Exhibit 10.41


 


THIRD AMENDMENT TO CREDIT AGREEMENT


 


This Third Amendment
(this “Third Amendment”), dated as of December 16, 2020, 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 and September 14,
2020 (as amended, the “Agreement”), and a Registration Rights Agreement dated as of March 25, 2020,
which was amended on September 14, 2020 (as amended, the “RRA”).


 


WHEREAS, pursuant to
Section 9.1(a) of the Agreement and Section 6(f) of the RRA, the Agreement and the RRA, respectively, may be
amended with the written consent of the Borrower and the Lender.


 


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 $7,000,000, of which $2,500,000 is subject to outstanding Delayed Draw Term Loans extended prior to the date
of this Third 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 Third Amendment in an amount equal to $4,500,000. Accordingly, no additional Delayed Draw Term
Loans will be available after the date of this Third Amendment. Upon payment of the $4,500,000 referenced in this paragraph, the
total principal amount of Borrower’s debt to Lender shall be $9,500,000.”


 


3.          Amendment
of Definition of Filing Date in RRA. The definition of “Filing Date” set forth in Section 1 (Definitions)
of the RRA, dated March 25, 2020, between Borrower and Lender is hereby amended to replace the phrase “the 60th
calendar day following the date of the Second Amendment” with “the 60th calendar day following the date
of the Third Amendment.”


 


4.          Warrant
Issuance. As an inducement to Lender to enter into this Third 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 4,000,000 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 and on September 14, 2020 in connection with the execution of the Second
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 RRA. 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 and 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.


 






     


     


    

 


5.          Miscellaneous.   Except
as expressly set forth hereunder, the terms and provisions of the Agreement and the RRA shall remain in full force and effect after
the execution of this Third Amendment and shall not be in any way changed, modified or superseded by the terms set forth herein.
This Third 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 Third 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