Exhibit 10.1


 


GI DYNAMICS, INC.


 


FIFTH AMENDMENT AND WAIVER TO SERIES A PREFERRED
STOCK PURCHASE AGREEMENT


 


THIS FIFTH AMENDMENT
AND WAIVER (this “Amendment”), dated effective as of February 24, 2021, is made to that certain SERIES
A PREFERRED STOCK PURCHASE AGREEMENT, dated August 10, 2020, as amended on October 31, 2020, on November 30, 2020, on December
22, 2020 and on January 29, 2021 (as so amended, the “Agreement”), by and between GI DYNAMICS,
INC., a Delaware corporation (the “Company”), and the investors listed on Exhibit A attached
to the Agreement (the “Purchasers”). Capitalized terms used herein and not otherwise defined shall have
the meanings given to them in the Agreement.


 


WHEREAS, pursuant to Section
6.11 of the Agreement, any term of the Agreement may be amended, waived or modified only with the written consent of the Company
and the holders of at least a majority of the then-outstanding Shares; and


 


WHEREAS, the Company and
the Purchaser holding a majority of the outstanding Shares, as of the date hereof, desire to (i) further amend the Agreement to
set certain dates on which the Closings for the sale of Additional Shares shall occur and (ii) waive certain conditions to such
Closings as required under the Agreement.


 


NOW, THEREFORE, the undersigned
Purchaser and the Company, in consideration of the mutual premises and covenants made herein and of the mutual benefits to be derived
herefrom, hereby agree as follows:


 


	 	1.	
        Amendment to Section 1.3 of the Agreement.
        Section 1.3 of the Agreement is hereby amended and restated as follows:

         

        “(a) After the Initial Closing, the Company
        shall sell, on the same terms and conditions as those contained in this Agreement, up to 56,414,306 additional shares (subject
        to appropriate adjustment in the event of any stock dividend, stock split, combination or similar recapitalization affecting such
        shares) of Series A Preferred Stock (the “Additional Shares”), to one or more purchasers (the “Additional
        Purchasers”) acceptable to Crystal Amber Fund Limited (“Crystal Amber”) in its sole discretion, provided
        that each Additional Purchaser becomes a party to the Transaction Agreements (as defined below), by executing and delivering a
        counterpart signature page to each of the Transaction Agreements. Notwithstanding the foregoing, Crystal Amber agrees that it will
        purchase the Additional Shares at additional Closings as follows: (i) on March 4, 2021 for 16,924,292 Additional Shares in exchange
        for $1,500,000; (ii) by March 25, 2021 for 11,282,861 Additional Shares in exchange for $1,000,000; and (iii) by May 28, 2021 for
        28,207,153 Additional Shares in exchange for $2,500,000. The number of Additional Shares to be purchased by Crystal Amber at each
        remaining additional Closing, as set forth in the preceding sentence, shall be appropriately reduced upon, and to reflect, the
        sale of any Additional Shares by the Company to one or more purchasers other than Crystal Amber. The Schedule of Purchasers provided
        in Exhibit A to this Agreement shall be updated to reflect the number of Additional Shares purchased at each such Closing
        and the parties purchasing such Additional Shares.

         

        (b) [DELETED].”



 


	 	2.	Waiver of Certain Closing Conditions.  The undersigned Purchaser hereby waives, as conditions to such Purchaser’s obligation to purchase Additional Shares at each additional Closing, the Company’s fulfillment on or before such additional Closing of (a) the condition set forth in Section 4.3 of the Agreement with respect to delivery of a compliance certificate and (b) the condition set forth in Section 4.11 of the Agreement with respect to delivery of a secretary’s certificate.  
	 	 	 
	 	3.	Except as expressly modified by this Amendment, the Agreement shall remain unmodified and in full force and effect.


 


	 	4.	This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute the same instrument. Facsimile or PDF transmission of execution copies or signature pages for this Amendment shall be legal, valid and binding execution and delivery for all purposes.


 


	 	5.	
        This Amendment shall be governed by, and construed
        and enforced in accordance with, the substantive laws of the State of Delaware, without regard to its principles of conflicts of
        laws.

         

        (Signatures Pages Immediately Follow)



 








    


     


    

 


IN WITNESS WHEREOF, the undersigned
party has executed this Amendment as of the date first written above.


 


COMPANY:


 


	GI DYNAMICS, INC.	 
	 	 	 
	By:	/s/ Charles R. Carter	 
	Name:	Charles R. Carter	 
	Title:	CFO, Secretary, Treasurer	 


 


 


IN WITNESS WHEREOF, the undersigned
party has executed this Amendment as of the date first written above.


 


PURCHASER:


 


CRYSTAL AMBER FUND LIMITED


 


By:
Crystal Amber Asset Management (Guernsey) Limited, as

Investment Manager


 


	By:	/s/ Laurence McNairn	 
	Name:	Laurence McNairn	 
	Title:	Director