Exhibit 10.1




WAIVER


 


This Waiver (this “Waiver”)
is entered into as of February 14, 2017, by and between Great Basin Scientific, Inc., a Delaware corporation (the “Company”),
and the undersigned holder (the “Holder”) which is one of the investors listed on the Schedule of Buyers (“Schedule
of Buyers”) attached to that certain Securities Purchase Agreement between the Company and all of the investors listed
on the Schedule of Buyers (the “Buyers”) dated June 29, 2016 (the “SPA”) with reference to
the following facts:


 


A.               
On June 29, 2016, the Company and the Buyers (as defined in the Registration Rights Agreement) entered into the SPA in relation
to the issuance and sale by the Company and purchase by the Holders of: (i) that aggregate principal amount of senior secured convertible
notes of the Company, in substantially the form attached to the SPA as Exhibit A (the “Notes”), set forth
opposite such Buyer's name in column (3) on the Schedule of Buyers (which aggregate principal amount of Notes for all Buyers was
$75,000,000) and (ii) related Series H Warrants, in substantially the form attached to the SPA as Exhibit B (the “Warrants”),
representing the right to acquire that number of shares of common stock of the Company, par value $0.0001 (“Common Stock”),
set forth opposite such Buyer's name in column (4) on the Schedule of Buyers (as exercised, collectively, the “Warrant
Shares”), which totaled in the aggregate 56,250,000 Warrant Shares.


 


B.                
The issuance of the Notes and the Warrants occurred at a closing on July 1, 2016 (the “Closing Date”).


 


C.                
In accordance with the terms of Section 4(n)(ii) of the SPA, the Company agreed that until the later of (I) the date
that is ninety (90) days after the date the Company obtains the Stockholder Approval (as defined in the SPA) and (II) the
earlier of (x) the time of the registration of all of the Underlying Shares (as defined in the SPA) pursuant to a registration
statement under the United States Securities Act of 1933, as amended, which registration remains in effect or (y) such time
as all of the Underlying Shares, if a registration statement is not available for the resale of all of the Underlying Shares, may
be sold without restriction or limitation pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1),
the Company shall not, directly or indirectly, file any registration statement with the SEC, or file any amendment or supplement
thereto, or grant any registration rights to any Person that can be exercised prior to the earlier of such time as set forth in
such Section 4(n)(ii) (the “Lock-up”).


 


D.               
The Company desires to file a Registration Statement on Form S-1 on or about February 13, 2017 (together with any subsequent
supplements and amendments thereto as reasonably necessary to effect the February 2017 Subsequent Offering (as defined below),
collectively, the “February 2017 Offering Registration Statement”) related to a proposed offering of units (which
will contain a to be determined number of common stock and warrants) of the Company for gross aggregate proceeds from the offering
of approximately $10,000,000, with each warrant offered as part of the units in such offering anticipated to be exercisable at
a price equal to the per unit price of the offering for a period of no more than 5 years (“February 2017 Subsequent Offering”).


 






     


     


    

 


E.                
The Company desires to obtain a waiver of Section 4(n)(ii) of the SPA solely with respect to the filing of the February
2017 Offering Registration Statement and the consummation of the February 2017 Subsequent Offering as set forth on the February
2017 Offering Registration Statement.


 


F.                 
In compliance with Section 9(e) of the SPA and Section 19 of the Notes , this Waiver shall only be effective upon the execution
and delivery of this Waiver and waivers in form and substance identical to this Waiver (the “Other Waivers”)
by other holders of Underlying Shares (as defined in the SPA) (each an “Other Holder”) representing on the Closing
Date at least fifty-one percent (51%) of the aggregate number of Underlying Shares issued or issuable under the Notes and Warrants
issued on the Closing Date and shall include Holder so long as Holder and/or any of its affiliates collectively hold at least five
percent (5%) of the Underlying Shares, in the aggregate (the “Required Holders”) (such time, the “Effective
Time”).


 


NOW, THEREFORE, in consideration
of the premises set forth above, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:


 


1.                 
Waiver. The Holder hereby waives, effective as of the Effective Time, Section 4(n)(ii) of the SPA solely with respect
to (x) the Company’s filing of the February 2017 Offering Registration Statement and (y) the Company's consummation of the
February 2017 Subsequent Offering as set forth in the February 2017 Offering Registration Statement.


 


2.                 
Acknowledgments. The Company hereby confirms and agrees that (i) except with respect to the waivers set forth in
Section 1 above that are effective as of the Effective Time, the SPA and Notes shall continue to be, in full force and effect;
(ii) the execution, delivery and effectiveness of this Waiver shall not operate as an amendment of any right, power or remedy of
the Holder except to the extent expressly set forth herein.


 


3.                 
Fees And Expenses. Company shall reimburse the Holder for its legal fees and expenses in connection with the preparation
and negotiation of this Waiver and transactions contemplated thereby, by paying any such amount to (the "Holder Counsel
Expense") by wire transfer of immediately available funds in accordance with the written instructions of delivered to
the Company. The Holder Counsel Expense shall be paid by the Company whether or not the transactions contemplated by this Waiver
are consummated. Except as otherwise set forth above, each party to this Waiver shall bear its own expenses in connection with
the transactions contemplated hereby.


 


4.                 
No Material, Nonpublic Information. The Company hereby agrees and acknowledges that the transactions contemplated
by this Waiver do not constitute material, nonpublic information of the Company or any of its Subsidiaries, the Company represents
to the Holder that it has publicly disclosed all material, non-public information delivered to the Holder by the Company or any
of its Subsidiaries, or any of their respective officers, directors, employees or agents on or prior to the date hereof and that
the Holder shall not be in possession of any material, nonpublic information received from the Company, any of its Subsidiaries
or any of their respective officers, directors, employees, affiliates or agents, that is not disclosed in the February 2017 Offering
Registration Statement. The Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement,
whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates,
employees or agents on the one hand, and the Holder or any of its affiliates on the other hand, has terminated and is of no further
force or effect. The Company shall not, and shall cause each of its Subsidiaries and its and each of their respective officers,
directors, affiliates, employees and agents, not to, provide any Holder with any material, nonpublic information regarding the
Company or any of its Subsidiaries from and after the date hereof without the express prior written consent of the Holder. To the
extent that the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates employees or agents
delivers any material, non-public information to any Holder without the Holder’s consent, the Company hereby covenants and
agrees that the Holder shall not have any duty of confidentiality to the Company, any of its Subsidiaries or any of their respective
officers, directors, affiliates, employees or agents with respect to, or a duty to the Company, any of its Subsidiaries or any
of their respective officers, directors, affiliates, employees or agents not to trade on the basis of, such material, non-public
information. The Company understands and confirms that the Holder will rely on the foregoing representations in effecting transactions
in securities of the Company.


 






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5.                 
Independent Nature of Holder Obligations and Rights. The obligations of the Holder under this Waiver are several
and not joint with the obligations of any Other Holder, and the Holder shall not be responsible in any way for the performance
of the obligations of any Other Holder under any Other Waiver. Nothing contained herein or in any Other Waiver, and no action taken
by the Holder pursuant hereto, shall be deemed to constitute the Holder and Other Holders as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the Holder and Other Holders are in any way acting in concert
or as a group with respect to such obligations or the transactions contemplated by this Waiver or any Other Waiver and the Company
acknowledges that the Holders are not acting in concert or as a group with respect to such obligations or the transactions contemplated
by this Waiver or any Other Waiver. The Company and the Holder confirm that the Holder has independently participated in the negotiation
of the transactions contemplated hereby with the advice of its own counsel and advisors. The Holder shall be entitled to independently
protect and enforce its rights, including, without limitation, the rights arising out of this Waiver or, any Other Waiver, and
it shall not be necessary for any Other Holder to be joined as an additional party in any proceeding for such purpose.


 


6.                 
No Third Party Beneficiaries. This Waiver is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.


 


7.                 
Counterparts. This Waiver may be executed in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall
constitute but one and the same instrument. In the event that any signature is delivered by facsimile transmission or by an e-mail
which contains a portable document format (.pdf) file of an executed signature page, such signature page shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if
such signature page were an original thereof.


 






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8.                 
No Strict Construction. The language used in this Waiver will be deemed to be the language chosen by the parties
to express their mutual intent, and no rules of strict construction will be applied against any party.


 


9.                 
Headings. The headings of this Waiver are for convenience of reference and shall not form part of, or affect the
interpretation of, this Waiver.


 


10.             
Severability. If any provision of this Waiver is prohibited by law or otherwise determined to be invalid or unenforceable
by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed
amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such
provision shall not affect the validity of the remaining provisions of this Waiver so long as this Waiver as so modified continues
to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited
nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations
or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the
parties. The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s)
with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).


 


11.             
Amendments. No provision of this Waiver may be amended other than by an instrument in writing signed by the Company
and the Required Holders.


 


12.             
Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and
things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may
reasonably request in order to carry out the intent and accomplish the purposes of this Waiver and the consummation of the transactions
contemplated hereby.


 


13.             
Notice. Whenever notice is required to be given under this Waiver, unless otherwise provided herein, such notice
shall be given in accordance with Section 9(f) of the SPA.


 


14.             
Successors and Assigns. This Waiver shall be binding upon and inure to the benefit of the parties and their respective
successors and assigns.


 


15.             
Capitalized Terms. Capitalized terms used herein and not otherwise defined herein shall have the respective meaning
set forth in the Registration Rights Agreement.


 


16.             
Governing Law; Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and interpretation
of this Waiver shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict
of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the
laws of any jurisdictions other than the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction
of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees
not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court,
that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit,
action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Waiver and agrees
that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be
deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY
RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH
OR ARISING OUT OF THIS WAIVER OR ANY TRANSACTION CONTEMPLATED HEREBY.


 


[Signature Pages Follow]


 




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IN WITNESS WHEREOF, each Undersigned and the
Company have caused their respective signature page to this Waiver to be duly executed as of the date first written above.


 


	 	COMPANY:
	 	 
	 	GREAT BASIN SCIENTIFIC, INC.
	 	 	 
	 	 	 
	 	By:	

	 	 	Name: Jeffrey Rona
	 	 	Title: CFO


  


 




    
[Signature Page to Waiver]



     


    

 


 


IN WITNESS WHEREOF, each Undersigned and the
Company have caused their respective signature page to this Waiver to be duly executed as of the date first written above.


 





	 	HOLDER:
	 	 	 
	 	 	 
	 	By:	 
	 	 	Name:  
	 	 	Title:  







 


 








    
[Signature Page to Waiver]