Filed Pursuant to Rule 424(b)(3)
 Registration Statement No: 333-259303​
PROSPECTUS
[MISSING IMAGE: LG_RESHAPELIFESCIEN-4CLR.JPG]
6,347,039 Shares of Common Stock
​
This prospectus relates to the resale, from time to time, of up to an aggregate of 6,347,039 shares of common stock, par value $0.001 per share, of ReShape Lifesciences Inc. by the selling stockholders named in this prospectus, including their respective donees, pledgees, transferees, assignees or other successors-in-interest. The selling stockholders acquired these shares from us pursuant to a (i) warrant exercise agreement, dated June 28, 2021, pursuant to which we issued warrants to purchase 5,947,039 shares of common stock at an exercise price of $6.00 per share and (ii) an exchange agreement, dated July 16, 2021, pursuant to which we issued warrants to purchase 400,000 shares of common stock at an exercise price of $4.038.
We are not selling any shares of our common stock under this prospectus and will not receive any proceeds from sales of the shares offered by the selling stockholders, although we will incur expenses in connection with the offering. The registration of the resale of the shares of common stock covered by this prospectus does not necessarily mean that any of the shares will be offered or sold by the selling stockholders. The timing and amount of any sales are within the sole discretion of the selling stockholders.
The shares of common stock offered under this prospectus may be sold by the selling stockholders through public or private transactions, on or off The Nasdaq Capital Market, at prevailing market prices or at privately negotiated prices. For more information on the times and manner in which the selling stockholders may sell the shares of common stock under this prospectus, please see the section entitled “Plan of Distribution,” beginning on page 10 of this prospectus.
Our common stock is traded on The Nasdaq Capital Market under the symbol “RSLS.” On September 1, 2021, the closing price of our common stock as reported on The Nasdaq Capital Market was $3.34 per share.
Investing in our securities involves risks. You should consider carefully the risks and uncertainties set forth in the section entitled “Risk Factors” beginning on page 3 of this prospectus and in the documents we file with the Securities and Exchange Commission that are incorporated by reference in this prospectus before making a decision to purchase our securities.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
​
The date of this prospectus is September 17, 2021.
 
TABLE OF CONTENTS
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i
 
ABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement that we filed with the Securities and Exchange Commission, or the SEC, utilizing a “shelf” registration process. Under this shelf registration process, certain selling stockholders may from time to time sell the shares of common stock described in this prospectus in one or more offerings.
We and the selling stockholders have not authorized anyone to give any information or to make any representation other than those contained or incorporated by reference in this prospectus. You must not rely upon any information or representation not contained or incorporated by reference in this prospectus. The selling stockholders are offering to sell, and seeking offers to buy, shares of our common stock only in jurisdictions where it is lawful to do so. This prospectus and any accompanying prospectus supplement do not constitute an offer to sell or the solicitation of an offer to buy any shares other than the registered shares to which they relate, nor do they constitute an offer to sell or the solicitation of an offer to buy shares in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. You should not assume that the information contained in this prospectus and any prospectus supplement is accurate on any date subsequent to the date set forth on the front of the document or that any information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus is delivered or shares are sold on a later date.
 
1
 
RESHAPE LIFESCIENCES INC.
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® Program provides minimally invasive, long-term treatment of obesity and is an alternative to more invasive surgical stapling procedures such as the gastric bypass or sleeve gastrectomy. The ReShape Vest™ System is an investigational (outside the U.S.) minimally invasive, laparoscopically implanted medical device that wraps around the stomach, emulating the gastric volume reduction effect of conventional weight-loss surgery. It helps enable rapid weight loss in obese and morbidly obese patients without permanently changing patient anatomy. reshapecare ™ is a virtual weight-management program that supports lifestyle changes for all weight-loss patients led by board certified health coaches to help them keep the weight off over time. The recently launched ReShape Marketplace™ is an online collection of quality wellness products curated for all consumers to help them achieve their health goals.
On June 15, 2021, Obalon Therapeutics, Inc. (“Obalon”) and ReShape Lifesciences Inc. completed the merger contemplated by the Agreement and Plan of Merger, dated as of January 19, 2021 (the “Merger Agreement”), by and among Obalon, Optimus Merger Sub, Inc., a wholly owned subsidiary of Obalon (“Merger Sub”), and ReShape, pursuant to which Merger Sub merged with and into ReShape, with ReShape surviving the merger as a wholly owned subsidiary of Obalon (the “Merger”). As a result of the Merger, Obalon was renamed “ReShape Lifesciences Inc.” and ReShape was renamed ReShape Weightloss Inc., in each case effective before the open of trading on June 16, 2021.
As of September 1, 2021, we had 40 employees, all of which are located in the United States. Our principal executive offices are located at 1001 Calle Amanecer, San Clemente, California 92673, and our telephone number is (949) 429-6680. Our website address is www.reshapelifesciences.com. The information on, or that can be accessed through, our website is not part of this prospectus.
 
2
 
RISK FACTORS
Investment in any securities offered pursuant to this prospectus and the applicable prospectus supplement involves risks. You should carefully consider the risk factors incorporated by reference to our most recent Annual Report on Form 10-K and any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K we file after the date of this prospectus, and all other information contained or incorporated by reference into this prospectus, as updated by our subsequent filings under the Securities Exchange Act of 1934, as amended, and the risk factors and other information contained in the applicable prospectus supplement before acquiring any of such securities. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities.
 
3
 
SELECTED FINANCIAL DATA
On June 15, 2021, the Company completed the previously announced merger with Obalon, which was treated as a reverse acquisition for accounting purposes. In connection with the merger, each of the former stockholders of ReShape Lifesciences Inc. received 0.5637 shares of the combined company for each ReShape share they owned.
The following net loss per share, basic and diluted, has been derived from the audited financial statements of the Company contained in its Annual Report on Form 10-K for the year ended December 31, 2020, and its unaudited interim financial statements of the Company contained in its Quarterly Reports on Form 10-Q for the quarters ended March 31, 2021 and June 30, 2021, except that the net loss per share, basic and diluted have been revised to reflect the new shares issued based on the ratio above of our issued and outstanding shares of common stock effective June 15, 2021, as shown below.
The historical financial information set forth below may not be indicative of our future performance and should be read together with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our historical financial statements and notes to those statements included in our Annual Report on Form 10-K for the year ended December 31, 2020, our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2021 and June 30, 2021, and any future filings or other reports we may file with the SEC.
AS REPORTED (QUARTERLY FINANCIAL DATA UNAUDITED)
(in thousands, except per share amounts)
​ ​
Years Ended December 31,
​
​
2020
​ ​
2019
​
Net loss
​ ​ ​ $ (21,630) ​ ​ ​ ​ $ (74,207) ​ ​
Net loss per share – basic and diluted: ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
Net loss per share – basic and diluted
​ ​ ​ $ (3.12) ​ ​ ​ ​ $ (42.93) ​ ​
Shares used to compute basic and diluted net loss per share
​ ​ ​ ​ 6,927,021 ​ ​ ​ ​ ​ 1,728,722 ​ ​
​ ​ ​
Three Months Ended March 31,
​
​
2021
​ ​
2020
​
Net loss
​ ​ ​ $ (4,874) ​ ​ ​ ​ $ (4,311) ​ ​
Net loss per share – basic and diluted: ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
Net loss per share – basic and diluted
​ ​ ​ $ (0.70) ​ ​ ​ ​ $ (0.63) ​ ​
Shares used to compute basic and diluted net loss per share
​ ​ ​ ​ 6,968,221 ​ ​ ​ ​ ​ 6,859,240 ​ ​
​ ​ ​
Three Months
Ended
June 30, 2020
​ ​
Six Months
Ended
June 30, 2020
​
Net loss
​ ​ ​ $ (3,604) ​ ​ ​ ​ $ (7,915) ​ ​
Net loss per share – basic and diluted: ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
Net loss per share – basic and diluted
​ ​ ​ $ (0.52) ​ ​ ​ ​ $ (1.15) ​ ​
Shares used to compute basic and diluted net loss per share
​ ​ ​ ​ 6,911,497 ​ ​ ​ ​ ​ 6,885,368 ​ ​
 
4
 
AS ADJUSTED FOR THE 0.5637 PARTIAL SHARE PER SHARE (UNAUDITED)
(in thousands, except per share amounts)
​ ​
Years Ended December 31,
​
​
2020
​ ​
2019
​
Net loss
​ ​ ​ $ (21,630) ​ ​ ​ ​ $ (74,207) ​ ​
Net loss per share – basic and diluted: ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
Net loss per share – basic and diluted
​ ​ ​ $ (5.54) ​ ​ ​ ​ $ (76.15) ​ ​
Shares used to compute basic and diluted net loss per share
​ ​ ​ ​ 3,904,762 ​ ​ ​ ​ ​ 974,481 ​ ​
​ ​ ​
Three Months Ended March 31,
​
​
2021
​ ​
2020
​
Net loss
​ ​ ​ $ (4,874) ​ ​ ​ ​ $ (4,311) ​ ​
Net loss per share – basic and diluted: ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
Net loss per share – basic and diluted
​ ​ ​ $ (1.24) ​ ​ ​ ​ $ (1.11) ​ ​
Shares used to compute basic and diluted net loss per share
​ ​ ​ ​ 3,927,987 ​ ​ ​ ​ ​ 3,866,554 ​ ​
​ ​ ​
Three Months
Ended
June 30, 2020
​ ​
Six Months
Ended
June 30, 2020
​
Net loss
​ ​ ​ $ (3,604) ​ ​ ​ ​ $ (7,915) ​ ​
Net loss per share – basic and diluted: ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
Net loss per share – basic and diluted
​ ​ ​ $ (0.93) ​ ​ ​ ​ $ (2.04) ​ ​
Shares used to compute basic and diluted net loss per share
​ ​ ​ ​ 3,896,011 ​ ​ ​ ​ ​ 3,881,282 ​ ​
 
5
 
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference may contain forward-looking statements with respect to the financial condition, results of operations, plans, objectives, future performance and business of ReShape Lifesciences. Statements preceded by, followed by or that include words such as “may,” “will,” “expect,” “anticipate,” “continue,” “estimate,” “project,” “believes” or similar expressions are intended to identify some of the forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 and are included, along with this statement, for purposes of complying with the safe harbor provisions of that Act. These forward-looking statements involve risks and uncertainties. Actual results may differ materially from those contemplated by the forward-looking statements due to, among others, the risks and uncertainties described in this prospectus, including under “Risk Factors,” and the documents incorporated by reference in this prospectus. Any forward-looking statement contained in this prospectus and the documents incorporated by reference speaks only as of the date on which the statement is made, and ReShape Lifesciences undertakes no obligation to update any forward-looking statement or statements to reflect events or circumstances that occur after the date on which the statement is made or to reflect the occurrence of unanticipated events. New factors emerge from time to time, and it is not possible for ReShape Lifesciences to predict all of the factors, nor can ReShape Lifesciences assess the effect of each factor on its business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statement.
 
6
 
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of shares of our common stock in this offering. The selling stockholders will receive all of the proceeds from this offering.
The selling stockholders will pay any underwriting discounts and commissions and expenses incurred by the selling stockholders for brokerage, accounting, tax or legal services or any other expenses incurred by the selling stockholders in disposing of the shares. We will bear all other costs, fees and expenses incurred in effecting the registration of the shares covered by this prospectus, including, without limitation, all registration and filing fees, fees and expenses of our counsel and our independent registered public accountants.
 
7
 
SELLING STOCKHOLDERS
On June 28, 2021, we entered into a warrant exercise agreement with certain of the selling stockholders pursuant to which we issued warrants to purchase 5,947,039 shares of common stock at an exercise price of $6.00 per share. On July 16, 2021, we entered into an exchange agreement with certain of the selling stockholders pursuant to which we issued warrants to purchase 400,000 shares of common stock at an exercise price of $4.038. This prospectus covers the resale or other disposition by the selling stockholders or their transferees of up to the total number of shares of common stock issued to the selling stockholders upon exercise of the warrants issued pursuant to such warrant exercise agreement and exchange agreement, respectively.
The shares of our common stock offered under this prospectus may be offered from time to time by the selling stockholders named below or by any of their respective pledgees, donees, transferees or other successors-in-interest. As used in this prospectus, the term “selling stockholders” includes the selling stockholders identified below and any donees, pledgees, transferees or other successors-in-interest selling shares received after the date of this prospectus from a selling stockholder as a gift, pledge or other non-sale related transfer. The selling stockholders named below acquired the shares of our common stock being offered under this prospectus directly from us. We issued the shares to the selling stockholders in reliance on an exemption from the registration requirements of the Securities Act pursuant to Section 4(a)(2) of the Securities Act and Rule 506 promulgated thereunder.
The following table sets forth as of July 31, 2021: (1) the name of each selling stockholder for whom we are registering shares of our common stock under the registration statement of which this prospectus is a part, (2) the number of shares of our common stock beneficially owned by each of the selling stockholders prior to the offering, determined in accordance with Rule 13d-3 under the Exchange Act, (3) the number of shares of our common stock that may be offered by each selling stockholder under this prospectus and (4) the number of shares of our common stock to be owned by each selling stockholder after completion of this offering. We will not receive any of the proceeds from the sale of the shares of our common stock offered under this prospectus. The amounts and information set forth below are based upon information provided to us by the selling stockholders or their representatives, or on our records, as of July 31, 2021. The percentage of beneficial ownership for the following table is based on 15,842,185 shares of our common stock outstanding as of July 31, 2021 and, for each selling stockholder, assumes the exercise in full of such selling stockholder’s warrant, but not the exercise of any other selling stockholder’s warrant.
To our knowledge, except as indicated in the footnotes to this table, each stockholder named in the table has sole voting and investment power with respect to all shares of our common stock shown in the table to be beneficially owned by such stockholder. Except as described below, none of the selling stockholders has had any position, office or other material relationship with us or any of our predecessors or affiliates within the past three years. In addition, based on information provided to us, none of the selling stockholders that are affiliates of broker-dealers, if any, purchased the shares of our common stock outside the ordinary course of business or, at the time of their acquisition of such shares, had any agreements, understandings or arrangements with any other persons, directly or indirectly, to dispose of the shares. Information concerning the selling stockholders may change from time to time, and any changed information will be set forth in supplements to this prospectus to the extent required.
Name of Selling Stockholder
​ ​
Shares Beneficially Owned
Prior to the Offering
​ ​
Number of
Shares
Being
Offered(1)
​ ​
Shares Beneficially
Owned After Completion
of the Offering
​
​
Number
​ ​
Percentage(1)
​ ​
Number
​ ​
Percentage
​
Armistice Capital Master Fund Ltd.(2)(4)
​ ​ ​ ​ 5,348,106 ​ ​ ​ ​ ​ 25.24% ​ ​ ​ ​ ​ 5,348,106 ​ ​ ​ ​ ​ 0 ​ ​ ​ ​ ​ 0.00% ​ ​
District 2 Capital Fund LP(2)(5)
​ ​ ​ ​ 352,313 ​ ​ ​ ​ ​ 2.18 ​ ​ ​ ​ ​ 352,313 ​ ​ ​ ​ ​ 0 ​ ​ ​ ​ ​ 0.00% ​ ​
Bigger Capital Fund, LP(2)(5)
​ ​ ​ ​ 246,620 ​ ​ ​ ​ ​ 1.53 ​ ​ ​ ​ ​ 246,620 ​ ​ ​ ​ ​ 0 ​ ​ ​ ​ ​ 0.00% ​ ​
Empery Tax Efficient II, LP(3)(6)
​ ​ ​ ​ 265,754 ​ ​ ​ ​ ​ 1.65 ​ ​ ​ ​ ​ 265,754 ​ ​ ​ ​ ​ 0 ​ ​ ​ ​ ​ 0.00% ​ ​
Empery Asset Master, Ltd(3)(6)
​ ​ ​ ​ 109,134 ​ ​ ​ ​ ​ 0.68 ​ ​ ​ ​ ​ 109,134 ​ ​ ​ ​ ​ 0 ​ ​ ​ ​ ​ 0.00% ​ ​
Empery Tax Efficient, LP(3)(6)
​ ​ ​ ​ 25,112 ​ ​ ​ ​ ​ 0.16 ​ ​ ​ ​ ​ 25,112 ​ ​ ​ ​ ​ 0 ​ ​ ​ ​ ​ 0.00% ​ ​
Total
​ ​ ​ ​ 6,347,039 ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 6,347,039 ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
 
8
 
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(1)
While the total number of shares of our common stock issuable upon exercise of each the warrants is being registered under the registration statement of which this prospectus forms a part, pursuant to the terms of the warrants, each selling stockholder is not permitted to exercise such warrant to the extent that such exercise would result in the selling stockholder and its affiliates beneficially owning more than 9.99% of the number of shares of our common stock outstanding immediately after giving effect to the issuance of shares of common stock issuable upon exercise of such warrants. Each selling stockholder has the right to increase this beneficial ownership limitation in its discretion on 61 days’ prior written notice to us.
​
(2)
Consists of shares of common stock issuable upon exercise of the warrants issued pursuant to the warrant exercise agreement, dated June 28, 2021.
​
(3)
Consists of shares of common stock issuable upon exercise of the warrants issued pursuant to the exchange agreement, dated July 16, 2021.
​
(4)
Steven Boyd is the managing member and director of Armistice Capital Master Fund Ltd. (“Armistice Capital”). Armistice Capital and Mr. Boyd may be deemed to be the beneficial owners of the shares reported as beneficially owned by Armistice Capital. Each of Armistice Capital and Mr. Boyd has the sole power to dispose or direct the disposition of 0 shares and the shared power to dispose or direct the disposition of all of the shares.
​
(5)
Bigger Capital Fund GP, LLC (“Bigger GP”) is a general partner of Bigger Capital Fund, LP (“Bigger Capital”) and District 2 Capital LP (“District 2”) is the investment manager of District 2 Capital Fund LP (“District 2 CF”). Michael Bigger is the managing member of Bigger GP and District and District 2 Holdings LLC (“District 2 Holdings”), which is the managing member of District 2 GP LLC (“District 2 GP”), the general partner of District 2 CF. Therefore, Mr. Bigger, District 2, District 2 Holdings and District 2 CF may be deemed to be the beneficial owner, and have the shared power to dispose of or direct the disposition, of the shares reported as beneficially owned by District 2 CF and Mr. Bigger and Bigger GP may be deemed to be the beneficial owner, and have the shared power to dispose of or direct the disposition, of the shares reported as beneficially owned by Bigger Capital and District 2 CF.
​
(6)
Empery Asset Management, LP (the “Investment Manager”), which serves as the investment manager to Empery Tax Efficient II, LP, Empery Asset Master, Ltd., and Empery Tax Efficient, LP (collectively, the “Empery Funds”), may be deemed to be the beneficial owner of all shares of common stock underlying the warrants held by the Empery Funds (subject to the beneficial ownership blocker referred to in footnote 1 above). Each of Ryan M. Lane and Martin D. Hoe, as Managing Members of the General Partner of the Investment Manager with the power to exercise investment discretion, may be deemed to be the beneficial owner of all shares of common stock underlying the warrants held by the Empery Funds (subject to the beneficial ownership blocker referred to in footnote 1 above).
​
 
9
 
PLAN OF DISTRIBUTION
The selling stockholders and any of their pledgees, donees, transferees, assignees or other successors-in-interest may, from time to time, sell, transfer or otherwise dispose of any or all of their shares of common stock or interests in shares of common stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions, directly or through one or more underwriters, broker-dealers or agents. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected in transactions that may involve crosses or block transactions. The selling stockholders may use one or more of the following methods when disposing of the shares or interests therein:
•
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
​
•
block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;
​
•
through brokers, dealers or underwriters that may act solely as agents;
​
•
purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
​
•
an exchange distribution in accordance with the rules of the applicable exchange;
​
•
privately negotiated transactions;
​
•
through the writing or settlement of options or other hedging transactions entered into after the effective date of the registration statement of which this prospectus is a part, whether through an options exchange or otherwise;
​
•
broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share;
​
•
a combination of any such methods of disposition; and
​
•
any other method permitted pursuant to applicable law.
​
The selling stockholders may also sell shares under Rule 144 or Rule 904 under the Securities Act of 1933, as amended, or Securities Act, if available, or Section 4(a)(1) under the Securities Act, rather than under this prospectus.
Broker-dealers engaged by the selling stockholders may arrange for other broker-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the selling stockholders (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated. The selling stockholders do not expect these commissions and discounts to exceed what is customary in the types of transactions involved.
The selling stockholders may, from time to time, pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell shares of common stock from time to time under this prospectus, or under a supplement or amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus.
Upon being notified in writing by a selling stockholder that any material arrangement has been entered into with a broker-dealer for the sale of common stock through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, we will file a supplement to this prospectus, if required, pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name of each such selling stockholder and of the participating broker-dealer(s), (ii) the number of shares involved, (iii) the price at which such shares of common stock were sold, (iv) the commissions paid or discounts or concessions allowed to such broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus, and (vi) other facts material to the transaction. In addition, upon being notified in writing by a selling stockholder that a donee or pledge intends to sell more than 500 shares of common stock, we will file a supplement to this prospectus if then required in accordance with applicable securities law.
 
10
 
The selling stockholders also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
In connection with the sale of the shares of common stock or interests in shares of common stock, the selling stockholders may enter into hedging transactions after the effective date of the registration statement of which this prospectus is a part with broker-dealers or other financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions they assume. The selling stockholders may also sell shares of common stock short after the effective date of the registration statement of which this prospectus is a part and deliver these securities to close out their short positions, or loan or pledge the common stock to broker-dealers that in turn may sell these securities. The selling stockholders may also loan or pledge shares of common stock to broker-dealers that in turn may sell such shares, to the extent permitted by applicable law. The selling stockholders may also enter into option or other transactions after the effective date of the registration statement of which this prospectus is a part with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The selling stockholders and any broker-dealers or agents that are involved in selling the shares may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. The maximum commission or discount to be received by any member of the Financial Industry Regulatory Authority (FINRA) or independent broker-dealer will not be greater than 8% of the initial gross proceeds from the sale of any security being sold.
We have advised the selling stockholders that they are required to comply with Regulation M promulgated under the Securities Exchange Act of 1934, as amended, during such time as they may be engaged in a distribution of the shares. The foregoing may affect the marketability of the common stock.
The aggregate proceeds to the selling stockholders from the sale of the common stock offered by them will be the purchase price of the common stock less discounts or commissions, if any. Each of the selling stockholders reserves the right to accept and, together with their agents from time to time, to reject, in whole or in part, any proposed purchase of common stock to be made directly or through agents. We will not receive any of the proceeds from this offering.
We will pay all fees and expenses incident to the registration of the shares.
 
11
 
LEGAL MATTERS
Fox Rothschild LLP, Minneapolis, Minnesota, will issue a legal opinion as to the validity of the securities offered by this prospectus.
EXPERTS
The consolidated financial statements of Obalon Therapeutics, Inc. (our predecessor company) as of December 31, 2020 and for the year then ended incorporated by reference in this prospectus have been so incorporated in reliance on the report of BDO USA, LLP, an independent registered public accounting firm, incorporated herein by reference, given on the authority of said firm as experts in auditing and accounting.
The consolidated financial statements of ReShape Lifesciences Inc. as of December 31, 2019 and December 31, 2020 and for the years then ended incorporated by reference in this prospectus have been so incorporated in reliance on the report of BDO USA, LLP, an independent registered public accounting firm, incorporated herein by reference, given on the authority of said firm as experts in auditing and accounting.
The consolidated financial statements of Obalon Therapeutics, Inc. (our predecessor company) as of December 31, 2019, and for the year then ended, have been incorporated by reference herein and in the registration statement in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
The audit report covering the December 31, 2019 consolidated financial statements contains an explanatory paragraph that states that the Company’s recurring losses from operations and net capital deficiency raise substantial doubt about the entity’s ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result from the outcome of that uncertainty.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public through the Internet at the SEC’s web site at www.sec.gov. You may also read and copy any document we file with the SEC at the SEC’s public reference room at 100 F Street N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information about its public reference facilities and their copy charges.
We have filed with the SEC a registration statement on Form S-3 under the Securities Act with respect to the securities offered by this prospectus. When used in this prospectus, the term “registration statement” includes amendments to the registration statement as well as the exhibits, schedules, financial statements and notes filed as part of the registration statement. This prospectus, which constitutes a part of the registration statement, does not contain all of the information in the registration statement. This prospectus omits information contained in the registration statement as permitted by the rules and regulations of the SEC. For further information with respect to us and the common stock offered by this prospectus, reference is made to the registration statement. Statements herein concerning the contents of any contract or other document are not necessarily complete and in each instance reference is made to the copy of such contract or other document filed with the SEC as an exhibit to the registration statement, each such statement being qualified by and subject to such reference in all respects.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the information we file with them. This allows us to disclose important information to you by referencing those filed documents. We have previously filed the following documents with the SEC and are incorporating them by reference into this prospectus:
•
​
•
​
•
​
 
12
 
•
ReShape Lifesciences Inc.’s (formerly Obalon Therapeutics, Inc.) Quarterly Report on Form 10-Q for the quarters ended March 31, 2021 and June 30, 2021;
​
•
ReShape Weightloss Inc.’s Current Reports on Form 8-K (only to the extent information is “filed” and not “furnished”) filed with the SEC on May 19, 2021 and June 15, 2021;
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•
ReShape Lifesciences Inc.’s (formerly Obalon Therapeutics, Inc.) Current Reports on Form 8-K (only to the extent information is “filed” and not “furnished”) filed with the SEC on May 4, 2021, May 13, 2021, May 18, 2021, May 21, 2021, May 26, 2021, June 15, 2021, July 2, 2021 and July 19, 2021; and
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•
the description of our capital stock contained in ReShape Lifesciences Inc.’s (formerly Obalon Therapeutics, Inc.) Registration Statement on Form S-4, as amended (File No. 333-254841) under the heading “Description of Capital Stock” and any amendment or report filed for the purpose of updating such description.
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We also are incorporating by reference any future information filed (rather than furnished) by us with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, after the date of the initial filing of the registration statement of which this prospectus is a part and before the effective date of the registration statement and after the date of this prospectus until the termination of the offering. The most recent information that we file with the SEC automatically updates and supersedes more dated information.
You can obtain a copy of any documents which are incorporated by reference in this prospectus or prospectus supplement, except for exhibits which are specifically incorporated by reference into those documents, at no cost, by writing or telephoning us at:
ReShape Lifesciences Inc.
1001 Calle Amanecer
San Clemente, California 92673
Attention: Secretary
(949) 429-6680
 
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