RESHAPE LIFESCIENCES INC.
DESCRIPTION OF SECURITIES REGISTERED PURSUANT TO SECTION 12 OF
THE SECURITIES EXCHANGE ACT OF 1934
ReShape Lifesciences Inc., a Delaware corporation (“ReShape,” “we,” “us” and “our”), has only one class of securities registered under Section 12 of the Securities Exchange Act of 1934, as amended: our common stock, par value $0.001 per share (“common stock”).
The following description of our common stock is a summary and does not purport to be complete. It is subject to and qualified in its entirety by reference to our Sixth Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), and our Amended and Restated Bylaws (the “Bylaws”), which are filed as exhibits to our Annual Report on Form 10-K for the fiscal year ended December 31, 2019 and are incorporated by reference herein. We encourage you to read our Certificate of Incorporation, our Bylaws and the applicable provisions of the General Corporation Law of the State of Delaware (the “DGCL”) for additional information.
Our Certificate of Incorporation authorizes the issuance of up to 280,000,000 shares of capital stock, consisting of 275,000,000 shares of common stock and 5,000,000 shares of preferred stock, par value $0.001 per share (“preferred stock”). As of December 31, 2020, we had 6,166,554 shares of common stock outstanding.
In accordance with a certificate of designation filed on August 16, 2017, which has been filed as an exhibit to our Annual Report on Form 10-K for the fiscal year ended December 31, 2020, we designated shares of preferred stock as Series B Convertible Preferred Stock, 3 shares of which remained issued and outstanding as of December 31, 2020, which are convertible into 1,250 shares of common stock. Additionally, in accordance with a certificate of designation filed on October 3, 2017, which has been filed as an exhibit to our Annual Report on Form 10-K for the fiscal year ended December 31, 2020, we designated shares of preferred stock as Series C Convertible Preferred Stock, 95,388 shares of which remained issued and outstanding as of December 31, 2020, which are convertible into 38 shares of common stock.
Our Board of Directors is authorized, subject to limitations prescribed by law, to provide by resolution or resolutions for the issuance of shares of preferred stock from time to time in one or more series, and, by filing a certificate pursuant to the applicable law of the State of Delaware, to establish the number of shares to be included in each such series, and to fix the voting powers, if any, designations, powers, preferences, and relative, participating, optional or other rights, if any, of the shares of each such series, and any qualifications, limitations and restrictions thereof.
We may amend from time to time our Certificate of Incorporation to increase the number of authorized shares of common stock or preferred stock. Any such amendment would require the approval of the holders of a majority of the voting power of the shares entitled to vote thereon.