Exhibit 10.1



 


PERSONAL
AND CONFIDENTIAL


 


 


November
6, 2020 


Mr.
Scott Schorer


 


Re:
Separation Agreement


 


Dear
Scott:


 


This
letter affirms the agreement between you (sometimes referred to as “Employee”), on the one hand, and GI Dynamics,
Inc. and its subsidiaries (collectively, the “Company”), on the other, regarding the terms of your separation from
the Company (hereinafter referred to as the “Agreement”). You and the Company shall be referred to collectively as
the “Parties.”


 


1. Last
Day of Employment. Pursuant to this Agreement, your last day of employment with the Company was November 2, 2020 (“Separation
Date”). You were relieved of all duties, responsibilities and obligations of your employment on that date.


 


2. Pay
and Benefits. The Company will pay you your final wages by the Company’s next regular pay date, which will include
the wages you have earned through the Separation Date, plus any accrued vacation time. Your participation in all employee benefit
plans will terminate in accordance with the terms of those plans, with the exception of your group health plan, which you will
have the option to continue through COBRA at your sole expense, if and as applicable. Information about COBRA eligibility, enrollment,
and related costs will be sent to your home under separate cover. You will receive the payments and benefits referenced in this
Section 2 whether or not you sign this Agreement. You hereby acknowledge and agree that with the payment provided for by this
Section 2, the Company will have paid you all money, wages, penalties, other compensation and benefits due to you through
the Separation Date.


 


3. Consideration.
As consideration for signing and returning a copy of this Agreement, and provided that you comply with all of your obligations
under this Agreement and do not revoke this Agreement pursuant to Section 7(e), the Company will provide you with the following
consideration:


 


		a.	The
                                         Company agrees to provide the general release as set forth in Section 6(a) herein.



 






     


     


    

 


		b.	The
                                         Company shall waive any right, if any, to repayment of the retention bonus previously
                                         paid to you pursuant to the terms and conditions of that certain Retention Bonus Agreement
                                         and Amendment, dated as of July 23, 2020, by and between you and the Company (the “Retention
                                         Agreement”).



 


		c.	You
                                         understand and agree that the Company is not obligated to provide you with the consideration
                                         provided in Sections 3(a) and 3(b) above and that nothing else shall be provided to you
                                         in return for entering into this Agreement. You understand and agree that you would not
                                         receive the monies and/or benefits specified in this Section 3, except for your execution
                                         of this Agreement and the fulfillment of the promises contained herein.



 


4. Company
Information and Property. You acknowledge that you have returned to the Company all Company information and property (in
all forms, including electronically stored information or printed materials) including but not limited to the following: company
mobile phone; lists, reports, data, plans, projects, files, memoranda, records and software; credit cards; cardkey passes; door
and file keys; safe combinations; computer access codes; disks and instructional manuals; and other physical materials or other
property which you received, prepared or helped to prepare in connection with your employment with the Company. You represent
and agree that you have not retained and will not retain any copies, duplicates, reproductions, or excerpts thereof. Notwithstanding
the foregoing, the Company has agreed to permit you to retain the Company’s laptop computer.


 


5. Effective
Date. This Agreement is effective as of the eighth day following the date hereof (the “Effective Date”) provided
that you have not exercised your right to revoke this Agreement as set forth in Section 7(e).


 


6. General
Release of Claims. 


 


		a.	Except
                                         as set forth herein, in consideration of the covenants undertaken herein, and to the
                                         fullest extent permitted by law, you and the Company, on behalf of themselves and their
                                         respective present and former parents, subsidiaries, affiliates, officers, directors,
                                         shareholders, managers, members, successors, and assigns (collectively, “Releasors”)
                                         hereby irrevocably and unconditionally release, acquit and forever discharge each other
                                         and their respective present and former, direct and indirect, parents, subsidiaries,
                                         officers, directors, employees, agents, representatives, permitted successors, and permitted
                                         assigns (collectively, “Releasees”), with respect to and from, any and all
                                         claims, demands, rights, liens, agreements, contracts, covenants, actions, suits, causes
                                         of action, obligations, debts, costs, expenses, attorneys’ fees, damages, judgments,
                                         orders and liabilities of whatever kind or nature in law, equity or otherwise, whether
                                         now known or unknown, suspected or unsuspected, and whether or not concealed or hidden,
                                         which any of such Releasors now own or hold, or have at any time heretofore owned or
                                         held, or may in the future hold against said Releasees, or any of them, arising out of,
                                         grounded upon, or in any way connected with your employment with the Company, your separation
                                         from that employment, or any other transactions, occurrences, acts or omissions by or
                                         on the part of the Releasees, or any of them, committed or omitted as of the date you
                                         execute this Agreement (“Claim” or “Claims”).



 






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		b.	Your
                                         release of any such Claim or Claims includes, but is not limited to, those arising under
                                         Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities
                                         Act (ADA), the Family and Medical Leave Act (FMLA) (regarding existing but not prospective
                                         claims), the Fair Labor Standards Act (FLSA), the Equal Pay Act, the Employee Retirement
                                         Income Security Act (ERISA) (regarding unvested benefits), the Civil Rights Act of 1991,
                                         Section 1981 of U.S.C. Title 42, the Fair Credit Reporting Act (FCRA), the Worker Adjustment
                                         and Retraining Notification (WARN) Act, the National Labor Relations Act (NLRA), the
                                         Age Discrimination in Employment Act (ADEA),the Uniform Services Employment and Reemployment
                                         Rights Act (USERRA), the Genetic Information Nondiscrimination Act (GINA), the Immigration
                                         Reform and Control Act (IRCA), the Massachusetts Fair Employment Practices Law (MFEPL),
                                         the Massachusetts Civil Rights Act (MCRA), the Massachusetts Equal Rights Act (MERA),
                                         the Minimum Fair Wage Act, the Massachusetts Plant Closing Law, the Massachusetts Wage
                                         Act, the Massachusetts Equal Pay Act, the Massachusetts Parental Leave Act (MPLA), the
                                         Massachusetts Sexual Harassment Statute, all including any amendments and their respective
                                         implementing regulations; breach of contract, breach of quasi contract and/or breach
                                         of implied contract; breach of the covenant of good faith and fair dealing; any claim
                                         for employment discrimination or harassment, whether on the basis of race, age, sex,
                                         national origin, religion, sexual orientation, marital status, veterans status, disability,
                                         or any other basis protected by law; any claim for failure to prevent discrimination
                                         or harassment; retaliation of any kind; any claims arising in tort, including, but not
                                         limited to, wrongful termination, tortious interference with contract or prospective
                                         business advantage, slander, defamation, invasion of privacy, and emotional distress;
                                         and any claim based on any other foreign, federal, state or local constitution, statute,
                                         ordinance, regulation, or common law arising out of or in any way connected with any
                                         transaction, occurrence, act or omission occurring on or prior to the date you sign this
                                         Agreement. You specifically represent, warrant and confirm that you have not filed, nor
                                         has anyone filed on your behalf, any claims, complaints, or actions of any kind against
                                         any of the Releasees in any court of law or arbitration service. You represent that you
                                         are unaware of any workers’ compensation claims brought on your behalf or any facts
                                         on which such a claim could be brought.



 






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7. Release
of ADEA Claims. The general release contained herein specifically includes a waiver and release of all claims that you
have or may have under the Age Discrimination in Employment Act, as amended, 29 U.S.C. Sections 621 et seq. (“ADEA”),
based on your employment with the Company, the separation of such employment or any transaction, occurrence, act or omission occurring
on or before the date on which you execute this Agreement. The following terms and conditions apply to and are part of the waiver
and release of ADEA claims under this Agreement:


 


		a.	By
                                         signing this Agreement, you acknowledge and agree that the releases contained herein,
                                         including the ADEA release, do not cover rights or claims that may arise after the date
                                         on which you sign this Agreement.



 


		b.	You
                                         are advised to consult an attorney before signing this Agreement.



 


		c.	You
                                         have twenty-one (21) calendar days from the date you are presented with this Agreement
                                         to consider whether or not to sign it. In the event that you decide to execute this Agreement
                                         in fewer than 21 days, you do so with the express understanding that you have been given
                                         and declined the opportunity to consider this Agreement for a full 21days. You further
                                         agree with the Company that changes to this Agreement, whether material or immaterial,
                                         do not restart the running of the 21-day consideration period.



 


		d.	You
                                         are knowingly and voluntarily waiving and releasing your rights, including your rights
                                         under the ADEA, only in exchange for consideration (something of value) in addition to
                                         anything of value to which you are otherwise already entitled.



 


		e.	If
                                         you sign this Agreement, you will have the right to revoke this Agreement within seven
                                         (7) calendar days of signing this Agreement and that this Agreement shall not become
                                         effective or enforceable until after this revocation period has expired. Any revocation
                                         within this period must be submitted, in writing via email, and delivered to: Blake Baron
                                         of Mitchell Silberberg & Knupp LLP, at BJB@MSK.com, and state, “I hereby revoke
                                         my acceptance of our Separation Agreement.”



 


8. Limitation
on Releases.


 


		a.	The
                                         releases set forth in this Agreement do not include the release of: (i) any claims for
                                         unemployment or disability compensation to which you may be entitled under the law; (ii)
                                         your rights to continuation coverage under the Company’s group health plan which, if
                                         applicable, will be offered in accordance with the provisions of COBRA or other applicable
                                         law; (iii) rights to coverage under any applicable Company insurance policy; (iv) any
                                         rights to vested benefits, such as pension or retirement benefits; and (v) any claims
                                         or rights which you are prohibited by law from releasing.



 






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		b.	Notwithstanding
                                         any other provision in this Agreement, this Agreement does not prevent you from filing
                                         a charge or complaint with, providing information to, or from participating in any investigation
                                         or proceeding conducted by, the United States Equal Employment Opportunity Commission,
                                         the Occupational Safety and Health Administration, the Securities and Exchange Commission,
                                         the National Labor Relations Board or any other federal, state or local governmental
                                         agency or commission, although by signing this Agreement, you are fully waiving your
                                         right to obtain (as a result of any such charge or complaint) all types of monetary recovery
                                         that otherwise could be recoverable in any legal action brought by you against the Releasees,
                                         or any of them. Nothing in this Agreement prohibits you from discussing your wages or
                                         working conditions.



 


9. Equity
Award Cancellation. In exchange for the consideration set forth in Section 3 hereof, you also hereby forfeit and surrender
any stock awards you may hold for cancellation, and the Company hereby accepts such forfeiture, surrender and cancellation, effective
as of the Effective Date. The Parties acknowledge and agree that the award agreements and the stock awards, and any and all rights
of you and any and all liabilities and obligations of the Company to you thereunder, are hereby terminated in all respects and
that you shall have no further rights to exercise any stock options or to stock in the Company pursuant to any award agreement.
Any attempt to exercise any stock options or acquire any stock under such stock awards on or after the Effective Date shall be
null and void.


 


10. Confidentiality.
You agree that, except with the Company’s express written permission, you shall keep confidential any and all information
concerning the terms and existence of this Agreement, and will not hereafter disclose any information concerning the terms or
existence of this Agreement, to anyone, including, but not limited to, any past, present or prospective employee or applicant
for employment of the Company or any of the Releasees identified above, except to your immediate family, legal counsel and/or
accountants, and/or as may be required by order of any Court or tribunal, and/or otherwise as required by law. You further acknowledge
that during the time you rendered services to the Company, you may have learned, obtained, acquired or become aware of confidential,
proprietary, business, employment and/or personal information or materials concerning the Company, its agents, clients, employees
and/or representatives, including, but not limited to, business plans, design specifications and materials, creative and marketing
strategies, employment data, finances, equipment, technology, processes and methods of operation. You represent that you have
kept all such materials and/or information confidential and will continue to do so, and that you will not use such materials and/or
information without the prior written consent of the Company. This Section does not limit Employee’s rights that are set
forth in Section 8(b).


 


11. Non-Disparagement.
You agree to refrain from making any statements or taking any action, directly or indirectly, that harms the business
interests, reputation, or goodwill of the Company or any of the Releasees. This Section does not limit Employee’s rights
that are set forth in Section 8(b).


 






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12. No
Implied Admission; Admissibility. The Parties do not intend anything contained in this Agreement to be construed as an
admission of any liability, wrongdoing or negligence. Notwithstanding the foregoing, this Agreement may be introduced into a proceeding
solely for the purpose of enforcing this Agreement.


 


13. Assignment.
You warrant and represent that you have not assigned or transferred any part of any interest in any Claims released under this
Agreement and that there are no liens against any of the money to be paid under this Agreement. You agree to indemnify, defend,
and hold harmless each and all of the Releasees from and against any claims arising out of, related to or connected with any such
prior assignment or transfer, or any such purported assignment or transfer, of any Claims or other matters released herein (including
without limitation related attorneys’ fees, the costs of expert consultants and witnesses, and other costs of defense of
the same).


  


14. Successors
and Assigns.  This Agreement shall inure to the benefit of and be binding upon you and your heirs, executors, administrators,
successors, and assigns. This Agreement shall inure to the benefit of the Company and the other Released Parties and be binding
upon the Company and its successors and assigns.


 


15. Governing
Law. This Agreement shall be governed by and construed under and in accordance with the laws of the Commonwealth of Massachusetts.
The language of all parts of this Agreement shall, in all cases, be construed as a whole, according to its fair meaning, and
not strictly for or against any of the Parties on the ground that such party drafted or caused to be drafted this Agreement or
any part thereof.


 


16. Amendment.
This Agreement and General Release may not be modified, altered or changed except in a writing signed by you and an authorized
representative of the Company wherein specific reference is made to this Agreement.


 


17. Headings.
The use of headings in this Agreement is only for ease and reference and the headings do not have any effect and are not to be
considered part or terms of this Agreement.


 


18. Severability.
Should any part, term or provision of this Agreement, with the exception of the Releases embodied in Sections 6 and 7 that
are the essence of this Agreement, be declared or determined by any court or other tribunal of appropriate jurisdiction to be
invalid or unenforceable, any such invalid or unenforceable part, term or provision shall be deemed stricken and severed from
this Agreement and any and all of the other terms of the Agreement shall remain in full force and effect to the fullest extent
permitted by law. Should any of the releases embodied in Sections 6 and 7 be deemed invalid or unenforceable, the Parties
shall have the right to declare this Agreement null and void and any consideration received under this Agreement shall be returned
to the Company.


 






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19. Effect
of Waiver or Breach. No waiver of any breach of any term or provision of this Agreement shall be construed to be, or shall
be, a waiver of any other breach of this Agreement. No waiver shall be binding unless in writing and signed by the party waiving
the breach.


 


20. Preexisting
Agreements Between the Parties; Milestone Bonus. The Amended and Restated Offer Letter Agreement, dated as of September
19, 2019, by and between you and the Company, except for Sections 6, 8 and 11 thereof, and the Retention Agreement, except for
Sections 2, 4 and 5 thereof, are hereby terminated and shall no longer have force or effect. The Non-disclosure and Non-competition
Agreement between you and the Company (“NDNCA”) shall remain in force and effect. To the extent that there is any
conflict between any of the terms of this Agreement and the terms of the NDNCA, the terms of this Agreement shall prevail. Notwithstanding
anything to the contrary contained herein, you will be entitled to the Milestone Bonus (as defined in the Retention Agreement),
to the extent it is earned and payable pursuant to the Retention Agreement.


 


21. Entire
Agreement. This Agreement sets forth the entire agreement between the Parties hereto, and fully supersedes any and all
prior agreements or understandings between the Parties hereto pertaining to the subject matter hereof, except as set forth in
Section 20 hereof. This Agreement may be executed and delivered in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument. Facsimile or the electronic transmission of a signature on
this document shall be deemed an original.


 


BY
SIGNING THIS AGREEMENT, YOU ACKNOWLEDGE AND AGREE THAT:


 


		●	You
                                         understand that you have a right to have this Agreement reviewed by an attorney of your
                                         choice, and that you have availed yourself of that right to the full extent which you
                                         have desired before signing this Agreement. 



 


		●	You
                                         have carefully read and fully understand all of the provisions of this Agreement, and
                                         you are voluntarily entering into this Agreement, and that you do not and have not relied
                                         in any way on any representations or statements of any of the Releasees. 



 


		●	You
                                         understand that this Agreement includes a release of all known and unknown claims.



 






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	By:  	/s/ Scott Schorer	 	/s/ Joseph Virgilio	 
	 	Employee Signature  	 	GI Dynamics, Inc.	 
	 	 	 	By: Joseph Virgilio	 
	 	 	 	 	 
	Date: 6 Nov 2020 	 	Date:
    12 Nov 2020	 



 


 


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