Exhibit 10.1


 


CONSULTING
AGREEMENT


 


This
CONSULTING AGREEMENT (the “Agreement”) is effective the 31st day of December 2020 (the “Effective
Date”) by and between Charles R. Carter (the “Consultant”)
and GI Dynamics, Inc., 320 Congress Street, Boston, MA 02210 (the “Company”).


 


WHEREAS,
GI Dynamics desires to retain Consultant as an independent contractor and Consultant is willing to serve in that capacity, on
the terms described below. In consideration of the mutual promises and covenants contained in this Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Consultant and Company agree as follows:


 


		1.	Services.
Consultant agrees to personally render to the Company the services described on Exhibit A attached hereto and incorporated herein
by reference (the “Services”). During the Term (as defined below), Consultant agrees to provide the Services upon
the Company’s request and approval by the Authorized Representative/Supervisor listed in Exhibit A. The Company will not
control the manner or means by which Consultant performs the Services.



 


		2.	Term
                                         of Consulting Arrangement. This Agreement commences on the Effective Date and will
                                         not terminate unless under mutually agreed consent, prior to 31 March 2021 (the “Term”).
                                         The Term may be extended upon mutual agreement of Consultant and the Company. The Agreement
                                         automatically terminates at the conclusion of the initial Term absent such extension.



 


		a)	Notwithstanding
the above, the Company may terminate this Agreement immediately upon written notice to Consultant at any time during the Term:
(i) for “Cause” (as defined below), (ii) upon the death of Consultant, or (iii) following Consultant’s failure
to perform the Services due to illness, accident or any other physical or mental incapacity. As used herein, “Cause”
includes (a) any breach by Consultant of the terms of this Agreement which is not cured within five (5) days of written notice
thereof to Consultant from the Company, including but not limited to, Consultant being unable or unwilling to provide agreed services
for the minimum required weekly hours, (b) any breach by Consultant of the terms of this Agreement which, by its nature, is not
curable, (c) the willful failure or refusal of Consultant to carry out any Services requested by the Company that continues for
five (5) days after written notice is given to Consultant of such failure, (d) Consultant’s acceptance and commencement
of full-time employment prior to the fulfillment of the Term, or (e) the commission by Consultant of any act of fraud, embezzlement
or deliberate disregard of a rule or policy of the Company.



 


		b)	Notwithstanding
                                         the above, Consultant may terminate this Agreement immediately upon written notice to
                                         the Company at any time during the Term for the assignment of roles and responsibilities
                                         significantly different than the roles and responsibilities established for the Consultant
                                         when the Consultant was employed as Chief Financial Officer, Secretary and Treasurer
                                         of the Company, or (b) the non-payment of invoiced amounts due to Consultant by the Company
                                         for a period in excess of thirty (30) days after the invoice was delivered by the Consultant
                                         to the Company, unless agreed to in writing by the Consultant.



 






     


     


    

 


		3.	Fees
and Reimbursements. In full consideration of the full, prompt and faithful performance of the Services by Consultant, the
Company agrees to compensate Consultant at an hourly rate presented in Exhibit A for Company pre-approved Services.



 


		a)	The
                                         services are provided on an hourly basis and are not fixed with respect to either maximum
                                         hours or total cost per project, deliverable or work product without prior mutual agreement.
                                         The Company agrees to pay Consultant for hours of service expended, rounded to the nearest
                                         quarter-hour. Consultant agrees to maintain productivity per hour consistent with the
                                         productivity experienced when the Consultant was employed as Chief Financial Officer,
                                         Secretary and Treasurer of the Company.



 


		b)	During
the Term of this Agreement, the Company will also reimburse Consultant for the reasonable out-of-pocket business and travel expenses
incurred by Consultant in performing the Services hereunder upon submission by Consultant of supporting documentation reasonably
acceptable to the Company and otherwise pursuant to Company policy regarding third-party expense reimbursement. Any expense in
excess of $200 must be pre-approved by an authorized representative of the Company.



 


		c)	Consultant
                                         will provide a monthly invoice within five (5) business days of the last day of the month
                                         being invoiced. The Company agrees to pay invoices via electronic transfer of funds within
                                         ten (10) business days of receipt of an invoice. Consultant reserves the right to immediately
                                         terminate this Consulting Agreement for non-payment of invoiced amounts due to Consultant
                                         by the Company for a period in excess of thirty (30) days after the invoice was delivered
                                         by the Consultant to the Company, unless previously agreed to in writing by the Consultant.



 


		4.	Confidentiality.
                                         Consultant expressly reaffirms Consultant’s obligations under Consultant’s
                                         existing Nondisclosure, Non-solicitation and Noncompete Agreement dated 1 September 2019.
                                         Consultant acknowledges and agrees that this Agreement does not impact any continuing
                                         obligations under Consultant’s existing Nondisclosure, Non-solicitation and Noncompete
                                         Agreement, which remains in full force and effect according to its terms. Consultant’s
                                         obligations under this Section 4 are not affected by any termination of this Agreement,
                                         including termination by the Company.



 


		5.	Records.
                                         Upon termination of Consultant’s relationship with the Company, Consultant agrees to
                                         deliver to the Company any property of the Company which may be in Consultant’s possession
                                         including products, materials, memoranda, notes, records, reports, laboratory notebooks,
                                         or other documents or photocopies of the same, including, without limitation any of the
                                         foregoing, recorded on any computer or any machine readable medium.



 


		6.	Independent
Contractor Status; No Employment Created. Consultant acknowledges that the relationship of Consultant to the Company is at
all times that of an independent contractor and not that of an employee of the Company. This Agreement does not constitute, and
may not be construed as constituting, an undertaking by the Company to hire Consultant as an employee of the Company. Consultant
is not entitled and will not be entitled to receive any of the benefits provided by the Company to its employees. The Company
may not provide Consultant with an office or other space from which to conduct the Services. Consultant agrees to perform the
Services free of the direction of the Company, but consistent with the objectives it sets, and bears the benefit/risk of any profit
or loss from rendering the Services. The Company will record payments to Consultant on an IRS Form 1099, and will not withhold
any federal, state or local employment taxes on Consultant’s behalf. Consultant will be solely responsible for the payment of
all federal, state and local taxes and contributions imposed or required on income, unemployment insurance, social security and
any other law or regulation.



 






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		7.	Miscellaneous.



 


		a)	No
                                         Conflicts. Consultant hereby represents and warrants that (i) Consultant has no commitments
                                         or obligations inconsistent with this Agreement, (ii) any services Consultant provides
                                         and information or materials Consultant develops for or discloses to the Company will
                                         not in any way be based upon any confidential or proprietary information derived from
                                         any source other than the Company; and (iii) the performance by Consultant of the Services
                                         do not as of the Effective Date and will not at any time during the Term conflict with
                                         or otherwise overlap any field in which Consultant is performing services under a consulting
                                         or employment agreement. Consultant hereby agrees to indemnify and hold the Company harmless
                                         against any claim based upon circumstances alleged to be inconsistent with such representations
                                         and/or warranties.



 


		b)	Notices.
                                         Any notice or other communication required or permitted hereunder shall be deemed sufficiently
                                         given if sent by electronic delivery, facsimile transmission, recognized courier service
                                         or certified mail, postage and fees prepaid, addressed to the party to be notified as
                                         follows: if to the Company to its address set forth above, and if to Consultant to the
                                         address set forth above, or in each case to such other address as either party may from
                                         time to time designate in writing to the other. Such notice or communication is deemed
                                         to have been given as of the date sent by electronic delivery, facsimile, or delivered
                                         to a recognized courier service, or three days following the date deposited with the
                                         United States Postal Service.



 


		c)	Governing
                                         Law; Arbitration. This Agreement is governed by, and construed and enforced in accordance
                                         with, the laws of the Commonwealth of Massachusetts, without application of the conflicts
                                         of law provisions thereof. Any legal action or proceeding with respect to this Agreement
                                         must be brought exclusively in the courts of the Commonwealth of Massachusetts or of
                                         the United States of America or an appropriate district within the Commonwealth of Massachusetts.
                                         By execution and delivery of this Agreement, each of the Company and Consultant hereby
                                         accepts, generally and unconditionally, the jurisdiction of the aforesaid courts.



 


		d)	Damages.
                                         OTHER THAN FOR BREACHES OF THE CONSULTANT’S OBLIGATIONS UNDER SECTION 4, IN NO
                                         EVENT IS EITHER PARTY LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL
                                         DAMAGES ARISING OUT OF ANY DEFAULT UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT.



 


		e)	Injunctive
                                         Relief. Consultant hereby expressly acknowledges that any breach or threatened breach
                                         of any of the terms and/or conditions set forth in Sections 4 of this Agreement may result
                                         in substantial, continuing and irreparable injury to the Company. Therefore, Consultant
                                         hereby agrees that, in addition to any other remedy that may be available to the Company,
                                         the Company is entitled to seek injunctive or other equitable relief by a court of appropriate
                                         jurisdiction in the event of any breach or threatened breach of the terms of Sections
                                         4 of this Agreement.



 




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		f)	Entire
                                         Agreement. This Agreement embodies the entire agreement and understanding between
                                         the parties hereto and supersedes all prior oral or written agreements and understandings
                                         relating to the subject matter hereof. No statement, representation, warranty, covenant
                                         or agreement of any kind not set forth in this Agreement affects, or may be used to interpret,
                                         change or restrict, the express terms and provisions of this Agreement.



 


		g)	Assignment.
                                         The Company may assign its rights and obligations hereunder to any person or entity that
                                         succeeds to all or substantially all of the Company’s business or that aspect of the
                                         Company’s business in which Consultant are principally involved. The rights and obligations
                                         of Consultant under this Agreement may not be assigned without the prior written consent
                                         of the Company.



 


		h)	Modification
                                         and Amendment. This Agreement may not be modified or amended except by an instrument
                                         in writing signed by or on behalf of the parties hereto.



 


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



 


		j)	Interpretation.
                                         The parties hereto acknowledge and agree that (i) the rule of construction to the effect
                                         that any ambiguities are resolved against the drafting party, and (ii) the terms and
                                         provisions of this Agreement, will be construed fairly as to all parties hereto and not
                                         in favor of or against a party, regardless of which party was generally responsible for
                                         the preparation of this Agreement.



 


Agreed
and Accepted.


 





	GI DYNAMICS, INC	 	CONSULTANT
	 	 	 	 	 
	By:	/s/
    Joseph Virgilio	 	By:	/s/
    Charles R. Carter
	Name:  	Joseph Virgilio	 	 	Name: Charles R. Carter
	Title:	Chief Executive Officer	 	 	 



 








 







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EXHIBIT
A


 


Services,
minimum availability, and compensation


 


		1.	Services.
The Services shall include such services as were within the scope and scale of the Consultant’s responsibilities when in
the employ of the Company as the Chief Financial Officer, Secretary and Treasure (“Prior Responsibilities”). Such
Prior Responsibilities include the following:



 


		a.	Responsibility
for (including leadership and individual contribution of work product as appropriate) all facets of operational finance and accounting,
budget and forecasting activities, managerial reporting, internal control, financial policy and procedures, risk management, technical
accounting, 409(a) valuations, tax, treasury, audit, SEC reporting, and legal compliance. This includes the management of external
vendors consistent with Prior Responsibilities.



 


		b.	Support
                                         for investor relations and fundraising as requested/required; and



 


		c.	Onboarding
                                         of additions to the management team (as needed and appropriate); and



 


		d.	Ongoing
                                         IT management



 


		e.	Participation
                                         in and guidance for manufacturing project team



 


For
purposes of work relating to this Agreement, Consultant’s principal Company contact is Joe Virgilio, CEO, GI Dynamics, Inc.
(jvirgilio@gidynamics.com).


 


		2.	Minimum
Availability. Consultant agrees to be available to provide Consulting Services for a minimum number of hours per week during
the term as follows:



 


	 	 	 	 	 	 	Minimum
	 	 	Monday	 	Friday	 	hours
	Week 1	 	1/4/2021	 	1/8/2021	 	24
	Week 2	 	1/11/2021	 	1/15/2021	 	24
	Week 3	 	1/18/2021	 	1/22/2021	 	24
	Week 4	 	1/25/2021	 	1/29/2021	 	24
	Week 5	 	2/1/2021	 	2/5/2021	 	16
	Week 6	 	2/8/2021	 	2/12/2021	 	16
	Week 7	 	2/15/2021	 	2/19/2021	 	16
	Week 8	 	2/22/2021	 	2/26/2021	 	16
	Week 9	 	3/1/2021	 	3/5/2021	 	8
	Week 10	 	3/8/2021	 	3/12/2021	 	8
	Week 11	 	3/15/2021	 	3/19/2021	 	8
	Week 12	 	3/22/2021	 	3/26/2021	 	8
	Week 13	 	3/29/2021	 	4/2/2021	 	8




 


The
above defines the minimum hours per week to be provided by the Consultant. Additional hours may be requested and provided by
mutual agreement of the Company and Consultant. Consultant is under no obligation to provide additional hours beyond the
minimum hours per week. The Company is under no obligation to engage consultant for the minimum hours and is under no
obligation to pay Consultant for hours not engaged. Each weekly total is independent of any others and any hours above the
minimum or unutilized by the Company will not be applied to adjust any subsequent weekly minimum without the mutual consent
of the Company and Consultant.


 


		3.	Hourly
Compensation Rate.



 


Consultant
shall be compensated for services at a rate of $250.00 per hour, to be rounded to the next highest quarter hour.


 


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