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2025-02-15
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UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington,
D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
February 15, 2025
RESHAPE LIFESCIENCES
INC.
(Exact name of registrant as specified in its charter)
| Delaware |
1-37897 |
26-1828101 |
|
(State or other jurisdiction
of
incorporation) |
(Commission
File Number) |
(IRS Employer
Identification No.) |
| |
|
|
|
18 Technology Drive, Suite 110
Irvine, CA |
92618 |
| (Address of principal executive offices) |
(Zip Code) |
| |
|
|
|
(949) 429-6680
(Registrant’s
telephone number, including area code)
Not Applicable
(Former name or former address, if changed since
last report.)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425) |
| | |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12) |
| | |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b)) |
| | |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant
to Section 12(b) of the Act:
| Title
of each class |
Trading
Symbol(s) |
Name
of each exchange on which registered |
| Common stock, $0.001 par value per share |
RSLS |
The Nasdaq Capital Market |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
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 13(a) of the Exchange Act. ¨
| Item 1.01 | Entry into a Material Definitive Agreement. |
On February 15, 2025, ReShape Lifesciences
Inc. (the “Company”) entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain investors
(the “Investors”) pursuant to which the Company agreed to issue and sell to the Investors (i) 2,575,107 shares of the
Company’s common stock, par value $0.001 per share (the “Common Stock”) and (ii) warrants to purchase up to 2,575,107
shares of Common Stock at an initial exercise price of $5.83 per share (the “Warrants”), subject to adjustment as set forth
in the Warrants. The securities were sold as part of units at a price of $2.33 per unit. The offering closed on February 18, 2025.
The Warrants, which are not exercisable unless
and until approved by the Company’s stockholders, will expire on the later of (i) 12 days after date of stockholder approval
and (ii) the earlier of (x) the closing date of the Company’s previously announced merger with Vyome Therapeutics, Inc.
and (y) 60 days after the date of stockholder approval. The exercise price of the Warrants will be subject to adjustment on the date
that is four trading days after stockholder approval is obtained (the “Reset Date”), if the lowest volume weighted average
price (“VWAP”) for the Company’s Common Stock during the period beginning four trading days prior to the effective date
of stockholder approval and ending four trading days after the effective date of stockholder approval is lower than the then exercise
price of the warrants, in which case, on the Reset Date, the exercise price of the Warrants will be reset (subject to a floor of $1.25
per share) to equal such lowest VWAP and the number of shares of Common Stock underlying the Warrants will be increased so that the reset
exercise price multiplied by increased number of shares equals the aggregate exercise price that would have resulted from the full exercise
of the Warrants immediately prior to the Reset Date. The Warrants also contain certain mechanisms for cashless exercise, including alternative
cashless exercise pursuant to which holders of warrants have the option, upon exercise and for no additional cash consideration, to receive
an aggregate number of shares of Common Stock equal to the product of (x) the aggregate number of shares of Common Stock that would
be issuable upon a cash exercise of the Warrant (as adjusted on the Reset Date, as applicable) and (y) 1.2.
The offering was made pursuant to the Company’s
Registration Statement on Form S-1, as amended (File No. 333-284362), which was declared effective by the Securities and Exchange Commission
(the “SEC”) on February 14, 2025, and a registration statement on Form S-1 filed pursuant to Rule 462(b) of the Securities
Act of 1933, as amended, which was filed with the SEC and became effective upon filing on February 14, 2025. The final prospectus relating
to the offering was filed with the SEC on February 18, 2025, and may be obtained from the SEC’s website at http://www.sec.gov or
from Maxim Group LLC, 300 Park Avenue, 16th Floor, New York, NY 10022, at (212) 895-3745.
The gross proceeds from the offering were approximately
$6.0 million, before deducting the placement agent fees and offering expenses. The Company intends to use the net proceeds from the offering
for general corporate purposes, including expenses related to the Company’s previously announced proposed merger with Vyome Therapeutics, Inc.
and sale of substantially all of the Company’s assets to Ninjour Health International Limited, provided that the Company must use
up to 50% of the net proceeds from the offering to prepay the amount it owes to Ascent Partners under the Company’s previously announced
secured convertible note transaction.
The representations, warranties and covenants
contained in the Purchase Agreement were made solely for the benefit of the parties to the Purchase Agreement and may be subject to limitations
agreed upon by the contracting parties. Accordingly, the Purchase Agreement is incorporated herein by reference only to provide investors
with information regarding the terms of the Purchase Agreement, and not to provide investors with any other factual information regarding
the Company or its business, and should be read in conjunction with the disclosures in the Company’s periodic reports and other
filings with the Securities and Exchange Commission.
On February 15, 2025, the Company entered into a Placement Agency Agreement
(the “Placement Agency Agreement”), with Maxim Group LLC (“Maxim” or the “Placement Agent”) for Maxim
to act as the Company’s exclusive placement agent in connection with the offering. Pursuant to the terms of the Placement
Agency Agreement, Maxim received a cash fee equal to up to 7.0% of the gross proceeds received by the Company from the sale of the
securities in offering, as well as reimbursement for certain expenses, and warrants to purchase up to 128,755 shares of Common Stock,
which is equal to 5.0% of the aggregate amount of shares of Common Stock issued in the offering, at an exercise price of $5.83 per share
(the “Placement Agent Warrant”). The Placement Agent Warrant has the same exercise price and substantially the same terms
as the Warrants issued in this offering.
The foregoing description of the Purchase Agreement, Warrants, Placement
Agency Agreement and Placement Agent Warrant do not purport to be complete and are qualified in their entirety by reference to the full
text of the form of Purchase Agreement, Warrants, Placement Agency Agreement and Placement Agent Warrant, which are filed as Exhibits
10.1, 4.1, 1.1 and 4.2, respectively, to this Current Report on Form 8-K and incorporated herein by reference.
| Item 7.01 | Regulation FD Disclosure. |
On February 15, 2025, the Company issued
a press release announcing the pricing of the units in the Offering.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
| |
RESHAPE LIFESCIENCES INC. |
| |
|
| |
By: |
/s/ Paul F. Hickey |
| |
|
Paul F. Hickey |
| |
|
President and Chief Executive Officer |
Date: February 20, 2025
Exhibit 1.1
PLACEMENT AGENCY AGREEMENT
February 15, 2025
Maxim Group LLC
300 Park Avenue, 16th Floor
New York, NY 10022
Ladies and Gentlemen:
Subject to the terms and
conditions herein (this “Agreement”), ReShape Lifesciences Inc., a Delaware corporation (including any successor thereto,
the “Company”), hereby agrees to sell up to an aggregate of $5,999,999.31 of units, each unit consisting of (1) either
(i) one share (each a "Share" and collectively, the “Shares”) of Common Stock of the Company,
par value $0.001 per share (the “Common Stock”), or (ii) one pre-funded warrant in lieu thereof to purchase one
share of Common Stock (the “Pre-Funded Warrants”) and (2) one warrant to purchase one share of Common Stock (the
“Warrants,” and the Shares issuable upon exercise of the Warrants and Pre-Funded Warrants, the “Warrant Shares”,
and the Shares, Pre-Funded Warrants, Warrants and Warrant Shares, collectively, the “Securities”) directly to various
investors (each, an “Investor” and, collectively, the “Investors”) through Maxim Group LLC as placement
agent (the “Placement Agent”). The documents executed and delivered by the Company and the Investors in connection
with the Offering (as defined below), including, without limitation, a securities purchase agreement (the “Purchase Agreement”),
shall be collectively referred to herein as the “Transaction Documents.” The purchase price to the Investors for the
Securities will be negotiated between the Company and the Investors, in consultation with the Placement Agent. The Placement Agent may
retain other brokers or dealers to act as sub-agents or selected-dealers on its behalf in connection with the Offering.
The Company hereby confirms
its agreement with the Placement Agent as follows:
Section 1. Agreement
to Act as Placement Agent.
(a) On
the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions
of this Agreement, the Placement Agent shall be the exclusive placement agent in connection with the offering and sale by the Company
of the Securities pursuant to the Company's registration statement on Form S-1 (File No. 333-284362), as amended (and including
any registration statement prepared and filed by the Company in accordance with Rule 462(b) pursuant to the Securities Act)
(the “Registration Statement”), with the terms of such offering (the “Offering”) to be subject
to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors. The Placement Agent will
act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement
of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent or any of its
“Affiliates” (as defined below) be obligated to underwrite or purchase any of the Securities for its own account or otherwise
provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall
have no authority to bind the Company with respect to any prospective offer to purchase Securities and the Company shall have the sole
right to accept offers to purchase Securities and may reject any such offer, in whole or in part. Subject to the terms and conditions
hereof, payment of the purchase price for, and delivery of, the Securities shall be made at one or more closings (each a “Closing”
and the date on which each Closing occurs, a “Closing Date”). The Closing of the issuance of the
Securities shall occur via “Delivery
Versus Payment”, i.e., on the Closing Date, the Company shall issue the Securities directly to the account designated by the Placement
Agent and, upon receipt of such Securities, the Placement Agent shall electronically deliver such Securities to the applicable Investor
and payment shall be made by the Placement Agent (or its clearing firm) by wire transfer to the Company. As compensation for services
rendered, on each Closing Date, the Company shall pay to the Placement Agent the fees and expenses set forth below:
| (i) | A cash fee equal to 7.0% of the gross proceeds
received by the Company from the sale of the Securities at the Closing. |
| (ii) | Such
number of Common Share purchase warrants (the “Placement Agent Warrants”) to
the Placement Agent or its designees at the Closing to purchase Common Shares equal to 5.0%
of the aggregate number of Shares and Pre-Funded Warrants sold in the Offering. The Placement
Agent Warrants exercise price shall be 250% of the public offering price per share, shall
be exercisable upon Stockholder Approval (as defined in the Purchase Agreement) and
have an expiration date of the later of (i) twelve (12) days after the Stockholder Approval
Date and (ii) the earlier of (x) the closing date of the transactions contemplated
by the Merger Agreement (as defined below) and (y) sixty (60) days after the Stockholder
Approval Date, and in no event later than 5 years from the commencement of sales of the Offering
and be in a form that is substantially similar to the Warrants issued to the Investors in
the Offering. The Placement Agent Warrants shall be subject to a lock-up period for 180 days
from the commencement of sales of the Offering except as permitted by Financial Industry
Regulatory Authority (“FINRA”) Rule 5110(E)(1); and |
| (iii) | The Company also agrees to reimburse Placement
Agent’s expenses up to a maximum of $125,000, unless otherwise agreed by the Company
and the Placement Agent, payable immediately upon and only in the event of the Closing of
the Offering. |
(b) Upon
the Closing or termination (other than for cause as defined in FINRA Rule 5110(g)(5)(B)) of the Offering, if within twelve (12)
months following such time, the Company completes any financing of equity, equity-linked or debt or other capital raising activity with,
or receives any proceeds from, any of the investors contacted or introduced by the Placement Agent, then the Company will pay the Placement
Agent upon the closing of such financing or receipt of such proceeds the compensation equivalent to that set forth in Section 1(a)(i) and
(ii).
(c) Notwithstanding
anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein
and the Company’s obligations contained in the indemnification provisions will survive any expiration or termination of this Agreement,
and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable
pursuant to Section 1 hereof and which are permitted to be reimbursed under FINRA Rule 5110(g)(4)(A), will survive any expiration
or termination of this Agreement. Nothing in this Agreement shall be construed to limit the ability of the Placement Agent or its Affiliates
to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with
Persons (as defined below) other than the Company. As used herein (i) “Persons” means an individual or corporation,
partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government
(or an agency or subdivision thereof) or other entity of any kind and (ii) “Affiliate” means any Person that, directly
or indirectly through
one or more intermediaries, controls
or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities
Act of 1933, as amended (the “Securities Act”).
Section 2. Representations,
Warranties and Covenants of the Company. The Company hereby represents, warrants and covenants
to the Placement Agent as of the date hereof, and as of each Closing Date, as follows:
(a) Securities
Law Filings. The Company has filed with the Securities and Exchange Commission (the “Commission”) the Registration
Statement under the Securities Act, which was initially filed on January 21, 2025, as amended, and declared effective on February 14,
2025 for the registration of the Securities under the Securities Act. Following the determination of pricing among the Company and the
prospective Investors introduced to the Company by the Placement Agent, the Company will file with the Commission pursuant to Rules 430A
and 424(b) under the Securities Act, and the rules and regulations (the “Rules and Regulations”) of
the Commission promulgated thereunder, a final prospectus relating to the placement of the Securities, their respective pricings and
the plan of distribution thereof and will advise the Placement Agent of all further information (financial and other) with respect to
the Company required to be set forth therein. Such registration statement, at any given time, including the exhibits thereto filed at
such time, as amended at such time, is hereinafter called the “Registration Statement”; such prospectus in the form
in which it appears in the Registration Statement at the time of effectiveness is hereinafter called the “Preliminary Prospectus”;
and the final prospectus, in the form in which it will be filed with the Commission pursuant to Rules 430A and/or 424(b) (including
the Preliminary Prospectus as it may be amended or supplemented) is hereinafter called the “Final Prospectus.” The
Registration Statement at the time it originally became effective is hereinafter called the “Original Registration Statement.”
Any reference in this Agreement to the Registration Statement, the Original Registration Statement, the Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein (the “Incorporated
Documents”), if any, which were or are filed under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), at any given time, as the case may be; and any reference in this Agreement to the terms “amend,” “amendment”
or “supplement” with respect to the Registration Statement, the Original Registration Statement, the Preliminary Prospectus
or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the date of this
Agreement, or the issue date of the Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein
by reference. All references in this Agreement to financial statements and schedules and other information which is “contained,”
“included,” “described,” “referenced,” “set forth” or “stated” in the Registration
Statement, the Preliminary Prospectus or the Final Prospectus (and all other references of like import) shall be deemed to mean and include
all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration
Statement, the Preliminary Prospectus or the Final Prospectus, as the case may be. As used in this paragraph and elsewhere in this Agreement,
“Time of Sale Disclosure Package” means the Preliminary Prospectus, any securities purchase agreement between the
Company and the Investors, the final terms of the Offering provided to the Investors (orally or in writing) and any issuer free writing
prospectus as defined in Rule 433 of the Act (each, an “Issuer Free Writing Prospectus”), if any, that the parties
hereto shall hereafter expressly agree in writing to treat as part of the Time of Sale Disclosure Package. The term “any Prospectus”
shall mean, as the context requires, the Preliminary Prospectus, the Final Prospectus, and any supplement to either thereof. The Company
has not received any notice that the Commission has issued or intends to issue a stop order suspending the effectiveness of the Registration
Statement or the use
of the Preliminary Prospectus or any
prospectus supplement or intends to commence a proceeding for any such purpose.
(b) Assurances.
The Original Registration Statement, as amended (and any further documents to be filed with the Commission) contains all exhibits and
schedules as required by the Securities Act. Each of the Registration Statement and any post-effective amendment thereto, at the time
it became effective, complied in all material respects with the Securities Act and the applicable Rules and Regulations and did
not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading. The Preliminary Prospectus and the Final Prospectus, each as of its respective date, comply or
will comply in all material respects with the Securities Act and the applicable Rules and Regulations. Each of the Preliminary Prospectus
and the Final Prospectus, as amended or supplemented, did not and will not contain as of the date thereof any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they
were made, not misleading. The Incorporated Documents, when they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the applicable Rules and Regulations promulgated thereunder, and none of such documents,
when they were filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary
to make the statements therein (with respect to Incorporated Documents incorporated by reference in the Preliminary Prospectus or Final
Prospectus), in light of the circumstances under which they were made not misleading. No post-effective amendment to the Registration
Statement reflecting any facts or events arising after the date thereof which represent, individually or in the aggregate, a fundamental
change in the information set forth therein is required to be filed with the Commission. Except for this Agreement and the Transaction
Documents, there are no documents required to be filed with the Commission in connection with the transaction contemplated hereby that
(x) have not been filed as required pursuant to the Securities Act or (y) will not be filed within the requisite time period.
Except for this Agreement and the Transaction Documents, there are no contracts or other documents required to be described in the Preliminary
Prospectus or Final Prospectus, or to be filed as exhibits or schedules to the Registration Statement, which have not been described
or filed as required.
(c) Offering
Materials. Neither the Company nor any of its directors and officers has distributed and none of them will distribute, prior to each
Closing Date, any offering material in connection with the offering and sale of the Securities other than the Time of Sale Disclosure
Package.
(d) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and the Time of Sale Disclosure Package and otherwise to carry out its obligations hereunder and thereunder. The execution
and delivery of each of this Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby
have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Company’s
Board of Directors (the “Board of Directors”) or the Company’s shareholders in connection therewith other than
in connection with the Required Approvals (as defined in the Purchase Agreement). This Agreement has been duly executed by the Company
and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally,
(ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other
equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
(e) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the transactions contemplated pursuant to
the Time of Sale Disclosure Package, the issuance and sale of the Securities and the consummation by it of the transactions contemplated
hereby and thereby to which it is a party do not and will not (i) conflict with or violate any provision of the Company’s
or any Subsidiary’s certificate of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with,
or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation
of any Lien (as defined below) upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility,
debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary
is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required
Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction
of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses
(ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect, as defined in the Securities
Purchase Agreement. For the purposes of this Agreement, “Lien” means a lien, charge, pledge, security interest, encumbrance,
right of first refusal, preemptive right or other restriction.
(f) Certificates.
Any certificate signed by an officer of the Company and delivered to the Placement Agent or to counsel for the Placement Agent
shall be deemed to be a representation and warranty by the Company to the Placement Agent as to the matters set forth therein.
(g) Reliance.
The Company acknowledges that the Placement Agent will rely upon the accuracy and truthfulness of the foregoing representations
and warranties and hereby consents to such reliance.
(h) Forward-Looking
Statements. No forward-looking statements (within the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act) contained in the Time of Sale Disclosure Package has been made or reaffirmed without a reasonable basis or has been disclosed
other than in good faith.
(i) Statistical
or Market-Related Data. Any statistical, industry-related and market-related data included or incorporated by reference in the Time
of Sale Disclosure Package, are based on or derived from sources that the Company reasonably and in good faith believes to be reliable
and accurate, and such data agree with the sources from which they are derived.
(j) Certain
Fees; FINRA Affiliations. Except as set forth in the Registration Statement and Prospectus, no brokerage or finder’s fees or
commissions are or will be payable by the Company, any Subsidiary or Affiliate of the Company to any broker, financial advisor or consultant,
finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents.
There are no other arrangements, agreements or understandings of the Company or, to the Company’s knowledge, any of its shareholders
that may affect the Placement Agent’s compensation, as determined by FINRA.
Other than payments to the Placement
Agent for this Offering or as set forth in the Registration Statement and Prospectus, the Company has not made and has no agreements,
arrangements or understanding to make any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as
a finder’s fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or introducing to
the Company persons who raised or provided capital to the Company; (ii) any FINRA member participating in the offering as defined
in FINRA Rule 5110 (a “Participating Member”); or (iii) any person or entity that has any direct or indirect affiliation
or association with any Participating Member, within the 180-day period preceding the initial filing of the Registration Statement through
the 60-day period after the effective date of the Registration Statement (the “Effective Date”). None of the net proceeds
of the Offering will be paid by the Company to any Participating Member or its affiliates, except as specifically authorized herein.
To the Company’s knowledge, no officer, director or any beneficial owner of 10% or more of the Company’s Common Stock or
Common Stock Equivalents (as defined in the Purchase Agreement) has any direct or indirect affiliation or association with any Participating
Member in the Offering. Except for securities purchased on the open market, no Company Affiliate is an owner of stock or other securities
of any Participating Member. To the Company’s knowledge, no Company Affiliate has made a subordinated loan to any Participating
Member. No proceeds from the sale of the Securities (excluding Placement Agent compensation as disclosed in the Registration Statement
and the Prospectus) will be paid to any Participating Member, any persons associated with a Participating Member or an affiliate of a
Participating Member. Except as disclosed in the Prospectus, the Company has not issued any warrants or other securities or granted any
options, directly or indirectly, to the Placement Agent within the 180-day period prior to the initial filing date of the Prospectus.
To the Company’s knowledge, except for securities issued to the Placement Agent as disclosed in the Prospectus, no person to whom
securities of the Company have been privately issued within the 180-day period prior to the initial filing date of the Prospectus is
a Participating Member, is a person associated with a Participating Member or is an affiliate of a Participating Member. To the Company’s
knowledge, no Participating Member in the Offering has a conflict of interest with the Company. For this purpose, a “conflict of
interest” exists when a Participating Member, the parent or affiliate of a Participating Member or any person associated with a
Participating Member in the aggregate beneficially own 10% or more of the Company’s outstanding subordinated debt or common equity,
or 10% or more of the Company’s preferred equity. “FINRA member participating in the Offering” includes any associated
person of a Participating Member in the Offering, any member of such associated person’s immediate family and any affiliate of
a Participating Member in the Offering. When used in this Section 3.1(j) the term “affiliate of a FINRA member”
or “affiliated with a FINRA member” means an entity that controls, is controlled by or is under common control with a FINRA
member. The Company will advise the Placement Agent and its legal counsel, Ellenoff Grossman & Schole LLP (the “Placement
Agent Counsel”) if it learns that any officer, director or owner of 10% or more of the Company’s outstanding Common Stock
or Common Stock Equivalents is or becomes an affiliate or associated person of a Participating Member.
(k) Board
of Directors. The Board of Directors is comprised of the persons set forth under the heading of the Company’s Annual Report
on Form 10-K captioned “Directors, Executive Officers and Corporate Governance.” The qualifications of the persons serving
as board members and the overall composition of the Board of Directors comply with the Sarbanes-Oxley Act of 2002 and the rules promulgated
thereunder applicable to the Company and the rules of the Nasdaq Capital Market (the “Trading Market”). In addition,
at least a majority of the persons serving on the Board of Directors qualify as “independent” as defined under the rules of
the Trading Market.
(l) D&O
Questionnaires. To the Company’s knowledge, all information contained in the questionnaires most recently completed by each
of the Company’s directors and officers is true and correct in all respects (other than changes in securities ownership from the
date of such questionnaires) and the Company has not become aware of any information which would cause the information disclosed in such
questionnaires to become inaccurate and incorrect.
(m) Representations,
Warranties and Covenants Incorporated by Reference. Each of the representations, warranties and covenants (together with any related
disclosure schedules thereto) made to the Investors in the Purchase Agreement is hereby incorporated herein by reference (as though fully
restated herein) and is hereby made to, and in favor of, the Placement Agent
(n) Closing
of the Merger. The Company covenants and agrees that the Company shall not consummate the merger and other transactions contemplated
by the Merger Agreement (as defined below) until at least twelve (12) Trading Days after the Stockholder Approval Date. The Company acknowledges
that any Investor shall be entitled to obtain injunctive relief against the Company to preclude the Company from consummating the merger
and other transactions contemplated by the Merger Agreement, which remedy shall be in addition to any right to collect damages.
Section 3. Delivery
and Payment. Each Closing shall occur at the offices of the Placement Agent Counsel at 1345
Avenue of the Americas, New York, New York 10105 (or at such other place as shall be agreed upon by the Placement Agent, Investors,
and the Company, or remotely by electronic transmission). Subject to the terms and conditions hereof, at each Closing payment of the
purchase price for the Securities sold on such Closing Date shall be made by Federal Funds wire transfer, against delivery of such Securities,
and such Securities shall be registered in such name or names and shall be in such denominations, as the Placement Agent may request
at least one business day before the time of purchase.
Deliveries of the documents
with respect to the purchase of the Securities, if any, shall be made at the offices of Placement Agent Counsel, or remotely by electronic
transmission. All actions taken at a Closing shall be deemed to have occurred simultaneously.
Section 4. Covenants
and Agreements of the Company. The Company further covenants and agrees with the Placement Agent
as follows:
(a) Registration
Statement Matters. The Company will advise the Placement Agent promptly after it receives notice thereof of the time when any amendment
to the Registration Statement has been filed or becomes effective or any supplement to the Final Prospectus has been filed and will furnish
the Placement Agent with copies thereof. The Company will file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent
to the date of any Prospectus and for so long as the delivery of a prospectus is required in connection with the Offering. The Company
will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration
Statement or to amend or supplement any Prospectus or for additional information, (ii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at
any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Preliminary
Prospectus or the Final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment
to the
Registration
Statement, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the institution or threatened
institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration
Statement or a Prospectus or for additional information, (iii) of the issuance by any state securities commission of any proceedings
for the suspension of the qualification of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening,
of any proceeding for that purpose; (iv) of the mailing and delivery to the Commission for filing of any amendment or supplement
to the Registration Statement or Prospectus; (v) of the receipt of any comments or request for any additional information from the
Commission; and (vi) of the happening of any event during the period described in this Section 4(a) that, in the judgment
of the Company, makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that requires the
making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The Company shall use its best efforts to prevent the issuance of any such stop order or
prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension
at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment or will file a
new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable.
Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under
the Securities Act, including with respect to the timely filing of documents thereunder, and will use its reasonable efforts to confirm
that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
(b) Blue
Sky Compliance. The Company will cooperate with the Placement Agent and the Investors in endeavoring to qualify the Securities for
sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Investors may reasonably
request and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose,
provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in
any jurisdiction where it is not now so qualified or required to file such a consent, and provided further that the Company shall not
be required to produce any new disclosure document. The Company will, from time to time, prepare and file such statements, reports and
other documents as are or may be required to continue such qualifications in effect for so long a period as the Placement Agent may reasonably
request for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification
or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation
or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration
or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
(c) Amendments
and Supplements to a Prospectus and Other Matters. The Company will comply with the Securities Act and the Exchange Act, and the
rules and regulations of the Commission thereunder during Prospectus Delivery Period (as defined below), so as to permit the completion
of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the
period in which a prospectus is required by law to be delivered in connection with the distribution of Securities contemplated by the
Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result of
which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary
to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements
therein, in the light of the circumstances
under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated
Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly
prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment
to the Registration Statement or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary
in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances
under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or
any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the
Incorporated Documents or any Prospectus in connection with the Offering, the Company will furnish the Placement Agent with a copy of
such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
(d) Copies
of any Amendments and Supplements to a Prospectus. The Company will furnish the Placement Agent, without charge, during the period
beginning on the date hereof and ending on the later of the last Closing Date of the Offering, as many copies of any Prospectus or prospectus
supplement and any amendments and supplements thereto, as the Placement Agent may reasonably request.
(e) Free
Writing Prospectus. The Company covenants that it will not, unless it obtains the prior written consent of the Placement Agent, make
any offer relating to the Securities that would constitute a Company Free Writing Prospectus or that would otherwise constitute a “free
writing prospectus” (as defined in Rule 405 of the Securities Act) required to be filed by the Company with the Commission
or retained by the Company under Rule 433 of the Securities Act. In the event that the Placement Agent expressly consents in writing
to any such free writing prospectus (a “Permitted Free Writing Prospectus”), the Company covenants that it shall (i) treat
each Permitted Free Writing Prospectus as an Company Free Writing Prospectus, and (ii) comply with the requirements of Rule 164
and 433 of the Securities Act applicable to such Permitted Free Writing Prospectus, including in respect of timely filing with the Commission,
legending and record keeping.
(f) Transfer
Agent. The Company will maintain, at its expense, a registrar and transfer agent for the Shares.
(g) Earnings
Statement. As soon as practicable and in accordance with applicable requirements under the Securities Act, but in any event not later
than 18 months after the last Closing Date, the Company will make generally available to its security holders and to the Placement Agent
an earnings statement, covering a period of at least 12 consecutive months beginning after the last Closing Date, that satisfies the
provisions of Section 11(a) and Rule 158 under the Securities Act.
(h) Periodic
Reporting Obligations. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission
and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner
required by the Exchange Act.
(i) Additional
Documents. The Company will enter into any subscription, purchase or other customary agreements as the Placement Agent or the Investors
deem necessary or appropriate to consummate the Offering, all of which will be in form and substance reasonably
acceptable
to the Placement Agent and the Investors. The Company agrees that the Placement Agent may rely upon, and each is a third party beneficiary
of, the representations and warranties, and applicable covenants, set forth in any such purchase, subscription or other agreement with
Investors in the Offering.
(j) No
Manipulation of Price. Neither the Company, nor to its knowledge, any of its employees, directors or shareholders, has
taken or will take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause
or result in, under the Exchange Act, or otherwise stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(k) Acknowledgment.
The Company acknowledges that any advice given by the Placement Agent to the Company is solely for the benefit and use of the Board of
Directors and may not be used, reproduced, disseminated, quoted or referred to, without the Placement Agent’s prior written consent.
(l) Announcement
of Offering. The Company acknowledges and agrees that the Placement Agent may, subsequent to the Closing, make public its involvement
with the Offering.
(m) Reliance
on Others. The Company confirms that it will rely on its own counsel and accountants for legal and accounting advice.
(n) Research
Matters. By entering into this Agreement, the Placement Agent does not provide any promise, either explicitly or implicitly, of favorable
or continued research coverage of the Company and the Company hereby acknowledges and agrees that the Placement Agent’s selection
as a placement agent for the Offering was in no way conditioned, explicitly or implicitly, on the Placement Agent providing favorable
or any research coverage of the Company. In accordance with FINRA Rule 2241(b)(2), the parties acknowledge and agree that the Placement
Agent has not directly or indirectly offered favorable research, a specific rating or a specific price target, or threatened to change
research, a rating or a price target, to the Company or inducement for the receipt of business or compensation. The Company hereby waives
and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to
any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and research departments
may be different from or inconsistent with the views or advice communicated to the Company by the Placement Agent’s investment
banking divisions. The Company acknowledges that the Placement Agent is a full service securities firm and as such from time to time,
subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short
position in debt or equity securities of the Company.
(o) Subsequent
Equity Sales.
(i) From
the date hereof until twelve (12) days after the Stockholder Approval Date, neither the Company nor any Subsidiary shall (i) issue,
enter into any agreement to issue or announce the issuance or proposed issuance of any Common Stock or Common Stock Equivalents or (ii) file
any registration statement or amendment or supplement thereto, other than the Prospectus or filing a registration statement on Form S-8
in connection with any employee benefit plan, in each case without prior written consent of the Placement Agent.
(ii) Notwithstanding
the foregoing, this Section 4(o) shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction,
other than the ELOC, shall be an Exempt Issuance (each as defined in the Purchase Agreement).
(iii) Notwithstanding
anything to the contrary contained in this Agreement or, the Placement Agent agrees that none of the provisions of this Section 4(o) nor
any other provisions contained in this Agreement restrict or limit the Company’s ability to engage in the transactions contemplated
by the Agreement and Plan of Merger, dated July 8, 2024 (the “Merger Agreement”), by and among the Company, Vyome
Therapeutics, Inc. (“Vyome”) and Raider Lifesciences Inc. (“Raider”) or restrict in any way
the issuance, transfer or sale of securities issued after the closing of the transactions contemplated by the Merger Agreement.
(p) Lock-Up
Agreements. The Company shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements (as defined in
the Purchase Agreement) except to extend the term of the lock-up period and shall enforce the provisions of each Lock-Up Agreement in
accordance with its terms. If any party to a Lock-Up Agreement breaches any provision of a Lock-Up Agreement, the Company shall promptly
use its best efforts to seek specific performance of the terms of such Lock-Up Agreement.
(q) FINRA.
The Company shall advise the Placement Agent (who shall make an appropriate filing with FINRA) if it is aware that any officer, director,
10% or greater shareholder of the Company or Person that received the Company’s unregistered equity securities in the past 180
days is or becomes an affiliate or associated person of a FINRA member firm prior to the earlier of the termination of this Agreement
or the 60-day period after the Effective Date
Section 5. Conditions
of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder
shall be subject to the accuracy of the representations and warranties on the part of the Company set forth in Section 2 hereof,
in each case as of the date hereof and as of each Closing Date as though then made, to the timely performance by each of the Company
of its covenants and other obligations hereunder on and as of such dates, and to each of the following additional conditions:
(a) Accountants’
Comfort Letters. On the date hereof, the Placement Agent shall have received, and the Company shall have caused to be delivered to
the Placement Agent, letters from Haskell & White LLP, RSM US LLP and Kreit & Chiu CPA LLP, addressed to the Placement
Agent, dated as of the date hereof, in form and substance satisfactory to the Placement Agent. The letters shall not disclose any change
in the condition (financial or other), earnings, operations, business or prospects of the Company from that set forth in the Incorporated
Documents or the applicable Prospectus or prospectus supplement, which, in the Placement Agent's sole judgment, is material and adverse
and that makes it, in the Placement Agent's sole judgment, impracticable or inadvisable to proceed with the Offering of the Securities
as contemplated by such Prospectus.
(b) Compliance
with Registration Requirements; No Stop Order; No Objection from the FINRA. Each Prospectus (in accordance with Rule 424(b))
and “free writing prospectus” (as defined in Rule 405 of the Securities Act), if any, shall have been duly filed
with the Commission, as appropriate; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated
or threatened by the Commission; no order preventing or suspending the use of any Prospectus shall have been issued and no proceeding
for that purpose shall have been initiated or threatened by the Commission; no order having the effect of ceasing or suspending the distribution
of the Securities or any other securities of the Company shall have been issued by any securities commission, securities regulatory authority
or stock exchange and no proceedings for that purpose shall have been instituted or shall be pending or, to the knowledge of the Company,
contemplated by any securities commission, securities regulatory authority or stock exchange; all requests for additional information
on the part of the Commission shall have been complied with; and FINRA shall have raised no objection to the fairness and reasonableness
of the placement terms and arrangements.
(c) Corporate
Proceedings. All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement and
each Prospectus, and the registration, sale and delivery of the Securities, shall have been completed or resolved in a manner reasonably
satisfactory to the Placement Agent's counsel, and such counsel shall have been furnished with such papers and information as it may
reasonably have requested to enable such counsel to pass upon the matters referred to in this Section 5.
(d) No
Material Adverse Change. Subsequent to the execution and delivery of this Agreement and prior to each Closing Date, in the Placement
Agent's sole judgment after consultation with the Company, there shall not have occurred any Material Adverse Effect or any material
adverse change or development involving a prospective material adverse change in the condition or the business activities, financial
or otherwise, of the Company from the latest dates as of which such condition is set forth in the Registration Statement and Prospectus
(“Material Adverse Change”).
(e) Opinion
of Counsel for the Company. The Placement Agent shall have received on each Closing Date the opinion of Fox Rothschild LLP, counsel
to the Company, dated as of such Closing Date, including, without limitation, a negative assurance letter addressed to the Placement
Agent and in form and substance satisfactory to the Placement Agent.
(f) Reserved.
(g) Officers’
Certificate. The Placement Agent shall have received on each Closing Date a certificate of the Company, dated as of such Closing
Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, to the effect that, and the Placement Agent shall
be satisfied that, the signers of such certificate have reviewed the Registration Statement, the Incorporated Documents, the Prospectus,
and this Agreement and to the further effect that:
(i) The
representations and warranties of the Company in this Agreement are true and correct, as if made on and as of such Closing Date, and
the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior
to such Closing Date;
(ii) No
stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus has been issued and no proceedings
for that purpose have been instituted or are pending or, to the Company’s knowledge, threatened under the Securities Act; no order
having the effect of ceasing or suspending the distribution of the Securities or any other securities of the Company has been issued
by any securities commission, securities regulatory authority or stock exchange in the United States and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Company, contemplated by any securities commission, securities regulatory
authority or stock exchange in the United States;
(iii) When
the Registration Statement became effective, at the time of sale, and at all times subsequent thereto up to the delivery of such certificate,
the Registration Statement and the Incorporated Documents, if any, when such documents became effective or were filed with the Commission,
and any Prospectus, contained all material information required to be included therein by the Securities Act and the Exchange Act and
the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to
the requirements of the Securities Act and the Exchange Act and the applicable rules and regulations of the Commission thereunder,
as the case may be, and the Registration Statement and the Incorporated Documents, if any, and any Prospectus, did not and do not include
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading (provided, however, that the preceding representations
and warranties contained in this paragraph (iii) shall not apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the Placement Agent expressly for use therein) and, since the Effective Date,
there has occurred no event required by the Securities Act and the rules and regulations of the Commission thereunder to be set
forth in the Incorporated Documents which has not been so set forth; and
(iv) Subsequent
to the respective dates as of which information is given in the Registration Statement, the Incorporated Documents and any Prospectus,
there has not been: (a) any Material Adverse Change; (b) any transaction that is material to the Company and the Subsidiaries
taken as a whole, except transactions entered into in the ordinary course of business; (c) any obligation, direct or contingent,
that is material to the Company and the Subsidiaries taken as a whole, incurred by the Company or any Subsidiary, except obligations
incurred in the ordinary course of business; (d) any material change in the capital stock (except changes thereto resulting from
the exercise of outstanding stock options or warrants or conversion of outstanding preferred stock) or outstanding indebtedness of the
Company or any Subsidiary; (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company;
or (f) any loss or damage (whether or not insured) to the property of the Company or any Subsidiary which has been sustained or
will have been sustained which has a Material Adverse Effect.
(h) Officers’
Certificate of Vyome. The Placement Agent shall have received on each Closing Date a certificate of Vyome, dated as of such Closing
Date, signed by the Chief Executive Officer and Chief Financial Officer of Vyome, in form and substance satisfactory to the Placement
Agent.
(i) Chief
Financial Officer Certificate. On the Closing Date, the Placement Agent shall have received a certificate from the Company’s
Chief Financial Officer with respect to certain financial and accounting matters, dated as of the Closing Date, addressed to the Placement
Agent in form and substance satisfactory to the Placement Agent.
(j) Chief
Financial Officer Certificate of Vyome. On the Closing Date, the Placement Agent shall have received a certificate from Vyome’s
Chief Financial Officer with respect to certain financial and accounting matters, dated as of the Closing Date, addressed to the Placement
Agent in form and substance satisfactory to the Placement Agent.
(k) Regulatory
Certificate and Intellectual Property Certificate. On the Closing Date, the Placement Agent
shall have received a certificate from the Company’s Chief Executive Officer with respect to certain regulatory and intellectual
property matters, dated as of the Closing Date, addressed to the Placement Agent in form and substance satisfactory to the Placement
Agent.
(l) Regulatory
Certificate and Intellectual Property Certificate of Vyome. On the Closing Date, the Placement
Agent shall have received a certificate from Vyome’s Chief Executive Officer with respect to certain regulatory and intellectual
property matters, dated as of the Closing Date, addressed to the Placement Agent in form and substance satisfactory to the Placement
Agent
(m) Bring-down
Comfort Letters. On each Closing Date, the Placement Agent shall have received from Haskell & White LLP,
RSM US LLP and Kreit & Chiu CPA LLP, or such other independent registered public accounting firm of the Company, letters
dated as of such Closing Date, in form and substance satisfactory to the Placement Agent, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (a) of this Section 5, except that the specified date referred to
therein for the carrying out of procedures shall be no more than two business days prior to such Closing Date.
(n) Stock
Exchange Listing. The Common Stock shall be registered under the Exchange Act and shall be listed on the Trading Market, and the
Company shall not have taken any action designed to terminate, or likely to have the effect of terminating, the registration of
the Common Stock under the Exchange Act or delisting or suspending from trading the Common Stock from the Trading Market, nor shall the
Company have received any information suggesting that the Commission or the Trading Market is contemplating terminating such registration
or listing.
(o) Lock-Up
Agreements. On the Closing Date, the Placement Agent shall have received the executed Lock-Up Agreement from each of the Company’s
directors and executive officers.
(p) Additional
Documents. On or before each Closing Date, the Placement Agent and counsel for the Placement Agent shall have received such information
and documents as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Securities as
contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of
the conditions or agreements, herein contained.
If any condition specified
in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Placement Agent
by notice to the Company at any time on or prior to a Closing Date, which termination shall be without liability on the part of any party
to any other party, except that Section 6 (Payment of Expenses), Section 7 (Indemnification and Contribution) and Section 8
(Representations and Indemnities to Survive Delivery) shall at all times be effective and shall survive such termination.
Section 6. Payment
of Expenses. The Company shall be responsible for and pay all expenses relating to the Offering,
including, without limitation, all filing fees and communication expenses relating to the registration of the Securities to be sold in
the Offering with the Commission and the filing of the offering materials with FINRA; all fees and expenses relating to the listing of
such Securities on such stock exchange as the Company and the Placement Agent together determine; all fees, expenses and
disbursements relating
to background checks of the Company’s officers and directors; all fees, expenses and disbursements relating to the registration
or qualification of such Securities under the “blue sky” securities laws of such states and other jurisdictions as the Placement
Agent may reasonably designate (including, without limitation, all filing and registration fees, and the fees and disbursements of the
Placement Agent’s counsel at Closing)); all fees and expenses associated with the i-Deal system and NetRoadshow not to exceed $3,000;
the costs of all mailing and printing of the Offering documents (including the transaction documents, any Blue Sky Surveys and, if appropriate,
any agreement among underwriters, selected dealers’ agreement, Placement Agent’s questionnaire and power of attorney), Registration
Statements, Prospectuses and all amendments, supplements and exhibits thereto and as many preliminary and final Prospectuses as the Placement
Agent may reasonably deem necessary; the costs and expenses of the public relations firm referred; the costs of preparing, printing and
delivering certificates representing such Securities; fees and expenses of the transfer agent for such Securities; stock transfer taxes,
if any, payable upon the transfer of securities from the Company to the Placement Agent; the fees and expenses of the Company’s
accountants and the fees and expenses of the Placement Agent and the Company’s legal counsel and other agents and representatives.
Upon the Placement Agent’s request, the Company shall provide funds to pay all such fees, expenses and disbursements. For the sake
of clarity, it is understood and agreed that (i) the Company shall be responsible for the Placement Agent’s legal fees, costs
and expenses in connection with the Offering irrespective of whether the Offering is consummated, and (ii) the maximum amount of
legal fees, costs and expenses incurred by the Placement Agent that the Company shall be responsible for shall not exceed $125,000 in
the event of a Closing, and shall not exceed $50,000 in the event that there is not a Closing.
Section 7. Indemnification
and Contribution.
(a)
The Company agrees to indemnify and hold harmless the Placement Agent, its affiliates and each person controlling the Placement Agent
(within the meaning of Section 15 of the Securities Act), and the directors, officers, agents and employees of the Placement Agent,
its affiliates and each such controlling person (the Placement Agent, and each such entity or person. an “Indemnified Person”)
from and against any losses, claims, damages, judgments, assessments, costs and other liabilities (collectively, the “Liabilities”),
and shall reimburse each Indemnified Person for all fees and expenses (including the reasonable fees and expenses of one counsel for
all Indemnified Persons, except as otherwise expressly provided herein) (collectively, the “Expenses”) as they are
incurred by an Indemnified Person in investigating, preparing, pursuing or defending any actions, whether or not any Indemnified Person
is a party thereto, (i) caused by, or arising out of or in connection with, any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, any Incorporated Document, or any Prospectus or by any omission or alleged omission
to state therein a material fact necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading (other than untrue statements or alleged untrue statements in, or omissions or alleged omissions from, information relating
to an Indemnified Person furnished in writing by or on behalf of such Indemnified Person expressly for use in the Incorporated Documents)
or (ii) otherwise arising out of or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant
to this Agreement, the transactions contemplated thereby or any Indemnified Person's actions or inactions in connection with any such
advice, services or transactions; provided, however, that, in the case of clause (ii) only, the Company shall not
be responsible for any Liabilities or Expenses of any Indemnified Person that are finally judicially determined to have resulted solely
from such Indemnified Person's (x) gross negligence or willful misconduct in connection with any of the advice, actions, inactions
or services referred to above or (y) use of any offering materials or information concerning the Company in connection with the
offer or sale of the Securities in the Offering which were not authorized for such use by the Company and which use constitutes gross
negligence or willful misconduct. The Company also
agrees to reimburse each Indemnified
Person for all Expenses as they are incurred in connection with enforcing such Indemnified Person's rights under this Agreement.
(b) Upon
receipt by an Indemnified Person of actual notice of an action against such Indemnified Person with respect to which indemnity may be
sought under this Agreement, such Indemnified Person shall promptly notify the Company in writing; provided that failure by any Indemnified
Person so to notify the Company shall not relieve the Company from any liability which the Company may have on account of this indemnity
or otherwise to such Indemnified Person, except to the extent the Company shall have been prejudiced by such failure. The Company shall,
if requested by the Placement Agent, have the right to assume the defense of any such action including the employment of counsel reasonably
satisfactory to the Placement Agent, which counsel may also be counsel to the Company. Any Indemnified Person shall have the right to
employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be
at the expense of such Indemnified Person unless: (i) the Company has failed promptly to assume the defense and employ counsel or
(ii) the named parties to any such action (including any impeded parties) include such Indemnified Person and the Company, and such
Indemnified Person shall have been advised in the reasonable opinion of counsel that there is an actual conflict of interest that prevents
the counsel selected by the Company from representing both the Company (or another client of such counsel) and any Indemnified Person;
provided that the Company shall not in such event be responsible hereunder for the fees and expenses of more than one firm of separate
counsel for all Indemnified Persons in connection with any action or related actions, in addition to any local counsel. The Company shall
not be liable for any settlement of any action effected without its written consent (which shall not be unreasonably withheld). In addition,
the Company shall not, without the prior written consent of the Placement Agent (which shall not be unreasonably withheld), settle, compromise
or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened action in respect of which indemnification
or contribution may be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement, compromise,
consent or termination includes an unconditional release of each Indemnified Person from all Liabilities arising out of such action for
which indemnification or contribution may be sought hereunder. The indemnification required hereby shall be made by periodic payments
of the amount thereof during the course of the investigation or defense, as such expense, loss, damage or liability is incurred and is
due and payable.
(c) In
the event that the foregoing indemnity is unavailable to an Indemnified Person other than in accordance with this Agreement, the Company
shall contribute to the Liabilities and Expenses paid or payable by such Indemnified Person in such proportion as is appropriate to reflect
(i) the relative benefits to the Company, on the one hand, and to the Placement Agent and any other Indemnified Person, on the other
hand, of the matters contemplated by this Agreement or (ii) if the allocation provided by the immediately preceding clause is not
permitted by applicable law, not only such relative benefits but also the relative fault of the Company, on the one hand, and the Placement
Agent and any other Indemnified Person, on the other hand, in connection with the matters as to which such Liabilities or Expenses relate,
as well as any other relevant equitable considerations; provided that in no event shall the Company contribute less than the amount necessary
to ensure that all Indemnified Persons, in the aggregate, are not liable for any Liabilities and Expenses in excess of the amount of
fees actually received by the Placement Agent pursuant to this Agreement. For purposes of this paragraph, the relative benefits to the
Company, on the one hand, and to the Placement Agent on the other hand, of the matters contemplated by this Agreement shall be deemed
to be in the same proportion as (a) the total value paid or contemplated to be paid to or received or contemplated to be received
by the Company in the transaction or transactions that are within the scope of this Agreement, whether
or not
any such transaction is consummated, bears to (b) the fees paid to the Placement Agent under this Agreement. Notwithstanding the
above, no person guilty of fraudulent misrepresentation within the meaning of Section 11(f) of the Securities Act, as amended,
shall be entitled to contribution from a party who was not guilty of fraudulent misrepresentation.
(d) The
Company also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise)
to the Company for or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this Agreement,
the transactions contemplated thereby or any Indemnified Person's actions or inactions in connection with any such advice, services or
transactions except for Liabilities (and related Expenses) of the Company that are finally judicially determined to have resulted solely
from such Indemnified Person's gross negligence or willful misconduct in connection with any such advice, actions, inactions or services.
(e) The
reimbursement, indemnity and contribution obligations of the Company set forth herein shall apply to any modification of this Agreement
and shall remain in full force and effect regardless of any termination of, or the completion of any Indemnified Person's services under
or in connection with, this Agreement.
Section 8. Representations
and Indemnities to Survive Delivery. The respective indemnities, agreements, representations,
warranties and other statements of the Company or any person controlling the Company, of its officers, and of the Placement Agent set
forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf
of the Placement Agent, the Company, or any of its or their partners, officers or directors or any controlling person, as the case may
be, and will survive delivery of and payment for the Securities sold hereunder and any termination of this Agreement. A successor to
a Placement Agent, or to the Company, its directors or officers or any person controlling the Company, shall be entitled to the benefits
of the indemnity, contribution and reimbursement agreements contained in this Agreement.
Section 9. Notices.
All communications hereunder shall be in writing and shall be mailed, hand delivered, e-mailed or telecopied and confirmed to the parties
hereto as follows:
If to the Placement Agent to the address set
forth above, attention: James Siegal, email: jsiegel@maximgrp.com
With a copy to:
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas, 11th Floor
New York, New York 10105
E-mail: mbernstein@egsllp.com
Attention: Matthew Bernstein
If to the Company:
ReShape Lifesciences Inc.
18 Technology Dr, Suite 110
Irvine, California 92618
E-mail: phickey@reshapelifesci.com
Attention: Paul Hickey
With a copy to (which shall not constitute
notice):
Fox Rothschild LLP
33 South Sixth Street, Suite 3600
Minneapolis, Minnesota 55402
E-mail: bhanson@foxrothschild.com
Attention: Brett Hanson
Any party hereto may change
the address for receipt of communications by giving written notice to the others.
Section 10. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the employees, officers and
directors and controlling persons referred to in Section 7 hereof, and to their respective successors, and personal representative,
and no other person will have any right or obligation hereunder.
Section 11. Partial
Unenforceability. The invalidity or unenforceability of any section, paragraph or provision
of this Agreement shall not affect the validity or enforceability of any other section, paragraph or provision hereof. If any Section,
paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made
such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
Section 12. Governing
Law. This Agreement will be governed by, and construed in accordance with, the laws of the State
of New York applicable to agreements made and to be performed entirely in such State, without regard to the conflicts of laws principles
thereof. This Agreement may not be assigned by either party without the prior written consent of the other party. This Agreement shall
be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns. Any right to trial
by jury with respect to any dispute arising under this Agreement or any transaction or conduct in connection herewith is waived. Any
dispute arising under this Agreement may be brought into the courts of the State of New York or into the Federal Court located in New
York, New York and, by execution and delivery of this Agreement, each party hereto hereby accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of aforesaid courts. Each party hereto hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or proceeding by delivering a copy thereof via overnight delivery
(with evidence of delivery) to such party at the address in effect for notices to it under this 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. Each party hereto agrees that a final judgment in any such action, proceeding
or counterclaim brought in any such court shall be conclusive and binding upon such party and may be enforced in any other courts to
the jurisdiction of which such party is or may be subject, by suit upon such judgment. If either party to this Agreement shall commence
an action or proceeding to enforce any provisions of a Transaction Document, then the prevailing party in such action or proceeding shall
be reimbursed by the other party for its attorney's fees and other costs and expenses incurred with the investigation, preparation and
prosecution of such action or proceeding.
Section 13. General
Provisions.
(a) This
Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may be executed in two or
more counterparts, each one of which shall be an original, with the same effect as if the
signatures
thereto and hereto were upon the same instrument. This Agreement may not be amended or modified unless in writing by all of the parties
hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant
to benefit. Section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation
of this Agreement.
(b) The
Company acknowledges that in connection with the offering of the Securities: (i) the Placement Agent’s responsibility to the
Company is solely contractual and commercial in nature, (ii) the Placement Agent has acted at arms length, are not agents of, and
owe no fiduciary duties to the Company or any other person, (iii) the Placement Agent owes the Company only those duties and obligations
set forth in this Agreement and (iv) the Placement Agent may have interests that differ from those of the Company. The Company waives
to the fullest extent permitted by applicable law any claims it may have against the Placement Agent arising from a breach or alleged
breach of fiduciary duty in connection with the offering of the Securities.
[The remainder of this page has been intentionally
left blank.]
If the foregoing is in accordance with your understanding
of our agreement, please sign below whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in
accordance with its terms.
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Very truly yours, |
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reshape
lifesciences Inc. |
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A Delaware corporation |
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By: |
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Name: |
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Title: |
The foregoing Placement Agency
Agreement is hereby confirmed and accepted as of the date first above written.
| MAXIM GROUP LLC |
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| By: |
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Name: |
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Title: |
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Exhibit 4.2
PLACEMENT
AGENT COMMON STOCK PURCHASE WARRANT
RESHAPE
LIFE SCIENCES INC.
| Warrant Shares: _____________ |
Issuance Date: February 18, 2025 |
THIS
PLACEMENT AGENT COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _____________ or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise
and the conditions hereinafter set forth, at any time on or after the Stockholder Approval Date (as defined below) (the “Initial
Exercise Date”) and on the later of (i) twelve (12) days after the Stockholder Approval Date and (ii) the earlier
of (x) the closing date of the transactions contemplated by the Merger Agreement (as defined below) and (y) sixty (60) days
after the Stockholder Approval Date, provided that, if such date is not a trading date is not a Trading Day, then the immediately preceding
Trading Day and in no event later than February 14, 2030 (the “Termination Date”) but not thereafter, to subscribe
for and purchase from ReShape Lifesciences Inc., a Delaware corporation (the “Company”), up to _____________ shares (as
subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase price of one share of Common
Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b). This Warrant is being issued pursuant
to the certain Placement Agency Agreement, dated as of February 15, 2025, by and between the Company and Maxim Group LLC.
Section 1. Definitions.
In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common
Stock is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding
date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day
from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market,
the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable,
(c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported
on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price
per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined
by an independent appraiser selected in good faith
by
the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and
expenses of which shall be paid by the Company.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally
are open for use by customers on such day.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Merger
Agreement” means the Agreement and Plan of Merger dated July 8, 2024 among the Company, Vyome Therapeutics, Inc.
(“Vyome”) and Raider Lifesciences Inc.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Registration
Statement” means the Company’s registration statement on Form S-1 (File No. 333-284362).
“Reset
Date” means the date that is four (4) Trading Days immediately following the Initial Exercise Date.
“Reset
Period” means the period beginning four (4) Trading Days immediately preceding the Initial Exercise Date and ending on
the Reset Date.
“Reset
Price” means the greater of (i) 100% of the lowest VWAP during the period beginning four (4) Trading Days
immediately preceding the Initial Exercise Date and ending on the Reset Date and (ii) $1.25 (as adjusted for share splits,
share dividends, recapitalizations, reorganizations, reclassification, combinations, reverse share splits or other similar events
occurring after the Initial Exercise Date).
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Securities
Purchase Agreement” means the securities purchase agreement, dated as of February 15, 2025, among the Company and the
purchasers named therein, as amended, modified or supplemented from time to time in accordance with its terms.
“Stockholder
Approval” means such approval as may be required by the applicable rules and regulations of the Nasdaq Capital Market
(or any successor entity) from the stockholders of the Company to permit the exercise of the Warrants and with respect to issuance of
all the Warrant Shares upon the exercise thereof, including, without limitation, (i) to give full effect to the alternative cashless
exercises pursuant to Section 2(c) hereof and (ii) to consent to any adjustment to the exercise price or number of shares
of Common Stock underlying the Warrants on the Reset Date.
“Stockholder
Approval Date” means the first trading day following the Company’s notice to the Holder of Stockholder Approval, which
notice shall be provided within two Trading Days of the Company’s receipt of Stockholder Approval.
“Subsidiary”
means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed
or acquired after the date hereof.
“Trading
Day” means a day on which the Common Stock is traded on a Trading Market.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, or the New York
Stock Exchange (or any successors to any of the foregoing).
“Transfer
Agent” means Equiniti Trust Company, LLC, the current transfer agent of the Company, with a mailing address of 48 Wall
Street, 22nd Floor, New York, NY 10005 and an email address of tiffany.hill@equiniti.com, and any successor transfer agent of the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume
weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if
the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock
are then reported on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the
most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of
Common Stock as determined by an independent appraiser selected in good faith by the holders of a majority in interest of the Warrants
then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Warrants”
means this Warrant and other Placement Agent Common Stock purchase warrants issued by the Company pursuant to the Registration Statement.
Section 2. Exercise.
a) Exercise
of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on
or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy submitted
by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”).
Within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period
(as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate
Exercise Price for the shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United
States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of
Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization)
of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically
surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has
been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading
Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases
of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant
Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall
maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection
to any Notice of Exercise on the Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant,
acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares
hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the
face hereof.
b) Exercise
Price.
| i. | The
exercise price per share of Common Stock under this Warrant shall be $5.83, (the “Initial
Exercise Price") subject to adjustment hereunder, provided, however,
that if on the Reset Date, the Reset Price is less than the Initial Exercise Price, the Initial
Exercise Price shall be decreased to the Reset Price (it being understood that no adjustment
shall be made if the Reset Price is equal to or greater than the Initial Exercise Price)
(the “Exercise Price”). If the Exercise Price is adjusted on the Reset
Date, the number of Warrant Shares issuable hereunder shall be proportionately increased
so that after such adjustment the aggregate Exercise Price payable hereunder shall equal
the aggregate Exercise Price of the Warrant immediately prior to the Reset Date. |
| ii. | Notwithstanding
the foregoing, if the Holder requests to exercise this Warrant in whole or in part on any
given date during the Reset Period but prior to the Reset Date (the “Early Exercise
Date”), solely with respect to such portion of this Warrant being exercised on
such applicable Early Exercise Date, (a) such applicable Reset Date shall be deemed
to mean the Early Exercise Date, (b) such applicable Reset Period shall be deemed to
have ended on the Trading Day immediately prior to the Early Exercise Date, (c) the
applicable Reset Price for such exercised Warrants shall be calculated as described in the
definition of Reset Price giving effect to the new Reset Date of such exercised Warrants
and (d) the number of Warrant Shares issuable upon exercise of the portion of the Warrant
so exercised on the Early Exercise Date shall be proportionately increased so that after
such adjustment the aggregate Exercise Price payable under such portion of the Warrant so
exercised shall equal the aggregate Exercise Price of that portion of the Warrant immediately
prior to the Reset Date. |
| iii. | For
the avoidance of doubt, the aggregate Exercise Price of this Warrant following any reduction
in the Exercise Price of this Warrant and corresponding increase in Warrant Shares on any
Reset Date shall be equal to the aggregate Exercise Price of this Warrant as determined as
of the Closing Date, subject only to reductions in the aggregate Exercise Price as a result
of exercises of this Warrant by the Holder. |
c) Cashless
Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained
therein is not available for the issuance of the Warrant Shares to the Holder, then this Warrant may only be exercised, in whole or in
part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant
Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| (A) | =
as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the
applicable Notice of Exercise if such Notice of Exercise is (1) delivered pursuant to
Section 2(a) hereof on a day that is not a Trading Day or (2) delivered pursuant
to Section 2(a) hereof on a Trading Day prior to the opening of “regular
trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under
the federal securities laws) on such Trading Day, (ii) the highest Bid Price of the
Common Stock on the principal Trading Market as
reported by Bloomberg L.P. (“Bloomberg”) within two (2) hours of the time of the Holder’s delivery of the
Notice of Exercise pursuant to Section 2(a) hereof if such Notice of Exercise is delivered during “regular trading hours,”
or within two (2) hours after the close of “regular trading hours,” on a Trading Day or (iii) the VWAP on the date
of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is delivered
pursuant to Section 2(a) hereof after two (2) hours following the close of “regular trading hours” on such
Trading Day; |
| (B) =
| the
Exercise Price of this Warrant, as adjusted hereunder; and |
| (X)
= | the number of Warrant Shares that would be issuable upon exercise
of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than
a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of
the Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees
not to take any position contrary to this Section 2(c).
At
any time after the Stockholder Approval Date and whether or not an effective registration statement is available, the Holder may also
effect an “alternative cashless exercise”. In such event, the aggregate number of Warrant Shares issuable in such alternative
cashless exercise pursuant to any given Notice of Exercise electing to effect an alternative cashless exercise shall equal the product
of (i) the aggregate number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms
of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise, multiplied by (ii) 1.2.
| i. | Delivery
of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased
hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account
of the Holder’s or its designee’s balance account with The Depository Trust Company
through its Deposit or Withdrawal at Custodian system (“DWAC”) if the
Company is then a participant in such system and either (A) there is an effective |
| | registration statement
permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by Holder or (B) this Warrant is being
exercised via cashless exercise, and otherwise by physical delivery of a certificate, registered in the Company’s share
register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to
such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earlier of (i) one
(1) Trading Day after the delivery to the Company of the Notice of Exercise and (ii) the
number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such
date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for
all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been
exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other
than in the case of a cashless exercise) is received within the earlier of (i) one (1) Trading Day and (ii) the
number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the Company fails
for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the
Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to
such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day
(increasing to $20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading Day after such
Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain
a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used
herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days,
on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of
Exercise. |
ii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing
the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other
respects be identical with this Warrant.
iii. Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by
the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder,
if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of
Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the
Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm
otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the
Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the
Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for
the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares
that the Company was required to deliver to the Holder in connection with the exercise at issue times (2) the price at which
the sell order giving rise to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the
portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise
shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company
timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common Stock having a
total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of Common Stock with an aggregate
sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the
Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts
payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein
shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver
shares of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
v. No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall,
at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the
Exercise Price or round up to the next whole share.
vi. Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other
incidental expense in respect of the issuance of such Warrant Shares,
all
of which taxes and expenses shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in
such name or names as may be directed by the Holder; provided, however, that, in the event that Warrant Shares are to
be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition thereto, the payment of
a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent fees required for
same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing
corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e) Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise
any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise
as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting
as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence,
the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised
or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance
with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance
therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant
is exercisable (in relation to other securities owned
by the Holder together with any Affiliates and Attribution Parties) and of which
portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall
be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by the
Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject
to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination.
In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of
the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining the
number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the
Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement
by the Company or
(C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding.
Upon the written or oral request of a Holder, the Company shall within one Trading Day confirm orally and in writing to the Holder the
number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined
after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates
or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial
Ownership Limitation” shall be 4.99% (or, upon election by a Holder prior to the issuance of any Warrants, 9.99%) of the number
of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise
of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this
Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common
Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held by the
Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation
will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall
be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct
this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein
contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained
in this paragraph shall apply to a successor holder of this Warrant.
Section 3. Certain
Adjustments.
a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares
of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way
of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of
shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a
fraction of which the numerator shall be
the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately
before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event,
and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price
of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately
after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective
immediately after the effective date in the case of a subdivision, combination or re-classification.
b) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues
or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders
of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon
the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held
the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise
hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for
the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares
of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent that
the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation,
then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of
Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for
the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
c) Pro
Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution
of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise, other
than cash (including, without limitation, any distribution of stock or other securities, property or options by way of a dividend, spin
off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, that, to the extent that the Holder's right to participate in any such Distribution would result in the Holder exceeding
the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or
in
the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution
shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder
exceeding the Beneficial Ownership Limitation).
d) Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more
related transactions effects any merger or consolidation of the Company with or into another Person, provided,
however, that the merger contemplated by the Merger Agreement and the sale of the Company’s assets in connection therewith,
shall not constitute a Fundamental Transaction, ( (ii) the Company or any Subsidiary, directly or indirectly, effects any sale,
lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series
of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company
or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for
other securities, cash or property and has been accepted by the holders of greater than 50% of the outstanding Common Stock or
greater than 50% of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or
more related transactions effects any reclassification, reorganization or recapitalization 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,
or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement
or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of
arrangement) with another Person or group of Persons whereby such other Person or group acquires greater than 50% of the outstanding
shares of Common Stock or greater than 50% of the voting power of the common equity of the Company (each a “Fundamental
Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each
Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction,
at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number
of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any
additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction
by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental
Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such
exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on
the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the
Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of
any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash
or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate
Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the
contrary, in the event of a Fundamental
Transaction,
the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently
with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of
the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to
the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation of
such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company's
control, including not approved by the Company's Board of Directors, the Holder shall only be entitled to receive from the Company
or any Successor Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the
unexercised portion of this Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection with
the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the
holders of Common Stock are given the choice to receive from among alternative forms of consideration in connection with the
Fundamental Transaction; provided, further, that if holders of Common Stock of the Company are not offered or paid any
consideration in such Fundamental Transaction, such holders of Common Stock will be deemed to have received common stock of the
Successor Entity (which Successor Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction.
“Black Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained
from the “OV” function on Bloomberg, L.P. (“Bloomberg”) determined as of the day of consummation of
the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the
U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable contemplated
Fundamental Transaction and the Termination Date, (B) an expected volatility equal to 100%, (C) the underlying price per
share used in such calculation shall be the sum of the price per share being offered in cash, if any, plus the value of any non-cash
consideration, if any, being offered in such Fundamental Transaction , (D) a remaining option time equal to the time between
the date of the public announcement of the applicable contemplated Fundamental Transaction and the Termination Date and (E) a
zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds (or such
other consideration) within the later of (i) five Business Days of the Holder’s election and (ii) the date of
consummation of the Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the
Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company
under this Warrant in accordance with the provisions of this Section 3(d) pursuant to written agreements in form and
substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental
Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor
Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a
corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common
Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant)
prior to such Fundamental Transaction,
and
with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the
relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock,
such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this
Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and
substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the term
“Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction,
each and every provision of this Warrant and the other Transaction Documents referring to the “Company” shall refer
instead to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or
Successor Entities, jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the
Successor Entity or Successor Entities shall assume all of the obligations of the Company prior thereto under this Warrant and the
other Transaction Documents with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and
severally, had been named as the Company herein. For the avoidance of doubt, the Holder shall be entitled to the benefits of the
provisions of this Section 3(d) regardless of (i) whether the Company has sufficient authorized shares of Common
Stock for the issuance of Warrant Shares and/or (ii) whether a Fundamental Transaction occurs prior to the Initial Exercise
Date.
e) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For
purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be
the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f) Notice
to Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number
of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice
to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the
Common Stock, other than cash, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common
Stock, (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase
any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required
in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries)
is a party, any sale or transfer of all or
substantially
all of its assets, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property,
or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the
Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email address as it shall
appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend,
distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common
Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the
date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or
close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares
of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale,
transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall
not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided in
this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries, the
Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall
remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event
triggering such notice except as may otherwise be expressly set forth herein.
Section 4. Transfer
of Warrant.
a) Transferability.
Pursuant to FINRA Rule 5110(e)(1), neither this Warrant nor any Warrant Shares issued upon exercise of this Warrant shall be sold,
transferred, assigned, pledged or hypothecated, or be the subject of any hedging, short sale, derivative, put or call transaction that
would result in the effective economic disposition of the securities by any person for a period of 180 days from the commencement of
sales of the offering pursuant to which this Warrant is being issued, except as permitted under FINRA Rule 5110(e)(2). Subject to
the foregoing restriction, this Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable,
in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written
assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient
to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not
so
assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall
surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form
to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder
for the purchase of Warrant Shares without having a new Warrant issued.
b) New
Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the
Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the
Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be
divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial
issuance date of this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant
thereto.
c) Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder
of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other
purposes, absent actual notice to the contrary.
Section 5. Registration
Rights.
a) To
the extent the Company does not maintain an effective registration statement for the Warrant Shares and in the further event that the
Company files a registration statement with the Commission covering the sale of its shares of Common Stock (other than a registration
statement on Form S-4 or S-8, or on another form, or in another context, in which such “piggyback” registration would
be inappropriate), then, for a period of five (5) years from the commencement of sales of the offering, the Company shall give written
notice of such proposed filing to the Holder as soon as practicable but in no event less than ten (10) days before the anticipated
filing date, which notice shall describe the amount and type of securities to be included in such offering, the intended method(s) of
distribution, and the name of the proposed managing underwriter or underwriters, if any, of the offering, and offer to the Holder in
such notice the opportunity to register the sale of such number of shares of Warrant Shares as such Holder may request in writing within
five (5) business days following receipt of such notice (a “Piggyback Registration”). The Company shall cause
such Warrant Shares to be included in such registration and shall use its commercially reasonable efforts to cause the managing underwriter
or underwriters of a proposed underwritten offering to permit the Warrant Shares requested to be included in a Piggyback Registration
on the same terms and conditions as any similar securities of the Company and to permit the sale or
other disposition of such Warrant
Shares in accordance with the intended method(s) of distribution thereof. All Holders proposing to distribute their securities through
a Piggyback Registration that involves an underwriter or underwriters shall enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such Piggyback Registration. Furthermore, each Holder must provide such information as reasonably
requested by the Company (which information shall be limited to that which is required for disclosure under the Securities Act and the
forms, rules and regulations promulgated thereunder) to be included in the registration statement timely or the Company may elect
to exclude such Holder from the registration statement.
b) In
addition, for a period of five (5) years from the commencement of sales of the offering, upon the written demand of the Holders
of at least 51% of the Warrants and underlying Warrant Shares, the Holder shall be entitled to one (1) demand right for the
registration of the Warrant Shares at the Company’s expense and one (1) demand right for the registration of the Warrant
Shares at the Holder’s expense (the “Demand Registration”). In the event of a Demand Registration, the
Company shall use its commercially reasonable efforts to register the applicable Warrant Shares. All Holders of Warrant Shares
proposing to distribute their securities through a Demand Registration that involves an underwriter or underwriters shall enter into
an underwriting agreement in customary form with the underwriter or underwriters selected for such Demand Registration. Furthermore,
each Holder must provide such information as reasonably requested by the Company (which information shall be limited to that which
is required for disclosure under the Securities Act and the forms, rules and regulations promulgated thereunder) to be included
in the registration statement timely or the Company may elect to exclude such Holder from the registration statement.
c) Notwithstanding
the foregoing, the registration rights described in this Section 5 shall be subject to limitations imposed by the Commission’s
rules or comments of the Commission staff in connection with its review of the registration statement for any such resale registration.
Moreover, notwithstanding the foregoing registration obligations of the Company, if the Company furnishes to the Holders requesting a
Demand Registration a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the
Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for a registration statement
to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective,
because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction
involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose
for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange
Act, then the Company shall have the right to defer taking action with respect to such Demand Registration or withdraw a related registration
statement for a period of not more than forty-five (45) calendar days; provided, however, that the Company may not invoke this right
more than twice in any twelve (12) month period or during the twelve (12) month period prior to the Termination Date.
Section 6. Miscellaneous.
a) No
Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends
or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant
to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in
no event shall the Company be required to net cash settle an exercise of this Warrant.
b) Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant
Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the
Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if
mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in
lieu of such Warrant or stock certificate.
c) Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or
granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business
Day.
d) Authorized
Shares.
The
Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with
the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all
such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants
that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise
of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly
issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary
or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use
commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction
thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
e) Stockholder
Approval. The Company shall file with the Commission a preliminary proxy within five (5) days of the Issuance Date for the purpose
of obtaining Stockholder Approval. The Company shall hold a special meeting of stockholders (which may also be at the annual meeting
of stockholders) at the earliest practicable date after the date hereof, but in no event later than forty-five (45) days after the Issuance
Date for the purpose of obtaining Stockholder Approval, with the recommendation of the Company’s Board of Directors that such proposal
be approved, and the Company shall solicit proxies from its stockholders in connection therewith in the same manner as all other management
proposals in such proxy statement. If the Company does not obtain Stockholder Approval at the first meeting, the Company shall call a
meeting every ninety (90) days thereafter to seek Stockholder Approval until the earlier of the date on which Stockholder Approval is
obtained or the Warrants are no longer outstanding.
f) Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and
construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of
law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders,
partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City 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 improper or is an inconvenient
venue for such proceeding. 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 via registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Warrant 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
other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant,
the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
g) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
h) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as
a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of
this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material
damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including,
but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting
any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
i) Notices.
Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any
Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service,
addressed to the Company, at 18 Technology Dr, Suite 110, Irvine, California 92618, Attention: Paul Hickey, email address:
phickey@reshapelifesci.com, or such other email address or address as the Company may specify for such purposes by notice to the Holders.
Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally,
by e-mail, or sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of
such Holder appearing on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and
effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail
address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after
the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section on
a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day
following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the
party to whom such notice is required to be given. To the extent that any notice provided hereunder constitutes, or
contains, material,
non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission
pursuant to a Current Report on Form 8-K.
a) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase
price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the
Company.
b) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the
defense in any action for specific performance that a remedy at law would be adequate.
c) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder.
The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable
by the Holder or holder of Warrant Shares.
d) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and
the Holder or the beneficial owner of this Warrant, on the other hand.
e) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
f) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this
Warrant.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
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RESHAPE
LIFESCIENCES INC. |
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By: |
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Name: |
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Title: |
NOTICE OF EXERCISE
To: reshape
lifesciences inc.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
[ ] in
lawful money of the United States; or
[ ] if
permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c),
to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as
is specified below:
_______________________________
The Warrant Shares
shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
| Name of Investing Entity: |
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| Signature of Authorized Signatory of Investing Entity: |
|
| Name of Authorized Signatory: |
|
| Title of Authorized Signatory: |
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ASSIGNMENT FORM
(To assign the
foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED,
the foregoing Warrant and all rights evidenced thereby are hereby assigned to
| Name: |
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(Please
Print) |
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| Address: |
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(Please
Print) |
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| Phone Number: |
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| Email Address: |
|
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| Dated:
_______________ __, ______ |
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| Holder’s
Signature:_____________________ |
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| Holder’s
Address:____________________ |
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Exhibit 99.1
ReShape Lifesciences® Announces Pricing of
Upsized
$6.0 Million Public Offering
IRVINE,
Calif., Feb. 15, 2025 - ReShape Lifesciences® (“ReShape”
or the “Company”) (Nasdaq: RSLS), the premier physician-led weight loss and metabolic health solutions company,
today announced the pricing of its public offering of 2,575,107 units at a public offering price of $2.33 per unit. Each unit consists
of one common share (or pre-funded warrant to purchase one common share in-lieu thereof) and one warrant to purchase one common share.
The warrants,
which are not exercisable unless and until approved by ReShape stockholders, will be initially exercisable at a price of $5.83 per share,
subject to standard adjustments for dividends, splits and similar events, and also subject to adjustment upon a one-time reset on the
Reset Date (as described in the warrants), subject to a floor price described therein. The warrants may also be exercised on an alternative
cashless basis pursuant to which the holder may exchange each warrant for 1.2 times the number of shares of common stock they would receive
upon a cash exercise. The warrants will become exercisable after notice is provided regarding stockholder approval and will expire on
the later of (i) twelve (12) days after the date of stockholder approval and (ii) the earlier of (x) the closing date of the Company’s
previously announced merger with Vyome Therapeutics, Inc. and (y) sixty (60) days after the date of stockholder approval. The shares of
common stock (or pre-funded warrants) and accompanying warrants can only be purchased together in this public offering but will be issued
separately and will be immediately separable upon issuance. Gross proceeds to the Company, before deducting placement agent's fees and
other offering expenses, are expected to be approximately $6.0 million. The offering is expected to close on or about February 18, 2025,
subject to the satisfaction of customary closing conditions.
Maxim Group
LLC is acting as sole placement agent in connection with the offering.
A registration
statement on Form S-1 (File No. 333-284362) was filed with the U.S. Securities and Exchange Commission (“SEC”), as amended,
and was declared effective by the SEC on February 14, 2025 and a registration statement on Form S-1 filed pursuant to Rule 462(b) of
the Securities Act of 1933, as amended, was filed with the SEC and became effective upon filing on February 14, 2025 (together, the “registration
statement”). A final prospectus relating to the offering will be filed with the SEC and will be available on the SEC’s website
at http://www.sec.gov. The offering is being made only by means of a prospectus forming part
of the effective registration statement. Electronic copies of the prospectus relating to this offering, when available, may also be obtained
from Maxim Group LLC, 300 Park Avenue, 16th Floor, New York, New York 10022, Attention: Syndicate Department, by telephone at (212) 895-3745
or by email at syndicate@maximgrp.com.
This press
release shall not constitute an offer to sell or a solicitation of an offer to buy any of the securities described herein, nor shall there
be any sale of these securities in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to
the registration or qualification under the securities laws of any such state or other jurisdiction.
About
ReShape Lifesciences®
ReShape
Lifesciences® is America’s premier weight loss and metabolic health-solutions company, offering an integrated portfolio of proven
products and services that manage and treat obesity and metabolic disease. The FDA-approved Lap-Band® and Lap-Band® 2.0 Flex Systems
provide minimally invasive,
long-term
treatment of obesity and are an alternative to more invasive surgical stapling procedures such as the gastric bypass or sleeve gastrectomy.
The ReShape Diabetes Neuromodulation system (formerly, Diabetes Bloc-Stim Neuromodulation™ (DBSN™)) is a novel minimally
invasive therapeutic implant concept that delivers bio-electronic neuromodulation of vagus nerve branches that are innervating organs
which regulate plasma glucose. The Obalon® balloon technology is a non-surgical, swallowable, gas-filled intra-gastric balloon that
is designed to provide long-lasting weight loss. For more information, please visit www.reshapelifesciences.com.
Forward-Looking
Safe Harbor Statement
This press
release may contain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Actual results
could differ materially from those discussed due to known and unknown risks, uncertainties, and other factors. These forward-looking statements
generally can be identified by the use of words such as "expect," "plan," "anticipate," "could,"
"may," "intend," "will," "continue," "future," other words of similar meaning and the
use of future dates. Factors that could cause actual results to differ materially from those discussed in the forward-looking statements
include, among other things statements regarding the completion of the offering and the satisfaction of customary closing conditions related
to the offering. These and additional risks and uncertainties are described more fully in the company's filings with the Securities and
Exchange Commission, including those factors identified as "risk factors" in our most recent Annual Report on Form 10-K and
subsequent Quarterly Reports on Form 10-Q. We are providing this information as of the date of this press release and do not undertake
any obligation to update any forward-looking statements contained in this document as a result of new information, future events or otherwise,
except as required by law.
CONTACTS
ReShape
Lifesciences Investor Contact:
Paul F.
Hickey
President
and Chief Executive Officer
949-276-7223
ir@ReShapeLifesci.com
Investor
Relations Contact:
Rx Communications
Group
Michael
Miller
917-633-6086
mmiller@rxir.com
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ReShape Lifesciences (NASDAQ:RSLS)
과거 데이터 주식 차트
부터 2월(2) 2025 으로 3월(3) 2025
ReShape Lifesciences (NASDAQ:RSLS)
과거 데이터 주식 차트
부터 3월(3) 2024 으로 3월(3) 2025
