Exhibit 10.3


 


 


 


 


 


 


 


 


 


 


 


 


 


GI DYNAMICS, INC.


 


SERIES A PREFERRED
STOCK PURCHASE AGREEMENT*


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


	*	Schedules have been omitted pursuant to Item
                                         601(a)(5) of Regulation S-K and will be provided on a supplemental basis to the Securities
                                         and Exchange Commission upon request.



 




    


     


    

 


TABLE OF CONTENTS


 


	 	 	 	Page
	 	 	 	 
	1.	Purchase and Sale of Preferred Stock	1
	 	1.1	Sale and Issuance of Preferred Stock	1
	 	1.2	Closing; Delivery.	1
	 	1.3	Sale of Additional Shares of Preferred Stock	1
	 	1.4	Use of Proceeds	2
	 	1.5	Defined Terms Used in this Agreement	2
	 	 	 	 
	2.	Representations and Warranties of the Company	3
	 	2.1	Organization, Good Standing, Corporate Power and Qualification	3
	 	2.2	Capitalization	4
	 	2.3	Subsidiaries	5
	 	2.4	Authorization	5
	 	2.5	Valid Issuance of Shares	6
	 	2.6	Governmental Consents and Filings	6
	 	2.7	Litigation	6
	 	2.8	Intellectual Property	6
	 	2.9	Compliance with Other Instruments	7
	 	2.10	Agreements; Actions	7
	 	2.11	SEC Filings	8
	 	2.12	Certain Transactions	8
	 	2.13	Rights of Registration and Voting Rights	8
	 	2.14	Property	8
	 	2.15	Financial Statements	8
	 	2.16	Changes	9
	 	2.17	Employee Matters	9
	 	2.18	Tax Returns and Payments	9
	 	2.19	Insurance	9
	 	2.20	Employee Agreements	9
	 	2.21	Permits	10
	 	2.22	Corporate Documents	10
	 	2.23	Environmental and Safety Laws	10
	 	2.24	Data Privacy	10
	 	2.25	Export Control Laws	11
	 	2.26	Preclinical Development and Clinical Trials	11
	 	2.27	FDA Approvals	11
	 	2.28	FDA Regulation	12
	 	2.29	Disclosure	12
	 	2.30	Finder’s Fees	12
	 	 	 	 
	3.	Representations and Warranties of the Purchasers	12
	 	3.1	Authorization	12
	 	3.2	Purchase Entirely for Own Account	12
	 	3.3	Disclosure of Information	13
	 	3.4	Restricted Securities	13
	 	3.5	Regulation S	13
	 	3.6	No Public Market	13


 




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(continued)


 


	 	 	 	Page
	 	 	 	 
	 	3.7	Legends	13
	 	3.8	Accredited Investor	14
	 	3.9	Foreign Investors	14
	 	3.10	No General Solicitation	14
	 	3.11	Exculpation Among Purchasers	14
	 	3.12	Residence	14
	 	3.13	Consent to Promissory Note Conversion and Termination	14
	 	3.14	Approval of Restated Certificate	15
	 	 	 	 
	4.	Conditions to the Purchasers’ Obligations at Closing	15
	 	4.1	Representations and Warranties	15
	 	4.2	Performance	15
	 	4.3	Compliance Certificate	15
	 	4.4	Qualifications	15
	 	4.5	Opinion of Company Counsel	15
	 	4.6	Board of Directors	15
	 	4.7	Investors’ Rights Agreement	15
	 	4.8	Right of First Refusal and Co-Sale Agreement	15
	 	4.9	Voting Agreement	15
	 	4.10	Restated Certificate	16
	 	4.11	Secretary’s Certificate	16
	 	4.12	Proceedings and Documents	16
	 	4.13	Minimum Number of Shares at Initial Closing	16
	 	4.14	ASX Delisting	16
	 	4.15	Indemnification Agreements	16
	 	4.16	D&O Insurance Policy	16
	 	 	 	 
	5.	Conditions of the Company’s Obligations at Closing	16
	 	5.1	Representations and Warranties	16
	 	5.2	Performance	16
	 	5.3	Qualifications	16
	 	5.4	Investors’ Rights Agreement	16
	 	5.5	Right of First Refusal and Co-Sale Agreement	17
	 	5.6	Voting Agreement	17
	 	5.7	Minimum Number of Shares at Initial Closing	17
	 	5.8	Note Restructuring and Warrant Cancellation	17
	 	5.9	2020 Stock Plan	17
	 	 	 	 
	6.	Miscellaneous	17
	 	6.1	Survival	17
	 	6.2	Successors and Assigns	17
	 	6.3	Governing Law	17
	 	6.4	Multiple Closings	17
	 	6.5	Counterparts	17
	 	6.6	Titles and Subtitles	18
	 	6.7	Notices	18
	 	6.8	No Finder’s Fees	18
	 	6.9	Fees and Expenses	18


 




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	 	 	 	Page
	 	 	 	 
	 	6.10	Attorneys’ Fees	18
	 	6.11	Amendments and Waivers	18
	 	6.12	Severability	19
	 	6.13	Delays or Omissions	19
	 	6.14	Entire Agreement	19
	 	6.15	Termination of Closing Obligations	19
	 	6.16	Dispute Resolution	20
	 	6.17	Additional Financing	20


 




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(continued)


 


	Exhibit A -	 	SCHEDULE OF PURCHASERS
	 	 	 
	Exhibit B -	 	FORM OF SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
	 	 	 
	Exhibit C -	 	DISCLOSURE SCHEDULE
	 	 	 
	Exhibit D -	 	FORM OF INDEMNIFICATION AGREEMENT
	 	 	 
	Exhibit E -	 	FORM OF INVESTORS’ RIGHTS AGREEMENT
	 	 	 
	Exhibit F -	 	FORM OF RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
	 	 	 
	Exhibit G -	 	FORM OF VOTING AGREEMENT
	 	 	 
	Exhibit H -	 	FORM OF NOTE EXCHANGE AND WARRANT CANCELLATION AGREEMENT
	 	 	 
	Exhibit I -	 	FORM OF 2020 STOCK PLAN


 




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SERIES A PREFERRED STOCK PURCHASE AGREEMENT


 


THIS SERIES A PREFERRED
STOCK PURCHASE AGREEMENT (this “Agreement”), is made as of the 10th day
of August, 2020 by and between GI Dynamics, Inc., a Delaware corporation (the “Company”), and the investors
listed on Exhibit A attached to this Agreement (each a “Purchaser” and together the “Purchasers”).


 


The parties hereby
agree as follows:


 


1. 
Purchase and Sale of Preferred Stock.


 


1.1 
Sale and Issuance of Preferred Stock.


 


(a) 
The Company shall adopt and file with the Secretary of State of the State of Delaware on or before the Initial Closing
(as defined below) the Second Amended and Restated Certificate of Incorporation in the form of Exhibit B attached to this
Agreement (the “Restated Certificate”).


 


(b) 
Subject to the terms and conditions of this Agreement, each Purchaser agrees to purchase at the Closing and the
Company agrees to sell and issue to each Purchaser at the Closing that number of shares of Series A Preferred Stock, $0.01 par
value per share (the “Series A Preferred Stock”), set forth opposite each Purchaser’s name on Exhibit
A (the “Schedule of Purchasers”), at a purchase price of $0.08863 per share. The shares of Series A Preferred
Stock issued to the Purchasers pursuant to this Agreement (including any shares issued at the Initial Closing and any Additional
Shares, as defined below) shall be referred to in this Agreement as the “Shares.”


 


1.2
Closing; Delivery.


 


(a) 
The initial purchase and sale of the Shares shall take place remotely via the exchange of documents and signatures,
at such time and place as the Company and the Purchasers mutually agree upon, orally or in writing (which time and place are designated
as the “Initial Closing”). In the event there is more than one closing, the term “Closing”
shall apply to each such closing unless otherwise specified.


 


(b) 
At each Closing, the Company shall deliver to each Purchaser a certificate (which, for all purposes in this Agreement,
may be book-entry security entitlements) representing the Shares being purchased by such Purchaser at such Closing against payment
of the purchase price therefor by check payable to the Company, by wire transfer to a bank account designated by the Company,
or by conversion of indebtedness of the Company to Purchaser, including interest, or by any combination of such methods.


 


1.3
Sale of Additional Shares of Preferred Stock.


 


(a) 
After the Initial Closing, the Company may 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 (i) such subsequent sale is consummated prior to October 31, 2020 (the
“Final Closing Date”) and (ii) 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. 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) 
Notwithstanding the foregoing, in the event that all of the Additional Shares have not been sold prior to the Final
Closing Date, Crystal Amber shall purchase any remaining Additional Shares on or prior to such Final Closing Date.


 


1.4 
Use of Proceeds. In accordance with the directions of the Company’s Board of Directors (the “Board
of Directors”), as it shall be constituted in accordance with the Voting Agreement, the Company will use the proceeds
from the sale of the Shares for product development and other general corporate purposes.


 


1.5 
Defined Terms Used in this Agreement. In addition to the terms defined above, the following terms used in
this Agreement shall be construed to have the meanings set forth or referenced below.


 


(a) 
“Affiliate” means, with respect to any specified Person, any other Person who, directly or indirectly,
controls, is controlled by, or is under common control with such Person, including, without limitation, any general partner, managing
member, officer, director or trustee of such Person, or any venture capital fund or registered investment company now or hereafter
existing that is controlled by one or more general partners, managing members or investment advisers of, or shares the same management
company or investment adviser with, such Person.


 


(b)
“Code” means the Internal Revenue Code of 1986, as amended.


 


(c) 
“Company Intellectual Property” means all patents, patent applications, registered and unregistered
trademarks, trademark applications, registered and unregistered service marks, service mark applications, tradenames, copyrights,
trade secrets, domain names, information and proprietary rights and processes, similar or other intellectual property rights,
subject matter of any of the foregoing, tangible embodiments of any of the foregoing, licenses in, to and under any of the foregoing,
and any and all such cases as are necessary to the Company in the conduct of the Company’s business as now conducted and
as presently proposed to be conducted.


 


(d) 
“Indemnification Agreement” means the agreement between the Company and the director designated
by any Purchaser entitled to designate a member of the Board of Directors pursuant to the Voting Agreement, dated as of the date
of the Initial Closing, in the form of Exhibit D attached to this Agreement.


 


(e) 
“Investors’ Rights Agreement” means the agreement among the Company and the Purchasers,
dated as of the date of the Initial Closing, in the form of Exhibit E attached to this Agreement.


 


(f) 
“Key Employee” means any executive-level employee (including division director and vice president-level
positions) as well as any employee or consultant who either alone or in concert with others develops, invents, programs or designs
any Company Intellectual Property.


 






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(g)
“Knowledge” including the phrase “to the Company’s knowledge” shall  mean
the actual knowledge after reasonable investigation of the following officers: Scott Schorer, Chief Executive Officer, and Charles
Carter, Chief Financial Officer.


 


(h) 
“Material Adverse Effect” means a material adverse effect on the business, assets (including
intangible assets), liabilities, financial condition, property, prospects or results of operations of the Company.


 


(i) 
“Person” means any individual, corporation, partnership, trust, limited liability company, association
or other entity.


 


(j) 
“Purchaser” means each of the Purchasers who is initially a party to this Agreement and any Additional
Purchaser who becomes a party to this Agreement at a subsequent Closing under Subsection 1.2(b).


 


(k) 
“Right of First Refusal and Co-Sale Agreement” means the agreement among the Company, the Purchasers,
and certain other stockholders of the Company, dated as of the date of the Initial Closing, in the form of Exhibit F attached
to this Agreement.


 


(l) 
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.


 


(m) 
“Shares” means the shares of Series A Preferred Stock issued at the Initial Closing and any Additional
Shares issued at a subsequent Closing under Subsection 1.2(b).


 


(n) 
“Transaction Agreements” means this Agreement, the Investors’ Rights Agreement, the Right
of First Refusal and Co-Sale Agreement and the Voting Agreement.


 


(o) 
“Voting Agreement” means the agreement among the Company, the Purchasers and certain other stockholders
of the Company, dated as of the date of the Initial Closing, in the form of Exhibit G attached to this Agreement.


 


2. 
Representations and Warranties of the Company. The Company hereby represents and warrants to each Purchaser
that, except as set forth on the Disclosure Schedule attached as Exhibit C to this Agreement, which exceptions shall be
deemed to be part of the representations and warranties made hereunder, the following representations are true and complete as
of the date of the Initial Closing, except as otherwise indicated. The Disclosure Schedule shall be arranged in sections corresponding
to the numbered and lettered sections and subsections contained in this Section 2, and the disclosures in any section or
subsection of the Disclosure Schedule shall qualify other sections and subsections in this Section 2 only to the extent
it is readily apparent from a reading of the disclosure that such disclosure is applicable to such other sections and subsections.


 


For purposes of these
representations and warranties (other than those in Subsections 2.2, 2.3, 2.4, 2.5, and 2.6),
the term the “Company” shall include any subsidiaries of the Company, unless otherwise noted herein.


 


2.1 
Organization, Good Standing, Corporate Power and Qualification.
The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and
has all requisite corporate power and authority to carry on its business as now conducted and as presently proposed to be conducted.
The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify
would have a Material Adverse Effect.


 






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2.2
Capitalization.


 


(a) 
The authorized capital of the Company consists, immediately prior to the Initial Closing (after taking into account
the filing of the Restated Certificate with the Secretary of State of the State of Delaware), of:


 


(i) 
280,000,000 shares of common stock, $0.01 par value per share (the “Common Stock”), with 88,095,764
shares of which are issued and outstanding. All of the outstanding shares of Common Stock have been duly authorized, are fully
paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.


 


(ii)
118,000,000 shares of preferred stock, of which 118,000,000 shares have been designated Series A Preferred Stock, none
of which are issued and outstanding immediately prior to the Initial Closing. The rights, privileges and preferences of the Series
A Preferred Stock are as stated in the Restated Certificate and as provided by the Delaware General Corporation Law.


 


(b)
The Company has reserved 44,951,189 shares of Common Stock for issuance to officers, directors, employees and consultants
of the Company pursuant to its 2011 Employee, Director and Consultant Equity Incentive Plan duly adopted by the Board of Directors
and approved by the Company stockholders (the “2011 Stock Plan”) and its 2020 Employee, Director and Consultant
Equity Incentive Plan to be adopted by the Board of Directors and the Company stockholders, in substantially the form attached
hereto as Exhibit I (the “2020 Stock Plan,” and, together with the 2011 Stock Plan, the “Stock
Plans”). Of such reserved shares of Common Stock, 250,000 shares (which shares are included in the number of issued
and outstanding shares of Common Stock set forth in Subsection 2.2(a)(i) above) have been issued pursuant to restricted
stock purchase agreements, options to purchase 2,990,221 shares have been granted and are currently outstanding, and 41,710,968
shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the Stock Plans.
The Company has furnished to the Purchasers complete and accurate copies of the Stock Plans and forms of agreements used thereunder.


 


(c) 
Subsection 2.2(c) of the Disclosure Schedule sets forth the capitalization of the Company immediately following
the Initial Closing including the number of shares of the following: (i) issued and outstanding Common Stock, including, with
respect to restricted Common Stock, vesting schedule and repurchase price; (ii) granted stock options, including vesting schedule
and exercise price; (iii)  shares of Common
Stock reserved for future award grants under the Company’s Stock Plans; (iv) each series of preferred stock; and (v) warrants,
stock purchase rights or other similar rights, if any. Except for (A) 
the conversion privileges of the Shares to be issued under this Agreement, (B) the rights provided in Section 4 of the
Investors’ Rights Agreement, and (C) the securities and rights described in Subsection 2.2(a)(ii) of this Agreement
and Subsection 2.2(c) of the Disclosure Schedule, there are no outstanding options, warrants, rights (including conversion or
preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from
the Company any shares of Common Stock or Series A Preferred Stock, or any securities convertible into or exchangeable for shares
of Common Stock or Series A Preferred Stock. All outstanding shares of the Company’s Common Stock and all shares of the
Company’s Common Stock underlying outstanding options are subject to (i) a right of first refusal in favor of the Company
upon any proposed transfer (other than transfers for estate planning purposes); and (ii) 
a lock-up or market standoff agreement of not less than one hundred eighty (180) days following the Company’s initial
public offering pursuant to a registration statement filed with the Securities and Exchange Commission under the Securities Act.


 



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(d)
Except as set forth in Subsection 2.2(d) of the Disclosure Schedule, none of the Company’s stock purchase agreements or
stock option documents contains a provision for acceleration of vesting (or lapse of a repurchase right) or other changes in the
vesting provisions or other terms of such agreement or understanding upon the occurrence of any event or combination of events,
including without limitation in the case where the Company’s Stock Plans is not assumed in an acquisition. The Company has
never adjusted or amended the exercise price of any stock options previously awarded, whether through amendment, cancellation,
replacement grant, repricing, or any other means. Except as set forth in the Restated Certificate, the Company has no obligation
(contingent or otherwise) to purchase or redeem any of its capital stock.


 


(e) 
409A. The Company believes in good faith that any “nonqualified deferred compensation plan” (as
such term is defined under Section 409A(d)(1) of the Code and the guidance thereunder) under which the Company makes, is obligated
to make or promises to make, payments (each, a “409A Plan”) complies in all material respects, in both form
and operation, with the requirements of Section 409A of the Code and the guidance thereunder. To the knowledge of the Company,
no payment to be made under any 409A Plan is, or will be, subject to the penalties of Section 409A(a)(1) of the Code.


 


(f) 
The Company has obtained valid waivers of any rights by other parties to purchase any of the Shares covered by this
Agreement.


 


2.3 
Subsidiaries. Each subsidiary of the Company is identified on Subsection 2.3 of the Disclosure Schedule.


 


2.4 
Authorization. All corporate action required to be taken by the Company’s Board of Directors and stockholders
in order to authorize the Company to enter into the Transaction Agreements, and to issue the Shares at the Closing and the Common
Stock issuable upon conversion of the Shares, has been taken or will be taken prior to the Closing. All action on the part of
the officers of the Company necessary for the execution and delivery of the Transaction Agreements, the performance of all obligations
of the Company under the Transaction Agreements to be performed as of the Closing, and the issuance and delivery of the Shares
has been taken or will be taken prior to the Closing. The Transaction Agreements, when executed and delivered by the Company,
shall constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their
respective terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance,
or other laws of general application relating to or affecting the enforcement of creditors’ rights generally, (ii) as limited
by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, or (iii) 
to the extent the indemnification provisions contained in the Investors’ Rights Agreement may be limited by applicable
federal or state securities laws.


 




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2.5 
Valid Issuance of Shares.
The Shares, when issued, sold and delivered in accordance with the terms and for the consideration set forth in this Agreement,
will be validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer
under the Transaction Agreements, applicable state and federal securities laws and liens or encumbrances created by or imposed
by a Purchaser. Assuming the accuracy of the representations of the Purchasers in Section 3 of
this Agreement and subject to the filings described in the Voting Agreement, the Shares will be issued in compliance with all
applicable federal and state securities laws. The Common Stock issuable upon conversion of the Shares has been duly reserved for
issuance, and upon issuance in accordance with the terms of the Restated Certificate, will be validly issued, fully paid and nonassessable
and free of restrictions on transfer other than restrictions on transfer under the Transaction Agreements, applicable federal
and state securities laws and liens or encumbrances created by or imposed by a Purchaser. Based in part upon the representations
of the Purchasers in Section 3 of this Agreement and in the Voting Agreement, the Common
Stock issuable upon conversion of the Shares will be issued in compliance with all applicable federal and state securities laws.


 


2.6 
Governmental Consents and Filings. Assuming the accuracy of the representations made by the Purchasers in
Section 3 of this Agreement, no consent, approval, order or authorization of, or registration, qualification, designation,
declaration or filing with, any federal, state or local governmental authority is required on the part of the Company in connection
with the consummation of the transactions contemplated by this Agreement, except for (i) the filing of the Restated Certificate,
which will have been filed as of the Initial Closing, and (ii) filings pursuant to Regulation D of the Securities Act, and applicable
state securities laws, which have been made or will be made in a timely manner.


 


2.7 
Litigation. There is no action, suit, proceeding, inquiry or investigation before or by the SEC, any court,
public board, government agency, self-regulatory organization or body pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries or affiliates, the Shares or any of the Company’s or its subsidiaries’
officers or directors, whether of a civil or criminal nature or otherwise, which, if adversely determined, would have a Material
Adverse Effect.


 


2.8 
Intellectual Property. The Company owns or possesses or can acquire on commercially reasonable terms sufficient
legal rights to all Company Intellectual Property without any known conflict with, or to the Company’s knowledge (not including
any patent searches), infringement of, the rights of others. To the Company’s knowledge, no product or service marketed
or sold (or presently proposed to be marketed or sold) by the Company violates any license or infringes any intellectual property
rights of any other party. Other than with respect to commercially available software products under standard end-user object
code license agreements, there are no outstanding options, licenses, agreements, claims, encumbrances or shared ownership interests
of any kind relating to the Company Intellectual Property, nor is the Company bound by or a party to any options, licenses or
agreements of any kind with respect to the patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses,
information, proprietary rights and processes of any other Person. The Company has not received any communications alleging that
the Company has violated, or by conducting its business, would violate any of the patents, trademarks, service marks, tradenames,
copyrights, trade secrets, mask works or other proprietary rights or processes of any other Person. The Company has obtained and
possesses valid licenses to use all of the software programs present on the computers and other software-enabled electronic devices
that it owns or leases or that it has otherwise provided to its employees for their use in connection with the Company’s
business. To the Company’s knowledge, it will not be necessary to use any inventions of any of its employees or consultants
(or Persons it currently intends to hire) made prior to their employment by the Company. Each employee and consultant has assigned
to the Company all intellectual property rights he or she owns, which are related to the Company’s business as now conducted
and as presently proposed to be conducted and were solely or jointly conceived, reduced to practice, developed or made during
the period of his, her or its employment or consulting relationship with the Company that (a) relate, at the time of conception,
reduction to practice, development, or making of such intellectual property right, to the Company’s business as then conducted
or as then proposed to be conducted, (b) were developed on any amount of the Company’s time or with the use of any of the
Company’s equipment, supplies, facilities or information or (c) resulted from the performance of services for the Company.
Subsection 2.8 of the Disclosure Schedule lists all patents, patent applications, trademarks, trademark applications, service
marks, service mark applications, tradenames, copyrights, and licenses to and under any of the foregoing, in each case owned by
the Company.


 






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2.9 
Compliance with Other Instruments. The Company is not in violation or default (i) of any provisions of its
Restated Certificate or Bylaws, (ii) of any instrument, judgment, order, writ or decree, (iii) under any note, indenture or mortgage,
or (iv) under any lease, agreement, contract or purchase order to which it is a party or by which it is bound that is required
to be listed on the Disclosure Schedule, or (v) to its knowledge, of any provision of federal or state statute, rule or regulation
applicable to the Company, the violation of which would have a Material Adverse Effect. The execution, delivery and performance
of the Transaction Agreements and the consummation of the transactions contemplated by the Transaction Agreements will not result
in any such violation or be in conflict with or constitute, with or without the passage of time and giving of notice, either (i)
a default under any such provision, instrument, judgment, order, writ, decree, contract or agreement; or (ii) an event which results
in the creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, forfeiture, or
nonrenewal of any material permit or license applicable to the Company.


 


2.10
Agreements; Actions.


 


(a) 
Other than the Transaction Agreements, and except as set forth in the SEC Filings (as defined below) or in Subsection
2.10(a) of the Disclosure Schedule, there are no agreements, understandings, instruments or contracts to which the Company is
a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess
of $100,000 (ii) the license of any patent, copyright, trademark, trade secret or other proprietary right to or from the Company,
(iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other Person that limit
the Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, or (iv) indemnification
by the Company with respect to infringements of proprietary rights.


 


(b) 
Except as set forth in the SEC Filings (as defined below) or in Subsection 2.10(b) of the Disclosure Schedule, the
Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or
series of its capital stock, (ii) incurred any indebtedness for money borrowed or incurred any other liabilities individually
in excess of $100,000 or in excess of $250,000 in the aggregate, (iii) made any loans or advances to any Person, other than ordinary
advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale
of its inventory in the ordinary course of business. For the purposes of (a) and (b) of this Subsection 2.10, all indebtedness,
liabilities, agreements, understandings, instruments and contracts involving the same Person (including Persons the Company has
reason to believe are affiliated with each other) shall be aggregated for the purpose of meeting the individual minimum dollar
amounts of such subsection.


 


(c)
The Company is not a guarantor or indemnitor of any indebtedness of any other Person.


 






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2.11 SEC Filings.
The Company has provided each Purchaser with copies of the Company’s most recent Annual Report on Form 10-K for the fiscal
year ended December 31, 2019, as amended, and all other reports filed by the Company pursuant to the Securities Exchange Act of
1934, as amended (the “Exchange Act”) since the filing of the Annual Report on Form 10-K and prior to the date
hereof (collectively, the “SEC Filings”); which reports represent all filings required of the Company pursuant
to the Exchange Act for such period.


 


2.12
Certain Transactions.

 


(a) 
Except as set forth in the SEC Filings, other than (i) standard employee benefits generally made available to all employees, (ii)
standard director and officer indemnification agreements approved by the Board of Directors, and (iii) the purchase of shares
of the Company’s capital stock and the issuance of options to purchase shares of the Company’s Common Stock, in each
instance, approved in the written minutes of the Board of Directors (previously provided to the Purchasers or their counsel),
there are no agreements, understandings or proposed transactions between the Company and any of its officers or directors, or
any Affiliate thereof.


 


(b) 
Except as set forth in the SEC Filings, the Company is not indebted, directly or indirectly, to any of its directors, officers
or employees or to their respective spouses or children or to any Affiliate of any of the foregoing, other than in connection
with expenses or advances of expenses incurred in the ordinary course of business or employee relocation expenses and for other
customary employee benefits made generally available to all employees.


 


2.13  Rights
of Registration and Voting Rights. Except as provided in the Investors’ Rights Agreement, the Company is not under any
obligation to register under the Securities Act any of its currently outstanding securities or any securities issuable upon exercise
or conversion of its currently outstanding securities. To the Company’s knowledge, except as contemplated in the Voting
Agreement, no stockholder of the Company has entered into any agreements with respect to the voting of capital shares of the Company.


 


2.14  Property.
The property and assets that the Company owns are free and clear of all mortgages, deeds of trust, liens, loans and encumbrances,
except for statutory liens for the payment of current taxes that are not yet delinquent and encumbrances and liens that arise
in the ordinary course of business and do not materially impair the Company’s ownership or use of such property or assets.
With respect to the property and assets it leases, the Company is in compliance with such leases and holds a valid leasehold interest
free of any liens, claims or encumbrances other than those of the lessors of such property or assets. The Company does not own
any real property.


 


2.15  Financial
Statements. The Company has delivered to each Purchaser its audited financial statements as of December 31, 2019 and for the
fiscal year ended December 31, 2019 and its unaudited financial statements (including balance sheet, income statement and statement
of cash flows) as of June 30, 2020 and for the six month period ended June 30, 2020 (collectively, the “Financial Statements”).
The Financial Statements have been prepared in accordance with generally accepted accounting principles (“GAAP”)
applied on a consistent basis throughout the periods indicated, except that the unaudited Financial Statements may not contain
all footnotes required by GAAP. The Financial Statements fairly present in all material respects the financial condition and operating
results of the Company as of the dates, and for the periods, indicated therein, subject in the case of the unaudited Financial
Statements to normal year-end audit adjustments. Except as set forth in the Financial Statements, the Company has no material
liabilities or obligations, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent
to June 30, 2020; (ii) obligations under contracts and commitments incurred in the ordinary course of business; (iii) liabilities
assumed in connection with a loan  from TD Bank, N.A. in the principal amount of $195,147, pursuant to the Paycheck Protection
Program under Division A, Title I of the Coronavirus Aid, Relief, and Economic Security Act, which matures on May 1, 2022 and
bears interest at a rate of 1.00% per annum, payable monthly commencing on December 1, 2020; and (iv) liabilities and obligations
of a type or nature not required under GAAP to be reflected in the Financial Statements, which, in all such cases, individually
and in the aggregate would not have a Material Adverse Effect. The Company maintains and will continue to maintain a standard
system of accounting established and administered in accordance with GAAP.


 






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2.16  Changes.
To the Company’s knowledge, since June 30, 2020 there have been no events or circumstances of any kind that have had or
could reasonably be expected to result in a Material Adverse Effect.


 


2.17  Employee
Matters. Neither Company nor any subsidiary is involved in any labor dispute nor, to the knowledge of the Company, is any
such dispute threatened. Neither Company nor any subsidiary is party to any collective bargaining agreement. The Company’s
and/or its subsidiaries’ employees are not members of any union, and the Company believes that its and its subsidiaries’
relationship with their respective employees is good. The Company is not delinquent in payments to any of its employees, consultants,
or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed
for it to the date hereof or amounts required to be reimbursed to such employees, consultants or independent contractors. The
Company has complied in all material respects with all applicable state and federal equal employment opportunity laws and with
other laws related to employment, including those related to wages, hours, worker classification and collective bargaining. The
Company has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to such governmental
entity all amounts required to be withheld from employees of the Company and is not liable for any arrears of wages, taxes, penalties
or other sums for failure to comply with any of the foregoing. The Company has not made any representations regarding equity incentives
to any officer, employee, director or consultant that are inconsistent with the share amounts and terms set forth in the minutes
of meetings of the Company’s Board of Directors. Subsection 2.17 of the Disclosure Schedule sets forth each employee benefit
plan maintained, established or sponsored by the Company, or which the Company participates in or contributes to, which is subject
to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). The Company has made all required
contributions and, to its knowledge, has no liability to any such employee benefit plan, other than liability for health plan
continuation coverage described in Part 6 of Title I(B) of ERISA, and has complied in all material respects with all applicable
laws for any such employee benefit plan.


 


2.18  Tax
Returns and Payments. There are no federal, state, county, local or foreign taxes due and payable by the Company which have
not been timely paid. There are no accrued and unpaid federal, state, country, local or foreign taxes of the Company which are
due, whether or not assessed or disputed. There have been no examinations or audits of any tax returns or reports by any applicable
federal, state, local or foreign governmental agency. The Company has duly and timely filed all federal, state, county, local
and foreign tax returns required to have been filed by it and there are in effect no waivers of applicable statutes of limitations
with respect to taxes for any year.


 


2.19  Insurance.
The Company has in full force and effect insurance policies concerning such casualties as would be reasonable and customary for
companies like the Company.


 


2.20  Employee
Agreements. Each current and former employee, consultant and officer of the Company has executed an agreement with the Company
regarding confidentiality and proprietary information substantially in the form or forms delivered to the counsel for the Purchasers.


 






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2.21 Permits.
The Company has all franchises, permits, licenses and any similar authority necessary for the conduct of its business, the lack
of which could reasonably be expected to have a Material Adverse Effect. The Company is not in default in any material respect
under any of such franchises, permits, licenses or other similar authority.


 


2.22  Corporate
Documents. The Restated Certificate and Bylaws of the Company are in the form provided to the Purchasers. The copy of the
minute books of the Company provided to the Purchasers contains minutes of all meetings of directors and stockholders and all
actions by written consent without a meeting by the directors and stockholders since the date of incorporation and accurately
reflects in all material respects all actions by the directors (and any committee of directors) and stockholders with respect
to all transactions referred to in such minutes.


 


2.23  Environmental
and Safety Laws. Except as could not reasonably be expected to have a Material Adverse Effect to the best of its knowledge
(a) the Company is and has been in compliance with all Environmental Laws; (b) there has been no release or to the Company’s
knowledge threatened release of any pollutant, contaminant or toxic or hazardous material, substance or waste or petroleum or
any fraction thereof (each a “Hazardous Substance”), on, upon, into or from any site currently or heretofore
owned, leased or otherwise used by the Company; (c) there have been no Hazardous Substances generated by the Company that have
been disposed of or come to rest at any site that has been included in any published U.S. federal, state or local “superfund”
site list or any other similar list of hazardous or toxic waste sites published by any governmental authority in the United States;
and (d) to the Company’s knowledge, there are no underground storage tanks located on, no polychlorinated biphenyls (“PCBs”)
or PCB-containing equipment used or stored on, and no hazardous waste as defined by the Resource Conservation and Recovery Act,
as amended, stored on, any site owned or operated by the Company, except for the storage of hazardous waste in compliance with
Environmental Laws. The Company has made available to the Purchasers true and complete copies of all material environmental records,
reports, notifications, certificates of need, permits, pending permit applications, correspondence, engineering studies and environmental
studies or assessments.


 


For purposes
of this Subsection 2.23, “Environmental Laws” means any law, regulation, or other applicable requirement
relating to (a) releases or threatened release of Hazardous Substance; (b) pollution or protection of employee health or safety,
public health or the environment; or (c) the manufacture, handling, transport, use, treatment, storage, or disposal of Hazardous
Substances.


 


2.24  Data
Privacy. In connection with its collection, storage, transfer (including, without limitation, any transfer across national
borders) and/or use of any personally identifiable information from any individuals, including, without limitation, any customers,
prospective customers, employees and/or other third parties (collectively “Personal Information”), the Company
is and has been, to the Company’s knowledge, in compliance in all material respects with all applicable laws in all relevant
jurisdictions, the Company’s privacy policies and the requirements of any contract or codes of conduct to which the Company
is a party. The Company has commercially reasonable physical, technical, organizational and administrative security measures and
policies in place to protect all Personal Information collected by it or on its behalf from and against unauthorized access, use
and/or disclosure. To the extent the Company maintains or transmits protected health information, as defined under 45 C.F.R. §
160.103, the Company is in compliance with the applicable requirements of the Health Insurance Portability and Accountability
Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act, including all rules and regulations
promulgated thereunder. The Company is and has been, to the Company’s knowledge, in compliance in all material respects
with all laws relating to data loss, theft and breach of security notification obligations.


 






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2.25 Export
Control Laws. The Company has conducted all export transactions in accordance with applicable provisions of United States
export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations,
the regulations administered by the Office of Foreign Assets Control of the U.S. Treasury Department, and the export control laws
and regulations of any other applicable jurisdiction. Without limiting the foregoing: (a) the Company has obtained all export
licenses and other approvals, timely filed all required filings and has assigned the appropriate export classifications to all
products, in each case as required for its exports of products, software and technologies from the United States and any other
applicable jurisdiction; (b) the Company is in compliance in all material respects with the terms of all applicable export licenses,
classifications, filing requirements or other approvals; (c) there are no pending or, to the knowledge of the Company, threatened
claims against the Company with respect to such exports, classifications, required filings or other approvals; (d) to the knowledge
of the Company, there are no pending investigations related to the Company’s exports; and (e) to the knowledge of the Company,
there are no actions, conditions, or circumstances pertaining to the Company’s export transactions that would reasonably
be expected to give rise to any material future claims.


 


2.26  Preclinical
Development and Clinical Trials. The studies, tests, preclinical development and clinical trials, if any, conducted by or
on behalf of the Company are being conducted in all material respects in accordance with experimental protocols, procedures and
controls pursuant to accepted professional and scientific standards for products or product candidates comparable to those being
developed by the Company and all applicable laws and regulations, including the Federal Food, Drug, and Cosmetic Act and 21 C.F.R.
parts 50, 54, 56, 58, 312, and 812. The descriptions of, protocols for, and data and other results of, the studies, tests, development
and trials conducted by or on behalf of the Company that have been furnished or made available to the Purchasers are accurate
and complete. The Company is not aware of any studies, tests, development or trials the results of which reasonably call into
question the results of the studies, tests, development and trials conducted by or on behalf of the Company, and the Company has
not received any notices or correspondence from the FDA or any other Governmental Entity or any Institutional Review Board or
comparable authority requiring the termination, suspension or material modification of any studies, tests, preclinical development
or clinical trials conducted by or on behalf of the Company.


 


2.27  FDA
Approvals. Except as set forth in Subsection 2.27 of the Disclosure Schedule, the Company possesses all permits, licenses,
registrations, certificates, authorizations, orders and approvals from the appropriate federal, state or foreign regulatory authorities
necessary to conduct its business, including all such permits, licenses, registrations, certificates, authorizations, orders and
approvals required by the U.S. Food and Drug Administration (“FDA”) or any other federal, state or foreign
agencies or bodies engaged in the regulation of drugs, pharmaceuticals, medical devices or biohazardous materials. The Company
has not received any notice of proceedings relating to the suspension, modification, revocation or cancellation of any such permit,
license, registration, certificate, authorization, order or approval. Neither the Company nor, to the Company’s knowledge, any
officer, employee or agent of the Company has been convicted of any crime or engaged in any conduct that has previously caused
or would reasonably be expected to result in (A) disqualification or debarment by the FDA under 21 U.S.C. Sections 335(a) or (b),
or any similar law, rule or regulation of any other Governmental Entities, (B) debarment, suspension, or exclusion under any Federal
Healthcare Programs or by the General Services Administration, or (C) exclusion under 42 U.S.C. Section 1320a-7 or any similar
law, rule or regulation of any Governmental Entities. Neither the Company nor any of its officers, employees, or to the Knowledge
of the Company, any of its contractors or agents is the subject of any pending or threatened investigation by FDA pursuant to
its “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities” policy as stated at 56 Fed. Reg.
46191 (September 10, 1991) (the “FDA Application Integrity Policy”) and any amendments thereto, or by any other
similar Governmental Entity pursuant to any similar policy. Neither the Company nor any of its officers, employees, contractors,
and agents has committed any act, made any statement or failed to make any statement that would reasonably be expected to provide
a basis for FDA to invoke the FDA Application Integrity Policy or for any similar governmental entity to invoke a similar policy.
Neither the Company nor any of its officers, employees, or to the Company’s Knowledge, any of its contractors or agents
has made any materially false statements on, or material omissions from, any notifications, applications, approvals, reports and
other submissions to FDA or any similar governmental entity.


 






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2.28  FDA
Regulation. The Company is and has been in compliance in all material respects with all applicable laws administered or issued
by the FDA or any similar governmental entity, including the Federal Food, Drug, and Cosmetic Act and all other Laws regarding
developing, testing, manufacturing, marketing, distributing or promoting the products of the Company, or complaint handling or
adverse event reporting.


 


2.29  Disclosure.
No representation or warranty of the Company contained in this Agreement, as qualified by the Disclosure Schedule, and no certificate
furnished or to be furnished to Purchasers at the Closing contains any untrue statement of a material fact or, to the Company’s
knowledge, omits to state a material fact necessary in order to make the statements contained herein or therein not misleading
in light of the circumstances under which they were made. It is understood that this representation is qualified by the fact that
the Company has not delivered to the Purchasers, and has not been requested to deliver, a private placement or similar memorandum
or any written disclosure of the types of information customarily furnished to purchasers of securities.


 


2.30  Finder’s
Fees. Except as set forth in Subsection 2.30 of the Disclosure Schedule, neither of the Company nor any of its subsidiaries
has any liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions
contemplated by this Agreement.


 


3.  Representations
and Warranties of the Purchasers. Each Purchaser hereby represents and warrants to the Company, severally and not jointly,
that:


 


3.1  Authorization.
The Purchaser has full power and authority to enter into the Transaction Agreements. The Transaction Agreements to which the Purchaser
is a party, when executed and delivered by the Purchaser, will constitute valid and legally binding obligations of the Purchaser,
enforceable in accordance with their terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and any other laws of general application affecting enforcement of creditors’ rights generally, and
as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies, or (b)
to the extent the indemnification provisions contained in the Investors’ Rights Agreement may be limited by applicable federal
or state securities laws.


 


3.2  Purchase
Entirely for Own Account. This Agreement is made with the Purchaser in reliance upon the Purchaser’s representation
to the Company, which by the Purchaser’s execution of this Agreement, the Purchaser hereby confirms, that the Shares to
be acquired by the Purchaser will be acquired for investment for the Purchaser’s own account, not as a nominee or agent,
and not with a view to the resale or distribution of any part thereof, and that the Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing the same. By executing this Agreement, the Purchaser further represents
that the Purchaser does not presently have any contract, undertaking, agreement or arrangement with any Person to sell, transfer
or grant participations to such Person or to any third Person, with respect to any of the Shares. The Purchaser has not been formed
for the specific purpose of acquiring the Shares.


 






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3.3 Disclosure
of Information. The Purchaser has had an opportunity to discuss the Company’s business, management, financial
affairs and the terms and conditions of the offering of the Shares with the Company’s management and has had an
opportunity to review the Company’s facilities. The foregoing, however, does not limit or modify the representations
and warranties of the Company in Section 2 of this Agreement or the right of the Purchasers to rely thereon.


 


3.4  Restricted
Securities. The Purchaser understands that the Shares have not been, and will not be, registered under the Securities Act,
by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things,
the bona fide nature of the investment intent and the accuracy of the Purchaser’s representations as expressed herein. The
Purchaser understands that the Shares are “restricted securities” under applicable U.S. federal and state securities
laws and that, pursuant to these laws, the Purchaser must hold the Shares indefinitely unless they are registered with the Securities
and Exchange Commission and qualified by state authorities, or an exemption from such registration and qualification requirements
is available. The Purchaser acknowledges that the Company has no obligation to register or qualify the Shares, or the Common Stock
into which it may be converted, for resale except as set forth in the Investors’ Rights Agreement. The Purchaser further
acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements
including, but not limited to, the time and manner of sale, the holding period for the Shares, and on requirements relating to
the Company which are outside of the Purchaser’s control, and which the Company is under no obligation and may not be able
to satisfy.


 


3.5  Regulation
S. In issuing and selling the Shares, the Company may be relying upon the “safe harbor” provided by Regulation
S and/or on Section 4(a)(2) under the Securities Act; it is a condition to the availability of the Regulation S “safe harbor”
that the Shares not be offered or sold in the United States or to a U.S. person until the expiration of a one-year “distribution
compliance period” (or a six-month “distribution compliance period,” if the issuer is a “reporting issuer,”
as defined in Regulation S) following the closing; and notwithstanding the foregoing, prior to the expiration of the one-year
“distribution compliance period” (or six-month “distribution compliance period,” if the issuer is a “reporting
issuer,” as defined in Regulation S) after the closing, the Shares and the underlying securities may be offered and sold
by the holder thereof only if such offer and sale is made in compliance with the terms of this Agreement and either: (A) if the
offer or sale is within the United States or to or for the account of a U.S. person (as such terms are defined in Regulation S),
the securities are offered and sold pursuant to an effective registration statement or pursuant to Rule 144 under the Securities
Act or pursuant to an exemption from the registration requirements of the Securities Act; or (B) the offer and sale is outside
the United States and to other than a U.S. person. If the Purchaser is not a United States person, the Purchaser hereby represents
that the Purchaser is satisfied as to the full observance of the laws of the Purchaser’s jurisdiction applicable to the
Purchaser in connection with any invitation to subscribe for the Shares, including (i) the legal requirements within the Purchaser’s
jurisdiction for the purchase of the Shares, (ii) any foreign exchange restrictions applicable to such purchase, (iii) any governmental
or other consents that may need to be obtained and (iv) the income tax and other tax consequences, if any, that may be relevant
to the purchase, holding, redemption, sale or transfer of such Securities. The Purchaser’s subscription and payment for,
and the Purchaser’s continued beneficial ownership of the Shares, will not violate any applicable securities or other laws
of the Purchaser’s jurisdiction that are applicable to the Purchaser.


 


3.6  No
Public Market. The Purchaser understands that no public market now exists for the Shares, and that the Company has made no
assurances that a public market will ever exist for the Shares.


 


3.7  Legends.
The Purchaser understands that the Shares and any securities issued in respect of or exchange for the Shares, may be notated with
one or all of the following legends:


 






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“THE SHARES REPRESENTED
HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO,
OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH TRANSFER MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933.”


 


(a) 
Any legend set forth in, or required by, the other Transaction Agreements.


 


(b) 
Any legend required by the securities laws of any state to the extent such laws are applicable to the Shares represented by the
certificate, instrument, or book entry so legended.


 


3.8  Accredited
Investor. The Purchaser is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities
Act.


 


3.9  Foreign
Investors. If the Purchaser is not a United States person (as defined by Section 7701(a)(30) of the Code), the Purchaser hereby
represents that it has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any invitation
to subscribe for the Shares or any use of this Agreement, including (i) the legal requirements within its jurisdiction for the
purchase of the Shares, (ii) any foreign exchange restrictions applicable to such purchase, (iii) any governmental or other consents
that may need to be obtained, and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase,
holding, redemption, sale, or transfer of the Shares. The Purchaser’s subscription and payment for and continued beneficial
ownership of the Shares will not violate any applicable securities or other laws of the Purchaser’s jurisdiction.


 


3.10  No
General Solicitation. Neither the Purchaser, nor any of its officers, directors, employees, agents, stockholders or partners
has either directly or indirectly, including, through a broker or finder (a) engaged in any general solicitation, or (b) published
any advertisement in connection with the offer and sale of the Shares.


 


3.11  Exculpation
Among Purchasers. The Purchaser acknowledges that it is not relying upon any Person, other than the Company and its officers
and directors, in making its investment or decision to invest in the Company. The Purchaser agrees that neither any Purchaser
nor the respective controlling Persons, officers, directors, partners, agents, or employees of any Purchaser shall be liable to
any other Purchaser for any action heretofore taken or omitted to be taken by any of them in connection with the purchase of the
Shares.


 


3.12  Residence.
If the Purchaser is an individual, then the Purchaser resides in the state or province identified in the address of the Purchaser
set forth on Exhibit A; if the Purchaser is a partnership, corporation, limited liability company or other entity, then
the office or offices of the Purchaser in which its principal place of business is identified in the address or addresses of the
Purchaser set forth on Exhibit A.


 


3.13  Consent
to Promissory Note Conversion and Termination. Each Purchaser, to the extent that such Purchaser, as set forth on the Schedule
of Purchasers, is a holder of any promissory note of the Company being converted in consideration of the issuance hereunder of
Shares to such Purchaser, hereby agrees that the entire amount owed to such Purchaser under such note is being tendered to the
Company in exchange for the applicable Shares set forth on the Schedule of Purchasers, and effective upon the Company’s
and such Purchaser’s execution and delivery of this Agreement, without any further action required by the Company or such
Purchaser, such note and all obligations set forth therein shall be immediately deemed repaid in full and terminated in their
entirety, including, but not limited to, any security interest effected therein.


 






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3.14  Approval
of Restated Certificate. Each Purchaser, to the extent that such Purchaser, as set forth on the Schedule of Purchasers, is
a holder of any shares of Common Stock prior to the filing of the Restated Certificate pursuant to Subsection 4.10, hereby
agrees to vote such shares in favor of obtaining stockholder approval of the Restated Certificate.


 


4.  Conditions
to the Purchasers’ Obligations at Closing. The obligations of each Purchaser to purchase Shares at the Initial Closing
or any subsequent Closing are subject to the fulfillment, on or before such Closing, of each of the following conditions, unless
otherwise waived:


 


4.1  Representations
and Warranties. The representations and warranties of the Company contained in Section 2 shall be true and correct
in all respects as of such Closing.


 


4.2  Performance.
The Company shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement
that are required to be performed or complied with by the Company on or before such Closing.


 


4.3  Compliance
Certificate. The President of the Company shall deliver to the Purchasers at such Closing a certificate certifying that the
conditions specified in Subsections 4.1 and 4.2 have been fulfilled.


 


4.4  Qualifications.
All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of the Shares pursuant to this Agreement shall be
obtained and effective as of such Closing.


 


4.5  Opinion
of Company Counsel. The Purchasers shall have received from Mitchell Silberberg & Knupp LLP, counsel for the Company,
an opinion, dated as of the Initial Closing, in a form reasonably acceptable to the Company and such Purchasers.


 


4.6  Board
of Directors. As of the Initial Closing, the authorized size of the Board of Directors shall be one, and the Board of Directors
shall be comprised of Mark Lerdal.


 


4.7  Investors’
Rights Agreement. The Company and each Purchaser (other than the Purchaser relying upon this condition to excuse such Purchaser’s
performance hereunder) shall have executed and delivered the Investors’ Rights Agreement.


 


4.8  Right
of First Refusal and Co-Sale Agreement. The Company, each Purchaser (other than the Purchaser relying upon this condition
to excuse such Purchaser’s performance hereunder), and the other stockholders of the Company named as parties thereto shall
have executed and delivered the Right of First Refusal and Co-Sale Agreement.


 


4.9  Voting
Agreement. The Company, each Purchaser (other than the Purchaser relying upon this condition to excuse such Purchaser’s
performance hereunder), and the other stockholders of the Company named as parties thereto shall have executed and delivered the
Voting Agreement.


 






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4.10 Restated
Certificate. The Company shall have filed the Restated Certificate with the Secretary of State of Delaware on or prior to
the Closing, which shall continue to be in full force and effect as of the Closing.


 


4.11  Secretary’s
Certificate. The Secretary of the Company shall have delivered to the Purchasers at the Closing a certificate certifying (i)
the Bylaws of the Company, (ii) the resolutions of the Board of Directors of the Company approving the Transaction Agreements
and the transactions contemplated under the Transaction Agreements, and (iii) evidence of the approval by the stockholders of
the Company of the Restated Certificate.


 


4.12  Proceedings
and Documents. All corporate and other proceedings in connection with the transactions contemplated at the Closing and all
documents incident thereto shall be reasonably satisfactory in form and substance to each Purchaser, and each Purchaser (or its
counsel) shall have received all such counterpart original and certified or other copies of such documents as reasonably requested.
Such documents may include good standing certificates.


 


4.13  Minimum
Number of Shares at Initial Closing. A minimum of 59,343,599 Shares (including Shares to be delivered upon conversion of indebtedness
of the Company, as contemplated under Subsection 1.2(b)) must be sold at the Initial Closing.


 


4.14  ASX
Delisting. The Company shall have been delisted from the Official List of the Australian Securities Exchange.


 


4.15  Indemnification
Agreements. The Company shall have executed and delivered Indemnification Agreements with the members of the Board of Directors
and the officers of the Company, in a form acceptable to the Purchasers and the Company.


 


4.16  D&O
Insurance Policy. The Company shall obtain and purchase director and officer liability insurance, to be effective as of the
Initial Closing, which covers the directors and officers of the Company and is suitable for a private company with SEC reporting
obligations.


 


5.  Conditions
of the Company’s Obligations at Closing. The obligations of the Company to sell Shares to the Purchasers at the Initial
Closing or any subsequent Closing are subject to the fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:


 


5.1  Representations
and Warranties. The representations and warranties of each Purchaser contained in Section 3 shall be true and correct
in all respects as of such Closing.


 


5.2  Performance.
The Purchasers shall have performed and complied with all covenants, agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by them on or before such Closing.


 


5.3  Qualifications.
All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of the Shares pursuant to this Agreement shall be
obtained and effective as of the Closing.


 


5.4  Investors’
Rights Agreement. Each Purchaser shall have executed and delivered the Investors’ Rights Agreement.


 






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5.5  Right
of First Refusal and Co-Sale Agreement. Each Purchaser and the other stockholders of the Company named as parties thereto
shall have executed and delivered the Right of First Refusal and Co-Sale Agreement.


 


5.6  Voting
Agreement. Each Purchaser and the other stockholders of the Company named as parties thereto shall have executed and delivered
the Voting Agreement.


 


5.7  Minimum
Number of Shares at Initial Closing. A minimum of 59,343,599 Shares (including Shares to be delivered upon conversion of indebtedness
of the Company, as contemplated under Subsection 1.2(b)) must be sold at the Initial Closing.


 


5.8  Note
Restructuring and Warrant Cancellation. Prior to the Initial Closing, the Company shall have executed and delivered an agreement,
in substantially the form attached hereto as Exhibit H, with Crystal Amber, the holder of that certain Unsecured Convertible
Promissory Note, issued on August 21, 2019 (the “Convertible Note”), pursuant to which (a) such Convertible
Note shall be exchanged immediately prior to the Initial Closing for one (1) convertible promissory note, in an aggregate principal
amount equal to the outstanding balance of the Convertible Note prior to such time, and (b) the warrant issued to Crystal Amber
on January 13, 2020, shall be cancelled, immediately prior to the Initial Closing.


 


5.9
2020 Stock Plan. Approval by the stockholders of the Company of the 2020 Stock Plan.


 


6.
Miscellaneous.

 


6.1  Survival.
Unless otherwise set forth in this Agreement, the representations and warranties of the Company and the Purchasers contained in
or made pursuant to this Agreement shall survive the execution and delivery of this Agreement for a period of one (1) year from
the date of the Initial Closing and shall in no way be affected by any investigation or knowledge of the subject matter thereof
made by or on behalf of the Purchasers or the Company. For the avoidance of doubt, the obligations set forth in Subsection
6.17 shall survive the final Closing.


 


6.2  Successors
and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors
and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the
parties hereto or their respective successors and assigns any rights, remedies, obligations or liabilities under or by reason
of this Agreement, except as expressly provided in this Agreement.


 


6.3  Governing
Law. This Agreement shall be governed by the internal law of the State of Delaware, without regard to conflict of law principles
that would result in the application of any law other than the law of the State of Delaware.


 


6.4  Multiple
Closings. Each Purchaser understands and acknowledges that there may be multiple Closings for the purchase and sale of Shares.


 


6.5  Counterparts.
This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any
electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method
and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.


 






    17


    


    

 


6.6  Titles
and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement.


 


6.7  Notices.
All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively
given upon the earlier of actual receipt, or (a)  personal delivery to the party to be notified, (b) when sent, if sent by
electronic mail or facsimile during normal business hours of the recipient, and if not sent during normal business hours, then
on the recipient’s next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight
prepaid, specifying next business day delivery, with written verification of receipt. All communications shall be sent to the
respective parties at their address as set forth on the signature page or Exhibit A, or to such e-mail address, facsimile
number or address as subsequently modified by written notice given in accordance with this Subsection 6.7. If notice is
given to the Company, a copy shall also be sent to Mitchell Silberberg & Knupp, LLP, 437 Madison Avenue, 25th Floor, New York,
NY 10022, Attention: Blake Baron, Esq., email: bjb@msk.com; and if notice is given to the Purchasers, a copy shall also be given
to Wilson Sonsini Goodrich & Rosati, P.C., 650 Page Mill Road, Palo Alto, CA 94304, Attention: Elton Satusky, Esq., email:
esatusky@wsgr.com.


 


6.8  No
Finder’s Fees. Except as set forth in Subsection 2.30, each party represents that it neither is nor will be obligated
for any finder’s fee or commission in connection with this transaction. Each Purchaser agrees to indemnify and to hold harmless
the Company from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising
out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which each
Purchaser or any of its officers, employees or representatives is responsible. The Company agrees to indemnify and hold harmless
each Purchaser from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising
out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which the Company
or any of its officers, employees or representatives is responsible.


 


6.9  Fees
and Expenses. At the Closing, the Company shall pay the reasonable fees and expenses of Wilson Sonsini Goodrich & Rosati,
P.C., the counsel for Crystal Amber, in an amount not to exceed, in the aggregate, $100,000.


 


6.10  Attorneys’
Fees. If any action at law or in equity (including, arbitration) is necessary to enforce or interpret the terms of any of
the Transaction Agreements, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements
in addition to any other relief to which such party may be entitled.


 


6.11  Amendments
and Waivers. Except as set forth in Subsection 1.3(a) of this Agreement, any term of this Agreement may be amended,
terminated or waived only with the written consent of the Company and (i) the holders of at least a majority of the then-outstanding
Shares, or (ii) for an amendment, termination or waiver effected prior to the Initial Closing, Purchasers obligated to purchase
a majority of the Shares to be issued at the Initial Closing. Any amendment or waiver effected in accordance with this Subsection
6.11 shall be binding upon the Purchasers and each transferee of the Shares (or the Common Stock issuable upon conversion
thereof), each future holder of all such securities, and the Company.


 






    18


    


    

 


6.12 Severability.
The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other
provision.


 


6.13  Delays
or Omissions. No delay or omission to exercise any right, power or remedy accruing to any party under this Agreement, upon
any breach or default of any other party under this Agreement, shall impair any such right, power or remedy of such non-breaching
or non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or
of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind
or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of
any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set
forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative
and not alternative.


 


6.14  Entire
Agreement. This Agreement (including the Exhibits hereto), the Restated Certificate and the other Transaction Agreements constitute
the full and entire understanding and agreement between the parties with respect to the subject matter hereof, and any other written
or oral agreement relating to the subject matter hereof existing between the parties are expressly canceled.


 


6.15  Termination
of Closing Obligations. Each Purchaser shall have the right to terminate its obligations to complete the Initial Closing if
prior to the occurrence thereof, any of the following occurs:


 


(a) 
the Company does not satisfy the closing conditions set forth in Section 4 of this Agreement on or before September 30,
2020, and such failure to satisfy those closing conditions is through no fault of such Purchaser;


 


(b) 
the Company consummates a Deemed Liquidation Event (as defined in the Restated Certificate);


 


(c) 
the closing of an initial public offering of the Company, in which case the Purchasers may terminate their obligations hereunder
immediately prior to, or contingent upon, such closing; or


 


(d) 
the Company (i) applies for or consents to the appointment of a receiver, trustee, custodian or liquidator of itself or substantially
all of its property, (ii) becomes subject to the appointment of a receiver, trustee, custodian or liquidator of itself or substantially
all of its property, (iii) makes an assignment for the benefit of creditors, (iv) institutes any proceedings under the United
States Bankruptcy Code or any other federal or state bankruptcy, reorganization, receivership, insolvency or other similar law
affecting the rights of creditors generally, or files a petition or answer seeking reorganization or an arrangement with creditors
to take advantage of any insolvency law, or files an answer admitting the material allegations of a bankruptcy, reorganization
or insolvency petition filed against it, or (v) becomes subject to any involuntary proceedings under the United States Bankruptcy
Code or any other federal or state bankruptcy, reorganization, receivership, insolvency or other similar law affecting the rights
of creditors generally, when proceeding is not dismissed within thirty (30) days of filing, or have an order for relief entered
against it in any proceedings under the United States Bankruptcy Code.


 






    19


    


    

 


6.16
Dispute Resolution. The parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the state
courts of Delaware and to the jurisdiction of the United States District Court for the District of Delaware for the purpose of
any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or
other proceeding arising out of or based upon this Agreement except in the state courts of Delaware or the United States District
Court for the District of Delaware, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise,
in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts,
that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not
be enforced in or by such court.


 


WAIVER OF
JURY TRIAL: EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS
INTENDED TO BE ALL- ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER
OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS,
AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS
WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS
WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL.


 


6.17  Additional
Financing. The Company acknowledges and agrees that no Purchaser has made any representation, undertaking, commitment or agreement
to provide or assist the Company in obtaining any financing, investment or other assistance, other than the purchase of the Shares
as set forth herein and subject to the conditions set forth herein. In addition, the Company acknowledges and agrees that (i)
no statements, whether written or oral, made by any Purchaser or its representatives on or after the date of this Agreement shall
create an obligation, commitment or agreement to provide or assist the Company in obtaining any financing or investment, (ii)
the Company shall not rely on any such statement by any Purchaser or its representatives, and (iii) an obligation, commitment
or agreement to provide or assist the Company in obtaining any financing or investment may only be created by a written agreement,
signed by such Purchaser and the Company, setting forth the terms and conditions of such financing or investment and stating that
the parties intend for such writing to be a binding obligation or agreement. Each Purchaser shall have the right, in its sole
and absolute discretion, to refuse or decline to participate in any other financing of or investment in the Company, and shall
have no obligation to assist or cooperate with the Company in obtaining any financing, investment or other assistance.


 






    20


    


    

 


IN WITNESS WHEREOF, the parties
have executed this Series A Preferred Stock Purchase Agreement as of the date first written above.


 


	 	COMPANY:
	 	 
	 	GI DYNAMICS, INC.
	 	 	 
	 	By:	/s/
    Scott Schorer
	 	Name:	Scott Schorer
	 	 	(print)
	 	Title:	President and
    CEO
	 	 	 
	 	Address: 320 Congress Street, Boston
    MA 02210


 


Signature
Page To Series A Preferred Stock purchase Agreement


 




     


    


    

 


	 	PURCHASERS:
	 	 	 
	 	CRYSTAL AMBER FUND LIMITED
	 	 	 
	 	By:	/s/
    Laurence McNairn
	 	Name: 	Laurence McNairn 
	 	Title:	Director
	 	 	 
	 	Executed by Crystal Amber Asset
    Management (Guernsey) Limited as Investment Manager of Crystal Amber Fund Limited
	 	 
	 	Crystal Amber Fund Limited 
	 	PO Box 286, Floor 2 
	 	Trafalgar Court
	 	St.Peter Port 
	 	GYl 4LY
	 	Guernsey 
	 	jm@crystalamber.com 
	 	Attention: Juan Morera


 


Signature
Page To Series A Preferred Stock Purchase Agreement


 






     


    


    

 


EXHIBITS


 


	Exhibit A -	 	SCHEDULE OF PURCHASERS
	 	 	 
	Exhibit B -	 	FORM OF SECOND AMENDED AND RESTATED CERTIFICATE
    OF INCORPORATION
	 	 	 
	Exhibit C -	 	DISCLOSURE SCHEDULE*
	 	 	 
	Exhibit D -	 	FORM OF INDEMNIFICATION AGREEMENT
	 	 	 
	Exhibit E -	 	FORM OF INVESTORS’ RIGHTS AGREEMENT
	 	 	 
	Exhibit F -	 	FORM OF RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
	 	 	 
	Exhibit G -	 	FORM OF VOTING AGREEMENT
	 	 	 
	Exhibit H -	 	FORM OF NOTE EXCHANGE AND WARRANT CANCELLATION
    AGREEMENT
	 	 	 
	Exhibit I -	 	FORM OF 2020 STOCK PLAN


 










     


    


    

 


EXHIBIT A


 


SCHEDULE OF PURCHASERS


 




     


    


    

 


	Name of

        Purchaser
	 	Number of

        Shares of Series

        A Preferred

        Stock Being

        Purchased
	 	Aggregate

        Purchase Price
	 	Physical
    Address
	 	 	 	 	 	 	 
	Crystal
    Amber Fund Limited	 	XXX

        ([●])1
	 	$5,000,000 at the Initial Closing

        (Including $1,250,000 via Notes)2
	 	Crystal Amber Fund Limited

        PO Box 286, Floor 2

        Trafalgar Court

        St.Peter Port

        GY1 4LY

        Guernsey

        jm@crystalamber.com

        Attention: Juan Morera



 


 


 


 


 






	1	NTD:
                                         Based on the amount of interest to be converted at closing.



	2	NTD:
                                         Subject to adjustment for interest accrued on the Note principal prior to closing.



 




     


    


    

 


EXHIBIT B


 


FORM OF SECOND AMENDED AND RESTATED


CERTIFICATE OF INCORPORATION


 




     


    


    

 


SECOND AMENDED AND RESTATED 


 


CERTIFICATE OF INCORPORATION


 


OF


 


GI DYNAMICS, INC.


 




     


    


    

 


SECOND AMENDED AND RESTATED


 


CERTIFICATE OF INCORPORATION


 


OF


 


GI DYNAMICS, INC.


 


(Pursuant to Sections
242 and 245 of the


General Corporation
Law of the State of Delaware)


 


GI Dynamics, Inc.,
a corporation organized and existing under and by virtue of the provisions of the General Corporation Law of the State of Delaware
(the “General Corporation Law”),


 


DOES HEREBY CERTIFY:


 


1. That
the name of this corporation is GI Dynamics, Inc., and that this corporation was originally incorporated pursuant to the General
Corporation Law on March 24, 2003 under the name GI Dynamics, Inc.


 


2. That
the Board of Directors duly adopted resolutions proposing to amend and restate the Restated Certificate of Incorporation of this
corporation, declaring said amendment and restatement to be advisable and in the best interests of this corporation and its stockholders,
and authorizing the appropriate officers of this corporation to solicit the consent of the stockholders therefor, which resolution
setting forth the proposed amendment and restatement is as follows:


 


RESOLVED,
that the Restated Certificate of Incorporation of this corporation be amended and restated in its entirety to read as follows:


 


FIRST:
The name of this corporation is GI Dynamics, Inc. (the “Corporation”).


 


SECOND:
The name and address of the registered agent of the Corporation in the State of Delaware is The Corporation Trust Company,
1209 Orange Street, City of Wilmington, County of New Castle 19801.


 


THIRD:
The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law.


 


FOURTH:
The total number of shares of all classes of stock which the Corporation shall have authority to issue is (i) 280,000,000
shares of Common Stock, $0.01 par value per share (“Common Stock”) and (ii) 118,000,000 shares of Preferred
Stock, $0.01 par value per share (“Preferred Stock”).


 




     


    


    


 


The following
is a statement of the designations and the powers, privileges and rights, and the qualifications, limitations or restrictions
thereof in respect of each class of capital stock of the Corporation.


 


A. COMMON STOCK


 


1.  General.
The voting, dividend and liquidation rights of the holders of the Common Stock are subject to and qualified by the rights, powers
and preferences of the holders of the Preferred Stock set forth herein.


 


2.  Voting.
The holders of the Common Stock are entitled to one vote for each share of Common Stock held at all meetings of stockholders (and
written actions in lieu of meetings); provided, however, that, except as otherwise required by law, holders of Common
Stock, as such, shall not be entitled to vote on any amendment to this Second Amended and Restated Certificate of Incorporation
that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are
entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Second
Amended and Restated Certificate of Incorporation or pursuant to the General Corporation Law. The number of authorized shares
of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by (in addition to
any vote of the holders of one or more series of Preferred Stock that may be required by the terms of this Second Amended and
Restated Certificate of Incorporation) the affirmative vote of the holders of shares of capital stock of the Corporation representing
at least a majority of the votes represented by all outstanding shares of capital stock of the Corporation entitled to vote, irrespective
of the provisions of Section 242(b)(2) of the General Corporation Law.


 


B.
PREFERRED STOCK

 


118,000,000
shares of the authorized and unissued Preferred Stock of the Corporation are hereby designated “Series A Preferred Stock”
with the following rights, preferences, powers, privileges and restrictions, qualifications and limitations. Unless otherwise
indicated, references to “sections” or “subsections” in this Part B of this Article Fourth refer to sections
and subsections of Part B of this Article Fourth.


 


1.  Dividends.


 


The Corporation
shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock of the Corporation (other
than dividends on shares of Common Stock payable in shares of Common Stock) unless (in addition to the obtaining of any consents
required elsewhere in this Second Amended and Restated Certificate of Incorporation) the holders of the Series A Preferred Stock
then outstanding shall first receive, or simultaneously receive, a dividend on each outstanding share of Series A Preferred Stock
in an amount at least equal to (i) in the case of a dividend on Common Stock or any class or series that is convertible into Common
Stock, that dividend per share of Series A Preferred Stock as would equal the product of (A) the dividend payable on each share
of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common Stock
and (B) the number of shares of Common Stock issuable upon conversion of a share of Series A Preferred Stock, in each case calculated
on the record date for determination of holders entitled to receive such dividend or (ii) in the case of a dividend on any class
or series that is not convertible into Common Stock, at a rate per share of Series A Preferred Stock determined by (A) dividing
the amount of the dividend payable on each share of such class or series of capital stock by the original issuance price of such
class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination
or other similar recapitalization with respect to such class or series) and (B) multiplying such fraction by an amount equal
to the Series A Original Issue Price (as defined below); provided that, if the Corporation declares, pays or sets aside,
on the same date, a dividend on shares of more than one class or series of capital stock of the Corporation, the dividend payable
to the holders of Series A Preferred Stock pursuant to this Section 1 shall be calculated based upon the dividend on the
class or series of capital stock that would result in the highest Series A Preferred Stock dividend. The “Series A Original
Issue Price” shall mean $0.08863 per share, subject to appropriate adjustment in the event of any stock dividend, stock
split, combination or other similar recapitalization with respect to the Series A Preferred Stock.


 




    2 


    


    

 


2.  Liquidation,
Dissolution or Winding Up; Certain Mergers, Consolidations and Asset Sales.


 


2.1 
Preferential Payments to Holders of Series A Preferred Stock. In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of shares of Series A Preferred Stock then outstanding shall be entitled
to be paid out of the assets of the Corporation available for distribution to its stockholders or, in the case of a Deemed Liquidation
Event (as defined below), the holders of shares of Series A Preferred Stock then outstanding shall be entitled to be paid out
of the consideration payable to stockholders in such Deemed Liquidation Event or out of the Available Proceeds (as defined below),
as applicable, before any payment shall be made to the holders of Common Stock by reason of their ownership thereof, an amount
per share equal to 1.2 times the Series A Original Issue Price, plus any dividends declared but unpaid thereon. If upon any such
liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, the assets of the Corporation available
for distribution to its stockholders shall be insufficient to pay the holders of shares of Series A Preferred Stock the full amount
to which they shall be entitled under this Subsection 2.1, the holders of shares of Series A Preferred Stock shall share
ratably in any distribution of the assets available for distribution in proportion to the respective amounts which would otherwise
be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares
were paid in full.


 


2.2 
Distribution of Remaining Assets. In the event of any voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, after the payment in full of all Series A Liquidation Amounts required to be paid to the holders of shares of
Series A Preferred Stock the remaining assets of the Corporation available for distribution to its stockholders or, in the case
of a Deemed Liquidation Event, the consideration not payable to the holders of shares of Series A Preferred Stock pursuant to
Subsection 2.1 or the remaining Available Proceeds, as the case may be, shall be distributed among the holders of the shares
of Series A Preferred Stock and Common Stock, pro rata based on the number of shares held by each such holder, treating for this
purpose all such securities as if they had been converted to Common Stock pursuant to the terms of this Second Amended and Restated
Certificate of Incorporation immediately prior to such liquidation, dissolution or winding up of the Corporation. The aggregate
amount which a holder of a share of Series A Preferred Stock is entitled to receive under Subsections 2.1 and 2.2 is
hereinafter referred to as the “Series A Liquidation Amount.”


 




    3 


    


    

 


2.3 Deemed
Liquidation Events.


 


2.3.1 
Definition. Each of the following events shall be considered a “Deemed Liquidation Event”, unless the
holders of at least a majority of the outstanding shares of Series A Preferred Stock (the “Requisite Holders”)
elect otherwise by written notice sent to the Corporation at least five days prior to the effective date of any such event:


 


(a) the
Corporation merges with or into or consolidates, whether in a single transaction or a series of related transactions, with any
other entity (other than a wholly-owned subsidiary of the Corporation);


 


(b) the
Corporation sells, conveys, or otherwise disposes of, in a single transaction or series of related transactions, all or substantially
all of the business or assets of the Corporation;


 


(c)  the
Corporation grants to a third party an exclusive, irrevocable license to all or substantially all of the Corporation’s intellectual
property; provided, however, that none of the following shall be considered a “Deemed Liquidation Event”:
(i) a merger effected exclusively for the purpose of changing the domicile of the Corporation, (ii) an equity financing primarily
for the purpose of funding the Corporation’s business operations or (iii) a transaction in which the stockholders of the
Corporation immediately prior to the transaction own more than fifty percent (50%) of the voting power of the surviving corporation
following the transaction.


 


2.3.2 Effecting
a Deemed Liquidation Event.


 


(a)  The
Corporation shall not have the power to effect a Deemed Liquidation Event referred to in Subsection 2.3.1(a) unless the
agreement or plan of merger or consolidation for such transaction (the “Merger Agreement”) provides that the
consideration payable to the stockholders of the Corporation in such Deemed Liquidation Event shall be paid to the holders of
capital stock of the Corporation in accordance with Subsections 2.1 and 2.2.


 






    4 


    


    

 


(b) In
the event of a Deemed Liquidation Event referred to in Subsection 2.3.1(b), if the Corporation does not effect a dissolution
of the Corporation under the General Corporation Law within ninety (90) days after such Deemed Liquidation Event, then (i) the
Corporation shall send a written notice to each holder of Series A Preferred Stock no later than the ninetieth (90th) day after
the Deemed Liquidation Event advising such holders of their right (and the requirements to be met to secure such right) pursuant
to the terms of the following clause; (ii) to require the redemption of such shares of Series A Preferred Stock, and (iii) if
the holders of at least a majority of the then outstanding shares of Series A Preferred Stock so request in a written instrument
delivered to the Corporation not later than one hundred twenty (120) days after such Deemed Liquidation Event, the Corporation
shall use the consideration received by the Corporation for such Deemed Liquidation Event (net of any retained liabilities associated
with the assets sold or technology licensed, as determined in good faith by the Board of Directors of the Corporation), together
with any other assets of the Corporation available for distribution to its stockholders, all to the extent permitted by Delaware
law governing distributions to stockholders (the “Available Proceeds”), on the one hundred fiftieth (150th)
day after such Deemed Liquidation Event, to redeem all outstanding shares of Series A Preferred Stock at a price per share equal
to the Series A Liquidation Amount. Notwithstanding the foregoing, in the event of a redemption pursuant to the preceding sentence,
if the Available Proceeds are not sufficient to redeem all outstanding shares of Series A Preferred Stock, the Corporation shall
redeem a pro rata portion of each holder’s shares of Series A Preferred Stock to the fullest extent of such Available Proceeds,
based on the respective amounts which would otherwise be payable in respect of the shares to be redeemed if the Available Proceeds
were sufficient to redeem all such shares, and shall redeem the remaining shares as soon as it may lawfully do so under Delaware
law governing distributions to stockholders. The provisions of Section 6 shall apply, with such necessary changes in the
details thereof as are necessitated by the context, to the redemption of the Series A Preferred Stock pursuant to this Subsection
2.3.2(b). Prior to the distribution or redemption provided for in this Subsection 2.3.2(b), the Corporation shall not
expend or dissipate the consideration received for such Deemed Liquidation Event, except to discharge expenses incurred in connection
with such Deemed Liquidation Event.


 


2.3.3 
Amount Deemed Paid or Distributed. In any Deemed Liquidation Event, if the consideration received by the Corporation is
in a form of property other than in cash, the value of such consideration shall be deemed to be the fair market value of such
property. The determination of fair market value of such property shall be made in good faith by the Board of Directors of the
Corporation, provided that to the extent such property consists of securities, the fair market value of such securities shall
be determined as follows:


 


(a)  For
securities not subject to investment letters or other similar restrictions on free marketability covered by Subsection 2.3.3
below,


 


		(i)	if traded on a national securities
                                         exchange or the Nasdaq Stock Market (or a similar national quotation system), the value
                                         shall be deemed to be the average of the closing prices of the securities on such exchange
                                         or system over the thirty (30) trading day period ending three (3) days prior to the
                                         closing of the Deemed Liquidation Event;



 


		(ii)	if actively traded over-the-counter,
                                         the value shall be deemed to be the average of the closing bid or sale prices (whichever
                                         is applicable) over the thirty (30) trading day period ending three (3) days prior to
                                         the closing of such transaction; or



 


		(iii)	if there is no active public
                                         market, the value shall be the fair market value thereof, as determined in good faith
                                         by the Board of Directors of the Corporation.



 






    5 


    


    

 


2.3.4 Allocation
of Escrow and Contingent Consideration. In the event of a Deemed Liquidation Event pursuant to Subsection 2.3.1(a)(i),
if any portion of the consideration payable to the stockholders of the Corporation is payable only upon satisfaction of contingencies
(the “Additional Consideration”), the Merger Agreement shall provide that (a) the portion of such consideration
that is not Additional Consideration (such portion, the “Initial Consideration”) shall be allocated among the
holders of capital stock of the Corporation in accordance with Subsections 2.1 and 2.2 as if the Initial Consideration
were the only consideration payable in connection with such Deemed Liquidation Event; and (b) any Additional Consideration which
becomes payable to the stockholders of the Corporation upon satisfaction of such contingencies shall be allocated among the holders
of capital stock of the Corporation in accordance with Subsections 2.1 and 2.2 after taking into account the previous
payment of the Initial Consideration as part of the same transaction. For the purposes of this Subsection 2.3.4, consideration
placed into escrow or retained as a holdback to be available for satisfaction of indemnification or similar obligations in connection
with such Deemed Liquidation Event shall be deemed to be Additional Consideration.


 


3.
Voting.

 


3.1 General.
On any matter presented to the stockholders of the Corporation for their action or consideration at any meeting of stockholders
of the Corporation (or by written consent of stockholders in lieu of meeting), each holder of outstanding shares of Series A Preferred
Stock shall be entitled to cast the number of votes equal to the number of whole shares of Common Stock into which the shares
of Series A Preferred Stock held by such holder are convertible as of the record date for determining stockholders entitled to
vote on such matter. Except as provided by law or by the other provisions of this Second Amended and Restated Certificate of Incorporation,
holders of Series A Preferred Stock shall vote together with the holders of Common Stock as a single class and on an as-converted
to Common Stock basis.


 


3.2 Election
of Directors. The holders of record of the shares of Series A Preferred Stock, exclusively and as a separate class, shall
be entitled to elect two (2) directors of the Corporation (the “Series A Directors”). Any director elected
as provided in the preceding sentence may be removed without cause by, and only by, the affirmative vote of the holders of the
shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting
of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of
Series A Preferred Stock fail to elect a sufficient number of directors to fill all directorships for which they are entitled
to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 3.2,
then any directorship not so filled shall remain vacant until such time as the holders of the Series A Preferred Stock elect a
person to fill such directorship by vote or written consent in lieu of a meeting; and, no such directorship may be filled by stockholders
of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship,
voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series
of voting stock (including the Series A Preferred Stock), exclusively and voting together as a single class, shall be entitled
to elect the balance of the total number of directors of the Corporation. At any meeting held for the purpose of electing a director,
the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect
such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection
3.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent
in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of
such class or series pursuant to this Subsection 3.2.


 






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3.3 Series
A Preferred Stock Protective Provisions. At any time when at least 5,000,000 shares of Series A Preferred Stock (subject to
appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect
to the Series A Preferred Stock) are outstanding, the Corporation shall not, either directly or indirectly by amendment, merger,
consolidation or otherwise, do any of the following without (in addition to any other vote required by law or this Second Amended
and Restated Certificate of Incorporation) the written consent or affirmative vote of the Requisite Holders given in writing or
by vote at a meeting, consenting or voting (as the case may be) separately as a class, and any such act or transaction entered
into without such consent or vote shall be null and void ab initio, and of no force or effect:


 


3.3.1 
liquidate, dissolve or wind-up the business and affairs of the Corporation, effect any merger or consolidation or any other Deemed
Liquidation Event, or consent to any of the foregoing;


 


3.3.2 amend,
alter or repeal any provision of this Second Amended and Restated Certificate of Incorporation or Bylaws of the Corporation in
a manner that adversely affects the powers, preferences or rights of the Series A Preferred Stock;


 


3.3.3 
create, or authorize the creation of, or issue or obligate itself to issue shares of, any additional class or series of capital
stock unless the same ranks junior to the Series A Preferred Stock with respect to the distribution of assets on the liquidation,
dissolution or winding up of the Corporation and the payment of dividends, or increase the authorized number of shares of Series
A Preferred Stock or increase the authorized number of shares of any additional class or series of capital stock of the Corporation
unless the same ranks junior to the Series A Preferred Stock with respect to the distribution of assets on the liquidation, dissolution
or winding up of the Corporation and the payment of dividends;


 


3.3.4 (i)
reclassify, alter or amend any existing security of the Corporation that is pari passu with the Series A Preferred Stock in respect
of the distribution of assets on the liquidation, dissolution or winding up of the Corporation or the payment of dividends, if
such reclassification, alteration or amendment would render such other security senior to the Series A Preferred Stock in respect
of any such right, preference, or privilege or (ii) reclassify, alter or amend any existing security of the Corporation that is
junior to the Series A Preferred Stock in respect of the distribution of assets on the liquidation, dissolution or winding up
of the Corporation or the payment of dividends, if such reclassification, alteration or amendment would render such other security
senior to or pari passu with the Series A Preferred Stock in respect of any such right, preference or privilege.


 






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3.3.5 cause
or permit any of its subsidiaries to, without approval of the Board of Directors, including at least one Series A Director, sell,
issue, sponsor, create or distribute any digital tokens, cryptocurrency or other blockchain-based assets (collectively, “Tokens”),
including through a pre-sale, initial coin offering, token distribution event or crowdfunding, or through the issuance of any
instrument convertible into or exchangeable for Tokens;


 


3.3.6 purchase
or redeem (or permit any subsidiary to purchase or redeem) or pay or declare any dividend or make any distribution on, any shares
of capital stock of the Corporation other than (i) redemptions of or dividends or distributions on the Series A Preferred Stock
as expressly authorized herein, (ii) dividends or other distributions payable on the Common Stock solely in the form of additional
shares of Common Stock and (iii) repurchases of stock from former employees, officers, directors, consultants or other persons
who performed services for the Corporation or any subsidiary in connection with the cessation of such employment or service at
the lower of the original purchase price or the then-current fair market value thereof;


 


3.3.7 
create, or authorize the creation of, or issue, or authorize the issuance of any debt security or create any lien or security
interest (except for purchase money liens or statutory liens of landlords, mechanics, materialmen, workmen, warehousemen and other
similar persons arising or incurred in the ordinary course of business) or incur other indebtedness for borrowed money, including
but not limited to obligations and contingent obligations under guarantees (but excluding any trade payables incurred in the ordinary
course of business and any equipment financings entered into in the ordinary course of business), or permit any subsidiary to
take any such action with respect to any debt security lien, security interest or other indebtedness for borrowed money;


 


3.3.8 
create, or hold capital stock in, any subsidiary that is not wholly owned (either directly or through one or more other subsidiaries)
by the Corporation, or permit any subsidiary to create, or authorize the creation of, or issue or obligate itself to issue, any
shares of any class or series of capital stock, or sell, transfer or otherwise dispose of any capital stock of any direct or indirect
subsidiary of the Corporation, or permit any direct or indirect subsidiary to sell, lease, transfer, exclusively license or otherwise
dispose (in a single transaction or series of related transactions) of all or substantially all of the assets of such subsidiary;
or


 


3.3.9 
increase or decrease the authorized number of directors constituting the Board of Directors.


 






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4.
Optional Conversion.

 


The
holders of the Series A Preferred Stock shall have conversion rights as follows (the “Conversion Rights”):


 


4.1  Right to Convert.


 


4.1.1 
Conversion Ratio. Each share of Series A Preferred Stock shall be convertible, at the option of the holder thereof, at
any time and from time to time, and without the payment of additional consideration by the holder thereof, into such number of
fully paid and non-assessable shares of Common Stock as is determined by dividing the Series A Original Issue Price by the Series
A Conversion Price (as defined below) in effect at the time of conversion. The “Series A Conversion Price”
shall initially be equal to $0.08863. Such initial Series A Conversion Price, and the rate at which shares of Series A Preferred
Stock may be converted into shares of Common Stock, shall be subject to adjustment as provided below.


 


4.1.2 
Termination of Conversion Rights. In the event of a liquidation, dissolution or winding up of the Corporation or a Deemed
Liquidation Event, the Conversion Rights shall terminate at the close of business on the last full day preceding the date fixed
for the payment of any such amounts distributable on such event to the holders of Series A Preferred Stock.


 


4.2  Fractional
Shares. No fractional shares of Common Stock shall be issued upon conversion of the Series A Preferred Stock. In lieu of any
fractional shares to which the holder would otherwise be entitled, the Corporation shall pay cash equal to such fraction multiplied
by the fair market value of a share of Common Stock as determined in good faith by the Board of Directors of the Corporation.
Whether or not fractional shares would be issuable upon such conversion shall be determined on the basis of the total number of
shares of Series A Preferred Stock the holder is at the time converting into Common Stock and the aggregate number of shares of
Common Stock issuable upon such conversion.


 


4.3
Mechanics of Conversion.

 


4.3.1 
Notice of Conversion. In order for a holder of Series A Preferred Stock to voluntarily convert shares of Series A Preferred
Stock into shares of Common Stock, such holder shall (a) provide written notice to the Corporation’s transfer agent at the
office of the transfer agent for the Series A Preferred Stock (or at the principal office of the Corporation if the Corporation
serves as its own transfer agent) that such holder elects to convert all or any number of such holder’s shares of Series
A Preferred Stock and, if applicable, any event on which such conversion is contingent, and (b) if such holder’s shares
are certificated, surrender the certificate or certificates for such shares of Series A Preferred Stock (or, if such registered
holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably
acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account
of the alleged loss, theft or destruction of such certificate), at the office of the transfer agent for the Series A Preferred
Stock (or at the principal office of the Corporation if the Corporation serves as its own transfer agent). Such notice shall state
such holder’s name or the names of the nominees in which such holder wishes the shares of Common Stock to be issued. If
required by the Corporation, any certificates surrendered for conversion shall be endorsed or accompanied by a written instrument
or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or his, her or its
attorney duly authorized in writing. The close of business on the date of receipt by the transfer agent (or by the Corporation
if the Corporation serves as its own transfer agent) of such notice and, if applicable, certificates (or lost certificate affidavit
and agreement) shall be the time of conversion (the “Conversion Time”), and the shares of Common Stock issuable
upon conversion of the specified shares shall be deemed to be outstanding of record as of such date. The Corporation shall, as
soon as practicable after the Conversion Time (i) issue and deliver to such holder of Series A Preferred Stock, or to his, her
or its nominees, a notice of issuance of uncertificated shares and, may, if applicable and upon written request, issue and deliver
a certificate for the number (if any) of the shares of Series A Preferred Stock represented by any surrendered certificate that
were not converted into Common Stock, (ii) pay in cash such amount as provided in Subsection 4.2 in lieu of any fraction
of a share of Common Stock otherwise issuable upon such conversion and (iii) pay all declared but unpaid dividends on the shares
of Series A Preferred Stock converted.


 






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4.3.2 
Reservation of Shares. The Corporation shall at all times when the Series A Preferred Stock shall be outstanding, reserve
and keep available out of its authorized but unissued capital stock, for the purpose of effecting the conversion of the Series
A Preferred Stock, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect
the conversion of all outstanding Series A Preferred Stock; and if at any time the number of authorized but unissued shares of
Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of the Series A Preferred Stock,
the Corporation shall take such corporate action as may be necessary to increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such purposes, including, without limitation, engaging in best efforts
to obtain the requisite stockholder approval of any necessary amendment to this Amended and Restated Certificate of Incorporation.
Before taking any action which would cause an adjustment reducing the Series A Conversion Price below the then par value of the
shares of Common Stock issuable upon conversion of the Series A Preferred Stock, the Corporation will take any corporate action
which may, in the opinion of its counsel, be necessary in order that the Corporation may validly and legally issue fully paid
and non-assessable shares of Common Stock at such adjusted Series A Conversion Price.


 


4.3.3 
Effect of Conversion. All shares of Series A Preferred Stock which shall have been surrendered for conversion as herein
provided shall no longer be deemed to be outstanding and all rights with respect to such shares shall immediately cease and terminate
at the Conversion Time, except only the right of the holders thereof to receive shares of Common Stock in exchange therefor, to
receive payment in lieu of any fraction of a share otherwise issuable upon such conversion as provided in Subsection 4.2 and
to receive payment of any dividends declared but unpaid thereon. Any shares of Series A Preferred Stock so converted shall be
retired and cancelled and may not be reissued as shares of such series, and the Corporation may thereafter take such appropriate
action (without the need for stockholder action) as may be necessary to reduce the authorized number of shares of Series A Preferred
Stock accordingly.


 


4.3.4 
No Further Adjustment. Upon any such conversion, no adjustment to the Series A Conversion Price shall be made for any declared
but unpaid dividends on the Series A Preferred Stock surrendered for conversion or on the Common Stock delivered upon conversion.


 


4.3.5 
Taxes. The Corporation shall pay any and all issue and other similar taxes that may be payable in respect of any issuance
or delivery of shares of Common Stock upon conversion of shares of Series A Preferred Stock pursuant to this Section 4.
The Corporation shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the
issuance and delivery of shares of Common Stock in a name other than that in which the shares of Series A Preferred Stock so converted
were registered, and no such issuance or delivery shall be made unless and until the person or entity requesting such issuance
has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax
has been paid.


 






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4.4
Adjustments to Series A Conversion Price for Diluting Issues.

 


4.4.1 
Special Definitions. For purposes of this Article Fourth, the following definitions shall apply:


 


(a)  “Option”
shall mean rights, options or warrants to subscribe for, purchase or otherwise acquire Common Stock or Convertible Securities.


 


(b)  “Series
A Original Issue Date” shall mean the date on which the first share of Series A Preferred Stock was issued.


 


(c)  “Convertible
Securities” shall mean any evidences of indebtedness, shares or other securities directly or indirectly convertible
into or exchangeable for Common Stock, but excluding Options.


 


(d)  “Additional
Shares of Common Stock” shall mean all shares of Common Stock issued (or, pursuant to Subsection 4.4.3 below,
deemed to be issued) by the Corporation after the Series A Original Issue Date, other than (1) the following shares of Common
Stock and (2) shares of Common Stock deemed issued pursuant to the following Options and Convertible Securities (clauses (1) and
(2), collectively, “Exempted Securities”):


 


		(i)	shares of Common Stock issued by
                                         reason of a dividend, stock split, combination or similar recapitalization that is covered
                                         by Subsection 4.5, 4.6, 4.7 or 4.8;



 


		(ii)	shares of Common Stock or Options
                                         issued to employees or directors of, or consultants or advisors to, the Corporation or
                                         any of its subsidiaries pursuant to a plan, agreement or arrangement approved by the
                                         Board of Directors of the Corporation, including the approval of at least one Series
                                         A Director;



 


		(iii)	shares of Common Stock actually
                                         issued upon the conversion of Series A Preferred Stock, Convertible Securities actually
                                         issued upon the exercise of Options or shares of Common Stock actually issued upon the
                                         conversion or exchange of Convertible Securities;



 






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		(iv)	shares of Common Stock, Options
                                         or Convertible Securities issued to banks, equipment lessors or other financial institutions,
                                         or to real property lessors, pursuant to a debt financing, equipment leasing or real
                                         property leasing transaction approved by the Board of Directors of the Corporation, including
                                         the approval of at least one Series A Director;



 


		(v)	shares of Common Stock, Options
                                         or Convertible Securities issued to suppliers or third party service providers in connection
                                         with the provision of goods or services, provided that such issuances are approved
                                         by the Board of Directors of the Corporation, including the approval of at least one
                                         Series A Director;



 


		(vi)	shares of Common Stock, Options
                                         or Convertible Securities issued in connection with a bona fide acquisition of another
                                         corporation or entity by the Corporation pursuant to a merger, consolidation, purchase
                                         of assets, reorganization or similar transaction;



 


		(vii)	shares of Common Stock issued
                                         in a Qualified IPO; and



 


		(viii)	shares of Common Stock, Options
                                         or Convertible Securities issued in connection with sponsored research, collaboration,
                                         technology license, development, OEM, marketing or other similar agreements or strategic
                                         partnerships approved by the Board of Directors of the Corporation, including the approval
                                         of at least one Series A Director.



 


4.4.2 
No Adjustment of Series A Conversion Price. No adjustment in the Series A Conversion Price shall be made as the result
of the issuance or deemed issuance of Additional Shares of Common Stock if the Corporation receives written notice from the Requisite
Holders agreeing that no such adjustment shall be made as the result of the issuance or deemed issuance of such Additional Shares
of Common Stock.


 






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4.4.3
Deemed Issue of Additional Shares of Common Stock.

 


(a)  If
the Corporation at any time or from time to time after the Series A Original Issue Date shall issue any Options or Convertible
Securities (excluding Options or Convertible Securities which are themselves Exempted Securities) or shall fix a record date for
the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the
maximum number of shares of Common Stock (as set forth in the instrument relating thereto, assuming the satisfaction of any conditions
to exercisability, convertibility or exchangeability but without regard to any provision contained therein for a subsequent adjustment
of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the
conversion or exchange of such Convertible Securities, shall be deemed to be Additional Shares of Common Stock issued as of the
time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date.


 


(b)  If
the terms of any Option or Convertible Security, the issuance of which resulted in an adjustment to the Series A Conversion Price
pursuant to the terms of Subsection 4.8.4, are revised as a result of an amendment to such terms or any other adjustment
pursuant to the provisions of such Option or Convertible Security (but excluding automatic adjustments to such terms pursuant
to anti-dilution or similar provisions of such Option or Convertible Security) to provide for either (1) any increase or decrease
in the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any such Option or Convertible
Security or (2) any increase or decrease in the consideration payable to the Corporation upon such exercise, conversion and/or
exchange, then, effective upon such increase or decrease becoming effective, the Series A Conversion Price computed upon the original
issue of such Option or Convertible Security (or upon the occurrence of a record date with respect thereto) shall be readjusted
to such Series A Conversion Price as would have obtained had such revised terms been in effect upon the original date of issuance
of such Option or Convertible Security. Notwithstanding the foregoing, no readjustment pursuant to this clause (b) shall have
the effect of increasing the Series A Conversion Price to an amount which exceeds the lower of (i) the Series A Conversion Price
in effect immediately prior to the original adjustment made as a result of the issuance of such Option or Convertible Security,
or (ii) the Series A Conversion Price that would have resulted from any issuances of Additional Shares of Common Stock (other
than deemed issuances of Additional Shares of Common Stock as a result of the issuance of such Option or Convertible Security)
between the original adjustment date and such readjustment date.


 


(c)  If
the terms of any Option or Convertible Security (excluding Options or Convertible Securities which are themselves Exempted Securities),
the issuance of which did not result in an adjustment to the Series A Conversion Price pursuant to the terms of Subsection
4.4.4 (either because the consideration per share (determined pursuant to Subsection 4.4.5) of the Additional Shares
of Common Stock subject thereto was equal to or greater than the Series A Conversion Price then in effect, or because such Option
or Convertible Security was issued before the Series A Original Issue Date), are revised after the Series A Original Issue Date
as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible Security
(but excluding automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible
Security) to provide for either (1) any increase in the number of shares of Common Stock issuable upon the exercise, conversion
or exchange of any such Option or Convertible Security or (2) any decrease in the consideration payable to the Corporation upon
such exercise, conversion or exchange, then such Option or Convertible Security, as so amended or adjusted, and the Additional
Shares of Common Stock subject thereto (determined in the manner provided in Subsection 4.4.3(a) shall be deemed to have
been issued effective upon such increase or decrease becoming effective.


 






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(d)  Upon
the expiration or termination of any unexercised Option or unconverted or unexchanged Convertible Security (or portion thereof)
which resulted (either upon its original issuance or upon a revision of its terms) in an adjustment to the Series A Conversion
Price pursuant to the terms of Subsection 4.4.4, the Series A Conversion Price shall be readjusted to such Series A Conversion
Price as would have obtained had such Option or Convertible Security (or portion thereof) never been issued.


 


(e)  If
the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any Option or Convertible Security,
or the consideration payable to the Corporation upon such exercise, conversion and/or exchange, is calculable at the time such
Option or Convertible Security is issued or amended but is subject to adjustment based upon subsequent events, any adjustment
to the Series A Conversion Price provided for in this Subsection 4.4.3 shall be effected at the time of such issuance or
amendment based on such number of shares or amount of consideration without regard to any provisions for subsequent adjustments
(and any subsequent adjustments shall be treated as provided in clauses (b) and (c) of this Subsection 4.4.3). If
the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any Option or Convertible Security,
or the consideration payable to the Corporation upon such exercise, conversion and/or exchange, cannot be calculated at all at
the time such Option or Convertible Security is issued or amended, any adjustment to the Series A Conversion Price that would
result under the terms of this Subsection 4.4.3 at the time of such issuance or amendment shall instead be effected at
the time such number of shares and/or amount of consideration is first calculable (even if subject to subsequent adjustments),
assuming for purposes of calculating such adjustment to the Series A Conversion Price that such issuance or amendment took place
at the time such calculation can first be made.


 


4.4.4 
Adjustment of Series A Conversion Price Upon Issuance of Additional Shares of Common Stock. In the event the Corporation
shall at any time after the Series A Original Issue Date issue Additional Shares of Common Stock (including Additional Shares
of Common Stock deemed to be issued pursuant to Subsection 4.4.3), without consideration or for a consideration per share
less than the Series A Conversion Price in effect immediately prior to such issuance or deemed issuance, then the Series A Conversion
Price shall be reduced, concurrently with such issue, to a price (calculated to the nearest one-hundredth of a cent) determined
in accordance with the following formula:


 


CP2 = CP1* (A + B)
÷ (A + C).


 


For
purposes of the foregoing formula, the following definitions shall apply:


 


(a)  “CP2”
shall mean the Series A Conversion Price in effect immediately after such issuance or deemed issuance of Additional Shares of
Common Stock


 






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(b)  “CP1”
shall mean the Series A Conversion Price in effect immediately prior to such issuance or deemed issuance of Additional Shares
of Common Stock;


 


(c)  “A”
shall mean the number of shares of Common Stock outstanding immediately prior to such issuance or deemed issuance of Additional
Shares of Common Stock (treating for this purpose as outstanding all shares of Common Stock issuable upon exercise of Options
outstanding immediately prior to such issuance or deemed issuance or upon conversion or exchange of Convertible Securities (including
the Series A Preferred Stock) outstanding (assuming exercise of any outstanding Options therefor) immediately prior to such issue);


 


(d)  “B”
shall mean the number of shares of Common Stock that would have been issued if such Additional Shares of Common Stock had been
issued or deemed issued at a price per share equal to CP1 (determined by dividing the aggregate consideration received by the
Corporation in respect of such issue by CP1); and


 


(e)  “C”
shall mean the number of such Additional Shares of Common Stock issued in such transaction.


 


4.4.5 
Determination of Consideration. For purposes of this Subsection 4.4, the consideration received by the Corporation
for the issuance or deemed issuance of any Additional Shares of Common Stock shall be computed as follows:


 


(a)  Cash
and Property: Such consideration shall:


 


		(i)	insofar as it consists of cash,
                                         be computed at the aggregate amount of cash received by the Corporation, excluding amounts
                                         paid or payable for accrued interest;



 


		(ii)	insofar as it consists of property
                                         other than cash, be computed at the fair market value thereof at the time of such issue,
                                         as determined in good faith by the Board of Directors of the Corporation; and



 


		(iii)	in the event Additional Shares
                                         of Common Stock are issued together with other shares or securities or other assets of
                                         the Corporation for consideration which covers both, be the proportion of such consideration
                                         so received, computed as provided in clauses (i) and (ii) above, as determined in good
                                         faith by the Board of Directors of the Corporation.



 






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(b)  Options
and Convertible Securities. The consideration per share received by the Corporation for Additional Shares of Common Stock
deemed to have been issued pursuant to Subsection 4.4.3, relating to Options and Convertible Securities, shall be determined
by dividing:


 


		(i)	The total amount, if any, received
                                         or receivable by the Corporation as consideration for the issue of such Options or Convertible
                                         Securities, plus the minimum aggregate amount of additional consideration (as set forth
                                         in the instruments relating thereto, without regard to any provision contained therein
                                         for a subsequent adjustment of such consideration) payable to the Corporation upon the
                                         exercise of such Options or the conversion or exchange of such Convertible Securities,
                                         or in the case of Options for Convertible Securities, the exercise of such Options for
                                         Convertible Securities and the conversion or exchange of such Convertible Securities,
                                         by



 


		(ii)	the maximum number of shares of
                                         Common Stock (as set forth in the instruments relating thereto, without regard to any
                                         provision contained therein for a subsequent adjustment of such number) issuable upon
                                         the exercise of such Options or the conversion or exchange of such Convertible Securities,
                                         or in the case of Options for Convertible Securities, the exercise of such Options for
                                         Convertible Securities and the conversion or exchange of such Convertible Securities.



 


4.4.6 
Multiple Closing Dates. In the event the Corporation shall issue on more than one date Additional Shares of Common Stock
that are a part of one transaction or a series of related transactions and that would result in an adjustment to the Series A
Conversion Price pursuant to the terms of Subsection 4.4.4 , and such issuance dates occur within a period of no more than
ninety (90) days from the first such issuance to the final such issuance, then, upon the final such issuance, the Series A Conversion
Price shall be readjusted to give effect to all such issuances as if they occurred on the date of the first such issuance (and
without giving effect to any additional adjustments as a result of any such subsequent issuances within such period).


 


4.5  Adjustment
for Stock Splits and Combinations. If the Corporation shall at any time or from time to time after the Series A Original Issue
Date effect a subdivision of the outstanding Common Stock, the Series A Conversion Price in effect immediately before that subdivision
shall be proportionately decreased so that the number of shares of Common Stock issuable on conversion of each share of such series
shall be increased in proportion to such increase in the aggregate number of shares of Common Stock outstanding. If the Corporation
shall at any time or from time to time after the Series A Original Issue Date combine the outstanding shares of Common Stock,
the Series A Conversion Price in effect immediately before the combination shall be proportionately increased so that the number
of shares of Common Stock issuable on conversion of each share of such series shall be decreased in proportion to such decrease
in the aggregate number of shares of Common Stock outstanding. Any adjustment under this subsection shall become effective at
the close of business on the date the subdivision or combination becomes effective.


 






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4.6  Adjustment
for Certain Dividends and Distributions. In the event the Corporation at any time or from time to time after the Series A
Original Issue Date shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive,
a dividend or other distribution payable on the Common Stock in additional shares of Common Stock, then and in each such event
the Series A Conversion Price in effect immediately before such event shall be decreased as of the time of such issuance or, in
the event such a record date shall have been fixed, as of the close of business on such record date, by multiplying the Series
A Conversion Price then in effect by a fraction:


 


(1) 
the numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time
of such issuance or the close of business on such record date; and


 


(2) 
the denominator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time
of such issuance or the close of business on such record date plus the number of shares of Common Stock issuable in payment of
such dividend or distribution.


 


Notwithstanding the foregoing
(a) if such record date shall have been fixed and such dividend is not fully paid or if such distribution is not fully made on
the date fixed therefor, the Series A Conversion Price shall be recomputed accordingly as of the close of business on such record
date and thereafter the Series A Conversion Price shall be adjusted pursuant to this subsection as of the time of actual payment
of such dividends or distributions; and (b) that no such adjustment shall be made if the holders of Series A Preferred Stock simultaneously
receive a dividend or other distribution of shares of Common Stock in a number equal to the number of shares of Common Stock as
they would have received if all outstanding shares of Series A Preferred Stock had been converted into Common Stock on the date
of such event.


 


4.7  Adjustments
for Other Dividends and Distributions. In the event the Corporation at any time or from time to time after the Series A Original
Issue Date shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend
or other distribution payable in securities of the Corporation (other than a distribution of shares of Common Stock in respect
of outstanding shares of Common Stock) or in other property and the provisions of Section 1 do not apply to such dividend
or distribution, then and in each such event the holders of Series A Preferred Stock shall receive, simultaneously with the distribution
to the holders of Common Stock, a dividend or other distribution of such securities or other property in an amount equal to the
amount of such securities or other property as they would have received if all outstanding shares of Series A Preferred Stock
had been converted into Common Stock on the date of such event.


 






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4.8  Adjustment
for Merger or Reorganization, etc. Subject to the provisions of Subsection 2.3, if there shall occur any reorganization,
recapitalization, reclassification, consolidation or merger involving the Corporation in which the Common Stock (but not the Series
A Preferred Stock) is converted into or exchanged for securities, cash or other property (other than a transaction covered by
Subsections 4.4, 4.6 or 4.7), then, following any such reorganization, recapitalization, reclassification,
consolidation or merger, each share of Series A Preferred Stock shall thereafter be convertible in lieu of the Common Stock into
which it was convertible prior to such event into the kind and amount of securities, cash or other property which a holder of
the number of shares of Common Stock of the Corporation issuable upon conversion of one share of Series A Preferred Stock immediately
prior to such reorganization, recapitalization, reclassification, consolidation or merger would have been entitled to receive
pursuant to such transaction; and, in such case, appropriate adjustment (as determined in good faith by the Board of Directors
of the Corporation) shall be made in the application of the provisions in this Section 4 with respect to the rights and
interests thereafter of the holders of the Series A Preferred Stock, to the end that the provisions set forth in this Section
4 (including provisions with respect to changes in and other adjustments of the Series A Conversion Price) shall thereafter
be applicable, as nearly as reasonably may be, in relation to any securities or other property thereafter deliverable upon the
conversion of the Series A Preferred Stock.


 


4.9  Certificate
as to Adjustments. Upon the occurrence of each adjustment or readjustment of the Series A Conversion Price pursuant to this
Section 4, the Corporation at its expense shall, as promptly as reasonably practicable thereafter, compute such adjustment
or readjustment in accordance with the terms hereof and furnish to each holder of Series A Preferred Stock a certificate setting
forth such adjustment or readjustment (including the kind and amount of securities, cash or other property into which the Series
A Preferred Stock is convertible) and showing in detail the facts upon which such adjustment or readjustment is based. The Corporation
shall, as promptly as reasonably practicable after the written request at any time of any holder of Series A Preferred Stock,
furnish or cause to be furnished to such holder a certificate setting forth (i) the Series A Conversion Price then in effect,
and (ii) the number of shares of Common Stock and the amount, if any, of other securities, cash or property which then would be
received upon the conversion of Series A Preferred Stock.


 


4.10
Notice of Record Date. In the event:

 


(a)  the Corporation
shall take a record of the holders of its Common Stock (or other capital stock or securities at the time issuable upon conversion
of the Series A Preferred Stock) for the purpose of entitling or enabling them to receive any dividend or other distribution,
or to receive any right to subscribe for or purchase any shares of capital stock of any class or any other securities, or to receive
any other security; or


 


(b)  of any capital
reorganization of the Corporation, any reclassification of the Common Stock of the Corporation, or any Deemed Liquidation Event;
or


 






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(c)
of the voluntary or involuntary dissolution, liquidation or winding-up of the Corporation, then, and in each such case, the Corporation
will send or cause to be sent to the holders of the Series A Preferred Stock a notice specifying, as the case may be, (i) the
record date for such dividend, distribution or right, and the amount and character of such dividend, distribution or right, or
(ii) the effective date on which such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation
or winding-up is proposed to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock
(or such other capital stock or securities at the time issuable upon the conversion of the Series A Preferred Stock) shall be
entitled to exchange their shares of Common Stock (or such other capital stock or securities) for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up,
and the amount per share and character of such exchange applicable to the Series A Preferred Stock and the Common Stock. Such
notice shall be sent at least ten (10) days prior to the record date or effective date for the event specified in such notice.


 


5.
Mandatory Conversion.



 


5.1
Trigger Events. Upon either (a) the closing of the sale of shares of Common Stock to the public, in a firm-commitment underwritten
public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended, resulting in at
least $100,000,000 of gross proceeds the Corporation (a “Qualified IPO”) or (b) the date and time, or the occurrence
of an event, specified by vote or written consent of the Requisite Holders (the time of such Qualified IPO closing or the date
and time specified or the time of the event specified in such vote or written consent is referred to herein as the “Mandatory
Conversion Time”), then (i) all outstanding shares of Series A Preferred Stock shall automatically be converted into
shares of Common Stock, at the then effective conversion rate as calculated pursuant to Subsection 4.1.1 and (ii) such
shares may not be reissued by the Corporation.


 


5.2
Procedural Requirements. All holders of record of shares of Series A Preferred Stock shall be sent written notice of the
Mandatory Conversion Time and the place designated for mandatory conversion of all such shares of Series A Preferred Stock pursuant
to this Section 5. Such notice need not be sent in advance of the occurrence of the Mandatory Conversion Time. Upon receipt
of such notice, each holder of shares of Series A Preferred Stock in certificated form shall surrender his, her or its certificate
or certificates for all such shares (or, if such holder alleges that such certificate has been lost, stolen or destroyed, a lost
certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that
may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate) to the Corporation
at the place designated in such notice. If so required by the Corporation, any certificates surrendered for conversion shall be
endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed
by the registered holder or by his, her or its attorney duly authorized in writing. All rights with respect to the Series A Preferred
Stock converted pursuant to Subsection 5.1, including the rights, if any, to receive notices and vote (other than as a
holder of Common Stock), will terminate at the Mandatory Conversion Time (notwithstanding the failure of the holder or holders
thereof to surrender any certificates at or prior to such time), except only the rights of the holders thereof, upon surrender
of any certificate or certificates of such holders (or lost certificate affidavit and agreement) therefor, to receive the items
provided for in the next sentence of this Subsection 5.2. As soon as practicable after the Mandatory Conversion Time and,
if applicable, the surrender of any certificate or certificates (or lost certificate affidavit and agreement) for Series A Preferred
Stock, the Corporation shall (a) issue and deliver to such holder, or to his, her or its nominees, a certificate or certificates
for the number of full shares of Common Stock issuable on such conversion in accordance with the provisions hereof and (b)pay
cash as provided in Subsection 4.2 in lieu of any fraction of a share of Common Stock otherwise issuable upon such conversion
and the payment of any declared but unpaid dividends on the shares of Series A Preferred Stock converted. Such converted Series
A Preferred Stock shall be retired and cancelled and may not be reissued as shares of such series, and the Corporation may thereafter
take such appropriate action (without the need for stockholder action) as may be necessary to reduce the authorized number of
shares of Series A Preferred Stock accordingly.


 






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6.
Redemption. The shares of Series A Preferred Stock shall not be redeemable.


 


7.
Waiver. Any of the rights, powers, preferences and other terms of the Series A Preferred Stock set forth herein may be
waived on behalf of all holders of Series A Preferred Stock by the affirmative written consent or vote of the Requisite Holders.


 


8.
Notices. Any notice required or permitted by the provisions of this Article Fourth to be given to a holder of shares of
Series A Preferred Stock shall be mailed, postage prepaid, to the post office address last shown on the records of the Corporation,
or given by electronic communication in compliance with the provisions of the General Corporation Law, and shall be deemed sent
upon such mailing or electronic transmission.


 


FIFTH:
Subject to any additional vote required by this Second Amended and Restated Certificate of Incorporation or Bylaws, in furtherance
and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, repeal, alter,
amend and rescind any or all of the Bylaws of the Corporation.


 


SIXTH:
Subject to any additional vote required by this Second Amended and Restated Certificate of Incorporation, the number of directors
of the Corporation shall be determined in the manner set forth in the Bylaws of the Corporation. Each director shall be entitled
to one vote on each matter presented to the Board of Directors.


 


SEVENTH:
Elections of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide.


 


EIGHTH:
Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws of the Corporation may provide.
The books of the Corporation may be kept outside the State of Delaware at such place or places as may be designated from time
to time by the Board of Directors or in the Bylaws of the Corporation.


 


NINTH:
To the fullest extent permitted by law, a director of the Corporation shall not be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a director. If the General Corporation Law or any other
law of the State of Delaware is amended after approval by the stockholders of this Article Ninth to authorize corporate action
further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall
be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended.


 






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Any
repeal or modification of the foregoing provisions of this Article Ninth by the stockholders of the Corporation shall not adversely
affect any right or protection of a director of the Corporation existing at the time of, or increase the liability of any director
of the Corporation with respect to any acts or omissions of such director occurring prior to, such repeal or modification.


 


TENTH:
The following indemnification provisions shall apply to the persons enumerated below.


 


1.
Right to Indemnification of Directors and Officers. The Corporation shall indemnify and hold harmless, to the fullest extent
permitted by applicable law as it presently exists or may hereafter be amended, any person (an “Indemnified Person”)
who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a “Proceeding”), by reason of the fact that such person, or a person
for whom such person is the legal representative, is or was a director or officer of the Corporation or, while a director or officer
of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, limited liability company, trust, enterprise or nonprofit entity, including service with respect
to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred
by such Indemnified Person in such Proceeding. Notwithstanding the preceding sentence, except as otherwise provided in Section
3 of this Article Tenth, the Corporation shall be required to indemnify an Indemnified Person in connection with a Proceeding
(or part thereof) commenced by such Indemnified Person only if the commencement of such Proceeding (or part thereof) by the Indemnified
Person was authorized in advance by the Board of Directors.


 


2.
Prepayment of Expenses of Directors and Officers. The Corporation shall pay the expenses (including attorneys’ fees)
incurred by an Indemnified Person in defending any Proceeding in advance of its final disposition, provided, however,
that, to the extent required by law, such payment of expenses in advance of the final disposition of the Proceeding shall be made
only upon receipt of an undertaking by the Indemnified Person to repay all amounts advanced if it should be ultimately determined
that the Indemnified Person is not entitled to be indemnified under this Article Tenth or otherwise.


 


3.
Claims by Directors and Officers. If a claim for indemnification or advancement of expenses under this Article Tenth is
not paid in full within thirty (30) days after a written claim therefor by the Indemnified Person has been received by the Corporation,
the Indemnified Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall
be entitled to be paid the expense of prosecuting such claim. In any such action, the Corporation shall have the burden of proving
that the Indemnified Person is not entitled to the requested indemnification or advancement of expenses under applicable law.


 






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4.
Indemnification of Employees and Agents. The Corporation may indemnify and advance expenses to any person who was or is
made or is threatened to be made or is otherwise involved in any Proceeding by reason of the fact that such person, or a person
for whom such person is the legal representative, is or was an employee or agent of the Corporation or, while an employee or agent
of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, limited liability company, trust, enterprise or nonprofit entity, including service with respect
to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred
by such person in connection with such Proceeding. The ultimate determination of entitlement to indemnification of persons who
are non-director or officer employees or agents shall be made in such manner as is determined by the Board of Directors in its
sole discretion. Notwithstanding the foregoing sentence, the Corporation shall not be required to indemnify a person in connection
with a Proceeding initiated by such person if the Proceeding was not authorized in advance by the Board of Directors.


 


5.
Advancement of Expenses of Employees and Agents. The Corporation may pay the expenses (including attorneys’ fees)
incurred by an employee or agent in defending any Proceeding in advance of its final disposition on such terms and conditions
as may be determined by the Board of Directors.


 


6.
Non-Exclusivity of Rights. The rights conferred on any person by this Article Tenth shall not be exclusive of any other
rights which such person may have or hereafter acquire under any statute, provision of this Second Amended and Restated Certificate
of Incorporation, the Bylaws of the Corporation, or any agreement, or pursuant to any vote of stockholders or disinterested directors
or otherwise.


 


7.
Other Indemnification. The Corporation’s obligation, if any, to indemnify any person who was or is serving at its
request as a director, officer or employee of another Corporation, partnership, limited liability company, joint venture, trust,
organization or other enterprise shall be reduced by any amount such person may collect as indemnification from such other Corporation,
partnership, limited liability company, joint venture, trust, organization or other enterprise.


 


8.
Insurance. The Board of Directors may, to the full extent permitted by applicable law as it presently exists, or may hereafter
be amended from time to time, authorize an appropriate officer or officers to purchase and maintain at the Corporation’s
expense insurance: (a) to indemnify the Corporation for any obligation which it incurs as a result of the indemnification of directors,
officers and employees under the provisions of this Article Tenth; and (b) to indemnify or insure directors, officers and employees
against liability in instances in which they may not otherwise be indemnified by the Corporation under the provisions of this
Article Tenth.


 


9.
Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article Tenth shall not adversely affect
any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or
modification. The rights provided hereunder shall inure to the benefit of any Indemnified Person and such person’s heirs,
executors and administrators.


 






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ELEVENTH:
Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery in the State of
Delaware shall be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) any derivative
action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of fiduciary duty owed
by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii)
any action asserting a claim against the Corporation, its directors, officers or employees arising pursuant to any provision of
the Delaware General Corporation Law or the Corporation’s certificate of incorporation or bylaws or (iv) any action asserting
a claim against the Corporation, its directors, officers or employees governed by the internal affairs doctrine, except for, as
to each of (i) through (iv) above, any claim as to which the Court of Chancery determines that there is an indispensable party
not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal jurisdiction
of the Court of Chancery within ten days following such determination), which is vested in the exclusive jurisdiction of a court
or forum other than the Court of Chancery, or for which the Court of Chancery does not have subject matter jurisdiction. If any
provision or provisions of this Article Eleventh shall be held to be invalid, illegal or unenforceable as applied to any person
or entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by law, the validity, legality and
enforceability of such provisions in any other circumstance and of the remaining provisions of this Article Eleventh (including,
without limitation, each portion of any sentence of this Article Eleventh containing any such provision held to be invalid, illegal
or unenforceable that is not itself held to be invalid, illegal or unenforceable) and the application of such provision to other
persons or entities and circumstances shall not in any way be affected or impaired thereby.


 


This
Article Eleventh shall not apply to claims arising under the Securities Act of 1933, as amended, the Securities Exchange Act of
1934, as amended, or other federal securities laws for which there is exclusive federal or concurrent federal and state jurisdiction.
Unless the Corporation consents in writing to the selection of an alternative forum, the federal district courts of the United
States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the
Securities Act of 1933, as amended.


 


*      *     *


 


3.
That the foregoing amendment and restatement was approved by the holders of the requisite number of shares of this corporation
in accordance with Section 228 of the General Corporation Law.


 


4.
That this Second Amended and Restated Certificate of Incorporation, which restates and integrates and further amends the provisions
of the Corporation’s Restated Certificate of Incorporation, has been duly adopted in accordance with Sections 242 and 245
of the General Corporation Law.


 






    23 


    


    

 


IN
WITNESS WHEREOF, this Second Amended and Restated Certificate of Incorporation has been executed by a duly authorized officer
of this corporation on this [●] day of [●], 2020.


 


	 	By:	 
	 	 	President





 






     


    


    

 


EXHIBIT
C


 


DISCLOSURE
SCHEDULE*


 


 


 


 


 


 


 


 


 


 


 


 


	*	Schedules have been omitted pursuant to Item
                                         601(a)(5) of Regulation S-K and will be provided on a supplemental basis to the Securities
                                         and Exchange Commission upon request.





 



     


    


    




 


 


 


 


 


 


 


 


 


 


 


EXHIBIT
D


 


 


 


FORM
OF INDEMNIFICATION AGREEMENT


 


 


 


 


 


 


 


 


 


 


 






     


    


    

 


INDEMNIFICATION
AGREEMENT


 


THIS
INDEMNIFICATION AGREEMENT (the “Agreement”) is made and entered into as of [        ],
20[           ] between GI Dynamics, Inc., a Delaware corporation (the “Company”),
and [name] (“Indemnitee”).


 


WITNESSETH
THAT:


 


WHEREAS,
highly competent persons have become more reluctant to serve corporations as [directors] [officers] or in other capacities unless
they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and
actions against them arising out of their service to and activities on behalf of the corporation;


 


WHEREAS,
the Board of Directors of the Company (the “Board”) has determined that, in order to attract and retain qualified
individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons
serving the Company and its subsidiaries from certain liabilities. Although the furnishing of such insurance has been a customary
and widespread practice among United States-based corporations and other business enterprises, the Company believes that, given
current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more
exclusions. At the same time, directors, officers, and other persons in service to corporations or business enterprises are being
increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally
would have been brought only against the Company or business enterprise itself. [The [Bylaws] [and] [Certificate of Incorporation]
of the Company require indemnification of the officers and directors of the Company.] Indemnitee may also be entitled to indemnification
pursuant to the General Corporation Law of the State of Delaware (“DGCL”). The [Bylaws] [and] [Certificate
of Incorporation] and the DGCL expressly provide that the indemnification provisions set forth therein are not exclusive, and
thereby contemplate that contracts may be entered into between the Company and members of the Board, officers and other persons
with respect to indemnification;


 


WHEREAS,
the uncertainties relating to such insurance and to indemnification have increased the difficulty of attracting and retaining
such persons;


 


WHEREAS,
the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests
of the Company’s stockholders and that the Company should act to assure such persons that there will be increased certainty
of such protection in the future;


 


WHEREAS,
it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses
on behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so indemnified;


 


WHEREAS,
this Agreement is a supplement to and in furtherance of the [Bylaws] [and] [Certificate of Incorporation] of the Company and any
resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder; and


 






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WHEREAS,
Indemnitee does not regard the protection available under the Company’s [Bylaws] [and] [Certificate of Incorporation] and
insurance as adequate in the present circumstances, and may not be willing to serve as an officer or director without adequate
protection, and the Company desires Indemnitee to serve in such capacity. Indemnitee is willing to serve, continue to serve and
to take on additional service for or on behalf of the Company on the condition that he or she be so indemnified; and


 


WHEREAS,
Indemnitee has certain rights to indemnification and/or insurance provided by [name of fund/sponsor] which Indemnitee and
[name of fund/sponsor] intend to be secondary to the primary obligation of the Company to indemnify Indemnitee as provided
herein, with the Company’s acknowledgement and agreement to the foregoing being a material condition to Indemnitee’s
willingness to serve on the Board.


 


NOW,
THEREFORE, in consideration of Indemnitee’s agreement to serve as an [officer] [director] from and after the date hereof,
the parties hereto agree as follows:


 


1.
Indemnity of Indemnitee. The Company hereby agrees to hold harmless and indemnify Indemnitee to the fullest extent permitted
by law, as such may be amended from time to time. In furtherance of the foregoing indemnification, and without limiting the generality
thereof:


 


(a)
Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification
provided in this Section 1(a) if, by reason of his or her Corporate Status (as hereinafter defined), the Indemnitee is,
or is threatened to be made, a party to or participant in any Proceeding (as hereinafter defined) other than a Proceeding by or
in the right of the Company. Pursuant to this Section 1(a), Indemnitee shall be indemnified against all Expenses (as hereinafter
defined), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him or her, or on his
or her behalf, in connection with such Proceeding or any claim, issue or matter therein, if the Indemnitee acted in good faith
and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and with respect
to any criminal Proceeding, had no reasonable cause to believe the Indemnitee’s conduct was unlawful.


 


(b)
Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in
this Section 1(b) if, by reason of his or her Corporate Status, the Indemnitee is, or is threatened to be made, a party
to or participant in any Proceeding brought by or in the right of the Company. Pursuant to this Section 1(b), Indemnitee
shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee, or on the Indemnitee’s behalf,
in connection with such Proceeding if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to
be in or not opposed to the best interests of the Company; provided, however, if applicable law so provides, no
indemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee
shall have been adjudged to be liable to the Company unless and to the extent that the Court of Chancery of the State of Delaware
shall determine that such indemnification may be made.


 






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(c)
Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of his or her Corporate Status, a party to (or participant in) and is successful,
on the merits or otherwise, in any Proceeding, he or she shall be indemnified to the maximum extent permitted by law, as such
may be amended from time to time, against all Expenses actually and reasonably incurred by him or her, or on his or her behalf,
in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise,
as to one (1)  or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee
against all Expenses actually and reasonably incurred by him or her, or on his or her behalf, in connection with each successfully
resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of any claim, issue or matter
in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue
or matter.


 


(d)
[Indemnification of Appointing Stockholder. If (i) Indemnitee is or was affiliated with one (1) or more venture capital
funds that has invested in the Company (an “Appointing Stockholder”), and (ii) the Appointing Stockholder is, or is
threatened to be made, a party to or a participant in any Proceeding, and (iii) the Appointing Stockholder’s involvement
in the Proceeding (A) arises primarily out of, or relates to, any action taken by the Company that was approved by the Company’s
Board, and (B) arises out of facts or circumstances that are the same or substantially similar to the facts and circumstances
that form the basis of claims that have been, could have been or could be brought against the Indemnitee in a Proceeding, regardless
of whether the legal basis of the claims against the Indemnitee and the Appointing Stockholder are the same or similar, then the
Appointing Stockholder shall be entitled to all rights and remedies, including with respect to indemnification and advancement,
provided to the Indemnitee under this Agreement as if the Appointing Stockholder were the Indemnitee. The rights provided to the
Appointing Stockholder under this Section 1(d) shall (i) be suspended during any period during which the Appointing Stockholder
does not have a representative on the Company’s Board, and (ii) terminate on an initial public offering of the Company’s
Common Stock; provided, however, that in the event of any such suspension or termination, the Appointing Stockholder’s
rights to indemnification and advancement of expenses will not be suspended or terminated with respect to any Proceeding based
in whole or in part on facts and circumstances occurring at any time prior to such suspension or termination regardless of whether
the Proceeding arises before or after such suspension or termination. The Company and Indemnitee intend and agree that the Appointing
Stockholder is an express third party beneficiary of the terms of this Section 1(d).]


 


(e)
Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company
for some or a portion of Expenses, but not, however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion thereof to which Indemnitee is entitled.


 






    3 


    


    

 


2.
Additional Indemnity. In addition to, and without regard to any limitations on, the indemnification provided for in Section
1 of this Agreement, the Company shall and hereby does indemnify and hold harmless Indemnitee against all Expenses, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred by him or her, or on his or her behalf, if, by
reason of his or her Corporate Status, he or she is, or is threatened to be made, a party to or participant in any Proceeding
(including a Proceeding by or in the right of the Company), including, without limitation, all liability arising out of the negligence
or active or passive wrongdoing of Indemnitee. The only limitation that shall exist upon the Company’s obligations pursuant
to this Agreement shall be that the Company shall not be obligated to make any payment to Indemnitee that is finally determined
(under the procedures, and subject to the presumptions, set forth in Sections 6 and 7 hereof) to be unlawful.


 


3.
Contribution.



 


(a)
Whether or not the indemnification provided in Sections 1 and 2 hereof is available, in respect of any threatened,
pending or completed action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined
in such action, suit or proceeding), the Company shall pay, in the first instance, the entire amount of any judgment or settlement
of such action, suit or proceeding without requiring Indemnitee to contribute to such payment and the Company hereby waives and
relinquishes any right of contribution it may have against Indemnitee. The Company shall not enter into any settlement of any
action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit
or proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee.


 


(b)
Without diminishing or impairing the obligations of the Company set forth in the preceding subparagraph, if, for any reason, Indemnitee
shall elect or be required to pay all or any portion of any judgment or settlement in any threatened, pending or completed action,
suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding),
the Company shall contribute to the amount of Expenses, judgments, fines and amounts paid in settlement actually and reasonably
incurred and paid or payable by Indemnitee in proportion to the relative benefits received by the Company and all officers, directors
or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action,
suit or proceeding), on the one hand, and Indemnitee, on the other hand, from the transaction or events from which such action,
suit or proceeding arose; provided, however, that the proportion determined on the basis of relative benefit may,
to the extent necessary to conform to law, be further adjusted by reference to the relative fault of the Company and all officers,
directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such
action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, in connection with the transaction or events
that resulted in such expenses, judgments, fines or settlement amounts, as well as any other equitable considerations which applicable
law may require to be considered. The relative fault of the Company and all officers, directors or employees of the Company, other
than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one
hand, and Indemnitee, on the other hand, shall be determined by reference to, among other things, the degree to which their actions
were motivated by intent to gain personal profit or advantage, the degree to which their liability is primary or secondary and
the degree to which their conduct is active or passive.


 






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(c)
The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims of contribution which may be brought
by officers, directors, or employees of the Company, other than Indemnitee, who may be jointly liable with Indemnitee.


 


(d)
To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to
Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred
by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses,
in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and
reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the
Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Proceeding and/or (ii) the relative
fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or
transaction(s).


 


4.
Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee
is, by reason of his or her Corporate Status, a witness, or is made (or asked) to respond to discovery requests, in any Proceeding
to which Indemnitee is not a party, he or she shall be indemnified against all Expenses actually and reasonably incurred by him
or her, or on his or her behalf, in connection therewith.


 


5.
Advancement of Expenses. Notwithstanding any other provision of this Agreement, the Company shall advance all Expenses
incurred by or on behalf of Indemnitee in connection with any Proceeding by reason of Indemnitee’s Corporate Status within
thirty (30) days after the receipt by the Company of a statement or statements from Indemnitee requesting such advance or advances
from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably
evidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by a written undertaking by or on
behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be
indemnified against such Expenses. Any advances and undertakings to repay pursuant to this Section 5 shall be unsecured
and interest free. This Section 5 shall not apply to any claim made by Indemnitee for which indemnity is excluded pursuant
to Section 9.


 


6.
Procedures and Presumptions for Determination of Entitlement to Indemnification. It is the intent of this Agreement to
secure for Indemnitee rights of indemnity that are as favorable as may be permitted under the DGCL and public policy of the State
of Delaware. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any question
as to whether Indemnitee is entitled to indemnification under this Agreement:


 


(a)
To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein or
therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt
of such a request for indemnification, advise the Board in writing that Indemnitee has requested indemnification. Notwithstanding
the foregoing, any failure of Indemnitee to provide such a request to the Company, or to provide such a request in a timely fashion,
shall not relieve the Company of any liability that it may have to Indemnitee unless, and to the extent that, such failure actually
and materially prejudices the interests of the Company. The Company will be entitled to participate in the Proceeding at its own
Expense.


 






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(b)
Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 6(a) hereof, a determination
with respect to Indemnitee’s entitlement thereto shall be made in the specific case by one of the following four methods,
which shall be at the election of the Board: (i) by a majority vote of the disinterested directors, even though less than a quorum,
(ii) by a committee of disinterested directors designated by a majority vote of the disinterested directors, even though less
than a quorum, (iii) if there are no disinterested directors or if the disinterested directors so direct, by independent legal
counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee, or (iv) if so directed by the
Board, by the stockholders of the Company. For purposes hereof, disinterested directors are those members of the Board who are
not parties to the action, suit or proceeding in respect of which indemnification is sought by Indemnitee.


 


(c)
If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(b) hereof,
the Independent Counsel shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected by
the Board. Indemnitee may, within ten (10) days after such written notice of selection shall have been given, deliver to the Company
a written objection to such selection; provided, however, that such objection may be asserted only on the ground
that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined
in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion.
Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If a written objection is made
and substantiated, the Independent Counsel selected may not serve as Independent Counsel unless and until such objection is withdrawn
or a court has determined that such objection is without merit. If, within twenty (20) days after submission by Indemnitee of
a written request for indemnification pursuant to Section 6(a) hereof, no Independent Counsel shall have been selected
and not objected to, either the Company or Indemnitee may petition the Court of Chancery of the State of Delaware or other court
of competent jurisdiction for resolution of any objection which shall have been made by the Indemnitee to the Company’s
selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such
other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so
appointed shall act as Independent Counsel under Section 6(b) hereof. The Company shall pay any and all reasonable fees
and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 6(b)
hereof, and the Company shall pay all reasonable fees and expenses incurred by the Company and the Indemnitee incident to
the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointed.


 


(d)
In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such
determination shall presume that Indemnitee is entitled to indemnification under this Agreement. Anyone seeking to overcome this
presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure
of the Company (including by its directors or independent legal counsel) to have made a determination prior to the commencement
of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable
standard of conduct, nor an actual determination by the Company (including by its directors or independent legal counsel) that
Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee
has not met the applicable standard of conduct.


 






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(e)
Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account
of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to Indemnitee by the officers
of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records
given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected
with reasonable care by the Enterprise. The provisions of this Section 6(e) shall not be deemed to be exclusive or to limit
in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth
in this Agreement. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of
the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.
Whether or not the foregoing provisions of this Section 6(e) are satisfied, it shall in any event be presumed that Indemnitee
has at all times acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests
of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear
and convincing evidence.


 


(f)
If the person, persons or entity empowered or selected under Section 6 to determine whether Indemnitee is entitled to indemnification
shall not have made a determination within sixty (60) days after receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification
absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification
under applicable law; provided, however, that such sixty (60) day period may be extended for a reasonable time,
not to exceed an additional thirty (30) days, if the person, persons or entity making such determination with respect to entitlement
to indemnification in good faith requires such additional time to obtain or evaluate documentation and/or information relating
thereto; and provided further, that the foregoing provisions of this Section 6(f) shall not apply if the determination
of entitlement to indemnification is to be made by the stockholders pursuant to Section 6(b) of this Agreement and if (A)
within fifteen (15) days after receipt by the Company of the request for such determination, the Board or the Disinterested Directors,
if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof
to be held within seventy five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of
stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination, such meeting
is held for such purpose within sixty


(60)
days after having been so called and such determination is made thereat.


 






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(g)
Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement
to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and
reasonably necessary to such determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act
reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this
Agreement. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating
with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination
as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless
therefrom.


 


(h)
In the event that any action, suit or proceeding to which Indemnitee is a party is resolved in any manner other than by adverse
judgment against Indemnitee (including, without limitation, settlement of such action, suit or proceeding with or without payment
of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such action,
suit or proceeding. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by
clear and convincing evidence.


 


(i)
The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon
a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely
affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner
which he or she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal
Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.


 


7.
Remedies of Indemnitee.



 


(a)
In the event that (i) a determination is made pursuant to Section 6 of this Agreement that Indemnitee is not entitled to
indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 5 of this Agreement,
(iii) no determination of entitlement to indemnification is made pursuant to Section 6(b) of this Agreement within ninety
(90) days after receipt by the Company of the request for indemnification, (iv) payment of indemnification is not made pursuant
to Sections 1(c), 1(e), 4 or the last sentence of Section 6(g) of this Agreement within ten (10) days
after receipt by the Company of a written request therefor, or (v) payment of indemnification is not made pursuant to Sections
1(a), 1(b) and 2 of this Agreement within ten (10) days after a determination has been made that Indemnitee
is entitled to indemnification or such determination is deemed to have been made pursuant to Section 6 of this Agreement,
Indemnitee shall be entitled to an adjudication in an appropriate court of the State of Delaware, or in any other court of competent
jurisdiction, of Indemnitee’s entitlement to such indemnification. Indemnitee shall commence such proceeding seeking an
adjudication within one hundred eighty (180) days following the date on which Indemnitee first has the right to commence such
proceeding pursuant to this Section 7(a). The Company shall not oppose Indemnitee’s right to seek any such adjudication.


 


(b)
In the event that a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is not
entitled to indemnification, any judicial proceeding commenced pursuant to this Section 7 shall be conducted in all respects
as a de novo trial on the merits, and Indemnitee shall not be prejudiced by reason of the adverse determination under Section
6(b).


 






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(c)
If a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is entitled to indemnification,
the Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 7, absent
(i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s misstatement
not materially misleading in connection with the application for indemnification, or (ii) a prohibition of such indemnification
under applicable law.


 


(d)
In the event that Indemnitee, pursuant to this Section 7, seeks a judicial adjudication of his or her rights under, or
to recover damages for breach of, this Agreement, or to recover under any directors’ and officers’ liability insurance
policies maintained by the Company, the Company shall pay on his or her behalf, in advance, any and all expenses (of the types
described in the definition of Expenses in Section 13 of this Agreement) actually and reasonably incurred by him or her
in such judicial adjudication, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification,
advancement of expenses or insurance recovery.


 


(e)
The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 7 that the
procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that
the Company is bound by all the provisions of this Agreement. It is the intent of the Company that, to the fullest extent permitted
by law, the Indemnitee not be required to incur legal fees or other Expenses associated with the interpretation, enforcement or
defense of Indemnitee’s rights under this Agreement by litigation or otherwise because the cost and expense thereof would
substantially detract from the benefits intended to be extended to the Indemnitee hereunder. The Company shall indemnify Indemnitee
against any and all Expenses and, if requested by Indemnitee, shall (within ten (10) days after receipt by the Company of a written
request therefore) advance, to the extent not prohibited by law, such expenses to Indemnitee, which are incurred by Indemnitee
in connection with any action brought by Indemnitee for indemnification or advance of Expenses from the Company under this Agreement
or under any directors’ and officers’ liability insurance policies maintained by the Company, if, in the case of indemnification,
Indemnitee is wholly successful on the underlying claims; if Indemnitee is not wholly successful on the underlying claims, then
such indemnification shall be only to the extent Indemnitee is successful on such underlying claims or otherwise as permitted
by law, whichever is greater.


 


(f)
Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement
shall be required to be made prior to the final disposition of the Proceeding.


 






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8.
Non-Exclusivity; Survival of Rights; Insurance; Primacy of Indemnification; Subrogation.


 


(a)
The rights of indemnification as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee
may at any time be entitled under applicable law, the Certificate of Incorporation, the By-laws, any agreement, a vote of stockholders,
a resolution of directors of the Company, or otherwise. No amendment, alteration or repeal of this Agreement or of any provision
hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such
Indemnitee in his or her Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in the DGCL,
whether by statute or judicial decision, permits greater indemnification than would be afforded currently under the Certificate
of Incorporation, By-laws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement
the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other
right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.


 


(b)
To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers,
employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise that such person serves at the request of the Company, Indemnitee shall be covered by such policy or
policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee,
agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the terms
hereof, the Company has directors’ and officers’ liability insurance in effect, the Company shall give prompt notice
of the commencement of such proceeding to the insurers in accordance with the procedures set forth in the respective policies.
The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee,
all amounts payable as a result of such proceeding in accordance with the terms of such policies.


 


(c)
[The Company hereby acknowledges that Indemnitee has certain rights to indemnification, advancement of expenses and/or insurance
provided by [Name of Fund/Sponsor] and certain of [its][their] affiliates (collectively, the “Fund Indemnitors”).
The Company hereby agrees (i) that it is the indemnitor of first resort (i.e., its obligations to Indemnitee are primary
and any obligation of the Fund Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities
incurred by Indemnitee are secondary), (ii) that it shall be required to advance the full amount of expenses incurred by Indemnitee
and shall be liable for the full amount of all Expenses, judgments, penalties, fines and amounts paid in settlement to the extent
legally permitted and as required by the terms of this Agreement and the Certificate of Incorporation or Bylaws of the Company
(or any other agreement between the Company and Indemnitee), without regard to any rights Indemnitee may have against the Fund
Indemnitors, and (iii) that it irrevocably waives, relinquishes and releases the Fund Indemnitors from any and all claims against
the Fund Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees
that no advancement or payment by the Fund Indemnitors on behalf of Indemnitee with respect to any claim for which Indemnitee
has sought indemnification from the Company shall affect the foregoing and the Fund Indemnitors shall have a right of contribution
and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of Indemnitee against the Company.
The Company and Indemnitee agree that the Fund Indemnitors are express third party beneficiaries of the terms of this Section
8(c).]


 






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(d)
Except as provided in paragraph (c) above, in the event of any payment under this Agreement, the Company shall be subrogated to
the extent of such payment to all of the rights of recovery of Indemnitee (other than against the Fund Indemnitors), who shall
execute all papers required and take all action necessary to secure such rights, including execution of such documents as are
necessary to enable the Company to bring suit to enforce such rights.


 


(e)
Except as provided in paragraph (c) above, the Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any
insurance policy, contract, agreement or otherwise.


 


(f)
Except as provided in paragraph (c) above, the Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee
who is or was serving at the request of the Company as a director, officer, employee or agent of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise shall be reduced by any amount Indemnitee has actually received
as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise.


 


9.
Exception to Right of Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated
under this Agreement to make any indemnity in connection with any claim made against Indemnitee:


 


(a)
for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision,
except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision, provided,
that the foregoing shall not affect the rights of Indemnitee or the Fund Indemnitors set forth in Section 8(c) above; or


 


(b)
for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company
within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state
statutory law or common law, (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or
equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required
in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company
pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the Company
of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act)
or (iii) any reimbursement of the Company by Indemnitee of any compensation pursuant to any compensation recoupment or clawback
policy adopted by the Board or the compensation committee of the Board, including but not limited to any such policy adopted to
comply with stock exchange listing requirements implementing Section 10D of the Exchange Act; or


 


(c)
except as provided in Section 7(e) of this Agreement, in connection with any Proceeding (or any part of any Proceeding)
initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company
or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any
Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross claim brought
or raised by Indemnitee in any Proceeding (or any part of any Proceeding) or (iii) the Company provides the indemnification, in
its sole discretion, pursuant to the powers vested in the Company under applicable law.


 






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10.
Duration of Agreement. All agreements and obligations of the Company contained herein shall continue during the period
Indemnitee is an officer or director of the Company (or is or was serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise) [consider extending for several
years after term of service, even if claim has not yet been paid] and shall continue thereafter so long as Indemnitee shall be
subject to any Proceeding (or any proceeding commenced under Section 7 hereof) by reason of his or her Corporate Status,
whether or not he or she is acting or serving in any such capacity at the time any liability or expense is incurred for which
indemnification can be provided under this Agreement. [This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors (including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or assets of the Company), assigns, spouses, heirs, executors
and personal and legal representatives.]


 


11.
Security. To the extent requested by Indemnitee and approved by the Board, the Company may at any time and from time to
time provide security to Indemnitee for the Company’s obligations hereunder through an irrevocable bank line of credit,
funded trust or other collateral. Any such security, once provided to Indemnitee, may not be revoked or released without the prior
written consent of the Indemnitee.


 


12.
Enforcement.



 


(a)
The Company expressly confirms and agrees that it has entered into this Agreement and assumes the obligations imposed on it hereby
in order to induce Indemnitee to serve as an officer or director of the Company, and the Company acknowledges that Indemnitee
is relying upon this Agreement in serving as an officer or director of the Company.


 


(b)
This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes
all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter
hereof.


 


(c)
The Company shall not seek from a court, or agree to, a “bar order” which would have the effect of prohibiting or
limiting the Indemnitee’s rights to receive advancement of expenses under this Agreement.


 


13.
Definitions. For purposes of this Agreement:



 


(a)
“Corporate Status” describes the status of a person who is or was a director, officer, employee, agent or fiduciary
of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that
such person is or was serving at the request of the Company.


 


(b)
“Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in
respect of which indemnification is sought by Indemnitee.


 






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(c)
“Enterprise” shall mean the Company and any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise that Indemnitee is or was serving at the request of the Company as a director, officer, employee,
agent or fiduciary.


 


(d)
“Expenses” shall include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees
of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery
service fees, [and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt
of any payments under this Agreement], ERISA excise taxes and penalties, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, participating,
or being or preparing to be a witness in a Proceeding, or responding to, or objecting to, a request to provide discovery in any
Proceeding. Expenses also shall include (i) Expenses incurred in connection with any appeal resulting from any Proceeding, including,
without limitation, the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond
or its equivalent (ii) Expenses incurred in connection with recovery under any directors’ and officers’ liability
insurance policies maintained by the Company, regardless of whether Indemnitee is ultimately determined to be entitled to such
indemnification, advancement or Expenses or insurance recovery, as the case may be, and (iii) for purposes of Section 7(e)
only, Expenses incurred by Indemnitee in connection with the interpretation, enforcement or defense of Indemnitee’s
rights under this Agreement, the Certificate of Incorporation, the Bylaws or under any directors’ and officers’ liability
insurance policies maintained by the Company, by litigation or otherwise. Expenses, however, shall not include amounts paid in
settlement by Indemnitee or the amount of judgments or fines against Indemnitee.


 


(e)
“Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation
law and neither at present is, nor in the past five (5) years has been, retained to represent (i) the Company or Indemnitee in
any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement, or of
other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim
for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any
person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. The Company agrees
to pay the reasonable fees of the Independent Counsel referred to above and to fully indemnify such counsel against any and all
Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.


 


(f)
“Proceeding” includes any threatened, pending or completed action, suit, claim, counterclaim, cross claim,
arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual,
threatened or completed proceeding, whether brought by or in the right of the Company or otherwise and whether civil, criminal,
administrative or investigative, including any appeal therefrom, in which Indemnitee was, is or will be involved as a party or
otherwise, by reason of his or her Corporate Status, by reason of any action taken by him or her, or of any inaction on his or
her part, while acting in his or her Corporate Status; in each case whether or not he or she is acting or serving in any such
capacity at the time any liability or expense is incurred for which indemnification, reimbursement or advancement of expenses
can be provided under this Agreement; including one pending on or before the date of this Agreement, but excluding one initiated
by an Indemnitee pursuant to Section 7 of this Agreement to enforce his or her rights under this Agreement.


 






    13 


    


    

 


14.
Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability
of any other provision. [Further, the invalidity or unenforceability of any provision hereof as to either Indemnitee or Appointing
Stockholder shall in no way affect the validity or enforceability of any provision hereof as to the other.] Without limiting the
generality of the foregoing, this Agreement is intended to confer upon Indemnitee [and Appointing Stockholder] indemnification
rights to the fullest extent permitted by applicable laws. In the event any provision hereof conflicts with any applicable law,
such provision shall be deemed modified, consistent with the aforementioned intent, to the extent necessary to resolve such conflict.


 


15.
Modification and Waiver. No supplement, modification, termination or amendment of this Agreement shall be binding unless
executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.


 


16.
Notice By Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with or otherwise receiving
any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which
may be subject to indemnification covered hereunder. The failure to so notify the Company shall not relieve the Company of any
obligation which it may have to Indemnitee under this Agreement or otherwise unless and only to the extent that such failure or
delay materially prejudices the Company.


 


17.
Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be
deemed effectively given (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail if
sent during normal business hours of the recipient, and if not so confirmed, then on the next business day, (c) five (5) days
after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications
shall be sent:


 


	 	(a)	To Indemnitee at the address set forth below Indemnitee signature hereto.
	 	 	 
	 	(b)	To the Company at:
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	Attention:	 	 




 


or
to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may
be.


 






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18.
Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same the same instrument. Counterparts may be delivered via electronic
mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com)
or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid
and effective for all purposes.


 


19.
Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.


 


20.
Governing Law and Consent to Jurisdiction. This Agreement and the legal relations among the parties shall be governed by,
and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules.
The Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in
connection with this Agreement shall be brought only in the Chancery Court of the State of Delaware (the “Delaware Court”),
and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent to
submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or proceeding arising out of or in connection
with this Agreement, [(iii) appoint, to the extent such party is not otherwise subject to service of process in the State of Delaware,
irrevocably [name] [address] as its agent in the State of Delaware as such party’s agent for acceptance of
legal process in connection with any such action or proceeding against such party with the same legal force and validity as if
served upon such party personally within the State of Delaware,] [NOTE: as the Delaware-incorporated Company is already subject
to service of process in Delaware, this really only applies to the individual director.] (iv) waive any objection to the laying
of venue of any such action or proceeding in the Delaware Court, and (v) waive, and agree not to plead or to make, any claim that
any such action or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.


 


[Signature
Page Follows]


 






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IN
WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement on and as of the day and year first above written.


 


	 	COMPANY
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 
	 	INDEMNITEE
	 	 
	 	Name:	 
	 	Address:	        
	 	 	 
	 	 	 
	 	 	 




 


SIGNATURE
PAGE TO INDEMNIFICATION AGREEMENT


 



     


    


    







  


EXHIBIT E


 


FORM OF INVESTORS’
RIGHTS AGREEMENT


 




     


    


    

 


 


 


 


 


 





 


 


 


 


 


 


 


 


GI DYNAMICS, INC.


 


INVESTORS’
RIGHTS AGREEMENT


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






     


    


    

 


TABLE OF CONTENTS


 


	1.	Definitions	1
	 	 	 
	2.	Registration Rights	4
	 	2.1	Demand Registration	4
	 	2.2	Company Registration	5
	 	2.3	Underwriting Requirements	6
	 	2.4	Obligations of the Company	7
	 	2.5	Furnish Information	8
	 	2.6	Expenses of Registration	9
	 	2.7	Delay of Registration	9
	 	2.8	Indemnification	9
	 	2.9	Reports Under Exchange Act	11
	 	2.10	Limitations on Subsequent Registration Rights	12
	 	2.11	“Market Stand-off” Agreement	13
	 	2.12	Restrictions on Transfer	13
	 	2.13	Termination of Registration Rights	15
	 	 	 	 
	3.	Information Rights	15
	 	3.1	Delivery of Financial Statements	15
	 	3.2	Inspection	16
	 	3.3	Termination of Information and Inspection Rights	16
	 	3.4	Confidentiality	16
	 	 	 	 
	4.	Rights to Future Stock Issuances	17
	 	4.1	Right of First Offer	17
	 	4.2	Termination	18
	 	 	 	 
	5.	Additional Covenants	18
	 	5.1	Board Matters	18
	 	5.2	Successor Indemnification	19
	 	5.3	Termination of Covenants	19
	 	 	 	 
	6.	Miscellaneous	19
	 	6.1	Successors and Assigns	19
	 	6.2	Governing Law	20
	 	6.3	Counterparts	20
	 	6.4	Titles and Subtitles	20
	 	6.5	Notices	20
	 	6.6	Amendments and Waivers	21
	 	6.7	Severability	21
	 	6.8	Aggregation of Stock	21
	 	6.9	Additional Investors	22
	 	6.10	Entire Agreement	22
	 	6.11	Dispute Resolution	22
	 	6.12	Delays or Omissions	22


 


	Schedule A	-	Schedule of Investors	 


 




    i


     


    

 


INVESTORS’ RIGHTS AGREEMENT


 


THIS INVESTORS’
RIGHTS AGREEMENT (this “Agreement”), is made as of the [●] day of [●], 2020, by and among GI Dynamics,
Inc., a Delaware corporation (the “Company”), each of the investors listed on Schedule A hereto and
any Additional Purchaser (as defined in the Purchase Agreement) that becomes a party to this Agreement in accordance with Subsection
6.9 hereof, which are referred to in this Agreement collectively as the “Investors” and individually as
an “Investor.”


 


RECITALS


 


WHEREAS, the
Company and the Investors are parties to that certain Series A Preferred Stock Purchase Agreement, dated as of [●] [●],
2020 (the “Purchase Agreement”); and


 


WHEREAS, in order
to induce the Company to enter into the Purchase Agreement and to induce the Investors to invest funds in the Company pursuant
to the Purchase Agreement, the Investors and the Company hereby agree that this Agreement shall govern the rights of the Investors
to cause the Company to register shares of Common Stock issuable to the Investors, to receive certain information from the Company,
and to participate in future equity offerings by the Company, and shall govern certain other matters as set forth in this Agreement.


 


NOW, THEREFORE,
the parties hereby agree as follows:


 


1.
Definitions. For purposes of this Agreement:

 


1.1 
“Affiliate” means, with respect to any specified Person, any other Person who, directly or indirectly, controls,
is controlled by, or is under common control with such Person, including without limitation any general partner, managing member,
officer, director or trustee of such Person, or any venture capital fund or registered investment company now or hereafter existing
that is controlled by one or more general partners, managing members or investment adviser of, or shares the same management company
or investment adviser with, such Person.


 


1.2
“Board of Directors” means the board of directors of the Company.

 


1.3 
“Certificate of Incorporation” means the Company’s Second Amended and Restated Certificate of Incorporation,
as amended and/or restated from time to time.


 


1.4 
“Common Stock” means shares of the Company’s common stock, par value $0.01 per share.


 


1.5 
“Damages” means any loss, damage, claim or liability (joint or several) to which a party hereto may become
subject under the Securities Act, the Exchange Act, or other federal or state law, insofar as such loss, damage, claim or liability
(or any action in respect thereof) arises out of or is based upon: (i) any untrue statement or alleged untrue statement of a material
fact contained in any registration statement of the Company, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto; (ii) an omission or alleged omission to state therein a material fact required
to be stated therein, or necessary to make the statements therein not misleading; or (iii) any violation or alleged violation
by the indemnifying party (or any of its agents or Affiliates) of the Securities Act, the Exchange Act, any state securities law,
or any rule or regulation promulgated under the Securities Act, the Exchange Act, or any state securities law.


 






    


     


    

 


1.6 
“Derivative Securities” means any securities or rights convertible into, or exercisable or exchangeable for
(in each case, directly or indirectly), Common Stock, including options and warrants.


 


1.7 
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.


 


1.8 
“Excluded Registration” means (i) a registration relating to the sale or grant of securities to employees of
the Company or a subsidiary pursuant to a stock option, stock purchase, equity incentive or similar plan; (ii) a registration
relating to an SEC Rule 145 transaction; (iii) a registration on any form that does not include substantially the same information
as would be required to be included in a registration statement covering the sale of the Registrable Securities; or (iv) a registration
in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being
registered.


 


1.9 
“FOIA Party” means a Person that, in the reasonable determination of the Board of Directors, may be subject
to, and thereby required to disclose non-public information furnished by or relating to the Company under, the Freedom of Information
Act, 5 U.S.C. 552 (“FOIA”), any state public records access law, any state or other jurisdiction’s laws
similar in intent or effect to FOIA, or any other similar statutory or regulatory requirement.


 


1.10 
“Form S-1” means such form under the Securities Act as in effect on the date hereof or any successor registration
form under the Securities Act subsequently adopted by the SEC.


 


1.11 
“Form S-3” means such form under the Securities Act as in effect on the date hereof or any registration form
under the Securities Act subsequently adopted by the SEC that permits forward incorporation of substantial information by reference
to other documents filed by the Company with the SEC.


 


1.12 
“GAAP” means generally accepted accounting principles in the United States as in effect from time to time.


 


1.13 
“Holder” means any holder of Registrable Securities who is a party to this Agreement.


 


1.14 
“Immediate Family Member” means a child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling,
mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including, adoptive relationships,
of a natural person referred to herein.


 






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1.15 
“Initiating Holders” means, collectively, Holders who properly initiate a registration request under this Agreement.


 


1.16
“IPO” means the Qualified IPO, as defined in the Certificate of Incorporation.


 


1.17
“Major Investor” means any Investor that, individually or together with such Investor’s Affiliates,
holds at least 1,000,000 shares of Registrable Securities (as adjusted for any stock split, stock dividend, combination, recapitalization
or other similar transaction effected after the date hereof).


 


1.18 
“New Securities” means, collectively, equity securities of the Company, whether or not currently authorized,
as well as rights, options, or warrants to purchase such equity securities, or securities of any type whatsoever that are, or
may become, convertible or exchangeable into or exercisable for such equity securities.


 


1.19 
“Person” means any individual, corporation, partnership, trust, limited liability company, association or other
entity.


 


1.20 
“Registrable Securities” means (i) the Common Stock issuable or issued upon conversion of the Series
A Preferred Stock, and (ii) any Common Stock, or any Common Stock issued or issuable (directly or indirectly) upon conversion
and/or exercise of any securities of the Company, acquired by the Investors after the date hereof, excluding, in all cases, however,
any Registrable Securities sold by a Person in a transaction in which the applicable rights under this Agreement are not assigned
pursuant to Subsection 6.1, and excluding for purposes of Section 2 any shares for which registration rights have
terminated pursuant to Subsection 2.13 of this Agreement.


 


1.21 
“Registrable Securities then outstanding” means the number of shares determined by adding the number of shares
of outstanding Common Stock that are Registrable Securities and the number of shares of Common Stock issuable (directly or indirectly)
pursuant to the then exercisable and/or convertible securities that are Registrable Securities.


 


1.22 
“RestCricted Securities” means the securities of the Company required to be notated with the legend set forth
in Subsection 2.12(b) hereof.


 


1.23
“SEC” means the Securities and Exchange Commission.

 


1.24 
“SEC Rule 144” means Rule 144 promulgated by the SEC under the Securities Act.


 


1.25 
“SEC Rule 145” means Rule 145 promulgated by the SEC under the Securities Act.


 






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1.26 
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.


 


1.27 
“Selling Expenses” means all underwriting discounts, selling commissions, and stock transfer taxes applicable
to the sale of Registrable Securities, and fees and disbursements of counsel for any Holder, except for the fees and disbursements
of the Selling Holder Counsel borne and paid by the Company as provided in Subsection 2.6.


 


1.28 
“Series A Preferred Stock” means shares of the Company’s Series A Preferred Stock, par value $0.01 per
share.


 


2.
Registration Rights. The Company covenants and agrees as follows:

 


2.1  Demand
Registration.


 


(a)  Form
S-1 Demand. If at any time after the earlier of (i) three (3) years after the date of this Agreement or (ii) one hundred eighty
(180) days after the effective date of the registration statement for the IPO, the Company receives a request from Holders of
at least fifty percent (50%) of the Registrable Securities then outstanding that the Company file a Form S- 1 registration statement
with respect to at least fifty percent (50%) of the Registrable Securities then outstanding, then the Company shall (x) within
ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders
other than the Initiating Holders; and (y) as soon as practicable, and in any event within sixty (60) days after the date such
request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable
Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included
in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20)
days of the date the Demand Notice is given, and in each case, subject to the limitations of Subsections 2.1(c) and 2.3.


 


(b)  Form
S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from
Holders of at least thirty percent (30%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration
statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net
of Selling Expenses, of at least $5 million, then the Company shall (i)  within ten (10) days after the date such request
is given, give a Demand Notice to all Holders other than the Initiating Holders; and (ii) as soon as practicable, and in any event
within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement
under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders,
as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given,
and in each case, subject to the limitations of Subsections 2.1(c) and 2.3.


 






    4


     


    

 


(c)  Notwithstanding
the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Subsection 2.1 a
certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board of Directors
it would be materially detrimental to the Company and its stockholders for such registration statement to be filed and it is therefore
necessary to defer the filing of such registration statement, then the Company shall have the right to defer taking action with
respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly,
for a period of not more than ninety (90) days after the request of the Initiating Holders is given; provided, however,
that the Company may not invoke this right more than once in any twelve (12) month period; and provided further that the
Company shall not register any securities for its own account or that of any other stockholder during such ninety (90) day period
other than an Excluded Registration.


 


(d)  The Company
shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(a)(i) during
the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date
that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the
Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective;
(ii) after the Company has effected two registrations pursuant to Subsection 2.1(a); or (iii) if the Initiating Holders
propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made
pursuant to Subsection 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration
pursuant to Subsection 2.1(b) (i) during the period that is thirty (30) days before the Company’s good faith estimate
of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration,
provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration
statement to become effective; or (ii) if the Company has effected two registrations pursuant to Subsection 2.1(b) within
the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected”
for purposes of this Subsection 2.1(d) until such time as the applicable registration statement has been declared effective
by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses
therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.6, in which case such withdrawn
registration statement shall be counted as “effected” for purposes of this Subsection 2.1(d); provided,
that if such withdrawal is during a period the Company has deferred taking action pursuant to Subsection 2.1(c), then the
Initiating Holders may withdraw their request for registration and such registration will not be counted as “effected”
for purposes of this Subsection 2.1(d).


 


2.2  Company
Registration. If the Company proposes to register (including, for this purpose, a registration effected by the Company for
stockholders other than the Holders) any of its securities under the Securities Act in connection with the public offering of
such securities solely for cash (other than in an Excluded Registration), the Company shall, at such time, promptly give each
Holder notice of such registration. Upon the request of each Holder given within twenty (20) days after such notice is given by
the Company, the Company shall, subject to the provisions of Subsection 2.3, cause to be registered all of the Registrable
Securities that each such Holder has requested to be included in such registration. The Company shall have the right to terminate
or withdraw any registration initiated by it under this Subsection 2.2 before the effective date of such registration,
whether or not any Holder has elected to include Registrable Securities in such registration. The expenses (other than Selling
Expenses) of such withdrawn registration shall be borne by the Company in accordance with Subsection 2.6.


 






    5


     


    

 


2.3
Underwriting Requirements.

 


(a)  If, pursuant
to Subsection 2.1, the Initiating Holders intend to distribute the Registrable Securities covered by their request by means
of an underwriting, they shall so advise the Company as a part of their request made pursuant to Subsection 2.1, and the
Company shall include such information in the Demand Notice. The underwriter(s) will be selected by the Company and shall be reasonably
acceptable to a majority in interest of the Initiating Holders. In such event, the right of any Holder to include such Holder’s
Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and
the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing
to distribute their securities through such underwriting shall (together with the Company as provided in Subsection 2.4(e))
enter into an underwriting agreement in customary form with the underwriter(s) selected for such underwriting. Notwithstanding
any other provision of this Subsection 2.3, if the managing underwriter(s) advise(s) the Initiating Holders in writing
that marketing factors require a limitation on the number of shares to be underwritten, then the Initiating Holders shall so advise
all Holders of Registrable Securities that otherwise would be underwritten pursuant hereto, and the number of Registrable Securities
that may be included in the underwriting shall be allocated among such Holders of Registrable Securities, including the Initiating
Holders, in proportion (as nearly as practicable) to the number of Registrable Securities owned by each Holder or in such other
proportion as shall mutually be agreed to by all such selling Holders; provided, however, that the number of Registrable
Securities held by the Holders to be included in such underwriting shall not be reduced unless all other securities are first
entirely excluded from the underwriting. To facilitate the allocation of shares in accordance with the above provisions, the Company
or the underwriters may round the number of shares allocated to any Holder to the nearest one hundred (100) shares.


 


(b)  In connection
with any offering involving an underwriting of shares of the Company’s capital stock pursuant to Subsection 2.2,
the Company shall not be required to include any of the Holders’ Registrable Securities in such underwriting unless the
Holders accept the terms of the underwriting as agreed upon between the Company and its underwriters, and then only in such quantity
as the underwriters in their sole discretion determine will not jeopardize the success of the offering by the Company. If the
total number of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds
the number of securities to be sold (other than by the Company) that the underwriters in their reasonable discretion determine
is compatible with the success of the offering, then the Company shall be required to include in the offering only that number
of such securities, including Registrable Securities, which the underwriters and the Company in their sole discretion determine
will not jeopardize the success of the offering. If the underwriters determine that less than all of the Registrable Securities
requested to be registered can be included in such offering, then the Registrable Securities that are included in such offering
shall be allocated among the selling Holders in proportion (as nearly as practicable to) the number of Registrable Securities
owned by each selling Holder or in such other proportions as shall mutually be agreed to by all such selling Holders. To facilitate
the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares
allocated to any Holder to the nearest one hundred (100) shares. Notwithstanding the foregoing, in no event shall (i) the number
of Registrable Securities included in the offering be reduced unless all other securities (other than securities to be sold by
the Company) are first entirely excluded from the offering, or (ii) the number of Registrable Securities included in the offering
be reduced below twenty-five percent (25%) of the total number of securities included in such offering, unless such offering is
the IPO, in which case the selling Holders may be excluded further if the underwriters make the determination described above
and no other stockholder’s securities are included in such offering. For purposes of the provision in this Subsection
2.3(b) concerning apportionment, for any selling Holder that is a partnership, limited liability company, or corporation,
the partners, members, retired partners, retired members, stockholders, and Affiliates of such Holder, or the estates and Immediate
Family Members of any such partners, retired partners, members, and retired members and any trusts for the benefit of any of the
foregoing Persons, shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such
“selling Holder” shall be based upon the aggregate number of Registrable Securities owned by all Persons included
in such “selling Holder,” as defined in this sentence.


 






    6


     


    

 


2.4  Obligations
of the Company. Whenever required under this Section 2 to effect the registration of any Registrable Securities, the
Company shall, as expeditiously as reasonably possible:


 


(a)  prepare
and file with the SEC a registration statement with respect to such Registrable Securities and use its commercially reasonable
efforts to cause such registration statement to become effective and, upon the request of the Holders of a majority of the Registrable
Securities registered thereunder, keep such registration statement effective for a period of up to one hundred twenty (120) days
or, if earlier, until the distribution contemplated in the registration statement has been completed; provided, however,
that (i) such one hundred twenty (120) day period shall be extended for a period of time equal to the period the Holder refrains,
at the request of an underwriter of Common Stock (or other securities) of the Company, from selling any securities included in
such registration, and (ii) in the case of any registration of Registrable Securities on Form S-3 that are intended to be offered
on a continuous or delayed basis, subject to compliance with applicable SEC rules, such one hundred twenty (120) day period shall
be extended for up to ninety (90) days, if necessary, to keep the registration statement effective until all such Registrable
Securities are sold;


 


(b)  prepare
and file with the SEC such amendments and supplements to such registration statement, and the prospectus used in connection with
such registration statement, as may be necessary to comply with the Securities Act in order to enable the disposition of all securities
covered by such registration statement;


 


(c)  furnish
to the selling Holders such numbers of copies of a prospectus, including a preliminary prospectus, as required by the Securities
Act, and such other documents as the Holders may reasonably request in order to facilitate their disposition of their Registrable
Securities;


 






    7


     


    

 


(d)  use its
commercially reasonable efforts to register and qualify the securities covered by such registration statement under such other
securities or blue-sky laws of such jurisdictions as shall be reasonably requested by the selling Holders; provided that the
Company shall not be required to qualify to do business or to file a general consent to service of process in any such states
or jurisdictions, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities
Act;


 


(e)  in the event
of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary
form, with the underwriter(s) of such offering;


 


(f)  use its
commercially reasonable efforts to cause all such Registrable Securities covered by such registration statement to be listed on
a national securities exchange or trading system and each securities exchange and trading system (if any) on which similar securities
issued by the Company are then listed;


 


(g)  provide
a transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement and provide a CUSIP number
for all such Registrable Securities, in each case not later than the effective date of such registration;


 


(h)  promptly
make available for inspection by the selling Holders, any managing underwriter(s) participating in any disposition pursuant to
such registration statement, and any attorney or accountant or other agent retained by any such underwriter or selected by the
selling Holders, all financial and other records, pertinent corporate documents, and properties of the Company, and cause the
Company’s officers, directors, employees, and independent accountants to supply all information reasonably requested by
any such seller, underwriter, attorney, accountant, or agent, in each case, as necessary or advisable to verify the accuracy of
the information in such registration statement and to conduct appropriate due diligence in connection therewith;


 


(i)  notify each
selling Holder, promptly after the Company receives notice thereof, of the time when such registration statement has been declared
effective or a supplement to any prospectus forming a part of such registration statement has been filed; and


 


(j)  after such
registration statement becomes effective, notify each selling Holder of any request by the SEC that the Company amend or supplement
such registration statement or prospectus.


 


In addition, the Company
shall ensure that, at all times after any registration statement covering a public offering of securities of the Company under
the Securities Act shall have become effective, its insider trading policy shall provide that the Company’s directors may
implement a trading program under Rule 10b5-1 of the Exchange Act.


 


2.5  Furnish
Information. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section
2 with respect to the Registrable Securities of any selling Holder that such Holder shall furnish to the Company such information
regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as is reasonably
required to effect the registration of such Holder’s Registrable Securities.


 






    8


     


    

 


2.6  Expenses
of Registration. All expenses (other than Selling Expenses) incurred in connection with registrations, filings, or qualifications
pursuant to Section 2, including all registration, filing, and qualification fees; printers’ and accounting fees;
fees and disbursements of counsel for the Company; and the reasonable fees and disbursements, not to exceed $10,000, of one counsel
for the selling Holders (“Selling Holder Counsel”), shall be borne and paid by the Company; provided,
however, that the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to
Subsection 2.1 if the registration request is subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (in which case all selling Holders shall bear such expenses pro rata based upon the number
of Registrable Securities that were to be included in the withdrawn registration), unless the Holders of a majority of the Registrable
Securities agree to forfeit their right to one registration pursuant to Subsections 2.1(a) or 2.1(b), as the case
may be; provided further that if, at the time of such withdrawal, the Holders shall have learned of a material adverse
change in the condition, business, or prospects of the Company from that known to the Holders at the time of their request and
have withdrawn the request within three (3) business days after learning of such information then the Holders shall not be required
to pay any of such expenses and shall not forfeit their right to one registration pursuant to Subsections 2.1(a) or 2.1(b).
All Selling Expenses relating to Registrable Securities registered pursuant to this Section 2 shall be borne and paid by
the Holders pro rata on the basis of the number of Registrable Securities registered on their behalf. All Selling Expenses relating
to Registrable Securities registered pursuant to this Section 2 shall be borne and paid by the Holders pro rata on the
basis of the number of Registrable Securities registered on their behalf.


 


2.7  Delay of
Registration. No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any registration
pursuant to this Agreement as the result of any controversy that might arise with respect to the interpretation or implementation
of this Section 2.


 


2.8  Indemnification.
If any Registrable Securities are included in a registration statement under this Section 2:


 


(a)  To the extent
permitted by law, the Company will indemnify and hold harmless each selling Holder, and the partners, members, officers, directors,
and stockholders of each such Holder; legal counsel and accountants for each such Holder; any underwriter (as defined in the Securities
Act) for each such Holder; and each Person, if any, who controls such Holder or underwriter within the meaning of the Securities
Act or the Exchange Act, against any Damages, and the Company will pay to each such Holder, underwriter, controlling Person, or
other aforementioned Person any legal or other expenses reasonably incurred thereby in connection with investigating or defending
any claim or proceeding from which Damages may result, as such expenses are incurred; provided, however, that the
indemnity agreement contained in this Subsection 2.8(a) shall not apply to amounts paid in settlement of any such claim
or proceeding if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld,
nor shall the Company be liable for any Damages to the extent that they arise out of or are based upon actions or omissions made
in reliance upon and in conformity with written information furnished by or on behalf of any such Holder, underwriter, controlling
Person, or other aforementioned Person expressly for use in connection with such registration.


 






    9


     


    

 


(b)  To the extent
permitted by law, each selling Holder, severally and not jointly, will indemnify and hold harmless the Company, and each of its
directors, each of its officers who has signed the registration statement, each Person (if any), who controls the Company within
the meaning of the Securities Act, legal counsel and accountants for the Company, any underwriter (as defined in the Securities
Act), any other Holder selling securities in such registration statement, and any controlling Person of any such underwriter or
other Holder, against any Damages, in each case only to the extent that such Damages arise out of or are based upon actions or
omissions made in reliance upon and in conformity with written information furnished by or on behalf of such selling Holder expressly
for use in connection with such registration; and each such selling Holder will pay to the Company and each other aforementioned
Person any legal or other expenses reasonably incurred thereby in connection with investigating or defending any claim or proceeding
from which Damages may result, as such expenses are incurred; provided, however, that the indemnity agreement contained
in this Subsection 2.8(b) shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement
is effected without the consent of the Holder, which consent shall not be unreasonably withheld; and provided further that
in no event shall the aggregate amounts payable by any Holder by way of indemnity or contribution under Subsections 2.8(b)
and 2.8(d) exceed the proceeds from the offering received by such Holder (net of any Selling Expenses paid by such
Holder), except in the case of fraud or willful misconduct by such Holder.


 


(c)  Promptly
after receipt by an indemnified party under this Subsection 2.8 of notice of the commencement of any action (including
any governmental action) for which a party may be entitled to indemnification hereunder, such indemnified party will, if a claim
in respect thereof is to be made against any indemnifying party under this Subsection 2.8, give the indemnifying party
notice of the commencement thereof. The indemnifying party shall have the right to participate in such action and, to the extent
the indemnifying party so desires, participate jointly with any other indemnifying party to which notice has been given, and to
assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified
party (together with all other indemnified parties that may be represented without conflict by one counsel) shall have the right
to retain one separate counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified
party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests
between such indemnified party and any other party represented by such counsel in such action. The failure to give notice to the
indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of any
liability to the indemnified party under this Subsection 2.8, to the extent that such failure materially prejudices the
indemnifying party’s ability to defend such action. The failure to give notice to the indemnifying party will not relieve
it of any liability that it may have to any indemnified party otherwise than under this Subsection 2.8.


 






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(d)  To provide
for just and equitable contribution to joint liability under the Securities Act in any case in which either: (i) any party otherwise
entitled to indemnification hereunder makes a claim for indemnification pursuant to this Subsection 2.8 but it is judicially
determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be enforced in such case, notwithstanding the fact
that this Subsection 2.8 provides for indemnification in such case, or (ii) contribution under the Securities Act may be
required on the part of any party hereto for which indemnification is provided under this Subsection 2.8, then, and in
each such case, such parties will contribute to the aggregate losses, claims, damages, liabilities, or expenses to which they
may be subject (after contribution from others) in such proportion as is appropriate to reflect the relative fault of each of
the indemnifying party and the indemnified party in connection with the statements, omissions, or other actions that resulted
in such loss, claim, damage, liability, or expense, as well as to reflect any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether
the untrue or allegedly untrue statement of a material fact, or the omission or alleged omission of a material fact, relates to
information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge,
access to information, and opportunity to correct or prevent such statement or omission; provided, however, that,
in any such case (x) no Holder will be required to contribute any amount in excess of the public offering price of all such Registrable
Securities offered and sold by such Holder pursuant to such registration statement, and (y) no Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation; and provided further that in no event shall a Holder’s liability pursuant to
this Subsection 2.8(d), when combined with the amounts paid or payable by such Holder pursuant to Subsection 2.8(b),
exceed the proceeds from the offering received by such Holder (net of any Selling Expenses paid by such Holder), except in the
case of willful misconduct or fraud by such Holder.


 


(e)  Notwithstanding
the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered
into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.


 


(f)  Unless otherwise
superseded by an underwriting agreement entered into in connection with the underwritten public offering, the obligations of the
Company and Holders under this Subsection 2.8 shall survive the completion of any offering of Registrable Securities in
a registration under this Section 2, and otherwise shall survive the termination of this Agreement.


 


2.9  Reports
Under Exchange Act. With a view to making available to the Holders the benefits of SEC Rule 144 and any other rule or regulation
of the SEC that may at any time permit a Holder to sell securities of the Company to the public without registration or pursuant
to a registration on Form S-3, the Company shall:


 






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(a)  make and
keep available adequate current public information, as those terms are understood and defined in SEC Rule 144, at all times after
the effective date of the registration statement filed by the Company for the IPO;


 


(b)  use commercially
reasonable efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities
Act and the Exchange Act (at any time after the Company has become subject to such reporting requirements); and


 


(c)  furnish
to any Holder, so long as the Holder owns any Registrable Securities, forthwith upon request (i) to the extent accurate, a written
statement by the Company that it has complied with the reporting requirements of SEC Rule 144 (at any time after ninety (90) days
after the effective date of the registration statement filed by the Company for the IPO), the Securities Act, and the Exchange
Act (at any time after the Company has become subject to such reporting requirements following the effectiveness of the registration
statement filed by the Company for the IPO), or that it qualifies as a registrant whose securities may be resold pursuant to Form
S-3 (at any time after the Company so qualifies) and (ii) such other information as may be reasonably requested in availing any
Holder of any rule or regulation of the SEC that permits the selling of any such securities without registration (at any time
after the Company has become subject to such reporting requirements following the effectiveness of the registration statement
filed by the Company for the IPO) or pursuant to Form S-3 (at any time after the Company so qualifies to use such form).


 


2.10  Limitations
on Subsequent Registration Rights. From and after the date of this Agreement, the Company shall not, without the prior written
consent of the Holders of a majority of the Registrable Securities then outstanding, enter into any agreement with any holder
or prospective holder of any securities of the Company that would allow such holder or prospective holder to include such securities
in any registration unless, under the terms of such agreement, such holder or prospective holder may include such securities in
any such registration only to the extent that the inclusion of such securities will not reduce the number of the Registrable Securities
of the Holders that are included; provided that this limitation shall not apply to Registrable Securities acquired by any
additional Investor that becomes a party to this Agreement in accordance with Subsection 6.9.


 






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2.11  “Market
Stand-off” Agreement. Each Holder hereby agrees that it will not, without the prior written consent of the managing
underwriter, during the period commencing on the date of the final prospectus relating to the registration by the Company of shares
of its Common Stock or any other equity securities under the Securities Act on a registration statement on Form S-1 or Form S-3,
and ending on the date specified by the Company and the managing underwriter (such period not to exceed one hundred eighty (180)
days in the case of the IPO , or such other period as may be requested by the Company or an underwriter to accommodate regulatory
restrictions on (1) the publication or other distribution of research reports, and (2) analyst recommendations and opinions, including,
but not limited to, the restrictions contained in applicable FINRA rules, or any successor provisions or amendments thereto),
or ninety (90) days in the case of any registration other than the IPO , or such other period as may be requested by the Company
or an underwriter to accommodate regulatory restrictions on (1) the publication or other distribution of research reports and
(2) analyst recommendations and opinions, including, but not limited to, the restrictions contained in applicable FINRA rules,
or any successor provisions or amendments thereto), (i) lend; offer; pledge; sell; contract to sell; sell any option or contract
to purchase; purchase any option or contract to sell; grant any option, right, or warrant to purchase; or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable
(directly or indirectly) for Common Stock (whether such shares or any such securities are then owned by the Holder or are thereafter
acquired) or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of such securities, whether any such transaction described in clause (i) or (ii) above is to be settled
by delivery of Common Stock or other securities, in cash, or otherwise. The foregoing provisions of this Subsection 2.11
shall not apply to the sale of any shares to an underwriter pursuant to an underwriting agreement, or the transfer of any shares
to any trust for the direct or indirect benefit of the Holder or the immediate family of the Holder, provided that the
trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any
such transfer shall not involve a disposition for value, and shall be applicable to the Holders only if all officers and directors
are subject to the same restrictions. The underwriters in connection with such registration are intended third-party beneficiaries
of this Subsection 2.11 and shall have the right, power and authority to enforce the provisions hereof as though they were
a party hereto. Each Holder further agrees to execute such agreements as may be reasonably requested by the underwriters in connection
with such registration that are consistent with this Subsection 2.11 or that are necessary to give further effect thereto.


 


2.12
Restrictions on Transfer.

 


(a)  The Series
A Preferred Stock and the Registrable Securities shall not be sold, pledged, or otherwise transferred, and the Company shall not
recognize and shall issue stop-transfer instructions to its transfer agent with respect to any such sale, pledge, or transfer,
except upon the conditions specified in this Agreement, which conditions are intended to ensure compliance with the provisions
of the Securities Act. A transferring Holder will cause any proposed purchaser, pledgee, or transferee of the Series A Preferred
Stock and the Registrable Securities held by such Holder to agree to take and hold such securities subject to the provisions and
upon the conditions specified in this Agreement.


 


(b)  Each certificate,
instrument, or book entry representing (i) the Series A Preferred Stock, (ii) the Registrable Securities, and (iii) any other
securities issued in respect of the securities referenced in the foregoing clauses (i) and (ii), upon any stock split, stock dividend,
recapitalization, merger, consolidation, or similar event, shall (unless otherwise permitted by the provisions of Subsection
2.12(c)) be notated with a legend substantially in the following form:


 


THE SECURITIES REPRESENTED HEREBY
HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE SOLD,
PLEDGED, OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR A VALID EXEMPTION FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SAID ACT.


 






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THE SECURITIES REPRESENTED HEREBY
MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE STOCKHOLDER, A COPY OF WHICH
IS ON FILE WITH THE SECRETARY OF THE COMPANY.


 


The Holders consent
to the Company making a notation in its records and giving instructions to any transfer agent of the Restricted Securities in
order to implement the restrictions on transfer set forth in this Subsection 2.12.


 


(c)  The holder
of such Restricted Securities, by acceptance of ownership thereof, agrees to comply in all respects with the provisions of this
Section 2. Before any proposed sale, pledge, or transfer of any Restricted Securities, unless there is in effect a registration
statement under the Securities Act covering the proposed transaction, the Holder thereof shall give notice to the Company of such
Holder’s intention to effect such sale, pledge, or transfer. Each such notice shall describe the manner and circumstances
of the proposed sale, pledge, or transfer in sufficient detail and, if reasonably requested by the Company, shall be accompanied
at such Holder’s expense by either (i) a written opinion of legal counsel who shall, and whose legal opinion shall, be reasonably
satisfactory to the Company, addressed to the Company, to the effect that the proposed transaction may be effected without registration
under the Securities Act; (ii) a “no action” letter from the SEC to the effect that the proposed sale, pledge, or
transfer of such Restricted Securities without registration will not result in a recommendation by the staff of the SEC that action
be taken with respect thereto; or (iii) any other evidence reasonably satisfactory to counsel to the Company to the effect that
the proposed sale, pledge, or transfer of the Restricted Securities may be effected without registration under the Securities
Act, whereupon the Holder of such Restricted Securities shall be entitled to sell, pledge, or transfer such Restricted Securities
in accordance with the terms of the notice given by the Holder to the Company. The Company will not require such a legal opinion
or “no action” letter (x) in any transaction in compliance with SEC Rule 144; or (y) in any transaction in which such
Holder distributes Restricted Securities to an Affiliate of such Holder for no consideration; provided that each transferee
agrees in writing to be subject to the terms of this Subsection 2.12. Each certificate, instrument, or book entry representing
the Restricted Securities transferred as above provided shall be notated with, except if such transfer is made pursuant to SEC
Rule 144, the appropriate restrictive legend set forth in Subsection 2.12(b), except that such certificate instrument,
or book entry shall not be notated with such restrictive legend if, in the opinion of counsel for such Holder and the Company,
such legend is not required in order to establish compliance with any provisions of the Securities Act.


 






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2.13  Termination
of Registration Rights. The right of any Holder to request registration or inclusion of Registrable Securities in any registration
pursuant to Subsections 2.1 or 2.2 shall terminate upon the earliest to occur of:


 


(a)  the closing
of a Deemed Liquidation Event, as such term is defined in the Certificate of Incorporation;


 


(b)  such time
after consummation of the IPO as Rule 144 or another similar exemption under the Securities Act is available for the sale of all
of such Holder’s shares without limitation during a three-month period without registration; or


 


(c)
the five (5) year anniversary of the date of this Agreement.

 


3.
Information Rights.

 


3.1  Delivery
of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has
not reasonably determined that such Major Investor is a competitor of the Company:


 


(a)  as soon
as practicable, but in any event within ninety (90) days after the end of each fiscal year of the Company (i) a balance sheet
as of the end of such year, (ii) statements of income and of cash flows for such year, and (iii) a statement of stockholders’
equity as of the end of such year, all of which shall be audited and certified by independent public accountants of nationally
recognized standing selected by the Company, which initially shall be Wolf & Company, P.C.;


 


(b)  as soon
as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal
year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet as
of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject
to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);


 


(c)  to the extent
requested by a Major Investor, as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited
income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP
(except that such financial statements (i) may be subject to normal year- end audit adjustments and (ii) may not contain all notes
thereto that may be required in accordance with GAAP);


 


(d)  as soon
as practicable, but in any event before the end of each fiscal year, an annual budget and business plan for the next fiscal year
(collectively, the “Budget”); provided, however, that the Company shall not be obligated under
this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret
or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company);
or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel.


 






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If, for any
period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period
the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements
of the Company and all such consolidated subsidiaries.


 


Notwithstanding anything
else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection
3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of
filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration
statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated
at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement
to become effective.


 


3.2  Inspection.
The Company shall permit each Major Investor (provided that the Board of Directors has not reasonably determined that such
Major Investor is a competitor of the Company), at such Major Investor’s expense, to (i) visit and inspect the Company’s
properties; (ii) examine its books of account and records; and (iii) discuss the Company’s affairs, finances, and accounts
with its officers, during normal business hours of the Company as may be reasonably requested by the Major Investor; provided,
however, that the Company shall not be obligated pursuant to this Subsection 3.2 to provide access to any information
that it reasonably and in good faith considers to be a trade secret or confidential information (unless covered by an enforceable
confidentiality agreement, in form acceptable to the Company) or the disclosure of which would adversely affect the attorney-client
privilege between the Company and its counsel.


 


3.3  Termination
of Information and Inspection Rights. The covenants set forth in Subsection 3.1 and Subsection 3.2 shall terminate
and be of no further force or effect (i) immediately before the consummation of the IPO, (ii) when the Company becomes subject
to the periodic reporting requirements of Section 12(b), 12(g) or 15(d) of the Exchange Act following the date on which the Company
deregisters or is otherwise no longer subject to the periodic reporting requirements of Section 12(g) or 15(d) of the Exchange
Act, or (iii) upon the closing of a Deemed Liquidation Event, as such term is defined in the Certificate of Incorporation, whichever
event occurs first.


 


3.4  Confidentiality.
Each Investor agrees that such Investor will keep confidential and will not disclose, divulge, or use for any purpose (other than
to monitor its investment in the Company) any confidential information obtained from the Company pursuant to the terms of this
Agreement (including notice of the Company’s intention to file a registration statement), unless such confidential information
(a) is known or becomes known to the public in general (other than as a result of a breach of this Subsection 3.4 by such
Investor), (b) is or has been independently developed or conceived by such Investor without use of the Company’s confidential
information, or (c) is or has been made known or disclosed to such Investor by a third party without a breach of any obligation
of confidentiality such third party may have to the Company; provided, however, that an Investor may disclose confidential
information (i) to its attorneys, accountants, consultants, and other professionals to the extent necessary to obtain their services
in connection with monitoring its investment in the Company; (ii) to any prospective purchaser of any Registrable Securities from
such Investor, if such prospective purchaser agrees to be bound by the provisions of this Subsection 3.4; (iii) to any
Affiliate, partner, member, stockholder, or wholly owned subsidiary of such Investor in the ordinary course of business, provided
that such Investor informs such Person that such information is confidential and directs such Person to maintain the confidentiality
of such information; or (iv) as may otherwise be required by law, regulation, rule, court order or subpoena, provided that
such Investor promptly notifies the Company of such disclosure and takes reasonable steps to minimize the extent of any such
required disclosure.


 






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4.
Rights to Future Stock Issuances.

 


4.1  Right of
First Offer. Subject to the terms and conditions of this Subsection 4.1 and applicable securities laws, if the Company
proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each Major Investor. A Major
Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate,
among (i) itself, (ii) its Affiliates and (iii) its beneficial interest holders, such as limited partners, members or any other
Person having “beneficial ownership,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of
such Major Investor (“Investor Beneficial Owners”); provided that each such Affiliate or Investor Beneficial
Owner (x) is not a competitor of the Company or FOIA Party, unless such party’s purchase of New Securities is otherwise
consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Voting Agreement and the Right
of First Refusal and Co-Sale Agreement of even date herewith among the Company, one or more Investors and the other parties named
therein, as an “Investor” under each such agreement (provided that any competitor of the Company or FOIA Party
shall not be entitled to any rights as a Major Investor under Subsections 3.1, 3.2 and 4.1 hereof), and (z) 
agrees to purchase at least such number of New Securities as are allocable hereunder to the Major Investor holding the fewest
number of Series A Preferred Stock and any other Derivative Securities.


 


(a)  The Company
shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer
such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it
proposes to offer such New Securities.


 


(b)  By notification
to the Company within twenty (20) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise
acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the
proportion that the Common Stock then held by such Major Investor (including all shares of Common Stock then issuable (directly
or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Stock and any other Derivative Securities
then held by such Major Investor) bears to the total Common Stock of the Company then outstanding (assuming full conversion and/or
exercise, as applicable, of all Series A Preferred Stock and any other Derivative Securities then outstanding). At the expiration
of such twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the
shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to
do likewise. During the ten (10) day period commencing after the Company has given such notice, each Fully Exercising Investor
may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to
that portion of the New Securities for which Major Investors were entitled to subscribe but that were not subscribed for by the
Major Investors which is equal to the proportion that the Common Stock issued and held, or issuable (directly or indirectly) upon
conversion and/or exercise, as applicable, of Series A Preferred Stock and any other Derivative Securities then held, by such
Fully Exercising Investor bears to the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or
exercise, as applicable, of the Series A Preferred Stock and any other Derivative Securities then held, by all Fully Exercising
Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Subsection 4.1(b) shall
occur within the later of one hundred and twenty (120) days of the date that the Offer Notice is given and the date of initial
sale of New Securities pursuant to Subsection 4.1(c).


 






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(c)  If all New
Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Subsection 4.1(b),
the Company may, during the ninety (90) day period following the expiration of the periods provided in Subsection 4.1(b),
offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and
upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement
for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the
execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless
first reoffered to the Major Investors in accordance with this Subsection 4.1.


 


(d)  The right
of first offer in this Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Certificate
of Incorporation); (ii) shares of Common Stock issued in the IPO; and (iii) the issuance of shares of Series A Preferred Stock
to Additional Purchasers pursuant to Subsection 1.3 of the Purchase Agreement.


 


4.2  Termination.
The covenants set forth in Subsection 4.1 shall terminate and be of no further force or effect (i) immediately before the
consummation of the IPO, (ii) when the Company becomes subject to the periodic reporting requirements of Section 12(b), 12(g)
or 15(d) of the Exchange Act following the date on which the Company deregisters or is otherwise no longer subject to the periodic
reporting requirements of Section 12(g) or 15(d) of the Exchange Act, or (iii) upon the closing of a Deemed Liquidation Event,
as such term is defined in the Certificate of Incorporation, whichever event occurs first.


 


5.
Additional Covenants.

 


5.1  Board Matters.
Unless otherwise determined by the vote of a majority of the directors then in office, the Board of Directors shall meet at least
quarterly in accordance with an agreed-upon schedule. The Company shall reimburse the directors and nonvoting observers for all
reasonable out-of-pocket travel expenses incurred (consistent with the Company’s travel policy) in connection with attending
meetings of the Board of Directors.


 






    18


     


    

 


5.2  Successor
Indemnification. If the Company or any of its successors or assignees consolidates with or merges into any other Person and
is not the continuing or surviving corporation or entity of such consolidation or merger, then to the extent necessary, proper
provision shall be made so that the successors and assignees of the Company assume the obligations of the Company with respect
to indemnification of members of the Board of Directors as in effect immediately before such transaction, whether such obligations
are contained in the Company’s Amended and Restated Bylaws, the Certificate of Incorporation, or elsewhere, as the case
may be.


 


5.3  Termination
of Covenants. The covenants set forth in this Section 5, except for Subsection 5.2, shall terminate and be of
no further force or effect (i) immediately before the consummation of the IPO, (ii) when the Company becomes subject to the periodic
reporting requirements of Section 12(b), 12(g) or 15(d) of the Exchange Act following the date on which the Company deregisters
or is otherwise no longer subject to the periodic reporting requirements of Section 12(g) or 15(d) of the Exchange Act, or (iii)
upon a Deemed Liquidation Event, as such term is defined in the Certificate of Incorporation, whichever event occurs first.


 


6.
Miscellaneous.

 


6.1  Successors
and Assigns. The rights under this Agreement may be assigned (but only with all related obligations) by a Holder to a transferee
of Registrable Securities that (i) is an Affiliate of a Holder; or (ii) is a Holder’s Immediate Family Member or trust for
the benefit of an individual Holder or one or more of such Holder’s Immediate Family Members; provided, however,
that (x) the Company is, within a reasonable time after such transfer, furnished with written notice of the name and address of
such transferee and the Registrable Securities with respect to which such rights are being transferred; and (y) such transferee
agrees in a written instrument delivered to the Company to be bound by and subject to the terms and conditions of this Agreement,
including the provisions of Subsection 2.11. For the purposes of determining the number of shares of Registrable Securities
held by a transferee, the holdings of a transferee (1) that is an Affiliate or stockholder of a Holder; (2) who is a Holder’s
Immediate Family Member; or (3) that is a trust for the benefit of an individual Holder or such Holder’s Immediate Family
Member shall be aggregated together and with those of the transferring Holder; provided further that all transferees who
would not qualify individually for assignment of rights shall, as a condition to the applicable transfer, establish a single attorney-in-fact
for the purpose of exercising any rights, receiving notices, or taking any action under this Agreement. The terms and conditions
of this Agreement inure to the benefit of and are binding upon the respective successors and permitted assignees of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective
successors and permitted assignees any rights, remedies, obligations or liabilities under or by reason of this Agreement, except
as expressly provided herein.


 






    19


     


    

 


6.2  Governing
Law. This Agreement shall be governed by the internal law of the State of Delaware, without regard to conflict of law principles
that would result in the application of any law other than the law of the State of Delaware.


 


6.3  Counterparts.
This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any
electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and
any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.


 


6.4  Titles
and Subtitles. The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing
or interpreting this Agreement.


 


6.5
Notices.

 


(a)  All notices
and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon
the earlier of actual receipt or (i) personal delivery to the party to be notified; (ii) when sent, if sent by electronic mail
or facsimile during the recipient’s normal business hours, and if not sent during normal business hours, then on the recipient’s
next business day; (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage
prepaid; or (iv) one (1) business day after the business day of deposit with a nationally recognized overnight courier, freight
prepaid, specifying next-day delivery, with written verification of receipt. All communications shall be sent to the respective
parties at their addresses as set forth on Schedule A hereto, or to the principal office of the Company and to the attention
of the Chief Executive Officer, in the case of the Company, or to such email address, facsimile number, or address as subsequently
modified by written notice given in accordance with this Subsection 6.5. If notice is given to the Company, a copy shall
also be sent to Mitchell Silberberg & Knupp LLP, 437 Madison Avenue, 25th Floor, New York, NY 10022, Attention: Blake Baron,
Esq., email: bjb@msk.com; and if notice is given to the Investors, a copy shall also be given to Wilson Sonsini Goodrich &
Rosati, P.C.s, 650 Page Mill Road, Palo Alto, CA 94304, Attention: Elton Satusky, Esq., email: esatusky@wsgr.com.


 


(b)  Consent
to Electronic Notice. Each Investor consents to the delivery of any stockholder notice pursuant to the Delaware General Corporation
Law (the “DGCL”), as amended or superseded from time to time, by electronic transmission pursuant to Section
232 of the DGCL (or any successor thereto) at the electronic mail address or the facsimile number set forth below such Investor’s
name on Schedule A hereto, as updated from time to time by notice to the Company, or as on the books of the Company. Each
Investor agrees to promptly notify the Company of any change in such Investor’s electronic mail address, and that failure
to do so shall not affect the foregoing.


 






    20


     


    

 


6.6  Amendments
and Waivers. Any term of this Agreement may be amended, modified or terminated and the observance of any term of this Agreement
may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written
consent of the Company and the holders of at least a majority of the Registrable Securities then outstanding; provided that
the Company may in its sole discretion waive compliance with Subsection 2.12(c) (and the Company’s failure to
object promptly in writing after notification of a proposed assignment allegedly in violation of Subsection 2.12(c) shall
be deemed to be a waiver); and provided further that any provision hereof may be waived by any waiving party on such party’s
own behalf, without the consent of any other party. Notwithstanding the foregoing, (a) this Agreement may not be amended, modified
or terminated and the observance of any term hereof may not be waived with respect to any Investor without the written consent
of such Investor, unless such amendment, modification, termination, or waiver applies to all Investors in the same fashion (it
being agreed that a waiver of the provisions of Section 4 with respect to a particular transaction shall be deemed to apply
to all Investors in the same fashion if such waiver does so by its terms, notwithstanding the fact that certain Investors may
nonetheless, by agreement with the Company, purchase securities in such transaction) and (b) Subsections 3.1 and 3.2,
Section 4 and any other section of this Agreement applicable to the Major Investors (including this clause (b) of this
Subsection 6.6) may not be amended, modified, terminated or waived without the written consent of the holders of at least
a majority of the Registrable Securities then outstanding and held by the Major Investors. Notwithstanding the foregoing, Schedule
A hereto may be amended by the Company from time to time to add transferees of any Registrable Securities in compliance with
the terms of this Agreement without the consent of the other parties; and Schedule A hereto may also be amended by the
Company after the date of this Agreement without the consent of the other parties to add information regarding any additional
Investor who becomes a party to this Agreement in accordance with Subsection 6.9. The Company shall give prompt notice
of any amendment, modification or termination hereof or waiver hereunder to any party hereto that did not consent in writing to
such amendment, modification, termination, or waiver. Any amendment, modification, termination, or waiver effected in accordance
with this Subsection 6.6 shall be binding on all parties hereto, regardless of whether any such party has consented thereto.
No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed
to be or construed as a further or continuing waiver of any such term, condition, or provision.


 


6.7  Severability.
In case any one or more of the provisions contained in this Agreement is for any reason held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and such
invalid, illegal, or unenforceable provision shall be reformed and construed so that it will be valid, legal, and enforceable
to the maximum extent permitted by law.


 


6.8  Aggregation
of Stock. All shares of Registrable Securities held or acquired by Affiliates shall be aggregated together for the purpose
of determining the availability of any rights under this Agreement and such Affiliated persons may apportion such rights as among
themselves in any manner they deem appropriate.


 






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6.9  Additional
Investors. Notwithstanding anything to the contrary contained herein, if the Company issues additional shares of the Company’s
Series A Preferred Stock after the date hereof, whether pursuant to the Purchase Agreement or otherwise, any purchaser of such
shares of Series A Preferred Stock may become a party to this Agreement by executing and delivering an additional counterpart
signature page to this Agreement, and thereafter shall be deemed an “Investor” for all purposes hereunder. No action
or consent by the Investors shall be required for such joinder to this Agreement by such additional Investor, so long as such
additional Investor has agreed in writing to be bound by all of the obligations as an “Investor” hereunder.


 


6.10  Entire
Agreement. This Agreement (including any Schedules and Exhibits hereto) constitutes the full and entire understanding and
agreement among the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the
subject matter hereof existing between the parties is expressly canceled.


 


6.11  Dispute
Resolution. The parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of Delaware
and to the jurisdiction of the United States District Court for the District of Delaware for the purpose of any suit, action or
other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising
out of or based upon this Agreement except in the state courts of Delaware or the United States District Court for the District
of Delaware, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action
or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is
exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the
venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in
or by such court.


 


WAIVER OF JURY TRIAL: EACH PARTY HEREBY
WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE OTHER TRANSACTION
DOCUMENTS, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING
OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS.
EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND
THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.


 


6.12  Delays
or Omissions. No delay or omission to exercise any right, power, or remedy accruing to any party under this Agreement, upon
any breach or default of any other party under this Agreement, shall impair any such right, power, or remedy of such nonbreaching
or nondefaulting party, nor shall it be construed to be a waiver of or acquiescence to any such breach or default, or to any similar
breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach
or default theretofore or thereafter occurring. All remedies, whether under this Agreement or by law or otherwise afforded to
any party, shall be cumulative and not alternative.


 


[Remainder of Page
Intentionally Left Blank]


 



    22


     


    




 


IN WITNESS WHEREOF, the parties
have executed this Agreement as of the date first written above.


 


	 	COMPANY:
	 	 
	 	GI DYNAMICS, INC.
	 	 	 
	 	By:	                               
	 	Name:  	 
	 	Title:	 
	 	 	 
	 	INVESTORS:
	 	 
	 	CRYSTAL AMBER FUND LIMITED
	 	 	 
	 	By:	 
	 	Name:	Chris Waldron
	 	Title:	Director



 


Signature
Page To Investors’ Rights Agreement


 






    


     


    

 


SCHEDULE A


 


Investors


 


Crystal Amber Fund
Limited


PO Box 286, Floor 2


Trafalgar Court


St.Peter Port


GY1 4LY


Guernsey


jm@crystalamber.com


Attention: Juan Morera


 






    


     


    
 


EXHIBIT F


 


FORM OF RIGHT
OF FIRST REFUSAL AND CO-SALE AGREEMENT


 






     


    


    


 


 




 


 


 


 


 


 


 


 


 


 


 


GI
DYNAMICS, INC.


 


RIGHT
OF FIRST REFUSAL AND CO-SALE AGREEMENT


 


 


 


 


 


 


 


 


 


 


 


 


 


 












    	 		 



     


    

 


TABLE
OF CONTENTS


 


	 	 	Page
	1.	Definitions	
	 	 	 
	2.	Agreement Among the Company, the Investors and the Key Holders	3
	 	2.1	Right of First Refusal	3
	 	2.2	Right of Co-Sale	5
	 	2.3	Effect of Failure to Comply	7
	 	 	 	 
	3.	Exempt Transfers  	8
	 	3.1	Exempted Transfers	8
	 	3.2	Exempted Offerings	8
	 	3.3	Prohibited Transferees	8
	 	 	 	 
	4.	Legend	8
	 	 	 
	5.	Lock-Up	9
	 	5.1	Agreement to Lock-Up	9
	 	5.2	Stop Transfer Instructions	9
	 	 	 	 
	6.	Miscellaneous 
	 	6.1	Term	9
	 	6.2	Stock Split	9
	 	6.3	Ownership	10
	 	6.4	Dispute Resolution	10
	 	6.5	Notices	10
	 	6.6	Entire Agreement	11
	 	6.7	Delays or Omissions	11
	 	6.8	Amendment; Waiver and Termination	11
	 	6.9	Assignment of Rights	12
	 	6.10	Severability	12
	 	6.11	Additional Stockholders	12
	 	6.12	Governing Law	13
	 	6.13	Titles and Subtitles	13
	 	6.14	Counterparts	13
	 	6.15	Aggregation of Stock	13
	 	6.16	Specific Performance	13
	 	6.17	Consent of Spouse	13


 


	Schedule A	-	Investors
	Schedule B	-	Key Holders
	Exhibit A	-	Consent of Spouse



 



    i


    


    





 





RIGHT
OF FIRST REFUSAL AND CO-SALE AGREEMENT


 


THIS
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT (this “Agreement”), is made as of the [●] day of [●],
2020, by and among GI Dynamics, Inc., a Delaware corporation (the “Company”), the Investors (as defined below)
listed on Schedule A and the Key Holders (as defined below) listed on Schedule B.


 


WHEREAS,
each Key Holder is the beneficial owner of the number of shares of Capital Stock set forth opposite the name of such Key Holder
on Schedule B;


 


WHEREAS,
the Company and the Investors are parties to that certain Series A Preferred Stock Purchase Agreement, dated as of [●]
[●], 2020 (the “Purchase Agreement”), pursuant to which the Investors have agreed to purchase shares
of the Series A Preferred Stock of the Company, par value $0.01 per share (“Series A Preferred Stock”); and


 


WHEREAS,
the Key Holders and the Company desire to further induce the Investors to purchase the Series A Preferred Stock.


 


NOW,
THEREFORE, the Company, the Key Holders and the Investors agree as follows:


 


1. Definitions.


 


1.1 “Affiliate”
means, with respect to any specified Investor, any other Investor who directly or indirectly, controls, is controlled by or is
under common control with such Investor, including, without limitation, any general partner, managing member, officer, director
or trustee of such Investor, or any venture capital fund or registered investment company now or hereafter existing which is controlled
by one or more general partners, managing members or investment advisers of, or shares the same management company or investment
adviser with, such Investor.


 


1.2
“Board of Directors” means the board of directors of the Company.




 


1.3 “Capital
Stock” means (a) shares of Common Stock and Series A Preferred Stock (whether now outstanding or hereafter issued in
any context), (b) shares of Common Stock issued or issuable upon conversion of Series A Preferred Stock, and (c) shares of Common
Stock issued or issuable upon exercise or conversion, as applicable, of stock options, warrants or other convertible securities
of the Company, in each case now owned or subsequently acquired by any Key Holder, any Investor, or their respective successors
or permitted transferees or assigns. For purposes of the number of shares of Capital Stock held by an Investor or Key Holder (or
any other calculation based thereon), all shares of Series A Preferred Stock shall be deemed to have been converted into Common
Stock at the then-applicable conversion ratio.


 


1.4 “Change
of Control” means a transaction or series of related transactions in which a person, or a group of related persons,
acquires from stockholders of the Company shares representing more than fifty percent (50%) of the outstanding voting power of
the Company.


 


1.5 “Common
Stock” means shares of Common Stock of the Company, $0.01 par value per share.





 






     


    


    


 


1.6 “Company
Notice” means written notice from the Company notifying the selling Key Holders and each Investor that the Company intends
to exercise its Right of First Refusal as to some or all of the Transfer Stock with respect to any Proposed Key Holder Transfer.


 


1.7 “Investor
Notice” means written notice from any Investor notifying the Company and the selling Key Holder(s) that such Investor
intends to exercise its Secondary Refusal Right as to a portion of the Transfer Stock with respect to any Proposed Key Holder
Transfer.


 


1.8 “Investors”
means the persons named on Schedule A hereto, each person to whom the rights of an Investor are assigned pursuant to Subsection
6.9, each person who hereafter becomes a signatory to this Agreement pursuant to Subsection 6.11 and any one of them,
as the context may require; provided, however, that any such person shall cease to be considered an Investor for
purposes of this Agreement at any time such person and his, her or its Affiliates collectively hold fewer than 1,000,000 shares
of Common Stock, on an as converted basis (as adjusted for any stock combination, stock split, stock dividend, recapitalization
or other similar transaction).


 


1.9 “Key
Holders” means the persons named on Schedule B hereto, each person to whom the rights of a Key Holder are assigned
pursuant to Subsection 3.1, each person who hereafter becomes a signatory to this Agreement pursuant to Subsection 6.9
or Subsection 6.17. and any one of them, as the context may require; provided, however, that any such
person shall cease to be considered a Key Holder for purposes of this Agreement at any time such person and his, her or its Affiliates
collectively hold less than one percent (1%) of the Company’s then outstanding shares of Common Stock (as adjusted for any
stock combination, stock split, stock dividend, recapitalization or other similar transaction).


 


1.10 “Proposed
Key Holder Transfer” means any assignment, sale, offer to sell, pledge, mortgage, hypothecation, encumbrance, disposition
of or any other like transfer or encumbering of any Transfer Stock (or any interest therein) proposed by any of the Key Holders.


 


1.11 “Proposed
Transfer Notice” means written notice from a Key Holder setting forth the terms and conditions of a Proposed Key Holder
Transfer.


 


1.12 “Prospective
Transferee” means any person to whom a Key Holder proposes to make a Proposed Key Holder Transfer.


 


1.13 “Restated
Certificate” means the Company’s Amended and Restated Certificate of Incorporation, as amended and/or restated
from time to time.


 


1.14 “Right
of Co-Sale” means the right, but not an obligation, of an Investor to participate in a Proposed Key Holder Transfer
on the terms and conditions specified in the Proposed Transfer Notice.


 


1.15 “Right
of First Refusal” means the right, but not an obligation, of the Company, or its permitted transferees or assigns, to
purchase some or all of the Transfer Stock with respect to a Proposed Key Holder Transfer, on the terms and conditions specified
in the Proposed Transfer Notice.


 







    2


    


    

 


1.16  “Secondary
Notice” means written notice from the Company notifying the Investors and the selling Key Holder that the Company does
not intend to exercise its Right of First Refusal as to all shares of any Transfer Stock with respect to a Proposed Key Holder
Transfer, on the terms and conditions specified in the Proposed Transfer Notice.


 


1.17  “Secondary
Refusal Right” means the right, but not an obligation, of each Investor to purchase up to its pro rata portion (based
upon the total number of shares of Capital Stock then held by all Investors) of any Transfer Stock not purchased pursuant to the
Right of First Refusal, on the terms and conditions specified in the Proposed Transfer Notice.


 


1.18  “Transfer
Stock” means shares of Capital Stock owned by a Key Holder, or issued to a Key Holder after the date hereof (including,
without limitation, in connection with any stock split, stock dividend, recapitalization, reorganization, or the like), but does
not include any shares of Series A Preferred Stock or of Common Stock that are issued or issuable upon conversion of Series A
Preferred Stock.


 


1.19  “Undersubscription
Notice” means written notice from an Investor notifying the Company and the selling Key Holder that such Investor intends
to exercise its option to purchase its pro rata portion of the number of shares of Transfer Stock not purchased pursuant to the
Right of First Refusal or the Secondary Refusal Right.


 


2.
Agreement Among the Company, the Investors and the Key Holders.



 


2.1
Right of First Refusal.



 


(a)  Grant.
Subject to the terms of Section 3 below, each Key Holder hereby unconditionally and irrevocably grants to the Company a
Right of First Refusal to purchase all or any portion of Transfer Stock that such Key Holder may propose to transfer in a Proposed
Key Holder Transfer, at the same price and on the same terms and conditions as those offered to the Prospective Transferee.


 


(b)  Notice.
Each Key Holder proposing to make a Proposed Key Holder Transfer must deliver a Proposed Transfer Notice to the Company and each
Investor not later than forty-five (45) days prior to the consummation of such Proposed Key Holder Transfer. Such Proposed Transfer
Notice shall contain the material terms and conditions (including price and form of consideration) of the Proposed Key Holder
Transfer, the identity of the Prospective Transferee and the intended date of the Proposed Key Holder Transfer. To exercise its
Right of First Refusal under this Subsection 2.1, the Company must deliver a Company Notice to the selling Key Holder and
the Investors within fifteen (15) days after delivery of the Proposed Transfer Notice specifying the number of shares of Transfer
Stock to be purchased by the Company. In the event of a conflict between this Agreement and any other agreement that may have
been entered into by a Key Holder with the Company that contains a preexisting right of first refusal, the Company and the Key
Holder acknowledge and agree that the terms of this Agreement shall control and the preexisting right of first refusal shall be
deemed satisfied by compliance with Subsection 2.1(a) and this Subsection 2.1(b).


 






    3


    


    

 


(c)  Grant
of Secondary Refusal Right to the Investors. Subject to the terms of Section 3 below, each Key Holder hereby unconditionally
and irrevocably grants to the Investors a Secondary Refusal Right to purchase all or any portion of the Transfer Stock not purchased
by the Company pursuant to the Right of First Refusal, as provided in this Subsection 2.1(c). In the event there are two
(2) or more such Investors that choose to exercise the Secondary Refusal Right for a total number of remaining shares in excess
of the number available, the Transfer Stock available for purchase under this Subsection 2.1(c) shall be allocated to such
Investors pro rata based on the number of shares of Series A Preferred Stock held by such Investors. If the Company does not provide
the Company Notice exercising its Right of First Refusal with respect to all Transfer Stock subject to a Proposed Key Holder Transfer,
the Company must deliver a Secondary Notice to the selling Key Holder and to each Investor to that effect no later than fifteen
(15) days after the selling Key Holder delivers the Proposed Transfer Notice to the Company. To exercise its Secondary Refusal
Right, an Investor must deliver an Investor Notice to the selling Key Holder and the Company within ten (10) days after the Company’s
deadline for its delivery of the Secondary Notice as provided in the preceding sentence.


 


(d)  Undersubscription
of Transfer Stock. If options to purchase have been exercised by the Company and the Investors pursuant to Subsections
2.1(b) and (c) with respect to some but not all of the Transfer Stock by the end of the ten (10) day period specified
in the last sentence of Subsection 2.1(c) (the “Investor Notice Period”), then the Company shall, within
five (5) days after the expiration of the Investor Notice Period, send written notice (the “Company Undersubscription
Notice”) to those Investors who fully exercised their Secondary Refusal Right within the Investor Notice Period (the
“Exercising Investors”). Each Exercising Investor shall, subject to the provisions of this Subsection 2.1(d),
have an additional option to purchase all or any part of the balance of any such remaining unsubscribed shares of Transfer Stock
on the terms and conditions set forth in the Proposed Transfer Notice. To exercise such option, an Exercising Investor must deliver
an Undersubscription Notice to the selling Key Holder and the Company within ten (10) days after the expiration of the Investor
Notice Period. In the event there are two (2) or more such Exercising Investors that choose to exercise the last- mentioned option
for a total number of remaining shares in excess of the number available, the remaining shares available for purchase under this
Subsection 2.1(d) shall be allocated to such Exercising Investors pro rata based on the number of shares of Transfer Stock
such Exercising Investors have elected to purchase pursuant to the Secondary Refusal Right (without giving effect to any shares
of Transfer Stock that any such Exercising Investor has elected to purchase pursuant to the Company Undersubscription Notice).
If the options to purchase the remaining shares are exercised in full by the Exercising Investors, the Company shall immediately
notify all of the Exercising Investors and the selling Key Holder of that fact.


 


(e)  Consideration;
Closing. If the consideration proposed to be paid for the Transfer Stock is in property, services or other non-cash consideration,
the fair market value of the consideration shall be as determined in good faith by the Board of Directors and as set forth in
the Company Notice. If the Company or any Investor cannot for any reason pay for the Transfer Stock in the same form of non-cash
consideration, the Company or such Investor may pay the cash value equivalent thereof, as determined in good faith by the Board
of Directors and as set forth in the Company Notice. The closing of the purchase of Transfer Stock by the Company and the Investors
shall take place, and all payments from the Company and the Investors shall have been delivered to the selling Key Holder, by
the later of (i) the date specified in the Proposed Transfer Notice as the intended date of the Proposed Key Holder Transfer and
(ii) forty-five (45) days after delivery of the Proposed Transfer Notice.



 






    4


    


    

 


2.2
Right of Co-Sale.



 


(a)  Exercise
of Right. If any Transfer Stock subject to a Proposed Key Holder Transfer is not purchased pursuant to Subsection 2.1
above and thereafter is to be sold to a Prospective Transferee, each respective Investor may elect to exercise its Right of Co-Sale
and participate on a pro rata basis in the Proposed Key Holder Transfer as set forth in Subsection 2.2(b) below and, subject
to Subsection 2.2(d), otherwise on the same terms and conditions specified in the Proposed Transfer Notice. Each Investor
who desires to exercise its Right of Co-Sale (each, a “Participating Investor”) must give the selling Key Holder
written notice to that effect within fifteen (15) days after the deadline for delivery of the Secondary Notice described above,
and upon giving such notice such Participating Investor shall be deemed to have effectively exercised the Right of Co-Sale.


 


(b)  Shares
Includable. Each Participating Investor may include in the Proposed Key Holder Transfer all or any part of such Participating
Investor’s Capital Stock equal to the product obtained by multiplying (i) the aggregate number of shares of Transfer Stock
subject to the Proposed Key Holder Transfer (excluding shares purchased by the Company or the Participating Investors pursuant
to the Right of First Refusal or the Secondary Refusal Right) by (ii)  a fraction, the numerator of which is the number of
shares of Capital Stock owned by such Participating Investor immediately before consummation of the Proposed Key Holder Transfer
(including any shares that such Participating Investor has agreed to purchase pursuant to the Secondary Refusal Right) and the
denominator of which is the total number of shares of Capital Stock owned, in the aggregate, by all Participating Investors immediately
prior to the consummation of the Proposed Key Holder Transfer (including any shares that all Participating Investors have collectively
agreed to purchase pursuant to the Secondary Refusal Right), plus the number of shares of Transfer Stock held by the selling Key
Holder. To the extent one (1) or more of the Participating Investors exercise such right of participation in accordance with the
terms and conditions set forth herein, the number of shares of Transfer Stock that the selling Key Holder may sell in the Proposed
Key Holder Transfer shall be correspondingly reduced.


 


(c)  Purchase
and Sale Agreement. The Participating Investors and the selling Key Holder agree that the terms and conditions of any Proposed
Key Holder Transfer in accordance with this Subsection 2.2 will be memorialized in, and governed by, a written purchase
and sale agreement with the Prospective Transferee (the “Purchase and Sale Agreement”) with customary terms
and provisions for such a transaction, and the Participating Investors and the selling Key Holder further covenant and agree to
enter into such Purchase and Sale Agreement as a condition precedent to any sale or other transfer in accordance with this Subsection
2.2.


 


(d)
Allocation of Consideration.



 


(i) Subject to
Subsection 2.2(d)(ii), the aggregate consideration payable to the Participating Investors and the selling Key Holder shall
be allocated based on the number of shares of Capital Stock sold to the Prospective Transferee by each Participating Investor
and the selling Key Holder as provided in Subsection 2.2(b); provided, however, if a Participating Investor
wishes to sell Series A Preferred Stock, the price set forth in the Proposed Transfer Notice shall be appropriately adjusted based
on the conversion ratio of the Series A Preferred Stock into Common Stock.



 






    5


    


    

 


(ii) In the event
that the Proposed Key Holder Transfer constitutes a Change of Control, the terms of the Purchase and Sale Agreement shall provide
that the aggregate consideration from such transfer shall be allocated to the Participating Investors and the selling Key Holder
in accordance with Sections 2.1 and 2.2 of Article IV(B) of the Restated Certificate and, if applicable, the next sentence as
if (A) such transfer were a Deemed Liquidation Event (as defined in the Restated Certificate), and (B) the Capital Stock sold
in accordance with the Purchase and Sale Agreement were the only Capital Stock outstanding. In the event that a portion of the
aggregate consideration payable to the Participating Investor(s) and selling Key Holder is placed into escrow and/or is payable
only upon satisfaction of contingencies, the Purchase and Sale Agreement shall provide that (x) the portion of such consideration
that is not placed in escrow and is not subject to contingencies (the “Initial Consideration”) shall be allocated
in accordance with Sections 2.1 and 2.2 of Article IV(B) of the Restated Certificate as if the Initial Consideration were the
only consideration payable in connection with such transfer, and (y) any additional consideration which becomes payable to
the Participating Investor(s) and selling Key Holder upon release from escrow or satisfaction of such contingencies shall be allocated
in accordance with Sections 2.1 and 2.2 of Article IV(B) of the Restated Certificate after taking into account the previous payment
of the Initial Consideration as part of the same transfer.


 


(e)  Purchase
by Selling Key Holder; Deliveries. Notwithstanding Subsection 2.2(c) above, if any Prospective Transferee or Transferees
refuse(s) to purchase securities subject to the Right of Co-Sale from any Participating Investor or Investors or upon the failure
to negotiate in good faith a Purchase and Sale Agreement reasonably satisfactory to the Participating Investors, no Key Holder
may sell any Transfer Stock to such Prospective Transferee or Transferees unless and until, simultaneously with such sale, such
Key Holder purchases all securities subject to the Right of Co-Sale from such Participating Investor or Investors on the same
terms and conditions (including the proposed purchase price) as set forth in the Proposed Transfer Notice and as provided in Subsection
2.2(d)(i); provided, however, if such sale constitutes a Change of Control, the portion of the aggregate
consideration paid by the selling Key Holder to such Participating Investor or Investors shall be made in accordance with the
first sentence of Subsection 2.2(d)(ii). In connection with such purchase by the selling Key Holder, such Participating
Investor or Investors shall deliver to the selling Key Holder any stock certificate or certificates, properly endorsed for transfer,
representing the Capital Stock being purchased by the selling Key Holder (or request that the Company effect such transfer in
the name of the selling Key Holder). Any such shares transferred to the selling Key Holder will be transferred to the Prospective
Transferee against payment therefor in consummation of the sale of the Transfer Stock pursuant to the terms and conditions specified
in the Proposed Transfer Notice, and the selling Key Holder shall concurrently therewith remit or direct payment to each such
Participating Investor the portion of the aggregate consideration to which each such Participating Investor is entitled by reason
of its participation in such sale as provided in this Subsection 2.2(e).


 


(f)  Additional
Compliance. If any Proposed Key Holder Transfer is not consummated within sixty (60) days after receipt of the Proposed Transfer
Notice by the Company, the Key Holders proposing the Proposed Key Holder Transfer may not sell any Transfer Stock unless they
first comply in full with each provision of this Section 2. The exercise or election not to exercise any right by any Investor
hereunder shall not adversely affect its right to participate in any other sales of Transfer Stock subject to this Subsection
2.2.


 






    6


    


    

 


2.3
Effect of Failure to Comply.



 


(a)  Transfer
Void; Equitable Relief. Any Proposed Key Holder Transfer not made in compliance with the requirements of this Agreement shall
be null and void ab initio, shall not be recorded on the books of the Company or its transfer agent and shall not be recognized
by the Company. Each party hereto acknowledges and agrees that any breach of this Agreement would result in substantial harm to
the other parties hereto for which monetary damages alone could not adequately compensate. Therefore, the parties hereto unconditionally
and irrevocably agree that any non-breaching party hereto shall be entitled to seek protective orders, injunctive relief and other
remedies available at law or in equity (including, without limitation, seeking specific performance or the rescission of purchases,
sales and other transfers of Transfer Stock not made in strict compliance with this Agreement).


 


(b)  Violation
of First Refusal Right. If any Key Holder becomes obligated to sell any Transfer Stock to the Company or any Investor under
this Agreement and fails to deliver such Transfer Stock in accordance with the terms of this Agreement, the Company and/or such
Investor may, at its option, in addition to all other remedies it may have, send to such Key Holder the purchase price for such
Transfer Stock as is herein specified and transfer to the name of the Company or such Investor (or request that the Company effect
such transfer in the name of an Investor) on the Company’s books any certificates, instruments, or book entry representing
the Transfer Stock to be sold.


 


(c)  Violation
of Co-Sale Right. If any Key Holder purports to sell any Transfer Stock in contravention of the Right of Co-Sale (a “Prohibited
Transfer”), each Participating Investor who desires to exercise its Right of Co-Sale under Subsection 2.2 may,
in addition to such remedies as may be available by law, in equity or hereunder, require such Key Holder to purchase from such
Participating Investor the type and number of shares of Capital Stock that such Participating Investor would have been entitled
to sell to the Prospective Transferee had the Prohibited Transfer been effected in compliance with the terms of Subsection
2.2. The sale will be made on the same terms, including, without limitation, as provided in Subsection 2.2(d)(i) and
the first sentence of Subsection 2.2(d)(ii), as applicable, and subject to the same conditions as would have applied had
the Key Holder not made the Prohibited Transfer, except that the sale (including, without limitation, the delivery of the purchase
price) must be made within ninety (90) days after the Participating Investor learns of the Prohibited Transfer, as opposed to
the timeframe proscribed in Subsection 2.2. Such Key Holder shall also reimburse each Participating Investor for any and
all reasonable and documented out-of-pocket fees and expenses, including reasonable legal fees and expenses, incurred pursuant
to the exercise or the attempted exercise of the Participating Investor’s rights under Subsection 2.2.


 






    7


    


    

 


3.
Exempt Transfers.



 


3.1  Exempted
Transfers. Notwithstanding the foregoing or anything to the contrary herein, the provisions of Subsections 2.1 and
2.2 shall not apply (a) to a repurchase of Transfer Stock from a Key Holder by the Company at a price no greater than that
originally paid by such Key Holder for such Transfer Stock and pursuant to an agreement containing vesting and/or repurchase provisions
approved by a majority of the Board of Directors, (b) in the case of a Key Holder that is a natural person, upon a transfer of
Transfer Stock by such Key Holder made for bona fide estate planning purposes, either during his or her lifetime or on death by
will or intestacy to his or her spouse, child (natural or adopted), or any other direct lineal descendant of such Key Holder (or
his or her spouse) (all of the foregoing collectively referred to as “family members”), or any other relative approved
by the Board of Directors, or any custodian or trustee of any trust, partnership or limited liability company for the benefit
of, or the ownership interests of which are owned wholly by such Key Holder or any such family members, or (c) upon a transfer
to a charitable institution for philanthropic purposes; provided that in the case of clause(s) (b), (c), or (d), the Key
Holder shall deliver prior written notice to the Investors of such pledge, gift or transfer and such shares of Transfer Stock
shall at all times remain subject to the terms and restrictions set forth in this Agreement and such transferee shall, as a condition
to such Transfer, deliver a counterpart signature page to this Agreement as confirmation that such transferee shall be bound by
all the terms and conditions of this Agreement as a Key Holder (but only with respect to the securities so transferred to the
transferee), including the obligations of a Key Holder with respect to Proposed Key Holder Transfers of such Transfer Stock pursuant
to Section 2; and provided further in the case of any transfer pursuant to clauses (b), (c) or (d) above, that such
transfer is made pursuant to a transaction in which there is no consideration actually paid for such transfer.


 


3.2  Exempted
Offerings. Notwithstanding the foregoing or anything to the contrary herein, the provisions of Section 2 shall not
apply to the sale of any Transfer Stock (a) to the public in an offering pursuant to an effective registration statement under
the Securities Act of 1933, as amended (a “Public Offering”); or (b) pursuant to a Deemed Liquidation Event
(as defined in the Restated Certificate).


 


3.3  Prohibited
Transferees. Notwithstanding the foregoing, no Key Holder shall transfer any Transfer Stock to (a) any entity which, in the
determination of the Board of Directors, directly or indirectly competes with the Company; or (b) any customer, distributor or
supplier of the Company, if the Board of Directors should determine that such transfer would result in such customer, distributor
or supplier receiving information that would place the Company at a competitive disadvantage with respect to such customer, distributor
or supplier.


 


4. Legend.
Each certificate, instrument, or book entry representing shares of Transfer Stock held by the Key Holders or issued to any permitted
transferee in connection with a transfer permitted by Subsection 3.1 hereof shall be notated with the following legend:


 


THE SALE, PLEDGE, HYPOTHECATION, OR
TRANSFER OF THE SECURITIES REPRESENTED HEREBY IS SUBJECT TO, AND IN CERTAIN CASES PROHIBITED BY, THE TERMS AND CONDITIONS OF A
CERTAIN RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT BY AND AMONG THE STOCKHOLDER, THE CORPORATION AND CERTAIN OTHER HOLDERS OF
STOCK OF THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.


 


Each Key Holder agrees that the Company may instruct its transfer
agent to impose transfer restrictions on the shares notated with the legend referred to in this Section 4 above to enforce
the provisions of this Agreement, and the Company agrees to promptly do so. The legend shall be removed upon termination of this
Agreement at the request of the holder.


 






    8


    


    

 


5.
Lock-Up.



 


5.1  Agreement
to Lock-Up. Each Key Holder hereby agrees that it will not, without the prior written consent of the managing underwriter,
during the period commencing on the date of the final prospectus relating to the Company’s initial public offering resulting
in gross proceeds in excess of $100,000,000 (the “IPO”) and ending on the date specified by the Company and
the managing underwriter (such period not to exceed one hundred eighty (l80) days), or such other period as may be requested by
the Company or an underwriter to accommodate regulatory restrictions on (1) the publication or other distribution of research
reports; and (2) analyst recommendations and opinions, including, but not limited to, the restrictions contained in applicable
FINRA rules, or any successor provisions or amendments thereto), (a) lend, offer, pledge, sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise
transfer or dispose of, directly or indirectly, any shares of Capital Stock held immediately prior to the effectiveness of the
registration statement for the IPO; or (b) enter into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of the Capital Stock, whether any such transaction described in clause (a)
or (b) above is to be settled by delivery of Capital Stock or other securities, in cash or otherwise. The foregoing provisions
of this Section 5 shall not apply to the sale of any shares to an underwriter pursuant to an underwriting agreement, and
shall only be applicable to the Key Holders if all officers, directors and holders of more than one percent (1%) of the outstanding
Common Stock (after giving effect to the conversion into Common Stock of all outstanding Series A Preferred Stock) enter into
similar agreements. The underwriters in connection with the IPO are intended third-party beneficiaries of this Section 5 and
shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. Each Key Holder
further agrees to execute such agreements as may be reasonably requested by the underwriters in the IPO that are consistent with
this Section 5 or that are necessary to give further effect thereto.


 


5.2  Stop Transfer
Instructions. In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions with respect to
the shares of Capital Stock of each Key Holder (and transferees and assignees thereof) until the end of such restricted period.


 


6.
Miscellaneous.



 


6.1  Term.
This Agreement shall automatically terminate upon the earlier of (a) immediately prior to the consummation of the Company’s
IPO; and (b) the consummation of a Deemed Liquidation Event (as defined in the Restated Certificate).


 


6.2  Stock Split.
All references to numbers of shares in this Agreement shall be appropriately adjusted to reflect any stock dividend, split, combination
or other recapitalization affecting the Capital Stock occurring after the date of this Agreement.


 






    9


    


    

 


6.3  Ownership.
Each Key Holder represents and warrants that such Key Holder is the sole legal and beneficial owner of the shares of Transfer
Stock subject to this Agreement and that no other person or entity has any interest in such shares (other than a community property
interest as to which the holder thereof has acknowledged and agreed in writing to the restrictions and obligations hereunder).


 


6.4  Dispute
Resolution. The parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of Delaware
and to the jurisdiction of the United States District Court for the District of Delaware for the purpose of any suit, action or
other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising
out of or based upon this Agreement except in the state courts of Delaware or the United States District Court for the District
of Delaware, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action
or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is
exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the
venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in
or by such court.


 


WAIVER OF JURY TRIAL: EACH PARTY HEREBY
WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE OTHER TRANSACTION
DOCUMENTS, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING
OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS.
EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND
THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.


 


6.5
Notices.



 


(a)  All notices
and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon
the earlier of actual receipt or (a) personal delivery to the party to be notified, (b) when sent, if sent by electronic mail
or facsimile during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s
next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage
prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying
next business day delivery, with written verification of receipt. All communications shall be sent to the respective parties at
their address as set forth on Schedule A or Schedule B hereof, as the case may be, or to such email address, facsimile
number or address as subsequently modified by written notice given in accordance with this Section 6.5. If notice is given
to the Company, it shall be sent to GI Dynamics, Inc., 320 Congress Avenue, Floor 3, Boston, MA 02205, Attention: Chief
Executive Officer; and a copy (which shall not constitute notice) shall also be sent to Mitchell Silberberg & Knupp, LLP,
437 Madison Avenue, 25th Floor, New York, NY 10022, Attention: Blake Baron, Esq., email: bjb@msk.com; and if notice is given to
the Investors, a copy shall also be given to Wilson Sonsini Goodrich & Rosati PC, 650 Page Mill Road, Palo Alto, CA 94304,
Attention: Elton Satusky, Esq., email: esatusky@wsgr.com.


 






    10


    


    


 


(b)  Consent
to Electronic Notice. Each Investor and Key Holder consents to the delivery of any stockholder notice pursuant to the Delaware
General Corporation Law (the “DGCL”), as amended or superseded from time to time, by electronic transmission
pursuant to Section 232 of the DGCL (or any successor thereto) at the electronic mail address or the facsimile number set forth
below such Investor’s or Key Holder’s name on the Schedules hereto, as updated from time to time by notice to the
Company, or as on the books of the Company. Each Investor and Key Holder agrees to promptly notify the Company of any change in
its electronic mail address, and that failure to do so shall not affect the foregoing.


 


6.6  Entire
Agreement. This Agreement (including, the Exhibits and Schedules hereto) constitutes the full and entire understanding and
agreement between the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the
subject matter hereof existing between the parties are expressly canceled.


 


6.7  Delays
or Omissions. No delay or omission to exercise any right, power or remedy accruing to any party under this Agreement, upon
any breach or default of any other party under this Agreement, shall impair any such right, power or remedy of such non-breaching
or non- defaulting party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or
of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind
or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of
any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set
forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative
and not alternative.


 


6.8  Amendment;
Waiver and Termination. This Agreement may be amended, modified or terminated (other than pursuant to Section 6.1 above)
and the observance of any term hereof may be waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument executed by (a) the Company, (b) the Key Holders holding a majority of the shares
of Transfer Stock then held by all of the Key Holders provided that such consent shall not be required if the Key Holders
do not then own shares of Capital Stock representing at least 1% of the outstanding Capital Stock of the Company, and (c) the
holders of a majority of the shares of Common Stock issued or issuable upon conversion of the then outstanding shares of Series
A Preferred Stock held by the Investors (voting as a single separate class and on an as-converted basis). Any amendment, modification,
termination or waiver so effected shall be binding upon the Company, the Investors, the Key Holders and all of their respective
successors and permitted assigns whether or not such party, assignee or other shareholder entered into or approved such amendment,
modification, termination or waiver. The Company shall give prompt written notice of any amendment, modification or termination
hereof or waiver hereunder to any party hereto that did not consent in writing to such amendment, modification, termination or
waiver. No waivers of or exceptions to any term, condition or provision of this Agreement, in any one or more instances, shall
be deemed to be, or construed as, a further or continuing waiver of any such term, condition or provision.


 






    11


    


    

 


6.9
Assignment of Rights.



 


(a)  The terms
and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns
of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto
or their respective successors and permitted assigns any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.


 


(b)  Any successor
or permitted assignee of any Key Holder, including any Prospective Transferee who purchases shares of Transfer Stock in accordance
with the terms hereof, shall deliver to the Company and the Investors, as a condition to any transfer or assignment, a counterpart
signature page hereto pursuant to which such successor or permitted assignee shall confirm their agreement to be subject to and
bound by all of the provisions set forth in this Agreement that were applicable to the predecessor or assignor of such successor
or permitted assignee.


 


(c)  The rights
of the Investors hereunder are not assignable without the Company’s written consent (which shall not be unreasonably withheld,
delayed or conditioned), except (i) by an Investor to any Affiliate, or (ii) to an assignee or transferee who acquires at least
500,000 shares of Capital Stock (as adjusted for any stock combination, stock split, stock dividend, recapitalization or other
similar transaction), it being acknowledged and agreed that any such assignment, including an assignment contemplated by the preceding
clauses (i) or (ii) shall be subject to and conditioned upon any such assignee’s delivery to the Company and the other Investors
of a counterpart signature page hereto pursuant to which such assignee shall confirm their agreement to be subject to and bound
by all of the provisions set forth in this Agreement that were applicable to the assignor of such assignee.


 


(d)  Except in
connection with an assignment by the Company by operation of law to the acquirer of the Company, the rights and obligations of
the Company hereunder may not be assigned under any circumstances.


 


6.10 
Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability
of any other provision.


 


6.11
Additional Stockholders.



 


(a)  Additional
Investors. Notwithstanding anything to the contrary contained herein, if the Company issues additional shares of the Company’s
Series A Preferred Stock after the date hereof, any purchaser of such shares of Series A Preferred Stock may become a party to
this Agreement by executing and delivering an additional counterpart signature page to this Agreement and thereafter shall be
deemed an “Investor” for all purposes hereunder.


 






    12


    


    

 


(b)  Additional
Key Holders. Notwithstanding anything to the contrary contained herein, if the Company issues additional shares of Common
Stock to a purchaser after the date hereof, which shares (together with any other shares of Common Stock held by such purchaser)
would constitute with respect to such purchaser more than one percent (1%) of the Company’s then outstanding shares of Common
Stock, then such purchaser may become a party to this Agreement by executing and delivering an additional counterpart signature
page to this Agreement and thereafter shall be deemed a “Key Holder” for all purposes hereunder.


 


(c)  The Company
shall use its commercially reasonable efforts to obtain any additional counterpart signature pages in the case of clauses (a)
and (b) above.


 


6.12  Governing
Law. This Agreement shall be governed by the internal law of the State of Delaware, without regard to conflict of law principles
that would result in the application of any law other than the law of the State of Delaware.


 


6.13  Titles
and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement.


 


6.14  Counterparts.
This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any
electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method
and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.


 


6.15  Aggregation
of Stock. All shares of Capital Stock held or acquired by Affiliated entities or persons shall be aggregated together for
the purpose of determining the availability of any rights under this Agreement and such Affiliated persons may apportion such
rights as among themselves in any manner they deem appropriate.


 


6.16  Specific
Performance. In addition to any and all other remedies that may be available at law in the event of any breach of this Agreement,
each Investor shall be entitled to specific performance of the agreements and obligations of the Company and the Key Holders hereunder
and to such other injunction or other equitable relief as may be granted by a court of competent jurisdiction.


 


6.17  Consent
of Spouse. If any Key Holder is married on the date of this Agreement, such Key Holder’s spouse shall execute and deliver
to the Company a Consent of Spouse in the form of Exhibit A hereto (“Consent of Spouse”), effective
on the date hereof. Notwithstanding the execution and delivery thereof, such consent shall not be deemed to confer or convey to
the spouse any rights in such Key Holder’s shares of Transfer Stock that do not otherwise exist by operation of law or the
agreement of the parties. If any Key Holder should marry or remarry subsequent to the date of this Agreement, such Key Holder
shall within thirty (30) days thereafter obtain his/her new spouse’s acknowledgement of and consent to the existence and
binding effect of all restrictions contained in this Agreement by causing such spouse to execute and deliver a Consent of Spouse
acknowledging the restrictions and obligations contained in this Agreement and agreeing and consenting to the same.


 


[Remainder of Page Intentionally Left Blank]


 






    13


    


    

 



IN WITNESS WHEREOF, the parties
have executed this Right of First Refusal and Co- Sale Agreement as of the date first written above.


 


	 	GI DYNAMICS, INC.
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 	 
	 	KEY HOLDERS:
	 	 	 
	 	Signature: 	 
	 	Name:	 
	 	 	 
	 	INVESTORS:
	 	 	 
	 	CRYSTAL AMBER FUND LIMITED
	 	 	 
	 	By:	 
	 	Name: 	Chris Waldron
	 	Title: 	Director



 


Signature
Page to Right of First Refusal and Co-sale Agreement


 






     


    


    

 






SCHEDULE A


 


INVESTORS


 


	Name
    and Address	 	Number
    of Shares Held
	 	 	 
	Crystal Amber Fund Limited	 	 
	PO
        Box 286, Floor 2

        Trafalgar
        Court

        St.Peter
        Port
	 	 
	GY1 4LY	 	 
	Guernsey

        jm@crystalamber.com

        Attention:
        Juan Morera
	 	 



 






     


    


    

 


SCHEDULE B


 


KEY HOLDERS


 


 


	Name
    and Address	Number
    of Shares Held


 







     


    


    

 


EXHIBIT A 

CONSENT OF SPOUSE


 


I, [ ],
spouse of [ ], acknowledge that I have read the Right of First Refusal and Co-Sale Agreement, dated as of [ ,] 2020,
to which this Consent is attached as Exhibit A (the “Agreement”), and that I know the contents of the
Agreement. I am aware that the Agreement contains provisions regarding certain rights to certain other holders of Capital Stock
of the Company upon a Proposed Key Holder Transfer of shares of Transfer Stock of the Company which my spouse may own including
any interest I might have therein.


 


I hereby agree that
my interest, if any, in any shares of Transfer Stock of the Company subject to the Agreement shall be irrevocably bound by the
Agreement and further understand and agree that any community property interest I may have in such shares of Transfer Stock of
the Company shall be similarly bound by the Agreement.


 


I am aware that the
legal, financial and related matters contained in the Agreement are complex and that I am free to seek independent professional
guidance or counsel with respect to this Consent. I have either sought such guidance or counsel or determined after reviewing
the Agreement carefully that I will waive such right.


 


Dated as of the [_________ ] day of [________ ,
____].


 


	 	 
	 	 
	 	Signature
	 	 
	 	 
	 	 
	 	Print Name



 






     


    


    



 


 


 


 


 


 


 


 


 


 


 


EXHIBIT G


 


 


 


 


 


 


 


FORM OF VOTING
AGREEMENT


 


 


 


 


 


 


 


 


 


 


 


 


 






     


    


    

 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


GI DYNAMICS, INC.


 


VOTING AGREEMENT


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 







     


    


    

 


TABLE OF CONTENTS


 


	 	 	 	Page
	1.	Voting Provisions Regarding the
    Board	1
	 	1.1 	Size of the Board	1
	 	1.2	Board Composition	2
	 	1.3	Failure to Designate a Board Member	2
	 	1.4	Removal of Board Members	3
	 	1.5	No Liability for Election of Recommended Directors	3
	 	1.6	No “Bad Actor” Designees	3
	2.	Vote to Increase Authorized Common
    Stock	3
	3.	Drag-Along Right	3
	 	3.1	Definitions	3
	 	3.2	Actions to be Taken	4
	 	3.3	Conditions	5
	 	3.4	Restrictions on Sales of Control of the Company	7
	4.	Remedies	7
	 	4.1	Covenants of the Company	7
	 	4.2	[Irrevocable Proxy and Power of Attorney	8
	 	4.3	Specific Enforcement	8
	 	4.4	Remedies Cumulative	8
	5.	“Bad Actor” Matters	8
	 	5.1	Definitions	8
	 	5.2	Representations	8
	 	5.3	Covenants	9
	6.	Term		9
	7.	Miscellaneous	10
	 	7.1	Additional Parties	10
	 	7.2	Transfers	10
	 	7.3	Successors and Assigns	10
	 	7.4	Governing Law	10
	 	7.5	Counterparts	10
	 	7.6	Titles and Subtitles	11
	 	7.7	Notices	11
	 	7.8	Consent Required to Amend, Modify, Terminate
    or Waive	11
	 	7.9	Delays or Omissions	12
	 	7.10	Severability	12
	 	7.11	Entire Agreement	12
	 	7.12	Share Certificate Legend	13
	 	7.13	Stock Splits, Stock Dividends, etc	13
	 	7.14	Manner of Voting	13
	 	7.15	Further Assurances	13
	 	7.16	Dispute Resolution	14
	 	7.17	Costs of Enforcement	14
	 	7.18	Aggregation of Stock	14
	 	7.19	Spousal Consent	14



 


	Schedule A  	-	Investors	 
	Schedule B 	- 	Key Holders	 
	Exhibit A 	- 	Adoption Agreement	 
	Exhibit B 	- 	Consent of Spouse	 







 






    i 


    


    


 


VOTING AGREEMENT


 


THIS
VOTING AGREEMENT (this “Agreement”), is made and entered into as of this [●] day of [●], 2020,
by and among GI Dynamics, Inc., a Delaware corporation (the “Company”), each holder of Series A Preferred Stock,
$0.01 par value per share, of the Company (“Series A Preferred Stock”) listed on Schedule A (together
with any subsequent investors, or transferees, who become parties hereto as “Investors” pursuant to Subsections
7.1(a) or 7.2 below, the “Investors”), and those certain holders of common stock, $0.01 par value per share,
of the Company (“Common Stock”) listed on Schedule B (together with any subsequent stockholders, or
any transferees, who become parties hereto as “Key Holders” pursuant to Subsections 7.1(b) or 7.2 below, the
“Key Holders,” and, collectively with the Investors, the “Stockholders”).


 


RECITALS


 


A. The
Company and the Investors are parties to that certain Series A Preferred Stock Purchase Agreement, dated as of [●] [●],
2020 (the “Purchase Agreement”), which provides for the sale of shares of Series A Preferred Stock, and in
connection with that agreement the parties desire to provide the Investors with the right, among other rights, to designate the
election of certain members of the board of directors of the Company (the “Board”) in accordance with the terms
of this Agreement.


 


B. 
The parties also desire to enter into this Agreement to set forth their agreements and understandings with respect to how shares
of the capital stock of the Company held by them will be voted on, or tendered in connection with, an acquisition of the Company
or an increase in the number of shares of Common Stock required to provide for the conversion of Series A Preferred Stock.


 


NOW,
THEREFORE, the parties agree as follows:


 


1. 
Voting Provisions Regarding the Board.


 


1.1 
Board Composition. For purposes of this Agreement, the term “Shares” shall mean and include any securities
of the Company that the holders of which are entitled to vote for members of the Board, including without limitation, all shares
of Common Stock and Series A Preferred Stock, by whatever name called, now owned or subsequently acquired by a Stockholder, however
acquired, whether through stock splits, stock dividends, reclassifications, recapitalizations, similar events or otherwise. Each
Stockholder agrees to vote, or cause to be voted, all Shares owned by such Stockholder, or over which such Stockholder has voting
control, from time to time and at all times, in whatever manner as shall be necessary to ensure that at each annual or special
meeting of stockholders at which an election of directors is held or pursuant to any written consent of the stockholders, subject
to Section 5, the following persons shall be elected to the Board:


 


(a) 
One person designated from time to time by Crystal Amber Fund Limited (“Crystal Amber”), for so long as such
Stockholder and its Affiliates (as defined below) continue to own beneficially at 5,000,000 shares of Common Stock (including
shares of Common Stock issued or issuable upon conversion of Series A Preferred Stock), which number is subject to appropriate
adjustment for any stock splits, stock dividends, combinations, recapitalizations and the like), which individual shall initially
be Mark Lerdal;


 






     


    


    


 


(b) 
One person, who is not otherwise involved in the management of Crystal Amber, designated from time to time by Crystal Amber, for
so long as such Stockholder and its Affiliates (as defined below) continue to own beneficially at least 5,000,000 shares of Common
Stock (including shares of Common Stock issued or issuable upon conversion of Series A Preferred Stock), which number is subject
to appropriate adjustment for any stock splits, stock dividends, combinations, recapitalizations and the like).1


 


To
the extent that any of the clauses (a) and (b) above shall not be applicable, any member of the Board who would otherwise have
been designated in accordance with the terms thereof shall instead be voted upon by all the stockholders of the Company entitled
to vote thereon in accordance with, and pursuant to, the Second Amended and Restated Certificate of Incorporation of the Company
(the “Restated Certificate”).


 


For
purposes of this Agreement, an individual, firm, corporation, partnership, association, limited liability company, trust or any
other entity (collectively, a “Person”) shall be deemed an “Affiliate” of another Person
who, directly or indirectly, controls, is controlled by or is under common control with such Person, including, without limitation,
any general partner, managing member, officer, director or trustee of such Person, or any venture capital fund or registered investment
company now or hereafter existing that is controlled by one or more general partners, managing members or investment advisers
of, or shares the same management company or investment adviser with, such Person.


 


1.2 
Failure to Designate a Board Member. In the absence of any designation from the Persons or groups with the right to designate
a director as specified above, the director previously designated by them and then serving shall be reelected if still eligible
and willing to serve as provided herein and otherwise, such Board seat shall remain vacant.


 


1.3 
Removal of Board Members. Each Stockholder also agrees to vote, or cause to be voted, all Shares owned by such Stockholder,
or over which such Stockholder has voting control, from time to time and at all times, in whatever manner as shall be necessary
to ensure that:


 


(a) 
no director elected pursuant to Subsections 1.2 or 1.3 of this Agreement may be removed from office unless (i) such
removal is directed or approved by the affirmative vote of the Person(s) entitled under Subsection 1.2 to designate that
director; or (ii) the Person(s) originally entitled to designate or approve such director or occupy such Board seat pursuant to
Subsection 1.2 is no longer so entitled to designate or approve such director or occupy such Board seat;


 


(b) 
any vacancies created by the resignation, removal or death of a director elected pursuant to Subsections 1.2 or 1.3
shall be filled pursuant to the provisions of this Section 1; and


 





 






		1	NTD:
                                         Bylaws to address quorum-related issues arising in the event there is only one director
                                         on the Board.


 






    2 


    


    

 



(c) 
upon the request of any party entitled to designate a director as provided in Subsection 1.2(a) or 1.2(b) to remove such director,
such director shall be removed.


 


All
Stockholders agree to execute any written consents required to perform the obligations of this Section 1, and the Company
agrees at the request of any Person or group entitled to designate directors to call a special meeting of stockholders for the
purpose of electing directors.


 


1.4 
No Liability for Election of Recommended Directors. No Stockholder, nor any Affiliate of any Stockholder, shall have any
liability as a result of designating a person for election as a director for any act or omission by such designated person in
his or her capacity as a director of the Company, nor shall any Stockholder have any liability as a result of voting for any such
designee in accordance with the provisions of this Agreement.


 


1.5 
No “Bad Actor” Designees. Each Person with the right to designate or participate in the designation of a director
as specified above hereby represents and warrants to the Company that, to such Person’s knowledge, none of the “bad
actor” disqualifying events described in Rule 506(d)(1)(i)-(viii) under the Securities Act of 1933, as amended (the “Securities
Act”) (each, a “Disqualification Event”), is applicable to such Person’s initial designee named
above except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Any
director designee to whom any Disqualification Event is applicable, except for a Disqualification Event to which Rule 506(d)(2)(ii)
or (iii) or (d)(3) is applicable, is hereinafter referred to as a “Disqualified Designee.” Each Person with
the right to designate or participate in the designation of a director as specified above hereby covenants and agrees (A) not
to designate or participate in the designation of any director designee who, to such Person’s knowledge, is a Disqualified
Designee and (B) that in the event such Person becomes aware that any individual previously designated by any such Person is or
has become a Disqualified Designee, such Person shall as promptly as practicable take such actions as are necessary to remove
such Disqualified Designee from the Board and designate a replacement designee who is not a Disqualified Designee.


 


2.
Vote to Increase Authorized Common Stock. Each Stockholder agrees to vote or cause to be voted all Shares owned by such
Stockholder, or over which such Stockholder has voting control, from time to time and at all times, in whatever manner as shall
be necessary to increase the number of authorized shares of Common Stock from time to time to ensure that there will be sufficient
shares of Common Stock available for conversion of all of the shares of Series A Preferred Stock outstanding at any given time.


 


3.
Drag-Along Right.



 


3.1 
Definitions. A “Sale of the Company” shall mean either: (a) a transaction or series of related transactions
in which a Person, or a group of related Persons acquires from stockholders of the Company, shares representing more than fifty
percent (50%) of the outstanding voting power of the Company (a “Stock Sale”) or (b) a transaction that qualifies
as a “Deemed Liquidation Event” as defined in the Restated Certificate.


 






    3 


    


    

 


3.2 
Actions to be Taken. In the event that (x) the Board and (y) the holders of more than fifty percent (50%) of the then outstanding
shares of Common Stock and Preferred Stock, voting together on an as-converted basis (the “Selling Holders”)
approve a Sale of the Company or a bona fide equity financing of the Company for capital raising purposes (a “bona
fide equity financing”) in writing, specifying that this Section 3 shall apply to such transaction, then,
subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, the Company and the Stockholders holding
at least one percent (1%) of the Company’s then outstanding shares of Common Stock, on an as-converted basis (as adjusted
for any stock combination, stock split, stock dividend, recapitalization or other similar transaction), hereby agree:


 


(a) 
if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder
otherwise exercises voting power, to vote (in person or by proxy or by action by written consent, as applicable) all Shares in
favor of, and adopt, such Sale or bona fide equity financing of the Company (together with any related amendment or restatement
to the Restated Certificate required to implement such Sale or bona fide equity financing of the Company) and to vote in
opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate
such Sale or bona fide equity financing of the Company;


 


(b) 
if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by
such Stockholder as is being sold by the Selling Holders to the Person to whom the Selling Holders propose to sell their Shares,
and, except as permitted in Subsection 3.3 below, on the same terms and conditions as the other stockholders of the Company;


 


(c) 
to execute and deliver all related documentation and take such other action in support of the Sale or bona fide equity
financing of the Company as shall reasonably be requested by the Company or the Selling Holders in order to carry out the terms
and provision of this Section 3, including, without limitation, executing and delivering instruments of conveyance and
transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated
voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free
and clear of impermissible liens, claims and encumbrances), and any similar or related documents;


 


(d) 
not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company
owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting
of such Shares, unless specifically requested to do so by the acquirer in connection with the Sale of the Company;


 


(e) 
to refrain from (i) exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect
to such Sale of the Company, or (ii) asserting any claim or commencing any suit (A) challenging the Sale of the Company or this
Agreement, or (B) alleging a breach of any fiduciary duty of the Selling Holders or any affiliate or associate thereof (including,
without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into
the Sale of the Company, or the consummation of the transactions contemplated thereby;


 






    4 


    


    

 



(f) if
the consideration to be paid in a Sale of the Company in exchange for the Shares pursuant to this Section 3 includes any securities
and due receipt thereof by any Stockholder would require under applicable law (i) the registration or qualification of such securities
or of any person as a broker or dealer or agent with respect to such securities; or (ii) the provision to any Stockholder of any
information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited
investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities
Act”), the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which
would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by
the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities
in exchange for the Shares; and


 


(g) 
in the event that the Selling Holders, in connection with such Sale of the Company, appoint a stockholder representative (the
“Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive
transaction agreements following consummation of such Sale of the Company, (i) to consent to (A) the appointment of such Stockholder
Representative, (B) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification
or similar obligations, and (C) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense
fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder
Representative’s services and duties in connection with such Sale of the Company and its related service as the representative
of the Stockholders, and (ii) not to assert any claim or commence any suit against the Stockholder Representative or any other
Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope
of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent
fraud, bad faith, gross negligence or willful misconduct.


 


3.3 
Conditions. Notwithstanding anything to the contrary set forth herein, a Stockholder will not be required to comply with
Subsection 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”), unless:


 


(a) 
any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations
and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to,
representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder
purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the
transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly
executed by the Stockholder and delivered to the acquirer and are enforceable (subject to customary limitations) against the Stockholder
in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into by the
Stockholder in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause
a breach or violation of the terms of any agreement to which the Stockholder is a party, or any law or judgment, order or decree
of any court or governmental agency that applies to the Stockholder;


 






    5 


    


    

 


(b) 
such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant
in connection with the Proposed  Sale (including without limitation any covenant not to compete or covenant not to solicit
customers, employees or suppliers of any party to the Proposed Sale);


 


(c) 
such Stockholder and its affiliates are not required to amend, extend or terminate any contractual or other relationship with
the Company, the acquirer or their respective affiliates, except that the Stockholder may be required to agree to terminate the
investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company;


 


(d) 
the Stockholder is not liable for the breach of any representation, warranty or covenant made by any other Person in connection
with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover
breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations,
warranties and covenants provided by all stockholders);


 


(e) 
liability shall be limited to such Stockholder's applicable share (determined based on the respective proceeds payable to each
Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated
aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration
otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by
such Stockholder, the liability for which need not be limited as to such Stockholder;


 


(f) 
upon the consummation of the Proposed Sale (i) each holder of each class or series of the capital stock of the Company will receive
the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares
of such same class or series of stock, and if any holders of any capital stock of the Company are given a choice as to the form
of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option,
(ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred
Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive
the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common
Stock, and (iv) unless waived pursuant to the terms of the Restated Certificate and as may be required by law, the aggregate consideration
receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and
Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred
Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed
Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately
prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection
3.3(f), if the consideration to be paid in exchange for the Shares, pursuant to this Subsection 3.3(f) includes any
securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification
of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any
Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely
to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to
be paid to any such Stockholder in lieu thereof, against surrender of the Shares, which would have otherwise been sold by such
Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such
Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares;


 






    6 


    


    

 


(g) 
subject to clause (g) above, requiring the same form of consideration to be available to the holders of any single class or series
of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration
to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; provided,
however, that nothing in this Subsection 3.3(g) shall entitle any holder to receive any form of consideration that
such holder would be ineligible to receive as a result of such holder’s failure to satisfy any condition, requirement or
limitation that is generally applicable to the Company’s stockholders.


 


3.4 
Restrictions on Sales of Control of the Company. No Stockholder shall be a party to any Stock Sale unless (a) all holders
of Preferred Stock are allowed to participate in such transaction(s) and (b) the consideration received pursuant to such transaction
is allocated among the parties thereto in the manner specified in the Company’s Restated Certificate in effect immediately
prior to the Stock Sale, unless the holders of at least the requisite percentage required to waive such treatment of the transaction(s)
pursuant to the terms of the Restated Certificate, elect to allocate the consideration differently by written notice given to
the Company at least ten (10) days prior to the effective date of any such transaction or series of related transactions.


 


4.
Remedies.



 


4.1 
Covenants of the Company. The Company agrees to use its best efforts, within the requirements of applicable law, to ensure
that the rights granted under this Agreement are effective and that the parties enjoy the benefits of this Agreement. Such actions
include, without limitation, the use of the Company’s best efforts to cause the nomination and election of the directors
as provided in this Agreement.


 






    7 


    


    

 


4.2 
Irrevocable Proxy and Power of Attorney. Each party to this Agreement hereby constitutes and appoints as the proxies of
the party and hereby grants a power of attorney to the Chief Executive Officer of the Company, and a designee of the Selling Holders,
and each of them, with full power of substitution, with respect to the matters set forth herein, including, without limitation,
votes to increase authorized shares pursuant to Section 2 hereof and votes regarding any Sale of the Company pursuant to
Section 3 hereof, and hereby authorizes each of them to represent and vote, if and only if the party (a) fails to vote,
or (b) attempts to vote (whether by proxy, in person or by written consent), in a manner which is inconsistent with the terms
of this Agreement, all of such party’s Shares in favor of the election of persons as members of the Board determined pursuant
to and in accordance with the terms and provisions of this Agreement or the increase of authorized shares or approval of any Sale
of the Company pursuant to and in accordance with the terms and provisions of Sections 2 and 3, respectively, of
this Agreement or to take any action reasonably necessary to effect Sections 2 and 3, respectively, of this Agreement.
The power of attorney granted hereunder shall authorize the Chief Executive Officer of the Company to execute and deliver the
documentation referred to in Subsection 3.2(c) on behalf of any party failing to do so within five (5) business days of
a request by the Company. Each of the proxy and power of attorney granted pursuant to this Subsection 4.2 is given in consideration
of the agreements and covenants of the Company and the parties in connection with the transactions contemplated by this Agreement
and, as such, each is coupled with an interest and shall be irrevocable unless and until this Agreement terminates or expires
pursuant to Subsection 5.1 hereof. Each party hereto hereby revokes any and all previous proxies or powers of attorney
with respect to the Shares and shall not hereafter, unless and until this Agreement terminates or expires pursuant to Subsection
5.1 hereof, purport to grant any other proxy or power of attorney with respect to any of the Shares, deposit any of the Shares
into a voting trust or enter into any agreement (other than this Agreement), arrangement or understanding with any person, directly
or indirectly, to vote, grant any proxy or give instructions with respect to the voting of any of the Shares, in each case, with
respect to any of the matters set forth herein.


 


4.3 
Specific Enforcement. Each party acknowledges and agrees that each party hereto will be irreparably damaged in the event
any of the provisions of this Agreement are not performed by the parties in accordance with their specific terms or are otherwise
breached. Accordingly, it is agreed that each of the Company and the Stockholders shall be entitled to an injunction to prevent
breaches of this Agreement, and to specific enforcement of this Agreement and its terms and provisions in any action instituted
in any court of the United States or any state having subject matter jurisdiction.


 


4.4 
Remedies Cumulative. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative
and not alternative.


 


5.
“Bad Actor” Matters.



 


5.1 
Definitions. For purposes of this Agreement:


 


(a) 
“Company Covered Person” means, with respect to the Company as an “issuer” for purposes of Rule
506 promulgated under the Securities Act, any Person listed in the first paragraph of Rule 506(d)(1).


 


(b) 
“Disqualified Designee” means any director designee to whom any Disqualification Event is applicable, except
for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable.


 


(c) 
“Disqualification Event” means a “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii)
promulgated under the Securities Act.


 


(d) 
“Rule 506(d) Related Party” means, with respect to any Person, any other Person that is a beneficial owner
of such first Person’s securities for purposes of Rule 506(d) under the Securities Act.


 


5.2
Representations.



 


(a) 
Each Person with the right to designate or participate in the designation of a director pursuant to this Agreement hereby represents
that (i) such Person has exercised reasonable care to determine whether any Disqualification Event is applicable to such Person,
any director designee designated by such Person pursuant to this Agreement or any of such Person’s Rule 506(d) Related Parties,
except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable and (ii) no
Disqualification Event is applicable to such Person, any Board member designated by such Person pursuant to this Agreement or
any of such Person’s Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii)
or (iii) or (d)(3) is applicable. Notwithstanding anything to the contrary in this Agreement, each Investor makes no representation
regarding any Person that may be deemed to be a beneficial owner of the Company’s voting equity securities held by such
Investor solely by virtue of that Person being or becoming a party to (x) this Agreement, as may be subsequently amended, or (y)
any other contract or written agreement to which the Company and such Investor are parties regarding (1) the voting power, which
includes the power to vote or to direct the voting of, such security; and/or (2) the investment power, which includes the power
to dispose, or to direct the disposition of, such security.


 






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(b) 
The Company hereby represents and warrants to the Investors that no Disqualification Event is applicable to the Company or, to
the Company’s knowledge, any Company Covered Person, except for a Disqualification Event as to which Rule 506(d)(2)(ii–iv)
or (d)(3) is applicable.


 


5.3 
Covenants. Each Person with the right to designate or participate in the designation of a director pursuant to this Agreement
covenants and agrees (a) not to designate or participate in the designation of any director designee who, to such Person’s
knowledge, is a Disqualified Designee, (b) to exercise reasonable care to determine whether any director designee designated by
such person is a Disqualified Designee, (c) that in the event such Person becomes aware that any individual previously designated
by any such Person is or has become a Disqualified Designee, such Person shall as promptly as practicable take such actions as
are necessary to remove such Disqualified Designee from the Board and designate a replacement designee who is not a Disqualified
Designee, and (d) to notify the Company promptly in writing in the event a Disqualification Event becomes applicable to such Person
or any of its Rule 506(d) Related Parties, or, to such Person’s knowledge, to such Person’s initial designee named
in Section 1, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is
applicable.


 


6.
Term. This Agreement shall be effective as of the date hereof and shall continue in effect until and shall terminate upon
the earliest to occur of (a) the consummation of the Company’s first underwritten public offering of its Common Stock (other
than a registration statement relating either to the sale of securities to employees of the Company pursuant to its stock option,
stock purchase or similar plan or an SEC Rule 145 transaction); (b) the consummation of a Sale of the Company and distribution
of proceeds to or escrow for the benefit of the Stockholders in accordance with the Restated Certificate, provided that
the provisions of Section 3 hereof will continue after the closing of any Sale of the Company to the extent necessary to
enforce the provisions of Section 3 with respect to such Sale of the Company; (c) termination of this Agreement in accordance
with Subsection 7.8 below.


 






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7.
Miscellaneous.



 


7.1 
Additional Parties.


 


(a) 
Notwithstanding anything to the contrary contained herein, if the Company issues additional shares of Series A Preferred Stock
to a Person after the date hereof, such Person may become a party to this Agreement by executing and delivering a counterpart
signature page hereto agreeing to be bound by and subject to the terms of this Agreement as an Investor and Stockholder hereunder
and shall thereafter be deemed an Investor and Stockholder for all purposes under this Agreement.


 


(b) 
Notwithstanding anything to the contrary contained herein, in the event the Company issues additional shares of Common Stock to
a Person after the date hereof, following which such Person shall hold more than one percent (1%) of the then outstanding shares
of Common Stock, then such Person may become a party to this Agreement by executing and delivering a counterpart signature page
hereto agreeing to be bound by and subject to the terms of this Agreement as a Stockholder hereunder and shall thereafter be deemed
a Stockholder for all purposes under this Agreement.


 


(c) 
The Company shall use its commercially reasonable efforts to obtain any additional counterpart signature pages in the case of
clauses (a) and (b) above.


 


7.2 
Transfers. Each transferee or assignee of any Shares subject to this Agreement shall continue to be subject to the terms
hereof, and, as a condition precedent to the Company’s recognition of such transfer, each transferee or assignee shall agree
in writing to be subject to each of the terms of this Agreement by executing and delivering an Adoption Agreement substantially
in the form attached hereto as Exhibit A. Upon the execution and delivery of an Adoption Agreement by any transferee, such
transferee shall be deemed to be a party hereto as if such transferee were the transferor and such transferee’s signature
appeared on the signature pages of this Agreement and shall be deemed to be an Investor and Stockholder, or Key Holder and Stockholder,
as applicable. The Company shall not permit the transfer of the Shares subject to this Agreement on its books or issue a new certificate
representing any such Shares unless and until such transferee shall have complied with the terms of this Subsection 7.2.
Each certificate instrument, or book entry representing the Shares subject to this Agreement if issued on or after the date of
this Agreement shall be notated by the Company with the legend set forth in Subsection 7.12.


 


7.3 
Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities
under or by reason of this Agreement, except as expressly provided in this Agreement.


 


7.4 
Governing Law. This Agreement shall be governed by the internal law of the State of Delaware, without regard to conflict
of law principles that would result in the application of any law other than the law of the State of Delaware.


 


7.5 
Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic
mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or
other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid
and effective for all purposes.


 






    10 


    


    

 


7.6 Titles
and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement.


 


7.7
Notices.



 


(a) 
All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively
given upon the earlier of actual receipt or (i) personal delivery to the party to be notified, (ii) when sent, if sent by electronic
mail or facsimile during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s
next business day, (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage
prepaid, or (d) one (1) business day after the business day of deposit with a nationally recognized overnight courier, freight
prepaid, specifying next business day delivery, with written verification of receipt. All communications shall be sent to the
respective parties at their address as set forth on Schedule A or Schedule B hereto, or to such email address, facsimile
number or address as subsequently modified by written notice given in accordance with this Subsection 7.7. If notice is
given to the Company, a copy shall also be sent to Mitchell Silberberg & Knupp LLP, 437 Madison Avenue, 25th Floor, New York,
NY 10022, Attention: Blake Baron, Esq., email: bjb@msk.com; and if notice is given to the Stockholders, a copy shall also be given
to Wilson Sonsini Goodrich & Rosati, P.C., 650 Page Mill Road, Palo Alto, CA 94304, Attention: Elton Satusky, Esq., email:
esatusky@wsgr.com.


 


(b) 
Consent to Electronic Notice. Each Investor and Key Holder consents to the delivery of any stockholder notice pursuant
to the Delaware General Corporation Law (the “DGCL”), as amended or superseded from time to time, by electronic
transmission pursuant to Section 232 of the DGCL (or any successor thereto) at the electronic mail address or the facsimile number
set forth below such Investor’s or Key Holder’s name on the Schedules hereto, as updated from time to time by notice
to the Company, or as on the books of the Company. Each Investor and Key Holder agrees to promptly notify the Company of any change
in its electronic mail address, and that failure to do so shall not affect the foregoing.


 


7.8 
Consent Required to Amend, Modify, Terminate or Waive. This Agreement may be amended, modified or terminated (other than
pursuant to Section 6) and the observance of any term hereof may be waived (either generally or in a particular instance
and either retroactively or prospectively) only by a written instrument executed by (x) the Company; (y)  the Key Holders
holding a majority of the Shares then held by the Key Holders who are then providing services to the Company as officers, employees
or consultants, provided that such consent shall not be required if the Key Holders do not then own Shares representing
at least 10% of the outstanding capital stock of the Company; and (z) the holders of a majority of the shares of Common Stock
issued or issuable upon conversion of the shares of Preferred Stock held by the Investors (voting together as a single class).
Notwithstanding the foregoing:


 


(a) 
this Agreement may not be amended, modified or terminated and the observance of any term of this Agreement may not be waived with
respect to any Investor or Key Holder without the written consent of such Investor or Key Holder unless such amendment, modification,
termination or waiver applies to all Investors or Key Holders, as the case may be, in the same fashion;


 


(b) the provisions of Subsections
1.2(a) and 1.2(b) and this Subsection 7.8(b) may not be amended, modified, terminated or waived without the written consent of
Crystal Amber;


 






    11 


    


    

 


(c) 
the consent of the Key Holders shall not be required for any amendment, modification, termination or waiver if such amendment,
modification, termination, or waiver either (1) is not directly applicable to the rights of the Key Holders hereunder; or (2)
does not adversely affect the rights of the Key Holders in a manner that is different than the effect on the rights of the other
parties hereto;


 


(d) 
Schedule A hereto may be amended by the Company from time to time in accordance with Subsection 1.3 of the Purchase
Agreement to add information regarding Additional Purchasers (as defined in the Purchase Agreement) without the consent of the
other parties hereto; and


 


(e) 
any provision hereof may be waived by the waiving party on such party’s own behalf, without the consent of any other party.


 


The
Company shall give prompt written notice of any amendment, modification, termination, or waiver hereunder to any party that did
not consent in writing thereto. Any amendment, modification, termination, or waiver effected in accordance with this Subsection
7.8 shall be binding on each party and all of such party’s successors and permitted assigns, whether or not any such
party, successor or assignee entered into or approved such amendment, modification, termination or waiver. For purposes of this
Subsection 7.8, the requirement of a written instrument may be satisfied in the form of an action by written consent of
the Stockholders circulated by the Company and executed by the Stockholder parties specified, whether or not such action by written
consent makes explicit reference to the terms of this Agreement.


 


7.9 
Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to any party under this Agreement,
upon any breach or default of any other party under this Agreement, shall impair any such right, power or remedy of such non-breaching
or non- defaulting party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or
of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default previously or thereafter occurring. Any waiver, permit, consent or approval of any kind
or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of
any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set
forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative
and not alternative.


 


7.10
Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability
of any other provision.


 


7.11
Entire Agreement. This Agreement (including the Schedules and Exhibits hereto) constitutes the full and entire understanding
and agreement between the parties with respect to the subject matter hereof, and any other written or oral agreement relating
to the subject matter hereof existing between the parties is expressly canceled.


 






    12 


    


    

 


7.12 Share
Certificate Legend. Each certificate, instrument, or book entry representing any Shares issued after the date hereof shall
be notated by the Company with a legend reading substantially as follows:


 


“THE
SHARES REPRESENTED HEREBY ARE SUBJECT TO A VOTING AGREEMENT, AS MAY BE AMENDED FROM TIME TO TIME, (A COPY OF WHICH MAY BE OBTAINED
UPON WRITTEN REQUEST FROM THE COMPANY), AND BY ACCEPTING ANY INTEREST IN SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST SHALL
BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF THAT VOTING AGREEMENT, INCLUDING CERTAIN RESTRICTIONS ON
TRANSFER AND OWNERSHIP SET FORTH THEREIN.”


 


The
Company, by its execution of this Agreement, agrees that it will cause the certificates instruments, or book entry evidencing
the Shares issued after the date hereof to be notated with the legend required by this Subsection 7.12 of this Agreement,
and it shall supply, free of charge, a copy of this Agreement to any holder of such Shares upon written request from such holder
to the Company at its principal office. The parties to this Agreement do hereby agree that the failure to cause the certificates,
instruments, or book entry evidencing the Shares to be notated with the legend required by this Subsection 7.12 herein
and/or the failure of the Company to supply, free of charge, a copy of this Agreement as provided hereunder shall not affect the
validity or enforcement of this Agreement.


 


7.13 
Stock Splits, Stock Dividends, etc. In the event of any issuance of Shares or the voting securities of the Company hereafter
to any of the Stockholders (including, without limitation, in connection with any stock split, stock dividend, recapitalization,
reorganization, or the like), such Shares shall become subject to this Agreement and shall be notated with the legend set forth
in Subsection 7.12.


 


7.14 
Manner of Voting. The voting of Shares pursuant to this Agreement may be effected in person, by proxy or in any other manner
permitted by applicable law. For the avoidance of doubt, voting of the Shares pursuant to the Agreement need not make explicit
reference to the terms of this Agreement.


 


7.15 
Further Assurances. At any time or from time to time after the date hereof, the parties agree to cooperate with each other,
and at the request of any other party, to execute and deliver any further instruments or documents and to take all such further
action as the other party may reasonably request in order to carry out the intent of the parties hereunder.


 






    13 


    


    

 


7.16 
Dispute Resolution The parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts
of Delaware and to the jurisdiction of the United States District Court for the District of Delaware for the purpose of any suit,
action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding
arising out of or based upon this Agreement except in the state courts of Delaware or the United States District Court for the
District of Delaware, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such
suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its
property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum,
that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced
in or by such court.


 


WAIVER
OF JURY TRIAL: EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF
THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER
IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER
OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS,
AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS
WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS
WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL.


 


7.17 
Costs of Enforcement. If any party to this Agreement seeks to enforce its rights under this Agreement by legal proceedings,
the non-prevailing party shall pay all costs and expenses incurred by the prevailing party, including, without limitation, all
reasonable attorneys’ fees.


 


7.18 
Aggregation of Stock. All Shares held or acquired by a Stockholder and/or its Affiliates shall be aggregated together for
the purpose of determining the availability of any rights under this Agreement, and such Affiliated persons may apportion such
rights as among themselves in any manner they deem appropriate.


 


7.19 
Spousal Consent. If any individual Stockholder is married on the date of this Agreement, such Stockholder’s spouse
shall execute and deliver to the Company a consent of spouse in the form of Exhibit B hereto (“Consent of Spouse”),
effective on the date hereof. Notwithstanding the execution and delivery thereof, such consent shall not be deemed to confer or
convey to the spouse any rights in such Stockholder’s Shares that do not otherwise exist by operation of law or the agreement
of the parties. If any individual Stockholder should marry or remarry subsequent to the date of this Agreement, such Stockholder
shall within thirty (30) days thereafter obtain his/her new spouse’s acknowledgement of and consent to the existence and
binding effect of all restrictions contained in this Agreement by causing such spouse to execute and deliver a Consent of Spouse
acknowledging the restrictions and obligations contained in this Agreement and agreeing and consenting to the same.


 


 


[Signature
Page Follows]


 






    14 


    


    

 



IN
WITNESS WHEREOF, the parties have executed this Voting Agreement as of the date first written above. 2


 





	 	COMPANY:
	 	 	 
	 	GI DYNAMICS,
    INC.
	 	 	 
	 	By:	 
	 	 	 
	 	Name:	 
	 	 	 
	 	Title:	 
	 	 	 
	 	KEY
    HOLDERS:
	 	 	 
	 	Signature: 	 
	 	 	 
	 	Name:	 
	 	 	 
	 	INVESTORS:
	 	 	 
	 	CRYSTAL
    AMBER FUND LIMITED
	 	 	 
	 	By:	 
	 	Name:	Chris Waldron
	 	Title:	Director


 


 






		2	Signature
                                         blocks to be completed.





 


 


Signature
Page to Voting Agreement


 






     


    


    

 


SCHEDULE A


 


INVESTORS


 


	Name
    and Address	 	Number
    of Shares Held
	 	 	 
	Crystal Amber Fund Limited

        PO Box 286, Floor 2

        Trafalgar Court

        St.Peter Port

        GY1 4LY

        Guernsey jm@crystalamber.com

        Attention: Juan Morera
	 	 


 






     


    


    

 


SCHEDULE B


 


KEY HOLDERS3


 


	Name
    and Address	 	Number
    of Shares Held


 


 


 


 


 





 


 






		3	NTD:
                                         Crystal Amber to provide.


 






     


    


    

 


EXHIBIT A


 


ADOPTION AGREEMENT


 


This Adoption Agreement
(“Adoption Agreement”) is executed on , 20 , by the undersigned (the “Holder”)
pursuant to the terms of that certain Voting Agreement dated as of [ ,] 2020 (the “Agreement”),
by and among the Company and certain of its Stockholders, as such Agreement may be amended or amended and restated hereafter.
Capitalized terms used but not defined in this Adoption Agreement shall have the respective meanings ascribed to such terms in
the Agreement. By the execution of this Adoption Agreement, the Holder agrees as follows.


 


1.1  
Acknowledgement. Holder acknowledges that Holder is acquiring certain shares of the capital stock of the Company (the “Stock”)
[or options, warrants, or other rights to purchase such Stock (the “Options”)], for one of the following reasons
(Check the correct box):


 


	 	 ̈	As
    a transferee of Shares from a party in such party’s capacity as an “Investor” bound by the Agreement, and
    after such transfer, Holder shall be considered an “Investor” and a “Stockholder” for all purposes
    of the Agreement.


 


	 	 ̈	As
    a transferee of Shares from a party in such party’s capacity as a “Key Holder” bound by the Agreement, and
    after such transfer, Holder shall be considered a “Key Holder” and a “Stockholder” for all purposes
    of the Agreement.


 


	 	 ̈	As
    a new Investor in accordance with Subsection 7.1(a) of the Agreement, in which case Holder will be an “Investor”
    and a “Stockholder” for all purposes of the Agreement.


 


	 	 ̈	In
    accordance with Subsection 7.1(b) of the Agreement, as a new party who is not a new Investor, in which case Holder
    will be a “Stockholder” for all purposes of the Agreement.


 


1.2  
Agreement. Holder hereby (a) agrees that the Stock [Options], and any other shares of capital stock or securities required
by the Agreement to be bound thereby, shall be bound by and subject to the terms of the Agreement and (b) adopts the Agreement
with the same force and effect as if Holder were originally a party thereto.


 


1.3  
Notice. Any notice required or permitted by the Agreement shall be given to Holder at the address or facsimile number listed
below Holder’s signature hereto.


 


	HOLDER:	      	 	ACCEPTED AND AGREED:
	 	 	 	 	 






	By:	                	 	GI DYNAMICS, INC.
	Name and Title of Signatory	 	 	 
	 	 	 	 	 






	Address:	 	 	By:	                      
	 	 	 
	 	 	Title:	 


 


	Facsimile Number:	 	 	 


 






     


    


    

 


EXHIBIT B


 


CONSENT OF SPOUSE


 


I, [ ],
spouse of [ ], acknowledge that I have read the Voting Agreement, dated as of [ ,] 2020, to which this Consent is attached
as Exhibit B (the “Agreement”), and that I know the contents of the Agreement. I am aware that the Agreement
contains provisions regarding the voting and transfer of shares of capital stock of the Company that my spouse may own, including
any interest I might have therein.


 


I hereby agree that
my interest, if any, in any shares of capital stock of the Company subject to the Agreement shall be irrevocably bound by the
Agreement and further understand and agree that any community property interest I may have in such shares of capital stock of
the Company shall be similarly bound by the Agreement.


 


I am aware that
the legal, financial and related matters contained in the Agreement are complex and that I am free to seek independent professional
guidance or counsel with respect to this Consent. I have either sought such guidance or counsel or determined after reviewing
the Agreement carefully that I will waive such right.


 


	Dated:	              	 	 
	 	 	 	[Name of Key Holder’s Spouse]



 






     


    


    

 


EXHIBIT H


 


 


 


FORM OF NOTE EXCHANGE
AND WARRANT CANCELLATION AGREEMENT


 






     


    


    




 


 


GI
Dynamics, inc.


 





 



 


Note
Exchange and Warrant Cancellation Agreement


 





 






 


 



     


    


    




 


GI Dynamics,
Inc.


 


Note
Exchange And Warrant Cancellation Agreement


 


THIS
NOTE EXCHANGE AND WARRANT CANCELLATION AGREEMENT (this “Agreement”) is made as of the [●]
day of [●], 2020 (the “Effective Date”), between GI DYNAMICS, INC., a Delaware corporation
(the “Company”), and CRYSTAL AMBER FUND LIMITED (the “Holder”). Capitalized
terms used herein and not otherwise defined herein shall have the respective meanings given to them in the New Note (as defined
below).


 


Recitals


 


WHEREAS,
pursuant to that certain Securities Purchase Agreement, dated as of August 21, 2019 (the “SPA”), between
the Company and the Holder, the Company issued to the Holder an unsecured convertible promissory note in the aggregate principal
amount of up to Four Million Five Hundred Ninety-Six Thousand Eight Hundred Ninety-Three Dollars (US$4,596,893) (the “2019
Note”);


 


WHEREAS,
in connection with the issuance of the 2019 Note and pursuant to the terms and conditions of the SPA, the Company, on January
13, 2020, issued to the Holder a warrant to purchase up to 229,844,650 CHESS Depositary Interests of the Company (the “Warrant”);


 


WHEREAS,
the Company plans to complete a Series A Preferred Stock financing with gross proceeds of not less than US$10 million in the aggregate,
upon the terms and subject to the conditions of a Series A Preferred Stock Purchase Agreement between the Company and the Holder
dated as of an even date herewith (the “Purchase Agreement”);


 


WHEREAS,
as a condition precedent to entering into the Purchase Agreement, the Company is required to restructure the 2019 Note and cancel
the Warrant;


 


WHEREAS,
immediately prior to the execution of the Purchase Agreement, the Company will issue to the Holder a new unsecured convertible
promissory note in the aggregate principal amount of the Outstanding Amount (as defined below), substantially in the form attached
hereto as Exhibit A (the “New Note,” and, together with the 2019 Note, the “Notes”),
in exchange for the surrender and cancellation of the 2019 Note and the cancellation of the Warrant, on the terms and conditions
set forth in this Agreement (the “Exchange”).


 


NOW,
THEREFORE, in consideration of the foregoing premises and for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and the Holder, intending to be legally bound, agree as follows:


 






    1


    


    


 


		1.	Terms
                                         of the Exchange


 


1.1 
Exchange of the Notes. Upon the terms and subject to the conditions of this Agreement, the Holder agrees to surrender and
deliver the 2019 Note to the Company for cancellation in exchange for the New Note in the aggregate principal amount equal to
the total outstanding unpaid principal amount of the 2019 Note together with any interest accrued but unpaid thereon, immediately
prior to the Closing Date (the “Outstanding Amount”). At the Closing (as defined below), the New Note
issued in exchange for the cancellation of the 2019 Note shall be deemed the full and final consideration for the cancellation
of such 2019 Note, and notwithstanding anything to the contrary contained in the 2019 Note or otherwise, the Company and Holder
hereby agree that upon the Closing: (i) the Company’s obligations under the 2019 Note, including related contractual obligations,
shall be deemed fully paid and satisfied and (ii) the 2019 Note shall automatically terminate and have no further force and effect.


 


1.2 
Warrant Cancellation. Contemporaneously with exchange of the Notes pursuant to Section 1.1 and without any further
action on the part of the Company or the Holder, the Warrant shall be terminated and cancelled and shall no longer be exercisable
and the Holder shall automatically be deemed to have released any and all rights it has or may have had in, and in respect of,
the Warrant, including related contractual rights.


 


		2.	The
                                         Closing


 


2.1 
Closing Date. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and Section 6, the
closing of the transactions contemplated by this Agreement (the “Closing”) shall be held remotely via
the electronic exchange of documents and signatures immediately prior to entering into the Purchase Agreement (the “Closing
Date”).


 


2.2
Deliveries.

 


(a)  At or prior
to the Closing, the Company shall, in accordance with the terms of this Agreement, deliver to the Holder: (i) this Agreement duly
executed by the Company; (ii) the New Note; and (iii) such other documents relating to the transactions contemplated by this Agreement
as the Holder shall reasonably require.


 


(b)  At or prior
to the Closing, the Holder shall, in accordance with the terms of this Agreement, deliver to the Company: (i) this Agreement duly
executed by the Holder; (ii) the 2019 Note (or an affidavit of loss and indemnity undertaking with respect thereto, in a form
reasonably acceptable to the Company); and (iii) such other documents relating to the transactions contemplated by this Agreement
as the Company shall reasonably require.


 


		3.	Representations,
                                         Warranties and Covenants of the Company


 


The
Company hereby represents and warrants to the Holder, as of the date hereof and as of the Closing Date, as follows:


 


3.1 
Organization; Good Standing and Qualification. The Company is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware and has all requisite corporate power and authority to own its property and carry
on its business as now conducted. The Company is duly qualified to transact business and is in good standing in the Commonwealth
of Massachusetts and in each jurisdiction in which its ownership of property or the nature of the business conducted by it makes
such qualification necessary.


 






    2


    


    

 


3.2
Corporate Power and Authorization.

 


(a)  Corporate
Power. The Company has all requisite corporate power to execute and deliver this Agreement and the New Note and to carry out
and perform its obligations under the terms of this Agreement and the New Note.


 


(b)  Authorization.
The execution and delivery of this Agreement and the New Note by the Company and the consummation by the Company of the transactions
contemplated hereby and thereby, including, without limitation, the issuance of the New Note, the reservation of shares of the
Company’s common stock, par value $0.01 per share issuable upon conversion of the New Note (the “Common Stock”
and, together with the New Note, the “Securities”) and the cancellation of the Warrant, was duly authorized
by the Company’s board of directors. Other than those consents and authorizations obtained by the Company prior to the date
hereof that are in full force and effect on the Closing Date, no further consent or authorization is required by the Company,
its board of directors or its stockholders. This Agreement and the New Note have been duly executed and delivered by the Company,
and each of them constitutes the legal, valid and binding obligations of the Company enforceable in accordance with its terms,
subject to laws of general application relating to equitable principles, bankruptcy, insolvency and the relief of debtors. Upon
conversion of the New Note into Common Stock in accordance with the provisions of this Agreement and the New Note, the Common
Stock will be validly issued, fully paid and nonassessable and free of any liens or encumbrances (other than as set out in Section
2(c) of the New Note). The issuance of the New Note (and the Common Stock) pursuant to the provisions of this Agreement will not
give rise to any preemptive rights or rights of first refusal granted by the Company, and the New Note (and the Common Stock)
will be issued in compliance with all applicable federal and state securities laws, and will be free of any liens or encumbrances;
provided, however, that the New Note may be subject to restrictions on transfer as set out in this Agreement and the New
Note or under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time the transfer
is proposed. The issuance of the New Note (and the Common Stock) does not and will not cause any dilution adjustment in any existing
securities of the Company, and the Holder hereby waives any dilution adjustment that might otherwise result from the issuance
of the New Note (and the Common Stock) pursuant to the terms of any existing security held by the Holder.


 


3.3 
Governmental Consents. All consents, approvals, orders, or authorizations of, or registrations, qualifications, designations,
declarations, or filings with, any governmental authority, required on the part of the Company in connection with the valid execution
and delivery of this Agreement and the New Note, the issuance of the New Note or the consummation of any other transaction contemplated
hereby shall have been obtained and will be effective at the Closing, except for any notices required or permitted to be filed
with certain foreign, state and/or federal securities commissions or stock exchanges, which notices will be filed on a timely
basis.


 


3.4 
No Conflicts. The execution, delivery and performance of this Agreement and the New Note by the Company and the consummation
by the Company of the transactions contemplated hereby and thereby will not (i) result in a violation of the certificate of incorporation
or by-laws of the Company or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material
agreement, indenture or  instrument to which the Company is a party or by which the Company is bound, or (iii) result in
a violation of any law, rule, regulation, order, judgment or decree including federal and state securities laws and regulations
applicable to the Company or by which any property or asset of the Company is bound or affected.


 






    3


    


    


 


3.5 
Offering. Assuming the accuracy of the representations and warranties of the Holder contained in Section 4 hereof,
the issuance of the New Note is and will be exempt from the registration and prospectus delivery requirements of the Securities
Act of 1933, as amended (the “Act”), and has been registered or qualified (or is exempt from registration
and qualification) under the registration, permit, or qualification requirements of all applicable state securities laws.


 


3.6
[Intentionally Omitted].

 


3.7 
Delivery of SEC Filings. The Company has provided the Holder with copies of the Company’s most recent Annual Report
on Form 10-K for the fiscal year ended December 31, 2019, and all other reports filed by the Company pursuant to the Securities
Exchange Act of 1934, as amended (the “1934 Act”), since the filing of the Annual Report on Form 10-K
and prior to the date hereof (collectively, the “SEC Filings”); which reports represent all filings
required of the Company pursuant to the 1934 Act for such period. During the two (2) years prior to the date hereof, the Company
has filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the
reporting requirements of 1934 Act (all of the foregoing filed prior to the date hereof or prior to the date of the Closing, and
all exhibits included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein
being hereinafter referred to as the “SEC Documents”). As of their respective filing dates, or, if amended
or superseded by a subsequent filing, as of the date of the last such amendment or superseding filing, the SEC Documents complied
in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder
applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed or, if amended or superseded by a
subsequent filing, as of the date of the last such amendment or superseding filing, with the SEC, contained any untrue statement
of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. As of their respective filing dates, or,
if amended or superseded by a subsequent filing, as of the date of the last such amendment or superseding filing, the financial
statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect thereto. Such financial statements have been prepared
in accordance with generally accepted accounting principles, consistently applied, during the periods involved (except (i) as
may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements,
to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects
the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods
then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).


 






    4


    


    

 


3.8 
Conduct of Business; Regulatory Permits. To the knowledge of the Company, the Company is not in violation of any term of,
or in default under, its certificate of incorporation, as amended and as in effect on the date hereof, or any certificate of designation
of an outstanding series of stock of the Company or its by-laws, as amended and as in effect on the date hereof. The Company is
not in violation of any judgment, decree or order or any statute, ordinance, rule or regulation applicable to the Company, and
the Company does not and will not conduct its business in violation of any of the foregoing, except for possible violations which
could not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Company. Except as
set forth in its SEC Filings, the Company possesses all certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct its business, and the Company has not received any notice of proceedings
relating to the revocation or modification of any such certificate, authorization or permit.


 


3.9 
Absence of Litigation. There is no action, suit, proceeding, inquiry or investigation before or by the SEC, any court, public
board, government agency, self-regulatory organization or body pending or, to the knowledge of the Company, threatened against
or affecting the Company or any of its subsidiaries or affiliates, the Securities or any of the Company’s or its subsidiaries’
officers or directors, whether of a civil or criminal nature or otherwise, which, if adversely determined, would have a material
adverse effect on the Company’s business or financial condition.


 


3.10 
Securities Laws. The Company shall timely make all filings and reports relating to the issuance of the Securities required
under applicable securities laws, including filing any notice of sale of securities required by applicable law or regulation and
complying with any applicable “blue sky” laws of the states of the United States. The Company shall pay all fees and
expenses in connection with satisfying its obligations under this Section 3.10. The Company shall not sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Act) that could be
integrated with the issuance of the New Note in a manner that could require the registration of the New Note under the Act.


 


4.
Representations and Warranties of the Holder

 


The Holder hereby represents and
warrants to the Company as follows:


 


4.1 
Purchase for Own Account. The Holder understands that the Securities have not been registered under the Act and the Holder
is acquiring the Securities for its own account and not with a view towards, or for resale in connection with, the public sale
or distribution thereof, except pursuant to sales registered or exempted from registration. The Holder represents that its acquisition
of any Securities under the New Note will be acquired solely for its own account and beneficial interest for investment and not
for sale or with a view to distribution of the Securities or any part thereof, has no present intention of selling (in connection
with a distribution or otherwise), granting any participation in, or otherwise distributing the same.


 


4.2 
Information and Sophistication. Without lessening or obviating the representations and warranties of the Company set forth
in Section 3, the Holder hereby: (i) acknowledges that it has received all the information it has requested from the Company
including, but not limited to, the SEC Filings, (ii) represents that it has had an opportunity to ask questions and receive answers
from the Company regarding the Company, its business and the terms and conditions of the offering of the Securities and (iii)
further represents that it has such knowledge and experience in financial and business matters that it is capable of evaluating
the merits and risk of this investment.


 






    5


    


    


 


4.3 
Ability to Bear Economic Risk. The Holder acknowledges that investment in the Securities involves a high degree of risk, and
represents that it is able, without materially impairing its financial condition, to hold the Securities for an indefinite period
of time and to suffer a complete loss of its investment.


 


4.4 
Rule 144. The Holder is aware that none of the Securities may be sold pursuant to Rule 144 adopted under the Act unless certain
conditions are met, including, among other things, the existence of a public market for the shares, the availability of certain
current public information about the Company, the resale following the required holding period under Rule 144 and the number of
shares being sold during any three month period not exceeding specified limitations.


 


4.5 
Accredited Investor Status. The Holder is an “accredited investor” as such term is defined in Rule
501 under the Act.


 


4.6 
Regulation S. In issuing the Securities, the Company may be relying upon the “safe harbor” provided by Regulation
S and/or on Section 4(a)(2) under the Act; it is a condition to the availability of the Regulation S “safe harbor”
that the Securities not be offered or sold in the United States or to a U.S. person until the expiration of a one-year “distribution
compliance period” (or a six-month “distribution compliance period,” if the issuer is a “reporting issuer,”
as defined in Regulation S) following the closing; and notwithstanding the foregoing, prior to the expiration of the one-year
“distribution compliance period” (or six-month “distribution compliance period,” if the issuer is a “reporting
issuer,” as defined in Regulation S) after the closing (the “Restricted Period”), the New Note
may, subject to any restrictions contained in the New Note, be offered and sold by the holder thereof only if such offer and sale
is made in compliance with the terms of this Agreement and the New Note, and either: (a) if the offer or sale is within the United
States or to or for the account of a U.S. person (as such terms are defined in Regulation S), the securities are offered and sold
pursuant to an effective registration statement or pursuant to Rule 144 under the Act or pursuant to an exemption from the registration
requirements of the Act; or (b) the offer and sale is outside the United States and to other than a U.S. person. If the Holder
is not a United States person, the Holder hereby represents that the Holder is satisfied as to the full observance of the laws
of the Holder’s jurisdiction applicable to the Holder in connection with any invitation to subscribe for the Securities,
including (i) the legal requirements within the Holder’s jurisdiction for the purchase of the New Note, (ii) any foreign
exchange restrictions applicable to such purchase, (iii) any governmental or other consents that may need to be obtained and (iv)
the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale or transfer
of the such Securities. The Holder’s subscription and payment for, and the Holder’s continued beneficial ownership
of the Securities, will not violate any applicable securities or other laws of the Holder’s jurisdiction that are applicable
to the Holder.


 


4.7 
Rule 506(d). If the Holder beneficially owns twenty percent (20%) or more of the outstanding voting securities of the Company,
calculated in accordance with Rule 506(d) of Regulation D of the Act, or may designate a director of the Company, the Holder hereby
represents and warrants to the Company that the Holder has not been convicted of any of the felonies or misdemeanors or been subject
to any of the orders, judgments, decrees or other conditions set forth in Rule 506(d) of Regulation D of the Act.


 






    6


    


    

 


4.8
[Intentionally Omitted].

 


4.9  Legends.
The Holder understands that any securities issued upon conversion of the New Note may bear one or all of the following legends:


 


(a)  “THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF.
NO SALE OR DISTRIBUTION OF SUCH SHARES MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION
OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY OR OTHER EVIDENCE REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED UNDER THE SECURITIES ACT.”


 


(b)
Any legend set forth in or required by another section of this Agreement or the New Note.


 


(c)
Any legend required by the securities laws of any state or country to the extent such laws are applicable to the securities
represented by the certificate so legended.


 


4.10 
Market Standoff. The Holder agrees not to sell any of the Securities during a period specified by the representative of the
applicable underwriters (not to exceed one hundred eighty (180) days) following the effective date of the initial registration
statement of the Company filed under the Act, so long as all officers, directors, and 1% stockholders have executed similar agreements
and are similarly restricted from selling the Company’s stock.


 


4.11
[Intentionally Omitted].

 


4.12. No
Conversion. Upon execution of this Agreement until the earlier of (i) the consummation of the Exchange or (ii) the termination
of this Agreement pursuant to Section 7.1 hereof, the Holder hereby agrees that it shall not convert any or all of the
outstanding balance under the 2019 Note.


 


5.
Events of Default; Remedies

 


5.1 
Events of Default. Each of the following shall constitute an event of default (each, an “Event of Default”)
under this Agreement and the New Note:


 


(a)  Any
default in the payment, when the same becomes due and payable, of principal under or interest in respect of the New Note, including,
but not limited to, the failure by the Company to pay on the Maturity Date, any and all unpaid principal, accrued interest and
all other amounts owing under this Agreement and the New Note;


 


(b)  The
Company files any petition or action for relief under any bankruptcy, reorganization, insolvency or moratorium law or any other
law for the relief of, or relating to, debtors, now or hereafter in effect, or makes any general assignment for the benefit of
creditors or takes any corporate action in furtherance of any of the foregoing;


 






    7


    


    

 


(c)  An
involuntary petition is filed against the Company (unless such petition is dismissed or discharged within sixty (60) days) under
any bankruptcy statute now or hereafter in effect, or a custodian, receiver, trustee, assignee for the benefit of creditors (or
other similar official) is appointed to take possession, custody or control of any property of the Company;


 


(d)  The
Company’s stockholders (other than the Holder) or board of directors affirmatively vote to liquidate, dissolve, or wind
up the Company or the Company otherwise ceases to carry on its ongoing business operations;


 


(e)  If
(i) a material portion of the Company’s assets is attached, seized, levied on, or comes into possession of a trustee or
receiver and the attachment, seizure or levy is not removed in thirty (30) days, (ii) the Company is enjoined, restrained, or
prevented by a court order or other order of a governmental body from conducting its business or (iii) notice of lien, levy, or
assessment is filed against any material portion of the Company’s assets by any court order or other order of any governmental
body and it is not paid within sixty (60) days after the Company received notice thereof; or


 


(f)  The
Company shall fail in any material respect to observe or perform any covenant, obligation, condition or agreement contained in
this Agreement or the New Note (other than a failure to pay as specified in Section 5.1(a) hereof) and such failure shall
continue for thirty (30) days after the Company’s receipt of written notice thereof.


 


5.2 
Remedies. Upon the occurrence or existence of any Event of Default (other than an Event of Default referred to in Sections
5.1(b) or 5.1(c) hereof) and at any time thereafter during the continuance of such Event of Default, the Holder or
any holder of the New Note may, by written notice to the Company, declare all outstanding obligations payable by the Company under
the New Note to be immediately due and payable without presentment, demand, protest or any other notice of any kind, all of which
are hereby expressly waived, anything contained herein to the contrary notwithstanding. Upon the occurrence or existence of any
Event of Default described in Sections 5.1(b) or 5.1(c) hereof, immediately and without notice, all outstanding
obligations payable by the Company hereunder shall automatically become immediately due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly waived, anything contained herein to the contrary notwithstanding.
In the event of any Event of Default, the Company shall pay all reasonable attorneys’ fees and costs incurred by the Holder
in enforcing and collecting the New Note and this Agreement. No right or remedy conferred upon or reserved to the Holder under
this Agreement is intended to be exclusive of any other right or remedy, and every right and remedy shall be cumulative and in
addition to every other right and remedy given hereunder or now and hereafter existing under applicable law.


 






    8


    


    

 


6.
Conditions to Closing

 


6.1 
Conditions to Holder’s Obligations at the Closing. The obligations of the Holder under this Agreement and the New Note
are subject to the fulfillment on or before the Closing of each of the following conditions, which may be waived in writing by
the Holder:


 


(a)  Representations
and Warranties. The representations and warranties of the Company contained in Section 3 shall be true on and as of
the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak
as of a specific date, which shall be true and correct as of such specified date).


 


(b)  Performance.
The Company shall have performed and complied with all agreements, obligations, and conditions contained in this Agreement
and the New Note that are required to be performed or complied with by it on or before the Closing.


 


(c)  Qualifications.
All authorizations, approvals, or permits, if any, of any governmental authority or regulatory body of the United States or
of any state that are required in connection with the lawful issuance and sale of the New Note shall be duly obtained and effective
as of the Closing.


 


(d)  Proceedings
and Documents. All corporate and other proceedings in connection with the transactions contemplated at the Closing and all
documents incident thereto shall be reasonably satisfactory in form and substance to the Holder’s counsel, which shall have
received all such counterpart original and certified copies of such documents as it may reasonably request.


 


6.2 
Conditions to Company’s Obligations at the Closing. The obligations of the Company under this Agreement and the New
Note are subject to the fulfillment on or before the Closing of each of the following conditions, which may be waived in writing
by the Company:


 


(a)  Representations
and Warranties. The representations and warranties made by the Holder in Section 4 hereof shall be true and correct
on the Closing Date.


 


(b)  Performance.
The Holder shall have performed and complied with all agreements, obligations, and conditions contained in this Agreement
that are required to be performed or complied with by it on or before the Closing.


 


7.
Termination

 


7.1 
Voluntary Termination. Except as provided in Section 7.2, this Agreement may be terminated and the Exchange abandoned
at any time prior to the Closing by:


 


(a)  the
mutual agreement of the Company and the Holder; or


 


(b)  the
Company or the Holder if the Closing Date shall not have occurred by [●], 2020; provided, however, that the right to terminate
this Agreement under this Section 7.1(b) shall not be available to any party whose action or failure to act has been a
principal cause or resulted in the failure of the Closing to occur on or before such date and such action or failure constitutes
a breach of this Agreement.


 


7.2 
Effect of Termination. In the event of the termination of this Agreement as provided in Section 7.1, this
Agreement shall forthwith become void and there shall be no liability or obligation hereunder on the part of the Company or
the Holder, or their respective representatives, as applicable; provided, however, that each party hereto shall
remain liable for any willful breaches of this Agreement, or any certificate or other instruments delivered pursuant to this
Agreement prior to its termination; and provided further, however, that, the provisions of Section 9 and
this Section 7.2 shall remain in full force and effect and survive any termination of this Agreement pursuant to the
terms of this Section 7.


 






    9


    


    

 


8.
Miscellaneous

 


8.1 
Binding Agreement. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, expressed or implied, is intended to confer upon any third party
any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.


 


8.2 
Governing Law. This Agreement shall be governed by and construed under the laws of the State of New York.


 


8.3 
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.


 


8.4 
Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement.


 


8.5 
Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal
delivery to the party to be notified, (b) five (5) days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (a) one (1) day after deposit with a nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt. All communications shall be sent to the address set forth in this Section 8.5
or at such other address as the Company or the Holder may designate by ten (10) days advance written notice to the other party
hereto.


 


If to the Holder:


 


Crystal Amber Fund Limited


PO Box 286


Floor 2, Trafalgar Court


Les Banques


St Peter Port


Guernsey


GY1 4LY


 


With a copy (that shall not constitute notice) to:


 


Estera - GG - Crystal Amber Team


CrystalAmberTeam@estera.com


 






    10


    


    

 


If to the Company:


 


GI DYNAMICS, INC.


320 Congress Street


Floor 3


Boston, MA 02205


Attention: Chief Executive Officer


 


With a copy (that shall not constitute notice) to:


 


Blake Baron, Esq.


Mitchell Silberberg & Knupp LLP


437 Madison Avenue, 25th Floor


New York, New York 10022


Email: bjb@msk.com


 


8.6 
Amendment; Modification; Waiver. No amendment, modification or waiver of any provision of this Agreement or consent to departure
therefrom shall be effective unless in writing and approved by the Company and the Holder.


 


8.7 
Entire Agreement. This Agreement and the New Note, including the exhibits attached hereto and thereto, constitute the full
and entire understanding and agreement between the parties with regard to the subjects hereof and no party shall be liable or
bound to any other party in any manner by any representations, warranties, covenants and agreements except as specifically set
forth herein and therein.


 






    11


    


    

 


IN WITNESS WHEREOF, the
parties have executed this NOTE EXCHANGE AND WARRANT CANCELLATION AGREEMENT as of the date first written above.


 


	 	COMPANY:
	 	 
	 	GI Dynamics,
    Inc.



 


	 	By:	                                             
	 	Name:	 
	 	Title:	 
	 	 	 



	 	HOLDER:
	 	 
	 	Crystal Amber
    Fund Limited



 





	 	By:	                                             
	 	Name:	 
	 	Title:	 
	 	 	 





	 	Executed
    by Crystal Amber Asset Management (Guernsey) Ltd as Investment Manager of Crystal Amber Fund Limited



 


 


 


 


 


 


[Signature
Page to Note Exchange and Warrant Cancellation Agreement]


 






    


     


    

 


Exhibit
A


 


Form
of Unsecured Convertible Promissory Note


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 









    Exhibit A-1


     


    

 





THIS UNSECURED CONVERTIBLE
PROMISSORY NOTE (THIS “NOTE”) AND THE SECURITIES ISSUABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED
OR HYPOTHECATED EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S PROMULGATED UNDER THE SECURITIES ACT, PURSUANT TO REGISTRATION
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS INVOLVING THE SECURITIES
REPRESENTED HEREBY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.


 


THE ISSUER OF THESE SECURITIES
MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE OR TRANSFER OTHERWISE COMPLIES WITH
THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR LAWS OF ANY OTHER RELEVANT COUNTRY.


 


UNSECURED CONVERTIBLE
PROMISSORY NOTE


 


	US$[●]	[●],
    2020
	 	Boston, Massachusetts



 


For
Value Received, GI Dynamics, Inc., a Delaware corporation (“Payor”), hereby promises to pay
to the order of Crystal Amber Fund Limited (the “Holder”),
an aggregate principal sum of US$[●] or such greater amount as shall become due, with interest on the outstanding principal
amount at the rate of five percent (5%) per annum. Interest (i) shall commence on the date hereof and shall be compounded annually
based on a 365-day year, and (ii) shall continue on the outstanding principal until paid in full or, if permitted by the terms
of this Unsecured Convertible Promissory Note (this “Note”), converted pursuant to Section 2
below.


 


1. 
Payment and Maturity


 


(a) Reference
is hereby made to the Note Exchange and Warrant Cancellation Agreement (the “Exchange Agreement”), dated
as of [●], 2020, between Payor and the Holder. Capitalized terms used herein and not otherwise defined herein shall have
the respective meanings given to them in the Exchange Agreement.


 


(b) If this
Note has not already been paid in full or otherwise converted pursuant to Section 2 below, the entire outstanding principal
balance of this Note and all unpaid accrued interest thereon shall be due and payable on June 30, 2022 (the “Maturity
Date”). All payments of interest and principal shall be in lawful money of the United States of America except as
set forth in Section 2(a) hereof. All payments shall be applied first to accrued interest, and thereafter to principal.
If any payments on this Note become due on a Saturday, Sunday or a public holiday under the laws of the State of New York, such
payment shall be made on the next succeeding business day and such extension of time shall be included in computing interest in
connection with such payment.


 






    1


    


    


 


(c) Upon
the occurrence and during the continuance of any Event of Default, the principal balance of this Note shall bear interest at the
rate of eight percent (8%) per annum, including after the commencement of, and during the pendency of, any bankruptcy or other
insolvency proceeding.


 


2.
Conversion

 


(a) Optional
Conversion. The Holder shall have the option (the “Conversion Option”), but not the obligation,
at any time after the date hereof and prior to the Maturity Date, exercisable upon written notice to Payor, to (a) convert all
(but not less than all) of the then outstanding unpaid principal amount of this Note together with any interest accrued but unpaid
thereon (such principal amount and interest, the “Outstanding Amount”) into the number of shares of
Common Stock (the “Conversion Shares”) equal to the quotient obtained by dividing (x) the Outstanding
Amount by (y) 200% of the initial purchase price per share in the Series A Preferred Stock financing with gross proceeds of not
less than US$10 million in the aggregate, pursuant to the terms and subject to the conditions of the Purchase Agreement (the “Conversion
Price”).


 


(b) Fractional
Shares; Conversion Price Adjustment. No fractional shares of Payor’s capital stock will be issued upon conversion of
this Note. In lieu of any fractional share to which the Holder would otherwise be entitled, Payor will pay to the Holder in cash
the amount of the unconverted principal and interest balance of this Note that would otherwise be converted into such fractional
share. Without limiting any provision hereof, if Payor at any time on or after the date hereof subdivides (by any stock split,
stock dividend, recapitalization or otherwise) one or more classes of its outstanding shares of Common Stock into a greater number
of shares, the Conversion Price in effect immediately prior to such subdivision will be proportionately reduced. Without limiting
any provision hereof, if Payor at any time on or after the date hereof combines (by combination, reverse stock split or otherwise)
one or more classes of its outstanding shares of Common Stock into a smaller number of shares, the Conversion Price in effect
immediately prior to such combination will be proportionately increased. Any adjustment pursuant to this Section 2(b) shall
become effective immediately after the effective date of such subdivision or combination.


 


(c) Holder
Representations and Warranties; Transfer and Assignment. The representations and warranties and rights and obligations of
transfer and assignment of Holder that are set forth in Section 4 of the Exchange Agreement with respect to the Conversion Shares
issuable to Holder are hereby made a part of this Note and incorporated herein by this reference.


 


3.
Default; Remedies

 


(a) The occurrence
of any Event of Default described in Section 5.1 of the Exchange Agreement shall be an Event of Default hereunder.


 


(b) Upon
the occurrence and during the continuance of any Event of Default (other than an Event of Default described in Sections 5.1(b)
or 5.1(c) of the Exchange Agreement), all unpaid principal on this Note, accrued and unpaid interest thereon and all other amounts
owing hereunder shall, at the option of the Holder, and, upon the occurrence of any Event of Default pursuant to Sections 5.1(b)
or 5.1(c) of the Exchange Agreement, automatically, be immediately due, payable and collectible by Holder pursuant to applicable
law.


 






    2


    


    


 


(c) Upon
the occurrence and during the continuance of any Event of Default, Payor shall pay, on demand, all reasonable attorneys’
fees and court costs incurred by Holder in enforcing and collecting this Note.


 


4. 
Prepayment. Payor may not prepay this Note prior to the Maturity Date without
the consent of the Holder.


 


5. 
Waiver; Payment of Fees and Expenses. Payor waives presentment and demand for
payment, notice of dishonor, protest and notice of protest of this Note, and shall pay all costs of collection when incurred,
including, without limitation, reasonable attorneys’ fees, costs and other expenses. The right to plead any and all statutes
of limitations as a defense to any demands hereunder is hereby waived to the full extent permitted by law. No delay by the Holder
shall constitute a waiver, election or acquiescence by it.


 


6. 
Cumulative Remedies. The Holder’s rights and remedies under this Note
and the Exchange Agreement shall be cumulative. No exercise by the Holder of one right or remedy shall be deemed an election,
and no waiver the by Holder of any Event of Default shall be deemed a continuing waiver of such Event of Default or the waiver
of any other Event of Default.


 


7.
Miscellaneous

 


(a) Governing
Law. The terms of this Note shall be construed in accordance with the laws of the State of New York, as applied to contracts
entered into by New York residents within the State of New York, and to be performed entirely within the State of New York.


 


(b) Exclusive
Jurisdiction. All actions and proceedings arising out of, or relating to, this Agreement shall be heard and determined in
any state or federal court sitting in the State of New York, County of New York. The undersigned, by execution and delivery of
this Agreement, expressly and irrevocably (i) consent and submit to the personal jurisdiction of any of such courts in any such
action or proceeding; and (ii) waive any claim or defense in any such action or proceeding based on any alleged lack of personal
jurisdiction, improper venue or forum non conveniens or any similar basis.


 


(c) Successors
and Assigns; Assignment. The terms and conditions of this Note shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Payor may not assign this Note or delegate any of its obligations hereunder without the
written consent of the Holder. The Holder may assign this Note and its rights hereunder without the consent of Payor, subject
to compliance with Section 4 of the Exchange Agreement.


 


(d) Titles
and Subtitles. The titles and subtitles used in this Note are used for convenience only and are not to be considered in construing
or interpreting this Note.


 


(e) Notices.
All notices required or permitted hereunder by the Holder of this Note to Payor shall be in writing and shall be deemed effectively
given: (a) upon personal delivery to the principal offices of Payor, to the attention of the Chief Executive Officer, (b) five
(5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (c)  one (1)
day after deposit with a nationally recognized overnight courier, specifying next day delivery. Any refusal of delivery of a notice
by Payor shall be deemed to have been delivered.


 






    3


    


    


 


(f) Amendment;
Modification; Waiver. No term of this Note may be amended, modified or waived without the written consent of Payor and the
Holder.


 


(g) Counterparts.
This Note may be executed in two or more counterparts, each of which shall be deemed and original, but all of which together shall
constitute one and the same instrument.


 


(h) No
Voting Rights. This Note does not carry any voting rights at stockholder meetings of Payor without first converting the Note.


 


(i) No
Participation Rights. The Holder is not by virtue of holding this Note entitled to participate in any new issue of securities
made by Payor to stockholders.


 


(j) Equal
Ranking. The Common Stock issued pursuant to a conversion of this Note will rank, from the date of issue, equally with the
existing shares of Common Stock, respectively, of Payor in all respects.


 


[Signature page follows]


 






    4


    


    


 


In
Witness Whereof, the parties have executed this Unsecured Convertible
Promissory Note as of the date first written above.


 


	 	GI
    Dynamics, Inc.


 


	 	By:	 
	 	Name:	 
	 	Title:	 


 


Agreed to and Accepted:


 


Crystal Amber Fund
Limited


 


	By:	 	 
	Name:	 	 
	Title:	 	 
	Executed by Crystal Amber Asset
    Management (Guernsey) Ltd as Investment Manager of Crystal Amber Fund Limited	 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


[Signature Page to
Unsecured Promissory Note]


 



    


     


    



 


 


 


 


 


 


 


 


 


 


 


 


EXHIBIT I


 


 


 


 


 


FORM OF 2020 STOCK
PLAN


 





 


 


 


 


 


 


 


 


 






    


     


    

 


GI DYNAMICS, INC.


 


2020 EMPLOYEE,
DIRECTOR AND CONSULTANT EQUITY INCENTIVE PLAN


 


		1.	DEFINITIONS.


 


Unless
otherwise specified or unless the context otherwise requires, the following terms, as used in this GI Dynamics, Inc. 2020 Employee,
Director and Consultant Equity Incentive Plan, have the following meanings:


 


Administrator
means the Board of Directors, unless it has delegated power to act on its behalf to the Committee, in which case the Administrator
means the Committee.


 


Affiliate
means a corporation which, for purposes of Section 424 of the Code, is a parent or subsidiary of the Company, direct or indirect.


 


Agreement
means an agreement between the Company and a Participant delivered pursuant to the Plan and pertaining to a Stock Right, in
such form as the Administrator shall approve.


 


Board of
Directors means the Board of Directors of the Company.


 


Cause means,
with respect to a Participant (a) dishonesty with respect to the Company or any Affiliate, (b) insubordination, substantial malfeasance
or non-feasance of duty, (c) unauthorized disclosure of confidential information, (d) breach by a Participant of any provision
of any employment, consulting, advisory, nondisclosure, non-competition or similar agreement between the Participant and the Company
or any Affiliate, and (e) conduct substantially prejudicial to the business of the Company or any Affiliate; provided, however,
that any provision in an agreement between a Participant and the Company or an Affiliate, which contains a conflicting definition
of Cause for termination and which is in effect at the time of such termination, shall supersede this definition with respect
to that Participant. The determination of the Administrator as to the existence of Cause will be conclusive on the Participant
and the Company.


 


Code means
the United States Internal Revenue Code of 1986, as amended including any successor statute, regulation and guidance thereto.


 


Committee
means the committee of the Board of Directors to which the Board of Directors has delegated power to act under or pursuant
to the provisions of the Plan.


 


Common Stock
means shares of the Company’s common stock, $.01 par value per share.


 


Company means
GI Dynamics, Inc., a Delaware corporation.


 






    


     


    

 


Consultant
means any natural person who is an advisor or consultant that provides bona fide services to the Company or its Affiliates,
provided that such services are not in connection with the offer or sale of securities in a capital raising transaction, and do
not directly or indirectly promote or maintain a market for the Company’s or its Affiliates’ securities.


 


Disability
or Disabled means permanent and total disability as defined in Section 22(e)(3) of the Code.


 


Employee
means any employee of the Company or of an Affiliate (including, without limitation, an employee who is also serving as an
officer or director of the Company or of an Affiliate), designated by the Administrator to be eligible to be granted one or more
Stock Rights under the Plan.


 


Exchange
Act means the United States Securities Exchange Act of 1934, as amended.


 


Fair Market
Value of a Share of Common Stock means:


 


(1) 
If the Common Stock is listed or quoted on a securities exchange or traded in the over-the-counter market and sales prices are
regularly reported for the Common Stock, the closing price or, if not applicable, the last price of a share of Common Stock as
quoted on that securities exchange constituting the primary market for the Common Stock, as reported in The Wall Street Journal
or such other source as the Company deems reliable and if such applicable date is not a trading day, the last market trading
day prior to such date;


 


(2) If
the Common Stock is not traded on a securities exchange but is traded on the over-the-counter market, if sales prices are not
regularly reported for the Common Stock for the trading day referred to in clause (1), and if bid and asked prices for the Common
Stock are regularly reported, the mean between the bid and the asked price for the Common Stock at the close of trading in the
over-the-counter market for the trading day on which Common Stock was traded on the applicable date and if such applicable date
is not a trading day, the last market trading day prior to such date; and


 


(3) If
the Common Stock is neither listed on a securities exchange nor traded in the over-the-counter market, such value as the Administrator,
in good faith, shall determine.


 


ISO means
an option intended to qualify as an incentive stock option under Section 422 of the Code.


 


Non-Qualified
Option means an option which is not intended to qualify as an ISO. Option means an ISO or Non-Qualified Option granted
under the Plan.


 


Participant
means an Employee, director or Consultant of the Company or an Affiliate to whom one or more Stock Rights are granted under
the Plan. As used herein, “Participant” shall include “Participant’s Survivors” where the context
requires.


 






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Plan means
this GI Dynamics, Inc. 2020 Employee, Director and Consultant Equity Incentive Plan.


 


Securities
Act means the United States Securities Act of 1933, as amended.


 


Shares
means shares of the Common Stock as to which Stock Rights have been or may be granted under the Plan or any shares of capital
stock into which the Shares are changed or for which they are exchanged within the provisions of Paragraph 3 of the Plan. The
Shares issued under the Plan may be authorized and unissued shares or shares held by the Company in its treasury, or both.


 


Stock-Based
Award means a grant by the Company under the Plan of an equity award or an equity based award which is not an Option or a
Stock Grant.


 


Stock Grant
means a grant by the Company of Shares under the Plan.


 


Stock Right
means a right to Shares or the value of Shares of the Company granted pursuant to the Plan -- an ISO, a Non-Qualified Option,
a Stock Grant or a Stock-Based Award.


 


Survivor
means a deceased Participant’s legal representatives and/or any person or persons who acquired the Participant’s
rights to a Stock Right by will or by the laws of descent and distribution.


 


		2.	PURPOSES
                                         OF THE PLAN.


 


The Plan is intended
to encourage ownership of Shares by Employees and directors of and certain Consultants to the Company and its Affiliates in order
to attract and retain such people, to induce them to work for the benefit of the Company or of an Affiliate and to provide additional
incentive for them to promote the success of the Company or of an Affiliate. The Plan provides for the granting of ISOs, Non-Qualified
Options, Stock Grants and Stock-Based Awards.


 


		3.	SHARES
                                         SUBJECT TO THE PLAN.


 


(a) 
The number of Shares which may be issued from time to time pursuant to this Plan is 41,709,605 shares of Common Stock.


 


(b)
[Intentionally Omitted].

 


(c) 
If an Option ceases to be “outstanding”, in whole or in part (other than by exercise), or if the Company shall reacquire
(at not more than its original issuance price) any Shares issued pursuant to a Stock Grant or Stock-Based Award, or if any Stock
Right expires or is forfeited, cancelled, or otherwise terminated or results in any Shares not being issued, the unissued or reacquired
Shares which were subject to such Stock Right shall again be available for issuance from time to time pursuant to this Plan. Notwithstanding
the foregoing, if a Stock Right is exercised, in whole or in part, by tender of Shares or if the Company or an Affiliate’s
tax withholding obligation is satisfied by withholding Shares, the number of Shares deemed to have been issued under the Plan
for purposes of the limitation set forth in Paragraph 3(a) above shall be the number of Shares that were subject to the Stock
Right or portion thereof, and not the net number of Shares actually issued. However, in the case of ISOs, the foregoing provisions
shall be subject to any limitations under the Code.


 






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		4.	ADMINISTRATION
                                         OF THE PLAN.


 


The
Administrator of the Plan will be the Board of Directors, except to the extent the Board of Directors delegates its authority
to the Committee, in which case the Committee shall be the Administrator. Subject to the provisions of the Plan, the Administrator
is authorized to:


 


(a) 
Interpret the provisions of the Plan and all Stock Rights and to make all rules and determinations which it deems necessary or
advisable for the administration of the Plan;


 


(b) 
Determine which Employees, directors and Consultants shall be granted Stock Rights;


 


(c) 
Determine the number of Shares for which a Stock Right or Stock Rights shall be granted, provided, however, that in no event shall
Stock Rights with respect to more than 5,000,000 Shares be granted to any non-employee member of the Board of Directors in any
fiscal year;


 


(d) 
Specify the terms and conditions upon which a Stock Right or Stock Rights may be granted;


 


(e) 
Amend any term or condition of any outstanding Stock Right, including, without limitation, to increase the exercise price or purchase
price or accelerate the vesting schedule, provided that (i) such term or condition as amended is permitted by the Plan; (ii) any
such amendment shall not impair the rights of a Participant under any Stock Right previously granted without such Participant’s
consent or in the event of death of the Participant the Participant’s Survivors; and (iii) any such amendment shall be made
only after the Administrator determines whether such amendment would cause any adverse tax consequences to the Participant, including,
but not limited to, the annual vesting limitation contained in Section 422(d) of the Code and described in Paragraph 6(b)(iv)
below with respect to ISOs and pursuant to Section 409A of the Code;


 


(f) 
Buy out for a payment in cash or Shares, a Stock Right previously granted and/or cancel any such Stock Right and grant in substitution
therefor other Stock Rights, covering the same or a different number of Shares and having an exercise price or purchase price
per share which may be lower or higher than the exercise price or purchase price of the cancelled Stock Right, based on such terms
and conditions as the Administrator shall establish and the Participant shall accept; and


 


(g) 
Adopt any sub-plans applicable to residents of any specified jurisdiction as it deems necessary or appropriate in order to comply
with or take advantage of any tax or other laws applicable to the Company, any Affiliate or to Participants or to otherwise facilitate
the administration of the Plan, which sub-plans may include additional restrictions or conditions applicable to Stock Rights or
Shares issuable pursuant to a Stock Right;


 






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provided,
however, that all such interpretations, rules, determinations, terms and conditions shall be made and prescribed in the context
of not causing any adverse tax consequences under Section 409A of the Code and preserving the tax status under Section 422 of
the Code of those Options which are designated as ISOs. Subject to the foregoing, the interpretation and construction by the Administrator
of any provisions of the Plan or of any Stock Right granted under it shall be final, unless otherwise determined by the Board
of Directors, if the Administrator is the Committee. In addition, if the Administrator is the Committee, the Board of Directors
may take any action under the Plan that would otherwise be the responsibility of the Committee.


 


To
the extent permitted under applicable law, the Board of Directors or the Committee may allocate all or any portion of its responsibilities
and powers to any one or more of its members and may delegate to one or more officers of the Company the power to grant an Award,
other than to themselves, under this Plan to Participantss who are Employees and/or Consultants. The Board of Directors or the
Committee may revoke any such allocation or delegation at any time. Notwithstanding the foregoing if the Company is subject to
Section 16 of the Exchange Act, only the Board of Directors or the Committee shall be authorized to grant a Stock Right to any
director of the Company or to any “officer” of the Company as defined by Rule 16a-1 under the Exchange Act.


 


		5.	ELIGIBILITY
                                         FOR PARTICIPATION.


 


The
Administrator will, in its sole discretion, name the Participants in the Plan; provided, however, that each Participant must be
an Employee, director or Consultant of the Company or of an Affiliate at the time a Stock Right is granted. Notwithstanding the
foregoing, the Administrator may authorize the grant of a Stock Right to a person not then an Employee, director or Consultant
of the Company or of an Affiliate; provided, however, that the actual grant of such Stock Right shall be conditioned upon such
person becoming eligible to become a Participant at or prior to the time of the execution of the Agreement evidencing such Stock
Right. ISOs may be granted only to Employees who are deemed to be residents of the United States for tax purposes. Non-Qualified
Options, Stock Grants and Stock-Based Awards may be granted to any Employee, director or Consultant of the Company or an Affiliate.
The granting of any Stock Right to any individual shall neither entitle that individual to, nor disqualify him or her from, participation
in any other grant of Stock Rights or any grant under any other benefit plan established by the Company or any Affiliate for Employees,
directors or Consultants.


 


		6.	TERMS
                                         AND CONDITIONS OF OPTIONS.


 


Each
Option shall be set forth in writing in an Option Agreement, duly executed by the Company and, to the extent required by law or
requested by the Company, by the Participant. The Administrator may provide that Options be granted subject to such terms and
conditions, consistent with the terms and conditions specifically required under this Plan, as the Administrator may deem appropriate
including, without limitation, subsequent approval by the shareholders of the Company of this Plan or any amendments thereto.
The Option Agreements shall be subject to at least the following terms and conditions:


 


(a) 
Non-Qualified Options: Each Option intended to be a Non-Qualified Option shall be subject to the terms and conditions which
the Administrator determines to be appropriate and in the best interest of the Company, subject to the following minimum standards
for any such Non-Qualified Option:


 


		(i)	Exercise
                                         Price: Each Option Agreement shall state the exercise price (per share) of the Shares
                                         covered by each Option, which exercise price shall be determined by the Administrator
                                         and shall be at least equal to the Fair Market Value per share of Common Stock on the
                                         date of grant of the Option.


 



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		(ii)	Number
                                         of Shares: Each Option Agreement shall state the number of Shares to which it pertains.


 


		(iii)	Option
                                         Periods: Each Option Agreement shall state the date or dates on which it first is
                                         exercisable and the date after which it may no longer be exercised, and may provide that
                                         the Option rights accrue or become exercisable in installments over a period of months
                                         or years, or upon the occurrence of certain conditions or the attainment of stated goals
                                         or events.


 


		(iv)	Option
                                         Conditions: Exercise of any Option may be conditioned upon the Participant’s
                                         execution of a Share purchase agreement in form satisfactory to the Administrator providing
                                         for certain protections for the Company and its other shareholders, including requirements
                                         that:


 


		A.	The
                                         Participant’s or the Participant’s Survivors’ right to sell or transfer
                                         the Shares may be restricted; and


 


		B.	The
                                         Participant or the Participant’s Survivors may be required to execute letters of
                                         investment intent and must also acknowledge that the Shares will bear legends noting
                                         any applicable restrictions.


 


		(v)	Term
                                         of Option: Each Option shall terminate not more than ten years from the date of the
                                         grant or at such earlier time as the Option Agreement may provide.


 


(b) 
ISOs: Each Option intended to be an ISO shall be issued only to an Employee who is deemed to be a resident of the United
States for tax purposes, and shall be subject to the following terms and conditions, with such additional restrictions or changes
as the Administrator determines are appropriate but not in conflict with Section 422 of the Code and relevant regulations and
rulings of the Internal Revenue Service:


 


		(i)	Minimum
                                         standards: The ISO shall meet the minimum standards required of Non-Qualified Options,
                                         as described in Paragraph 6(a) above, except clause (i) and (v) thereunder.


 


		(ii)	Exercise
                                         Price: Immediately before the ISO is granted, if the Participant owns, directly or
                                         by reason of the applicable attribution rules in Section 424(d) of the Code:


 


		A.	10%
                                         or less of the total combined voting power of all classes of stock of the Company
                                         or an Affiliate, the exercise price per share of the Shares covered by each ISO shall
                                         not be less than 100% of the Fair Market Value per share of the Common Stock on the date
                                         of grant of the Option; or


 






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		B.	More
                                         than 10% of the total combined voting power of all classes of stock of the Company or
                                         an Affiliate, the exercise price per share of the Shares covered by each ISO shall not
                                         be less than 110% of the Fair Market Value per share of the Common Stock on the date
                                         of grant of the Option.


 


		(iii)	Term
                                         of Option: For Participants who own:


 


		A.	10%
                                         or less of the total combined voting power of all classes of stock of the Company
                                         or an Affiliate, each ISO shall terminate not more than ten years from the date of the
                                         grant or at such earlier time as the Option Agreement may provide; or


 


		B.	More
                                         than 10% of the total combined voting power of all classes of stock of the Company or
                                         an Affiliate, each ISO shall terminate not more than five years from the date of the
                                         grant or at such earlier time as the Option Agreement may provide.


 


		(iv)	Limitation
                                         on Yearly Exercise: The Option Agreements shall restrict the amount of ISOs which
                                         may become exercisable in any calendar year (under this or any other ISO plan of the
                                         Company or an Affiliate) so that the aggregate Fair Market Value (determined on the date
                                         each ISO is granted) of the stock with respect to which ISOs are exercisable for the
                                         first time by the Participant in any calendar year does not exceed $100,000.



 


		(v)	Aggregate
                                         Limitation. No more than 41,709,605 Shares shall be issued pursuant to the exercise
                                         of ISOs.



 


		7.	TERMS
                                         AND CONDITIONS OF STOCK GRANTS.


 


Each Stock Grant
to a Participant shall state the principal terms in an Agreement duly executed by the Company and, to the extent required by law
or requested by the Company, by the Participant. The Agreement shall be in a form approved by the Administrator and shall contain
terms and conditions which the Administrator determines to be appropriate and in the best interest of the Company, subject to
the following minimum standards:


 


(a)  Each Agreement
shall state the purchase price per share, if any, of the Shares covered by each Stock Grant, which purchase price shall be determined
by the Administrator but shall not be less than the minimum consideration required by the Delaware General Corporation Law, if
any, on the date of the grant of the Stock Grant;


 


(b)
Each Agreement shall state the number of Shares to which the Stock Grant pertains; and


 


(c)
Each Agreement shall include the terms of any right of the Company to restrict or reacquire the Shares subject to the Stock
Grant, including the time and events upon which such rights shall accrue and the purchase price therefor, if any.


 






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		8.	TERMS
                                         AND CONDITIONS OF OTHER STOCK-BASED AWARDS.


 


The Administrator
shall have the right to grant other Stock-Based Awards based upon the Common Stock having such terms and conditions as the Administrator
may determine, including, without limitation, the grant of Shares based upon certain conditions, the grant of securities convertible
into Shares and the grant of stock appreciation rights, phantom stock awards or stock units. The principal terms of each Stock-Based
Award shall be set forth in an Agreement, duly executed by the Company and, to the extent required by law or requested by the
Company, by the Participant. The Agreement shall be in a form approved by the Administrator and shall contain terms and conditions
which the Administrator determines to be appropriate and in the best interest of the Company.


 


The Company intends
that the Plan and any Stock-Based Awards granted hereunder be exempt from the application of Section 409A of the Code or meet
the requirements of paragraphs (2), (3) and (4) of subsection (a) of Section 409A of the Code, to the extent applicable, and be
operated in accordance with Section 409A of the Code so that any compensation deferred under any Stock-Based Award (and applicable
investment earnings) shall not be included in income under Section 409A of the Code. Any ambiguities in the Plan shall be construed
to effect the intent as described in this Paragraph 8.


 


		9.	EXERCISE
                                         OF OPTIONS AND ISSUE OF SHARES.


 


An Option (or any
part or installment thereof) shall be exercised by giving written notice to the Company or its designee (in a form acceptable
to the Administrator, which may include electronic notice), together with provision for payment of the aggregate exercise price
in accordance with this Paragraph for the Shares as to which the Option is being exercised, and upon compliance with any other
condition(s) set forth in the Option Agreement. Such notice shall be signed by the person exercising the Option (which signature
may be provided electronically in a form acceptable to the Administrator), shall state the number of Shares with respect to which
the Option is being exercised and shall contain any representation required by the Plan or the Option Agreement. Payment of the
exercise price for the Shares as to which such Option is being exercised shall be made (a) in United States dollars in cash or
by check, or (b) at the discretion of the Administrator, through delivery of shares of Common Stock held for at least six months
(if required to avoid negative accounting treatment) having a Fair Market Value equal as of the date of the exercise to the aggregate
cash exercise price for the number of Shares as to which the Option is being exercised, or (c) at the discretion of the Administrator,
by having the Company retain from the Shares otherwise issuable upon exercise of the Option, a number of Shares having a Fair
Market Value equal as of the date of exercise to the aggregate exercise price for the number of Shares as to which the Option
is being exercised, or (d) at the discretion of the Administrator, (after consideration of applicable securities, tax and accounting
implications), by delivery of the grantee’s personal recourse note bearing interest payable not less than annually at no
less than 100% of the applicable Federal rate, as defined in Section 1274(d) of the Code, or (e) at the discretion of the Administrator,
in accordance with a cashless exercise program established with a securities brokerage firm, and approved by the Administrator,
or (f) at the discretion of the Administrator, by any combination of (a), (b), (c), (d) and (e) above or (g) at the discretion
of the Administrator, by payment of such other lawful consideration as the Administrator may determine. Notwithstanding the foregoing,
the Administrator shall accept only such payment on exercise of an ISO as is permitted by Section 422 of the Code.


 






    8


    


    

 


The Company shall
then reasonably promptly deliver the Shares as to which such Option was exercised to the Participant (or to the Participant’s
Survivors, as the case may be). In determining what constitutes “reasonably promptly,” it is expressly understood
that the issuance and delivery of the Shares may be delayed by the Company in order to comply with any law or regulation (including,
without limitation, state securities or “blue sky” laws) which requires the Company to take any action with respect
to the Shares prior to their issuance. The Shares shall, upon delivery, be fully paid, non-assessable Shares.


 


		10.	PAYMENT
                                         IN CONNECTION WITH THE ISSUANCE OF STOCK GRANTS AND STOCK-BASED AWARDS AND ISSUE OF SHARES.


 


Any Stock Grant or
Stock-Based Award requiring payment of a purchase price for the Shares as to which such Stock Grant or Stock-Based Award is being
granted shall be made (a) in United States dollars (or in such other currency as the Administrator may determine)in cash or by
check, or (b) at the discretion of the Administrator, through delivery of shares of Common Stock held for at least six months
(if required to avoid negative accounting treatment) and having a Fair Market Value equal as of the date of payment to the purchase
price of the Stock Grant or Stock-Based Award, or (c) at the discretion of the Administrator, by any combination of (a) and (b)
above; or (d) at the discretion of the Administrator, by payment of such other lawful consideration as the Administrator may determine.


 


The Company shall
when required by the applicable Agreement, reasonably promptly deliver the Shares as to which such Stock Grant or Stock-Based
Award was made to the Participant (or to the Participant’s Survivors, as the case may be), subject to any escrow provision
set forth in the applicable Agreement. In determining what constitutes “reasonably promptly,” it is expressly understood
that the issuance and delivery of the Shares may be delayed by the Company in order to comply with any law or regulation (including,
without limitation, state securities or “blue sky” laws) which requires the Company to take any action with respect
to the Shares prior to their issuance.


 


		11.	RIGHTS
                                         AS A SHAREHOLDER.


 


No Participant to
whom a Stock Right has been granted shall have rights as a shareholder with respect to any Shares covered by such Stock Right
except after due exercise of an Option or issuance of Shares as set forth in any Agreement, tender of the aggregate exercise or
purchase price, if any, for the Shares being purchased and registration of the Shares in the Company’s share register in
the name of the Participant.


 


		12.	ASSIGNABILITY
                                         AND TRANSFERABILITY OF STOCK RIGHTS.


 


By its terms, a Stock
Right granted to a Participant shall not be transferable by the Participant other than (i) by will or by the laws of descent and
distribution, or (ii) as approved by the Administrator in its discretion and set forth in the applicable Agreement provided that
no Stock Right may be transferred by a Participant for value. Notwithstanding the foregoing, an ISO transferred except in compliance
with clause (i) above shall no longer qualify as an ISO.


 


The designation of
a beneficiary of a Stock Right by a Participant, with the prior approval of the Administrator and in such form as the Administrator
shall prescribe, shall not be deemed a transfer prohibited by this Paragraph. Except as provided above during the Participant’s
lifetime a Stock Right shall only be exercisable by or issued to such Participant (or his or her legal representative) and shall
not be assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and shall not be subject to execution,
attachment or similar process. Any attempted transfer, assignment, pledge, hypothecation or other disposition of any Stock Right
or of any rights granted thereunder contrary to the provisions of this Plan, or the levy of any attachment or similar process
upon a Stock Right, shall be null and void.


 






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		13.	EFFECT
                                         ON OPTIONS OF TERMINATION OF SERVICE OTHER THAN FOR CAUSE OR DEATH OR DISABILITY.



 


Except as otherwise
provided in a Participant’s Option Agreement, in the event of a termination of service (whether as an Employee, director
or Consultant) with the Company or an Affiliate before the Participant has exercised an Option, the following rules apply:


 


(a)  A Participant
who ceases to be an Employee, director or Consultant of the Company or of an Affiliate (for any reason other than termination
for Cause, Disability, or death for which events there are special rules in Paragraphs 14, 15, and 16, respectively), may exercise
any Option granted to him or her to the extent that the Option is exercisable on the date of such termination of service, but
only within such term as the Administrator has designated in a Participant’s Option Agreement.


 


(b)  Except
as provided in Subparagraph (c) below, or Paragraph 15 or 16, in no event may an Option intended to be an ISO, be exercised later
than three months after the Participant’s termination of employment.


 


(c)  The provisions
of this Paragraph, and not the provisions of Paragraph 15 or 16, shall apply to a Participant who subsequently becomes Disabled
or dies after the termination of employment, director status or consultancy; provided, however, in the case of a Participant’s
Disability or death within three months after the termination of employment, director status or consultancy, the Participant or
the Participant’s Survivors may exercise the Option within one year after the date of the Participant’s termination
of service, but in no event after the date of expiration of the term of the Option.


 


(d)  Notwithstanding
anything herein to the contrary, if subsequent to a Participant’s termination of employment, termination of director status
or termination of consultancy, but prior to the exercise of an Option, the Administrator determines that, either prior or subsequent
to the Participant’s termination, the Participant engaged in conduct which would constitute Cause, then such Participant
shall forthwith cease to have any right to exercise any Option.


 


(e)  A Participant
to whom an Option has been granted under the Plan who is absent from the Company or an Affiliate because of temporary disability
(any disability other than a Disability as defined in Paragraph 1 hereof), or who is on leave of absence for any purpose, shall
not, during the period of any such absence, be deemed, by virtue of such absence alone, to have terminated such Participant’s
employment, director status or consultancy with the Company or with an Affiliate, except as the Administrator may otherwise expressly
provide; provided, however, that, for ISOs, any leave of absence granted by the Administrator of greater than ninety days, unless
pursuant to a contract or statute that guarantees the right to reemployment, shall cause such ISO to become a Non-Qualified Option
on the 181st day following such leave of absence.


 


(f)  Except
as required by law or as set forth in a Participant’s Option Agreement, Options granted under the Plan shall not be affected
by any change of a Participant’s status within or among the Company and any Affiliates, so long as the Participant continues
to be an Employee, director or Consultant of the Company or any Affiliate.


 


		14.	EFFECT
                                         ON OPTIONS OF TERMINATION OF SERVICE FOR CAUSE.


 


Except as otherwise
provided in a Participant’s Option Agreement, the following rules apply if the Participant’s service (whether as an
Employee, director or Consultant) with the Company or an Affiliate is terminated for Cause prior to the time that all his or her
outstanding Options have been exercised:


 


(a)  All outstanding
and unexercised Options as of the time the Participant is notified his or her service is terminated for Cause will immediately
be forfeited.


 


(b)  Cause is
not limited to events which have occurred prior to a Participant’s termination of service, nor is it necessary that the
Administrator’s finding of Cause occur prior to termination. If the Administrator determines, subsequent to a Participant’s
termination of service but prior to the exercise of an Option, that either prior or subsequent to the Participant’s termination
the Participant engaged in conduct which would constitute Cause, then the right to exercise any Option is forfeited.


 


		15.	EFFECT
                                         ON OPTIONS OF TERMINATION OF SERVICE FOR DISABILITY. 



 


Except as otherwise provided in a Participant’s Option Agreement:

 


(a) 
A Participant who ceases to be an Employee, director or Consultant of the Company or of an Affiliate by reason of Disability may
exercise any Option granted to such Participant:


 


		(i)	To
                                         the extent that the Option has become exercisable but has not been exercised on the date
                                         of the Participant’s termination of service due to Disability; and


 


		(ii)	In
                                         the event rights to exercise the Option accrue periodically, to the extent of a pro rata
                                         portion through the date of the Participant’s termination of service due to Disability
                                         of any additional vesting rights that would have accrued on the next vesting date had
                                         the Participant not become Disabled. The proration shall be based upon the number of
                                         days accrued in the current vesting period prior to the date of the Participant’s
                                         termination of service due to Disability.


 






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(b) 
A Disabled Participant may exercise the Option only within the period ending one year after the date of the Participant’s
termination of service due to Disability, notwithstanding that the Participant might have been able to exercise the Option as
to some or all of the Shares on a later date if the Participant had not been terminated due to Disability and had continued to
be an Employee, director or Consultant or, if earlier, within the originally prescribed term of the Option.


 


(c) 
The Administrator shall make the determination both of whether Disability has occurred and the date of its occurrence (unless
a procedure for such determination is set forth in another agreement between the Company and such Participant, in which case such
procedure shall be used for such determination). If requested, the Participant shall be examined by a physician selected or approved
by the Administrator, the cost of which examination shall be paid for by the Company.


 


		16.	EFFECT
                                         ON OPTIONS OF DEATH WHILE AN EMPLOYEE, DIRECTOR OR CONSULTANT.


 


Except
as otherwise provided in a Participant’s Option Agreement:


 


(a) 
In the event of the death of a Participant while the Participant is an Employee, director or Consultant of the Company or of an
Affiliate, such Option may be exercised by the Participant’s Survivors:


 


		(i)	To
                                         the extent that the Option has become exercisable but has not been exercised on the date
                                         of death; and


 


		(ii)	In
                                         the event rights to exercise the Option accrue periodically, to the extent of a pro rata
                                         portion through the date of death of any additional vesting rights that would have accrued
                                         on the next vesting date had the Participant not died. The proration shall be based upon
                                         the number of days accrued in the current vesting period prior to the Participant’s
                                         date of death.


 


(b) 
If the Participant’s Survivors wish to exercise the Option, they must take all necessary steps to exercise the Option within
one year after the date of death of such Participant, notwithstanding that the decedent might have been able to exercise the Option
as to some or all of the Shares on a later date if he or she had not died and had continued to be an Employee, director or Consultant
or, if earlier, within the originally prescribed term of the Option.


 


		17.	EFFECT
                                         OF TERMINATION OF SERVICE ON STOCK GRANTS AND STOCK-BASED AWARDS.


 


In
the event of a termination of service (whether as an Employee, director or Consultant) with the Company or an Affiliate for any
reason before the Participant has accepted a Stock Grant or a Stock-Based Award and paid the purchase price, if required, such
grant shall terminate.


 


For
purposes of this Paragraph 17 and Paragraph 18 below, a Participant to whom a Stock Grant has been issued under the Plan who is
absent from work with the Company or with an Affiliate because of temporary disability (any disability other than a Disability
as defined in Paragraph 1 hereof), or who is on leave of absence for any purpose, shall not, during the period of any such absence,
be deemed, by virtue of such absence alone, to have terminated such Participant’s employment, director status or consultancy
with the Company or with an Affiliate, except as the Administrator may otherwise expressly provide.


 






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In
addition, for purposes of this Paragraph 17 and Paragraph 18 below, any change of employment or other service within or among
the Company and any Affiliates shall not be treated as a termination of employment, director status or consultancy so long as
the Participant continues to be an Employee, director or Consultant of the Company or any Affiliate.


 


		18.	EFFECT
                                         ON STOCK GRANTS OF TERMINATION OF SERVICE OTHER THAN FOR CAUSE OR DEATH OR DISABILITY.


 


Except
as otherwise provided in a Participant’s Stock Grant Agreement, in the event of a termination of service (whether as an
Employee, director or Consultant), other than termination for Cause, Disability, or death for which events there are special rules
in Paragraphs 19, 20, and 21, respectively, before all forfeiture provisions or Company rights of repurchase shall have lapsed,
then the Company shall have the right to cancel or repurchase that number of Shares subject to a Stock Grant as to which the Company’s
forfeiture or repurchase rights have not lapsed.


 


		19.	EFFECT
                                         ON STOCK GRANTS OF TERMINATION OF SERVICE FOR CAUSE.


 


Except
as otherwise provided in a Participant’s Stock Grant Agreement, the following rules apply if the Participant’s service
(whether as an Employee, director or Consultant) with the Company or an Affiliate is terminated for Cause:


 


(a) 
All Shares subject to any Stock Grant that remain subject to forfeiture provisions or as to which the Company shall have a repurchase
right shall be immediately forfeited to the Company as of the time the Participant is notified his or her service is terminated
for Cause.


 


(b) 
Cause is not limited to events which have occurred prior to a Participant’s termination of service, nor is it necessary
that the Administrator’s finding of Cause occur prior to termination. If the Administrator determines, subsequent to a Participant’s
termination of service, that either prior or subsequent to the Participant’s termination the Participant engaged in conduct
which would constitute Cause, then all Shares subject to any Stock Grant that remained subject to forfeiture provisions or as
to which the Company had a repurchase right on the date of termination shall be immediately forfeited to the Company.


 


		20.	EFFECT
                                         ON STOCK GRANTS OF TERMINATION OF SERVICE FOR DISABILITY.


 


Except
as otherwise provided in a Participant’s Stock Grant Agreement, the following rules apply if a Participant ceases to be
an Employee, director or Consultant of the Company or of an Affiliate by reason of Disability: to the extent the forfeiture provisions
or the Company’s rights of repurchase have not lapsed on the date of Disability, they shall be exercisable; provided, however,
that in the event such forfeiture provisions or rights of repurchase lapse periodically, such provisions or rights shall lapse
to the extent of a pro rata portion of the Shares subject to such Stock Grant through the date of Disability as would have lapsed
had the Participant not become Disabled. The proration shall be based upon the number of days accrued prior to the date of Disability.


 






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The
Administrator shall make the determination both as to whether Disability has occurred and the date of its occurrence (unless a
procedure for such determination is set forth in another agreement between the Company and such Participant, in which case such
procedure shall be used for such determination). If requested, the Participant shall be examined by a physician selected or approved
by the Administrator, the cost of which examination shall be paid for by the Company.


 


		21.	EFFECT
                                         ON STOCK GRANTS OF DEATH WHILE AN EMPLOYEE, DIRECTOR OR CONSULTANT.


 


Except
as otherwise provided in a Participant’s Stock Grant Agreement, the following rules apply in the event of the death of a
Participant while the Participant is an Employee, director or Consultant of the Company or of an Affiliate: to the extent the
forfeiture provisions or the Company’s rights of repurchase have not lapsed on the date of death, they shall be exercisable;
provided, however, that in the event such forfeiture provisions or rights of repurchase lapse periodically, such provisions or
rights shall lapse to the extent of a pro rata portion of the Shares subject to such Stock Grant through the date of death as
would have lapsed had the Participant not died. The proration shall be based upon the number of days accrued prior to the Participant’s
date of death.


 


		22.	PURCHASE
                                         FOR INVESTMENT.


 


Unless
the offering and sale of the Shares shall have been effectively registered under the Securities Act, the Company shall be under
no obligation to issue Shares under the Plan unless and until the following conditions have been fulfilled:


 


(a) 
The person who receives a Stock Right shall warrant to the Company, prior to the receipt of Shares, that such person is acquiring
such Shares for his or her own account, for investment, and not with a view to, or for sale in connection with, the distribution
of any such Shares, in which event the person acquiring such Shares shall be bound by the provisions of the following legend (or
a legend in substantially similar form) which shall be endorsed upon the certificate evidencing the Shares issued pursuant to
such exercise or such grant:


 


“The
shares represented by this certificate have been taken for investment and they may not be sold or otherwise transferred by any
person, including a pledgee, unless (1) either (a) a Registration Statement with respect to such shares shall be effective under
the Securities Act of 1933, as amended, or (b) the Company shall have received an opinion of counsel satisfactory to it that an
exemption from registration under such Act is then available, and (2) there shall have been compliance with all applicable state
securities laws.”


 


(b) 
At the discretion of the Administrator, the Company shall have received an opinion of its counsel that the Shares may be issued
in compliance with the Securities Act without registration thereunder.


 






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		23.	DISSOLUTION
                                         OR LIQUIDATION OF THE COMPANY.


 


Upon
the dissolution or liquidation of the Company, all Options granted under this Plan which as of such date shall not have been exercised
and all Stock Grants and Stock-Based Awards which have not been accepted, to the extent required under the applicable Agreement,
will terminate and become null and void; provided, however, that if the rights of a Participant or a Participant’s Survivors
have not otherwise terminated and expired, the Participant or the Participant’s Survivors will have the right immediately
prior to such dissolution or liquidation to exercise or accept any Stock Right to the extent that the Stock Right is exercisable
or subject to acceptance as of the date immediately prior to such dissolution or liquidation. Upon the dissolution or liquidation
of the Company, any outstanding Stock-Based Awards shall immediately terminate unless otherwise determined by the Administrator
or specifically provided in the applicable Agreement.


 


		24.	ADJUSTMENTS.


 


Subject
to the requirements imposed on the Company under the rules of any securities exchange, upon the occurrence of any of the following
events, a Participant’s rights with respect to any Stock Right granted to him or her hereunder shall be adjusted as hereinafter
provided, unless otherwise specifically provided in a Participant’s Agreement:


 


(a) 
Stock Dividends and Stock Splits. If (i) the shares of Common Stock shall be subdivided or combined into a greater or smaller
number of shares or if the Company shall issue any shares of Common Stock as a stock dividend on its outstanding Common Stock,
or (ii) additional shares or new or different shares or other securities of the Company or other non-cash assets are distributed
with respect to such shares of Common Stock, each Stock Right and the number of shares of Common Stock deliverable thereunder
shall be appropriately increased or decreased proportionately, and appropriate adjustments shall be made including, in the exercise
or purchase price per share, to reflect such events. The number of Shares subject to the limitations in Paragraph 3(a) and 4(c)
shall also be proportionately adjusted upon the occurrence of such events.


 


(b) 
Corporate Transactions. If the Company is to be consolidated with or acquired by another entity in a merger, consolidation,
or sale of all or substantially all of the Company’s assets other than a transaction to merely change the state of incorporation
(a “Corporate Transaction”), the Administrator or the board of directors of any entity assuming the obligations of
the Company hereunder (the “Successor Board”), shall, as to outstanding Options, either (i) make appropriate provision
for the continuation of such Options by substituting on an equitable basis for the Shares then subject to such Options either
the consideration payable with respect to the outstanding shares of Common Stock in connection with the Corporate Transaction
or securities of any successor or acquiring entity; or (ii) upon written notice to the Participants, provide that such Options
must be exercised (either (A) to the extent then exercisable or, (B) at the discretion of the Administrator, any such Options
being made partially or fully exercisable for purposes of this Subparagraph), within a specified number of days of the date of
such notice, at the end of which period such Options which have not been exercised shall terminate; or (iii) terminate such Options
in exchange for payment of an amount equal to the consideration payable upon consummation of such Corporate Transaction to a holder
of the number of shares of Common Stock into which such Option would have been exercisable (either (A) to the extent then exercisable
or, (B) at the discretion of the Administrator, any such Options being made partially or fully exercisable for purposes of this
Subparagraph) less the aggregate exercise price thereof. For purposes of determining the payments to be made pursuant to
Subclause (iii) above, in the case of a Corporate Transaction the consideration for which, in whole or in part, is other than
cash, the consideration other than cash shall be valued at the fair value thereof as determined in good faith by the Board of
Directors.


 






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With
respect to outstanding Stock Grants, the Administrator or the Successor Board, shall make appropriate provision for the continuation
of such Stock Grants on the same terms and conditions by substituting on an equitable basis for the Shares then subject to such
Stock Grants either the consideration payable with respect to the outstanding Shares of Common Stock in connection with the Corporate
Transaction or securities of any successor or acquiring entity. In lieu of the foregoing, in connection with any Corporate Transaction,
the Administrator may provide that, upon consummation of the Corporate Transaction, each outstanding Stock Grant shall be terminated
in exchange for payment of an amount equal to the consideration payable upon consummation of such Corporate Transaction to a holder
of the number of shares of Common Stock comprising such Stock Grant (to the extent such Stock Grant is no longer subject to any
forfeiture or repurchase rights then in effect or, at the discretion of the Administrator, all forfeiture and repurchase rights
being waived upon such Corporate Transaction).


 


In
taking any of the actions permitted under this Paragraph 24(b), the Administrator shall not be obligated by the Plan to treat
all Stock Rights, all Stock Rights held by a Participant, or all Stock Rights of the same type, identically.


 


(c) 
Recapitalization or Reorganization. In the event of a recapitalization or reorganization of the Company other than a Corporate
Transaction pursuant to which securities of the Company or of another corporation are issued with respect to the outstanding shares
of Common Stock, a Participant upon exercising an Option or accepting a Stock Grant after the recapitalization or reorganization
shall be entitled to receive for the price paid upon such exercise or acceptance if any, the number of replacement securities
which would have been received if such Option had been exercised or Stock Grant accepted prior to such recapitalization or reorganization.


 


(d) 
Adjustments to Stock-Based Awards. Upon the happening of any of the events described in Subparagraphs (a), (b) or (c) above,
any outstanding Stock-Based Award shall be appropriately adjusted to reflect the events described in such Subparagraphs. The Administrator
or the Successor Board shall determine the specific adjustments to be made under this Paragraph 25, including, but not limited
to the effect of any, Corporate Transaction and, subject to Paragraph 5, its determination shall be conclusive.


 


(e) 
Modification of Options. Notwithstanding the foregoing, any adjustments made pursuant to Subparagraph (a), (b) or (c) above
with respect to Options shall be made only after the Administrator determines whether such adjustments would (i) constitute a
“modification” of any ISOs (as that term is defined in Section 424(h) of the Code) or (ii) cause any adverse tax consequences
for the holders of Options, including, but not limited to, pursuant to Section 409A of the Code. If the Administrator determines
that such adjustments made with respect to Options would constitute a modification or other adverse tax consequence, it may refrain
from making such adjustments, unless the holder of an Option specifically agrees in writing that such adjustment be made and such
writing indicates that the holder has full knowledge of the consequences of such “modification” on his or her income
tax treatment with respect to the Option. This paragraph shall not apply to the acceleration of the vesting of any ISO that would
cause any portion of the ISO to violate the annual vesting limitation contained in Section 422(d) of the Code, as described in
Paragraph 6(b)(iv).


 






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		25.	ISSUANCES
                                         OF SECURITIES.


 


Except
as expressly provided herein, no issuance by the Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of
shares subject to Stock Rights. Except as expressly provided herein, no adjustments shall be made for dividends paid in cash or
in property (including without limitation, securities) of the Company prior to any issuance of Shares pursuant to a Stock Right.


 


		26.	FRACTIONAL
                                         SHARES.


 


No
fractional shares shall be issued under the Plan and the person exercising a Stock Right shall receive from the Company cash in
lieu of such fractional shares equal to the Fair Market Value thereof.


 


		27.	CONVERSION
                                         OF ISOS INTO NON-QUALIFIED OPTIONS; TERMINATION OF ISOS.


 


The
Administrator, at the written request of any Participant, may in its discretion take such actions as may be necessary to convert
such Participant’s ISOs (or any portions thereof) that have not been exercised on the date of conversion into Non-Qualified
Options at any time prior to the expiration of such ISOs, regardless of whether the Participant is an Employee of the Company
or an Affiliate at the time of such conversion. At the time of such conversion, the Administrator (with the consent of the Participant)
may impose such conditions on the exercise of the resulting Non-Qualified Options as the Administrator in its discretion may determine,
provided that such conditions shall not be inconsistent with this Plan. Nothing in the Plan shall be deemed to give any Participant
the right to have such Participant’s ISOs converted into Non-Qualified Options, and no such conversion shall occur until
and unless the Administrator takes appropriate action. The Administrator, with the consent of the Participant, may also terminate
any portion of any ISO that has not been exercised at the time of such conversion.


 


		28.	WITHHOLDING.


 


In
the event that any federal, state, or local income taxes, employment taxes, Federal Insurance Contributions Act (“F.I.C.A.”)
withholdings or other amounts are required by applicable law or governmental regulation to be withheld from the Participant’s
salary, wages or other remuneration in connection with the issuance of a Stock Right or Shares under the Plan or for any other
reason required by law, the Company may withhold from the Participant’s compensation, if any, or may require that the Participant
advance in cash to the Company, or to any Affiliate of the Company which employs or employed the Participant, the statutory minimum
amount of such withholdings unless a different withholding arrangement, including the use of shares of the Company’s Common
Stock or a promissory note, is authorized by the Administrator (and permitted by law). For purposes hereof, the fair market value
of the shares withheld for purposes of payroll withholding shall be determined in the manner set forth under the definition of
Fair Market Value provided in Paragraph 1 above, as of the most recent practicable date prior to the date of exercise. If the
Fair Market Value of the shares withheld is less than the amount of payroll withholdings required, the Participant may be required
to advance the difference in cash to the Company or the Affiliate employer. The Administrator in its discretion may condition
the exercise of an Option for less than the then Fair Market Value on the Participant’s payment of such additional withholding.


 






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		29.	NOTICE
                                         TO COMPANY OF DISQUALIFYING DISPOSITION.


 


Each
Employee who receives an ISO must agree to notify the Company in writing immediately after the Employee makes a Disqualifying
Disposition of any Shares acquired pursuant to the exercise of an ISO. A Disqualifying Disposition is defined in Section 424(c)
of the Code and includes any disposition (including any sale or gift) of such Shares before the later of (a) two years after the
date the Employee was granted the ISO, or (b) one year after the date the Employee acquired Shares by exercising the ISO, except
as otherwise provided in Section 424(c) of the Code. If the Employee has died before such Shares are sold, these holding period
requirements do not apply and no Disqualifying Disposition can occur thereafter.


 


		30.	TERMINATION
                                         OF THE PLAN.


 


The
Plan will terminate on _______, 2030, the date which is ten years from the earlier of the date of its adoption by
the Board of Directors and the date of its approval by the shareholders of the Company. The Plan may be terminated at an earlier
date by vote of the shareholders or the Board of Directors of the Company; provided, however, that any such earlier termination
shall not affect any Agreements executed prior to the effective date of such termination. Termination of the Plan shall not affect
any Stock Rights theretofore granted.


 


		31.	AMENDMENT
                                         OF THE PLAN AND AGREEMENTS.


 


The
Plan may be amended by the shareholders of the Company. The Plan may also be amended by the Administrator, including, without
limitation, to the extent necessary to qualify any or all outstanding Stock Rights granted under the Plan or Stock Rights to be
granted under the Plan for favorable federal income tax treatment as may be afforded incentive stock options under Section 422
of the Code (including deferral of taxation upon exercise), and to the extent necessary to qualify the Shares issuable under the
Plan for listing on any national securities exchange or quotation in any national automated quotation system of securities dealers.
Any amendment approved by the Administrator which the Administrator determines is of a scope that requires shareholder approval
shall be subject to obtaining such shareholder approval. Any modification or amendment of the Plan shall not, without the consent
of a Participant, adversely affect his or her rights under a Stock Right previously granted to him or her. With the consent of
the Participant affected, the Administrator may amend outstanding Agreements in a manner which may be adverse to the Participant
but which is not inconsistent with the Plan. In the discretion of the Administrator, outstanding Agreements may be amended by
the Administrator in a manner which is not adverse to the Participant.


 


		32.	EMPLOYMENT
                                         OR OTHER RELATIONSHIP.


 


Nothing
in this Plan or any Agreement shall be deemed to prevent the Company or an Affiliate from terminating the employment, consultancy
or director status of a Participant, nor to prevent a Participant from terminating his or her own employment, consultancy or director
status or to give any Participant a right to be retained in employment or other service by the Company or any Affiliate for any
period of time.


 


		33.	GOVERNING
                                         LAW.


 


This
Plan shall be construed and enforced in accordance with the law of the State of Delaware.


 


* * * * *


 


Originally
adopted by the Board of Directors on _____________, 2020


 


Originally adopted by the stockholders
on ____________, 2020


 


 


 


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