Exhibit 10.43


 


FOURTH AMENDMENT TO CREDIT AGREEMENT


 


This Fourth Amendment
(this “Fourth Amendment”), dated as of January 19, 2021, is entered into by and among ReShape Lifesciences
Inc., a Delaware corporation (the “Borrower”), and Armistice Capital Master Fund Ltd. (the “Lender”).


 


WHEREAS, the Borrower
and the Lender entered into a Credit Agreement dated as of March 25, 2020, which was amended on March 31, 2020, September 14,
2020 and December 16, 2020 (as amended, the “Agreement”).


 


WHEREAS, pursuant to
Section 9.1(a) of the Agreement, the Agreement may be amended with the written consent of the Borrower and the Lender.


 


WHEREAS, concurrently
with the execution of this Fourth Amendment, Borrower and Lender are entering into a Credit Facility Agreement (the “Credit
Facility Agreement”) pursuant to which Lender will make available to Borrower a line of credit in a maximum principal
amount at any time outstanding of up to $15,000,000, subject to the terms and conditions of the Credit Facility Agreement.


 


WHEREAS, capitalized
terms used herein but not otherwise defined shall have the meanings ascribed to them in the Agreement.


 


NOW THEREFORE, for
good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:


 


1.          Amendment
of Definition of Delayed Draw Term Loan Commitment. The definition of “Delayed Draw Term Loan Commitment” set forth
in Section 1.1 (Definitions) of the Agreement is hereby amended and restated in its entirety to read as follows:


 


“Delayed Draw Term Loan
Commitment means $8,000,000, of which $7,000,000 is subject to outstanding Delayed Draw Term Loans extended prior to the date
of this Fourth Amendment.”


 


2.         Amendment
to Section 2.1.2 of the Agreement. Section 2.1.2 (Delayed Draw Term Loan Commitments) is hereby amended to replace
the final two sentences of such section with the following:


 


“Lender agrees to make a Delayed Draw Term Loan
to Borrower on the date of this Fourth Amendment in an amount equal to $1,000,000. Accordingly, no additional Delayed Draw Term
Loans will be available after the date of this Fourth Amendment. Upon payment of the $1,000,000 referenced in this paragraph, the
total principal amount of Borrower’s debt to Lender under the Agreement as of the date of this Fourth Amendment shall be
$10,500,000 (excluding any amounts that may become outstanding under the Credit Facility Agreement).”


 


3.          Use
of Proceeds. Lender agrees and acknowledges that the $1,000,000 Delayed Draw Term Loan under this Fourth Amendment will be
used by Borrower, and hereby consents to the use of such amount, to fund a third-party escrow account to secure the potential termination
fee payable by Borrower under the Agreement and Plan of Merger by and among Borrower, Obalon Therapeutics, Inc. (“Obalon”),
and a wholly owned subsidiary of Obalon entered into concurrently with the execution of this Fourth Amendment.


 






    


     


    

 


4.          Warrant
Issuance. As an inducement to Lender to enter into this Fourth Amendment and make the additional Delayed Draw Term Loans
contemplated hereby, Borrower will issue to Lender a warrant (the “Warrant”) to purchase an aggregate of
1,000,000 shares of common stock of Borrower, par value $0.001 per share (the “Common Stock”), at an
exercise price equal to $3.50 per share, substantially in the form of the Series G Common Stock Purchase Warrant issued
by Borrower to Lender on March 25, 2020 in connection with the execution of the Agreement, on September 14, 2020 in
connection with the execution of the Second Amendment to the Agreement and on December 16, 2020 in connection with the
execution of the Third Amendment to the Agreement. The shares of Common Stock issuable upon exercise of the Warrant will be
considered “Warrant Shares” and, therefore, “Registrable Securities” under the Registration Rights
Agreement, dated March 25, 2020, between Borrower and Lender. For the avoidance of doubt, the exercise price of the
Series G Common Stock Purchase Warrant issued by the Borrower to the Lender on March 25, 2020, as amended, remains
at $3.70 per share, the exercise price of the Series G Common Stock Purchase Warrant issued by the Borrower to the
Lender on September 14, 2020 remains at $3.25 per share, and the exercise price of the Series G Common Stock
Purchase Warrant issued by the Borrower to the Lender on December 16, 2020 remains at $3.50 per share.


 


5.          Miscellaneous.  Except
as expressly set forth hereunder, the terms and provisions of the Agreement shall remain in full force and effect after the execution
of this Fourth Amendment and shall not be in any way changed, modified or superseded by the terms set forth herein. This Fourth
Amendment may be executed in several identical counterparts all of which shall constitute one and the same instrument.


 


(Signature Page Follows)


 






    


     


    

 


IN WITNESS WHEREOF, the parties hereto
have caused this Fourth Amendment to Credit Agreement to be duly executed as of the day and year written above.


 


	BORROWER:	 	LENDER:
	 	 	 
	RESHAPE LIFESCIENCES INC.	 	ARMISTICE CAPITAL MASTER FUND LTD.
	 	 	 
	By:	/s/ Barton P. Bandy	 	By:	/s/ Steven Boyd
	Name:	Barton P. Bandy	 	Name:	Steven Boyd
	Title:	Chief Executive Officer	 	Title:	CIO of Armistice Capital, LLC, the Investment Manager