As filed with the Securities and Exchange Commission on November 21, 2018July 24, 2019
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Ritter Pharmaceuticals, Inc.
(Exact Name of Registrant as Specified in Its Charter)
RITTER PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
| Delaware |
| 26-3474527 | ||
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
1880 Century Park East, Suite 1000
Los Angeles, CA 90067
(310) 203-1000
(Address, including zip code, and telephone number, including area
code, of registrant’s principal executive offices)
Andrew J. Ritter
President and Chief Executive Officer
Ritter Pharmaceuticals, Inc., Inc.
1880 Century Park East,
Suite 1000
Los Angeles, CaliforniaCA 90067
(310) 203-1000
(Name, address, including ZIPzip code, and telephone number, including area
code, of agent for service)
Copies to:
Michael Sanders, Esq.
Aron Izower
Reed Smith LLP
1901 Avenue of the Stars, Suite 700
Los Angeles, California 90067-6078
(310) 734-5200
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.statement as determined by the registrant.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.box: [ ]
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.box: [X]
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective onupon 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” and “smaller reporting company,” and “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 | ||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)7a)(2)(B) of the Securities Act. [ ]
CALCULATION OF REGISTRATION FEE
Title of each Class of Securities to be Registered | Amount to be Registered(1) | Proposed Maximum Offering Price Per Share(2) | Proposed Maximum Aggregate Offering Price(2) | Amount of Registration Fee | ||||||||||||
| Shares of Common Stock, par value $0.001 per share, issuable upon conversion of shares of Series B convertible preferred stock(3) | 4,615,379 | $ | 0.8615 | $ | 3,976,149.01 | $ | 481.91 | |||||||||
| Shares of Common Stock, par value $0.001 per share, issuable upon conversion of shares of Series C convertible preferred stock(4) | 1,146,341 | $ | 0.8615 | $ | 987,572.77 | $ | 119.69 | |||||||||
| Shares of Common Stock, par value $0.0001 per share, issuable upon exercise of warrants(5) | 2,307,686 | $ | 0.8615 | $ | 1,988,071.49 | $ | 240.95 | |||||||||
| Total | 8,069,406 | $ | 0.8615 | 6,951,793.27 | $ | 842.56 | ||||||||||
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 | — | — | — | — | ||||||||||||
| Units | — | — | — | — | ||||||||||||
| Total | $ | 150,000,000 | $ | 18,180 | (4) | |||||||||||
(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 and rights to purchase common stock, preferred stock or debt securities, and such indeterminate number of units, as shall have an aggregate initial offering price not to exceed $150,000,000. If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal amount as shall result in an aggregate initial offering price not to exceed $150,000,000, less the aggregate dollar amount of all securities previously issued hereunder. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. The proposed maximum initial offering price per unit will be determined, from time to time, by the registrant in connection with the issuance by the registrant of the securities registered hereunder. The securities registered also include such indeterminate number of shares of common stock and preferred stock as may be issued upon conversion or exchange of convertible or exchangeable securities being registered hereunder or pursuant to the anti-dilution provisions of any such securities. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended, the shares being registered hereunder include such indeterminate number of shares of common stock and preferred 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.
(4)Pursuant to Rule457(p) under the Securities Act, a portion of the registration fee is offset by registration fees of $14,601 previously paid with respect to securities that were registered pursuant to a Registration Statement on Form S-3 (No. 333-213087) filed by the registrant and declared effective by the Securities and Exchange Commission on August 23, 2016, but never sold. Accordingly, $3,579 is being paid with the filing of this Registration Statement.
The registrantRegistrant hereby amends this registration statementRegistration Statement on such date or dates as may be necessary to delay its effective date until the registrantRegistrant shall file a further amendment which specifically states that this registration statementRegistration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this registration statementthe Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. The selling stockholders may not sell the securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.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.
SUBJECT TO COMPLETION, DATED NOVEMBER 21, 2018JULY 24, 2019
PROSPECTUS
8,069,406 Shares of Common Stock
RITTER PHARMACEUTICALS, INC.
$150,000,000
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
RIGHTS
UNITS
This prospectus relateswill allow us to issue, from time to time at prices and on terms to be determined at or prior to the resale or other disposition bytime of the selling stockholders identifiedoffering, up to $150,000,000 of any combination of the securities described in this prospectus, of up to 8,069,406 shares of oureither individually or in units. We may also offer common stock. Of these shares, 4,615,379 shares are issuablestock or preferred stock upon the conversion of our Series B convertibleor exchange for the debt securities; and common stock or preferred stock 1,146,341 shares are issuable upon the conversion of our Series C convertible preferred stock, and 2,307,686 shares are issuableor debt securities upon the exercise of outstanding warrants to purchase our common stock, all issued to the selling stockholders in connection with a private placement we completed on November 5, 2018.or rights.
This prospectus describes the general terms of these securities and the general manner in which these securities will be offered. We are not sellingwill provide you with the specific terms of any shares of common stock underoffering 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 will not receive any of the proceeds from the saleprospectus supplement, as well as any documents incorporated by reference into this prospectus or other disposition of common stock by the selling stockholders. To the extent the warrants are exercised for cash, if at all, we will receive the exercise price of the warrants.any prospectus supplement, carefully before you invest.
The selling stockholders or their pledgees, assignees or successors-in-interestOur securities may offer and sell or otherwise dispose of the shares of common stock described in this prospectusbe sold directly by us to you, through agents designated from time to time or to or through publicunderwriters or private transactions at prevailing market prices, at prices related to prevailing market prices or at privately negotiated prices. The selling stockholders will bear all commissions and discounts, if any, attributabledealers. For additional information on the methods of sale, you should refer to the sales of shares. We will bear all costs, expenses and fees in connection with the registration of the shares. Seesection entitled “Plan of Distribution” beginning on page 11 for more information about howin this prospectus and in the selling stockholders may sellapplicable prospectus supplement. If any underwriters or disposeagents are involved in the sale of their sharesour securities with respect to which this prospectus is being delivered, the names of common stock.such underwriters or agents and any applicable fees, commissions or discounts and over-allotment options will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds that we expect to receive from such sale will also be set forth in a prospectus supplement.
Our common stock is listed on the Nasdaq Capital Market, under the symbol “RTTR.” On November 20, 2018,July 23, 2019, the last reported sale price of our common stock on the Nasdaq Capital Market was $0.83$1.01 per share.
As of July 23, 2019, the aggregate market value of our outstanding common stock held by non-affiliates was approximately $8.5 million, based on 9,350,026 shares of outstanding common stock, of which 8,363,969 shares were held by non-affiliates, and a per share price of $1.01 based on the closing sale price of our common stock as of July 23, 2019. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities pursuant to this prospectus with a value of more than one-third of the aggregate market value of our common stock held by non-affiliates in any twelve-month period, so long as the aggregate market value of our common stock held by non-affiliates is less than $75,000,000. In the event that subsequent to the date of this prospectus, the aggregate market value of our outstanding common stock held by non-affiliates equals or exceeds $75,000,000, then the one-third limitation on sales shall not apply to additional sales made pursuant to this prospectus. We have not offered any securities pursuant to General Instruction I.B.6 of Form S-3 during the twelve calendar months prior to and including the date of this prospectus.
Investing in our common stocksecurities involves a high degree of risk. Before making an investment decision, please readdeciding whether to invest in our securities, you should consider carefully the information under the heading “Risk Factors” beginningrisks that we have described on page 52 of this prospectus andunder the caption “Risk Factors.” We may include specific risk factors in supplements to this prospectus under the documents incorporatedcaption “Risk Factors.” This prospectus may not be used to sell our securities unless accompanied by reference in this prospectus.a prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacydetermined if this prospectus is truthful or accuracy of this prospectus.complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2018________, 2019
TABLE OF CONTENTS
This prospectus is a part of a registration statement that we filed with the Securities and Exchange Commission, or the SEC, utilizing a “shelf” registration process. Under this shelf registration process, certain selling stockholderswe may from time to time sell theoffer shares of our common stock, preferred stock, various series of debt securities and/or warrants or rights to purchase any of such securities, either individually or in units, in one or more offerings, with a total value of up to $150,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will contain specific information about the terms of that offering.
This prospectus does not contain all of the information included in the registration statement. For a more complete understanding of the offering of the securities, you should refer to the registration statement, including its exhibits. The prospectus supplement may also add, update or change information contained or incorporated by reference in this prospectus. However, no prospectus supplement will offer a security that is not registered and described in this prospectus in one or more offerings.at the time of its effectiveness. This prospectus, together with the applicable prospectus supplements and the documents incorporated by reference into this prospectus, includes all material information relating to the offering of securities under this prospectus. You should carefully read this prospectus, the applicable prospectus supplement, the information and documents incorporated herein by reference and the additional information under the heading “Where You Can Find More Information” before making an investment decision.
You should rely only on the information we have provided or incorporated by reference in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with information different from that contained or incorporated by reference in this prospectus. No dealer, salesperson or other person is authorized to give any information or to make any representation other than thoserepresent anything not contained or incorporated by reference in this prospectus. You must not rely uponon any unauthorized information or representation not contained or incorporated by reference in this prospectus. The selling stockholders are offeringrepresentation. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and seeking offers to buy, shares of our common stock only in jurisdictions where it is lawful to do so. This prospectus does not constitute an offer to sell or the solicitation of an offer to buy any shares other than the registered shares to which they relate, nor does this prospectus constitute an offer to sell or the solicitation of an offer to buy shares in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. You should not assume that the information contained in this prospectus or any prospectus supplement is accurate on any date subsequent toonly as of the date set forth on the front of the document orand that any information we have incorporated herein by reference is correct on any date subsequent toaccurate only as of the date of the document incorporated by reference, even thoughregardless of the time of delivery of this prospectus is delivered or shares are sold onany sale of a later date.security.
YouWe further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference in the accompanying prospectus were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should readnot 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.
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 togetherand any documents incorporated by reference, the document with the additional information describedmost recent date will control.
We were formed as a Nevada limited liability company on March 29, 2004 under the headings “Where You Can Find More Information”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 “Incorporation of Certain Information by Reference.”similar terms refer to Ritter Pharmaceuticals, Inc.
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This prospectus may contain referencesThe following is a summary of what we believe to our trademark and to trademarks belonging to other entities. Solely for convenience, trademarks and trade names referred to in this prospectus, including logos, artwork and other visual displays, may appear withoutbe the®orTM symbols, but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights or the rights most important aspects of the applicable licensor to these trademarks and trade names. We do not intend our use or display of other companies’ trade names or trademarks to imply a relationship with, or endorsement or sponsorship of us by, any other company.
This summary description about us and our business highlights selected information contained elsewhere inand the offering of our securities under this prospectus or incorporated in this prospectus by reference. This summary does not contain all of the informationprospectus. We urge you should consider before investing in our common stock. You should carefullyto read this entire prospectus, including each ofthe 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 herein by reference herein or therein, before makingpurchasing 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 decision. As used in this prospectus, the terms “we,” “us,” “our,” “the Company” and “Ritter” mean Ritter Pharmaceuticals, Inc.our securities.
OverviewThe Company
Ritter Pharmaceuticals, Inc. develops novel therapeutic products that modulate the gut microbiome to treat digestive disorders and gastrointestinal diseases. OurThe Company’s lead product candidate, RP-G28, has the potential to become the first drug approved by the Food and Drug Administrationis an orally administered, high purity galacto-oligosaccharide, currently in Phase 3 clinical development for the treatment of lactose intolerance (“LI”), a condition that affects millions worldwide. RP-G28 has been studied in Phase 2 clinical trials and is now in Phase 3 clinical development with its first Phase 3 study currently underway. We are further exploring the functionality and discovering the therapeutic potential that gut microbiome changes may have on treating/preventing a variety of conditions including: gastrointestinal cancer, metabolic, and liver diseases.
Our first novel microbiome modulator, RP-G28, an orally administered, high purity galacto-oligosaccharide, is currently under development for the treatment of lactose intolerance.people worldwide. RP-G28 is designed to selectively stimulate the growth of lactose-metabolizing bacteria in the colon, thereby effectively adapting the gut microbiome to assist in digesting lactose (the sugar found in milk) that reaches the large intestine.
Our current Phase 3 clinical program includes two confirmatory clinical trials RP-G28 has the potential to become the first drug approved by the Food and Drug Administration for the treatment of similar trial design as our Phase 2b clinical trial.LI. The first Phase 3 clinical trial was initiatedCompany is further exploring the functionality and discovering the therapeutic potential that gut microbiome changes may have on treating/preventing a variety of conditions including gastrointestinal diseases, cancer, metabolic, and liver diseases. The Company intends to expand its product pipeline and create added value in the second quarter of 2018.future by evaluating RP-G28 in other indications, developing additional products based on its underlying, microbiome-modulating technology or in-licensing complementary products to treat these, or other, conditions.
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, Suite 1000,#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.
Summary of Private PlacementOfferings Under This Prospectus
On November 5, 2018, or the Closing,Under this prospectus, we closed a private placement, or the Private Placement, pursuant to a securities purchase agreement, dated as of October 30, 2018, or the Securities Purchase Agreement, between us and the selling stockholders. At the Closing, we issued 6,000 shares of our Series B convertible preferred stock (convertible into 4,615,379 shares of our common stock) and warrants to purchase 2,307,686may offer shares of our common stock, preferred stock, various series of debt securities and/or warrants or rights 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 an exercise price per shareprices and on terms to be determined by market conditions at the time of $1.30 (subject to customary adjustments in the eventoffering. This prospectus provides you with a general description of future stock splitsthe 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 dividends), or the Warrants, to the selling stockholders.
Pursuant to theother important terms of the Securities Purchase Agreement, at the Closing, certain selling stockholders participating in the Private Placement who owned shares of our outstanding Series A convertible preferred stock exchanged their shares of Series A convertible preferred stock for shares of our Series C convertible preferred stock (convertible into 1,146,341 shares of our common stock), on a one-for-one basis, or the Exchange. The maximum aggregate number of shares of common stock that may be issued by the Company upon conversion of the Series C convertible preferred stock is limited to 1,146,354 shares, or the Exchange Cap, representing 19.99% of the shares of our common stock outstanding immediately prior to execution of the Securities Purchase Agreement, unless we obtain stockholder approval to issue shares in excess of the Exchange Cap in accordance with the applicable rules of the Nasdaq Capital Market.securities.
The aggregate gross proceeds fromprospectus 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 Private Placement were approximately $6.0 million. We intend to useterms that are set forth in this prospectus or offer a security that is not registered and described in this prospectus at the net proceeds from the Private Placement to fund operations, including our ongoing Phase 3 clinical trial for RP-G28 throughtime of its completion and dissemination of top-line results, and for working capital and general corporate purposes.effectiveness.
A.G.P./Alliance Global Partners,We may sell the securities directly to investors or A.G.P., served asto or through agents, underwriters or dealers. We, and our agents or underwriters, reserve the sole placement agent for the Private Placement. Roth Capital Partners, LLC acted as a financial advisor for the transaction.
Asright to accept or reject all or part of the Private Placement,any proposed purchase of securities. If we entered into a registration rights agreement with the selling stockholders,offer securities through agents or the Registration Rights Agreement, pursuant to whichunderwriters, we agreed to file a registration statement to register for resale the shares of common stock issuable upon conversion of the shares of Series B convertible preferred stock and the Series C convertible preferred stock and upon the exercise of the Warrants issuedwill include in the Private Placement, within 30 days following the Closing. We are required to use our reasonable best efforts to cause the registration statement to be declared effective under the Securities Act of 1933, as amended, or the Securities Act, as soon as practicable, but in no event later than 60 days after the Closing (or 90 days in the event of a full review of the registration statement by the SEC). We agreed to keep the registration statement effective until all registrable securities may be sold pursuant to Rule 144 under the Securities Act, without the need for current public information or other restriction. We also agreed, among other things, to indemnify the selling stockholders under the registration statements from certain liabilities and to pay all fees and expenses incident to our performance of or compliance with the Registration Rights Agreement.
The issuance of the Series B convertible preferred stock, the Series C convertible preferred stock and the Warrants in connection with the Private Placement was exempt from registration under the Securities Act pursuant to the exemption for transactions by an issuer not involving a public offering under Section 4(a)(2) of the Securities Act and Regulation D promulgated thereunder. Please see “Description of Capital Stock” for a description of the Series B convertible preferred stock, the Series C convertible preferred stock and the Warrants and the Registration Rights Agreement.
The Offeringapplicable prospectus supplement:
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An investmentPlease carefully consider the risk factors described in our common stock involves a high degree of risk. Prior toperiodic reports filed with the SEC, which are incorporated by reference in this prospectus. Before making aan investment decision, about investing in our common stock, you should carefully consider thethese risks uncertainties and assumptions discussed under Item 1A, “Risk Factors,” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2017, as updated by our subsequent filings with the Securities and Exchange Commission,well as other information we include or the SEC, under the Securities Exchange Act of 1934, as amended, or the Exchange Act, which are incorporated hereinincorporate by reference together with the information in this prospectus andor include in any other information incorporated by reference into this prospectus. See the sections of thisapplicable prospectus entitled “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”supplement. Additional risks and uncertainties not presently known to us or that we deem currently deem immaterial may also impair our business operations or adversely affect our business, financial condition or results of operations. The occurrence of any of these knownoperations or unknown risks might cause you to lose all or part of your investment in our common stock.financial condition.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus andSome of the information and documents incorporated by referencestatements in this prospectus contain certain statements thatand in any prospectus supplement we may file constitute “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Securities Exchange Act includingof 1934 as amended (the “Exchange Act”). These statements regarding:
Any or all ofrelate to future events concerning our business and to our future revenues, operating results and financial condition. In some cases, you can identify forward-looking statements included or incorporated by reference in this prospectus may turn out to be wrong. They can be affected by inaccurate assumptions or by known or unknown risks and uncertainties. Many factors mentioned in our discussion included or incorporated by reference in this prospectus will be important in determining future results. Consequently, no forward-looking statement can be guaranteed. Actual future results may vary materially from expected results.
We also provide a cautionary discussion of risks and uncertainties under “Risk Factors” in this prospectus. Other factors besides those discussed could also adversely affect us.
Without limiting the foregoing, the words “believe,” “anticipate,” “plan,” “expect,” “estimate,”terminology such as “may,” “will,” “should,” “could,” “would,” “seek,“should,” “expect,” “plan,” “anticipate,” “intend,” “believe,” “estimate,” “forecast,” “predict,” “propose,” “potential” or “continue,” “project,”or the negative of those terms or other comparable terminology.
Any forward looking statements contained in this prospectus or any prospectus supplement are only estimates or predictions of future events based on information currently available to our management and similar expressionsmanagement’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 intendedsubject to identify forward-looking statements.numerous risks. There are a number of important factors and uncertainties that could cause actual events or results to differ materially from the results anticipated by these forward-looking statements. These important factors include those indicated by such forward-looking statements, many of which are beyond our control, includingthat we discuss under the factors discussed underheading “Risk Factors” herein. In addition,and in other sections of our Annual Report on Form 10-K for the forward-lookingyear ended December 31, 2018, our Quarterly Reports on Form 10-Q for the quarterly period ended March 31, 2019, each filed with the SEC, as well as in our Current Reports filed on Form 8-K from time to time with the SEC, that are incorporated by reference into this prospectus. You should read these factors and the other cautionary statements contained herein represent our estimate only as of the date ofmade in this prospectus and should not be relied uponin the documents we incorporate by reference into this prospectus as representingbeing 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 estimate as ofactual results, performance or achievements may vary materially from any subsequent date. While we may elect to updatefuture results, performance or achievements expressed or implied by these forward-looking statements at some point in the future, we specifically disclaim anystatements. We undertake no obligation to do so to reflect actual results, changes in assumptionspublicly update any forward-looking statements, whether as a result of new information, future events or changes in other factors affecting such forward-looking statements.otherwise, except as required by law.
We cannot assure you that we will not receive any ofproceeds 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 proceeds from the sale of sharessecurities 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 our common stock in this offering bynew programs, general working capital and possible future acquisitions. We have not determined the selling stockholders. The selling stockholders will receive allamounts we plan to spend on any of the proceeds from this offering.
A portionareas listed above or the timing of these expenditures. As a result, our management will have broad discretion to allocate the shares covered by this prospectus are issuable upon exercise of the Warrants to purchase shares of our common stock. Pursuant to conditions set forth in the warrants, the warrants are exercisable under certain circumstances on a cashless basis, and should a selling stockholder elect to exercise on a cashless basis we will not receive any proceeds from the sale of common stock issued upon the cashless exercise of the warrant. The holders of the Warrants are not obligated to exercise their Warrants, and we cannot predict whether holders of the Warrants will choose to exercise all or any of their Warrants or if they will do so for cash or on a cashless basis. However, if all of the Warrants were exercised for cash, we would receive gross proceeds of approximately $3.0 million. We currently intend to use suchnet proceeds, if any, to fund operations, including our ongoing Phase 3 clinical trial for RP-G28 through its completion and dissemination of top-line results, and for working capital and general corporate purposes.
We have agreed to pay all costs, expenses and fees relating to the registration of the shares of our common stock covered by this prospectus. The selling stockholders will pay any brokerage commissions and/or similar charges incurredwe receive in connection with the sale or other disposition by them of the shares covered hereby.
The shares of common stock beingsecurities offered by the selling stockholders are those issuable to the selling stockholders upon conversion of the Series B convertible preferred stock and Series C convertible preferred stock and upon exercise of the Warrants. For additional information regarding the issuances of those securities, see “Prospectus Summary—Summary of Private Placement” above. We are registering the shares of common stock in order to permit the selling stockholders to offer the shares for resale from time to time.
Except for the sale and issuance of the shares of the Series B convertible preferred stock, the Series C convertible preferred stock and the Warrants in the Private Placement and the Exchange, and except as otherwise disclosed in the footnotes below, the selling stockholders have not had any material relationship with us within the past three years. To our knowledge, none of the selling stockholders are affiliates of broker-dealers.
The table below lists the selling stockholders and other information regarding the beneficial ownership of the shares of common stock of each of the selling stockholders. The second column lists the number of shares of common stock beneficially owned by each selling stockholder, as of the Closing, assuming full conversion of the Series B convertible preferred stock and Series C convertible preferred stock and full exercise of the Warrants held by the selling stockholders on that date, without regard to any limitations on conversions or exercises. The third column lists the number of shares of common stock being offered by the selling stockholders in this prospectus.
In accordance with the terms of the Registration Rights Agreement with the selling stockholders, this prospectus generally covers the resale of (i) the shares of common stock issuable upon conversion in full of the shares of Series B convertible preferred stock issued to the selling stockholders in the Private Placement (assuming the shares of Series B convertible preferred stock are converted in full without regard to the limitation described below), (ii) the shares of common stock issuable upon conversion in full of the shares of Series C convertible preferred stock issued to certain selling stockholders in the Exchange (assuming the shares of Series C convertible preferred stock are converted in full without regard to the limitation described below), and (iii) the maximum number of shares of common stock issuable upon exercise of the Warrants issued to the selling stockholders in the Private Placement (assuming the Warrants are exercised in full without regard to the limitation described below). The fourth and fifth columns list the number of shares of common stock and percentage of our outstanding common stock to be held by the selling stockholder assuming the sale of all of the shares of common stock offered by the selling stockholders pursuant to this prospectus.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.
Pursuant to the Certificates of Designation of Preferences, Right and Limitations for our Series B convertible preferred stock and Series C convertible preferred stock, our shares of Series B convertible preferred stock and Series C convertible preferred stock may not be converted by the selling stockholders, at their election, if such conversion would cause such selling stockholders, together with their affiliates and attribution parties, to beneficially own a number of shares of common stock that would exceed 4.99% of our then outstanding common stock following such conversion (subject to adjustment up to 9.99% upon the fulfillment of certain conditions).
Similarly, under the terms of the Warrants, the selling stockholders, at their election, may not exercise the Warrants to the extent such exercise would cause such selling stockholders, together with their affiliates and attribution parties, to beneficially own a number of shares of common stock which would exceed 4.99% of our then outstanding common stock following such exercise (subject to adjustment up to 9.99% upon the fulfillment of certain conditions), excluding for purposes of such determination shares of common stock issuable upon exercise of the Warrants which have not been exercised.
The number of shares in the first and second columns below does not reflect the limitations set forth in the preceding paragraphs. The selling stockholders may sell all, some or none of their shares in this offering. See “Plan of Distribution.”
| Name of Selling Stockholder | Number of Shares of Common Stock Owned Prior to Offering(1) | Maximum Number of Shares of Common Stock to be Sold Pursuant to this Prospectus(1) | Number of Shares of Common Stock Owned After Offering(2) | Percentage of Class Following the Offering(2) | ||||||||||||
| Armistice Capital Master Fund, Ltd. | 4,369,230 | (3) | 3,307,691 | 1,061,539 | 15.8 | % | ||||||||||
| Sabby Volatility Warrant Master Fund, Ltd. | 1,201,523 | (4) | 576,923 | 624,600 | 10.1 | % | ||||||||||
| Medpace, Inc. | 865,384 | (5) | 865,384 | 0 | — | |||||||||||
| Bigger Capital Fund, LP | 738,460 | (6) | 663,460 | 75,000 | 1.3 | % | ||||||||||
| District 2 Capital Fund LP | 663,460 | (7) | 663,460 | 0 | — | |||||||||||
| Alpha Capital Anstalt | 723,263 | (8) | 723,263 | 0 | — | |||||||||||
| Iroquois Capital Investment Group LLC | 317,307 | (9) | 317,307 | 0 | — | |||||||||||
| Steven G. Lampe | 288,460 | (10) | 288,460 | 0 | — | |||||||||||
| Steven Lampe and Jill Lampe JTWROS | 288,460 | (11) | 288,460 | 0 | — | |||||||||||
| Iroquois Master Fund Ltd. | 259,614 | (12) | 259,614 | 0 | — | |||||||||||
| Matthew W. Foehr | 142,580 | (13) | 115,384 | 27,196 | * | |||||||||||
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Each selling stockholderGeneral Plan of theDistribution
We may offer securities and any of their pledgees, assignees and successors-in-interest may,under this prospectus from time to time sell anypursuant to underwritten public offerings, negotiated transactions, block trades or alla combination of their securities covered hereby on the principal trading market or any other stock exchange, market or trading facility on whichthese methods. We may sell the securities are traded(1) through underwriters or in private transactions. These sales may be at fixeddealers, (2) through agents or negotiated prices. A selling stockholder may use any(3) directly to one or more purchasers, or through a combination of such methods. We may distribute the following methods when selling securities:securities from time to time in one or more transactions at:
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The selling stockholdersWe may directly solicit offers to purchase the securities being offered by this prospectus. We may also selldesignate agents to solicit offers to purchase the securities under Rule 144from time to time. We will name in a prospectus supplement any underwriter or any other exemption from registration underagent involved in the Securities Act, if available, rather than under this prospectus.offer or sale of the securities.
Broker-dealers engagedIf 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 selling stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts fromdealer at the selling stockholders (or, if any broker-dealer acts as agent for the purchasertime of securities, from the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus,resale.
If we utilize an underwriter in the casesale of the securities being offered by this prospectus, we will execute an agency transaction not in excessunderwriting agreement with the underwriter at the time of a customary brokerage commission in compliance with FINRA Rule 2440;sale, and we will provide the name of any underwriter in the caseprospectus supplement which the underwriter will use to make re-sales of a principal transaction a markup or markdown in compliance with FINRA IM-2440.
the securities to the public. In connection with the sale of the securities, we, or interests therein, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short salespurchasers of the securities for whom the underwriter may act as agent, may compensate the underwriter in the courseform of hedging the positions they assume.underwriting discounts or commissions. The selling stockholdersunderwriter may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities to broker-dealers thator through dealers, and the underwriter may compensate those dealers in turn may sell these securities. The selling stockholders may also enter into optionthe form of discounts, concessions 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 securities offered by this prospectus, which securities such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).commissions.
The selling stockholdersWith 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 broker-dealersdiscounts, concessions or commissions allowed by underwriters to participating dealers. Underwriters, dealers and agents that are involvedparticipating in sellingthe distribution of the securities may be deemed to be “underwriters”underwriters within the meaning of the Securities Act in connection with such sales. In such event,of 1933, as amended, or the Securities Act, and any discounts and commissions received by such broker-dealers or agentsthem and any profit realized by them on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Each selling stockholder has informed the Company that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the securities.
The Company is required to pay certain fees and expenses incurred by the Company incident to the registration of the securities. The Company has agreedcommissions. We may enter into agreements to indemnify the selling stockholdersunderwriters, dealers and agents against certain losses, claims, damages andcivil liabilities, including liabilities under the Securities Act.Act, or to contribute to payments they may be required to make in respect thereof.
We agreedIf so indicated in the applicable prospectus supplement, we will authorize underwriters or other persons acting as our agents to keep this prospectus effective until the earlier of (i)solicit offers by certain institutions to purchase securities from us pursuant to delayed delivery contracts providing for payment and delivery on the date on whichstated in the securities mayprospectus supplement. Each contract will be resold byfor an amount not less than, and the selling stockholders without registration and without regard to any volume or manner-of-sale limitations by reasonaggregate amount of Rule 144, without the requirement for the Company to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar effect or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale securities covered hereby maysuch contracts shall not be sold unless they have been registered or qualified for saleless nor more than, the respective amounts stated in the applicable state or an exemption fromprospectus supplement. Institutions with whom the registration or qualification requirement is availablecontracts, when authorized, may be made include commercial and is complied with.
Under applicable rulessavings banks, insurance companies, pension funds, investment companies, educational and regulations under the Exchange Act, any person engagedcharitable institutions and other institutions, but shall in the distribution of the resale securities may not simultaneously engage in market making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the selling stockholders willall cases be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the common stock by the selling stockholders orour approval. Delayed delivery contracts will not be subject to any other person. We will make copies of this prospectus available to the selling stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).
The following description of our capital stock is not complete and may not contain all the information you should consider before investing in our capital stock. This description is summarized from, and qualified in its entirety by reference to, our Amended and Restated Certificate of Incorporation, the Certificates of Designation of Preferences, Right and Limitations for our Series A convertible preferred stock, Series B convertible preferred stock and Series C convertible preferred stock and our Amended and Restated Bylaws, which have been publicly filed with the SEC. See the sections of this prospectus entitled “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”
Our authorized capital stock consists of:conditions except that:
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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 descriptions set forth below, please referoffering 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.
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.
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General
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 other publicly filed documents incorporated hereinamended and restated certificate of incorporation and our amended and restated bylaws.
Our authorized capital stock consists of 240,000,000 shares, all with a par value of $0.001 per share, 225,000,000 of which are designated as common stock and 15,000,000 of which are designated as preferred stock, consisting of (i) 9,500 shares that have been designated Series A Convertible Preferred Stock, (ii) 6,000 shares that have been designated as Series B Convertible Preferred Stock, and (iii) 1,880 shares that have been designated as Series C Convertible Preferred Stock.
As of July 23, 2019, we had 35 holders of record of our common stock, which excludes stockholders whose shares were held in nominee or street name by reference, which describe our other outstanding warrants, registration rights, equity incentive plansbrokers. The actual number of common stockholders is greater than the number of record holders and includes stockholders who are beneficial owners, but whose shares are held in street name by brokers and other securities.nominees. This number of holders of record also does not include stockholders whose shares may be held in trust by other entities.
Common Stock
As of November 20, 2018, there were 5,734,639 shares of our common stock outstanding.
Pursuant to the terms of our Amendedamended and Restated Certificaterestated certificate of Incorporation,incorporation, the holders of common stock are entitled to one vote per share on all matters to be voted upon by the stockholders, except on matters relating solely to terms of preferred stock. Subject to preferences that may be applicable to any outstanding preferred stock, the holders of common stock will be entitled to receive ratably such dividends, if any, as may be declared from time to time by the board of directors out of funds legally available therefor. See “Dividend Policy.” In the event of our liquidation, dissolution or winding up, the holders of our common stock will be entitled to share ratably in all assets remaining after payment of liabilities, subject to prior distribution rights of preferred stock, if any, then outstanding. The holders of our common stock will have no preemptive or conversion rights or other subscription rights. There will be no redemption or sinking fund provisions applicable to our common stock.
As of July 23, 2019, we had 9,350,026 shares of our common stock outstanding.
Series A Convertible Preferred Stock
Pursuant to the terms of our amended and restated certificate of incorporation, our board of directors has the authority to issue preferred stock in one or more classes or 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.
The issuance of shares of preferred stock, or the issuance of rights to purchase such shares, may decrease the amount of earnings and assets available for distribution to the holders of common stock, could adversely affect the rights and powers, including voting rights, of the Series A convertiblecommon stock, and could have the effect of delaying, deterring or preventing a change of control of us or an unsolicited acquisition proposal.
As of July 23, 2019, we had 6,720 shares of preferred stock are set forth in the Certificateoutstanding, consisting of Designation of Preferences, Right and Limitations. A total of 9,500 shares of Series A convertible preferred stock are authorized for issuance under the Certificate of Designation of Preferences, Right and Limitations, and a total of(i) 4,080 shares of Series A convertible preferred stock were outstanding as of November 20, 2018. TheConvertible Preferred Stock, (ii) 2,400 shares of Series A convertible preferred stock have a stated valueB Convertible Preferred Stock, and (iii) 240 shares of $1,000 per share and have a conversion price of $4.00 per share (subject to customary adjustment in the event of future stock dividends and stock splits).Series C Convertible Preferred Stock.
Rank.The Series A convertible preferred stock rank on parity to our common stock.Equity Incentive Plans
Conversion.Each shareAs of Series A convertible preferred stock is convertible intoJuly 23, 2019, we had outstanding options to acquire 1,341,135 shares of our common stock, (subject to customary adjustment in the event of future stock dividends and stock splits) at any time at the option of the holder athaving a conversionweighted-average exercise price of $4.00 (subject$10.25 per share. We also had 1,410,000 restricted stock units outstanding. Each restricted stock unit represents a contingent right to customary adjustment in the event of future stock dividends and stock splits). Holders of Series A convertible preferred stock will be prohibited from converting Series A convertible preferred stock into sharesreceive one share of our common stock if, as a result of such conversion, the holder, together with its affiliates, would own more than 4.99% of the total number of shares of our common stock then issued and outstanding.
Liquidation Preference. In the event of our liquidation, dissolution provided certain timing and/or winding-up, holders of Series A convertible preferred stock will be entitled to receive the same amount that a holder of our common stock would receive if the Series A convertible preferred stock were fully converted into shares of our common stock at the conversion price (disregarding for such purposes any conversion limitations) which amounts shall be paidpari passu with all holders of common stock.
Voting Rights. Shares of Series A convertible preferred stock generally have no voting rights, except as required by law and except that the affirmative vote of the holders of a majority of the then outstanding shares of Series A convertible preferred stock is required to, (a) alter or change adversely the powers, preferences or rights given to the Series A convertible preferred stock, (b) amend our certificate of incorporation or other charter documents in any manner that materially adversely affects any rights of the holders, (c) increase the number of authorized shares of Series A convertible preferred stock, or (d) enter into any agreement with respect to any of the foregoing.
Dividends.Shares of Series A convertible preferred stockperformance conditions are not entitled to receive any dividends, unless and until specifically declared by our board of directors. The holders of the Series A convertible preferred stock participate, on an as-if-converted-to-common stock basis, in any dividends to the holders of common stock.
Redemption.We are not obligated to redeem or repurchase any shares of Series A convertible preferred stock. Shares of Series A convertible preferred stock are not otherwise entitled to any redemption rights or mandatory sinking fund or analogous fund provisions.
Exchange Listing. The Series A convertible preferred stock is not listed on any national securities exchange or other nationally recognized trading system.
Series B Convertible Preferred Stock
The rights of the Series B convertible preferred stock are set forth in the Certificate of Designation of Preferences, Right and Limitations. A total of 6,000 shares of Series B convertible preferred stock are authorized for issuance under the Certificate of Designation of Preferences, Right and Limitations, and a total of 6,000 shares of Series B convertible preferred stock were outstanding as of November 20, 2018. The shares of Series B convertible preferred stock have a stated value of $1,000 per share and have a conversion price of $1.30 per share (subject to customary adjustment in the event of future stock dividends and stock splits).
Rank.The Series B convertible preferred stock rank on parity to our common stock.
Conversion.Each share of Series B convertible preferred stock is convertible into shares of our common stock (subject to adjustment as provided in the related Certificate of Designation of Preferences, Rights and Limitations) at any time at the option of the holder at a conversion price of $1.30 (subject to customary adjustment in the event of future stock dividends and stock splits). Holders of Series B convertible preferred stock will be prohibited from converting Series B convertible preferred stock into shares of our common stock if, as a result of such conversion, the holder, together with its affiliates, would own more than 4.99% of the total number of shares of our common stock then issued and outstanding.
Liquidation Preference. In the event of our liquidation, dissolution or winding-up, holders of Series B convertible preferred stock will be entitled to receive the same amount that a holder of our common stock would receive if the Series B convertible preferred stock were fully converted into shares of our common stock at the conversion price (disregarding for such purposes any conversion limitations) which amounts shall be paidpari passu with all holders of common stock.
Voting Rights. Shares of Series B convertible preferred stock generally have no voting rights, except as required by law and except that the affirmative vote of the holders of a majority of the then outstanding shares of Series B convertible preferred stock is required to, (a) alter or change adversely the powers, preferences or rights given to the Series B convertible preferred stock, (b) amend our certificate of incorporation or other charter documents in any manner that materially adversely affects any rights of the holders, (c) increase the number of authorized shares of Series B convertible preferred stock, or (d) enter into any agreement with respect to any of the foregoing.
Dividends.Shares of Series B convertible preferred stock are not entitled to receive any dividends, unless and until specifically declared by our board of directors. The holders of the Series B convertible preferred stock participate, on an as-if-converted-to-common stock basis, in any dividends to the holders of common stock.
Redemption.We are not obligated to redeem or repurchase any shares of Series B convertible preferred stock. Shares of Series B convertible preferred stock are not otherwise entitled to any redemption rights or mandatory sinking fund or analogous fund provisions.
Exchange Listing. The Series B convertible preferred stock is not listed on any national securities exchange or other nationally recognized trading system.
Series C Convertible Preferred Stock
The rights of the Series C convertible preferred stock are set forth in the Certificate of Designation of Preferences, Right and Limitations. A total of 1,880 shares of Series C convertible preferred stock are authorized for issuance under the Certificate of Designation of Preferences, Right and Limitations, and a total of 1,880 shares of Series C convertible preferred stock were outstanding as of November 20, 2018. The shares of Series C convertible preferred stock have a stated value of $1,000 per share and have a conversion price of $1.64 per share (subject to customary adjustment in the event of future stock dividends and stock splits).
Rank.The Series C convertible preferred stock rank on parity to our common stock.
Conversion.Each share of Series C convertible preferred stock is convertible into shares of our common stock (subject to adjustment as provided in the related Certificate of Designation of Preferences, Rights and Limitations) at any time at the option of the holder at a conversion price of $1.64 (subject to customary adjustment in the event of future stock dividends and stock splits). Holders of Series C convertible preferred stock will be prohibited from converting Series C convertible preferred stock into shares of our common stock if, as a result of such conversion, the holder, together with its affiliates, would own more than 4.99% of the total number of shares of our common stock then issued and outstanding.
Liquidation Preference. In the event of our liquidation, dissolution or winding-up, holders of Series C convertible preferred stock will be entitled to receive the same amount that a holder of our common stock would receive if the Series C convertible preferred stock were fully converted into shares of our common stock at the conversion price (disregarding for such purposes any conversion limitations) which amounts shall be paidpari passu with all holders of common stock.
Voting Rights. Shares of Series C convertible preferred stock generally have no voting rights, except as required by law and except that the affirmative vote of the holders of a majority of the then outstanding shares of Series C convertible preferred stock is required to, (a) alter or change adversely the powers, preferences or rights given to the Series C convertible preferred stock, (b) amend our certificate of incorporation or other charter documents in any manner that materially adversely affects any rights of the holders, (c) increase the number of authorized shares of Series C convertible preferred stock, or (d) enter into any agreement with respect to any of the foregoing.
Dividends.Shares of Series C convertible preferred stock are not entitled to receive any dividends, unless and until specifically declared by our board of directors. The holders of the Series C convertible preferred stock participate, on an as-if-converted-to-common stock basis, in any dividends to the holders of common stock.
Redemption.We are not obligated to redeem or repurchase any shares of Series C convertible preferred stock. Shares of Series C convertible preferred stock are not otherwise entitled to any redemption rights or mandatory sinking fund or analogous fund provisions.
Exchange Listing. The Series C convertible preferred stock is not listed on any national securities exchange or other nationally recognized trading system.satisfied.
Warrants
Prior to the Offering, there wereAs of July 23, 2019, we had outstanding warrants to purchase an aggregate of 6,105,332 shares of the Company’s common stock outstanding. These warrants are all vested and exercisable, have exercise prices ranging from $4.40 to $93.00 per share, with a weighted average exercise price of $5.20 (subject to adjustment), and expire at various dates through October 2022.
Warrants to purchase an additional 2,307,6868,413,017 shares of our common stock, were issued to the selling stockholders in the Offering. These Warrants have anhaving a weighted-average exercise price of $1.78 per share of $1.30 (subject to customary adjustment in the event of future stock dividends and stock splits).share.
Registration Rights Agreement
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As part of the Private Placement, we entered into the Registration Rights Agreement, pursuant to which we agreed to file this registration statement to register for resale the shares of common stock issuable upon conversion of the shares of Series B convertible preferred stock and the Series C convertible preferred stock and upon the exercise of the Warrants issued in the Private Placement, within 30 days following the Closing. We are required to use our reasonable best efforts to cause this registration statement to be declared effective under the Securities Act, as soon as practicable, but in no event later than 60 days after the Closing (or 90 days in the event of a full review of the registration statement by the SEC). We agreed to keep this or any subsequent registration statement effective until all registrable securities may be sold pursuant to Rule 144 under the Securities Act, without the need for current public information or other restriction. We also agreed, among other things, to indemnify the selling stockholders under the registration statements from certain liabilities and to pay all fees and expenses incident to our performance of or compliance with the Registration Rights Agreement.
Aspire Capital Registration Rights
We are a party to a registration rights agreement with Aspire Capital Fund, LLC, in which we agreed to file one or more registration statements as permissible and necessary to register under the Securities Act, the sale of the shares of our common stock that have been and may be issued to Aspire Capital Fund, LLC, under that certain Common Stock Purchase Agreement, dated May 2, 2017, by and between us and Aspire Capital Fund, LLC.
Anti-Takeover Effects of Delaware Law and Our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws
The provisions of Delaware law and our Amendedamended and Restated Certificaterestated certificate of Incorporationincorporation and Amendedamended and Restated Bylaws,restated bylaws, could discourage or make it more difficult to accomplish a proxy contest or other change in our management or the acquisition of control by a holder of a substantial amount of our voting stock. It is possible that these provisions could make it more difficult to accomplish, or could deter, transactions that stockholders may otherwise consider to be in their best interests or in our best interests. These provisions are intended to enhance the likelihood of continuity and stability in the composition of our board of directors and in the policies formulated by the board of directors and to discourage certain types of transactions that may involve an actual or threatened change of our control. These provisions are designed to reduce our vulnerability to an unsolicited acquisition proposal and to discourage certain tactics that may be used in proxy fights. Such provisions also may have the effect of preventing changes in our management.
Delaware Statutory Business Combinations Provision. We are subject to the anti-takeover provisions of Section 203 of the Delaware General Corporation Law, or the DGCL. Section 203 prohibits a publicly-held Delaware corporation from engaging in a ‘business combination’“business combination” with an ‘interested stockholder’“interested stockholder” for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business combination is, or the transaction in which the person became an interested stockholder was, approved in a prescribed manner or another prescribed exception applies. For purposes of Section 203, a ‘business combination’“business combination” is defined broadly to include a merger, asset sale or other transaction resulting in a financial benefit to the interested stockholder, and, subject to certain exceptions, an ‘interested stockholder’“interested stockholder” is a person who, together with his or her affiliates and associates, owns, or within three years prior, did own, 15% or more of the corporation’s voting stock.
Election and Removal of Directors. Except as may otherwise be provided by the DGCL, any director or the entire board of directors may be removed, with or without cause, at an annual meeting or a special meeting called for that purpose, by the affirmative vote of the majority of the votes cast by the shares of our capital stock present in person or represented by proxy at such meeting and entitled to vote thereon, provided a quorum is present. Vacancies on our board of directors resulting from the removal of directors and newly created directorships resulting from any increase in the number of directors may be filled solely by the affirmative vote of a majority of the remaining directors then in office (although less than a quorum) or by the sole remaining director. This system of electing and removing directors may discourage a third party from making a tender offer or otherwise attempting to obtain control of us, because it generally makes it more difficult for stockholders to replace a majority of our directors. Our amended and restated certificate of incorporation and amended and restated bylaws do not provide for cumulative voting in the election of directors.
Advance Notice Provisions for Stockholder Proposals and Stockholder Nominations of Directors. Our Amendedamended and Restated Bylawsrestated bylaws provide that, for nominations to the board of directors or for other business to be properly brought by a stockholder before a meeting of stockholders, the stockholder must first have given timely notice of the proposal in writing to our Secretary. For an annual meeting, a stockholder’s notice generally must be delivered not less than 90 days or more than 120 days prior to the anniversary of the previous year’s annual meeting.
Special Meetings of Stockholders. Special meetings of the stockholders may be called at any time only by the board of directors, the Chairman of the board of directors, the Chief Executive Officer or the President, subject to the rights of the holders of any series of preferred stock then outstanding.
Blank-Check Preferred Stock. Our board of directors will beis authorized to issue, without stockholder approval, preferred stock, the rights of which will be determined at the discretion of the board of directors and that, if issued, could operate as a ‘poison pill’“poison pill” to dilute the stock ownership of a potential hostile acquirer to prevent an acquisition that our board of directors does not approve.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Corporate Stock Transfer, Inc.
Stock Market Listing
Our common stock is listed on The Nasdaq Capital Market under the symbol “RTTR.”
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LEGAL MATTERSDESCRIPTION OF DEBT SECURITIES
The validityfollowing description, together with the additional information we include in any applicable prospectus supplements, summarizes the material terms and provisions of the shares offered bydebt 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 may sell from time to time, in one or more offerings under this prospectus, debt securities, which may be senior or subordinated. We will issue any such senior debt securities under a senior indenture that we will enter into with a trustee to be named in the senior indenture. We will issue any such subordinated debt securities under a subordinated indenture, which we will enter into with a trustee to be named in the subordinated indenture. We use the term “indentures” to refer to either the senior indenture or the subordinated indenture, as applicable. The indentures will be passedqualified under the Trust Indenture Act of 1939, as in effect on the date of the indenture. We use the term “debenture trustee” to refer to either the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable.
The following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures are subject to, and qualified in their entirety by reference to, all the provisions of the indenture applicable to a particular series of debt securities.
General
Each indenture will provide that debt securities may be issued from time to time in one or more series and may be denominated and payable in foreign currencies or units based on or relating to foreign currencies. Neither indenture will limit the amount of debt securities that may be issued thereunder, and each indenture will provide that the specific terms of any series of debt securities shall be set forth in, or determined pursuant to, an authorizing resolution and/or a supplemental indenture, if any, relating to such series.
We will describe in each prospectus supplement the following terms relating to a series of debt securities:
| ● | the title or designation; | |
| ● | the aggregate principal amount and any limit on the amount that may be issued; | |
| ● | the currency or units based on or relating to currencies in which debt securities of such series are denominated and the currency or units in which principal or interest or both will or may be payable; | |
| ● | whether we will issue the series of debt securities in global form, the terms of any global securities and who the depositary will be; | |
| ● | the maturity date and the date or dates on which principal will be payable; | |
| ● | the interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the date or dates interest will be payable and the record dates for interest payment dates or the method for determining such dates; | |
| ● | whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; | |
| ● | the terms of the subordination of any series of subordinated debt; | |
| ● | the place or places where payments will be payable; |
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| ● | our right, if any, to defer payment of interest and the maximum length of any such deferral period; | |
| ● | the date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any optional redemption provisions; | |
| ● | the date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities; | |
| ● | whether the indenture will restrict our ability to pay dividends, or will require us to maintain any asset ratios or reserves; | |
| ● | whether we will be restricted from incurring any additional indebtedness; | |
| ● | a discussion on any material or special U.S. federal income tax considerations applicable to a series of debt securities; | |
| ● | the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof; and | |
| ● | any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities. |
We may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations and other special considerations applicable to any of these debt securities in the applicable prospectus supplement.
Conversion or Exchange Rights
We will set forth in the prospectus supplement the terms, if any, on which a series of debt securities may be convertible into or exchangeable for our common stock or our other securities. We will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Information Concerning the Debenture Trustee
The debenture trustee, other than during the occurrence and continuance of an event of default under the applicable indenture, undertakes to perform only those duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the debenture trustee under such indenture must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the debenture trustee is under no obligation to exercise any of the powers given it by the indentures at the request of any holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest.
We will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check which we will mail to the holder. Unless we otherwise indicate in a prospectus supplement, we will designate the corporate trust office of the debenture trustee in the City of New York as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the debenture trustee for the payment of the principal of or any premium or interest on any debt securities which remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the security thereafter may look only to us for payment thereof.
Governing Law
The indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
Subordination of Subordinated Debt Securities
Our obligations pursuant to any subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment to certain of our other indebtedness to the extent described in a prospectus supplement. The subordinated indenture does not limit the amount of senior indebtedness we may incur. It also does not limit us from issuing any other secured or unsecured debt.
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General
We may issue warrants to our stockholders to purchase shares of our common stock, preferred stock and/or debt securities. We may offer warrants separately or together with one or more additional warrants, debt securities, common stock, preferred stock, rights or purchase contracts, or any combination of those securities in the form of units, as described in the applicable prospectus supplement. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent. The warrant agent will act solely as our agent in connection with the certificates relating to the rights of the series of certificates and will not assume any obligation or relationship of agency or trust for or with any holders of rights certificates or beneficial owners of rights. The following description sets forth certain general terms and provisions of the rights to which any prospectus supplement may relate. The particular terms of the warrant to which any prospectus supplement may relate and the extent, if any, to which the general provisions may apply to the rights so offered will be described in the applicable prospectus supplement. To the extent that any particular terms of the warrant, warrant agreement or warrant certificates described in a prospectus supplement differ from any of the terms described below, then the terms described below will be deemed to have been superseded by that prospectus supplement. We encourage you to read the applicable warrant agreement and warrant certificate for additional information before you decide whether to purchase any of our rights.
We will provide in a prospectus supplement the following terms of the warrants being issued:
| ● | the specific designation and aggregate number of, and the price at which we will issue, the warrants; | |
| ● | the currency or currency units in which the offering price, if any, and the exercise price are payable; | |
| ● | the designation, amount and terms of the securities purchasable upon exercise of the warrants; | |
| ● | if applicable, the exercise price for shares of our common stock and the number of shares of common stock to be received upon exercise of the warrants; | |
| ● | if applicable, the exercise price for shares of our preferred stock, the number of shares of preferred stock to be received upon exercise, and a description of that series of our preferred stock; | |
| ● | if applicable, the exercise price for our debt securities, the amount of debt securities to be received upon exercise, and a description of that series of debt securities; | |
| ● | the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants; | |
| ● | whether the warrants will be issued in fully registered form or bearer form, in definitive or global form or in any combination of these forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security included in that unit; | |
| ● | any applicable material U.S. federal income tax consequences; | |
| ● | the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars or other agents; | |
| ● | the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange; | |
| ● | if applicable, the date from and after which the warrants and the common stock, preferred stock and/or debt securities will be separately transferable; | |
| ● | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; | |
| ● | information with respect to book-entry procedures, if any; | |
| ● | the anti-dilution provisions of the warrants, if any; | |
| ● | any redemption or call provisions; | |
| ● | whether the warrants may be sold separately or with other securities as parts of units; and | |
| ● | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
Each warrant will entitle the holder of rights to purchase for cash the principal amount of shares of common stock or other securities at the exercise price provided in the applicable prospectus supplement. Warrants may be exercised at any time up to the close of business on the expiration date for the rights provided in the applicable prospectus supplement.
Holders may exercise warrants as described in the applicable prospectus supplement. Upon receipt of payment and the warrant certificate properly completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward the shares of common stock or other securities, as applicable, purchasable upon exercise of the rights. If less than all of the warrants issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement.
Warrant Agent
The warrant agent for any warrants we offer will be set forth in the applicable prospectus supplement.
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General
We may issue rights to our stockholders to purchase shares of our common stock, preferred stock, and/or debt securities described in this prospectus. We may offer rights separately or together with one or more additional rights, debt securities, common stock, warrants or purchase contracts, or any combination of those securities in the form of units, as described in the applicable prospectus supplement. Each series of rights will be issued under a separate rights agreement to be entered into between us and a bank or trust company, as rights agent. The rights agent will act solely as our agent in connection with the certificates relating to the rights of the series of certificates and will not assume any obligation or relationship of agency or trust for or with any holders of rights certificates or beneficial owners of rights. The following description sets forth certain general terms and provisions of the rights to which any prospectus supplement may relate. The particular terms of the rights to which any prospectus supplement may relate and the extent, if any, to which the general provisions may apply to the rights so offered will be described in the applicable prospectus supplement. To the extent that any particular terms of the rights, rights agreement or rights certificates described in a prospectus supplement differ from any of the terms described below, then the terms described below will be deemed to have been superseded by that prospectus supplement. We encourage you to read the applicable rights agreement and rights certificate for additional information before you decide whether to purchase any of our rights.
We will provide in a prospectus supplement the following terms of the rights being issued:
| ● | the date of determining the stockholders entitled to the rights distribution; | |
| ● | the aggregate number of shares of common stock or other securities purchasable upon exercise of the rights; | |
| ● | the exercise price; | |
| ● | the aggregate number of rights issued; | |
| ● | whether the rights are transferrable and the date, if any, on and after which the rights may be separately transferred; | |
| ● | the date on which the right to exercise the rights will commence, and the date on which the right to exercise the rights will expire; | |
| ● | the method by which holders of rights will be entitled to exercise; | |
| ● | the conditions to the completion of the offering, if any; | |
| ● | the withdrawal, termination and cancellation rights, if any; | |
| ● | whether there are any backstop or standby purchaser or purchasers and the terms of their commitment, if any; | |
| ● | whether stockholders are entitled to oversubscription rights, if any; | |
| ● | any applicable U.S. federal income tax considerations; and | |
| ● | any other terms of the rights, including terms, procedures and limitations relating to the distribution, exchange and exercise of the rights, as applicable. |
Each right will entitle the holder of rights to purchase for cash the principal amount of shares of common stock or other securities at the exercise price provided in the applicable prospectus supplement. Rights may be exercised at any time up to the close of business on the expiration date for the rights provided in the applicable prospectus supplement.
Holders may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward the shares of common stock or other securities, as applicable, purchasable upon exercise of the rights. If less than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement.
Rights Agent
The rights agent for any rights we offer will be set forth in the applicable prospectus supplement.
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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 designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; | |
| ● | any provisions of the governing unit agreement that differ from those described below; and | |
| ● | any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units. |
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.
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Reed Smith LLP, New York, New York.York, will pass upon the validity of the issuance of the securities to be offered by this prospectus.
Mayer Hoffman McCann P.C., our independent registered public accounting firm, has audited our balance sheets as of December 31, 20172018 and 2016,2017, and the related statementsStatements of operationsOperations and comprehensive loss, changesComprehensive Loss, Statements of Changes in stockholders’ equity,Stockholders’ Equity and cash flowsStatements of Cash Flows for each of the two years in the period ended December 31, 2017,2018, as set forth in their report, which report expresses an unqualified opinion and includes an explanatory paragraph relating to our ability to continue as a going concern. We have incorporated by reference our financial statements in this prospectus and in this registration statement in reliance on the report of Mayer Hoffman McCann P.C. given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed withAs permitted by SEC rules, this prospectus omits certain information that is included in the SEC a registration statement on Form S-3 under the Securities Act, of which this prospectus forms a part. The rulespart and regulationsits exhibits. Since this prospectus may not contain all of the SEC allow usinformation that you may find important, we urge you to omit from this prospectus certain information included inreview the registration statement. For further information about us and our securities, you should refer to the registration statement and the exhibits and schedulesfull text of these documents. If we have filed with the registration statement. With respect to the statements contained in this prospectus regarding the contents of anya contract, agreement or any other document in each instance, the statement is qualified in all respects by the complete text of the agreement or document, a copy of which has been filed as an exhibit to the registration statement.statement of which this prospectus forms a part, please read the exhibit for a more complete understanding of the document or matter involved. Each statement in this prospectus, including statements incorporated by reference as discussed above, regarding a contract, agreement or other document is qualified in its entirety by reference to the actual document.
We are subject to the information reporting requirements of the Exchange Act and, in accordance with these requirements, we file annual, quarterly and current reports, proxy statements, information statements, and other information with the SEC. Our SEC underfilings are available to the Exchange Act. You may read and copy this information frompublic over the Public Reference Room ofInternet at the SEC, 100 F Street, N.E.SEC’s website atwww.sec.gov. In addition, we provide free access to these materials through our website,www.ritterpharmaceuticals.com, Room 1580, Washington, D.C. 20549, at prescribed rates. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also maintains an Internet website that contains reports, proxy statements and other information about issuers, like us, that file electronicallyas soon as reasonably practicable after they are filed with or furnished to the SEC. The address of that website iswww.sec.gov.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate“incorporate by reference” information that we file with them. Incorporation by reference into this document the information we have filed with it. This means that we canallows us to disclose important business, financial and other information to you by referring you to those other documents separately filed with the SEC.documents. The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. This prospectus omits certain information contained in the registration statement, as permitted by the SEC. You should refer to the registration statement and any prospectus supplement filed hereafter, including the exhibits, for further information about us and the securities we may offer pursuant to this prospectus. Statements in this prospectus regarding the provisions of certain documents filed with, or incorporated by reference in, the registration statement are not necessarily complete and each statement is qualified in all respects by that reference. Copies of all or any part of the registration statement, including the documents incorporated by reference andor the exhibits, may be obtained upon payment of the prescribed rates at the SEC’s public reference room or at the SEC’s website athttp://www.sec.gov or by writing tooffices of the SEC and paying a fee for the copying cost. We incorporatelisted above in “Where You Can Find More Information.” The documents we are incorporating by reference the documents listed below:are:
| ● | our Annual Report on Form 10-K for the fiscal year ended December 31, | |
| ● | our | |
| ● | our Quarterly | |
| ● | our Current Reports on Form 8-K filed on March 6, 2019, June 17, 2019, July 1, 2019 and | |
| ● | the |
AnyIn addition, all documents that the Company files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act of 1934, as amended (the “Exchange Act”), subsequent to the filing of this Registration Statement and prior to 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, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents, except as to any document or portion of any document that is deemed furnished and not filed.
Pursuant to Rule 412 under the Securities Act, any statement contained in this prospectus or in a documentthe documents incorporated or deemed to be incorporated by reference intoin this prospectus willRegistration Statement shall be deemed to be modified, superseded or supersededreplaced for purposes of this prospectusRegistration Statement to the extent that a statement contained herein or in this prospectus or any other subsequently filed document thatwhich also is incorporated or deemed to be incorporated by reference intoin this prospectusRegistration Statement modifies, supersedes or supersedes thereplaces such statement. Any such statement so modified, superseded or superseded willreplaced shall not be deemed, except as so modified, superseded or superseded,replaced, to constitute a part of this prospectus.Registration Statement.
To receiveUpon written or oral request made to us at the address or telephone number below, we will, at no cost to the requester, provide to each person, including any beneficial owner, to whom this prospectus is delivered, a free copy of any or all of the documentsinformation that has been incorporated by reference ininto this prospectus (other than exhibitsan exhibit to the Registration Statement) call or write us at the following address:a filing, unless that exhibit is specifically incorporated by reference into that filing), but not delivered with this prospectus:
Ritter Pharmaceuticals, Inc.
1880 Century Park East, #1000
Suite 1000
Los Angeles, CACalifornia 90067
Attention: Corporate Secretary
(310) 203-1000
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Copies of these filings are also available through the “Investor” section of our website atwww.ritterpharmaceuticals.com.For other ways to obtain a copy of these filings, please refer to “Where You Can Find More Information” above.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth an itemization of the various expenses, all of which we will pay, in connection with the issuance and distribution of the common stocksecurities being registered. All of the amounts shown are estimated except the Securities and Exchange Commission registration fee:SEC Registration Fee.
| Securities and Exchange Commission registration fee | $ | 482 | ||
| Printing and engraving expenses | 1,000 | |||
| Legal fees and expenses | 15,000 | |||
| Accounting fees and expenses | 10,000 | |||
| Total | $ | 26,482 |
| SEC Registration Fee | $ | 3,579 | ||
| Legal Fees and Expenses | * | |||
| Accounting Fees and Expenses | * | |||
| Miscellaneous | * | |||
| Total | $ | * |
*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 Amendedamended and Restated Certificaterestated certificate of Incorporationincorporation provides that we shall indemnify, to the fullest extent authorized by the Delaware General Corporation Law, each person who is involved in any litigation or other proceeding because such person is or was a director or officer of Ritter Pharmaceuticals, Inc. or is or was serving as an officer or director of another entity at our request, against all expense, loss or liability reasonably incurred or suffered in connection therewith. Our amended and restated certificate of incorporation provides that the right to indemnification includes the right to be paid expenses incurred in defending any proceeding in advance of its final disposition, provided, however, that such advance payment will only be made upon delivery to us of an undertaking, by or on behalf of the director or officer, to repay all amounts so advanced if it is ultimately determined that such director is not entitled to indemnification. If we do not pay a proper claim for indemnification in full within 30 days after we receive a written claim for such indemnification, our certificate of incorporation and our bylaws authorize the claimant to bring an action against us and prescribe what constitutes a defense to such action.
Section 145 of the Delaware General Corporation Law permits a corporation to indemnify any director or officer of the corporation against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding brought by reason of the fact that such person is or was a director or officer of the corporation, if such person acted in good faith and in a manner that he reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, if he or she had no reason to believe his or her conduct was unlawful. In a derivative action, (i.e.(i.e., one brought by or on behalf of the corporation), indemnification may be provided only for expenses actually and reasonably incurred by any director or officer in connection with the defense or settlement of such an action or suit if such person acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be provided if such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action or suit was brought shall determine that the defendant is fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability.
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law, our certificate of incorporation eliminates the liability of a director to us or our stockholders for monetary damages for such a breach of fiduciary duty as a director, except for liabilities arising:
| ● | from any breach of the director’s duty of loyalty to us or our stockholders; | |
| ● | from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; | |
| ● | under Section 174 of the Delaware General Corporation Law; or | |
| ● | from any transaction from which the director derived an improper personal benefit. |
We carry insurance policies insuring our directors and officers against certain liabilities that they may incur in their capacity as directors and officers.
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In addition, we have entered into indemnification agreements with each of our current directors and executive officers. These agreements require us to indemnify these individuals to the fullest extent permitted under Delaware law against liabilities that may arise by reason of their service to us and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified. We also intend to enter into indemnification agreements with our future directors and executive officers.
| Incorporated by Reference | ||||||||||
| Exhibit No. | Description | Form | File No. | Exhibit | Filing Date | |||||
| 4.1 | Form of Common Stock Certificate of Ritter Pharmaceuticals, Inc. | S-1/A | 333-202924 | 4.1 | 5/22/2015 | |||||
| 4.2 | Form of Common Stock Purchase Warrant | S-1 | 333-208818 | 4.7 | 12/31/2015 | |||||
| 4.2 | Form of Representative’s Warrant Agreement | S-1/A | 333-202924 | 4.7 | 5/8/2015 | |||||
| 4.3 | Warrant Agency Agreement by and between the Registrant and Corporate Stock Transfer, Inc. and Form of Warrant Certificate | 8-K | 001-37428 | 4.1 | 10/4/2017 | |||||
| 5.1* | Opinion of Reed Smith LLP | |||||||||
| 23.1* | Consent of Mayer Hoffman McCann P.C., independent registered public accounting firm | |||||||||
| 24.1* | Power of Attorney (included on signature page) | |||||||||
| * Filed herewith | ||||||||||
Item 16. Exhibits
The exhibits to this registration statement are listed in the Exhibit Index to this registration statement, which Exhibit Index is hereby incorporated by reference.
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:registration statement:
(i) To include any prospectus required by Sectionsection 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or any decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided,however, that paragraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of thea 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 thethat prospectus relates, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof.Provided, however,, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
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(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Sectionsection 13(a) or Sectionsection 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Sectionsection 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the RegistrantCompany certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, thereto duly authorized, in the City of Los Angeles, State of California, on the 21stday of November 2018.July 24, 2019.
| RITTER PHARMACEUTICALS, INC. | ||
| By: | /s/Andrew J. Ritter | |
| Andrew J. Ritter | ||
WeKNOW ALL MEN BY THESE PRESENTS that each of the undersigned officersdirectors and directorsofficers of Ritter Pharmaceutics,Pharmaceuticals, Inc., hereby severally constitute and appointappoints Andrew J. Ritter and John W. Beck, and each of them acting singly, ouras his or her true and lawful attorneysattorney-in-fact and agent, for him or her and in his or her name, place and stead, with full power to any of them, and to each of them singly,act alone, to sign for uson his or her behalf and in our names in the capacities indicatedcapacity set forth below, the registration statementany and all amendments and post-effective amendments and supplements to this Registration Statement on Form S-3 filed herewith and any and all pre-effective and post-effective amendments to said registration statement and any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the sameeach such amendment and post-effective amendment and supplements to this Registration Statement, with all exhibits thereto, and theany and all other documents in connection therewith, with the Securities and Exchange Commission, hereby granting unto said attorney-in-fact and generallyagent full power and authority to do all such things in our name and behalf in our capacities as officers and directors to enable Ritter Pharmaceuticals, Inc. to comply with the provisions of the Securities Act of 1933, as amended,perform any and all requirements ofacts and things requisite and necessary or appropriate to be done in and about the Securitiespremises as fully to all intents and Exchange Commission,purposes as he or she might or could do in person, hereby ratifying and confirming our signatures as theyall that said attorney-in-fact and agent may lawfully do or cause to be signeddone by our said attorneys, or any of them, to said registration statement and any and all amendments thereto.virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated below.
indicated.
| Signature | Title | Date | ||
| Chief Executive Officer and Director | ||||
| /s/Andrew J. Ritter | (Principal Executive Officer) | |||
| Andrew J. Ritter | ||||
| Chief Financial Officer | ||||
| /s/John W. Beck | (Principal Financial and Accounting Officer) | |||
| John W. Beck | ||||
| /s/Ira E. Ritter | Executive Chairman, Chief Strategic Officer and Director | |||
| Ira E. Ritter | ||||
| /s/Noah Doyle | Director | |||
| Noah Doyle | ||||
| /s/Matthew W. Foehr | Director | |||
| Matthew W. Foehr | ||||
| /s/Paul V. Maier | Director | |||
| Paul V. Maier | ||||
| /s/William M. Merino | Director | |||
| William M. Merino | ||||
| /s/ Michael D. Step | Director | |||
| Michael D. Step |
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EXHIBIT INDEX
* 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.
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