party.


 


[***]
Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.


 




    	 	27	 



    	 



    

 


	 	(3)	In
    the event of any termination of this Agreement other than a termination for cause by MiniFAB under clause 18.2, TearLab shall
    have the right, subject to clause 18.5, to require MiniFAB:


 


	 	(a)	to
    provide all reasonable assistance as requested by TearLab, including transfer of technology, materials, information and documentation,
    to enable TearLab to manufacture the Product internally or to secure the production and supply of the Product by a third party
    contractor (whether or not all or part of such technology, materials, information and documentation falls within the MiniFAB
    Background IP owned by MiniFAB); and
	 	 	 
	 	(b)	to
    provide TearLab with the consultancy services of all key engineering personnel of MiniFAB to effect or support such transfer
    of technology and/or the license to MiniFAB Background IP.


 


TearLab
shall pay MiniFAB for the time spent by MiniFAB’s key personnel in conducting such technology transfer activities as may
be requested by TearLab, at MiniFAB’s reasonable and customary rates for similar consultancy, and shall reimburse MiniFAB’s
out-of-pocket expenses incurred in conducting such technology transfer.


 


	 	(4)	Except
    as provided in clause 18.5, termination is without prejudice to the rights of either party for any prior breach.


 


	18.5	Licence
    of MiniFAB IP on termination


 


	 	(1)	If
    after termination of this Agreement, TearLab wishes to manufacture the Product internally or to secure the production and
    supply of the Product by a third party contractor:


 


	 	(a)	MiniFAB:


 


	 	(i)	in
    the circumstances described in clause 18.4(3), will; or
	 	 	 
	 	(ii)	otherwise,
    may,


 


grant
a licence to TearLab (including a right to sublicense to a third party contractor) to use such technology, materials, information
and documentation as falls within the MiniFAB Background IP; and


 


	 	(b)	TearLab
    will pay to MiniFAB a licence fee (which may be in the form of a one off payment) to be negotiated by the parties in good
    faith. TearLab (or a third party contractor) cannot manufacture the Product until the parties have agreed a licence fee.


 


	18.6	Continuing
    right to manufacture


 


	 	(1)	The
    parties acknowledge that if this Agreement is terminated by MiniFAB prior to the End Date as a result of TearLab being the
    subject of an Insolvency Event or breach by TearLab or TearLab’s inability to supply the market, such premature termination
    deprives MiniFAB of the opportunity to earn an appropriate return on its investment in the Products and its expected return
    from the full expected performance of this Agreement through its expected term. Accordingly, this clause provides certain
    rights to MiniFAB under these scenarios. Both parties recognize that a significant portion of TearLab’s ability to market
    and sell its products is subject to a license and royalty agreement with the University of California at San Diego (UCSD).
    Both parties also acknowledge that no rights conferred in this Agreement can conflict or go beyond the rights granted to TearLab
    under its current agreement with UCSD and as amended.


 


[***]
Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.


 




    	 	28	 



    	 



    

 


	 	(2)	In
    recognition of the above, it is agreed that if TearLab ceases to trade or otherwise ceases to supply the Product to the market
    for a period of at least 60 days for reasons other than (1) lack of supply of product, or (2) a regulatory recall or action
    which prohibits supply into the market, and no new party acquires the assets to allow it to supply the Product to the market,
    then MiniFAB will have the right to make and supply the Product to the existing users in the global market, and the following
    provisions will apply from the termination of this Agreement:


 


	 	(a)	MiniFAB’s
    obligation under clause 3.4(1) to manufacture the Product exclusively for TearLab and to sell the Product exclusively to TearLab
    or its designee, and not otherwise to manufacture, sell, warehouse or distribute the Product to any third party shall terminate;
	 	 	 
	 	(b)	TearLab
    irrevocably appoints MiniFAB as its worldwide, non-exclusive distributor to market, distribute and sell the Product, for the
    period through to 5 years after the End Date commencing from the effective date of termination of this Agreement;
	 	 	 
	 	(c)	Unless
    otherwise agreed by MiniFAB, TearLab must maintain the regulatory approvals for the Product, and MiniFAB will reimburse TearLab
    for the costs and expenses reasonably incurred by TearLab in maintaining the regulatory approvals;
	 	 	 
	 	(d)	MiniFAB
    will manufacture the Product on behalf of TearLab in accordance with the Regulatory Requirements, and may market, distribute
    and sell the Product anywhere in the world, subject to regulatory approvals; and
	 	 	 
	 	(e)	MiniFAB
    will pay TearLab a royalty in respect of the ongoing use of the TearLab IP and reliance on the regulatory approvals for the
    Product equal to 5% of the price received by MiniFAB for the Product, net of any tax (excluding income tax), excise or other
    governmental charge upon or in relation to the sale of the Product (less any amounts payable to UCSD under the licence contemplated
    in clause 10.8(2)), plus an amount equivalent to any amount payable by TearLab to UCSD in respect of the sales of the Product
    by MiniFAB, such royalty to be calculated and paid on a monthly in arrears basis.


 


	18.7	Survival


 


All
clauses that by their nature survive expiration or termination of this Agreement will remain in force. For the avoidance of doubt,
clauses 1, 1.1, 10.1, 10.6, 10.7(2), 10.8, 14.1, 14.4, 16, 10.2, 18, 19, 20, 21, 23 and 24 survive termination.


 


	19.	Liability
    and indemnity


 


	19.1	Indemnity
    by TearLab


 


TearLab
shall indemnify MiniFAB and its Representatives against all Losses incurred by any of them as result of claims by third persons
against any of them arising directly or indirectly as a result of:


 


	 	(1)	any
    grossly negligent, unlawful, fraudulent or wilful misconduct committed by TearLab or its Representatives in the performance
    of this Agreement;
	 	 	 
	 	(2)	the
    marketing, promotion, sale or supply of the Product by TearLab; or
	 	 	 
	 	(3)	TearLab’s
    failure to obtain, maintain or comply in any respect with any Registrations, except,
in each case, to the extent Losses result from any event described in clause 19.2.


 


[***]
Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.


 




    	 	29	 



    	 



    

 


	19.2	Indemnity
    by MiniFAB


 


MiniFAB
shall indemnify TearLab and its Representatives against all Losses incurred by them as a result of claims by third persons against
TearLab arising directly or indirectly, to the extent resulting from:


 


	 	(1)	any
    grossly negligent, unlawful, fraudulent or wilful misconduct committed by the MiniFAB or their Representatives in the performance
    of this Agreement;
	 	 	 
	 	(2)	any
    manufacturing defect in any Product supplied to TearLab, or any failure of any Product to conform to the Specifications; or
	 	 	 
	 	(3)	the
    failure to obtain and maintain all necessary governmental permits for the development and manufacture of Product hereunder, except,
in each case, to the extent Losses result from any event described in clause 19.1.


 








	19.3	General
    provisions applicable to indemnities


 


	 	(1)	A
    party (the “Indemnitee”) that intends to claim indemnification under this clause 19 shall promptly notify the
    other party (the “Indemnitor”) of any claim, demand, action or other proceeding for which the Indemnitee intends
    to claim such indemnification.
	 	 	 
	 	(2)	The
    Indemnitor shall have the right to assume and control the defense thereof with counsel selected by the Indemnitor; provided,
    however, that the Indemnitee shall have the right to retain its own counsel to participate in the defense, subject to Indemnitor’s
    right to control the defense.
	 	 	 
	 	(3)	The
    indemnity obligations under this clause 19 shall not apply to amounts paid in settlement of any Loss if such settlement is
    effected without the prior express written consent of the Indemnitor, which consent shall not be unreasonably withheld or
    delayed.
	 	 	 
	 	(4)	The
    failure to deliver notice to the Indemnitor within a reasonable time after notice of any relevant claim, or the commencement
    of any such action or other proceeding shall not relieve such Indemnitor of all liability to the Indemnitee under this clause
    19 with respect thereto, but if such failure is prejudicial to the Indemnitor’s ability to defend such claim, and if
    such prejudice results in Losses that otherwise would likely have been avoided or reduced if timely notice had been given,
    then the Indemnitor shall be relieved of said part of the Losses.
	 	 	 
	 	(5)	The
    Indemnitor may not settle or otherwise consent to an adverse judgment in any such claim, that diminishes the rights or interests
    of the Indemnitee without the prior express written consent of the Indemnitee, which consent shall not be unreasonably withheld
    or delayed (it being understood that no consent by the Indemnitee is required for the Indemnitor to obtain a full release
    of all claims by a third person against an Indemnitee in exchange solely for the payment of a settlement amount by Indemnitor).
	 	 	 
	 	(6)	The
    Indemnitee, its employees and agents, shall reasonably cooperate with the Indemnitor and its legal representatives in the
    investigation of any claim covered by this clause 19.
	 	 	 
	 	(7)	The
    indemnities contained in this clause 19 do not negate the obligation of the party having the benefit of such indemnity to
    mitigate its Losses; and are continuing obligations on each party, separate and independent of any other obligation.


 


[***]
Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.


 




    	 	30	 



    	 



    

 


	19.4	No
    consequential damages


 


Except
for any liability under clause 20 or the indemnity provided under clauses 19.1 or 19.2, to the extent permitted by law, neither
party will be liable to the other party in any circumstances for any special, incidental, punitive, exemplary, consequential or
any other indirect loss or damage, or in any event for any loss of revenue, loss of production, loss of profit or loss of data.


 


	20.	Confidentiality


 


	20.1	Prohibited
    acts


 


Neither
party may, without the other party’s prior written consent, copy or disclose or cause to be copied or disclosed any Confidential
Information of the other party other than to the extent that such Confidential Information must be disclosed:


 


	 	(1)	to
    the party’s sub-contractors, employees, legal advisers, auditors, investors or other consultants in order for this Agreement
    to be performed, provided that the recipients of the information undertake in writing to the party to keep that information
    strictly confidential; or
	 	 	 
	 	(2)	to
    Regulatory Authorities as required to obtain or maintain any regulatory approvals.


 


	20.2	Permitted
    uses


 


Each
party may only make use of Confidential Information of the other party to the extent necessary to enable the party to perform
its obligations or exercise its rights under this Agreement.


 


	20.3	Excluded
    information


 


For
the purposes of this clause, Confidential Information does not include any information which the receiving party can establish:


 


	 	(1)	was
    in the public domain when it was disclosed to the receiving party;
	 	 	 
	 	(2)	becomes,
    after being disclosed to the receiving party, part of the public domain, except through disclosure contrary to this Agreement;
	 	 	 
	 	(3)	was
    already in the receiving party’s possession when it was disclosed to the receiving party and was not otherwise acquired
    from the other party directly or indirectly; or
	 	 	 
	 	(4)	was
    lawfully disclosed to the receiving party by a third party having the unrestricted legal right to disclose that information
    without requiring the maintenance of confidentiality.


 


Prior
to making a disclosure of information which the receiving party alleges is no longer or never was Confidential Information by
virtue of falling within one of the above exceptions, the receiving party must give to the other party 10 Business Days’
notice of the proposed disclosure and the reasons for the exception applying.


 


	20.4	Compulsory
    disclosures


 


The
obligations of confidentiality in this clause do not apply to a receiving party where the receiving party is required under the
lawful compulsion of any court, tribunal, authority or regulatory body to disclose any Confidential Information of the other party.
Provided that before a party discloses any Confidential Information pursuant to the foregoing it must provide the other party
with reasonable notice to enable it to seek a protective court order or other remedy in respect of the Confidential Information,
and it must provide the other party with all assistance and co-operation which the other party considers necessary to obtain such
protective court order or other remedy.


 


[***]
Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.


 




    	 	31	 



    	 



    

 


	20.5	Protection
    of information


 


Each
party must notify the other party in writing immediately upon the discovery of any apparent unauthorised use or disclosure of
any Confidential Information and take all reasonable steps to enforce the confidentiality obligations imposed or required to be
imposed by this clause 20 including diligently prosecuting at its cost any breach or threatened breach of any such confidentiality
obligations by any person to whom it has disclosed or allowed access to the Confidential Information or at the other party’s
option making all reasonable efforts to assist the other party to help regain possession of the Confidential Information and prevent
any further unauthorised disclosure or use.


 


	20.6	Confidentiality
    of agreement


 


The
parties must maintain absolute confidentiality concerning the existence and subject matter of this Agreement and no public announcement
or communication relating to the negotiations of the parties or the existence, subject matter or terms of this Agreement may be
made or authorised by a party without the prior written approval of the other party except that the following disclosures may
be made in relation to this Agreement:


 


	 	(1)	by
    either party to its sub-contractors, employees, auditors, consultants, professional advisers, bankers, financial advisers,
    financiers, investors and potential investors upon those persons undertaking to keep confidential any information so disclosed;
    or
	 	 	 
	 	(2)	to
    comply with any applicable law or requirement of any Governmental Agency or of any public stock exchange on which shares of
    the disclosing party are listed.


 


	20.7	Return
    of Confidential Information


 


Each
party agrees that on termination or expiration of this Agreement it will deliver to that other party any and all materials containing
or embodying that other party’s Confidential Information and any copies thereof; provided that each party shall be entitled
to retain one (1) copy of the other party’s Confidential Information, to be kept at such party’s legal files for use
solely for the purpose of ensuring continued compliance with the terms of this Agreement.


 


	21.	Disputes


 


	21.1	Attempt
    to Settle


 


If
a dispute arises between the parties in connection with this Agreement then the parties must use all reasonable endeavours acting
in good faith to settle the dispute as soon as practicable.


 


	21.2	Limitations
    on Court Proceedings


 


A
party must not commence court proceedings in relation to a dispute arising in connection with this Agreement until it has exhausted
the procedures in this clause 21, unless the party seeks urgent interlocutory relief.


 


	21.3	Disputes
    relating to Products


 


If
the dispute relates to whether or not a particular Product meets the relevant Specifications and the Regulatory Requirements,
then the parties must submit the dispute to an independent laboratory, which will act as an expert in determining whether or not
the Product meets the relevant Specifications and the Regulatory Requirements; provided, however, that if it is not technically
feasible to make such independent laboratory determination in connection with a particular dispute (e.g., if insufficient number
of samples of a relevant lot of Product is available), then such dispute shall be determined by arbitration under clause 21.5


 


[***]
Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.


 




    	 	32	 



    	 



    

 


	21.4	Other
    disputes


 


If
a dispute does not relate to whether or not a particular Product meets the relevant Specifications and the Regulatory Requirements
and the parties are unable in good faith to settle the dispute within 20 Business Days after the dispute arose, then either party
may submit the matter to arbitration under clause 21.5.


 


	21.5	Arbitration


 


	 	(1)	If
    any dispute arises under, or in connection with, this Agreement and/or in connection with any breach or alleged breach of
    this Agreement, and such matter is not resolved pursuant to clause 21.1 or 21.3 or by other agreement of the parties, such
    matter shall be finally resolved through binding arbitration as set forth in this clause 21.5. Either party may initiate arbitration
    of such a matter, and the party initiating arbitration of such dispute must give to the other party or parties to the dispute
    notice specifying the dispute and requiring its resolution under this clause 21.5 (Notice of Dispute). Such Notice
    of Dispute shall be given in accordance with the arbitration rules specified under this clause 21.5.
	 	 	 
	 	(2)	Each
    such dispute is by this clause 21.5 referred to binding arbitration for final resolution. The arbitration must be conducted
    in:


 


	 	(a)	Melbourne,
    Australia if the Notice of Dispute is given by TearLab; and
	 	 	 
	 	(b)	San
    Diego California, USA, if the Notice of Dispute is given by MiniFAB.


 


	 	(3)	If
    the parties have not agreed upon the arbitrator within 7 days after the Notice of Dispute is given, the arbitrator will be
    appointed in accordance with the then-current rules of the International Centre for Dispute Resolution.
	 	 	 
	 	(4)	The
    arbitrator must not be a present or former member, officer, employee or agent of a party to the dispute or a person who has
    acted as a mediator or advised any party in connection with the dispute.
	 	 	 
	 	(5)	The
    arbitration shall be conducted in accordance with the then-current rules of the International Centre for Dispute Resolution
    by one (1) arbitrator appointed in accordance with such rules. The arbitrator shall determine what discovery will be permitted,
    consistent with the goal of limiting the cost and time which the parties must expend for discovery; provided the arbitrator
    shall permit such discovery as the arbitrator deems necessary to permit an equitable resolution of the dispute. The arbitrator
    shall not order or require discovery against either party of a type or scope that is not permitted against the other party.
    The costs of the arbitration, including administrative and arbitrators’ fees, shall be shared equally by the parties,
    and each party shall bear its own costs and attorneys’ and witness’ fees incurred in connection with the arbitration.
    Any arbitration subject to this clause shall be completed within one (1) year from the filing of notice of a request for such
    arbitration. No punitive damages may be granted by the arbitrator. The arbitration proceedings and the decision shall not
    be made public without the joint consent of the parties, and each party shall maintain the confidentiality of such proceedings
    and decision unless otherwise permitted by the other party, except to the extent (and solely to the extent) either party is
    required to disclose such information by applicable securities or other laws. The parties agree that the decision shall be
    the sole, exclusive and binding remedy between them regarding any and all disputes, controversies, claims and counterclaims
    presented to the arbitrator. Any award may be entered in a court of competent jurisdiction for a judicial recognition of the
    decision and applicable orders of enforcement, and either party may apply to any court of competent jurisdiction for appropriate
    temporary injunctive relief pending resolution of any arbitration proceeding. The arbitrator shall provide a written arbitration
    award setting forth the arbitrator’s findings on material questions of law and of fact, including references to the
    evidence on which the findings of fact were based. Each party may be represented by a qualified legal practitioner or other
    representative.


 


[***]
Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.


 




    	 	33	 



    	 



    

 


	 	(6)	This
    clause 21.5 applies even where the Agreement is otherwise void or voidable.


 


	21.6	Continuing
    Obligations


 


Except
as specifically provided in this Agreement, the parties must continue to perform their obligations under this Agreement despite
the existence of a dispute or any steps being taken under this clause 21.


 


	22.	Force
    Majeure


 


	22.1	Party
    not liable


 


Where
a party is required under this Agreement to perform an obligation or do any act or thing by a designated time or date (Obligation),
the party is not liable for any delay in performing or for failure to perform an Obligation where the delay or failure arises
from Force Majeure and that party has complied with this clause.


 


	22.2	Notice
    of Force Majeure


 


A
party who claims Force Majeure must:


 


	 	(1)	give
    the other party prompt notice of the Force Majeure with reasonably full particulars and an estimate of the extent and duration
    of its delay in performance, or inability to perform; and


 


	 	(2)	use
    all possible diligence to resume normal performance of the delayed obligations as quickly as possible.


 


	22.3	Termination
    in case of Force Majeure


 


If
the delay continues beyond 30 days after the notice given under clause 22.2, the parties must meet to discuss in good faith a
mutually satisfactory resolution of the problem and, if unable to achieve such a resolution within a further 60 days, either party
may elect to terminate this Agreement by 30 days’ prior written notice to the other.


 


	23.	Notices


 


	23.1	A
    notice or other communication connected with this Agreement (Notice) has no legal effect unless it is in writing.


 


	23.2	In
    addition to any other method of service provided by law, the Notice may be:


 


	 	(1)	sent
    by prepaid post to the address of the addressee set out in this Agreement or subsequently notified;
	 	 	 
	 	(2)	sent
    by facsimile to the facsimile number of the addressee;
	 	 	 
	 	(3)	sent
    via email to the email address of the addressee; or


 


[***]
Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.


 




    	 	34	 



    	 



    

 


	 	(4)	delivered
    at the address of the addressee set out in this Agreement or subsequently notified.


 


	23.3	If
    the Notice is sent or delivered in a manner provided by clause 23.2, it must be treated as given to and received by the party
    to which it is addressed:


 


	 	(1)	if
    sent by facsimile or email, on the next Business Day at the place of receipt, unless a transmission failure notice is received
    by the sender; or
	 	 	 
	 	(2)	if
    sent by post or otherwise, upon receipt by the addressee.


 


	23.4	Despite
    clause 23.3(1):


 


	 	(1)	a
    facsimile is not treated as given or received unless at the end of the transmission the sender’s facsimile machine issues
    a report confirming the transmission of the number of pages in the Notice;
	 	 	 
	 	(2)	a
    facsimile is not treated as given or received if it is not received in full and in legible form and the addressee notifies
    the sender of that fact by the close of the Business Day on which it would otherwise be treated as given and received.


 


	24.	General


 


	24.1	Communication


 


Each
party will on an ongoing basis by fully responsive to requests from the other for approvals or the provision of information relevant
to the first party’s activities under the Agreement.


 


	24.2	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 Agreement, to the extent commercially reasonable to do so.


 


	24.3	Entire
    understanding


 


This
Agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this
Agreement and supersedes any prior agreement or understanding on anything connected with that subject matter on the going-forward
basis from the Effective Date.


 


	24.4	Variation


 


An
amendment or variation to this Agreement is not effective unless it is in writing and signed by the parties.


 


	24.5	Assignment
    within corporate structure


 


Neither
party may assign its right or obligations under this Agreement without the consent of the other party, except where the assignee
is related body corporate to the assignor. In this clause, where a body corporate is: (a) a holding company of another body corporate;
or (b) a subsidiary of another body corporate; or (c) a subsidiary of a holding company of another body corporate; the first-mentioned
body and the other body are related to each other.


 


[***]
Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.


 




    	 	35	 



    	 



    

 


	24.6	No
    assignment of bare IP


 


TearLab
may not assign the benefit of any Intellectual Property rights granted by MiniFAB under this Agreement independent of the obligations
of this Agreement without the written consent of MiniFAB, which may be given on such terms as it reasonably considers necessary
to protect its right under this Agreement.


 


	24.7	Waiver


 


A
party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise
of a power or right does not preclude either its exercise in the future or the exercise of any other power or right. A waiver
is not effective unless it is in writing. Waiver of a power or right is effective only in respect of the specific instance to
which it relates and for the specific purpose for which it is given.


 


	24.8	Costs
    and outlays


 


Each
party must pay its own costs and outlays connected with the negotiation, preparation and execution of this Agreement.


 


	24.9	Governing
    law and jurisdiction


 


This
Agreement shall be governed and construed in accordance with the laws of England, United Kingdom.


 


	24.10	Affiliates
    Actions


 


Each
party will ensure that none of its affiliates takes any action which is inconsistent with that Party’s obligations under
this Agreement, or which if it was done or not done under this Agreement by that party would amount to a breach of this Agreement
by that party.


 


[Signature
page follows]


 


[***]
Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.


 




    	 	36	 



    	 



    

 


Executed
as an agreement.


 


	Executed
                                         by MiniFAB (Aust) Pty Ltd

                                                                     in
                                         accordance with section 127 of the 

                                                                     Corporations
                                         Act 2001:
	 	 
	/s/
    Michael Wilkinson	 	/s/
    Erol Harvey
	Director/company
    secretary	 	Director
	MICHAEL
    WILKINSON	 	EROL
    HARVEY
	Name
                                         of director/company secretary

        (BLOCK
        LETTERS)
	 	Name
                                         of director

        (BLOCK
        LETTERS)



 


	Signed
                                         for and on behalf of TearLab

                                                                     Research,
                                         Inc. by its authorised

                                                                     representative
                                         in the presence of:
	 	 
	/s/
    Michael Marquez	 	/s/
    Seph Jensen
	Signature
    of witness	 	Signature
    of authorised representative
	MICHAEL
    MARQUEZ	 	SEPH
    JENSEN
	Name
                                         of witness

        (BLOCK
        LETTERS)
	 	Name
                                         of authorised representative

        (BLOCK
        LETTERS)

	940
    S. Kimball, Southlake, TX USA	 	 
	Address
    of witness	 	 


 


[***]
Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.


 




    	 	37	 



    	 



    

 


Schedule
1 - Pricing Schedule


 


Pricing
Schedule - Discovery Test Card: Discovery Dry Eye Panel Osmolarity & MMP9


 


	2.	Price


 


The
Price for each Product is the greater of:


 


	(1)	the
    Fixed Price Amount per Product plus any applicable amortization amount, in US Dollars; or
	 	 
	(2)	the
    Net Selling Price Amount (which does not include any amortization amount), which will be calculated on an quarterly basis.
    any amortization amount will apply to the unamortized balance,


 


Where


 


	(3)	the
    Fixed Price Amount per Product is the amount determined from the table below, by reference to volume of Product being supplied
    and excludes any local United States of America taxes which may be imposed on the sale of the Product, and which are payable
    by TearLab; and
	 	 
	(4)	the
    Net Selling Price Amount is the Average Adjusted Selling Price per Product (as defined below) multiplied by the Net Sales
    Amount Percentage for the relevant Quarter as set out in the table below.


 


	3.	Fixed
    Price Amount


 


	Monthly
    card volume*	 	Price
    – 
COGS (USD)	 	Reagent
    Cost inc.	 	Min
    Volumes(per month)	 	Amortised
    amount***	 	Net
    Sales Amount Percentage
	Completion
    of Phase 1
	up
    to [***]	 	[***]**	 	[***]	 	[***]	 	[***]	 	[***]
	 	 	 	 	 	 	 	 	 	 	 
	Completion
    of Phase 2
	 
	[***]-[***]	 	[***]	 	[***]	 	 	 	[***]	 	[***]
	[***]-[***]	 	[***]	 	[***]	 	 	 	[***]	 	[***]
	[***]-[***]	 	[***]	 	[***]	 	 	 	[***]	 	[***]



 


	*	The
    order levels are those of Product. Accordingly the Fixed Price Amount per Product will be determined Quarterly based on the
    total number of Products ordered in the prior Quarter.
	 	 
	**	The
    price per card will be subject to the agreed discount for the first [***] cards only (per clause 7.8).
	 	 
	***	Subject
    to clause 4.1(7), after three years.


 


	4.	Average
    Adjusted Selling Price


 


The
Average Adjusted Selling Price is equal to the Net Sales Income for all Products sold or supplied by TearLab or its affiliates
in the relevant Quarter, divided by the total number of Products sold or supplied by TearLab or its affiliates in that Quarter,
calculated in USD, excluding any amortised amounts payable in respect of that Quarter.


 


[***]
Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.


 




    	 	38	 



    	 



    

 


For
the purposes of the above calculation:


 


	(1)	A
    Product will be deemed sold at the earlier of the date it is invoiced, payment is received for it or it is shipped to the
    buyer.
	 	 
	(2)	Product
    supplied as free samples will not be included in the quantity of Product sold or supplied.
	 	 
	(3)	If
    Product is supplied on other than an arm’s length basis, other than by way of free sample, then such Product and their
    associated Net Sales Income will be ignored for the purposes of the calculation.
	 	 
	(4)	If
    the Product was invoiced or paid for in a currency other than USD then the selling price will be converted to USD at the exchange
    rate published on the day of the sale. TearLab must include the exchange rate used for the conversion in its report.


 


	5.	Invoicing
    and reporting


 


	(1)	Within
    20 Business Days after the end of each Quarter, TearLab must provide MiniFAB a written report detailing:


 


	 	(a)	the
    number of units of Product held in stock at the start of each month of that Quarter;
	 	 	 
	 	(b)	the
    number of units of Product delivered by the Supplier under this Agreement during each month of that year;
	 	 	 
	 	(c)	the
    number of units of Product sold by TearLab in each month of that Quarter;
	 	 	 
	 	(d)	the
    gross amount invoiced for the Product sold by TearLab in each month of that Quarter;
	 	 	 
	 	(e)	the
    calculation of Net Sales Income for the relevant Quarter and the number of units of Product to which it relates, with details
    of any adjustments made pursuant to paragraphs 4(2) or 4(3) above; and
	 	 	 
	 	(f)	the
    aggregate Net Sales Amount for the Product sold by TearLab in that Quarter.


 


	(2)	If
    the Net Selling Price Amount for a Quarter is greater than the Fixed Price Amount applicable in that Quarter then within 10
    Business Days after receiving the report of TearLab in relation to a particular Quarter, MiniFAB will invoice TearLab an amount
    equal to the Net Selling Price Amount minus the applicable Fixed Price Amount with the result multiplied by the number of
    Units of Product sold by TearLab in the relevant Quarter.


 


	6.	Record
    keeping and audit


 


	(1)	TearLab
    must keep and retain true and particular accounts and records of all sales of Product sufficient to verify TearLab’s
    calculation and reports provided under the provisions set out above. TearLab must retain records for a minimum of 7 years
    after the transaction to which they relate occurred.
	 	 
	(2)	During
    the term of this Agreement and for a period of 2 years thereafter, MiniFAB may appoint an independent qualified accountant
    to inspect and audit from time to time the accounts and records of TearLab referred to in paragraph (1) above and such other
    matters as are directly relevant to the calculation of the Average Adjusted Selling Price or Net Sales Amount.
	 	 
	(3)	If
    any discrepancy is found by the accountant pursuant to an audit conducted in accordance with paragraph (2), then the amount
    determined due and payable will be adjusted in the report and payment shall be adjusted for the next year together with any
    applicable interest payable under clause 7.5.
	 	 
	(4)	No
    findings of the audit are considered final until both parties acting in good faith agree. An ongoing disagreement will be
    a dispute, and subject to resolution in accordance with clause 21 of the Agreement.
	 	 
	(5)	MiniFAB
    will bear the cost of any such audit unless a discrepancy of 10% or more in the Net Sales Amount is detected in which event
    TearLab must bear the cost of the audit


 


[***]
Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.


 




    	 	39	 



    	 



    

 


Schedule
2


Finished
Product


 


Name


 


Discovery
Dry Eye Panel (Osmolarity and MMP9)


 


Description



 


A
Discovery Test Card for measuring osmolarity and MMP9, as more particularly described in the applicable Specification.


 


Discovery
Test Card: Osmolarity and MMP9 means the tear collection device developed by MiniFAB and TearLab to measure osmolarity and MMP9.
The Discovery Test Card: Osmolarity and MMP9 is described in the specification (A copy of which is annexed to this Agreement).


 


All
price and cost information is based on a tested and packaged Discovery Test Card: Osmolarity and MMP9, packaged and configured
as mutually agreed.


 


[***]
Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.


 




    	 	40	 



    	 



    

 


Annexure
A


Requirement
Definitions of Product


 


[#To
be inserted]


 


[***]
Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.


 




    	 	41	 



    	 



    

 


Annexure
B


Specifications
for Product


 


[#To
be inserted]


 


[***]
Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.


 




    	 	42