As filed with the Securities and Exchange Commission on August 11, 2016November 21, 2018
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Ritter Pharmaceuticals, Inc.
(Exact Name of Registrant as Specified in Its Charter)
RITTER PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 1880 Century Park East Suite 1000 Los Angeles, California 90067 (310) 203-1000 | 26-3474527 | ||
(State or other jurisdiction of incorporation or organization) | (Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices) | (I.R.S. Employer Identification No.) |
1880 Century Park East, Suite 1000
Los Angeles, CA 90067
(310) 203-1000
(Address, including zip code, and telephone number, including area
code, of registrant’s principal executive offices)
Michael D. StepAndrew J. Ritter
President and Chief Executive Officer
Ritter Pharmaceuticals, Inc., Inc.
1880 Century Park East
Suite 1000
Los Angeles, CACalifornia 90067
(310) 203-1000
(Name, address, including zipZIP code, and telephone number, including area
code, of agent for service)
Copies to:
Michael Sanders Esq.
David T. Mittelman, Esq.Aron Izower
Reed Smith LLP
1901 Avenue of the Stars, Suite 700
Los Angeles, California 90067-6078
(310) 734-5200
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement as determined by the registrant.statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box:box. [ ]
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box:box. [X]
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective uponon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. [ ]
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. [ ]
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”filer,” “smaller reporting company,” and “smaller reporting“emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer | [ ] | Accelerated filer | [ ] | |
| Non-accelerated filer | [ ] | Smaller reporting company | [X] | |
| Emerging growth company | [X] |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. [ ]
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered | Amount to be Registered(1) | Proposed Maximum Offering Price per Unit(2) | Proposed Maximum Aggregate Offering Price(2) | Amount of Registration Fee(3) | ||||||||||||
| Common Stock, $0.001 par value | — | — | — | — | ||||||||||||
| Preferred Stock, $0.001 per value | — | — | — | — | ||||||||||||
| Debt Securities | — | — | — | — | ||||||||||||
| Warrants | — | — | — | — | ||||||||||||
| Rights | — | — | — | — | ||||||||||||
| Purchase Contracts | — | — | — | — | ||||||||||||
| Units | — | — | — | — | ||||||||||||
| Total | $ | 150,000,000 | $ | 15,105 | ||||||||||||
Title of each Class of Securities to be Registered | Amount to be Registered(1) | Proposed Maximum Offering Price Per Share(2) | Proposed Maximum Aggregate Offering Price(2) | Amount of Registration Fee | ||||||||||||
| Shares of Common Stock, par value $0.001 per share, issuable upon conversion of shares of Series B convertible preferred stock(3) | 4,615,379 | $ | 0.8615 | $ | 3,976,149.01 | $ | 481.91 | |||||||||
| Shares of Common Stock, par value $0.001 per share, issuable upon conversion of shares of Series C convertible preferred stock(4) | 1,146,341 | $ | 0.8615 | $ | 987,572.77 | $ | 119.69 | |||||||||
| Shares of Common Stock, par value $0.0001 per share, issuable upon exercise of warrants(5) | 2,307,686 | $ | 0.8615 | $ | 1,988,071.49 | $ | 240.95 | |||||||||
| Total | 8,069,406 | $ | 0.8615 | 6,951,793.27 | $ | 842.56 | ||||||||||
(1) There are being registered hereunder such indeterminate number of shares of common stock, such indeterminate number of shares of preferred stock, such indeterminate principal amount of debt securities, such indeterminate number of warrants, rights and purchase contracts to purchase common stock or debt securities, and such indeterminate number of units, as shall have an aggregate initial offering price not to exceed $150,000,000. If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal amount as shall result in an aggregate initial offering price not to exceed $150,000,000, less the aggregate dollar amount of all securities previously issued hereunder. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. The proposed maximum initial offering price per unit will be determined, from time to time, by the registrant in connection with the issuance by the registrant of the securities registered hereunder. The securities registered also include such indeterminate number of shares of common stock and preferred stock as may be issued upon conversion or exchange of convertible or exchangeable securities being registered hereunder or pursuant to the anti-dilution provisions of any such securities. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended, the shares being registered hereunder include such indeterminate number of shares of common stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions.
(2) The proposed maximum aggregate offering price per class of security will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act of 1933, as amended.
(3) Calculated pursuant to Rule 457(o) under the Securities Act of 1933, as amended, based on the proposed maximum aggregate offering price.
| (1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also includes an indeterminate number of additional shares of common stock as may from time to time become issuable by reason of stock splits, stock dividends, recapitalizations or other similar transactions. |
| (2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) of the Securities Act based upon the average of the high and low prices of the Registrant’s common stock as reported on the Nasdaq Capital Market on November 16, 2018. |
| (3) | Represents shares of common stock issuable upon conversion of shares of Series B convertible preferred stock, with each share of Series B convertible preferred stock having a stated value of $1,000 per share and a conversion price of $1.30 per share (subject to customary adjustments in the event of future stock splits and dividends). |
| (4) | Represents shares of common stock issuable upon conversion of shares of Series C convertible preferred stock, with each share of Series C convertible preferred stock having a stated value of $1,000 per share and a conversion price of $1.64 per share (subject to customary adjustments in the event of future stock splits and dividends). |
| (5) | Represents shares of common stock issuable upon exercise of warrants, at an exercise price of $1.30 per share (subject to customary adjustments in the event of future stock splits and dividends). |
The Registrantregistrant hereby amends this Registration Statementregistration statement on such date or dates as may be necessary to delay its effective date until the Registrantregistrant shall file a further amendment which specifically states that this Registration Statementregistration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statementthis registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.The information in this prospectus is not complete and may be changed. The selling stockholders may not sell the securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED AUGUST 11, 2016NOVEMBER 21, 2018
PROSPECTUS
8,069,406 Shares of Common Stock
RITTER PHARMACEUTICALS, INC.
$150,000,000
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
RIGHTS
PURCHASE CONTRACTS
UNITS
This prospectus relates to the resale or other disposition by the selling stockholders identified in this prospectus of up to 8,069,406 shares of our common stock. Of these shares, 4,615,379 shares are issuable upon the conversion of our Series B convertible preferred stock, 1,146,341 shares are issuable upon the conversion of our Series C convertible preferred stock, and 2,307,686 shares are issuable upon the exercise of outstanding warrants to purchase our common stock, all issued to the selling stockholders in connection with a private placement we completed on November 5, 2018.
We are not selling any shares of common stock under this prospectus and will allow us to issue,not receive any of the proceeds from the sale or other disposition of common stock by the selling stockholders. To the extent the warrants are exercised for cash, if at all, we will receive the exercise price of the warrants.
The selling stockholders or their pledgees, assignees or successors-in-interest may offer and sell or otherwise dispose of the shares of common stock described in this prospectus from time to time through public or private transactions at prevailing market prices, at prices related to prevailing market prices or at privately negotiated prices. The selling stockholders will bear all commissions and on terms to be determined at or priordiscounts, if any, attributable to the timesales of shares. We will bear all costs, expenses and fees in connection with the registration of the offering, up to $150,000,000 of any combination of the securities described in this prospectus, either individually or in units. We may also offer common stock or preferred stock upon conversion of or exchange for the debt securities; common stock or preferred stock or debt securities upon the exercise of warrants, rights or performance of purchase contracts; or any combination of these securities upon the performance of purchase contracts.
This prospectus describes the general terms of these securities and the general manner in which these securities will be offered. We will provide you with the specific terms of any offering in one or more supplements to this prospectus. The prospectus supplements will also describe the specific manner in which these securities will be offered and may also supplement, update or amend information contained in this document. You should read this prospectus and any prospectus supplement, as well as any documents incorporated by reference into this prospectus or any prospectus supplement, carefully before you invest.
Our securities may be sold directly by us to you, through agents designated from time to time or to or through underwriters or dealers. For additional information on the methods of sale, you should refer to the section entitledshares. See “Plan of Distribution” in this prospectus and inbeginning on page 11 for more information about how the applicable prospectus supplement. If any underwritersselling stockholders may sell or agents are involved in the saledispose of our securities with respect to which this prospectus is being delivered, the namestheir shares of such underwriters or agents and any applicable fees, commissions or discounts and over-allotment options will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds that we expect to receive from such sale will also be set forth in a prospectus supplement.common stock.
Our common stock is listed on the NASDAQNasdaq Capital Market under the symbol “RTTR.” On August 5, 2016,November 20, 2018, the last reported sale price of our common stock on the NASDAQ Capital Market was $1.31$0.83 per share.
As of August 5, 2016, the aggregate market value of our outstanding common stock held by non-affiliates was approximately $6.9 million, based on 8,584,661 shares of outstanding common stock, of which 5,267,606 shares were held by non-affiliates, and a per share price of $1.31 based on the closing sale price ofInvesting in our common stock as of August 5, 2016. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities pursuant to this prospectus with a value of more than one-third of the aggregate market value of our common stock held by non-affiliates in any twelve-month period, so long as the aggregate market value of our common stock held by non-affiliates is less than $75,000,000. In the event that subsequent to the date of this prospectus, the aggregate market value of our outstanding common stock held by non-affiliates equals or exceeds $75,000,000, then the one-third limitation on sales shall not apply to additional sales made pursuant to this prospectus. We have not offered any securities pursuant to General Instruction I.B.6 of Form S-3 during the twelve calendar months prior to and including the date of this prospectus.
Investing in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider carefullymaking an investment decision, please read the risks that we have describedinformation under the heading “Risk Factors” beginning on page 25 of this prospectus underand in the caption “Risk Factors.” We may include specific risk factorsdocuments incorporated by reference in supplements to this prospectus under the caption “Risk Factors.” This prospectus may not be used to sell our securities unless accompanied by a prospectus supplement.prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined ifpassed upon the adequacy or accuracy of this prospectus is truthful or complete.prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is August 11, 2016, 2018
TABLE OF CONTENTS
| i |
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, wecertain selling stockholders may offerfrom time to time sell the shares of our common stock preferred stock, various series of debt securities and/or warrants, rights or purchase contracts to purchase any of such securities, either individually ordescribed in units,this prospectus in one or more offerings, with a total value of up to $150,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will contain specific information about the terms of that offering.offerings.
This prospectus does not contain all of the information included in the registration statement. For a more complete understanding of the offering of the securities, you should refer to the registration statement, including its exhibits. The prospectus supplement may also add, update or change information contained or incorporated by reference in this prospectus. However, no prospectus supplement will offer a security that is not registered and described in this prospectus at the time of its effectiveness. This prospectus, together with the applicable prospectus supplements and the documents incorporated by reference into this prospectus, includes all material information relating to the offering of securities under this prospectus. You should carefully read this prospectus, the applicable prospectus supplement, the information and documents incorporated herein by reference and the additional information under the heading “Where You Can Find More Information” before making an investment decision.
You should rely only on the information we have provided or incorporated by reference in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with information different from that contained or incorporated by reference in this prospectus. No dealer, salesperson or other person is authorized to give any information or to represent anything notmake any representation other than those contained or incorporated by reference in this prospectus. You must not rely onupon any unauthorized information or representation. This prospectus is an offerrepresentation 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 the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. This prospectus does 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 does this prospectus 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 or any prospectus supplement is accurate only as ofon any date subsequent to the date set forth on the front of the document andor that any information we have incorporated herein by reference is accurate only as ofcorrect on any date subsequent to the date of the document incorporated by reference, regardless of the time of delivery ofeven though this prospectus is delivered or any sale ofshares are sold on a security.later date.
We further note thatYou should read this prospectus together with the representations, warrantiesadditional information described under the headings “Where You Can Find More Information” and covenants made“Incorporation of Certain Information by us in any agreement that is filed as an exhibit to any document that is incorporated by reference in the accompanying prospectus were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.Reference.”
This prospectus may not be usedcontain references to consummate sales of our securities, unless it is accompanied by a prospectus supplement. To the extent there are inconsistencies between any prospectus supplement,trademark and to trademarks belonging to other entities. Solely for convenience, trademarks and trade names referred to in this prospectus, including logos, artwork and other visual displays, may appear without the®orTM symbols, but such references are not intended to indicate, in any documents incorporatedway, that we will not assert, to the fullest extent under applicable law, our rights or the rights of the applicable licensor to these trademarks and trade names. We do not intend our use or display of other companies’ trade names or trademarks to imply a relationship with, or endorsement or sponsorship of us by, reference, the document with the most recent date will control.any other company.
We were formed as a Nevada limited liability company on March 29, 2004 under the name Ritter Natural Sciences, LLC. On September 16, 2008, we converted into a Delaware corporation under the name Ritter Pharmaceuticals, Inc. Unless the context otherwise requires, “Ritter,” “the Company,” “we,” “us,” “our” and similar terms refer to Ritter Pharmaceuticals, Inc.
The following is aThis summary of what we believe to be the most important aspects ofdescription about us and our business andhighlights selected information contained elsewhere in this prospectus or incorporated in this prospectus by reference. This summary does not contain all of the offering ofinformation you should consider before investing in our securities under this prospectus. We urge you tocommon stock. You should carefully read this entire prospectus, including each of the more detailed consolidated financial statements, notes to the consolidated financial statements and other informationdocuments incorporated herein by reference, from our other filings with the SEC or included in any applicable prospectus supplement. Investing in our securities involves risks. Therefore, carefully consider the risk factors set forth in any prospectus supplements and in our most recent annual and quarterly filings with the SEC, as well as other informationbefore making an investment decision. As used in this prospectus, the terms “we,” “us,” “our,” “the Company” and any prospectus supplements and the documents incorporated by reference herein or therein, before purchasing our securities. Each of the risk factors could adversely affect our business, operating results and financial condition, as well as adversely affect the value of an investment in our securities.“Ritter” mean Ritter Pharmaceuticals, Inc.
The CompanyOverview
Ritter Pharmaceuticals, Inc. develops novel therapeutic products that modulate the human gut microbiome to treat gastrointestinal diseases. Our lead product candidate, RP-G28, has the potential to become the first drug approved by the Food and Drug Administration for the treatment of lactose intolerance, a condition that affects millions worldwide. RP-G28 has been studied in Phase 2 clinical trials and is now in Phase 3 clinical development with its first Phase 3 study currently underway. We are advancing human gut health research byfurther exploring the functionality and discovering the therapeutic potential that gut microbiome changes may have on treating/preventing a variety of conditions including: gastrointestinal cancer, metabolic, capacity of the gut microbiota and translating the functionality of prebiotic-based therapeutics into applications intended to have a meaningful impact on a patient’s health. “Prebiotics” is a general term used to refer to chemicals that induce the growth and/or activity of commensal microorganisms that contribute to the well-being of their host.liver diseases.
Our first novel microbiome modulator, RP-G28, an orally administered, high purity galacto-oligosaccharide, (a carbohydrate found naturally, at least in small amounts, in plants, consisting of three to ten simple sugars linked together), is currently under development for the reductiontreatment of symptoms associated with lactose intolerance. RP-G28 is designed to selectively stimulate the growth of lactose-metabolizing bacteria in the colon, thereby effectively adapting the gut microbiome to assist in digesting the lactose (the sugar found in milk) that reaches the large intestine. RP-G28 has the potential to become the
Our current Phase 3 clinical program includes two confirmatory clinical trials of similar trial design as our Phase 2b clinical trial. The first drug approved by the U.S. Food and Drug Administration, or FDA, for the reduction of symptoms associated with lactose intolerance. RP-G28 has been studied in a Phase 2a3 clinical trial and is a first-in-class compound.was initiated in the second quarter of 2018.
Corporate Information
We were formed as a Nevada limited liability company on March 29, 2004 under the name Ritter Natural Sciences, LLC. On September 16, 2008, we converted into a Delaware corporation under the name Ritter Pharmaceuticals, Inc. Our principal executive offices are located at 1880 Century Park East, #1000,Suite 1000, Los Angeles, CA 90067, and our telephone number is (310) 203-1000. Our website address iswww.ritterpharmaceuticals.com. The information contained on, or that can be accessed through, our website is not part of this prospectus.
Offerings Under This ProspectusSummary of Private Placement
Under this prospectus,On November 5, 2018, or the Closing, we may offerclosed a private placement, or the Private Placement, pursuant to a securities purchase agreement, dated as of October 30, 2018, or the Securities Purchase Agreement, between us and the selling stockholders. At the Closing, we issued 6,000 shares of our Series B convertible preferred stock (convertible into 4,615,379 shares of our common stock) and warrants to purchase 2,307,686 shares of our common stock at an exercise price per share of $1.30 (subject to customary adjustments in the event of future stock splits and dividends), or the Warrants, to the selling stockholders.
Pursuant to the terms of the Securities Purchase Agreement, at the Closing, certain selling stockholders participating in the Private Placement who owned shares of our outstanding Series A convertible preferred stock various seriesexchanged their shares of debt securities and/Series A convertible preferred stock for shares of our Series C convertible preferred stock (convertible into 1,146,341 shares of our common stock), on a one-for-one basis, or warrants,the Exchange. The maximum aggregate number of shares of common stock that may be issued by the Company upon conversion of the Series C convertible preferred stock is limited to 1,146,354 shares, or the Exchange Cap, representing 19.99% of the shares of our common stock outstanding immediately prior to execution of the Securities Purchase Agreement, unless we obtain stockholder approval to issue shares in excess of the Exchange Cap in accordance with the applicable rules of the Nasdaq Capital Market.
The aggregate gross proceeds from the Private Placement were approximately $6.0 million. We intend to use the net proceeds from the Private Placement to fund operations, including our ongoing Phase 3 clinical trial for RP-G28 through its completion and dissemination of top-line results, and for working capital and general corporate purposes.
A.G.P./Alliance Global Partners, or A.G.P., served as the sole placement agent for the Private Placement. Roth Capital Partners, LLC acted as a financial advisor for the transaction.
As part of the Private Placement, we entered into a registration rights agreement with the selling stockholders, or purchase contractsthe Registration Rights Agreement, pursuant to purchase anywhich we agreed to file a registration statement to register for resale the shares of such securities, either individually orcommon stock issuable upon conversion of the shares of Series B convertible preferred stock and the Series C convertible preferred stock and upon the exercise of the Warrants issued in units, with a total value of upthe Private Placement, within 30 days following the Closing. We are required to $150,000,000, from timeuse our reasonable best efforts to time at prices and on termscause the registration statement to be determined by market conditions atdeclared effective under the timeSecurities Act of 1933, as amended, or the Securities Act, as soon as practicable, but in no event later than 60 days after the Closing (or 90 days in the event of a full review of the offering. This prospectus provides youregistration statement by the SEC). We agreed to keep the registration statement effective until all registrable securities may be sold pursuant to Rule 144 under the Securities Act, without the need for current public information or other restriction. We also agreed, among other things, to indemnify the selling stockholders under the registration statements from certain liabilities and to pay all fees and expenses incident to our performance of or compliance with the Registration Rights Agreement.
The issuance of the Series B convertible preferred stock, the Series C convertible preferred stock and the Warrants in connection with the Private Placement was exempt from registration under the Securities Act pursuant to the exemption for transactions by an issuer not involving a generalpublic offering under Section 4(a)(2) of the Securities Act and Regulation D promulgated thereunder. Please see “Description of Capital Stock” for a description of the securities we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will describeSeries B convertible preferred stock, the specific amounts, pricesSeries C convertible preferred stock and other important terms of the securities.Warrants and the Registration Rights Agreement.
The prospectus supplement also may add, update or change information contained in this prospectus or in documents we have incorporated by reference into this prospectus. However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We may sell the securities directly to investors or to or through agents, underwriters or dealers. We, and our agents or underwriters, reserve the right to accept or reject all or part of any proposed purchase of securities. If we offer securities through agents or underwriters, we will include in the applicable prospectus supplement:Offering
| Selling stockholders | Institutional and accredited investors who purchased shares of our Series B convertible preferred stock and Warrants in the | |
| Common stock offered by the selling stockholders | ||
| Use of proceeds | ||
| Risk factors | Investing in our common stock involves a high degree of risk. See “Risk Factors” beginning on page 5 of this prospectus, and any other risk factors described in the | |
| Nasdaq Capital Market symbol | RTTR |
Please carefully consider the risk factors describedAn investment in our periodic reports filed with the SEC, which are incorporated by referencecommon stock involves a high degree of risk. Prior to making a decision about investing in this prospectus. Before making an investment decision,our common stock, you should carefully consider thesethe risks, uncertainties and assumptions discussed under Item 1A, “Risk Factors,” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2017, as wellupdated by our subsequent filings with the Securities and Exchange Commission, or the SEC, under the Securities Exchange Act of 1934, as other information we includeamended, or incorporatethe Exchange Act, which are incorporated herein by reference, together with the information in this prospectus or include inand any applicableother information incorporated by reference into this prospectus. See the sections of this prospectus supplement.entitled “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.” Additional risks and uncertainties not presently known to us or that we currently deem currently immaterial may also impairaffect our business, operationsfinancial condition or adversely affect our results of operationsoperations. The occurrence of any of these known or financial condition.unknown risks might cause you to lose all or part of your investment in our common stock.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some ofThis prospectus and the statementsinformation and documents incorporated by reference in this prospectus and in any prospectus supplement we may filecontain certain statements that constitute “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Securities Exchange Act, including statements regarding:
| ● | our ability to obtain additional financing; |
| ● | the accuracy of our estimates regarding expenses, future revenues and capital requirements; |
| ● | the success and timing of our preclinical studies and clinical trials; |
| ● | our ability to obtain and maintain regulatory approval of RP-G28 and any other product candidates we may develop, and the labeling under any approval we may obtain; |
| ● | regulatory developments in the United States and other countries; |
| ● | the performance of third-party manufacturers; |
| ● | our ability to develop and commercialize RP-G28 and any other product candidates that we may develop in the future; |
| ● | our ability to obtain and maintain intellectual property protection for RP-G28 and any other product candidates we may develop in the future; |
| ● | the successful development of our sales and marketing capabilities; |
| ● | the potential markets for RP-G28 and any other product candidates we may develop in the future and our ability to serve those markets; |
| ● | the rate and degree of market acceptance of our products, if approved; |
| ● | the success of competing drugs that are or become available; and |
| ● | the loss of key scientific or management personnel. |
Any or all of 1934 as amended (the “Exchange Act”). These statements relate to future events concerning our business and to our future revenues, operating results and financial condition. In some cases, you can identify forward-looking statements included or incorporated by terminology such asreference in this prospectus may turn out to be wrong. They can be affected by inaccurate assumptions or by known or unknown risks and uncertainties. Many factors mentioned in our discussion included or incorporated by reference in this prospectus will be important in determining future results. Consequently, no forward-looking statement can be guaranteed. Actual future results may vary materially from expected results.
We also provide a cautionary discussion of risks and uncertainties under “Risk Factors” in this prospectus. Other factors besides those discussed could also adversely affect us.
Without limiting the foregoing, the words “believe,” “anticipate,” “plan,” “expect,” “estimate,” “may,” “will,” “should,” “could,” “would,” “should,” “expect,” “plan,” “anticipate,“seek,” “intend,” “believe,“continue,” “estimate,“project,” “forecast,” “predict,” “propose,” “potential” or “continue,�� or the negative of those terms or other comparable terminology.
Any forward looking statements contained in this prospectus or any prospectus supplementand similar expressions are only estimates or predictions of future events based on information currently availableintended to our management and management’s current beliefs about the potential outcome of future events. Whether these future events will occur as management anticipates, whether we will achieve our business objectives, and whether our revenues, operating results or financial condition will improve in future periods are subject to numerous risks.identify forward-looking statements. There are a number of important factors and uncertainties that could cause actual events or results to differ materially from those indicated by such forward-looking statements, many of which are beyond our control, including the results anticipated by these forward-looking statements. These important factors include those that we discussdiscussed under the heading “Risk Factors” and in other sectionsherein. In addition, the forward-looking statements contained herein represent our estimate only as of our Annual Report on Form 10-K for the year ended December 31, 2015, our Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2016 and June 30, 2016, all filed with the SEC, as well as in our Current Reports filed on Form 8-K from time to time with the SEC, that are incorporated by reference into this prospectus. You should read these factors and the other cautionary statements made indate of this prospectus and should not be relied upon as representing our estimate as of any subsequent date. While we may elect to update these forward-looking statements at some point in the documentsfuture, we incorporate by reference into this prospectus as being applicablespecifically disclaim any obligation to all related forward-looking statements wherever they appear in this prospectus or the documents we incorporate by reference into this prospectus. If one or more of these factors materialize, or if any underlying assumptions prove incorrect, ourdo so to reflect actual results, performancechanges in assumptions or achievements may vary materially from any future results, performance or achievements expressed or implied by thesechanges in other factors affecting such forward-looking statements. We undertake no obligation to publicly update any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
RATIO OF EARNINGS TO FIXED CHARGES
Any time debt securities are offered pursuant to this prospectus, we will provide a table setting forth our ratio of earnings to fixed charges on a historical basis in the applicable prospectus supplement, if required.
| Year Ended December 31, | Six Months Ended June 30, 2016 | |||||||||||||||||||
| 2012 | 2013 | 2014 | 2015 | |||||||||||||||||
| Ratio of earnings to fixed charges | * | * | * | * | * | |||||||||||||||
(*) We did not record earnings for any of the years ended December 31, 2012, 2013, 2014 or 2015 or the six months ended June 30, 2016. Accordingly, our earnings were insufficient to cover fixed charges for such periods and we are unable to disclose a ratio of earnings to fixed charges for such periods. The dollar amount of the deficiency in earnings available for fixed charges for the years ended December 31, 2012, 2013, 2014 and 2015 and the six months ended June 30, 2016 was $3,425,840, $2,095,831, $2,473,465, $8,787,771 and $7,267,922, respectively.
We cannot assure you that we will not receive any proceeds in connection with securities which may be offered pursuant to this prospectus. Unless otherwise indicated inof the applicable prospectus supplement, we intend to use any net proceeds from the sale of securities undershares of our common stock in this offering by the selling stockholders. The selling stockholders will receive all of the proceeds from this offering.
A portion of the shares covered by this prospectus are issuable upon exercise of the Warrants to purchase shares of our common stock. Pursuant to conditions set forth in the warrants, the warrants are exercisable under certain circumstances on a cashless basis, and should a selling stockholder elect to exercise on a cashless basis we will not receive any proceeds from the sale of common stock issued upon the cashless exercise of the warrant. The holders of the Warrants are not obligated to exercise their Warrants, and we cannot predict whether holders of the Warrants will choose to exercise all or any of their Warrants or if they will do so for cash or on a cashless basis. However, if all of the Warrants were exercised for cash, we would receive gross proceeds of approximately $3.0 million. We currently intend to use such proceeds, if any, to fund operations, including our operationsongoing Phase 3 clinical trial for RP-G28 through its completion and dissemination of top-line results, and for other general corporate purposes, including, but not limited to, our internal research and development programs and the development of new programs, general working capital and possible future acquisitions. general corporate purposes.
We have not determinedagreed to pay all costs, expenses and fees relating to the amounts we plan to spend on anyregistration of the areas listed above shares of our common stock covered by this prospectus. The selling stockholders will pay any brokerage commissions and/or the timing of these expenditures. As a result, our management will have broad discretion to allocate the net proceeds, if any, we receivesimilar charges incurred in connection with the sale or other disposition by them of the shares covered hereby.
The shares of common stock being offered by the selling stockholders are those issuable to the selling stockholders upon conversion of the Series B convertible preferred stock and Series C convertible preferred stock and upon exercise of the Warrants. For additional information regarding the issuances of those securities, see “Prospectus Summary—Summary of Private Placement” above. We are registering the shares of common stock in order to permit the selling stockholders to offer the shares for resale from time to time.
Except for the sale and issuance of the shares of the Series B convertible preferred stock, the Series C convertible preferred stock and the Warrants in the Private Placement and the Exchange, and except as otherwise disclosed in the footnotes below, the selling stockholders have not had any material relationship with us within the past three years. To our knowledge, none of the selling stockholders are affiliates of broker-dealers.
The table below lists the selling stockholders and other information regarding the beneficial ownership of the shares of common stock of each of the selling stockholders. The second column lists the number of shares of common stock beneficially owned by each selling stockholder, as of the Closing, assuming full conversion of the Series B convertible preferred stock and Series C convertible preferred stock and full exercise of the Warrants held by the selling stockholders on that date, without regard to any limitations on conversions or exercises. The third column lists the number of shares of common stock being offered by the selling stockholders in this prospectus.
In accordance with the terms of the Registration Rights Agreement with the selling stockholders, this prospectus generally covers the resale of (i) the shares of common stock issuable upon conversion in full of the shares of Series B convertible preferred stock issued to the selling stockholders in the Private Placement (assuming the shares of Series B convertible preferred stock are converted in full without regard to the limitation described below), (ii) the shares of common stock issuable upon conversion in full of the shares of Series C convertible preferred stock issued to certain selling stockholders in the Exchange (assuming the shares of Series C convertible preferred stock are converted in full without regard to the limitation described below), and (iii) the maximum number of shares of common stock issuable upon exercise of the Warrants issued to the selling stockholders in the Private Placement (assuming the Warrants are exercised in full without regard to the limitation described below). The fourth and fifth columns list the number of shares of common stock and percentage of our outstanding common stock to be held by the selling stockholder assuming the sale of all of the shares of common stock offered by the selling stockholders pursuant to this prospectusprospectus.
Pursuant to the Certificates of Designation of Preferences, Right and Limitations for any purpose. Pending applicationour Series B convertible preferred stock and Series C convertible preferred stock, our shares of Series B convertible preferred stock and Series C convertible preferred stock may not be converted by the selling stockholders, at their election, if such conversion would cause such selling stockholders, together with their affiliates and attribution parties, to beneficially own a number of shares of common stock that would exceed 4.99% of our then outstanding common stock following such conversion (subject to adjustment up to 9.99% upon the fulfillment of certain conditions).
Similarly, under the terms of the net proceeds as described above, weWarrants, the selling stockholders, at their election, may initially investnot exercise the net proceeds in short-term, investment-grade, interest-bearing securities or apply themWarrants to the reductionextent such exercise would cause such selling stockholders, together with their affiliates and attribution parties, to beneficially own a number of short-term indebtedness.shares of common stock which would exceed 4.99% of our then outstanding common stock following such exercise (subject to adjustment up to 9.99% upon the fulfillment of certain conditions), excluding for purposes of such determination shares of common stock issuable upon exercise of the Warrants which have not been exercised.
The number of shares in the first and second columns below does not reflect the limitations set forth in the preceding paragraphs. The selling stockholders may sell all, some or none of their shares in this offering. See “Plan of Distribution.”
| Name of Selling Stockholder | Number of Shares of Common Stock Owned Prior to Offering(1) | Maximum Number of Shares of Common Stock to be Sold Pursuant to this Prospectus(1) | Number of Shares of Common Stock Owned After Offering(2) | Percentage of Class Following the Offering(2) | ||||||||||||
| Armistice Capital Master Fund, Ltd. | 4,369,230 | (3) | 3,307,691 | 1,061,539 | 15.8 | % | ||||||||||
| Sabby Volatility Warrant Master Fund, Ltd. | 1,201,523 | (4) | 576,923 | 624,600 | 10.1 | % | ||||||||||
| Medpace, Inc. | 865,384 | (5) | 865,384 | 0 | — | |||||||||||
| Bigger Capital Fund, LP | 738,460 | (6) | 663,460 | 75,000 | 1.3 | % | ||||||||||
| District 2 Capital Fund LP | 663,460 | (7) | 663,460 | 0 | — | |||||||||||
| Alpha Capital Anstalt | 723,263 | (8) | 723,263 | 0 | — | |||||||||||
| Iroquois Capital Investment Group LLC | 317,307 | (9) | 317,307 | 0 | — | |||||||||||
| Steven G. Lampe | 288,460 | (10) | 288,460 | 0 | — | |||||||||||
| Steven Lampe and Jill Lampe JTWROS | 288,460 | (11) | 288,460 | 0 | — | |||||||||||
| Iroquois Master Fund Ltd. | 259,614 | (12) | 259,614 | 0 | — | |||||||||||
| Matthew W. Foehr | 142,580 | (13) | 115,384 | 27,196 | * | |||||||||||
| * | Less than one percent of our outstanding shares of common stock. |
| (1) | Assumes the conversion of all shares of our Series B convertible preferred stock and Series C convertible preferred stock and the exercise for cash of all of the warrants held by the selling stockholders that are currently exercisable, irrespective of limitations on conversion or exercise, as applicable. |
| (2) | Represents the number of shares of common stock that will be beneficially owned by the selling stockholder after completion of this offering based on the assumptions that (i) all of the shares of common stock registered for resale by the registration statement of which this prospectus is a part will be sold and (ii) no other shares of common stock will be acquired or sold by the selling stockholder before completion of this offering. However, the selling stockholder may sell all, part or none of its shares of common stock offered pursuant to this prospectus and may sell all, part or none of its common stock pursuant to one or more exemptions from the registration provisions of the Securities Act. Applicable percentage ownership following the offering is based on 5,734,639 shares of common stock that would be outstanding following the offering if all shares registered by this prospectus are sold in the offering. Shares of common stock that may be acquired by a selling stockholder within 60 days, pursuant to the exercise of options or warrants are deemed to be outstanding for the purpose of computing the percentage ownership of such selling stockholder, but are not deemed to be outstanding for the purpose of computing the percentage ownership of any other selling stockholder. |
| (3) | The number of shares of common stock beneficially owned by Armistice Capital Master Fund, Ltd. consists of (i) 61,539 shares of common stock, (ii) 1,538,461 shares of common stock issuable upon the conversion of shares of Series B convertible preferred stock, (iii) 1,000,000 shares of common stock issuable upon the conversion of shares of Series C convertible preferred stock, and (ii) 1,769,230 shares of common stock issuable upon the exercise of warrants (including 769,230 shares issuable upon the exercise of the Warrants purchased in the Offering). Armistice Capital, LLC is an investment manager to Armistice Capital Master Fund, Ltd. and Steven J. Boyd, the chief investment officer of Armistice Capital, LLC, may be deemed to have voting and investment power with respect to the securities held by Armistice Capital Master Fund, Ltd. The selling stockholder’s address is c/o Armistice Capital, LLC, 510 Madison Ave, 7th Floor New York, NY 10022. |
| (4) | The number of shares of common stock beneficially owned by Sabby Volatility Warrant Master Fund, Ltd. consists of (i) 149,600 shares of common stock, (ii) 384,615 shares of common stock issuable upon the conversion of shares of Series B convertible preferred stock, and (iii) 667,308 shares of common stock issuable upon the exercise of warrants (including 192,308 shares issuable upon the exercise of the Warrants purchased in the Offering). The selling stockholder has indicated that Hal Mintz has voting and investment power over the shares held by it and that Sabby Management, LLC serves as its investment manager. Mr. Mintz is the manager of Sabby Management, LLC. Each of Sabby Management, LLC and Mr. Mintz disclaim beneficial ownership over these shares except to the extent of any pecuniary interest therein. The selling stockholder’s address is c/o Sabby Management, LLC, 10 Mountainview Road, Suite 205, Upper Saddle River, NJ 07458. |
| (5) | The number of shares of common stock beneficially owned by Medpace, Inc. consists of (i) 576,923 shares of common stock issuable upon the conversion of shares of Series B convertible preferred stock and (ii) 288,461 shares of common stock issuable upon the exercise of the Warrants. Medpace, Inc., a clinical research organization, provides certain services to us related to the management and execution of our clinical trials related to RP-628. The selling stockholder’s address is 5375 Medpace Way, Cincinnati, Ohio 45227. |
| (6) | The number of shares of common stock beneficially owned by Bigger Capital Fund, LP consists of (i) 442,307 shares of common stock issuable upon the conversion of shares of Series B convertible preferred stock and (ii) 296,153 shares of common stock issuable upon the exercise of warrants (including 221,153 shares of common stock issuable upon the exercise of the Warrants purchased in the Offering). The selling stockholder has indicated that Bigger Capital GP, LLC, the general partner of Bigger Capital Fund, LP, and Michael Bigger, the managing member of Bigger Capital GP, LLC, each has voting and investment power over the shares held by it. The selling stockholder’s address is 159 Jennings Road, Cold Spring Harbor, New York 11724. |
| (7) | The number of shares of common stock beneficially owned by District 2 Capital Fund LP consists of (i) 442,307 shares of common stock issuable upon the conversion of shares of Series B convertible preferred stock and (ii) 221,153 shares of common stock issuable upon the exercise of the Warrants. The selling stockholder has indicated that District 2 GP LLC, the general partner of District 2 Capital LP, and Michael Bigger, the managing member of District 2 Capital Fund LP, each has voting and investment power over the shares held by it. The selling stockholder’s address is 175 W. Carver St., Huntington, New York 11743. |
| (8) | The number of shares of common stock beneficially owned by Alpha Capital Anstalt consists of (i) 384,615 shares of common stock issuable upon the conversion of shares of Series B convertible preferred stock, (ii) 146,341 shares of common stock issuable upon the conversion of shares of Series C convertible preferred stock, and (iii) 192,307 shares of common stock issuable upon the exercise of the Warrants. The selling stockholder has indicated that Konrad Ackerman has voting and investment power over the shares held by it. The selling stockholder’s address is c/o LH Financial Services Corp., 510 Madison Avenue, Suite 1400, New York, New York 10022. |
| (9) | The number of shares of common stock beneficially owned by Iroquois Capital Investment Group LLC consists of (i) 211,538 shares of common stock issuable upon the conversion of shares of Series B convertible preferred stock and (ii) 105,769 shares of common stock issuable upon the exercise of the Warrants. The selling stockholder’s address is 205 East 42nd Street, 20th Floor, New York, New York 10017. |
| (10) | The number of shares of common stock beneficially owned by Steven G. Lampe consists of (i) 192,307 shares of common stock issuable upon the conversion of shares of Series B convertible preferred stock and (ii) 96,153 shares of common stock issuable upon the exercise of the Warrants. This number does not include the 288,460 shares described in footnote 11, of which the selling stockholder is also a beneficial owner. The selling stockholder’s address is Lampe Conway & Co. LLC, 680 Fifth Avenue, 12th Floor, New York, New York 10019. |
| (11) | The number of shares of common stock beneficially owned by Steven Lampe and Jill Lampe JTWROS consists of (i) 192,307 shares of common stock issuable upon the conversion of shares of Series B convertible preferred stock and (ii) 96,153 shares of common stock issuable upon the exercise of the Warrants. This number does not include the 288,460 shares described in footnote 10, of which Steven Lampe is also a beneficial owner. The selling stockholders’ address is Lampe Conway & Co. LLC, 680 Fifth Avenue, 12th Floor, New York, New York 10019. |
| (12) | The number of shares of common stock beneficially owned by Iroquois Master Fund Ltd. consists of (i) 173,076 shares of common stock issuable upon the conversion of shares of Series B convertible preferred stock and (ii) 86,538 shares of common stock issuable upon the exercise of the Warrants. The selling stockholder’s address is 205 East 42nd Street, 20thFloor, New York, New York 10017. |
| (13) | The number of shares of common stock beneficially owned by Matthew W. Foehr consists of (i) 27,196 shares of common stock (including 3,945 shares of common stock issuable upon the exercise of stock options held by the selling stockholder that are currently exercisable or exercisable within 60 days), (ii) 76,923 shares of common stock issuable upon the conversion of shares of Series B convertible preferred stock, and (iii) 38,461 shares of common stock issuable upon the exercise of the Warrants. Mr. Foehr serves as director on our board of directors. The selling stockholder’s address is c/o Ritter Pharmaceuticals, Inc., 1880 Century Park East, #1000, Los Angeles, California 90067. |
General PlanEach selling stockholder of Distribution
Wethe securities and any of their pledgees, assignees and successors-in-interest may, offer securities under this prospectus from time to time, pursuant to underwritten public offerings, negotiated transactions, block tradessell any or a combinationall of these methods. We may selltheir securities covered hereby on the principal trading market or any other stock exchange, market or trading facility on which the securities (1) through underwritersare traded or dealers, (2) through agentsin private transactions. These sales may be at fixed or (3) directly tonegotiated prices. A selling stockholder may use any one or more purchasers, or through a combination of such methods. We may distribute the securities from time to time in one or more transactions at:following methods when selling securities:
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| ● | an exchange distribution in accordance with the rules of the applicable exchange; | |
| ● | privately negotiated transactions; | |
| ● | settlement of short sales; | |
| ● | in transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number of such securities at a stipulated price per security; | |
| ● | through the | |
| ● | a combination of any such methods of sale; or | |
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We may directly solicit offers to purchase the securities being offered by this prospectus. WeThe selling stockholders may also designate agentssell securities under Rule 144 or any other exemption from registration under the Securities Act, if available, rather than under this prospectus.
Broker-dealers engaged by the selling stockholders may arrange for other brokers-dealers to solicit offers to purchaseparticipate 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 securities, from timethe purchaser) in amounts to time. We will namebe negotiated, but, except as set forth in a prospectus supplement any underwriter or agent involvedto this Prospectus, in the offercase of an agency transaction not in excess of a customary brokerage commission in compliance with FINRA Rule 2440; and in the case of a principal transaction a markup or sale of the securities.markdown in compliance with FINRA IM-2440.
If we utilize a dealer in the sale of the securities being offered by this prospectus, we will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale.
If we utilize an underwriter in the sale of the securities being offered by this prospectus, we will execute an underwriting agreement with the underwriter at the time of sale, and we will provide the name of any underwriter in the prospectus supplement which the underwriter will use to make re-sales of the securities to the public. In connection with the sale of the securities we, or interests therein, the purchasersselling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the securities for whom the underwriter may act as agent, may compensate the underwriter in the formcourse of underwriting discountshedging the positions they assume. The selling stockholders may also sell securities short and deliver these securities to close out their short positions, or commissions. The underwriter may sellloan or pledge the securities to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or through dealers, andother transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the underwriterdelivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution may compensate those dealers in the form of discounts, concessionsresell pursuant to this prospectus (as supplemented or commissions.amended to reflect such transaction).
With respect to underwritten public offerings, negotiated transactionsThe selling stockholders and block trades, we will provide in the applicable prospectus supplement information regarding any compensation we pay to underwriters, dealersbroker-dealers or agents that are involved in connection with the offering of the securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers. Underwriters, dealers and agents participating in the distribution ofselling the securities may be deemed to be underwriters“underwriters” within the meaning of the Securities Act of 1933, as amended, or the Securities Act, andin connection with such sales. In such event, any discounts and commissions received by themsuch broker-dealers or agents and any profit realized by them on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Each selling stockholder has informed the Company that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the securities.
The Company is required to pay certain fees and commissions. We may enter into agreementsexpenses incurred by the Company incident to the registration of the securities. The Company has agreed to indemnify underwriters, dealersthe selling stockholders against certain losses, claims, damages and agents against civil liabilities, including liabilities under the Securities Act, or to contribute to payments they may be required to make in respect thereof.Act.
If so indicatedWe agreed to keep this prospectus effective until the earlier of (i) the date on which the securities may be resold by the selling stockholders without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar effect or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered or qualified for sale in the applicable prospectus supplement, we will authorize underwritersstate or other persons acting as our agents to solicit offers by certain institutions to purchase securitiesan exemption from us pursuant to delayed delivery contracts providing for paymentthe registration or qualification requirement is available and delivery onis complied with.
Under applicable rules and regulations under the date statedExchange Act, any person engaged in the prospectus supplement. Each contractdistribution of the resale securities may not simultaneously engage in market making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the selling stockholders will be for an amount not less than, and the aggregate amount of securities sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in the prospectus supplement. Institutions with whom the contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions, but shall in all cases be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the common stock by the selling stockholders or any other person. We will make copies of this prospectus available to the selling stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).
The following description of our approval. Delayed delivery contracts willcapital stock is not be subjectcomplete and may not contain all the information you should consider before investing in our capital stock. This description is summarized from, and qualified in its entirety by reference to, any conditions except that:our Amended and Restated Certificate of Incorporation, the Certificates of Designation of Preferences, Right and Limitations for our Series A convertible preferred stock, Series B convertible preferred stock and Series C convertible preferred stock and our Amended and Restated Bylaws, which have been publicly filed with the SEC. See the sections of this prospectus entitled “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”
Our authorized capital stock consists of:
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Shares of our common stock sold pursuantIn addition to the descriptions set forth below, please refer to our other publicly filed documents incorporated herein by reference, which describe our other outstanding warrants, registration statement of which this prospectus is a part will be authorized for quotationrights, equity incentive plans and trading on the NASDAQ Capital Market. The applicable prospectus supplement will contain information, where applicable, as to any other listing, if any, on the NASDAQ Capital Market or any securities market or other securities exchange of the securities covered by the prospectus supplement. We can make no assurance as to the liquidity of or the existence of trading markets for any of the securities.
In order to facilitate the offering of the securities, certain persons participating in the offering may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities, which involve the sale by persons participating in the offering of more securities than we sold to them. In these circumstances, these persons would cover such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option. In addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing the applicable security in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if the securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
In compliance with the guidelines of the Financial Industry Regulatory Authority, Inc., or FINRA, the maximum consideration or discount to be received by any FINRA member or independent broker dealer may not exceed 8% of the aggregate amount of the securities offered pursuant to this prospectus and any applicable prospectus supplement.
The underwriters, dealers and agents may engage in other transactions with us, or perform other services for us, in the ordinary course of their business.
DESCRIPTION OF CAPITAL STOCKCommon Stock
General
Our authorized capital stock consistsAs of 30,000,000 shares, all with a par value of $0.001 per share, 25,000,000 of which are designated as common stock and 5,000,000 of which are designated as preferred stock.
The following description of our capital stock and certain provisions of our amended and restated certificate of incorporation and amended and restated bylaws are summaries and are qualified by reference to our amended and restated certificate of incorporation and our amended and restated bylaws.
All share numbers have been adjusted to reflect the 1-for-7.15 reverse stock split of our common stock. Preferred share issuances referred to below are as of their date of issuance. The preferred stock described below converted intoNovember 20, 2018, there were 5,734,639 shares of our common stock on a 7.15-for-1 basis prior to the closing of our initial public offering.
As of August 5, 2016, we had 8,584,661 shares of our common stock outstanding and zero shares of preferred stock outstanding. As of August 5, 2016, we also had outstanding options to acquire 2,193,877 shares of our common stock, having a weighted-average exercise price of $6.44 per share, and warrants to purchase an aggregate of 578,321 shares of our common stock.
Common Stock
Pursuant to the terms of our amendedAmended and restated certificateRestated Certificate of incorporation,Incorporation, the holders of common stock are entitled to one vote per share on all matters to be voted upon by the stockholders, except on matters relating solely to terms of preferred stock. Subject to preferences that may be applicable to any outstanding preferred stock, the holders of common stock will be entitled to receive ratably such dividends, if any, as may be declared from time to time by the board of directors out of funds legally available therefor. See “Dividend Policy.” In the event of our liquidation, dissolution or winding up, the holders of our common stock will be entitled to share ratably in all assets remaining after payment of liabilities, subject to prior distribution rights of preferred stock, if any, then outstanding. The holders of our common stock will have no preemptive or conversion rights or other subscription rights. There will be no redemption or sinking fund provisions applicable to our common stock.
WarrantsSeries A Convertible Preferred Stock
In December 2014, we issued an aggregateThe rights of 2,369,228the Series A convertible preferred stock are set forth in the Certificate of Designation of Preferences, Right and Limitations. A total of 9,500 shares of Series CA convertible preferred stock are authorized for issuance under the Certificate of Designation of Preferences, Right and warrants, orLimitations, and a total of 4,080 shares of Series A convertible preferred stock were outstanding as of November 20, 2018. The shares of Series A convertible preferred stock have a stated value of $1,000 per share and have a conversion price of $4.00 per share (subject to customary adjustment in the 2014 Warrants,event of future stock dividends and stock splits).
Rank.The Series A convertible preferred stock rank on parity to purchaseour common stock.
Conversion.Each share of Series A convertible preferred stock is convertible into shares of our common stock (subject to customary adjustment in the event of future stock dividends and stock splits) at any time at the option of the holder at a likeconversion price of $4.00 (subject to customary adjustment in the event of future stock dividends and stock splits). Holders of Series A convertible preferred stock will be prohibited from converting Series A convertible preferred stock into shares of our common stock if, as a result of such conversion, the holder, together with its affiliates, would own more than 4.99% of the total number of shares of our common stock then issued and outstanding.
Liquidation Preference. In the event of our liquidation, dissolution or winding-up, holders of Series A convertible preferred stock will be entitled to receive the same amount that a holder of our common stock would receive if the Series A convertible preferred stock were fully converted into shares of our common stock at the conversion price (disregarding for such purposes any conversion limitations) which amounts shall be paidpari passu with all holders of common stock.
Voting Rights. Shares of Series A convertible preferred stock generally have no voting rights, except as required by law and except that the affirmative vote of the holders of a majority of the then outstanding shares of Series A convertible preferred stock is required to, (a) alter or change adversely the powers, preferences or rights given to the Series A convertible preferred stock, (b) amend our certificate of incorporation or other charter documents in any manner that materially adversely affects any rights of the holders, (c) increase the number of authorized shares of Series A convertible preferred stock, or (d) enter into any agreement with respect to any of the foregoing.
Dividends.Shares of Series A convertible preferred stock are not entitled to receive any dividends, unless and until specifically declared by our board of directors. The holders of the Series A convertible preferred stock participate, on an as-if-converted-to-common stock basis, in any dividends to the holders of common stock.
Redemption.We are not obligated to redeem or repurchase any shares of Series A convertible preferred stock. Shares of Series A convertible preferred stock are not otherwise entitled to any redemption rights or mandatory sinking fund or analogous fund provisions.
Exchange Listing. The Series A convertible preferred stock is not listed on any national securities exchange or other nationally recognized trading system.
Series B Convertible Preferred Stock
The rights of the Series B convertible preferred stock are set forth in the Certificate of Designation of Preferences, Right and Limitations. A total of 6,000 shares of Series B convertible preferred stock are authorized for issuance under the Certificate of Designation of Preferences, Right and Limitations, and a total of 6,000 shares of Series B convertible preferred stock were outstanding as of November 20, 2018. The shares of Series B convertible preferred stock have a stated value of $1,000 per share and have a conversion price of $1.30 per share (subject to customary adjustment in the event of future stock dividends and stock splits).
Rank.The Series B convertible preferred stock rank on parity to our common stock.
Conversion.Each share of Series B convertible preferred stock is convertible into shares of our common stock (subject to adjustment as provided in the related Certificate of Designation of Preferences, Rights and Limitations) at any time at the option of the holder at a conversion price of $1.30 (subject to customary adjustment in the event of future stock dividends and stock splits). Holders of Series B convertible preferred stock will be prohibited from converting Series B convertible preferred stock into shares of our common stock if, as a result of such conversion, the holder, together with its affiliates, would own more than 4.99% of the total number of shares of our common stock then issued and outstanding.
Liquidation Preference. In the event of our liquidation, dissolution or winding-up, holders of Series B convertible preferred stock will be entitled to receive the same amount that a holder of our common stock would receive if the Series B convertible preferred stock were fully converted into shares of our common stock at the conversion price (disregarding for such purposes any conversion limitations) which amounts shall be paidpari passu with all holders of common stock.
Voting Rights. Shares of Series B convertible preferred stock generally have no voting rights, except as required by law and except that the affirmative vote of the holders of a majority of the then outstanding shares of Series B convertible preferred stock is required to, (a) alter or change adversely the powers, preferences or rights given to the Series B convertible preferred stock, (b) amend our certificate of incorporation or other charter documents in any manner that materially adversely affects any rights of the holders, (c) increase the number of authorized shares of Series B convertible preferred stock, or (d) enter into any agreement with respect to any of the foregoing.
Dividends.Shares of Series B convertible preferred stock are not entitled to receive any dividends, unless and until specifically declared by our board of directors. The holders of the Series B convertible preferred stock participate, on an as-if-converted-to-common stock basis, in any dividends to the holders of common stock.
Redemption.We are not obligated to redeem or repurchase any shares of Series B convertible preferred stock. Shares of Series B convertible preferred stock are not otherwise entitled to any redemption rights or mandatory sinking fund or analogous fund provisions.
Exchange Listing. The Series B convertible preferred stock is not listed on any national securities exchange or other nationally recognized trading system.
Series C Convertible Preferred Stock
The rights of the Series C convertible preferred stock are set forth in the Certificate of Designation of Preferences, Right and Limitations. A total of 1,880 shares of Series C convertible preferred stock are authorized for issuance under the Certificate of Designation of Preferences, Right and Limitations, and a total of 1,880 shares of Series C convertible preferred stock were outstanding as of November 20, 2018. The shares of Series C convertible preferred stock have a stated value of $1,000 per share and have a conversion price of $1.64 per share (subject to customary adjustment in the event of future stock dividends and stock splits).
Rank.The Series C convertible preferred stock rank on parity to our common stock.
Conversion.Each share of Series C convertible preferred stock is convertible into shares of our common stock (subject to adjustment as provided in the related Certificate of Designation of Preferences, Rights and Limitations) at any time at the option of the holder at a conversion price of $1.64 (subject to customary adjustment in the event of future stock dividends and stock splits). Holders of Series C convertible preferred stock will be prohibited from converting Series C convertible preferred stock into shares of our common stock if, as a result of such conversion, the holder, together with its affiliates, would own more than 4.99% of the total number of shares of our common stock then issued and outstanding.
Liquidation Preference. In the event of our liquidation, dissolution or winding-up, holders of Series C convertible preferred stock will be entitled to receive the same amount that a holder of our common stock would receive if the Series C convertible preferred stock were fully converted into shares of our common stock at the conversion price (disregarding for such purposes any conversion limitations) which amounts shall be paidpari passu with all holders of common stock.
Voting Rights. Shares of Series C convertible preferred stock generally have no voting rights, except as required by law and except that the affirmative vote of the holders of a majority of the then outstanding shares of Series C convertible preferred stock is required to, (a) alter or change adversely the powers, preferences or rights given to the Series C convertible preferred stock, (b) amend our certificate of incorporation or other charter documents in any manner that materially adversely affects any rights of the holders, (c) increase the number of authorized shares of Series C convertible preferred stock, or (d) enter into any agreement with respect to any of the foregoing.
Dividends.Shares of Series C convertible preferred stock are not entitled to receive any dividends, unless and until specifically declared by our board of directors. The holders of the Series C convertible preferred stock participate, on an as-if-converted-to-common stock basis, in any dividends to the holders of common stock.
Redemption.We are not obligated to redeem or repurchase any shares of Series C convertible preferred stock. Shares of Series C convertible preferred stock are not otherwise entitled to any redemption rights or mandatory sinking fund or analogous fund provisions.
Exchange Listing. The Series C convertible preferred stock is not listed on any national securities exchange or other nationally recognized trading system.
Warrants
Prior to the Offering, there were warrants to purchase an aggregate gross proceeds of $3,081,893. All6,105,332 shares of the Company’s common stock outstanding. These warrants are all vested and exercisable, have exercise prices ranging from $4.40 to $93.00 per share, with a weighted average exercise price of $5.20 (subject to adjustment), and expire at various dates through October 2022.
Warrants to purchase an additional 2,307,686 shares of our common stock were issued to the selling stockholders in the Offering. These Warrants have an exercise price per share of $1.30 (subject to customary adjustment in the event of future stock dividends and stock splits).
Registration Rights Agreement
As part of the Private Placement, we entered into the Registration Rights Agreement, pursuant to which we agreed to file this registration statement to register for resale the shares of common stock issuable upon conversion of the shares of Series CB convertible preferred stock were converted into 331,358 shares of our common stock prior to the closing of the initial public offering. Each 2014 Warrant has a term of seven years and provides for the holder to purchase each share of our common stock covered thereby at a purchase price of $9.30 per share of common stock.
In connection with the Series C Financing, all of the 2014 Notes were converted into shares of Series C preferred stock. A total of $535,000 unpaid principal plus accrued interest of $18,342 on the convertible notes converted into 567,529 shares of Series C preferred stock which were later converted into 79,374 shares of our common stock prior toand upon the closing of our initial public offering, and 79,374 2014 Warrants. A total of $70,000 unpaid principal plus accrued interest of $537 on a note payable was extinguished and converted into 54,259 shares of Series C preferred stock, which were later converted into 7,589 shares of our common stock prior to the closing of our initial public offering and 7,589 2014 Warrants.
Warrants to Representative in Initial Public Offering
In connection with our initial public offering, we issued to the representative of the underwriters warrants to purchase up to a total of 160,000 shares of common stock. The warrants are exercisable at any time, and from time to time, in whole or in part, during the four-year period commencing one year from the effective date of our initial public offering, and ending on the date that is five years from the effective date of the offering in compliance with FINRA Rule 5110(f)(2)(G)(i). The warrants are exercisable at a per share price equal to $6.25 per share. The warrants provide for registration rights upon request, in certain cases. The demand registration right provided will not be greater than five years from the effective date of the offering in compliance with FINRA Rule 5110(f)(2)(G)(iv). The piggyback registration right provided will not be greater than seven years from the effective date of the offering in compliance with FINRA Rule 5110(f)(2)(G)(v). We will bear all fees and expenses attendant to registering the securities issuable on exercise of the warrants otherWarrants issued in the Private Placement, within 30 days following the Closing. We are required to use our reasonable best efforts to cause this registration statement to be declared effective under the Securities Act, as soon as practicable, but in no event later than underwriting commissions incurred and payable by60 days after the holders. The exercise price and number of shares issuable upon exercise of the warrants may be adjusted in certain circumstances includingClosing (or 90 days in the event of a stock dividendfull review of the registration statement by the SEC). We agreed to keep this or our recapitalization, reorganization, mergerany subsequent registration statement effective until all registrable securities may be sold pursuant to Rule 144 under the Securities Act, without the need for current public information or consolidation. However,other restriction. We also agreed, among other things, to indemnify the warrant exercise price or underlying shares will not be adjusted for issuances of shares of common stock at a price belowselling stockholders under the warrant exercise price.
Preferred Stock
Pursuant to the terms of our amended and restated certificate of incorporation, our board of directors has the authority to issue preferred stock in one or more classes or seriesregistration statements from certain liabilities and to fixpay all fees and expenses incident to our performance of or compliance with the designations, powers, preferences and rights, and the qualifications, limitations or restrictions thereof, including dividend rights, conversion right, voting rights, terms of redemption, liquidation preferences and the number of shares constituting any class or series, without further vote or action by the stockholders. Although we have no present plans to issue any shares of preferred stock, the issuance of shares of preferred stock, or the issuance of rights to purchase such shares, could decrease the amount of earnings and assets available for distribution to the holders of common stock, could adversely affect the rights and powers, including voting rights, of the common stock, and could have the effect of delaying, deterring or preventing a change of control of us or an unsolicited acquisition proposal.
Registration Rights
On September 15, 2008, we entered into an Investors’ Rights Agreement with certain holders of our preferred stock. Such Investors’ Rights Agreement was amended and restated on November 17, 2010. The Amended and Restated Investors’ Rights Agreement was amended on each of January 13, 2011, February 6, 2012, December 4, 2014 and June 9, 2015. The Amended and Restated Investors’ Rights Agreement, as amended, provides such holders with certain demand and piggyback registration rights with respect to shares of our common stock into which the shares of our preferred stock are convertible. Agreement.
Aspire Capital Registration Rights
On December 18, 2015, we entered intoWe are a Registration Rights Agreementparty to a registration rights agreement with Aspire Capital Fund, LLC, (“Aspire Capital”), in which we agreed to file one or more registration statements as permissible and necessary to register under the Securities Act, the sale of the shares of our common stock that have been and may be issued to Aspire Capital Fund, LLC, under the common stock purchase agreement,that certain Common Stock Purchase Agreement, dated December 18, 2015,May 2, 2017, by and between us and Aspire Capital (the “Purchase Agreement”). A registration statement (No. 333-208818) registering the sale of shares of our common stock that have been and may be issued to Aspire Capital under the Purchase Agreement was declared effective by the SEC on February 11, 2016.Fund, LLC.
Anti-Takeover Effects of Delaware Law and Our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws
The provisions of Delaware law and our amendedAmended and restated certificateRestated Certificate of incorporationIncorporation and amendedAmended and restated bylaws,Restated Bylaws, could discourage or make it more difficult to accomplish a proxy contest or other change in our management or the acquisition of control by a holder of a substantial amount of our voting stock. It is possible that these provisions could make it more difficult to accomplish, or could deter, transactions that stockholders may otherwise consider to be in their best interests or in our best interests. These provisions are intended to enhance the likelihood of continuity and stability in the composition of our board of directors and in the policies formulated by the board of directors and to discourage certain types of transactions that may involve an actual or threatened change of our control. These provisions are designed to reduce our vulnerability to an unsolicited acquisition proposal and to discourage certain tactics that may be used in proxy fights. Such provisions also may have the effect of preventing changes in our management.
Delaware Statutory Business Combinations Provision. We are subject to the anti-takeover provisions of Section 203 of the Delaware General Corporation Law, or the DGCL. Section 203 prohibits a publicly-held Delaware corporation from engaging in a “business combination”‘business combination’ with an “interested stockholder”‘interested stockholder’ for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business combination is, or the transaction in which the person became an interested stockholder was, approved in a prescribed manner or another prescribed exception applies. For purposes of Section 203, a “business combination”‘business combination’ is defined broadly to include a merger, asset sale or other transaction resulting in a financial benefit to the interested stockholder, and, subject to certain exceptions, an “interested stockholder”‘interested stockholder’ is a person who, together with his or her affiliates and associates, owns, or within three years prior, did own, 15% or more of the corporation’s voting stock.
Election and Removal of Directors. Except as may otherwise be provided by the DGCL, any director or the entire board of directors may be removed, with or without cause, at an annual meeting or a special meeting called for that purpose, by the affirmative vote of the majority of the votes cast by the shares of our capital stock present in person or represented by proxy at such meeting and entitled to vote thereon, provided a quorum is present. Vacancies on our board of directors resulting from the removal of directors and newly created directorships resulting from any increase in the number of directors may be filled solely by the affirmative vote of a majority of the remaining directors then in office (although less than a quorum) or by the sole remaining director. This system of electing and removing directors may discourage a third party from making a tender offer or otherwise attempting to obtain control of us, because it generally makes it more difficult for stockholders to replace a majority of our directors. Our amended and restated certificate of incorporation and amended and restated bylaws do not provide for cumulative voting in the election of directors.
Advance Notice Provisions for Stockholder Proposals and Stockholder Nominations of Directors. Our amendedAmended and restated bylawsRestated Bylaws provide that, for nominations to the board of directors or for other business to be properly brought by a stockholder before a meeting of stockholders, the stockholder must first have given timely notice of the proposal in writing to our Secretary. For an annual meeting, a stockholder’s notice generally must be delivered not less than 90 days or more than 120 days prior to the anniversary of the previous year’s annual meeting.
Special Meetings of Stockholders. Special meetings of the stockholders may be called at any time only by the board of directors, the Chairman of the board of directors, the Chief Executive Officer or the President, subject to the rights of the holders of any series of preferred stock then outstanding.
Blank-Check Preferred Stock. Our board of directors iswill be authorized to issue, without stockholder approval, preferred stock, the rights of which will be determined at the discretion of the board of directors and that, if issued, could operate as a “poison pill”‘poison pill’ to dilute the stock ownership of a potential hostile acquirer to prevent an acquisition that our board of directors does not approve.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Corporate Stock Transfer, Inc.
Stock Market Listing
Our common stock is listed on The NASDAQ Capital Market under the symbol “RTTR.”
DESCRIPTION OF DEBT SECURITIESLEGAL MATTERS
The following description, together with the additional information we include in any applicable prospectus supplements, summarizes the material terms and provisionsvalidity of the debt securities that we may offer under this prospectus. While the terms we have summarized below will apply generally to any future debt securities we may offer pursuant toshares offered by this prospectus we will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement. If we so indicate in a prospectus supplement, the terms of any debt securities offered under such prospectus supplement may differ from the terms we describe below, and to the extent the terms set forth in a prospectus supplement differ from the terms described below, the terms set forth in the prospectus supplement shall control.
We may sell from time to time, in one or more offerings under this prospectus, debt securities, which may be senior or subordinated. We will issue any such senior debt securities under a senior indenture that we will enter into with a trustee to be named in the senior indenture. We will issue any such subordinated debt securities under a subordinated indenture, which we will enter into with a trustee to be named in the subordinated indenture. We use the term “indentures” to refer to either the senior indenture or the subordinated indenture, as applicable. The indentures will be qualified under the Trust Indenture Act of 1939, as in effect on the date of the indenture. We use the term “debenture trustee” to refer to either the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable.
The following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures are subject to, and qualified in their entiretypassed upon by reference to, all the provisions of the indenture applicable to a particular series of debt securities.
General
Each indenture will provide that debt securities may be issued from time to time in one or more series and may be denominated and payable in foreign currencies or units based on or relating to foreign currencies. Neither indenture will limit the amount of debt securities that may be issued thereunder, and each indenture will provide that the specific terms of any series of debt securities shall be set forth in, or determined pursuant to, an authorizing resolution and/or a supplemental indenture, if any, relating to such series.
We will describe in each prospectus supplement the following terms relating to a series of debt securities:
We may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations and other special considerations applicable to any of these debt securities in the applicable prospectus supplement.
Conversion or Exchange Rights
We will set forth in the prospectus supplement the terms, if any, on which a series of debt securities may be convertible into or exchangeable for our common stock or our other securities. We will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Information Concerning the Debenture Trustee
The debenture trustee, other than during the occurrence and continuance of an event of default under the applicable indenture, undertakes to perform only those duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the debenture trustee under such indenture must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the debenture trustee is under no obligation to exercise any of the powers given it by the indentures at the request of any holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest.
We will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check which we will mail to the holder. Unless we otherwise indicate in a prospectus supplement, we will designate the corporate trust office of the debenture trustee in the City of New York as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the debenture trustee for the payment of the principal of or any premium or interest on any debt securities which remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the security thereafter may look only to us for payment thereof.
Governing Law
The indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
Subordination of Subordinated Debt Securities
Our obligations pursuant to any subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment to certain of our other indebtedness to the extent described in a prospectus supplement. The subordinated indenture does not limit the amount of senior indebtedness we may incur. It also does not limit us from issuing any other secured or unsecured debt.
General
We may issue warrants to our stockholders to purchase shares of our common stock, preferred stock and/or debt securities. We may offer warrants separately or together with one or more additional warrants, debt securities, common stock, preferred stock, rights or purchase contracts, or any combination of those securities in the form of units, as described in the applicable prospectus supplement. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent. The warrant agent will act solely as our agent in connection with the certificates relating to the rights of the series of certificates and will not assume any obligation or relationship of agency or trust for or with any holders of rights certificates or beneficial owners of rights. The following description sets forth certain general terms and provisions of the rights to which any prospectus supplement may relate. The particular terms of the warrant to which any prospectus supplement may relate and the extent, if any, to which the general provisions may apply to the rights so offered will be described in the applicable prospectus supplement. To the extent that any particular terms of the warrant, warrant agreement or warrant certificates described in a prospectus supplement differ from any of the terms described below, then the terms described below will be deemed to have been superseded by that prospectus supplement. We encourage you to read the applicable warrant agreement and warrant certificate for additional information before you decide whether to purchase any of our rights.
We will provide in a prospectus supplement the following terms of the warrants being issued:
Each warrant will entitle the holder of rights to purchase for cash the principal amount of shares of common stock or other securities at the exercise price provided in the applicable prospectus supplement. Warrants may be exercised at any time up to the close of business on the expiration date for the rights provided in the applicable prospectus supplement.
Holders may exercise warrants as described in the applicable prospectus supplement. Upon receipt of payment and the warrant certificate properly completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward the shares of common stock or other securities, as applicable, purchasable upon exercise of the rights. If less than all of the warrants issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement.
Warrant Agent
The warrant agent for any warrants we offer will be set forth in the applicable prospectus supplement.
General
We may issue rights to our stockholders to purchase shares of our common stock, preferred stock, and/or debt securities described in this prospectus. We may offer rights separately or together with one or more additional rights, debt securities, common stock, warrants or purchase contracts, or any combination of those securities in the form of units, as described in the applicable prospectus supplement. Each series of rights will be issued under a separate rights agreement to be entered into between us and a bank or trust company, as rights agent. The rights agent will act solely as our agent in connection with the certificates relating to the rights of the series of certificates and will not assume any obligation or relationship of agency or trust for or with any holders of rights certificates or beneficial owners of rights. The following description sets forth certain general terms and provisions of the rights to which any prospectus supplement may relate. The particular terms of the rights to which any prospectus supplement may relate and the extent, if any, to which the general provisions may apply to the rights so offered will be described in the applicable prospectus supplement. To the extent that any particular terms of the rights, rights agreement or rights certificates described in a prospectus supplement differ from any of the terms described below, then the terms described below will be deemed to have been superseded by that prospectus supplement. We encourage you to read the applicable rights agreement and rights certificate for additional information before you decide whether to purchase any of our rights.
We will provide in a prospectus supplement the following terms of the rights being issued:
Each right will entitle the holder of rights to purchase for cash the principal amount of shares of common stock or other securities at the exercise price provided in the applicable prospectus supplement. Rights may be exercised at any time up to the close of business on the expiration date for the rights provided in the applicable prospectus supplement.
Holders may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward the shares of common stock or other securities, as applicable, purchasable upon exercise of the rights. If less than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement.
Rights Agent
The rights agent for any rights we offer will be set forth in the applicable prospectus supplement.
DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts, including contracts obligating holders to purchase from us, and for us to sell to holders, a specific or variable number of our debt securities, shares of common stock, preferred stock, warrants or rights, or securities of an entity unaffiliated with us, or any combination of the above, as described in the applicable prospectus supplement. Alternatively, the purchase contracts may obligate us to purchase from holders, and obligate holders to sell to us, a specific or variable number of our debt securities, shares of common stock, warrants, rights or other property, or any combination of the above. The price of the securities or other property subject to the purchase contracts may be fixed at the time the purchase contracts are issued or may be determined by reference to a specific formula described in the purchase contracts. We may issue purchase contracts separately or as a part of units each consisting of a purchase contract and one or more of our other securities described in this prospectus or securities of third parties, including U.S. Treasury securities, securing the holder’s obligations under the purchase contract. The purchase contracts may require us to make periodic payments to holders or vice versa and the payments may be unsecured or pre-funded on some basis. The purchase contracts may require holders to secure the holder’s obligations in a manner specified in the applicable prospectus supplement.
The applicable prospectus supplement will describe the terms of any purchase contracts in respect of which this prospectus is being delivered, including, to the extent applicable, the following:
The preceding description sets forth certain general terms and provisions of the purchase contracts to which any prospectus supplement may relate. The particular terms of the purchase contracts to which any prospectus supplement may relate and the extent, if any, to which the general provisions may apply to the purchase contracts so offered will be described in the applicable prospectus supplement. To the extent that any particular terms of the purchase contracts described in a prospectus supplement differ from any of the terms described above, then the terms described above will be deemed to have been superseded by that prospectus supplement. We encourage you to read the applicable purchase contract for additional information before you decide whether to purchase any of our purchase contracts.
The following description, together with the additional information that we include in any applicable prospectus supplements summarizes the material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized below will apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below.
We will incorporate by reference from reports that we file with the SEC, the form of unit agreement that describes the terms of the series of units we are offering, and any supplemental agreements, before the issuance of the related series of units. The following summaries of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the particular series of units that we may offer under this prospectus, as well as any related free writing prospectuses and the complete unit agreement and any supplemental agreements that contain the terms of the units.
General
We may issue units consisting of common stock, preferred stock, one or more debt securities, warrants, rights or purchase contacts for the purchase of common stock, preferred stock and/or debt securities in one or more series, in any combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each security included in the unit. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We will describe in the applicable prospectus supplement the terms of the series of units being offered, including:
The provisions described in this section, as well as those set forth in any prospectus supplement or as described under “Description of Capital Stock,” “Description of Debt Securities,” “Description of Warrants,” “Description of Rights” and “Description of Purchase Contracts” will apply to each unit, as applicable, and to any common stock, debt security, warrant, right or purchase contract included in each unit, as applicable.
Unit Agent
The name and address of the unit agent for any units we offer will be set forth in the applicable prospectus supplement.
Issuance in Series
We may issue units in such amounts and in such numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any security included in the unit.
Reed Smith LLP, New York, New York, will pass upon the validity of the issuance of the securities to be offered by this prospectus.York.
Mayer Hoffman McCann P.C., our independent registered public accounting firm, has audited our balance sheets as of December 31, 20152017 and 2014,2016, and the related statements of operations and comprehensive loss, changes in securities subject to redemption and shareholders’ deficitstockholders’ equity, and cash flows for each of the two years in the period ended December 31, 2015,2017, as set forth in their report, which report expresses an unqualified opinion and includes an explanatory paragraph relating to our ability to continue as a going concern. We have incorporated by reference our financial statements in this prospectus and in this registration statement in reliance on the report of Mayer Hoffman McCann P.C. given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a Registration Statementregistration statement on Form S-1S-3 under the Securities Act, in connection with this offering of our common stock by our selling stockholders. This Prospectus, which constitutes a part of the Registration Statement, does not contain all of the information set forth in the registration statement, some items of which are contained in exhibits to the Registration Statement as permitted by thethis prospectus forms a part. The rules and regulations of the SEC.SEC allow us to omit from this prospectus certain information included in the registration statement. For further information with respect toabout us and our common stock, wesecurities, you should refer you to the Registration Statement, includingregistration statement and the exhibits and schedules filed with the financialregistration statement. With respect to the statements and notes filed as a part of the Registration Statement. Statements contained in this prospectus concerningregarding the contents of any contractagreement or any other document, are not necessarily complete. Ifin each instance, the statement is qualified in all respects by the complete text of the agreement or document, a contract or documentcopy of which has been filed as an exhibit to the Registration Statement, please seeregistration statement.
We file reports, proxy statements and other information with the SEC under the Exchange Act. You may read and copy this information from the Public Reference Room of the contract or document that has been filed. Each statement in this prospectus relating to a contract or document filed as an exhibit is qualified in all respects by the filed exhibit. The exhibits to the Registration Statement should be referenced for the complete contents of these contracts and documents. A copy of the Registration Statement and the exhibits filed therewith may be inspected without charge at the public reference room of the SEC, located at 100 F Street, N.E., Room 1580, Washington, D.C. 20549.20549, at prescribed rates. You may obtain information on the operation of the public reference roomsPublic Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also maintains an Internet website that contains reports, proxy statements and other information about issuers, like us, that file electronically with the SEC. The address of that website iswww.sec.gov.www.sec.gov.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
We are subject to the information and reporting requirements of the Exchange Act and, in accordance with this law, we file periodic reports, proxy statements, and other information with the SEC. These periodic reports, proxy statements, and other information are available for inspection and copying at the SEC’s public reference facilities and the website of the SEC referred to above. We also maintain a website atwww.ritterpharmaceuticals.com. You may access our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act with the SEC free of charge at our website (www.ritterpharmaceutical.com) as soon as reasonably practicable after such material is electronically filed with, or furnished to, the SEC. The information contained in, or that can be accessed through, our website is not incorporated by reference into this Prospectus.
INCORPORATION OF INFORMATION BY REFERENCE
The SEC allows us to “incorporateincorporate by reference”reference into this document the information we have filed with it. This means that we file with them. Incorporation by reference allows us tocan disclose important business, financial and other information to you by referring you to those other documents.documents separately filed with the SEC. The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. This prospectus omits certain information contained in the registration statement, as permitted by the SEC. You should refer to the registration statement and any prospectus supplement filed hereafter, including the exhibits, for further information about us and the securities we may offer pursuant to this prospectus. Statements in this prospectus regarding the provisions of certain documents filed with, or incorporated by reference in, the registration statement are not necessarily complete and each statement is qualified in all respects by that reference. Copies of all or any part of the registration statement, including the documents incorporated by reference orand the exhibits, may be obtained upon payment of the prescribed rates at the offices ofSEC’s public reference room or at the SEC’s website athttp://www.sec.gov or by writing to the SEC listed above in “Where You Can Find More Information.” The documents we are incorporatingand paying a fee for the copying cost. We incorporate by reference are:the documents listed below:
| ● | our Annual Report on Form 10-K for the fiscal year ended December 31, | |
| ● | our Definitive Proxy Statement on Schedule 14A filed with the SEC on May 15, 2018; | |
| ● | our Quarterly Reports on Form 10-Q for the | |
| ● | the portions of our Current Reports on Form 8-K that are deemed “filed” with the SEC under the Exchange Act, filed with the SEC on |
| ● | the description of our common stock contained in our Registration Statement on Form 8-A filed pursuant to Section 12(b) of the Exchange Act as filed with SEC on June | |
| ● |
In addition, all documents that the Company files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act of 1934, as amended (the “Exchange Act”), subsequent to the filing ofAny statement contained in this Registration Statement and prior to the filing ofprospectus or in a post-effective amendment which indicates that all securities offered hereby have been solddocument incorporated or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents, except as to any document or portion of any document that is deemed furnished and not filed.
Pursuant to Rule 412 under the Securities Act, any statement contained in the documents incorporated or deemed to be incorporated by reference in this Registration Statement shallprospectus will be deemed to be modified superseded or replacedsuperseded for purposes of this Registration Statementprospectus to the extent that a statement contained hereinin this prospectus or in any other subsequently filed document which alsothat is incorporated or deemed to be incorporated by reference ininto this Registration Statementprospectus modifies or supersedes or replaces suchthe statement. Any such statement so modified or superseded or replaced shallwill not be deemed, except as so modified superseded or replaced,superseded, to constitute a part of this Registration Statement.prospectus.
To receive a free copy of any of the documents incorporated by reference in this prospectus (other than exhibits to the Registration Statement) call or write us at the following address:
Ritter Pharmaceuticals, Inc.
1880 Century Park East #1000
Los Angeles, CA 90067
Attention: Corporate Secretary
(310) 203-1000
Copies of these filings are also available through the “Investor” section of our website atwww.ritterpharmaceuticals.com.For other ways to obtain a copy of these filings, please refer to “Where You Can Find More Information” above.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
| Item 14. | Other Expenses of Issuance and Distribution. |
The following table sets forth an itemization of the various expenses, all of which we will pay, in connection with the issuance and distribution of the securitiescommon stock being registered. All of the amounts shown are estimated except the SEC Registration Fee.Securities and Exchange Commission registration fee:
| SEC Registration Fee | $ | 15,105 | ||
| Legal Fees and Expenses | * | |||
| Accounting Fees and Expenses | * | |||
| Miscellaneous | * | |||
| Total | $ | * |
| Securities and Exchange Commission registration fee | $ | 482 | ||
| Printing and engraving expenses | 1,000 | |||
| Legal fees and expenses | 15,000 | |||
| Accounting fees and expenses | 10,000 | |||
| Total | $ | 26,482 |
*These fees will be dependent on the type of securities offered and number of offerings and, therefore, cannot be estimated at this time. In accordance with Rule 430B under the Securities Act, additional information regarding estimated fees and expenses will be provided at the time information as to an offering is included in a prospectus supplement.
Item 15. Indemnification of Directors and Officers
| Item 15. | Indemnification of Directors and Officers. |
Our amendedAmended and restated certificateRestated Certificate of incorporationIncorporation provides that we shall indemnify, to the fullest extent authorized by the Delaware General Corporation Law, each person who is involved in any litigation or other proceeding because such person is or was a director or officer of Ritter Pharmaceuticals, Inc. or is or was serving as an officer or director of another entity at our request, against all expense, loss or liability reasonably incurred or suffered in connection therewith. Our amended and restated certificate of incorporation provides that the right to indemnification includes the right to be paid expenses incurred in defending any proceeding in advance of its final disposition, provided, however, that such advance payment will only be made upon delivery to us of an undertaking, by or on behalf of the director or officer, to repay all amounts so advanced if it is ultimately determined that such director is not entitled to indemnification. If we do not pay a proper claim for indemnification in full within 30 days after we receive a written claim for such indemnification, our certificate of incorporation and our bylaws authorize the claimant to bring an action against us and prescribe what constitutes a defense to such action.
Section 145 of the Delaware General Corporation Law permits a corporation to indemnify any director or officer of the corporation against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding brought by reason of the fact that such person is or was a director or officer of the corporation, if such person acted in good faith and in a manner that he reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, if he or she had no reason to believe his or her conduct was unlawful. In a derivative action, (i.e.(i.e., one brought by or on behalf of the corporation), indemnification may be provided only for expenses actually and reasonably incurred by any director or officer in connection with the defense or settlement of such an action or suit if such person acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be provided if such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action or suit was brought shall determine that the defendant is fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability.
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law, our certificate of incorporation eliminates the liability of a director to us or our stockholders for monetary damages for such a breach of fiduciary duty as a director, except for liabilities arising:
| ● | from any breach of the director’s duty of loyalty to us or our stockholders; | |
| ● | from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; | |
| ● | under Section 174 of the Delaware General Corporation Law; or | |
| ● | from any transaction from which the director derived an improper personal benefit. |
| II-1 |
We carry insurance policies insuring our directors and officers against certain liabilities that they may incur in their capacity as directors and officers.
In addition, we have entered into indemnification agreements with each of our current directors and executive officers. These agreements require us to indemnify these individuals to the fullest extent permitted under Delaware law against liabilities that may arise by reason of their service to us and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified. We also intend to enter into indemnification agreements with our future directors and executive officers.
| Item 16. | Exhibits |
| Incorporated by Reference | ||||||||||
| Exhibit No. | Description | Form | File No. | Exhibit | Filing Date | |||||
| 4.1 | Form of Common Stock Certificate of Ritter Pharmaceuticals, Inc. | S-1/A | 333-202924 | 4.1 | 5/22/2015 | |||||
| 4.2 | Form of Common Stock Purchase Warrant | S-1 | 333-208818 | 4.7 | 12/31/2015 | |||||
| 4.2 | Form of Representative’s Warrant Agreement | S-1/A | 333-202924 | 4.7 | 5/8/2015 | |||||
| 4.3 | Warrant Agency Agreement by and between the Registrant and Corporate Stock Transfer, Inc. and Form of Warrant Certificate | 8-K | 001-37428 | 4.1 | 10/4/2017 | |||||
| 5.1* | Opinion of Reed Smith LLP | |||||||||
| 23.1* | Consent of Mayer Hoffman McCann P.C., independent registered public accounting firm | |||||||||
| 24.1* | Power of Attorney (included on signature page) | |||||||||
| * Filed herewith | ||||||||||
Item 16. Exhibits
The exhibits to this registration statement are listed in the Exhibit Index to this registration statement, which Exhibit Index is hereby incorporated by reference.
Item 17. Undertakings
| Item 17. | Undertakings |
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:Registration Statement:
(i) To include any prospectus required by sectionSection 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or any decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
| II-2 |
provided,however, that paragraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of athe registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by sectionSection 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which thatthe prospectus relates, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof.Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to sectionSection 13(a) or sectionSection 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to sectionSection 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 andRegistrant has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, thereto duly authorized, in the City of Los Angeles, State of California, on August 11, 2016.the 21stday of November 2018.
| RITTER PHARMACEUTICALS, INC. | ||
| By: | /s/ | |
| Name: | ||
| Title: | President and Chief Executive Officer | |
KNOW ALL MEN BY THESE PRESENTS that each ofWe the undersigned directorsofficers and officersdirectors of Ritter Pharmaceuticals,Pharmaceutics, Inc., hereby appoints Michael D. Step,severally constitute and appoint Andrew J. Ritter and Ira E. Ritter,John W. Beck, and each of them acting singly, as his or herour true and lawful attorney-in-fact and agent, for him or her and in his or her name, place and stead,attorneys with full power to act alone,any of them, and to each of them singly, to sign on his or her behalffor us and in our names in the capacity set forthcapacities indicated below the registration statement on Form S-3 filed herewith and any and all amendmentspre-effective and post-effective amendments to said registration statement and supplementsany subsequent registration statement filed pursuant to this Registration Statement on Form S-8Rule 462(b) under the Securities Act of 1933, as amended, and to file each such amendment and post-effective amendment and supplements to this Registration Statement,the same with all exhibits thereto, and any and allthe other documents in connection therewith, with the Securities and Exchange Commission, hereby granting unto said attorney-in-fact and agent full power and authoritygenerally to do all such things in our name and perform anybehalf in our capacities as officers and directors to enable Ritter Pharmaceuticals, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all actsrequirements of the Securities and things requisite and necessary or appropriate to be done in and about the premises as fully to all intents and purposes as he or she might or could do in person,Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and any and all that said attorney-in-fact and agent may lawfully do or cause to be done by virtue hereof.amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.indicated below.
| Signature | Title | Date | ||
| /s/Andrew J. Ritter | President and Chief Executive Officer and Director | |||
(Principal Executive Officer) | ||||
| /s/John W. Beck | ||||
(Principal Financial and Accounting Officer) | ||||
| /s/ Ira E. Ritter | Executive Chairman, Chief Strategic Officer and Director | |||
| Ira E. Ritter | ||||
| Director | ||||
| Noah Doyle | ||||
| /s/Matthew W. Foehr | Director | |||
| Matthew W. Foehr | ||||
| /s/ Paul V. Maier | Director | |||
| Paul V. Maier | ||||
| /s/ | Director | |||
| /s/ Michael D. Step | Director | November 21, 2018 | ||
| Michael D. Step |
EXHIBIT INDEX
| Incorporated by Reference | ||||||||||
| Exhibit No. | Description | Form | File No. | Exhibit | Filing Date | |||||
| 1.1* | Form of Underwriting Agreement | |||||||||
| 4.1 | Form of Common Stock Certificate of Ritter Pharmaceuticals, Inc. | S-1/A | 333-202924 | 4.1 | 5/22/2015 | |||||
| 4.2 | Amended and Restated Investors’ Rights Agreement, dated as of November 17, 2010, by and among Ritter Pharmaceuticals, Inc. and the persons and entities named therein | S-1 | 333-202924 | 4.2 | 3/23/2015 | |||||
| 4.3 | Amendment No. 1 to the Amended and Restated Investors’ Rights Agreement, dated as of January 13, 2011, by and among Ritter Pharmaceuticals, Inc. and the persons and entities named therein | S-1 | 333-202924 | 4.3 | 3/23/2015 | |||||
| 4.4 | Amendment No. 2 to the Amended and Restated Investors’ Rights Agreement, dated as of February 6, 2012, by and among Ritter Pharmaceuticals, Inc. and the persons and entities named therein | S-1 | 333-202924 | 4.4 | 3/23/2015 | |||||
| 4.5 | Amendment No. 3 to the Amended and Restated Investors’ Rights Agreement, dated as of December 4, 2014, by and among Ritter Pharmaceuticals, Inc. and the persons and entities named therein | S-1 | 333-202924 | 4.5 | 3/23/2015 | |||||
| 4.6 | Amendment No. 4 to the Amended and Restated Investors’ Rights Agreement, by and among Ritter Pharmaceuticals, Inc. and the persons and entities named therein | S-1 | 333-208818 | 4.6 | 12/31/2015 | |||||
| 4.7 | Form of Common Stock Purchase Warrant | S-1 | 333-208818 | 4.7 | 12/31/2015 | |||||
| 4.8 | Form of Representative’s Warrant Agreement | S-1/A | 333-202924 | 4.7 | 5/8/2015 | |||||
| 4.9 | Registration Rights Agreement, dated December 18, 2015, by and between Ritter Pharmaceuticals, Inc. and Aspire Capital Fund, LLC | 8-K | 001-37428 | 4.1 | 12/21/2015 | |||||
| 4.10* | Certificate of designation, preferences and rights with respect to any preferred stock issued hereunder. | |||||||||
| 4.11* | Form of Senior Debt Security | |||||||||
| 4.12* | Form of Subordinated Debt Security | |||||||||
| 4.13 | Form of Senior Indenture | |||||||||
| 4.14 | Form of Subordinated Indenture | |||||||||
| 4.15* | Form of Warrant Agreement and Warrant Certificate | |||||||||
| 4.16* | Form of Rights Agreement and Right Certificate | |||||||||
| 4.17* | Form of Purchase Contract | |||||||||
| 4.18* | Form of Unit Agreement and Unit | |||||||||
| 5.1 | Opinion of Reed Smith LLP with respect to the legality of the securities being registered. | |||||||||
| 12.1 | Computation of Ratio of Earnings to Fixed Charges | |||||||||
| 23.1 | Consent of Mayer Hoffman McCann P.C., independent registered public accounting firm | |||||||||
| 23.2 | Consent of Reed Smith LLP (included in Exhibit 5.1) | |||||||||
| 24.1 | Power of Attorney (included on applicable signature pages) | |||||||||
| 25.1* | The Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Senior Indenture will be incorporated herein by reference from a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939 | |||||||||
| 25.2* | The Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Subordinated Indenture will be incorporated herein by reference from a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939 | |||||||||
* To be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act.