As filed with the Securities and Exchange Commission on November 1, 2017
Registration No. 333
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
RESHAPE LIFESCIENCES INC.
(Exact name of registrant as specified in its charter)
Delaware | | 26-1828101 |
(State or other jurisdiction of incorporation or organization) | | (I.R.S. Employer Identification Number) |
18 Technology Drive, Suite F
Irvine, California 92008 (760) 795-6558
(949) 429-6680
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Paul F. Hickey
President and Chief Executive Officer
18 Technology Drive, Suite F
Irvine, California 92008
(949) 429-6680
(Address,Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Brett R. Hanson
Emily A. Humbert
Fox Rothschild LLP
33 South Sixth Street, Suite 3600
Minneapolis, Minnesota 55402
(612) 607-7000
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐o
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐o
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective onupon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐o
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”filer,” “smaller reporting company” and “smaller reporting“emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer | ☐ | | Accelerated filer | ☐ | |
| | | | | |
Non-accelerated filer | ☒ | | | Smaller reporting company | ☒ |
| | | | | |
| | | | Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financingfinancial accounting standards provided pursuant to Section 13(a)7(a)(2)(B) of the ExchangeSecurities Act. ☐x
Title of each class of securities to be registered | Amount to be registered/proposed maximum offering price per unit/proposed maximum aggregate offering price | Amount of registration fee |
Primary Offering: Common Stock | (1)(2) | |
Preferred Stock | (1)(2) | |
Debt Securities | (1) | |
Depositary Shares | (1) | |
Warrants | (1) | |
Units | (1) | |
Total Primary Offering | 100,000,000(3) | 12,450(4) |
Secondary Offering: Common Stock | 150,000 | $159(5) |
Total Registration Fee | $12,609 |
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission isbecomes effective. This preliminary prospectus is not an offer to sell nor doesthese securities and it seekis not soliciting an offer to buy these securities in any jurisdictionstate where the offer or sale is not permitted.
Subject to Completion,completion, dated November 1, 2017
PROSPECTUS
11,698,161 Shares of Common Stock
This prospectus relates to the Selling Stockholder
We are not selling any shares of our common stock under this prospectus provides you with a general description of the securities. Weand will not receive any proceeds from sales of the sale of our common stockshares offered by the selling stockholder.
The shares of common stock offered under this prospectus may be sold by the selling stockholder offersthrough public or private transactions, on or off The Nasdaq Capital Market, at prevailing market prices or at privately negotiated prices. For more information on the times and sells securities,manner in which the selling stockholder may provide a supplement tosell the shares of common stock under this prospectus, that contains specific information aboutplease see the offering, as well as the amounts, prices and termssection entitled “Plan of the securities. The supplement may also add, update or change information contained in this prospectus with respect to that offering. You should carefully read this prospectus and the applicable prospectus supplement before you invest in any of our securities.
Our common stock is listedtraded on theThe Nasdaq GlobalCapital Market under the symbol “OBLN.“RSLS.” On October 30, 2017May 1, 2024, the last reported saleclosing price of our common stock as reported on theThe Nasdaq GlobalCapital Market was $8.37$0.167 per share.
Investing in our securities involves risks. You should consider carefully the risks and uncertainties set forth in the section entitled “Risk Factors” beginning on page 3 of this prospectus and in the documents we file with the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy ofthat are incorporated by reference in this prospectus. Any representationprospectus before making a decision to the contrary is a criminal offense
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is November 1, 2017, 2024.
ABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement that we filed with the U.S. Securities and Exchange Commission, or the SEC, usingutilizing a “shelf” registration process. By using aUnder this shelf registration statement, we may sell securities from time to time and in one or more offerings up to a total dollar amount of $100,000,000 andprocess, the selling stockholder may from time to time sell up to 150,000the shares of common stock from time to timedescribed in this prospectus in one or more offerings as described in this prospectus. Each time that we offerofferings.
We and sell securities, we will, and each time the selling stockholder sells securities, the selling stockholder may, provide a prospectus supplement to this prospectus that contains specific information about the securities being offered and sold and the specific terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement or free writing prospectus may also add, update or change information contained in this prospectus with respect to that offering. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement or free writing prospectus, you should rely on the prospectus supplement or free writing prospectus, as applicable. Before purchasing any securities, you should carefully read both this prospectus and the applicable prospectus supplement (and any applicable free writing prospectuses), together with the additional information described under the heading “Where You Can Find More Information; Incorporation by Reference.”
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ReShape Lifesciences Inc. is a worldwide premier weight-loss solutions company, offering an integrated portfolio of proven products and other risksservices that manage and uncertaintiestreat obesity and are subjectmetabolic disease throughout the care continuum.
Our current portfolio includes the FDA-approved and reimbursed Lap-Band® system, which provides minimally invasive, long-term treatment of obesity and is a safer surgical alternative to change based on various factors, including those discussed undermore invasive and extreme surgical stapling procedures such as the heading “Risk Factors” contained in this prospectus, the applicable prospectus supplementgastric bypass or sleeve gastrectomy. Our ReShapeCare™ virtual health coaching program is a novel weight-management program that supports healthy lifestyle changes for all medically managed weight-loss patients, not just individuals who qualify for Lap-Band surgery, further expanding our reach and any applicable free writing prospectus, and under similar headings in other documents that are incorporated by reference into this prospectus. Accordingly, investors should not place undue reliance on this information.
As of securities.
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RISK FACTORS
Investment in any securities offered pursuant to this prospectus and the applicable prospectus supplement involves risks. You should carefully consider the risk factors incorporated by reference to our most recent Annual Report on Form 10-K Quarterly Report on Form 10-Q and any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K we file after the date of this prospectus, and all other information contained or incorporated by reference into this prospectus, as updated by our subsequent filings under the Securities Exchange Act of 1934, as amended, and the risk factors and other information contained in the applicable prospectus supplement and any applicable free writing prospectus before acquiring any of such securities. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities.
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference may contain forward-looking statements with respect to the financial condition, results of operations, plans, objectives, future performance and business of ReShape Lifesciences. Statements preceded by, followed by or that include words such as “may,” “will,” “expect,” “anticipate,” “continue,” “estimate,” “project,” “believes” or similar expressions are intended to identify some of the forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 and are included, along with this statement, for purposes of complying with the safe harbor provisions of that Act. These forward-looking statements involve risks and uncertainties. Actual results may differ materially from those contemplated by the forward-looking statements due to, among others, the risks and uncertainties described in this prospectus, including under “Risk Factors,” and the documents incorporated by reference in this prospectus. Any forward-looking statement contained in this prospectus and the documents incorporated by reference speaks only as of the date on which the statement is made, and ReShape Lifesciences undertakes no obligation to update any forward-looking statement or statements to reflect events or circumstances that occur after the date on which the statement is made or to reflect the occurrence of unanticipated events. New factors emerge from time to time, and it is not possible for ReShape Lifesciences to predict all of the factors, nor can ReShape Lifesciences assess the effect of each factor on its business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statement.
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USE OF PROCEEDS
We will not receive any of the proceeds from the sale of common stock being offered by the selling stockholder.
Year Ended December 31, | Six months ended June 30 | ||||||
2014 | 2015 | 2016 | 2017 | ||||
Ratio of earnings to fixed charges (a) | n/a | n/a | n/a | n/a | |||
Deficiency of earnings available to cover fixed charges | (b) | (c) | (d) | (e) |
The selling stockholder will pay any underwriting discounts and commissions and expenses incurred by approximately 37 stockholdersthe selling stockholder for brokerage, accounting, tax or legal services or any other expenses incurred by the selling stockholder in disposing of record,the shares. We will bear all other costs, fees and no shares of our preferred stock outstanding.
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On June 16, 2022, we entered into a warrant exercise agreement with the selling stockholder pursuant to which we issued warrants to purchase 74,773 shares of common stock are able to elect all of our directors. Our restated certificate of incorporation establishes a classified board of directors, to be divided into three classes with staggered three-year terms. Only one class of directors will be elected at each annual meeting of our stockholders, with the other classes continuing for the remainder of their respective three-year terms. Subject to the supermajority votes for some matters, other matters shall be decided by the affirmative vote of our stockholders having a majority in voting power of the votes cast by the stockholders present or represented and voting on such matter. Our restated certificate of incorporation and restated bylaws provide that our directors may be removed only for cause and only by the affirmative vote of the holders of at least two-thirds in voting power of the outstanding shares of capital stock entitled to vote thereon. In addition, the affirmative vote of the holders of at least two-thirds in voting power of the outstanding shares of capital stock entitled to vote thereon is required to amend or repeal, or to adopt any provision inconsistent with, several of the provisions of our restated certificate of incorporation.
The Depository Trust Company, or the Depositary, or a nominee of the Depositary (we will refer to any debt security represented by a global debt security as a “book-entry debt security”), or a certificate issued in definitive registered form (we will refer to any debt security represented by a certificated security as a “certificated debt security”) as set forth in the applicable prospectus supplement. Except as set forth under the heading “Global Debt Securities and Book-Entry System” below, book-entry debt securities will not be issuable in certificated form.
The shares of business on the expiration date, unexercised warrants will become void.
The following table sets forth as of May 1, 2024: (1) the name and address of the unit agent in the applicable prospectus supplement relating to a particular seriesselling stockholder for whom we are registering shares of units.
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To our knowledge, except as indicated in the personfootnotes to this table, the stockholder named in the table has sole voting and investment power with respect to all of the securities shown as beneficially owned by such person, except as otherwise set forth in the notes to the table. The number of securities shown represents the number of securities the person “beneficially owns,” as determined by the rules of the SEC. The SEC has defined “beneficial” ownership of a security to mean the possession, directly or indirectly, of voting power and/or investment power. A security holder is also deemed to be, as of any date, the beneficial owner of all securities that such security holder has the right to acquire within 60 days after that date through (1) the exercise of any option, warrant or right, (2) the conversion of a security, (3) the power to revoke a trust, discretionary account or similar arrangement, or (4) the automatic termination of a trust, discretionary account or similar arrangement.
| | | | | | | | | | | |
| | Shares Beneficially Owned | | Number of | | Shares Beneficially | | ||||
Name of Selling Stockholder |
| Number |
| Percentage(1) |
| Offered(1) |
| Number |
| Percentage |
|
Armistice Capital Master Fund Ltd.(2)(3) | | 933,161 | | 4.0 | % | 11,698,161 | | 0 | | 0.00 | % |
Amount and Nature of Beneficial Ownership | ||||||||||||
Immediately Prior to this Prospectus | Number of Shares Subject to Resale Pursuant to this Prospectus | Immediately After Resale of All Shares Subject to Resale Pursuant to this Prospectus* | ||||||||||
Selling Stockholder | Shares Owned | Percentage | Shares Owned | Percentage | ||||||||
Polyzen, Inc. | 150,000 | ** | 150,000 | — | — | % |
(1) | |
While the |
(2) | Consists of shares of common stock issuable upon exercise of the warrants issued pursuant the warrant exercise agreement, dated June 16, 2022, as amended by the warrant amendment agreement, dated November 8, 2022, the securities purchase agreement, dated November 8, 2022, and the securities purchase agreement, dated April 20, 2023. Excludes the of shares of common stock issuable upon exercise of the warrants issued pursuant to the warrant exercise agreement, dated November 21, 2023, because such warrants are not exercisable until May 22, 2024, which is more than 60 days after the date hereof. |
(3) | Steven Boyd is the managing member and director of Armistice Capital Master Fund Ltd. (“Armistice Capital”). Armistice Capital and Mr. Boyd may be deemed to be the beneficial owners of the shares reported as beneficially owned by Armistice Capital. Each of Armistice Capital and Mr. Boyd has the sole power to dispose or direct the disposition of 0 shares and the shared power to dispose or direct the disposition of all of |
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The selling stockholder and any of its pledgees, donees, transferees, assignees or other successors-in-interest may, from time to time, sell, transfer or otherwise dispose of any or all of their shares of common stock or interests in shares of common stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions, directly or through one or more underwriters, broker-dealers or agents. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected in transactions that may involve crosses or block transactions. The selling stockholder may use one or more of the following methods when disposing of the shares or interests therein:
● | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
● | through brokers, dealers or underwriters that may act solely as agents; |
● | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
● | an exchange distribution in accordance with the rules of the applicable exchange; |
● | privately negotiated transactions; |
● | through the writing or settlement of options or other hedging transactions entered into after the effective date of the registration statement of which this prospectus is a part, whether through an options exchange or otherwise; |
● | broker-dealers may agree with the selling stockholder to sell a specified number of such shares at a stipulated price per share; |
● | a combination of any such methods of disposition; and |
● | any other method permitted pursuant to applicable law. |
The selling stockholder may also sell shares under Rule 144 or Rule 904 under the Securities Act of 1933, as amended, or Securities Act, if available, or Section 4(a)(1) under the Securities Act, rather than under this prospectus.
Broker-dealers engaged by the selling stockholder may sellarrange for other broker-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the securitiesselling stockholder (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated. The selling stockholder does not expect these commissions and discounts to exceed what is customary in the types of transactions involved.
The selling stockholder may, from time to time, pursuant to underwritten public offerings, negotiated transactions, block tradespledge or grant a combinationsecurity interest in some or all of these methodsthe shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or through underwriters or dealers, through agents and/or directly to one or more purchasers. The securitiessecured parties may be distributedoffer and sell shares of common stock from time to time under this prospectus, or under a supplement or amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholder to include the pledgee, transferee or other successors in oneinterest as selling stockholder under this prospectus.
Upon being notified in writing by a selling stockholder that any material arrangement has been entered into with a broker-dealer for the sale of common stock through a block trade, special offering, exchange distribution or more transactions:secondary distribution or a purchase by a broker or dealer, we will file a supplement to this prospectus, if required, pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name of each such selling stockholder and of the participating
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broker-dealer(s), (ii) the number of shares involved, (iii) the price at a fixed pricewhich such shares of common stock were sold, (iv) the commissions paid or prices, which may be changed;
The selling stockholder also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or supplements thatother successors in interest will describebe the methodselling beneficial owners for purposes of distribution and set forththis prospectus.
In connection with the terms and conditionssale of the offeringshares of such securities, including the offering pricecommon stock or interests in shares of the securities and the proceeds to us.
The selling stockholder and any broker-dealers or agents that are involved in selling the offer or sale of our securities will be identified in a prospectus supplement.
We have advised the selling stockholder that they are required to comply with Regulation M promulgated under the Securities Exchange Act of 1934, as amended, during such time as they may be engaged in a distribution of the shares. The foregoing may affect the marketability of the common stock.
The aggregate proceeds to the selling stockholder from the sale of the offering.
We will pass upon certain legal matters relatingpay all fees and expenses incident to the issuance and saleregistration of the shares.
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Fox Rothschild LLP, Minneapolis, Minnesota, will issue a legal opinion as to the validity of the securities offered hereby on behalf of the Company. Additional legal matters may be passed upon for us, the selling stockholder or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
The consolidated financial statements of Obalon Therapeutics,ReShape Lifesciences Inc. and subsidiaries as of December 31, 20162023 and 2015,2022 and for each of the years then ended incorporated in this Prospectus by reference from the three-year periodReShape Lifesciences Inc. Annual Report on Form 10-K for the year ended December 31, 2016,2023, have been incorporatedaudited by reference herein and in the registration statement in reliance upon the report of KPMGRSM US LLP, an independent registered public accounting firm, as stated in their report thereon (which report expresses an unqualified opinion and includes an explanatory paragraph that states that the Company currently does not generate revenue sufficient to offset operating costs and anticipates such shortfalls to continue, which raises substantial doubt about the Company’s ability to continue as a going concern), incorporated herein by reference, herein,and have been incorporated in this Prospectus and Registration Statement in reliance upon such report and upon the authority of saidsuch firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public through the Internet at the SEC’s web site at www.sec.gov. You may also read and copy any document we file with the SEC at the SEC’s public reference room at 100 F Street N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information about its public reference facilities and their copy charges.
We have filed with the SEC a registration statement on Form S-3 under the Securities Act with respect to the securities offered by this prospectus. When used in this prospectus, the term “registration statement” includes amendments to the registration statement as well as the exhibits, schedules, financial statements and notes filed as part of the registration statement. This prospectus, which constitutes a part of the registration statement, does not contain all of the information in the registration statement. This prospectus omits information contained in the registration statement as permitted by the rules and regulations of the SEC. For further information with respect to us and the common stock offered by this prospectus, reference is made to the registration statement. Statements herein concerning the contents of any contract or other document are not necessarily complete and in each instance reference is made to the copy of such contract or other document filed with the SEC as an exhibit to the registration statement, each such statement being qualified by and subject to such reference in all respects.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the information we file with them. This allows us to disclose important information to you by referencing those filed documents. We have previously filed the following documents with the SEC and are incorporating them by reference into this prospectus:
● | ReShape Lifesciences Inc.’s Annual Report on Form 10-K for the year ended December 31, 2023; |
● | ReShape Lifesciences Inc.’s Current Reports on Form 8-K (only to the extent information is “filed” and not “furnished”) filed with the SEC on January 18, 2024, February 26, 2024 and April 10, 2024; and |
● | the description of our capital stock contained in ReShape Lifesciences Inc.’s Registration Statement on Form S-1, as amended (File No. 333-269207) under the heading “Description of Capital Stock” and any amendment or report filed for the purpose of updating such description. |
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We also are incorporating by reference any future information filed (rather than furnished) by us with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, after the date of the initial filing of the registration statement of which this prospectus is a part and before the effective date of the registration statement and after the date of this prospectus until the termination of the offering. The most recent information that we file with the SEC automatically updates and supersedes more dated information.
You can obtain a copy of any documents which are incorporated by reference in this prospectus or prospectus supplement, except for exhibits which are specifically incorporated by reference into those documents, at no cost, by writing or telephoning us at:
ReShape Lifesciences Inc. |
18 Technology Drive, Suite 110 |
Irvine, California 92618 |
Attention: Secretary |
(949) 429-6680 |
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
Other Expenses of Issuance and DistributionThe following is an estimate oftable sets forth the estimated costs and expenses (all of which are to be paid by the registrant) that we may incur in connection with the sale and distribution of the securities being registered hereby.hereby, other than underwriting discounts and commissions. All of the amounts shown are estimates, except the Securities and Exchange Commission (SEC) registration fee. The expenses listed will be paid by ReShape Lifesciences Inc.
SEC registration fee |
| $ | 287 |
Legal fees and expenses | | | 10,000 |
Accountants’ fees and expenses | | | 5,000 |
Miscellaneous expenses | | | 5,000 |
Total | | $ | 20,287 |
SEC registration fee | $ | 12,609 | |
Fees and expenses of the trustee | $ | (1 | ) |
Printing expenses | $ | (1 | ) |
Legal fees and expenses | $ | (1 | ) |
Accounting fees and expenses | $ | (1 | ) |
Transfer agent fees and expenses | $ | (1 | ) |
Trustee fees and expenses | $ | (1 | ) |
Depositary fees and expenses | $ | (1 | ) |
Warrant agent fees and expenses | $ | (1 | ) |
Miscellaneous | $ | (1 | ) |
Total | $ | (1 | ) |
Item 15.
Indemnification of Directors and OfficersWe are a Delaware corporation. Section 102(b)(7) of the DGCL (“Section 102(b)(7)”) allows a corporation to provide in its certificate of incorporation that a director of the corporation will not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached the duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of the DGCL, or obtained an improper personal benefit.
Section 145 of the General Corporation LawDGCL (“Section 145”), provides that a Delaware corporation may indemnify any person who was, is or is threatened to be made party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the Statefact that such person is or was an officer, director, employee or agent of Delaware authorizes a court to award,such corporation or a corporation’s boardis or was serving at the request of directors to grant, indemnity to directors and officers under certain circumstances and subject to certain limitations. The terms of Section 145 of the General Corporation Law of the State of Delaware are sufficiently broad to permit indemnification under certain circumstances for liabilities, including reimbursement of expenses incurred, arising under the Securities Act.
Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a resultdirector, officer, employee or agent of actions, suitsanother corporation or proceedings to which they are partiesenterprise against any liability asserted against him or her and incurred by reasonhim or her in any such capacity, or arising out of beinghis or having been directors or officers.
II-1
As permitted by Section 102(b)(7), our charter contains a provision eliminating the personal liability of a director to our company or its stockholders for monetary damages for breach of fiduciary duty as a director, subject to certain exceptions.
Our bylaws provide that we shall indemnify and hold harmless each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person against(or a person of whom such liability underperson is the provisionslegal representative), is or was a director or officer of our company (or its predecessors), or is or was serving at the request of our company or its predecessors as a member of the General Corporation Lawboard of directors, officer or trustee of another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans (an “indemnitee”), to the fullest extent authorized by the DGCL against all expenses, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith, provided such indemnitee acted in good faith and in a manner that the indemnitee reasonably believed to be in or not opposed to the best interests of our company and, with respect to any criminal action or proceeding, had no reasonable cause to believe the indemnitee’s conduct was unlawful. If and to the extent that the DGCL requires, an advance of expenses incurred by an indemnitee shall be made only upon delivery to our company of an undertaking (an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it should be determined ultimately by final judicial decision from which there is no appeal that such indemnitee is not entitled to be indemnified for such expenses.
Under the terms of the StateAgreement and Plan of Delaware.
Under the terms of the Merger Agreement, we agreed to indemnify, defend and hold harmless each present and former (as of the effective time of the Merger) director, officer and employee of ReShape and Obalon, each present and former director, member of the board of directors, officer and employee of any of their respective subsidiaries, and any fiduciary under any ReShape or Obalon benefit plan (in each case, acting in such capacity) (the “Indemnified Parties”), against any costs or expenses (including attorney’s fees and disbursements), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is or was a director, officer, employee or fiduciary of ReShape or Obalon or a member of the board of directors, officer, employee or fiduciary of any of its respective subsidiaries or a fiduciary under any ReShape or Obalon benefit plan, whether asserted or claimed prior to, at or after the effective time of the Merger, to the fullest extent that ReShape or Obalon, as applicable, would have been permitted under applicable law and the applicable organizational documents in effect on the date of the Merger Agreement.
Item 16.
List of Exhibits(a) Exhibits
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Exhibit | Description | |
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3.1 | | |
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3.2 | |
II-2
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Exhibit | Description | |
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3.3 | | |
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3.4 | | |
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3.5 | | |
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3.6 | | |
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3.7 | | |
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3.8 | | |
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4.1 | | |
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4.2 | | |
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4.3 | | |
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4.4 | | |
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4.5 | | |
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4.6 | | |
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4.7 | | |
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II-3
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Exhibit | Description | |
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4.8 | | |
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4.9 | | |
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4.10 | | |
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5.1 | | |
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23.1 | | |
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23.2 | | Consent of Fox Rothschild LLP (included in Exhibit 5.1 to this registration statement). |
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24.1 | | Power of Attorney (included on signature page to this registration statement). |
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107 | |
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Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the CommissionSEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percenta 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
Provided, however
, that paragraphs (a)(1)(i), (a)(1)(ii)(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by sectionSection 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communicationscommunication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to sectionSection 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange CommissionSEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of
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Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Carlsbad,Irvine, State of California, on the 1
| RESHAPE LIFESCIENCES INC. | |
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| By: | /s/ Paul F. Hickey |
| | Paul F. Hickey |
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President and Chief Executive Officer |
KNOW ALL MENPERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Andrew RasdalPaul F. Hickey and William Plovanic, or eitherThomas Stankovich, and each of them, as his true and lawful attorneys-in-fact and agents, each acting alone, with full powerthe powers of substitution and resubstitution,revocation, for him and in his name, place and stead, in any and all capacities, to file and sign any and all amendments including(including post-effective amendments andor any registration statement for the same offering that isfiled pursuant to be effective under Rule 462(b) ofunder the Securities Act of 1933) to this registration statement,Registration Statement on Form S-3, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto saidsuch attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite andor necessary to be done in connection therewithand about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming that all that saidsuch attorneys-in-fact and agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. This power of attorney shall be governed by and construed with the laws of the State of Delaware and applicable federal securities laws.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons on behalf of the registrant in the capacities and on the dates indicated.
Signature | Title | Date | ||
| | | | |
/s/ | | President and Chief Executive Officer and Director | | May 8, 2024 |
Paul F. Hickey | | (principal executive officer) | | |
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/s/ | | Chief Financial Officer | | May 8, 2024 |
Thomas Stankovich | | (principal financial and accounting officer) | | |
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/s/ | | Director | | May 8, 2024 |
Gary D. Blackford | | | | |
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/s/ | | Director | | May 8, 2024 |
Dan W. Gladney | | | | |
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/s/ Lori C. McDougal | | Director | | May 8, 2024 |
Lori C. McDougal | | | | |
| | | | |
/s/ | | Director | | May 8, 2024 |
Arda Minocherhomjee | | | | |
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