As filed with the Securities and Exchange Commission on August 11, 2016December 30, 2022
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.Qualigen Therapeutics, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 26-3474527 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification |
1880 Century Park East, Suite 10002042 Corte Del Nogal
Los Angeles, CA 90067Carlsbad, California 92011
(310) 203-1000(760) 918-9165
(Address, including zip code, and telephone number, including area
code of registrant’s principal executive offices)
Michael D. StepS. Poirier
Chief Executive Officer
Ritter Pharmaceuticals,Qualigen Therapeutics. Inc.
1880 Century Park East, Suite 10002042 Corte Del Nogal
Los Angeles, CA 90067Carlsbad, California 92011
(310) 203-1000(760) 918-9165
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copies to:
Michael Sanders, Esq.Copies to:
David T. Mittelman, Esq.Wendy Grasso
Reed Smith LLP
1901599 Lexington Avenue of the Stars, Suite 700
Los Angeles, California 90067-6078New York, NY 10022-7650
(310) 734-5200(212) 521-5400
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement as determined byRegistration Statement
(Approximate date of commencement of proposed sale to the registrant.public)
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: [X]box. ☒
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 upon 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 | ||||
| ☒ | ||||||
| Emerging growth company | ☐ |
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 | ||||||||||||
(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 haveIf an aggregate initial offering priceemerging growth company, indicate by check mark if the registrant has elected not to exceed $150,000,000. Ifuse the extended transition period for complying with 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 notnew or revised financial accounting standards provided pursuant 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 registrantSection 7(a)(2)(B) 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.Act. ☐
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 whichthat 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 Statementregistration 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 preliminary prospectus is not complete and may be changed. We may not sell these securities or accept an offer to buy 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 it is not soliciting offers to buy these securities in any state where such offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED AUGUST 11, 2016DECEMBER 30, 2022
PRELIMINARY PROSPECTUS
5,157,087 Shares
RITTER PHARMACEUTICALS, INC.
$150,000,000Common Stock
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
RIGHTS
PURCHASE CONTRACTS
UNITS
This prospectus will allow usrelates to issue,the resale or other disposition from time to time at prices and on termsby the selling stockholder named herein of up to an aggregate of 5,157,087 shares of our common stock, par value $0.001 per share (the “Resale Shares”), which may be determined at or priorissuable to the timeselling stockholder pursuant to the terms of an 8% Senior Convertible Debenture in the aggregate principal amount of $3,300,000 issued to the selling stockholder on December 22, 2022 (the “Debenture”) and the warrant (the “Warrant”) issued to such selling stockholder in connection with the issuance of the offering, up to $150,000,000 of any combinationDebenture.
The selling stockholder may offer and sell or otherwise dispose of the securitiesResale Shares 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 through public or private transactions at prevailing market prices, at prices related to prevailing market prices or through underwriters or dealers. For additional information on the methods of sale, you should referat privately negotiated prices. The selling stockholder will bear all underwriting fees, commissions and discounts, if any, attributable to the section entitledsales of Resale Shares and any transfer taxes. We will bear all other costs, expenses and fees in connection with the registration of the Resale Shares. See “Plan of Distribution” in this prospectus and infor more information on how the applicable prospectus supplement. Ifselling stockholder may sell or dispose of its Resale Shares.
We will not receive any underwriters or agents are involved inproceeds from the sale of our securities with respect to which this prospectus is being delivered, the names 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 toResale Shares by 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.selling stockholder.
Our common stock is listed on the NASDAQThe Nasdaq Capital Market under the trading symbol “RTTR.“QLGN.” On August 5, 2016,December 29, 2022, the last reported saleclosing price of our common stock on the NASDAQ Capital Market was $1.31$1.20 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 of 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 shares of our securitiescommon stock involves a high degree of risk. Before deciding whether to invest in our securities, youYou should considerreview carefully the risks that we haveand uncertainties described in the section titled “Risk Factors” on page 24 of this prospectus and any similar section contained in the applicable prospectus supplement and in any free writing prospectuses we have authorized for use in connection with a specific offering, and under similar headings in the caption “Risk Factors.” We may include specific risk factors in supplements todocuments that are incorporated by reference into 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 if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is August 11, 2016, 2023.
TABLE OF CONTENTS
This prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission or SEC, utilizing a “shelf” registration process. Under(the “SEC”). The selling stockholder referred to in this shelf registration process, weprospectus 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 valueor otherwise as described under “Plan 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.Distribution.”
This prospectus does not contain all ofNeither we nor the selling stockholder has authorized anyone to provide any 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 informationother than that 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 in any related prospectus supplement.supplement or any free writing prospectus that we have authorized. We havetake no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. The shares are not authorized anyone to provide you withbeing offered in any jurisdiction where the offer is not permitted. You should not assume that the information different from that contained in or incorporated by reference in this prospectus. No dealer, salesperson or other person is authorized to give any information or to represent anything not contained or incorporated by reference in this prospectus. You must not rely on any unauthorized information or representation. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. You should assume that the information in this prospectus or any prospectus supplement is accurate only as of any date other than the date on the frontrespective dates of the documentsuch document. Our business, financial condition, results of operations and that any information weprospects may have incorporated herein by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus or any sale of a security.changed since those dates.
We further note thatThroughout this prospectus, the representations, warrantiesterms “we,” “us,” “our,” and covenants made by us in any agreement that is filed as an exhibitour “company” refer 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,Qualigen Therapeutics, Inc. 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.its subsidiaries.
| i |
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus may not be used to consummate sales of our securities, unless it is accompanied by a prospectus supplement. To the extent there are inconsistencies between any prospectus supplement, this prospectus and any documents incorporated by reference, the document with the most recent date will control.
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 a summary of what we believe to be the most important aspects of our business and the offering of our securities under this prospectus. We urge you to read this entire prospectus, including the more detailed consolidated financial statements, notes to the consolidated financial statements and other information incorporated 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 information in this prospectus 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.
The Company
Ritter Pharmaceuticals, Inc. develops novel therapeutic products that modulate the human gut microbiome to treat gastrointestinal diseases. We are advancing human gut health research by exploring the 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.
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 reduction of symptoms associated with lactose intolerance. RP-G28, is designed to stimulate the growth of lactose-metabolizing bacteria in the colon, thereby effectively adapting the gut microbiome to assist in digesting the lactose that reaches the large intestine. RP-G28 has the potential to become 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 2a clinical trial and is a first-in-class compound.
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, 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 Prospectus
Under this prospectus, we may offer 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 or in units, with a total value of up to $150,000,000, from time to time at prices and on terms to be determined by market conditions at the time of the offering. 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 describe the specific amounts, prices and other important terms of the securities.
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:
Please carefully consider the risk factors described in our periodic reports filed with the SEC whichthat are incorporated by reference in this prospectus. Before making an investment decision, you should carefully consider these risks as well as other information we include or incorporate by reference in this prospectus or include in any applicable prospectus supplement. Additional risks and uncertainties not presently known to us or that we deem currently immaterial may also impair our business operations or adversely affect our results of operations or financial condition.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements in this prospectus and in any prospectus supplement we may file constitutecontain “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 of 1934, as amended (the “Exchange Act”). These statements relate to future events concerning our business andor to our future revenues, operating or financial performance and involve known and unknown risks, uncertainties and other factors that may cause our actual results, and financial condition. performance or achievements to be materially different from any future results, performances or achievements expressed or implied by the forward-looking statements. Forward-looking statements may include, but are not limited to, statements about:
| ● | our ability to successfully develop any drugs or therapeutic devices; | |
| ● | our ability to progress our drug candidates or therapeutic devices through preclinical and clinical development; | |
| ● | our ability to obtain the requisite regulatory approvals for our clinical trials and to begin and complete such trials according to any projected timeline; | |
| ● | our ability to complete enrollment in our clinical trials as contemplated by any projected timeline; | |
| ● | the likelihood that future clinical trial data will be favorable or that such trials will confirm any improvements over other products or lack negative impacts; | |
| ● | our ability to successfully commercialize any drugs or therapeutic devices; | |
| ● | our ability to procure or earn sufficient working capital to complete the development, testing and launch of our prospective therapeutic products; | |
| ● | the likelihood that patents will issue on our owned and in-licensed patent applications; | |
| ● | our ability to protect our intellectual property; | |
| ● | our ability to compete; | |
| ● | our ability to maintain or expand market demand and/or market share for our diagnostic products generally, particularly in light of COVID-19-related deferral of patients’ physician-office visits and in view of FastPack reimbursement pricing challenges; and | |
| ● | our ability to maintain our diagnostic sales and marketing engine without interruption following the expiration of our distribution agreement with Sekisui. |
In some cases, you can identify forward-looking statements by terminologyterms such as “anticipates,” “believes,” “could,” “estimates,” “intends,” “may,” “plans,” “potential,” “will,” “could,” “would,” “should,” “expect,” “plan,” “anticipate,” “intend,” “believe,” “estimate,” “forecast,” “predict,” “propose,” “potential” or “continue,�� or the negative of thosethese terms or other comparable terminology.
Any forward lookingsimilar expressions. These statements contained in this prospectus or any prospectus supplementreflect our current views with respect to future events and are only estimates orbased on assumptions and are subject to risks and uncertainties. Given these uncertainties, you should not place undue reliance on these forward-looking statements as predictions of future events based on information currently available toevents. We discuss in greater detail many of these risks in 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. There are a number of important factors that could cause actual results to differ materially from the results anticipated by these forward-looking statements. These important factors include those that we discuss under the heading “Risk Factors” and in other sections of ourmost recent Annual Report on Form 10-K for the year ended December 31, 2015,and in our most recent Quarterly ReportsReport on Form 10-Q, for the quarterly periods ended March 31, 2016 and June 30, 2016, all filedas well as any amendments thereto reflected in subsequent filings with the SEC, which are incorporated by reference into this prospectus in their entirety. Also, these forward-looking statements represent our estimates and assumptions only as wellof the date of the document containing the applicable statement. Unless required by law, we undertake no obligation to update or revise any forward-looking statements to reflect new information or future events or developments.
In addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as inof the date of this prospectus, and while we believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and our Current Reportsstatements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain and investors are cautioned not to unduly rely upon these statements.
You should read this prospectus, together with the documents we have filed on Form 8-K from time to time with the SEC that are incorporated by reference, into this prospectus. You should read these factorsany prospectus supplement and any free writing prospectus that we may authorize completely and with the other cautionaryunderstanding that our actual future results may be materially different from what we expect. We qualify all of the forward-looking statements made in this prospectus and in the foregoing documents we incorporate by reference into this prospectus as being applicable 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, our actual results, performance or achievements may vary materially from any future results, performance or achievements expressed or implied by these forward-lookingcautionary 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.
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RATIO OF EARNINGS TO FIXED CHARGESTHE COMPANY
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 youare a diversified life sciences company focused on developing treatments for adult and pediatric cancers with potential for Orphan Drug designation, while also commercializing diagnostics. Our cancer therapeutics pipeline includes QN-302, RAS (previously called “RAS-F”), and QN-247. Our investigational QN-302 compound is a small molecule G4 selective transcription inhibitor with strong binding affinity to G4s prevalent in cancer cells. Such binding could, by stabilizing the G4s against “unwinding,” help inhibit cancer cell proliferation. RAS is a family of RAS oncogene protein-protein interaction inhibitor small molecules for preventing mutated RAS genes’ proteins from binding to their effector proteins; preventing this binding could stop tumor growth, especially in RAS-driven tumors such as pancreatic, colorectal and lung cancers. QN-247 is a DNA coated gold nanoparticle cancer drug candidate that may have the potential to target various types of cancer, including Triple Negative Breast Cancer (TNBC), Acute Myeloid Leukemia (AML) and Glioblastoma (GBM). The foundational aptamer of QN-247 is QN-165 (formerly referred to as AS1411), which we will receive any proceeds in connection with securities which may be offered pursuant to this prospectus. Unless otherwise indicated in the applicable prospectus supplement, we intend to use any net proceedshave deprioritized as a drug candidate for treating COVID-19 and other viral-based infectious diseases. We are also seeking strategic partnering opportunities for STARS, a DNA/RNA-based therapeutic device product concept for removing precisely targeted tumor-produced and viral compounds from the sale of securities under this prospectus for our operations 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. We have not determined the amounts we plan to spend on any of the areas listed above or the timing of these expenditures. As a result, our management will have broad discretion to allocate the net proceeds, if any, we receive in connection with securities offered pursuant to this prospectus for any purpose. Pending application of the net proceeds as described above, we may initially invest the net proceeds in short-term, investment-grade, interest-bearing securities or apply them to the reduction of short-term indebtedness.
PLAN OF DISTRIBUTIONcirculating blood.
General PlanOur FastPack System diagnostic instruments and test kits are sold commercially primarily in the United States, as well as certain European countries. The FastPack System menu includes a rapid, highly accurate immunoassay diagnostic testing system for cancer, men’s health, hormone function, and vitamin D status. We provide analyzers to our customers (physician offices, clinics and small hospitals) at low cost in order to increase sales volumes of Distributionhigher-margin test kits. Prior to March 31, 2022, most of our FastPack product sales were through our partner Sekisui pursuant to a distribution agreement, but we maintained direct distribution for certain house accounts, including selling our total testosterone test kits to Low T Center, Inc., the largest men’s health group in the United States, with 40 locations. The distribution agreement with Sekisui expired on March 31, 2022, at which time the services previously provided by Sekisui reverted to us and as of April 1, 2022 we recognize 100% of the revenue from the sales of our FastPack diagnostic instruments and test kits. We have licensed and technology-transferred our FastPack System technology to Yi Xin Zhen Duan Jishu (Suzhou) Ltd. for the China diagnostics market and other markets outside of the United States in which the Company does not currently sell.
We may offer securities under this prospectus from timealso hold a 52.8% interest in NanoSynex, Ltd. (“NanoSynex”), an Israeli-based developer of next generation diagnostics technology. NanoSynex’s technology is an Antimicrobial Susceptibility Testing (AST) platform that aims to time pursuantprovide clinical laboratories worldwide with a rapid, accurate and personalized test for bacterial infections, with the goal of quickly matching the correct antibiotics to underwritten public offerings, negotiated transactions, block trades ortreat a combination of these methods. We may sellpatient’s particular infection. Antibiotic misuse and overuse have given rise to antibiotic resistant bacteria, commonly known as superbugs, which the securities (1) through underwriters or dealers, (2) through agents or (3) directly toWorld Health Organization has called 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:
We may directly solicit offers to purchase the securities being offered by this prospectus. We may also designate agents to solicit offers to purchase the securities from time to time. We will name in a prospectus supplement any underwriter or agent involved in the offer or sale of the securities.top ten global public health threats facing humanity. NanoSynex’s AST platform aims to enable better targeting of antibiotics for their most suitable uses to ultimately result in faster and more efficacious treatment, hence reducing hospitals mortality and morbidity rates.
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 agreementTransaction 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 the purchasers of the securities for whom the underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter may sell the securities to or through dealers, and the underwriter may compensate those dealers in the form of discounts, concessions or commissions.
With respect to underwritten public offerings, negotiated transactions and block trades, we will provide in the applicable prospectus supplement information regarding any compensation we pay to underwriters, dealers or agents 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 of the securities may be deemed to be underwriters within the meaning of the Securities Act of 1933, as amended, or the Securities Act, and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions. We may enter into agreements to indemnify underwriters, dealers 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.
If so indicated in the applicable prospectus supplement, we will authorize underwriters or other persons acting as our agents to solicit offers by certain institutions to purchase securities from us pursuant to delayed delivery contracts providing for payment and delivery on the date stated in the prospectus supplement. Each contract 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 our approval. Delayed delivery contracts will not be subject to any conditions except that:
Shares of our common stock sold pursuant to the registration statement of which this prospectus is a part will be authorized for quotation 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 STOCKSelling Stockholder
General
Our authorized capital stock consists of 30,000,000 shares, allOn December 21, 2022, we entered into a Securities Purchase Agreement (“Agreement”) with a par value of $0.001 per share, 25,000,000 ofAlpha Capital Anstalt (the “selling stockholder”), pursuant to 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 into shares of our common stock on a 7.15-for-1 basis priorDecember 22, 2022, we issued to the closingselling stockholder in a private placement (the “Private Placement”) an 8% Senior Convertible Debenture (the “Debenture”) in the aggregate principal amount 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 amended and restated certificate of 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.
Warrants
In December 2014, we issued an aggregate of 2,369,228 shares of Series C preferred stock and warrants, or the 2014 Warrants, to purchase a like number of shares of our common stock,$3,300,000 for aggregate gross proceeds of $3,081,893. All of the shares of Series C 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$3,000,000. The Debenture is 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 to 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, duringat the four-year period commencing one year from the effective dateselling stockholder’s option, into shares 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 other than underwriting commissions incurred and payable by the holders. The exercise price and number of shares issuable upon exercise of the warrants may be adjusted in certain circumstances including in the event of a stock dividend or our recapitalization, reorganization, merger or consolidation. However, the warrant exercise price or underlying shares will not be adjusted for issuances of shares of common stock, at a price belowequal to $1.32 per share, subject to adjustment as described in the warrant exercise price.
Preferred StockDebenture (the “Conversion Price”).
Pursuant to the terms of our amended and restated certificate of incorporation, our board of directors has the authorityAgreement, we also issued to issue preferredthe selling stockholder on December 22, 2022 a common stock in one or more classes or series and to fix 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 rightspurchase warrant (the “Warrant”) to purchase such shares, could decrease the amount of earnings and assets available for distributionup 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 to2,500,000 shares of our common stock into which(the “Warrant Shares,”), at a price of $1.65 per share, subject to adjustment as described in the Warrant (the “Exercise Price”). The Warrant may be exercised, in whole or in part, at any time on or after June 22, 2023 and before June 22, 2028.
Commencing June 1, 2023 and continuing on the first day of each month thereafter until the earlier of (i) December 22, 2025 (i.e., the Maturity Date) and (ii) the full redemption of the Debenture (each such date, a “Monthly Redemption Date”), we will redeem $110,000 plus accrued but unpaid interest, liquidated damages and any amounts then owing under the Debenture (the “Monthly Redemption Amount”). The Monthly Redemption Amount will be paid in cash; provided that after the first two monthly redemptions, we may elect to pay all or a portion of a Monthly Redemption Amount in shares of our preferredcommon stock, based on a conversion price equal to the lesser of (i) the then Conversion Price of the Debenture and (ii) 85% of the average of the VWAPs (as defined in the Debenture) for the five consecutive trading days ending on the trading day that is immediately prior to the applicable Monthly Redemption Date. We may also redeem some or all of the then outstanding principal amount of the Debenture at any time for cash in an amount equal to 105% of the then outstanding principal amount of the Debenture being redeemed plus accrued but unpaid interest, liquidated damages and any amounts then owing under the Debenture. These monthly redemption and optional redemptions are convertible.subject to the satisfaction of the Equity Conditions (as defined in the Debenture), which includes a condition that any shares to be issued to the selling stockholder (including as redemptions, interest or otherwise) under the Debenture and/or Warrant may not exceed, in the aggregate, 841,726 shares (i.e., 19.99% of the number of shares of our common stock outstanding on the date the Agreement was signed), unless and until we have obtained stockholder approval.
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The Debenture accrues interest at the rate of 8% per annum, which does not begin accruing until December 1, 2023, and will be payable on a quarterly basis. Interest may be paid in cash or shares of our common stock or a combination thereof at our option; provided that interest may only be paid in shares if the Equity Conditions (as defined in the Debenture) have been satisfied, including the stockholder approval condition as described above.
Aspire Capital Registration RightsBoth the Debenture and the Warrant provide for adjustments to the Conversion Price and Exercise Price, respectively, in connection with stock dividends and splits, subsequent equity sales and rights offerings, pro rata distributions, and certain fundamental transactions. Both the Debenture and the Warrant include a beneficial ownership blocker of 9.99%, which may only be waived by the selling stockholder upon 61 days’ notice to us.
On December 18, 2015,The issuance of the Debenture and the Warrant to the selling stockholder was exempt from the registration requirements of the Securities Act pursuant to the exemption for transactions by an issuer not involving any public offering under Section 4(a)(2) of the Securities Act.
Pursuant to the terms of the Agreement, we entered into a Registrationregistration rights agreement with the selling stockholder on December 22, 2022 (the “Registration Rights Agreement with Aspire Capital Fund, LLC (“Aspire Capital”Agreement”), inpursuant to which we agreed to file one or more registration statements, as permissiblenecessary, and necessaryto the extent permissible, to register under the Securities Act the saleresale of the(a) all shares of our common stock issued and issuable upon conversion in full of the Debenture (without regard to any conversion limitations therein), (b) all shares of our common stock issued and issuable as interest or principal on the Debenture (assuming all permissible interest and principal payments are made in shares of our common stock and the Debenture is held until maturity), (c) all Warrant Shares then issued and issuable upon exercise of the Warrant (without regard to any exercise limitations therein), (d) any additional shares of our common stock issued and issuable in connection with any anti-dilution provisions in the Debenture or the Warrant (in each case, without giving effect to any limitations on conversion set forth in the Debenture or limitations on exercise set forth in the Warrant) and (e) any securities issued or then issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing.
Reverse Stock Split
Effective as of November 23, 2022, we completed a 1-for-10 reverse stock split of our common stock in order to regain compliance with Nasdaq Listing Rule 5550(a)(2), which requires a minimum bid price of $1.00 per share. As a result of the reverse stock split, each 10 shares of our common stock issued and outstanding as of 12:01 a.m. Eastern Time on November 23, 2022 were combined and converted into one share of common stock. On December 9, 2022, we received written notice from the Listing Qualifications Department of The Nasdaq Stock Market LLC stating that because our shares of common stock had a closing bid price at or above $1.00 per share for a minimum of 10 consecutive business days, the Company has regained compliance with the minimum bid price requirement of $1.00 per share for continued listing on The Nasdaq Capital Market, as set forth in Nasdaq Listing Rule 5550(a)(2), and that the matter is now closed. All references to numbers of shares of Common Stock and per-share information in this prospectus have been and may be issuedadjusted retroactively, as appropriate, to Aspire Capitalreflect the 1-for-10 reverse stock split.
Corporate Background
Ritter Pharmaceuticals, Inc. (our predecessor) was formed as a Nevada limited liability company on March 29, 2004 under the common stock purchase agreement, datedname Ritter Natural Sciences, LLC. In September 2008, this company converted into a Delaware corporation under the name Ritter Pharmaceuticals, Inc. On May 22, 2020, upon completing a “reverse recapitalization” transaction with Qualigen, Inc., Ritter Pharmaceuticals, Inc. was renamed Qualigen Therapeutics, Inc. Qualisys Diagnostics, Inc. was formed as a Minnesota corporation in 1996, reincorporated to become a Delaware corporation in 1999, and then changed its name to Qualigen, Inc. in 2000. Qualigen, Inc. is now a wholly-owned subsidiary of the Company.
Our principal executive offices are located at 2042 Corte Del Nogal, Carlsbad, CA 92011. Our telephone number is (760) 918-9165.
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Investing in our securities involves a high degree of risk. You should carefully consider the risks described in the documents incorporated by reference in this prospectus and any prospectus supplement, as well as other information we include or incorporate by reference into this prospectus and any applicable prospectus supplement, before making an investment decision. Our business, financial condition or results of operations could be materially adversely affected by the materialization of any of these risks. The trading price of our securities could decline due to the materialization of any of these risks, and you may lose all or part of your investment. This prospectus and the documents incorporated herein by reference also contain forward-looking statements that involve risks and uncertainties. Actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including the risks described in the documents incorporated herein by reference, including (i) our Annual Report on Form 10-K for the fiscal year ended December 18, 2015,31, 2021, filed with the SEC on March 31, 2022, as amended on April 29, 2022, and incorporated herein by reference, and between us(ii) our most recent quarterly report on Form 10-Q for the fiscal quarter ended September 30, 2022 filed with the SEC on November 14, 2022 and Aspire Capital (the “Purchase Agreement”). A registration statement (No. 333-208818) registeringincorporated herein by reference, our current reports on Form 8-K and other documents we file with the SEC from time to time that are deemed incorporated by reference into this prospectus.
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We will not receive any of the proceeds from the sale of shares of our common stock in this offering. The selling stockholder will receive all of the proceeds from the sale of shares of common stock hereunder.
We may, however, receive cash proceeds equal to the exercise price of the Warrants that have been andthe selling stockholder may exercise, to the extent any such Warrants are exercised for cash. The Warrants may be issued to Aspire Capital underexercised, in whole or in part, for cash or by means of cashless exercise if, at the Purchase Agreement was declaredtime of exercise, there is no effective registration statement registering, or the prospectus contained therein is not available for, the resale of the Warrant Shares by the SEC on February 11, 2016.
Anti-Takeover Effectsselling stockholder. If all of Delaware Law and Our Amended and Restated Certificatethe Warrants are exercised for cash, then we will receive gross proceeds of Incorporation and Amended and Restated Bylaws
The provisions of Delaware law and our amended and restated certificate of incorporation and amended and 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 areapproximately $4.1 million, 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” with an “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” is defined broadlyany adjustments. We expect 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” 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 provideduse any proceeds received 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 resultingus from the removalcash exercise of directorsthese Warrants to advance the Company’s QN-302 Investigative New Drug candidate towards clinical trials 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 amended and restated 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 is 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” 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.”working capital purposes.
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DESCRIPTION OF DEBT SECURITIESSELLING STOCKHOLDER
The following description, together with the additional information we include in any applicable prospectus supplements, summarizes the material terms and provisions 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 to 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 mayhave prepared this prospectus to allow the selling stockholder to offer and sell from time to time up to an aggregate of 5,157,087 Resale Shares for its own account, consisting of (i) 2,657,087 shares of our common stock issuable as interest and/or principal on the Debenture (assuming all permissible interest and principal payments are made in one or more offerings under this prospectus, debt securities, which may be senior or subordinated. shares of our common stock and the Debenture is held until maturity), based on the initial conversion price of $1.32, and (iii) 2,500,000 Warrant Shares issuable upon exercise of the Warrant (without regard to any exercise limitations therein) at the initial exercise price of $1.65.
We will issue any such senior debt securities under a senior indentureare registering the offer and sale of the Resale Shares to satisfy certain registration rights that we will enter intogranted the selling stockholder in connection 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 dateissuance of the indenture. We useDebenture and the term “debenture trustee” to refer to either the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable.Warrant.
The following summaries of material provisionstable sets forth (i) the name of the senior debt securities,selling stockholder, (ii) the subordinated debt securities andnumber of shares beneficially owned by the indentures are subject to, and qualified in their entirety by reference to, allselling stockholder, (iii) the provisionsnumber 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 securitiesResale Shares that may be issued thereunder,offered under this prospectus, 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(iv) the number of shares of our common stock or our other securities thatbeneficially owned by the holdersselling stockholders after the offering assuming all of the series of debt securities receive would be subject to adjustment.
Information Concerning the Debenture TrusteeResale Shares covered by this prospectus are sold.
The debenture trustee, other than during the occurrence and continuancenumber of an eventshares of default under the applicable indenture, undertakes to perform only those duties as are specificallycommon stock set forth in the applicable indenture. Upon an event of default under an indenture,following table for the debenture trustee under such indenture must useselling stockholder does not take into account the same degree of care as a prudent person would exercise or uselimitations set forth in the conductDebenture and the Warrant, or the fact that the conversion price of histhe Debenture and the exercise price of the Warrant may be adjusted from time to time in accordance with their terms. As a result, the actual number of Resale Shares that may be issued to and sold by the selling stockholder could be materially less or her own affairs. Subjectmore than the estimated numbers in the column titled “Number of Shares Being Offered” depending on factors which cannot be predicted by us at this time. In addition, we do not know how long the selling stockholder will hold the Resale Shares before selling them, and we currently have no agreements, arrangements or understandings with the selling stockholder regarding the sale or other disposition of any Resale Shares.
Except as described in this prospectus, the selling stockholder does not have, nor has it had during the three years prior to the date of this provision, the debenture trustee is under no obligation to exerciseprospectus, any position, office or other material relationships with us or any of our predecessors or affiliates. To our knowledge, except as set forth in the powers given it bytable below, the indenturesselling stockholder is not a broker-dealer or affiliated with a broker-dealer, nor 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 paymenttime 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 officeacquisition 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,Debenture and the holder ofWarrant did it have direct or indirect agreements or understandings with any person to distribute any common stock, including the security thereafter may look only to us for payment thereof.
Governing LawResale Shares.
The indentures andinformation set forth in the debt securities will be governed by and construedtable below is based upon information obtained from the selling stockholders. Beneficial ownership of the selling stockholder is determined in accordance with Rule 13d-3(d) under the lawsExchange Act. The percentage of shares beneficially owned after the State of New York, except to the extent that the Trust Indenture Actoffering 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 purchasebased on 4,210,737 shares of our common stock preferred stock and/or debt securities. We may offer warrants separately oroutstanding as of December 30, 2022, after giving effect to the issuance of an aggregate of 5,157,087 Resale Shares.
As used in this prospectus, the term “Selling Stockholder” includes the selling stockholder listed in the table below, together with one or moreany 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 describedselling stockholders listed in a prospectus supplement, differ fromand their donees, pledgees, assignees, transferees, distributees and successors-in-interest that receive Resale Shares in any non-sale transfer after the date of this prospectus.
| Beneficial Ownership After this Offering | ||||||||||||
| Name of Selling Stockholder | Shares of Common Stock Beneficially Owned Prior to this Offering | Number of Shares Being Offered | Number of Shares | Percent of Outstanding Common Stock | ||||||||
| Alpha Capital Anstalt | 450,083 | (1) | 5,157,087 | 703,592 | (2) | 7.10% | ||||||
(1) Includes 156,583 shares of common stock held directly by the selling stockholder and 293,500 shares of common stock issuable upon the exercise of warrants held by the selling stockholder prior to the Private Placement. This number does not include 253,509 shares issuable upon the exercise of warrants held by the selling stockholder prior to the Private Placement, which may not be exercised to the extent that such exercise will result in the selling stockholder (and its affiliates) beneficially owning more than 9.99% of the number of shares of our common stock outstanding immediately after giving effect to the issuance of shares of common stock issuable upon exercise, or any of the terms described below, thenResale Shares. The address of Alpha Capital Anstalt is Altenbach 8, 9490 Vaduz, Liechtenstein.
(2) This number consists of 156,583 shares of common stock held directly by the terms described below will be deemed to have been superseded by that prospectus supplement. We encourage you to read the applicable warrant agreementselling stockholder and warrant certificate for additional information before you decide whether to purchase any547,009 shares of our rights.common stock issuable upon the exercise of warrants held by the selling stockholder prior to the Private Placement, which will continue to be held by the selling stockholder after this offering.
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We will provide in a prospectus supplementare registering the followingResale Shares that may be issued to the selling stockholder pursuant to the terms of the warrants being issued:Debenture and the Warrant to permit the resale of these Resale Shares by the selling stockholder from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale of Resale Shares by the selling stockholder, other than the exercise price of the Warrant if paid in cash.
The selling stockholder and any of its donees, pledgees, assignees and successors-in-interest may, from time to time, sell, transfer or otherwise dispose of any or all of the Resale Shares covered hereby on the principal trading market or any other stock exchange, market or trading facility on which our common stock is then traded or in private transactions. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices. The selling stockholder may use any one or more of the following methods when selling securities:
| ● | ordinary brokerage transactions and transactions in which the | |
| ● | ||
| ● | purchases by a broker-dealer as principal and resale by the | |
| ● | ||
| ● | ||
| ● | ||
| ● | ||
| ● | through the | |
| ● | a combination of any | |
| ● | any |
Each warrant will entitleThe selling stockholder may also sell 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 agentResale Shares under Rule 144 or any other office indicatedexemption from registration under the Securities Act, if available, rather than under this prospectus.
Broker-dealers engaged by the selling stockholder may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the selling stockholder (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the prospectus supplement, we will, as soon as practicable, forwardcase of an agency transaction not in excess of a customary brokerage commission in compliance with FINRA Rule 2121; and in the sharescase of common stocka principal transaction a markup or markdown in compliance with FINRA Rule 2121. In connection with the sale of the Resale Shares or interests therein, the selling stockholder may enter into hedging transactions with broker-dealers or other securities, as applicable, purchasable upon exercisefinancial institutions, which may in turn engage in short sales of the rights. If less thanResale Shares in the course of hedging the positions they assume. The selling stockholder may also sell the Resale Shares short and deliver the Resale Shares to close out its short positions, or loan or pledge the Resale Shares to broker-dealers that in turn may sell the Resale Shares. The selling stockholder may also enter into option or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer or other financial institution of the Resale Shares offered by this prospectus, which Resale Shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The selling stockholder may, from time to time, pledge or grant a security interest in some or all of the warrants issuedResale Shares owned by it and, if it defaults in any rights offering are exercised, wethe performance of its secured obligations, the pledgees or secured parties may offer any unsubscribed securities directlyand sell the Resale Shares, from time to persons other thantime, under this prospectus, or under an amendment to the registration statement of which this prospectus forms a part amending the list of selling stockholders to include the pledgee, transferee or through agents, underwritersother successors in interest as selling stockholders under this prospectus. The selling stockholder may also transfer the Resale Shares in other circumstances, in which case the pledgees, transferees or dealers or through a combinationother successors in interest will be the selling beneficial owners for purposes of such methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement.this prospectus.
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Warrant Agent
The warrant agent forselling stockholder and any warrants webroker-dealers or agents that are involved in selling the Resale Shares may be deemed to be “underwriters” within the meaning of Section 2(11) of the Securities Act in connection with such sales. In such event, any discounts, commissions, concessions or profits received by such broker-dealers or agents and any profit on the resale of the Resale Shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Selling stockholders who are “underwriters” within the meaning of Section 2(11) of the Securities Act will be subject to the prospectus delivery requirements of the Securities Act. The selling stockholder has informed us that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the Resale Shares.
To the extent required, the Resale Shares to be sold, the names of the selling stockholder, the respective purchase prices and public offering prices, the names of any agents, dealer or underwriter, and any applicable commissions or discounts with respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the applicable prospectus supplement.
DESCRIPTION OF RIGHTSregistration statement that includes this prospectus.
GeneralThe Resale Shares 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 Shares covered hereby may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.
We may issue rightsare required to our stockholderspay certain fees and expenses incurred by us incident to purchase sharesthe registration of our common stock, preferred stock, and/or debt securities described inthe Resale Shares. Discounts, concessions, commissions and similar selling expenses attributable to the sale of Resale Shares covered by 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 issuedborne by the selling stockholder. We have agreed to indemnify the selling stockholder against certain losses, claims, damages and liabilities, including liabilities 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 certificatesSecurities Act, relating to the rightsregistration of the seriesResale Shares offered by this prospectus.
We agreed to keep this prospectus effective until the earlier of certificates(i) the date on which the securities may be resold by the selling stockholder without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for us to be in compliance with the current public information under Rule 144 under the Securities Act or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act.
Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the Resale Shares may not simultaneously engage in market making activities with respect to the Resale Shares for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the selling stockholder 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 andbe subject to applicable provisions of the rights toExchange Act and the rules and regulations thereunder, including Regulation M, which any prospectus supplement may relate. The particular termslimit the timing of purchases and sales of the rights to whichResale Shares by the selling stockholder or 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.other person.
We will provide inmake copies of this prospectus available to the selling stockholder for the purpose of satisfying the requirement to deliver a copy of this prospectus supplementto each purchaser at or prior to the following termstime of the rights being issued:
Each right will entitlesale (including by compliance with Rule 172 under 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.Securities Act).
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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 issuanceshares of the securities to becommon stock offered by this prospectus.hereby.
Mayer Hoffman McCann P.C., ourThe consolidated financial statements of Qualigen Therapeutics, Inc. as of December 31, 2021 and 2020 and for the year ended December 31, 2021 and for the nine-month period ended December 31, 2020, incorporated in this prospectus by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 2021 have been audited by Baker Tilly US, LLP, an independent registered public accounting firm, has audited our balance sheets as of December 31, 2015 and 2014, and the related statements of operations, changes in securities subject to redemption and shareholders’ deficit and cash flows for each of the two years in the period ended December 31, 2015, as set forthstated 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 havethereon, incorporated herein by reference, our financial statementsand have been incorporated in this prospectus and in this registration statement in reliance onupon such report and upon the reportauthority of Mayer Hoffman McCann P.C. given on their authoritysuch firm as experts in accounting and auditing.
WHERE YOU CAN FIND MOREADDITIONAL INFORMATION
We haveThis prospectus is part of the registration statement on Form S-3 we filed with the SEC a Registration Statement on Form S-1 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,and does not contain all of the information set forth in the registration statement, some itemsstatement. Whenever a reference is made in this prospectus to any of which are contained in exhibitsour contracts, agreements or other documents, the reference may not be complete and you should refer to the Registration Statement as permitted by the rules and regulations of the SEC. For further information with respect to us and our common stock, we refer you to the Registration Statement, including the exhibits and the financial statements and notes filed asthat are a part of the Registration Statement. Statements contained in this prospectus concerningregistration statement or the contents of any contract or any other document are not necessarily complete. If a contract or document has been filed as an exhibit to the Registration Statement, please see the copy 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 referencedreports or other documents incorporated by reference into this prospectus for the complete contents of these contracts and documents. Aa 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. You may obtain information on the operation of the public reference rooms by calling the SEC at 1-800-SEC-0330. The SEC also maintains an Internet website that contains reports, proxy statements, andsuch contract, agreement or other information about issuers, like us, that file electronically with the SEC. The address of that website iswww.sec.gov.
Wedocument. Because we are subject to the information and reporting requirements of the Exchange Act, and, in accordance with this law, we file periodicannual, quarterly and current reports, proxy statements and other information with the SEC. These periodic reports, proxy statements, and other informationOur SEC filings are available for inspection and copyingto the public over the Internet at the SEC’s public reference facilities and the website of the SEC referred to above. at http://www.sec.gov.
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 www.qualigeninc.com. Information contained in or that can be accessedaccessible through our website isdoes not incorporated by reference intoconstitute a part of this Prospectus.prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” information from other documents that we file with them. Incorporation by reference allows us toit, which means that we can disclose important information to you by referring you to those other documents. The information incorporated by reference is an importantconsidered to be part of this prospectus. Information in this prospectus andsupersedes information incorporated by reference that we filed with the SEC prior to the date of this prospectus, while information that we file later with the SEC will automatically update and supersede the information in this information. Thisprospectus. We incorporate by reference into this prospectus omits certain information contained inand 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 inof which this prospectus regardingis a part the provisions of certaininformation or documents listed below that we have 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 or the exhibits, may be obtained upon payment of the prescribed rates at the offices of the SEC listed above in “Where You Can Find More Information.” The documents we are incorporating by reference are:(Commission File No. 001-37428):
| ● | our Annual Report on Form 10-K for the fiscal year ended December 31, | |
| ● | our Quarterly Reports on Form 10-Q for the | |
| ● | our Current Reports on Form 8-K (other than information furnished rather than filed) filed with the SEC on January | |
| ● | the description of our common stock, which is registered under Section 12 of the |
In addition, all documents that the Company filesAll filings filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of 1934, as amended (the “Exchange Act”), subsequent to the initial filing of the registration statement of which this Registration Statementprospectus is a part and prior to effectiveness of the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold,registration statement shall be deemed to be incorporated by reference into this Registration Statementprospectus.
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We also incorporate by reference any future filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to besuch items unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including those made after the date of the initial filing of the registration statement of which this prospectus is a part hereofand prior to effectiveness of such registration statement, until we file a post-effective amendment that indicates the termination of the offering of the shares of our common stock made by this prospectus and will become a part of this prospectus from the date of filing ofthat such documents except as to any document or portion of any document that is deemed furnishedare filed with the SEC. Information in such future filings updates and not filed.
Pursuant to Rule 412 undersupplements the Securities Act, any statement contained in the documents incorporated or deemed to be incorporated by referenceinformation provided in this Registration Statement shallprospectus. Any statements in any such future filings will automatically be deemed to be modified, superseded or replaced for purposes of this Registration Statement to the extent that a statement contained herein ormodify and supersede any information in any other subsequentlydocument we previously filed document which alsowith the SEC that is incorporated or deemed to be incorporated herein by reference to the extent that statements in the later filed document modify or replace such earlier statements.
You can request a copy of these filings, at no cost, by writing or telephoning us at the following address or telephone number:
Qualigen Therapeutics, Inc.
2042 Corte Del Nogal
Carlsbad, California 92011
(760) 918-9165
Attn: Secretary
You may also access the documents incorporated by reference in this Registration Statement modifies, supersedesprospectus through our website www.qualigeninc.com. Except for the specific incorporated documents listed above, no information available on or replaces such statement. Any such statement so modified, superseded or replacedthrough our website shall not be deemed except as so modified, supersededto be incorporated in this prospectus or replaced, to constitutethe registration statement of which it forms a part of this Registration Statement.part.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth an itemizationestimate of the variousfees and expenses all of which we will pay,payable by us in connection with the issuance and distributionsale of the securities being registered. All of the amounts shown are estimated except the SEC Registration Fee.
| SEC Registration Fee | $ | 15,105 | ||
| Legal Fees and Expenses | * | |||
| Accounting Fees and Expenses | * | |||
| Miscellaneous | * | |||
| Total | $ | * |
| Amount | ||||
| SEC registration fees | $ | 671 | ||
| Accounting fees and expenses | 8,500 | |||
| Legal fees and expenses | 10,000 | |||
| Miscellaneous fees and expenses | 829 | |||
| Total | $ | 20,000 | ||
*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
Our amended and restated certificate of incorporation provides that we shall indemnify, to the fullest extent authorized by the Delaware General Corporation Law (“DGCL”), each person who is involved in any litigation or other proceeding because such person is or was a director or officer of Ritter Pharmaceuticals,Qualigen Therapeutics, 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., 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 amended and restated 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 | |
| ● | from any transaction from which the director derived an improper personal benefit. |
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 toprovide for the fullest extent permitted under Delaware lawindemnification of such persons for all reasonable expenses and liabilities incurred in connection with any action or proceeding brought against liabilities that may arisethem by reason of the fact that they are or were serving in such capacity. We believe that these indemnification agreements are necessary to attract and retain qualified persons as directors and officers. Furthermore, we have obtained director and officer liability insurance to cover liabilities our directors and officers may incur in connection with their serviceservices to us and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified. us.
We also intend to enter into indemnification agreements withmaintain general liability insurance which covers certain liabilities of our future directors and executive officers.officers arising out of claims based on acts or omissions in their capacities as directors or officers, including liabilities under the Securities Act of 1933, as amended.
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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.
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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:
(i) Toto include any prospectus required by sectionSection 10(a)(3) of the Securities Act of 1933;
(ii) Toto 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 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
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(iii) Toto 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;statement.
Provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the 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 a 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 that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona 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 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) Each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A (§230.430A of this chapter), shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; 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 prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, 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 date of first use.
(5)(6) 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 section 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 initial bona fide offering thereof.
(c)(7) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, 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 Securities 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 Securities Act of 1933 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.
| 14 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Companyregistrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8S-3 and has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, thereto duly authorized, in the City of Los Angeles,Carlsbad, State of California, on August 11, 2016.December 30, 2022.
| By: | /s/ Michael | |
| Michael | ||
| Chairman of the Board, Chief Executive Officer and President | ||
KNOW ALL MENPERSONS BY THESE PRESENTS, that each of the undersigned directorsperson whose signature appears below constitutes and officers of Ritter Pharmaceuticals, Inc. hereby appoints Michael D. Step, Andrew J. RitterPoirier, Amy Broidrick and Ira E. Ritter,Christopher Lotz, and each of them, acting singly, as his or her true and lawful attorney-in-factattorneys-in-fact and agent,agents, with full powers of substitution and resubstitution, for him or herthem and in his or hertheir name, place and stead, with full powerin any and all capacities, to act alone, to sign on his or her behalf and in the capacity set forth below, any and all amendments (including pre-effective and post-effective amendments and supplementsamendments) to this Registration Statement on Form S-8registration statement, and to sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462 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 all other documents in connection therewith, with the Securities and Exchange Commission, herebyand generally to do all such things in their names and behalf in their capacities as officers and directors to enable Qualigen Therapeutics, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, granting unto said attorney-in-factattorneys-in-fact and agentagents, and each of them, full power and authority to do and perform anyeach and all actsevery act and thingsthing requisite and necessary or appropriate to be done in and about the premisesconnection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-factattorneys-in-fact and agentagents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statementregistration statement has been signed below by the following persons in the capacities and on the dates indicated.
| Title | Date | |||
| /s/ Michael S. Poirier | Chairman of the Board and Chief Executive Officer | December 30, 2022 | ||
| Michael S. Poirier | (Principal Executive Officer) | |||
| /s/ | Vice President of Finance, Chief Financial Officer | December 30, 2022 | ||
| Christopher L. Lotz | (Principal | |||
| /s/ Amy Broidrick | Director | December 30, 2022 | ||
| Amy S. Broidrick | ||||
/s/ Richard A. David | December 30, 2022 | |||
| Richard A. David | ||||
| /s/ | Director | December 30, 2022 | ||
| Sidney W. Emery, Jr. | ||||
| December 30, 2022 | ||||
| /s/ Kurt H. Kruger | Director | December 30, 2022 | ||
| Kurt H. Kruger | ||||
| /s/ Ira E. Ritter | ||||
| Ira E. Ritter | ||||
| 15 |
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.