ex10-1.htm


Exhibit 10.1


 


 



 


 


Deed and Amendment dated December 22, 2011                                 


 


 


 



	
Parties

	
Minifab (Aust) Pty Ltd ACN 100 768 474 

of of 9 The Centreway, Mount Waverley, Victoria 3149, Australian


(MiniFAB)


 


TearLab Research, Inc.


of 7360 Carroll Road., Suite 200, San Diego, CA  92121, U.S.A.


(TearLab)









 


 


 


Introduction


 


The parties wish to amend the Principal Agreement on the terms of this Deed and Amendment.


 


 


 


It is agreed


 



	
1  

	
Definitions and interpretation







 



	
1.1  

	
Definitions 

 


In this Deed and Amendment:









 


 



	
(1)           

	
Deed and Amendment means this document, including any schedule or annexure to it; and







 



	
(2)           

	
Principal Agreement means Manufacturing and Development Agreement between MiniFAB and TearLab dated 1 August 2011.







 



	
1.2  

	
Interpretation 

 


Clause 1.2 of the Principal Agreement applies to the interpretation of this Deed and Amendment (where references to “Agreement” are to be read as references to this Deed and Amendment).









 


 



	
1.3  

	
Previous definitions 

 


Unless the contrary intention appears, a word or phrase defined in the Principal Agreement has the same meaning in this Deed and Amendment.









 




 





 











 






 



	
2  

	
Amendment of Principal Agreement







 



	
2.1  

	
With effect from the date of this Deed and Amendment, the Principal Agreement is amended as follows:







 



	
(1)           

	
The table under the section entitled “Minimum Order Requirements and Annual Production Capacity” in Schedule 3 (“Manufacturing and Ordering Schedule for the First Product”) of the Principal Agreement is deleted and replaced with the following table:







 



	
Year

	
Minimum Order


Requirements

	
Expected Limit

	
Consequences for failure to meet Minimum Order Requirements (Minimum Order Liquidated Damages)

	
Annual Production


Capacity


	
2010

	
****[REDACTED]****

	
****[REDACTED]****

	
An amount equal the Fixed Price Amount of the Product (as set out in the Pricing Schedule) payable multiplied by the difference between the Minimum Orders Requirement and the actual quantity of the Product ordered by TearLab from MiniFAB during the year.  To be calculated on an annual basis.

	
****[REDACTED]****


	
2011

	
****[REDACTED]****

	
****[REDACTED]****

	
****[REDACTED]****


	
2012

	
****[REDACTED]****

	
****[REDACTED]****

	
****[REDACTED]****


	
2013

	
****[REDACTED]****

	
****[REDACTED]****

	
****[REDACTED]****


	
2014

	
****[REDACTED]****

	
****[REDACTED]****

	
****[REDACTED]****


	
2015

	
****[REDACTED]****

	
****[REDACTED]****

	
****[REDACTED]****







 



	
(2)           

	
The table under the section entitled “Selling Price” in Schedule 4 (“Pricing Schedule for the First Product”) of the Principal Agreement is deleted and replaced with the following table:







 



	
Year

	
Fixed Price Amount


(AUD) per unit

	
Net Sales Amount


Percentage


	
2010

	
****[REDACTED]****

	
****[REDACTED]****


	
2011

	
****[REDACTED]****

	
****[REDACTED]****


	
2012

	
****[REDACTED]****

	
****[REDACTED]****


	
2013

	
****[REDACTED]****

	
****[REDACTED]****


	
2014

	
****[REDACTED]****

	
****[REDACTED]****


	
2015

	
****[REDACTED]****

	
****[REDACTED]****







 



	
3  

	
Amendments not to affect accrued rights and obligations







 



	
3.1  

	
The variations to the Principal Agreement do not affect the validity or enforceability of the Principal Agreement as amended.







 



	
3.2  

	
Nothing in this Deed and Amendment:







 



	
(1)           

	
prejudices or adversely affects any right, power, authority, discretion or remedy arising under the Principal Agreement before the date of this Deed and Amendment; or







 



	
(2)           

	
discharges, releases or otherwise affects any liability or obligation arising under the Principal Agreement before the date of this Deed and Amendment.







 



	
4  

	
Confirmation







 



	
4.1  

	
Each party is bound by the Principal Agreement as varied by this Deed and Amendment.








 



 





 











 






 




	
5  

	
General







 



	
5.1 

	
Further assurance 

 


Each party must promptly at its own cost do all things (including executing and if necessary delivering all documents) necessary or desirable to give full effect to this Deed and Amendment.









 



	
5.2 

	
Costs and outlays


 




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









 



	
5.3 

	
Governing law


 



The law of England, United Kingdom governs this Deed and Amendment.









 




 





 











 








 


Executed as a deed and amendment and delivered on the date shown on the first page.


 



	
Executed by MiniFAB (Aust) Pty Ltd


ACN 100 768 474 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 and sealed for and on behalf of


TearLab Research, Inc. by its authorised


representative in the presence of:


 

	  	  
	
/s/ Stephen G. Zmina

	  	
/s/ Robert Walder


	
Signature of witness


 

	  	
Signature of authorised representative


	
Stephen G. Zmina

	  	
Robert Walder


	
Name of witness


(BLOCK LETTERS)

	  	
Name of authorised representative


(BLOCK LETTERS)


	
7360 Carrol Road


San Diego, CA 92127

	  	  
	
Address of witness