| Item 1.01 | Entry
into a Material Definitive Agreement. |
On April 20, 2023, ReShape Lifesciences
Inc. (the “Company”) entered into a Securities Purchase Agreement (the “Purchase Agreement”) with a certain
institutional investor (the “Investor”), pursuant to which the Company agreed to issue and sell to the Investor in a
registered direct offering (the “Registered Offering”) (i) 291,395 shares of the Company’s common stock, par
value $0.001 per share (the “Common Stock”), and (ii) pre-funded warrants to purchase an aggregate of 509,300
shares of Common Stock (the “Pre-funded Warrants”). Each share of Common Stock was sold at a price of $3.07 per shareand
each Pre-funded Warrant was sold at an offering price of $3.069 per share underlying such Pre-funded Warrants, for aggregate gross
proceeds of approximately $2.46 million before deducting the placement agent’s fees and the offering expenses. Under the
Purchase Agreement, the Company also agreed to issue and sell to the Investor in a concurrent private placement (the “Private
Placement,” and together with the Registered Offering, the “Offering”) warrants to purchase an aggregate of
800,695 shares of Common Stock (the “Common Warrants,” and together with the Pre-funded Warrants, the
“Warrants”).
In connection with the Offering, the Company also
agreed that certain existing warrants to purchase up to an aggregate of 164,656 shares of Common Stock that were issued to the Investor,
at an exercise price of $15.00 per share, were amended effective upon the closing of the Offering so that the amended warrants have an
exercise price of $3.07.
The Company’s exclusive placement agent
in connection with the Offering, Maxim Group LLC, received a cash fee equal 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 40,035 shares
of Common Stock, which is equal to 5.0% of the aggregate amount of shares of Common Stock (or Common Stock equivalents in the form of
Pre-funded Warrants) issued in the Offering, at an exercise price of $3.38 per share.
The Offering closed on April 24, 2023.
The Common Warrants will have an exercise price
of $3.07 per share, will be exercisable immediately upon issuance, and will expire five and one-half years following the initial exercise
date. The exercise price and the number of shares of Common Stock issuable upon exercise of each Common Warrant is subject to appropriate
adjustments in the event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications or similar
events affecting the Common Stock. In addition, in certain circumstances, upon a fundamental transaction, a holder of Warrants will be
entitled to receive, upon exercise of the Common Warrants, the kind and amount of securities, cash or other property that such holder
would have received had they exercised the Common Warrants immediately prior to the fundamental transaction; provided, however, that
in the event of a fundamental transaction where the consideration consists solely of cash, solely of marketable securities or a combination
thereof, each Common Warrant will be deemed to be exercised in full in a cashless exercise effective immediately prior to and contingent
upon the consummation of such fundamental transaction.
The Company may not effect the exercise of certain
Common Warrants, and the applicable holder will not be entitled to exercise any portion of any such Common Warrant, which, upon giving
effect to such exercise, would cause the aggregate number of shares of Common Stock beneficially owned by the holder of such Common Warrant
(together with its affiliates) to exceed 4.99% of the number of shares of Common Stock outstanding immediately after giving effect to
the exercise, as such percentage ownership is determined in accordance with the terms of such Common Warrants.
Each Pre-funded Warrant has an exercise price per
share of Common Stock equal to $0.001 per share. The exercise price and the number of shares of Common Stock issuable upon exercise of
each Pre-funded Warrant are subject to appropriate adjustments in the event of certain stock dividends and distributions, stock splits,
stock combinations, reclassifications or similar events affecting the Common Stock. In addition, in certain circumstances, upon a fundamental
transaction, a holder of Pre-funded Warrants will be entitled to receive, upon exercise of the Pre-funded Warrants, the kind and amount
of securities, cash or other property that such holder would have received had they exercised the Pre-funded Warrants immediately prior
to the fundamental transaction; provided, however, that in the event of a fundamental transaction where the consideration consists
solely of cash, solely of marketable securities or a combination thereof, each Pre-funded Warrant will be deemed to be exercised in full
in a cashless exercise effective immediately prior to and contingent upon the consummation of such fundamental 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.
The foregoing description of the Purchase Agreement,
Common Warrants, and Pre-funded Warrants do not purport to be complete and are qualified in their entirety by reference to the full text
of the form of Purchase Agreement, Common Warrants, and Pre-funded Warrants, which are filed as Exhibits 10.1, 4.1and 4.2, respectively,
to this Current Report on Form 8-K and incorporated herein by reference. The legal opinion, including the related consent, of Fox
Rothschild LLP relating to the issuance and sale of the Common Stock, the Pre-funded Warrants and the shares of Common Stock issuable
upon exercise of the Pre-funded Warrants is filed as Exhibit 5.1 hereto.