RSLS ReShape Lifesciences Inc

As filed with the U.S. Securities and Exchange Commission on February 14, 2025

Registration Statement No. 333-

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-1

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

 

RESHAPE LIFESCIENCES INC.

(Exact name of registrant as specified in its charter)

 

Delaware	3841	26-1828101
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)

 

18 Technology Dr, Suite 110

Irvine, California 92618

(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

ReShape Lifesciences Inc.

18 Technology Dr, Suite 110

Irvine, California 92618

(949) 429-6680

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

Brett Hanson Emily Humbert Fox Rothschild LLP 33 South Sixth Street, Suite 3600 Minneapolis, Minnesota 55402 (612) 607-7000

Barry I. Grossman Matthew Bernstein Ellenoff Grossman & Schole LLP 1345 Avenue of the Americas New York, New York 10105 (212) 370-1300

 

 

Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this registration statement.

 

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, 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. x 333-284362

 

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. ¨

 

If this Form is a post-effective amendment filed pursuant to Rule 462(d) 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. ¨

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer	¨		Accelerated filer	¨
Non-accelerated filer	x		Smaller reporting company	x
			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 financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.

 

This Registration Statement shall become effective upon filing in accordance with Rule 462(b) under the Securities Act of 1933, as amended.

 

 

EXPLANATORY NOTE

 

This Registration Statement is being filed by ReShape Lifesciences Inc. (the “Company”) pursuant to Rule 462(b) as promulgated under the Securities Act of 1933, as amended, and includes the registration statement facing page, this page, the signature page, an exhibit index and the required opinion and consents solely to register up to an aggregate of $9,152,802 in additional (i) shares of the Company’s common stock, par value $0.001 per share (the “common stock”), (ii) pre-funded warrants to purchase shares of the Company’s common stock, (iii) warrants to purchase shares of the Company’s common stock (together with the pre-funded warrants, the “warrants”) and (iv) shares of common stock issuable upon exercise of the warrants. The contents of the Registration Statement on Form S-1 (Registration No. 333-284362), as amended, including the exhibits and powers of attorney included therein (the “Prior Registration Statement”), which was declared effective by the Securities and Exchange Commission on February 14, 2025, are incorporated by reference in this Registration Statement. The additional securities that are being registered for sale are in an amount and at a price that together represent no more than 20% of the maximum aggregate offering price set forth in Exhibit 107 to the Prior Registration Statement. The required opinion and consents are listed on the Exhibit Index attached hereto and filed herewith.

 

 

PART II – INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 16. Exhibits and Financial Statement Schedules

 

(a)    Exhibits

 

Exhibit		Description
5.1*		Opinion of Fox Rothschild LLP as to the validity of the securities being registered.
23.1*		Consent of Fox Rothschild LLP relating to opinion as to validity of the securities being registered (included in Exhibit 5.1 hereto).
23.2*		Consent of RSM US LLP.
23.3*		Consent of Kreit & Chiu CPA LLP.
24.1*		Power of Attorney (included on the signature page to the Prior Registration Statement)
107*		Calculation of Filing Fee Table

 

*

Filed herewith.

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Irvine, State of California, on February 14, 2025.

 

	RESHAPE LIFESCIENCES INC.
	By:	/s/ Paul F. Hickey
		Name: Paul F. Hickey
		Title: President and Chief Executive Officer

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature			Capacity		Date
/s/ Paul F. Hickey			President and Chief Executive Officer and Director
Paul F. Hickey			(Principal Executive Officer)		February 14, 2025
/s/ Thomas Stankovich			Chief Financial Officer		February 14, 2025
Thomas Stankovich			(Principal Financial Officer and Principal Accounting Officer)
*			Director		February 14, 2025
Dan W. Gladney
*			Director		February 14, 2025
Gary D. Blackford
*			Director		February 14, 2025
Lori C. McDougal
*			Director		February 14, 2025
Arda M. Minocherhomjee, Ph.D.
* By	Paul F. Hickey, as attorney-in-fact
	/s/ Paul F. Hickey
	Paul F. Hickey

 

 

 

Exhibit 5.1

 

 

 

City Center
33 South Sixth Street
Suite 3600
Minneapolis, MN 55402

Tel (612) 607-7000 Fax (612) 607-7100

www.foxrothschild.com  

 

February 14, 2025

 

ReShape Lifesciences Inc.

18 Technology Drive, Suite 110

Irvine, CA 92618

 

RE: ReShape Lifesciences Inc. Registration Statement on Form S-1 under Rule 462(b)

 

Ladies and Gentlemen:

 

We have acted as counsel to ReShape Lifesciences Inc., a Delaware corporation (the “Company”), in connection with its filing with the Securities and Exchange Commission (the “Commission”) of a registration statement on Form S-1 (Registration No. 333-284362, as amended or supplemented from time to time, the “Form S-1 Registration Statement”), and a registration statement on Form S-1 filed under Rule 462(b) (the “Rule 462(b) Registration Statement”, and together with the Form S-1 Registration Statement, the “Registration Statements”) relating to the public offering by the Company (the “Offering”) of up to 2,575,107 units (the “Units”) of the Company, with each Unit consisting of: (i) either one share of the Company’s common stock, par value $0.001 per share (the “Common Stock” and such shares, the “Shares”)), or one pre-funded warrant to purchase one share of Common Stock at an exercise price equal to $0.001 per share of Common Stock (the “Pre-Funded Warrants” and the shares of Common Stock issuable upon exercise thereof, the “Pre-Funded Warrant Shares”) and (ii) one warrant to purchase one share of Common Stock (the “Common Warrants” and the 14,412,359 shares of Common Stock issuable upon exercise of the Common Warrants, the “Common Warrant Shares”). The Units are to be sold by the Company pursuant to a placement agency agreement (the “Placement Agency Agreement”) to be entered into by and between the Company and Maxim Group, LLC, as placement agent (the “Placement Agent”), the form of which has been filed as Exhibit 1.1 to the Form S-1 Registration Statement, and a securities purchase agreement to be entered into by and between the Company and investors in the Offering, the form of which has been filed as Exhibit 10.27 to the Form S-1 Registration Statement (the “SPA”). As noted in the Registration Statement, for each Pre-Funded Warrant sold, the number of Shares sold will be decreased on a one-for-one basis.

 

 

 

 

 

 

February 14, 2025

Page 2

 

The Units, including the Shares, Common Warrants and Pre-Funded Warrants included in the Units, and the Common Warrant Shares and Pre-Funded Warrants Shares are collectively referred to herein as the “Securities.”

 

This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the “Securities Act”), and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement other than as expressly stated herein.

 

In connection with this opinion, we have examined the Company’s Restated Certificate of Incorporation and all amendments thereto; the Company’s Restated Bylaws, as currently in effect; the Registration Statements and the exhibits thereto; the prospectus contained in the Registration Statement; the form of Placement Agency Agreement; the form of SPA; the form of Common Warrant; the form of Warrant Agency Agreement; the form of Pre-Funded Warrant; and such other documents, records, certificates, memoranda and instruments as we have deemed necessary as a basis for this opinion. We have also examined the resolutions of the Board of Directors of the Company authorizing the filing of the Registration Statements by the Company and the issuance of the Securities by the Company (the “Resolutions”).

 

Based upon, subject to and limited by the foregoing, we are of the opinion that following receipt by the Company of the consideration for the Securities:

 

1.

The Shares will be validly issued, fully paid and non-assessable.

 

2.

The Warrants will constitute the valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, under the laws of the State of New York.

 

3.

The Pre-Funded Warrants will constitute the valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, under the laws of the State of New York.

 

4.

The Common Warrant Shares issuable upon exercise of the Common Warrants and the Pre-Funded Warrant Shares issuable upon exercise of the Pre-Funded Warrants have been duly authorized and, when issued upon exercise of the Common Warrants and the Pre-Funded Warrants upon payment of the applicable exercise price therefor in accordance with the terms thereof, will be validly issued, fully paid and non-assessable

 

Our opinion herein is expressed solely with respect to the General Corporation Law of the State of Delaware (including the statutory provisions, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the foregoing) and, solely for purposes of paragraphs 2 and 3 above, the laws of the State of New York and is based on these laws as in effect on the date hereof. We express no opinion herein as to any other statutes, rules or regulations. We express no opinion herein as to whether the laws of any jurisdiction are applicable to the subject matter hereof. We are not rendering any opinion as to compliance with any federal or other state law, rule or regulation relating to securities, or to the sale or issuance thereof. We give no opinion as to whether the Company or its beneficial owners are in compliance with the Corporate Transparency Act and/or the rules and regulations promulgated thereunder or any similar state law, rule or regulation.

 

 

 

 

February 14, 2025

Page 3

 

This opinion letter has been prepared for your use in connection with the Offering. This opinion is expressed as of the date hereof, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable law.

 

We consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to this firm under the caption “Legal Matters” in the prospectus contained therein. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

 

Very truly yours,

 

/s/ Fox Rothschild LLP

 

 

 

Exhibit 23.2

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in this Registration Statement on Form S-1 of ReShape Lifesciences Inc. filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, of our report dated April 1, 2024, except for the effect of the reverse stock split described in Note 1, as to which the date is October 1, 2024, relating to the consolidated financial statements of ReShape Lifesciences Inc., appearing in the Prospectus, which is a part of the Registration Statement (No. 333-284362) on Form S-1 declared effective on February 14, 2025.

 

We also consent to the reference to our firm under the heading “Experts” in such Prospectus.

 

/s/ RSM US LLP

 

Irvine, California

February 14, 2025

 

 

 

Exhibit 23.3

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the inclusion in the Registration Statement of ReShape Lifesciences Inc. on Form S-1, of our report dated June 18, 2024, on our audit of the consolidated financial statements of Vyome Therapeutics Inc. (the “Company”) as of December 31, 2023 and 2022 and for the years then ended. Our report includes an explanatory paragraph about the existence of substantial doubt about the Company’s ability to continue as a going concern.

 

/s/ Kreit & Chiu CPA LLP

 

New York, New York

February 14, 2025

 

 

 

Exhibit 107

 

Calculation of Filing Fee Tables

 

Form S-1
(Form Type)

 

RESHAPE LIFESCIENCES INC.

 

(Exact Name of Registrant as Specified in its Charter)

 

Table 1: Newly Registered Securities

 

	Security Type	Security Class Title	Fee Calculation Rule	Amount Registered	Proposed Maximum Offering Price Per Unit	Maximum Aggregate Offering Price(1)	Fee Rate	Amount of Registration Fee(2)
Fees to be paid	Equity	Common stock, par value $0.001 per share	457(o)	-	-	$1,000,000	$153.10 per $1,000,000	$153.10
	Other	Pre-funded warrants to purchase common stock(3)	457(g)	-	-	-	-	-
	Equity	Common stock, par value $0.001 per share, underlying pre-funded warrants(2)(4)	457(o)	-	-	-	-	-
	Other	Warrants to purchase common stock(3)	457(g)	-	-	-	-	-
	Equity	Common stock, par value $0.001 per share, underlying warrants(2)	457(o)	-	-	$8,092,802.80	$153.10 per $1,000,000	$1,239.01
	Other	Placement agent’s warrants to purchase common stock(3)	457(g)	-	-	-	-	-
	Equity	Common stock, par value $0.001 per share, underlying placement agent’s warrants(2)(5)	457(o)	-	-	$60,000	$153.10 per $1,000,000	$9.19
Carry Forward Securities	-	-	-	-	-	-	-	-
	Total Offering Amounts					$9,152,802.80	$153.10 per $1,000,000	$1,401.30
	Total Fee Offsets
	Fees Previously Paid
	Net Fee Due							$1,401.30

 

 

(1)	Estimated solely for the purpose of calculating the amount of the registration fee in accordance with Rule 457(o) under the Securities Act of 1933, as amended (the “Securities Act”).
(2)	The registrant previously registered securities with a proposed maximum aggregate offering price not to exceed $45,764,014 on a registration statement on Form S-1, as amended (File No. 333-284362), which was declared effective by the Securities and Exchange Commission on February 14, 2025. In accordance with Rule 462(b) under the Securities Act, an additional amount of securities having a proposed maximum aggregate offering price of $9,152,802.80 is hereby registered.
(3)	No separate registration fee is payable pursuant to Rule 457(g) under the Securities Act. In accordance with Rule 457(i) under the Securities Act, no separate registration fee is required with respect to the warrants or pre-funded warrants registered hereby.
(4)	The registrant may issue pre-funded warrants to purchase common stock in the offering. The purchase price of each pre-funded warrant will be equal to the price per share at which shares are being sold to the public in this offering, minus $0.001, which constitutes the pre-funded portion of the exercise price of the pre-funded warrants, and the remaining unpaid exercise price of the pre-funded warrants will equal $0.001 per share (subject to adjustment as provided for therein). The proposed maximum aggregate offering price of the shares will be reduced on a dollar-for-dollar basis based on the offering price of any pre-funded warrants issued in the offering, and the proposed maximum aggregate offering price of the shares to be issued in the offering will be reduced on a dollar-for-dollar basis based on the offering price of any pre-funded warrants issued in the offering. Accordingly, the proposed maximum aggregate offering price of the shares of common stock and pre-funded warrants is $1,000,000.
(5)	Based on an assumed per share exercise price for the placement agent’s warrants of 120% of the public offering price per unit in this offering.

 

 

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