EX-10.2



 EXHIBIT 10.2 

THIS SENIOR 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. 

SENIOR UNSECURED CONVERTIBLE PROMISSORY NOTE 
  

			
	US$1,750,000	 	May 30, 2018
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”), the principal sum of One Million Seven Hundred and Fifty Thousand dollars (US$1,750,000) with interest on the outstanding principal amount at the rate of ten percent (10%) per annum, compounded annually based on a 365-day year. Interest shall commence with the date hereof and shall continue on the outstanding principal until paid in full or, if permitted by the terms of the Note, converted pursuant to
Section 2 below. 
 1. PAYMENT AND MATURITY

 (a) Reference is hereby made to the Note and Warrant Purchase Agreement (the “Purchase Agreement”) dated as of
even date herewith between Payor and Holder. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings given to them in the Purchase Agreement. 

(b) If this Senior Unsecured Convertible Promissory Note (this “Note”) has not already been paid in full or, if
permitted by the terms of this Note, converted in accordance with the terms of Section 2(a) below, the entire outstanding principal balance of this Note and all unpaid accrued interest thereon shall be due and payable on
May 30, 2023 (the “Maturity Date”). All payments of interest and principal shall be in lawful money of the United States of America. 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. 

  
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 (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 sixteen percent (16%) per annum, including after the commencement of, and during the pendency of, any bankruptcy or other insolvency proceeding. 

2. CONVERSION 

(a) Optional Conversion. Subject to Section 6(c) of this Note, the Holder shall have the option (the
“Conversion Option”), but not the obligation, at any time after the date hereof and prior to May 30, 2023, exercisable upon written notice to the Payor, to (a) convert all (but not less than all) of the entire
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 CDIs equal to the quotient obtained by dividing
(x) the Outstanding Amount by (y) US$0.018 (such conversion price, the “Conversion Price”). In lieu of receiving CDIs, upon exercising the Conversion Option, the Holder may elect to instead receive the corresponding
number of shares of Common Stock for the CDIs to be issued upon such conversion. 
 (b) Change of Control. Upon the consummation of a
Change of Control prior to May 30, 2023 the Holder may, at its option, (i) receive an amount in cash equal to all unpaid interest that has accrued to date hereunder and 110% of the entire unpaid principal amount of this Note in full
satisfaction of all obligations under the Note, or (ii) subject to the provisions of Section 6(a) hereof, retain the Note, including, without limitation, the Conversion Option set forth in
Section 2(a) hereof. A “Change of Control” means any transaction or series of related transactions that could result in any of the following: (i) the sale of all or substantially all of the
assets of the Payor to any person or related group of persons (other than the Holder or a person that directly or indirectly controls, is controlled by, or is under common control with, the Holder), (ii) the acquisition, directly or indirectly, by
any person or related group of persons (other than the Payor or the Holder or a person that directly or indirectly controls, is controlled by, or is under common control with, the Payor or the Holder) of beneficial ownership of securities possessing
more than fifty percent (50%) of the total combined voting power of the Payor’s outstanding securities pursuant to a tender or exchange offer made directly to the Payor’s stockholders, (iii) a merger or consolidation of the Payor,
other than for the purpose of re-domiciling the Payor, unless following such transaction or series of transactions, the holders of the Payor’s securities prior to the first such transaction continue to
hold more than fifty percent (50% percent) of the voting rights and equity interests in the surviving entity, (iv) a recapitalization, reorganization or other transaction involving the Payor that constitutes or results in a transfer of more
than one-third of the equity interests in the Payor, unless following such transaction or series of transactions, the holders of the Payor’s securities prior to the first such transaction continue to hold
more than fifty percent (50%) of the voting rights and equity interests in the surviving entity or acquirer or (v) the execution by the Payor or its controlling stockholders of an agreement providing for or reasonably likely to result in any of
the foregoing events. 
 (c) Fractional Shares and Conversion Process. No fractional shares of Payor’s capital stock will be
issued upon conversion of this Note. In lieu of any fractional share to which Holder would otherwise be entitled, Payor will pay to Holder in cash the amount of the unconverted principal and interest balance of this Note that would otherwise be
converted into such fractional share. Upon valid conversion of this Note pursuant to Section 2, Holder shall surrender this Note, duly endorsed, at the principal offices of Payor and the Payor must, if the CDIs are quoted
on the Australian Securities Exchange (“ASX”), do the following: 
  

	(i)	allot and issue to CHESS Depositary Nominees Pty Ltd (“CDN”) the number of shares of Common Stock underlying the CDIs the subject of the conversion notice and procure CDN to
allot and issue to the Holder the number of CDIs representing the Common Stock issued to CDN under this provision; 


  
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	(ii)	enter CDN into the Payor’s register of members as the holder of the relevant number of shares of Common Stock and procure CDN to enter the Holder into the register of CDI holders as the holder of the relevant
number of CDIs; 

  

	(iii)	deliver to the Holder a holding statement showing the Holder as the holder of the relevant number of CDIs; 

  

	(iv)	apply for, and use its reasonable efforts to obtain, official quotation of the relevant number of CDIs (and underlying shares of Common Stock) on ASX as soon as practicable; and 


 

	(v)	deliver to the Holder a check payable to Holder for any cash amounts payable as a result of any fractional shares. 


If, at the time of conversion, CDIs are no longer quoted on ASX, then on conversion of the Note the Payor must issue directly to the Holder the number of
shares of Common Stock over which the Note is convertible into and must procure that those shares be listed for trading on any securities exchange on which the Payor’s Common Stock is tradeable and deliver to the Holder a check payable to
Holder for any cash amounts payable as a result of any fractional shares. 
 (d) 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 Purchase Agreement with respect to the shares of Common Stock or CDIs
issuable to Holder are hereby made a part of this Note and incorporated herein by this reference. 
 (e) Restriction on Transfer.
Notwithstanding any other provision of this Note or the Purchase Agreement, the Holder may not sell or transfer any shares of Common Stock or CDIs issued to the Holder pursuant to Section 2(a) hereof (“Restricted
Securities”), or grant, issue or transfer interests in, or options over, any Restricted Securities, at any time within 12 months after the issue of those Restricted Securities (“Restricted Period”) except as
permitted by section 708 or any other applicable section of the Corporations Act 2001 (Cth). Before commencement of the Restricted Period, to prevent any such restricted dealings in the Restricted Securities during the Restricted Period,
the Holder agrees to (i) the application of a holding lock to the Restricted Securities by the Payor’s securities registry for the Restricted Period, and (ii) enter into any other documents reasonably necessary to prevent any such
restricted dealings in the Restricted Securities during the Restricted Period. 

  
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 3. DEFAULT; REMEDIES 

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

 (b) Upon the occurrence and during the continuance of any Event of Default, 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), (c) or (d) of the Purchase Agreement, automatically, be immediately due,
payable and collectible by Holder pursuant to applicable law. 
 (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, except to the extent permitted pursuant to Section 2(b) hereof. 
 5.
NON-TRANSFERABLE. The Holder may not sell or transfer this Note, or grant, issue or transfer interests in, or options over, this Note at any time within 12 months
after the date hereof except as permitted by section 708 or any other applicable section of the Corporations Act 2001 (Cth). 
 6.
FUNDAMENTAL TRANSACTIONS; CORPORATE EVENTS. 
 (a) Fundamental
Transactions. If, at any time while this Note is outstanding, (i) the Payor effects any merger or consolidation of the Payor with or into another person pursuant to which the Common Stock is effectively converted and exchanged,
(ii) the Payor effects any sale of all or substantially all of its assets in one or a series of related transactions pursuant to which the Common Stock is effectively converted and exchanged, (iii) any tender offer or exchange offer
(whether by the Payor or another person) is completed pursuant to which at least a majority of the outstanding Common Stock is tendered and exchanged for other securities, cash or property or (iv) the Payor effects any reclassification of the
Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock) (in
any such case, a “Fundamental Transaction”), then prior to any subsequent conversion of this Note, and subject to the provisions of Section 2(b) hereof, the Holder shall be entitled to require the
surviving entity to issue to the Holder an instrument identical to this Note (with an appropriate adjustment to the conversion price(s)) such that the Holder may receive stock (or a beneficial interest in stock) of the surviving company’s
stock. Subject to the provisions of Section 2(b) hereof, the terms of any agreement pursuant to which a Fundamental Transaction is effected shall include terms requiring any such successor or surviving entity to comply with
the provisions of this paragraph (a) and insuring that this Note (or any such replacement security) will be similarly adjusted upon any subsequent transaction analogous to a Fundamental Transaction. 

(b) Notice of Corporate Events. If the Payor (i) declares a dividend or any other distribution of cash, securities or other
property in respect of its Common Stock, including without limitation any granting of rights or warrants to subscribe for or purchase any shares of the Payor 

  
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or any subsidiary, (ii) authorizes and publicly approves, or enters into any agreement contemplating or solicits stockholder approval for any Fundamental Transaction or (iii) publicly
authorizes the voluntary dissolution, liquidation or winding up of the affairs of the Payor, then the Payor shall deliver to the Holder a notice describing the material terms and conditions of such transaction, at least ten (10) business days
prior to the applicable record or effective date on which a person would need to hold Common Stock or CDIs in order to participate in or vote with respect to such transaction, and the Payor will take all steps reasonably necessary in order to insure
that the Holder is given the practical opportunity to convert this Note prior to such time so as to participate in or vote with respect to such transaction; provided, however, that the failure to deliver such notice or any defect therein shall not
affect the validity of the corporate action required to be described in such notice. 
 (c) Subsequent Equity Sales. Notwithstanding
any provision of this Note to the contrary, in the event that the Payor issues any CDIs or Common Stock or any security that is exchangeable or convertible into CDIs or Common Stock (“Additional Securities”) after the date
hereof at a price per CDI (or the equivalent for shares of Common Stock) that is less than the Conversion Price (or the equivalent for shares of Common Stock) in an equity financing, then the Conversion Price shall be reduced to the lowest price per
CDI (or the equivalent for shares of Common Stock) at which any Additional Security was issued or sold or deemed to be issued or sold. The Payor agrees that it will provide a notice to the Holder describing the material terms and conditions of any
issuance of Additional Securities promptly after the issuance thereof. For the avoidance of doubt, the price per CDI (or the equivalent for shares of Common Stock) at which any Additional Securities are issued by the Payor to the Holder after the
date hereof, including, without limitation, upon conversion into CDIs or Common Stock of the Senior Secured Convertible Promissory Note, dated June 15, 2017, issued to the Holder by the Payor, will have no effect on the Conversion Price. 

7. 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 Holder shall
constitute a waiver, election or acquiescence by it. 
 8. CUMULATIVE REMEDIES. Holder’s
rights and remedies under this Note and the Purchase Agreement shall be cumulative. No exercise by Holder of one right or remedy shall be deemed an election, and no waiver 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. 
 9. 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. 

  
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 (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 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. The Payor may not assign this Note or delegate any of its obligations hereunder without the written consent of the Holder. Subject to Section 5 hereof, the
Holder may assign this Note and its rights hereunder without the consent of the Payor, subject to compliance with Section 4 of the Purchase 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 the 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 the 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. 
 (f) Amendment; Modification; Waiver. No term of this Note may be amended, modified or waived without the written
consent of the Payor and Holder provided that, while the Payor is admitted to the Official List of the ASX, any amendment, modification or waiver must not contravene the ASX Listing Rules. 

(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) Voting Rights. This Note does not carry any voting rights at
stockholder meetings of the Payor unless and until the Note is converted. 
 (i) Participation Rights. The Holder is not by virtue of
holding this Note entitled to participate in any new issue of securities made by the Payor to stockholders without first converting the Note. 

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

  
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 (k) Reorganisations. While the Payor is admitted to the Official List of the ASX, the
rights of the Holder will be changed to the extent necessary to comply with the ASX Listing Rules applying to a reorganization of the Payor’s capital at the time of the reorganization. 

[Signature page follows] 

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

			
	GI DYNAMICS, INC.
	
	/s/ Scott Schorer
	Name:	 	Scott Schorer
	Title:	 	Chief Executive Officer 


 AGREED TO AND ACCEPTED: 

			
	
	CRYSTAL AMBER FUND LIMITED
	
	/s/ Kevin Smith
	Name:	 	Kevin Smith 
	Title:	 	Alternate Director 
		 	Crystal Amber Asset Management (Guernsey) Ltd

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