EXHIBIT 10.1


 


 


September 19, 2016




 


	 	 
	 	 
	 	 
	Attention:   		 


 


Dear Sirs:


 


This agreement (the “Leak-Out Agreement”)
is being delivered to you in connection with that certain understanding by and among Great Basin Scientific, Inc., a Delaware corporation,
with headquarters located at 420 E. South Temple, Suite 520, Salt Lake City, UT 84111 (the “Company”) and ________________
(the “Holder”).


 


Reference is hereby made to (a) that certain
Securities Purchase Agreement, dated December 28, 2015, by and among the Company, the Holder and certain other buyers signatory
thereto (the “2015 SPA”), pursuant to which the Holder acquired (i) senior secured convertible notes (the “2015
Holder Notes”) and (ii) warrants to acquire shares of Common Stock (as defined in the 2015 SPA) (the “2015 Holder
Warrants”) and (ii) that certain Securities Purchase Agreement, dated June 29, 2016, by and among the Company, the Holder
and certain other buyers signatory thereto (the “2016 SPA”, and together with the 2015 SPA, collectively, the
“SPA”), pursuant to which the Holder acquired (i) senior secured convertible notes (the “2016 Holder
Notes”, and together with the 2015 Holder Notes, the “Holder Notes”) and (ii) warrants to acquire
shares of Common Stock as (the “2016 Holder Warrants”, and together with the 2015 Holder Warrants, the “Holder
Warrants”). Capitalized terms not defined herein shall have the meaning as set forth in the applicable SPA.


 


During the period commencing on the later
of the date hereof and the first day hereafter on which all the Other Holders (as defined below) have duly executed and delivered
a leak-out agreement identical to this Leak-Out Agreement (other than the identity of the Holder and the permitted percentage of
trading volume) (the “Effective Date”) and ending on November 1, 2016 (such period, the "Restricted
Period"), neither the Holder, nor any of its Buyer Trading Affiliates (as defined in the 2015 SPA), collectively, shall
sell, directly or indirectly, (including, without limitation, any sales, short sales, swaps or any derivative transactions that
would be equivalent to any sales or short positions) on any Trading Day during the Restricted Period (any such date, a “Date
of Determination”), more than ____[1]% of the trading volume of Common Stock on the Principal Market (or such
other primary market in which the Common Stock is then trading) as reported by Bloomberg, LP for the applicable Date of Determination;
provided, that the foregoing restrictions shall not apply to any actual “long” (as defined in Regulation SHO of the
Securities Exchange Act of 1934, as amended) sales by the Holder or any of its Buyer Trading Affiliates at a price greater than
either (x) $5.50 or (y) 120% of the Closing Bid Price (as defined in the Holder Notes) of the Common Stock on the Principal Market
(or such other primary market in which the Common Stock is then trading) as reported by Bloomberg, LP as of the close of business
of the Trading Day immediately prior to such Date of Determination (in each case, as adjusted for stock splits, stock dividends,
stock combinations, recapitalizations or other similar events occurring after the date hereof).


__________________________


1Insert
Holder's pro rata portion of 35%.


 






     


     


    

 


Notwithstanding anything herein to the contrary,
during the Restricted Period, the Holder may, directly or indirectly, sell or transfer all, or any part, of the Holder Notes or
Holder Warrants (or any securities issuable upon conversion or exercise of any Holder Notes or Holder Warrants, as applicable)
(the “Restricted Securities”) to any Person (an “Assignee”) without complying with (or otherwise
limited by) the restrictions set forth in this Leak-Out Agreement; provided, that as a condition to any such sale or transfer an
authorized signatory of the Company and such Assignee duly execute and deliver a leak-out agreement in the form of this Leak-Out
Agreement (an “Assignee Agreement”, and each such transfer a “Permitted Transfer”) and sales
of the Holder and its Buyer Trading Affiliates and all Assignees (other than Permitted Transfers) shall be aggregated for all purposes
of this Leak-Out Agreement and all Assignee Agreements.


 


Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this Leak-Out Agreement must be in writing in accordance with
the information set forth in the SPA.


 


This Leak-Out Agreement constitutes the
entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations, letters
and understandings relating to the subject matter hereof and are fully binding on the parties hereto.


 


This Leak-Out Agreement may be executed
simultaneously in any number of counterparts. Each counterpart shall be deemed to be an original, and all such counterparts shall
constitute one and the same instrument. This Leak-Out Agreement may be executed and accepted by facsimile or PDF signature and
any such signature shall be of the same force and effect as an original signature.


 


The terms of this Leak-Out Agreement shall
be binding upon and shall inure to the benefit of each of the parties hereto and their respective successors and assigns.


 


This Leak-Out Agreement may not be amended
or modified except in writing signed by each of the parties hereto.


 






     


     


    

 


All questions concerning the construction,
validity, enforcement and interpretation of this letter agreement shall be governed by the internal laws of the State of New York,
without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other
jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan,
for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that
the venue of such suit, action or proceeding is improper.


 


Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such
party at the address for such notices to it under this letter agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law. Nothing contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereby irrevocably waives any right it may have, and agrees not to request, a jury trial
for the adjudication of any dispute hereunder or in connection with or arising out of this letter agreement or any transaction
contemplated hereby.


 


Each party hereto acknowledges that, in
view of the uniqueness of the transactions contemplated by this letter agreement, the other parties hereto may not have an adequate
remedy at law for money damages in the event that this Leak-Out Agreement has not been performed in accordance with its terms,
and therefore agrees that such other parties shall be entitled to seek specific enforcement of the terms hereof in addition to
any other remedy it may seek, at law or in equity.


 


The obligations of Holder under this Agreement
are several and not joint with the obligations of any other holder of Notes (as defined in 2015 SPA), Notes (as defined in 2016
SPA), Warrants (as defined in 2015 SPA), or Warrants (as defined in 2015 SPA) (each, an “Other Holder”) under
any other agreement, and Holder shall not be responsible in any way for the performance of the obligations of any Other Holder
under any such other agreement. Nothing contained herein or in this Agreement, and no action taken by Holder pursuant hereto, shall
be deemed to constitute Holder and Other Holders as a partnership, an association, a joint venture or any other kind of entity,
or create a presumption that Holder and the Other Holders are in any way acting in concert or as a group with respect to such obligations
or the transactions contemplated by this Agreement and the Company acknowledges that Holder and the Other Holders are not acting
in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement or any other Agreement.
The Company and Holder confirms that Holder has independently participated in the negotiation of the transactions contemplated
hereby with the advice of its own counsel and advisors. Holder shall be entitled to independently protect and enforce its rights,
including, without limitation, the rights arising out of this Agreement, and it shall not be necessary for any Other Holder to
be joined as an additional party in any proceeding for such purpose.


 



     


     


    

  


The Company hereby represents and warrants
as of the date hereof and covenants and agrees from and after the date hereof that none of the terms offered to any Other Holder
with respect to any restrictions on the sale of Securities (as defined in the 2015 SPA) or Securities (as defined in the 2016 SPA)
substantially in the form of this Agreement (or any amendment, modification, waiver or release thereof) (each a “Settlement
Document”), is or will be more favorable to such Other Holder than those of the Holder and this Agreement. If, and whenever
on or after the date hereof, the Company enters into a Settlement Document, then (i) the Company shall provide notice thereof to
the Holder promptly following the occurrence thereof and (ii) the terms and conditions of this Agreement shall be, without any
further action by the Holder or the Company, automatically amended and modified in an economically and legally equivalent manner
such that the Holder shall receive the benefit of the more favorable terms and/or conditions (as the case may be) set forth in
such Settlement Document, provided that upon written notice to the Company at any time the Holder may elect not to accept the benefit
of any such amended or modified term or condition, in which event the term or condition contained in this Agreement shall apply
to the Holder as it was in effect immediately prior to such amendment or modification as if such amendment or modification never
occurred with respect to the Holder. The provisions of this paragraph shall apply similarly and equally to each Settlement Document.


 


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	 	 	Sincerely,
	 	 	 
	 	 	GREAT BASIN SCIENTIFIC, INC.
	 	 	 	 
	 	 	 	 
	 	 	By:  	 
	 	 	 	Name:
	 	 	 	Title:
	 	 	 	 
	Agreed to and Acknowledged:	 	 
	 	 	 
	“HOLDER”	 	 
	 	 	 	 
	 	 	 
	 	 	 	 
	By:  	 	 	 
	 	Name: 	 	 
	 	Title: