TERMINATION AGREEMENT
Exhibit 10.4
THIS TERMINATION AGREEMENT (this “Agreement”) is made by and between Xxxxxx Bay Capital Management (“Xxxxxx Bay”) and Second Sight Medical Products, Inc., a California corporation (the “Company”) as of March 23, 2021.
WHEREAS, the Company and Xxxxxx Bay are parties to that certain Term Sheet for Offering of Preferred Shares and Warrants (the “Term Sheet”, and capitalized terms used herein not otherwise defined shall have the meanings ascribed to them in the Term Sheet);
WHEREAS, the Company desires to issue and sell to certain purchasers, including Xxxxxx Bay, an aggregate amount of 4,650,000 shares of common stock of Second Sight (the “Proposed Financing”);
WHEREAS, pursuant to the Binding Terms of the Term Sheet, during the Exclusivity Period (as defined in the Term Sheet), among other rights of Xxxxxx Bay with respect to the Term Sheet, Xxxxxx Bay has the right to participate for up to 50% of the securities in the Proposed Financing or to receive $2,500,000 from the Company (the “Optional Rights”); and
WHEREAS, at the request of the Company, in exchange for (i) Xxxxxx Bay’s participation in the Proposed Financing and purchase of 1,000,000 shares of Common Stock upon the same terms and conditions of such Proposed Financing offered by the Company to the other investors thereunder (the “Xxxxxx Bay Participation”) and (ii) the payment by the Company (in U.S. dollars and immediately available funds, in accordance with wire instructions delivered to the Company on or prior to the closing date of the Proposed Financing) of a consideration of $1,350,000 (the “Waiver Payment”) to Xxxxxx Bay and (iii) the payment of the Legal Fee Amount (as defined below) to Xxxxxx Xxxx & Xxxxxx LLP, Xxxxxx Bay is willing to waive and terminate its rights under the Term Sheet, including the Optional Rights.
NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Xxxxxx Bay and the Company agree as follows:
1.Termination and Waiver. Effective upon the later of (x) the time of consummation of the Xxxxxx Bay Participation, (y) Xxxxxx Bay’s receipt of the Waiver Payment and (z) Xxxxxx Xxxx & Xxxxxx LLP’s receipt of the Legal Fee Amount (the “Effective Date”), Xxxxxx Bay hereby waives any and all rights it may have under the terms of the Term Sheet with respect to the Proposed Financing, including without limitation, the Optional Rights and the right to the reimbursement of legal fees and expenses related to the transactions contemplated therein in excess of the Legal Fee Amount, and, as of the Effective Date, agrees to terminate the Term Sheet. The Company shall, upon receipt of an invoice from Xxxxxx Xxxx & Xxxxxx LLP, pay a non-accountable amount of $80,000 (less $30,000 previously paid on behalf of the Company) to Xxxxxx Xxxx & Xxxxxx LLP) for legal fees and expenses in connection with the Term Sheet and the transactions contemplated hereby (the “Legal Fee Amount”).
2.Governing Law. This Waiver shall be governed by and construed in accordance with the laws of the State of New York.
3.Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature
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complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law) or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.
4.Binding Effect. This Agreement shall be binding and effective in all respects on the parties as well their respective affiliates, successors and assigns.
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IN WITNESS WHEREOF, Xxxxxx Bay has duly executed this Limited Waiver.
Xxxxxx Bay Capital Management
By: /s/ Xxxxxxx Xxxxxxx
AGREED AND ACKNOWLEDGED
Second Sight Medical Products, Inc., a California corporation By: /s/ Xxxxxxx Xxxxxxx
Title:
4832-8916-8354.1
