As filed with the Securities and Exchange Commission on November 21, 2018June 17, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Ritter Pharmaceuticals,Qualigen Therapeutics, Inc.
(Exact Namename of Registrantregistrant as Specifiedspecified in Its Charter)its charter)
| Delaware |
| 26-3474527 | ||
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification |
2042 Corte Del Nogal
Carlsbad, California 92011
(760) 918-9165
(Address, including zip code, and telephone number, including area code of registrant’s principal executive offices)
Andrew J. RitterMichael S. Poirier
President and Chief Executive Officer
Ritter Pharmaceuticals, Inc.,Qualigen Therapeutics. Inc.
1880 Century Park East2042 Corte Del Nogal
Suite 1000Carlsbad, California 92011
Los Angeles, California 90067
(310) 203-1000(760) 918-9165
(Name, address, including ZIPzip code, and telephone number, including area code, of agent for service)
Copies to:
Michael Sanders
Aron IzowerWendy Grasso
Reed Smith LLP
1901599 Lexington Avenue of the Stars, Suite 700
Los Angeles, California 90067-6078New York, NY 10022-7650
(310) 734-5200(212) 521-5400
Approximate date of commencement of proposed sale to the public:From time to time after the effective date of this registration statement.Registration Statement
(Approximate date of commencement of proposed sale to the public)
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ]☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X]☒
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, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| 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)(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 | ||||||||||
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment whichthat specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until thisthe 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 preliminary prospectus is not complete and may be changed. The selling stockholdersWe may not sell thethese securities or accept an offer to buy these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offeroffers to buy these securities in any state where thesuch offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED NOVEMBER 21, 2018JUNE 17, 2022
PRELIMINARY PROSPECTUS
8,069,406 Shares of 
Common Stock
RITTER PHARMACEUTICALS, INC.
This prospectus relates to the proposed resale or other disposition by the selling stockholders identified in this prospectusfrom time to time of up to 8,069,4068,161,312 shares of our common stock. Of thesestock, par value $0.001 per share (the “Resale Shares”), consisting of 3,500,000 shares 4,615,379of common stock (the “Consideration Shares”) and 4,661,312 shares are issuable upon the conversion of our Series B convertible preferred stock, 1,146,341 shares are issuable upon the conversion of our Series C convertible preferred stock, and 2,307,686 shares(the “Warrant Shares”) that are issuable upon the exercise of outstandingcertain warrants to purchase ourshares of common stock all issued to(the “Warrants”) held by the selling stockholders named herein, together with any additional selling stockholders listed in connectiona prospectus supplement (together with a private placement we completed on November 5, 2018.any of such stockholders’ transferees, pledgees, donees or successors).
We are notregistering the offer and sale of the Resale Shares from time to time by the selling any sharesstockholders to satisfy the registration rights they were granted in connection with the issuance of common stock under this prospectusthe Consideration Shares and the Warrants. We will not receive any of the proceeds from the sale or other disposition of common stockthe Resale Shares by the selling stockholders. To the extent the warrants are exercised for cash, if at all, we will receive the exercise price of the warrants.
The selling stockholders or their pledgees, assignees or successors-in-interest may offer and sell or otherwise dispose of the shares of common stockResale Shares described in this prospectus from time to time through public or private transactions at prevailing market prices, at prices related to prevailing market prices or at privately negotiated prices. The selling stockholders will bear all underwriting fees, commissions and discounts, if any, attributable to the sales of shares.Resale Shares and any transfer taxes. We will bear all other costs, expenses and fees in connection with the registration of the shares.Resale Shares. See “Plan of Distribution” beginning on page 11 for more information abouton how the selling stockholders may sell or dispose of their shares of common stock.Resale Shares.
Our common stock is listed on theThe Nasdaq Capital Market under the trading symbol “RTTR.“QLGN.” On November 20, 2018,June 16, 2022, the last reported saleclosing price of our common stock was $0.83$0.58 per share.
Investing in shares of our common stock involves a high degree of risk. Before making an investment decision, please readYou should review carefully the information underrisks and uncertainties described in the heading “Risk Factors” beginningsection titled “Risk Factors” on page 54 of this prospectus and any similar section contained in the applicable prospectus supplement and in any free writing prospectuses we have authorized for use in connection with a specific offering, and under similar headings in the documents that are incorporated by reference ininto this prospectus.
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 , 20182022.
TABLE OF CONTENTS
This prospectus is a part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission or the SEC, utilizing a “shelf” registration process. Under(the “SEC”). The selling stockholders referred to in this shelf registration process, certain selling stockholdersprospectus may from time to time sell the shares of common stock described in this prospectus in one or more offerings.offerings or otherwise as described under “Plan of Distribution.”
WeNeither we nor the selling stockholders have not authorized anyone to giveprovide any information or to make any representation other than thosethat contained or incorporated by reference in this prospectus. You mustprospectus or in any related prospectus supplement or any free writing prospectus that we have authorized. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. The shares are not rely upon any information or representation not contained or incorporated by reference in this prospectus. The selling stockholders are offering to sell, and seeking offers to buy, shares of our common stock only 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 sharesbeing offered in any jurisdiction to any person to whom itwhere the offer is unlawful to make such offer or solicitation in such jurisdiction.not permitted. You should not assume that the information contained in or incorporated by reference in this prospectus is accurate onas of any date subsequentother than the respective dates of such document. Our business, financial condition, results of operations and prospects may have changed since those dates.
Throughout this prospectus, the terms “we,” “us,” “our,” and our “company” refer to Tempest Therapeutics, Inc. and its subsidiaries.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the date set forth on the front of the document or that any informationdocuments we have filed with the SEC that are incorporated by reference is correctcontain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and the Securities Exchange Act of 1934, as amended (the “Exchange Act”). These statements relate to future events or to our future operating or financial performance and involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results, performances or achievements expressed or implied by the forward-looking statements. Forward-looking statements may include, but are not limited to, statements about:
| ● | our ability to successfully develop any drugs or therapeutic devices; | |
| ● | our ability to progress our drug candidates or therapeutic devices through preclinical and clinical development; | |
| ● | our ability to obtain the requisite regulatory approvals for our clinical trials and to begin and complete such trials according to any projected timeline; | |
| ● | our ability to complete enrollment in our clinical trials as contemplated by any projected timeline; | |
| ● | the likelihood that future clinical trial data will be favorable or that such trials will confirm any improvements over other products or lack negative impacts; | |
| ● | our ability to successfully commercialize any drugs or therapeutic devices; | |
| ● | our ability to procure or earn sufficient working capital to complete the development, testing and launch of our prospective therapeutic products; | |
| ● | the likelihood that patents will issue on our owned and in-licensed patent applications; | |
| ● | our ability to protect our intellectual property; | |
| ● | our ability to compete; | |
| ● | our ability to maintain or expand market demand and/or market share for our diagnostic products generally, particularly in light of COVID-19-related deferral of patients’ physician-office visits and in view of FastPack reimbursement pricing challenges; and | |
| ● | our ability to maintain our diagnostic sales and marketing engine without interruption following the expiration of our distribution agreement with Sekisui. |
In some cases, you can identify forward-looking statements by terms such as “anticipates,” “believes,” “could,” “estimates,” “intends,” “may,” “plans,” “potential,” “will,” “would,” or the negative of these terms or other similar expressions. These statements reflect our current views with respect to future events and are based on assumptions and are subject to risks and uncertainties. Given these uncertainties, you should not place undue reliance on these forward-looking statements as predictions of future events. We discuss in greater detail many of these risks in our most recent Annual Report on Form 10-K and in our most recent Quarterly Report on Form 10-Q, as well as any dateamendments thereto reflected in subsequent tofilings with the SEC, which are incorporated by reference into this prospectus in their entirety. Also, these forward-looking statements represent our estimates and assumptions only as of the date of the document incorporatedcontaining the applicable statement. Unless required by reference, even thoughlaw, we undertake no obligation to update or revise any forward-looking statements to reflect new information or future events or developments.
In addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as of the date of this prospectus, is deliveredand while we believe such information forms a reasonable basis for such statements, such information may be limited or sharesincomplete, and our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are sold on a later date.inherently uncertain and investors are cautioned not to unduly rely upon these statements.
You should read this prospectus, together with the additional information described underdocuments we have filed with the headings “Where You Can Find More Information”SEC that are incorporated by reference, any prospectus supplement and “Incorporation of Certain Information by Reference.”
Thisany free writing prospectus may contain references 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 without the®orTM symbols, but such references are not intended to indicate, in any way, that we will not assert, tomay authorize completely and with the fullest extent under applicable law,understanding that our rights or the rights of the applicable licensor to these trademarks and trade names.actual future results may be materially different from what we expect. 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 in this prospectus or incorporated in this prospectus by reference. This summary does not containqualify all of the information you should consider before investingforward-looking statements in our common stock. You should carefully read this entire prospectus, including each of the foregoing documents incorporated herein by reference, before making an investment decision. As used in this prospectus, the terms “we,” “us,” “our,” “the Company” and “Ritter” mean Ritter Pharmaceuticals, Inc.these cautionary statements.
Overview
Ritter Pharmaceuticals, Inc. develops novel therapeutic productsWe are a diversified life sciences company focused on developing treatments for adult and pediatric cancers with potential for Orphan Drug designation, while also commercializing diagnostics. Our cancer therapeutics pipeline includes QN-302, QN-247 and RAS-F. Our investigational QN-302 compound is a small molecule G4 selective transcription inhibitor with strong binding affinity to G4s prevalent in cancer cells. Such binding could, by stabilizing the G4s against “unwinding,” help inhibit cancer cell proliferation. QN-247 is a DNA coated gold nanoparticle cancer drug candidate that modulate the gut microbiome to treat gastrointestinal diseases. Our lead product candidate, RP-G28, has the potential to becometarget various types of cancer; the firstnanoparticle conjugate technology is similar to the core nanoparticle coating technology used in our blood-testing diagnostic products. The foundational aptamer of QN-247 is QN-165 (formerly referred to as AS1411), which the Company has deprioritized as a drug approved by the Foodcandidate for treating COVID-19 and Drug Administrationother viral-based infectious diseases. RAS-F is a family of RAS oncogene protein-protein interaction inhibitor small molecules for the treatment of lactose intolerance, a condition that affects millions worldwide. RP-G28 has been studiedpreventing mutated RAS genes’ proteins from binding to their effector proteins; preventing this binding could stop tumor growth, especially in Phase 2 clinical trialsRAS-driven tumors such as pancreatic, colorectal and is now in Phase 3 clinical development with its first Phase 3 study currently underway.lung cancers. We are further exploring the functionalityalso identifying strategic partnering opportunities for STARS, a DNA/RNA-based therapeutic device product concept for removing precisely targeted tumor-produced 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.viral compounds from circulating blood.
Our first novel microbiome modulator, RP-G28, an orally administered, high purity galacto-oligosaccharide, is currently under developmentFastPack System diagnostic instruments and test kits are sold commercially primarily in the United States, as well as certain European countries. The FastPack System menu includes a rapid, highly accurate immunoassay diagnostic testing system for cancer, men’s health, hormone function, and vitamin D status. We provide analyzers to our customers (physician offices, clinics and small hospitals) at low cost in order to increase sales volumes of higher-margin test kits. Prior to March 31, 2022, most of our FastPack product sales were through our partner Sekisui Diagnostics, LLC (“Sekisui”) pursuant to a distribution agreement, but we maintained direct distribution for certain house accounts, including selling our total testosterone test kits to Low T Center, Inc., the largest men’s health group in the United States, with 40 locations. The distribution agreement with Sekisui expired on March 31, 2022, at which time the services provided by Sekisui reverted to us and as of April 1, 2022 we recognize 100% of the revenue from the sales of our FastPack diagnostic instruments and test kits. We have licensed and technology-transferred our FastPack System technology to Yi Xin Zhen Duan Jishu (Suzhou) Ltd. for the treatmentChina diagnostics market and other markets outside of lactose intolerance. RP-G28 is designed to selectively stimulate the growth of lactose-metabolizing bacteriaUnited States in which the Company does not currently sell.
Transaction with NanoSynex Ltd.
On May 26, 2022, we acquired an approximate 53% interest in the colon, thereby effectively adapting the gut microbiome to assist in digesting lactose (the sugar found in milk) that reaches the large intestine.voting securities of NanoSynex Ltd. (“NanoSynex”), an Israeli-based developer of next generation diagnostics technology.
Our current PhaseNanoSynex’s technology is an Antimicrobial Susceptibility Testing (AST) platform that aims to provide clinical laboratories worldwide with a rapid, accurate and personalized test for bacterial infections, with the goal of quickly matching the correct antibiotics to treat a patient’s particular infection. Antibiotic misuse and overuse have given rise to antibiotic resistant bacteria, commonly known as superbugs, which the World Health Organization has called one of the top ten global public health threats facing humanity. NanoSynex’s AST platform aims to enable better targeting of antibiotics for their most suitable uses to ultimately result in faster and more efficacious treatment, hence reducing hospitals mortality and morbidity rates.
Consideration Shares and Pre-Funded Warrants Issued to Alpha Capital Anstalt
As part of the transaction with NanoSynex, we entered into a Share Purchase Agreement, dated April 29, 2022 (the “Series A-1 Purchase Agreement”) with Alpha Capital Anstalt (“Alpha”), pursuant to which we acquired 2,232,861 Series A-1 preferred shares, nominal value NIS 0.01 each of NanoSynex from Alpha in exchange for 3,500,000 shares of our common stock (the “Consideration Shares”) and pre-funded warrants to purchase 3,314,641 shares of our common stock (the “Alpha Warrants”), at an exercise price of $0.001 per share, subject to limitations on beneficial ownership set forth therein. The Alpha Warrants may also be exercised on a cashless basis pursuant to their terms. Pursuant to the terms of the Series-A-1 Purchase Agreement, we agreed to file the registration statement, of which this prospectus forms a part, to register the resale by Alpha of the Consideration Shares and the shares of common stock issuable to Alpha upon the exercise of the Alpha Warrants (the “Alpha Warrant Shares”).
We also agreed to register the resale by Alpha of 70,477 shares of common stock (the “Alpha Pre-Merger Warrant Shares”) issuable upon the exercise of certain other warrants held by Alpha (the “Alpha Pre-Merger Warrants”).
Warrants Issued to GreenBlock, LLC and Christopher Nelson
In connection with the transaction with NanoSynex, we engaged GreenBlock Capital, LLC (“GreenBlock”) to act as a consultant. On December 3, clinical program includes two confirmatory clinical trials2021, we issued a common stock warrant to GreenBlock, entitling GreenBlock to purchase up to 600,000 shares of similar trial designour common stock at an exercise price of $1.32 per share, subject to adjustment and beneficial ownership limitations set forth therein (the “GreenBlock Warrants”). The GreenBlock Warrants may also be exercised on a cashless basis if at the time of exercise there is no effective registration statement registering the shares of common stock issuable upon the exercise of the GreenBlock Warrants (the “GreenBlock Warrant Shares”), or the prospectus contained in such registration statement is not available for the issuance of the GreenBlock Warrant Shares. The GreenBlock Warrants were fully earned upon issuance prior to the Company entering into definitive agreements with NanoSynex, and were not contingent on the closing of the NanoSynex transaction. On April 25, 2022, we amended the terms of GreenBlock Warrants (300,000 of which had been transferred to Mr. Nelson, an employee of GreenBlock), to reduce the exercise price of such warrants to $0.60 per share and extend the expiration date to September 14, 2023. Pursuant to the terms of the GreenBlock Warrants, we agreed to register the resale by GreenBlock and Mr. Nelson of the GreenBlock Warrant Shares issuable to GreenBlock and Mr. Nelson upon exercise of such warrants. Mr. Nelson has no voting control or other beneficial interest in any warrants or other securities held by GreenBlock, and GreenBlock has no voting control or other beneficial interest in any warrants or other securities held by Mr. Nelson.
We also agreed to register the resale by GreenBlock of 459,812 shares of common stock (the “GreenBlock Pre-Merger Warrant Shares”) and by Mr. Nelson of 216,382 shares of common stock (the “Nelson Pre-Merger Warrant Shares”) issuable upon the exercise of certain other warrants held by GreenBlock (the “GreenBlock Pre-Merger Warrants”) and Mr. Nelson (the “Nelson Pre-Merger Warrants”), respectively.
The Alpha Warrants, the Alpha Pre-Merger Warrants, the GreenBlock Warrants, the GreenBlock Pre-Merger Warrants, and the Nelson Pre-Merger Warrants are referred to herein collectively as our Phase 2b clinical trial. The first Phase 3 clinical trial was initiated in the second quarter of 2018.“Warrants,” and the Alpha Warrant Shares, the Alpha Pre-Merger Warrant Shares, the GreenBlock Warrant Shares, the GreenBlock Pre-Merger Warrant Shares and the Nelson Pre-Merger Warrant Shares are referred to herein collectively as the “Warrant Shares.”
Corporate InformationBackground
We wereRitter Pharmaceuticals, Inc. (our predecessor) was formed as a Nevada limited liability company on March 29, 2004 under the name Ritter Natural Sciences, LLC. OnIn September 16, 2008, wethis company converted into a Delaware corporation under the name Ritter Pharmaceuticals, Inc. On May 22, 2020, upon completing a “reverse recapitalization” transaction with Qualigen, Inc., Ritter Pharmaceuticals, Inc. was renamed Qualigen Therapeutics, Inc. Qualisys Diagnostics, Inc. was formed as a Minnesota corporation in 1996, reincorporated to become a Delaware corporation in 1999, and then changed its name to Qualigen, Inc. in 2000. Qualigen, Inc. is now a wholly-owned subsidiary of the Company.
Our principal executive offices are located at 1880 Century Park East, Suite 1000, Los Angeles,2042 Corte Del Nogal, Carlsbad, CA 90067, and our92011. 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.(760) 918-9165.
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Summary of Private Placement
On November 5, 2018, or the Closing, 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 2,307,686 shares of our common stock at an exercise price per share of $1.30 (subject to customary adjustments in the event of future stock splits and dividends), or the Warrants, to the selling stockholders.
Pursuant to the terms of the Securities Purchase Agreement, at the Closing, certain selling stockholders participating in the Private Placement who owned shares of our outstanding Series A convertible preferred stock 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.
The aggregate gross proceeds from the Private Placement were approximately $6.0 million. We intend to use the net proceeds from the Private Placement to fund operations, including our ongoing Phase 3 clinical trial for RP-G28 through its completion and dissemination of top-line results, and for working capital and general corporate purposes.
A.G.P./Alliance Global Partners, or A.G.P., served as the sole placement agent for the Private Placement. Roth Capital Partners, LLC acted as a financial advisor for the transaction.
As part of the Private Placement, we entered into a registration rights agreement with the selling stockholders, or the Registration Rights Agreement, pursuant to which 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 issued 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 Offering
| Investing | ||
An investment in our common stocksecurities involves a high degree of risk. Prior to making a decision about investing in our common stock, youYou should carefully consider the risks uncertaintiesdescribed in the documents incorporated by reference in this prospectus and assumptions discussed under Item 1A, “Risk Factors,”any prospectus supplement, as well as other information we include or incorporate by reference into this prospectus and any applicable prospectus supplement, before making an investment decision. Our business, financial condition or results of operations could be materially adversely affected by the materialization of any of these risks. The trading price of our securities could decline due to the materialization of any of these risks, and you may lose all or part of your investment. This prospectus and the documents incorporated herein by reference also contain forward-looking statements that involve risks and uncertainties. Actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including the risks described in the documents incorporated herein by reference, including (i) our Annual Report on Form 10-K for the fiscal year ended December 31, 2017, as updated by our subsequent filings2021, filed with the Securities and Exchange Commission, or the SEC under the Securities Exchange Act of 1934,on March 31, 2022, as amended or the Exchange Act, which areon April 29, 2022, and incorporated herein by reference, togetherand (ii) our most recent quarterly report on Form 10-Q for the fiscal quarter ended March 31, 2022 filed with the information in this prospectusSEC on May 13, 2022 and anyincorporated herein by reference, our current reports on Form 8-K and other informationdocuments we file with the SEC from time to time that are deemed incorporated by reference into this prospectus. See the sections of this prospectus entitled “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.” Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business, financial condition or results of operations. The occurrence of any of these known or unknown risks might cause you to lose all or part of your investment in our common stock.
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This prospectus and the information and documents incorporated by reference in this prospectus contain certain statements that constitute “forward-looking statements” within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act, including statements regarding:
Any or all of our 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,” “may,” “will,” “should,” “could,” “would,” “seek,” “intend,” “continue,” “project,” and similar expressions are intended to identify forward-looking statements. There are a number of factors and uncertainties that could cause actual events or results to differ materially from those indicated by such forward-looking statements, many of which are beyond our control, including the factors discussed under “Risk Factors” herein. In addition, the forward-looking statements contained herein represent our estimate only as of the date of this prospectus and should not be relied upon as representing our estimate as of any subsequent date. While we may elect to update these forward-looking statements at some point in the future, we specifically disclaim any obligation to do so to reflect actual results, changes in assumptions or changes in other factors affecting such forward-looking statements.
We will not receive any of the proceeds from the sale of shares of our common stock in this offering by the selling stockholders.offering. The selling stockholders will receive all of the proceeds from this offering.the sale of shares of common stock hereunder.
A portion ofWe may, however, receive cash proceeds equal to the shares covered by this prospectus are issuable upon exercise price 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 shouldthat a selling stockholder electmay exercise, to exercise on athe extent any such Warrants are exercised for cash. The Warrants may be exercised for cash or by means of cashless basis we will not receive any proceeds from the sale of common stock issued upon the cashless exercise of the warrant. The holdersexercise. If all 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, then we wouldwill receive gross proceeds of approximately $3.0 million.$750,000, subject to any adjustments. We currently intendexpect to use suchany proceeds if any, to fund operations, including our ongoing Phase 3 clinical trialreceived by us from the cash exercise of these Warrants 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
The following summary description of our common stock covered by this prospectus. The selling stockholders will pay any brokerage commissions and/or similar charges incurred in connection withis based on the sale or other disposition by them of the shares covered hereby.
The shares of common stock being offered by the selling stockholders are those issuable to the selling stockholders upon conversion of the Series B convertible preferred stock and Series C convertible preferred stock and upon exercise of the Warrants. For additional information regarding the issuances of those securities, see “Prospectus Summary—Summary of Private Placement” above. We are registering the shares of common stock in order to permit the selling stockholders to offer the shares for resale from time to time.
Except for the sale and issuance of the shares of the Series B convertible preferred stock, the Series C convertible preferred stock and the Warrants in the Private Placement and the Exchange, and except as otherwise disclosed in the footnotes below, the selling stockholders have not had any material relationship with us within the past three years. To our knowledge, none of the selling stockholders are affiliates of broker-dealers.
The table below lists the selling stockholders and other information regarding the beneficial ownership of the shares of common stock of each of the selling stockholders. The second column lists the number of shares of common stock beneficially owned by each selling stockholder, as of the Closing, assuming full conversion of the Series B convertible preferred stock and Series C convertible preferred stock and full exercise of the Warrants held by the selling stockholders on that date, without regard to any limitations on conversions or exercises. The third column lists the number of shares of common stock being offered by the selling stockholders in this prospectus.
In accordance with the terms of the Registration Rights Agreement with the selling stockholders, this prospectus generally covers the resale of (i) the shares of common stock issuable upon conversion in full of the shares of Series B convertible preferred stock issued to the selling stockholders in the Private Placement (assuming the shares of Series B convertible preferred stock are converted in full without regard to the limitation described below), (ii) the shares of common stock issuable upon conversion in full of the shares of Series C convertible preferred stock issued to certain selling stockholders in the Exchange (assuming the shares of Series C convertible preferred stock are converted in full without regard to the limitation described below), and (iii) the maximum number of shares of common stock issuable upon exercise of the Warrants issued to the selling stockholders in the Private Placement (assuming the Warrants are exercised in full without regard to the limitation described below). The fourth and fifth columns list the number of shares of common stock and percentageprovisions of our outstanding common stock to be held by the selling stockholder assuming the saleamended and restated certificate of all of the shares of common stock offered by the selling stockholders pursuant to this prospectus.
Pursuant to the Certificates of Designation of Preferences, Rightincorporation and Limitations for our Series B convertible preferred stockamended 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 | * | |||||||||||
| |
Each selling stockholder of the securities and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their securities covered hereby on the principal trading market or any other stock exchange, market or trading facility on which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices. A selling stockholder may use any one or more of the following methods when selling securities:
The selling stockholders may also sell securities under Rule 144 or any other exemption from registration under the Securities Act, if available, rather than under this prospectus.
Broker-dealers engaged by the selling stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the selling stockholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in excess of a customary brokerage commission in compliance with FINRA Rule 2440; and in the case of a principal transaction a markup or markdown in compliance with FINRA IM-2440.
In connection with the sale of the securities 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 sales of the securities in the course of hedging the positions they assume. The selling stockholders may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer or other financial institution of 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).
The selling stockholders and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit 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 agreed to indemnify the selling stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We agreed to keep this prospectus effective until the earlier of (i) the date on which the securities may be resold by the selling stockholders without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar effect or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person engaged 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 will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the common stock by the selling stockholders or any other person. We will make copies of this prospectus available to the selling stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).
The following description of our capital stockDelaware General Corporation Law. This information 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 entiretyentirely by reference to the applicable provisions of our Amendedamended and Restated Certificaterestated certificate of Incorporation,incorporation and bylaws. For information on how to obtain copies of our amended and restated certificate of incorporation and bylaws, which are exhibits to the Certificatesregistration statement 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. Seethis prospectus is a part, see the sections of this prospectus entitledtitled “Where You Can Find MoreAdditional Information” and “Incorporation of Certain Information by Reference.”Reference” in this prospectus.
General
Our authorized capital stock consists of:
| of 225,000,000 shares of | ||
In addition to the descriptions set forth below, please refer to our other publicly filed documents incorporated herein by reference, which describecommon stock, $0.001 par value per share, and 15,000,000 shares of preferred stock, $0.001 par value per share, including 7,000 shares that have been designated as Series Alpha Preferred Stock. As of June 15, 2022, there were 38,795,541 shares of our othercommon stock outstanding warrants, registration rights, equity incentive plans and other securities.no shares of our Series Alpha Preferred Stock outstanding.
Common Stock
As of November 20, 2018, there were 5,734,639 sharesThe last reported sale price of our common stock outstanding.on The Nasdaq Capital Market on June 16, 2022 was $0.58 per share.
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 boardour Board of directorsDirectors out of funds legally available therefor. In the event of our liquidation, dissolution or winding up, the holders of our common stockstockholders 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.
Series A Convertible Preferred StockWarrants
The Alpha Warrants
The Alpha Warrants may be exercised by Alpha or its assigns, in whole or in part, at any time after May 26, 2022 and until the Alpha Warrants have been exercised in full, at an exercise price of $0.001 per share. The Alpha Warrants may also be exercised on a cashless basis pursuant to their terms.
The rightsterms of the Series A convertible preferred stock are set forth inAlpha Warrant provide that such warrants may not be exercised to the Certificate of Designation of Preferences, Rightextent such exercise would cause Alpha 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 4,080 shares of Series A convertible preferred stock were outstanding as of November 20, 2018. The shares of Series A convertible preferred stock have a stated value of $1,000 per share and have a conversion price of $4.00 per share (subject to customary adjustment in the event of future stock dividends and stock splits).
Rank.The Series A convertible preferred stock rank on parity to our common stock.
Conversion.Each share of Series A convertible preferred stock is convertible into shares of our common stock (subject to customary adjustment in the event of future stock dividends and stock splits) at any time at the option of the holder at a conversion price of $4.00 (subject to customary adjustment in the event of future stock dividends and stock splits). Holders of Series A convertible preferred stock will be prohibited from converting Series A convertible preferred stock into shares of our common stock if, as a result of such conversion, the holder, together with its affiliates wouldto beneficially own more than 4.99%9.99% of the total number of shares of our common stock then issued and outstanding.
Liquidation Preference. Inoutstanding immediately after giving effect to such exercise (the “Alpha Beneficial Ownership Limitation”). Alpha may, upon 61 days’ notice to us, increase or decrease the event of our liquidation, dissolution or winding-up, holders of Series A convertible preferred stock will be entitled to receive the same amount that a holder of our common stock would receive if the Series A convertible preferred stock were fully converted into shares of our common stock at the conversion price (disregarding for such purposes any conversion limitations) which amounts shall be paidpari passu with all holders of common stock.
Voting Rights. Shares of Series A convertible preferred stock generally have no voting rights, except as required by law and exceptAlpha Beneficial Ownership Limitation, provided that the affirmative voteAlpha Beneficial Ownership Limitation in no event exceeds 9.99% of the holders of a majority of the then outstanding shares of Series A convertible preferred stock is required to, (a) alter or change adversely the powers, preferences or rights given to the Series A convertible preferred stock, (b) amend our certificate of incorporation or other charter documents in any manner that materially adversely affects any rights of the holders, (c) increase the number of authorized shares of Series A convertible preferred stock, or (d) enter into any agreement with respect to any of the foregoing.
Dividends.Shares of Series A convertible preferred stock are not entitled to receive any dividends, unless and until specifically declared by our board of directors. The holders of the Series A convertible preferred stock participate, on an as-if-converted-to-common stock basis, in any dividends to the holders of common stock.
Redemption.We are not obligated to redeem or repurchase any shares of Series A convertible preferred stock. Shares of Series A convertible preferred stock are not otherwise entitled to any redemption rights or mandatory sinking fund or analogous fund provisions.
Exchange Listing. The Series A convertible preferred stock is not listed on any national securities exchange or other nationally recognized trading system.
Series B Convertible Preferred Stock
The rights of the Series B convertible preferred stock are set forth in the Certificate of Designation of Preferences, Right and Limitations. A total of 6,000 shares of Series B convertible preferred stock are authorized for issuance under the Certificate of Designation of Preferences, Right and Limitations, and a total of 6,000 shares of Series B convertible preferred stock were outstanding as of November 20, 2018. The shares of Series B convertible preferred stock have a stated value of $1,000 per share and have a conversion price of $1.30 per share (subject to customary adjustment in the event of future stock dividends and stock splits).
Rank.The Series B convertible preferred stock rank on parity to our common stock.
Conversion.Each share of Series B convertible preferred stock is convertible into shares of our common stock (subject to adjustment as provided in the related Certificate of Designation of Preferences, Rights and Limitations) at any time at the option of the holder at a conversion price of $1.30 (subject to customary adjustment in the event of future stock dividends and stock splits). Holders of Series B convertible preferred stock will be prohibited from converting Series B convertible preferred stock into shares of our common stock if, as a result of such conversion, the holder, together with its affiliates, would own more than 4.99% of the total number of shares of our common stock then issuedoutstanding immediately after giving effect to the issuance of shares of common stock upon exercise of the Alpha Warrant.
The Alpha Warrants provide for certain adjustments to be made to such warrants in connection with stock dividends, stock splits, fundamental transactions and outstanding.similar events.
Liquidation Preference.The GreenBlock Warrants In the event
The GreenBlock Warrants may be exercised by GreenBlock and Mr. Nelson or their assigns, in whole or in part, at any time after January 26, 2022 and before September 14, 2023, at an exercise price of our liquidation, dissolution or winding-up, holders of Series B convertible preferred stock will$0.60 per share. The GreenBlock Warrants may also be entitled to receive the same amount thatexercised on a holder of our common stock would receivecashless basis if the Series B convertible preferred stock were fully converted into shares of our common stock at the conversion price (disregardingtime of exercise there is no effective registration statement registering the GreenBlock Warrant Shares, or the prospectus contained in such registration statement is not available 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 voteissuance 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 StockGreenBlock Warrant Shares.
The rightsterms of the Series C convertible preferred stock are set forth inGreenBlock Warrants provide that such warrants may not be exercised to 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 ofextent such exercise would cause 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 wouldto beneficially own more than 4.99%9.99% of the total number of shares of our common stock then issued and outstanding.
Liquidation Preference. Inoutstanding immediately after giving effect to such exercise (the “GreenBlock Beneficial Ownership Limitation”). The holder may, upon 61 days’ notice to us, increase or decrease the GreenBlock Beneficial Ownership Limitation, provided that the holder in no event exceeds 9.99% of our liquidation, dissolution or winding-up, holdersthe number 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 atoutstanding immediately after giving effect to the conversion price (disregarding for such purposes any conversion limitations) which amounts shall be paidpari passu with all holdersissuance of shares of common stock.stock upon exercise of the GreenBlock Warrants.
The GreenBlock Warrants provide for certain adjustments to be made to such warrants in connection with stock dividends, stock splits, fundamental transactions and similar events.
Voting Rights.The Pre-Merger Warrants 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
The Alpha Pre-Merger Warrants may be exercised by Alpha, or its assigns, in whole or in part, at any dividends, unlesstime after May 22, 2020 and until specifically declared by our board of directors. The holders of the Series C convertible preferred stock participate, onbefore May 22, 2025, at an as-if-converted-to-common stock basis, in any dividends to the holders of common stock.
Redemption.We are not obligated to redeem or repurchase any shares of Series C convertible preferred stock. Shares of Series C convertible preferred stock are not otherwise entitled to any redemption rights or mandatory sinking fund or analogous fund provisions.
Exchange Listing. The Series C convertible preferred stock is not listed on any national securities exchange or other nationally recognized trading system.
Warrants
Prior to the Offering, there were warrants to purchase an aggregate 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$0.5136 per share, subject to adjustment),the adjustments described therein.
The GreenBlock Pre-Merger Warrants and expireNelson Pre-Merger Warrants may be exercised by their respective holder, or its assigns, in whole or in part, at various dates through October 2022.any time after November 21, 2020 and before May 22, 2025, at an exercise price of $0.5136 per share, subject to the adjustments described therein.
The Pre-Merger Warrants may also be exercised on a cashless basis if at the time of exercise there is no effective registration statement registering the Pre-Merger Warrant Shares or the prospectus contained in such registration statement is not available for the issuance of such shares.
The terms of the Pre-Merger Warrants provide that such warrants may not be exercised to purchase an additional 2,307,686the extent such exercise would cause the holder and its affiliates to beneficially own more than 9.99% of the number of shares of our common stock were issuedoutstanding immediately after giving effect to such exercise (the “Pre-Merger Warrants Beneficial Ownership Limitation”). The holder may, upon 61 days’ notice to us, increase or decrease the selling stockholders inPre-Merger Warrants Beneficial Ownership Limitation, provided that the Offering. These Warrants have an exercise price per share of $1.30 (subject to customary adjustment in the event of future stock dividends and stock splits).
Registration Rights Agreement
As part of the Private Placement, we entered into the Registration Rights Agreement, pursuant to which we agreed to file this registration statement to register for resale the shares of common stock issuable upon conversion of the shares of Series 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, butholder in no event later than 60 days after the Closing (or 90 days in the event of a full reviewexceeds 9.99% 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 performancenumber 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 issuedoutstanding immediately after giving effect 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.the issuance of shares of common stock upon exercise of the Pre-Merger Warrants.
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.(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 tobefore 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 CorporateEquiniti Trust Company.
Listing on Nasdaq
Our common stock is listed on the Nasdaq Capital Market under the symbol “QLGN.”
Holders
As of June 15, 2022, there were approximately 694 holders of record of our common stock. 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 nominees. This number of holders of record also does not include stockholders whose shares may be held in trust by other entities.
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We have prepared this prospectus to allow the selling stockholders to offer and sell from time to time up to 8,161,312 shares of our common stock, par value $0.001 per share (the “Resale Shares”) for their own account, consisting of (i) the 3,500,000 Consideration Shares held by Alpha, (ii) the 3,314,641 Alpha Warrant Shares issuable to Alpha upon exercise of the Alpha Warrants, (iii) the 600,000 GreenBlock Shares issuable to GreenBlock and Mr. Nelson upon the exercise of the GreenBlock Warrants, and (iv) the 746,671 Pre-Merger Warrant Shares issuable to the selling stockholders upon the exercise of the Pre-Merger Warrants. For a description of the Warrants, see “Description of Capital Stock Transfer, Inc.- Warrants.”
We are registering the offer and sale of the Resale Shares beneficially owned by the selling stockholders to satisfy certain registration rights that we granted the selling stockholders in connection with the issuance of the Consideration Shares and the Warrants.
The validityfollowing table sets forth (i) the name of each selling stockholder, (ii) the number of shares beneficially owned by each of the respective selling stockholders, including the Consideration Shares and the Warrant Shares, (iii) the number of Consideration Shares and Warrant Shares that may be offered under this prospectus and (iv) the number of shares of our common stock beneficially owned by the selling stockholders assuming all of the Consideration Shares and Warrant Shares covered hereby are sold.
The number of shares of common stock set forth in the following table for any selling stockholder does not take into account the exercise limitations set forth in the Warrants and described under “Description of Capital Stock-Warrants.” Accordingly, the number of shares of common stock set forth in the following table for any stockholder may exceed the number of shares of common stock that it could own beneficially at any given time as a result of its ownership of Warrants. As a result, the actual number of Warrant Shares that may be issued to and sold by the selling stockholders could be materially less or more than the estimated numbers in the column titled “Number of Shares Being Offered” depending on factors which cannot be predicted by us at this time. In addition, we do not know how long the selling stockholders will hold the Consideration Shares or Warrant Shares before selling them, and we currently have no agreements, arrangements or understandings with the selling stockholders regarding the sale or other disposition of any Consideration Shares or Warrant Shares.
Except as described in this prospectus, none of the selling stockholders has, or during the three years prior to the date of this prospectus has had, any position, office or other material relationships with us or any of our predecessors or affiliates. To our knowledge, except as set forth in the table below, none of the selling stockholders are broker-dealers or are affiliated with a broker-dealer, nor at the time of the acquisition did any selling stockholders have direct or indirect agreements or understandings with any person to distribute any common stock, including the Consideration Shares and the Warrant Shares.
The information set forth in the table below is based upon information obtained from the selling stockholders. Beneficial ownership of the selling stockholders is determined in accordance with Rule 13d-3(d) under the Exchange Act. The percentage of shares beneficially owned after the offering is based on 43,456,853 shares of our common stock outstanding as of June 15, 2022, after giving effect to the issuance of 4,661,312 Warrant Shares assuming full exercise of the Warrants.
As used in this prospectus, the term “selling stockholders” includes the selling stockholders listed in the table below, together with any additional selling stockholders listed in a prospectus supplement, and their donees, pledgees, assignees, transferees, distributees and successors-in-interest that receive Resale Shares in any non-sale transfer after the date of this prospectus.
| Beneficial Ownership After this Offering | ||||||||||||||||
| Name of Selling Stockholder | Shares of Common Stock Beneficially Owned Prior to this Offering | Number of Shares Being Offered | Number of Shares | Percent of Outstanding Common Stock | ||||||||||||
| Alpha Capital Anstalt | 3,917,370 | (1) | 6,885,118 | 4,823,175 | (2) | 9.99 | % | |||||||||
| GreenBlock Capital, LLC (3) | 791,765 | 759,812 | 31,953 | * | ||||||||||||
| Christopher Nelson (4) | 544,679 | 516,382 | 28,297 | * | ||||||||||||
| All Selling Stockholders | 5,253,814 | 8,161,312 | 4,883,425 | 9.99 | % | |||||||||||
(1) Includes the 3,500,000 Consideration Shares and 417,370 shares of common stock issuable upon the exercise of the Alpha Pre-Merger Warrants and other warrants held by Alpha. This number does not include the Alpha Warrant Shares or 5,052,624 shares of common stock issuable upon the exercise of other warrants held by Alpha that may not be exercised to the extent that such exercise will result in Alpha (and its affiliates) beneficially owning more than 9.99% of the number of shares of our common stock outstanding immediately after giving effect to the issuance of shares of common stock issuable upon exercise. The address of Alpha Capital Anstalt is Altenbach 8, 9490 Vaduz, Liechtenstein.
(2) This number does not include 576,342 shares of common stock issuable upon the exercise of warrants that will continue to be held by Alpha after this offering that may not be exercised to the extent that such exercise will result in Alpha (and its affiliates) beneficially owning more than 9.99% of the number of shares of our common stock outstanding immediately after giving effect to the issuance of shares of common stock issuable upon exercise.
(3) The address of GreenBlock Capital LLC is 420 Royal Palm Way, Suite 100, Palm Beach, FL 33480.
(4) The address for Mr. Nelson is 420 Royal Palm Way, Suite 100, Palm Beach, FL 33480.
We are registering the Consideration Shares and Warrant Shares issuable upon the exercise of the Warrants that may be sold by the selling stockholders from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale by the selling stockholders of the Resale Shares. We will bear all fees and expenses incident to our obligation to register the Resale Shares.
The term “selling stockholders” includes donees, pledgees, transferees or other successors in interest selling securities received after the date of this prospectus from a selling stockholder as a gift, pledge, partnership distribution or other transfer. The selling stockhholders will act independently of us in making decisions with respect to the timing, manner and size of each sale. Such sales may be made on the principal trading market for our common stock or any other stock exchange, market or trading facility on which our common stock is traded or in private transactions. These sales may be at fixed or negotiated prices. A selling stockholder may use any one or more of the following methods when selling Resale Shares:
| ● | ordinary brokerage transactions and transactions in which the broker dealer solicits purchasers; | |
| ● | block trades in which the broker dealer will attempt to sell the common stock as agent but may position and resell a portion of the block as principal to facilitate the transaction; | |
| ● | purchases by a broker dealer as principal and resale by the broker dealer for its account; | |
| ● | an exchange distribution in accordance with the rules of the applicable exchange; | |
| ● | privately negotiated transactions; | |
| ● | settlement of short sales; | |
| ● | distribution to employees, members, limited partners or stockholders of the selling stockholders; | |
| ● | in transactions through broker dealers that agree with the selling stockholders to sell a specified number of such common stock at a stipulated price per security; | |
| ● | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; | |
| ● | by pledge to secured debts and other obligations; | |
| ● | delayed delivery arrangements; | |
| ● | to or through underwriters or broker-dealers; | |
| ● | a combination of any such methods of sale; or | |
| ● | any other method permitted pursuant to applicable law. |
The selling stockholders may also sell the shares of our common stock under Rule 144 or any other exemption from registration under the Securities Act, if available, rather than under this prospectus.
In addition, a selling stockholder that is an entity may elect to make a pro rata in-kind distribution of securities to its members, partners or stockholders pursuant to the registration statement of which this prospectus is a part by delivering a prospectus with a plan of distribution. Such members, partners or stockholders would thereby receive freely tradeable securities pursuant to the distribution through a registration statement. To the extent a distributee is our affiliate (or to the extent otherwise required by law), we may, at our option, file a prospectus supplement in order to permit the distributees to use the prospectus to resell the securities acquired in the distribution.
Broker-dealers engaged by the selling stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions, discounts or concessions from the selling stockholders (or, if any broker-dealer acts as agent for the purchaser of our common stock, from the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction not in excess of a customary brokerage commission in compliance with Financial Industry Regulatory Authority (“FINRA”) Rule 5110; and in the case of a principal transaction a markup or markdown in compliance with FINRA Rule 2121.
To the extent required, this prospectus may be amended or supplemented from time to time to describe a specific plan of distribution. In connection with the sale of our common stock 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 sales of our common stock in the course of hedging the positions they assume. The selling stockholders may also sell our common stock short and deliver these shares to close out their short positions, or loan or pledge the securities to broker-dealers that in turn may sell these shares. The selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer or other financial institution of 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). The selling stockholders may also pledge securities to a broker-dealer or other financial institution, and, upon a default, such broker-dealer or other financial institution, may effect sales of the pledged securities pursuant to this prospectus (as supplemented or amended to reflect such transaction).
Any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares of our common stock purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Each selling stockholder has informed us that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the shares of our common stock.
We are required to pay certain fees and expenses incurred by us incident to the registration of the shares of our common stock.
The Resale Shares will be passed uponsold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the Resale Shares may not simultaneously engage in market making activities with respect to our common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the selling stockholders will be 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 our common stock by the selling stockholders or any other person. We will make copies of this prospectus available to the selling stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).
At the time a particular offer of securities is made, if required, a prospectus supplement will be distributed that will set forth the number of securities being offered and the terms of the offering, including the name of any underwriter, dealer or agent, the purchase price paid by any underwriter, any discount, commission and other item constituting compensation, any discount, commission or concession allowed or reallowed or paid to any dealer, and the proposed selling price to the public.
| 10 |
Reed Smith LLP, New York, New York.York, will pass upon the validity of the shares of common stock offered hereby.
Mayer Hoffman McCann P.C., ourThe consolidated financial statements of Qualigen Therapeutics, Inc. as of December 31, 2021 and 2020 and for the year ended December 31, 2021 and for the nine-month period ended December 31, 2020, incorporated in this Prospectus by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 2021 have been audited by Baker Tilly US, LLP, an independent registered public accounting firm, has audited our balance sheets as of December 31, 2017 and 2016, and the related statements of operations and comprehensive loss, changes in stockholders’ equity, and cash flows for each of the two years in the period ended December 31, 2017, as set forthstated in their report which report expresses an unqualified opinion and includes an explanatory paragraph relating to our ability to continue as a going concern. We havethereon, incorporated herein by reference, our financial statementsand have been incorporated in this prospectusProspectus and in this registration statementRegistration Statement in reliance onupon such report and upon the reportauthority of Mayer Hoffman McCann P.C. given on their authoritysuch firm as experts in accounting and auditing.
WHERE YOU CAN FIND MOREADDITIONAL INFORMATION
We have filed withThis prospectus is part of the SEC a registration statement on Form S-3 we filed with the SEC under the Securities Act of which this prospectus forms a part. The rules and regulations ofdoes not contain all the SEC allow us to omit from this prospectus certain information includedset forth in the registration statement. For further information about usWhenever a reference is made in this prospectus to any of our contracts, agreements or other documents, the reference may not be complete and our securities, you should refer to the exhibits that are a part of the registration statement andor the exhibits and schedules filed with the registration statement. With respect to the statements contained inreports or other documents incorporated by reference into this prospectus regarding the contents of any agreement or any other document, in each instance, the statement is qualified in all respects by the complete text of the agreement or document,for a copy of which has been filed as an exhibitsuch contract, agreement or other document. Because we are subject to the registration statement.
Weinformation and reporting requirements of the Exchange Act, we file annual, quarterly and current reports, proxy 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., Room 1580, Washington, D.C. 20549,SEC’s website 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 electronically with the SEC. The address of that website iswww.sec.gov.http://www.sec.gov.
We maintain a website at www.tempesttx.com. Information contained in or accessible through our website does not constitute a part of this prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate“incorporate by reference into this document thereference” information from other documents that we have filedfile with it. Thisit, which means that we can disclose important business, financial and other information to you by referring you to other documents separately filed with the SEC.those documents. The information incorporated by reference is an importantconsidered to be part of this prospectus. Information in this prospectus andsupersedes information incorporated by reference that we filed with the SEC prior to the date of this prospectus, while information that we file later with the SEC will automatically update and supersede this information. Statementsthe information 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 and the exhibits, may be obtained at the SEC’s public reference room or at the SEC’s website athttp://www.sec.gov or by writing to the SEC and paying a fee for the copying cost.prospectus. We incorporate by reference into this prospectus and the registration statement of which this prospectus is a part the information or documents listed below:below that we have filed with the SEC (Commission File No. 001-37428):
| ● | our Annual Report on Form 10-K for the fiscal year ended December 31, | |
| ● | our Quarterly | |
| ● | our Current Reports on Form 8-K (other than information furnished rather than filed) filed with the SEC on January 18, 2022, March 4, 2022, May 4, 2022 and | |
| ● | the |
AnyAll filings filed by us pursuant to the Exchange Act after the date of the initial filing of the registration statement contained inof which this prospectus or inis a document incorporated orpart and prior to effectiveness of the registration statement shall be deemed to be incorporated by reference into this prospectus.
We also incorporate by reference any future filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such items unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including those made after the date of the initial filing of the registration statement of which this prospectus is a part and prior to effectiveness of such registration statement, until we file a post-effective amendment that indicates the termination of the offering of the shares of our common stock made by this prospectus and will become a part of this prospectus from the date that such documents are filed with the SEC. Information in such future filings updates and supplements the information provided in this prospectus. Any statements in any such future filings will automatically be deemed to modify and supersede any information in any document we previously filed with the SEC that is incorporated or deemed to be modified or superseded for purposes of this prospectusincorporated herein by reference to the extent that a statement containedstatements in this prospectus or any other subsequentlythe later filed document that is deemed to be incorporated by reference into this prospectus modifiesmodify or supersedes the statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.replace such earlier statements.
To receiveYou can request a free copy of any ofthese filings, at no cost, by writing or telephoning us at the following address or telephone number:
Qualigen Therapeutics, Inc.
2042 Corte Del Nogal
Carlsbad, California 92011
Attn: Secretary
You may also access the documents incorporated by reference in this prospectus (other than exhibits to the Registration Statement) call or write us at the following address:
Ritter Pharmaceuticals, Inc.1880 Century Park East #1000
Los Angeles, CA 90067
Attention: Corporate Secretary
(310) 203-1000
Copies of these filings are also available through the “Investor” section of our website atwww.ritterpharmaceuticals.com.For other wayswww.qualigeninc.com. Except for the specific incorporated documents listed above, no information available on or through our website shall be deemed to obtainbe incorporated in this prospectus or the registration statement of which it forms a copy of these filings, please refer to “Where You Can Find More Information” above.part.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth an itemizationestimate of the variousfees and expenses all of which we will pay,payable by us in connection with the issuance and distributionsale of the common stocksecurities being registered. All of the amounts shown are estimated except the Securities and Exchange Commission 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 |
| Amount | ||||
| SEC registration fees | $ | 445 | ||
| Accounting fees and expenses | 8,500 | |||
| Legal fees and expenses | 10,000 | |||
| Miscellaneous fees and expenses | 1,055 | |||
| Total | $ | 20,000 | ||
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 (“DGCL”), each person who is involved in any litigation or other proceeding because such person is or was a director or officer of Ritter Pharmaceuticals,Qualigen Therapeutics, Inc. or is or was serving as an officer or director of another entity at our request, against all expense, loss or liability reasonably incurred or suffered in connection therewith. Our amended and restated certificate of incorporation provides that the right to indemnification includes the right to be paid expenses incurred in defending any proceeding in advance of its final disposition, provided, however, that such advance payment will only be made upon delivery to us of an undertaking, by or on behalf of the director or officer, to repay all amounts so advanced if it is ultimately determined that such director is not entitled to indemnification. If we do not pay a proper claim for indemnification in full within 30 days after we receive a written claim for such indemnification, our certificate of incorporation and our bylaws authorize the claimant to bring an action against us and prescribe what constitutes a defense to such action.
Section 145 of the Delaware General Corporation Law permits a corporation to indemnify any director or officer of the corporation against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding brought by reason of the fact that such person is or was a director or officer of the corporation, if such person acted in good faith and in a manner that he reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, if he or she had no reason to believe his or her conduct was unlawful. In a derivative action, (i.e.(i.e., one brought by or on behalf of the corporation), indemnification may be provided only for expenses actually and reasonably incurred by any director or officer in connection with the defense or settlement of such an action or suit if such person acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be provided if such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action or suit was brought shall determine that the defendant is fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability.
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law, our amended and restated certificate of incorporation eliminates the liability of a director to us or our stockholders for monetary damages for such a breach of fiduciary duty as a director, except for liabilities arising:
| ● | from any breach of the director’s duty of loyalty to us or our stockholders; | |
| ● | from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; | |
| ● | under Section 174 of the | |
| ● | from any transaction from which the director derived an improper personal benefit. |
We carry insurance policies insuring our directors and officers against certain liabilities that they may incur in their capacity as directors and officers.
In addition, we have entered into indemnification agreements with each of our current directors and executive officers. These agreements require us to indemnify these individuals toprovide for the fullest extent permitted under Delaware lawindemnification of such persons for all reasonable expenses and liabilities incurred in connection with any action or proceeding brought against liabilities that may arisethem by reason of the fact that they are or were serving in such capacity. We believe that these indemnification agreements are necessary to attract and retain qualified persons as directors and officers. Furthermore, we have obtained director and officer liability insurance to cover liabilities our directors and officers may incur in connection with their serviceservices to us and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified. us.
We also intend to enter into indemnification agreements withmaintain general liability insurance which covers certain liabilities of our future directors and executive officers.officers arising out of claims based on acts or omissions in their capacities as directors or officers, including liabilities under the Securities Act of 1933, as amended.
| 12 |
| 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
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) Toto include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) Toto reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or 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) Toto include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;statement.
provided,Provided, however,, that paragraphs (1)(i), (1)(ii) and (1)(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 thisthe 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 Section 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) Each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A (§230.430A of this chapter), shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(b) The undersigned registrant hereby undertakes that,(6) That, for purposesthe purpose of determining any liability of the registrant under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 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)(7) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrantregistrant 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-3registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Los Angeles,Carlsbad, State of California, on the 21stday of November 2018.June 17, 2022.
| By: | /s/ | |
We the undersigned officersKNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and directors of Ritter Pharmaceutics, Inc., hereby severally constituteappoints Michael Poirier, Amy Broidrick and appoint Andrew J. Ritter and John W. Beck,Christopher Lotz, and each of them, singly, ouras true and lawful attorneysattorneys-in-fact and agents, with full power to anypowers of substitution and resubstitution, for them and to each of them singly, to sign for usin their name, place and stead, in our names in the capacities indicated below the registration statement on Form S-3 filed herewith and any and all capacities, to sign any and all amendments (including pre-effective and post-effective amendmentsamendments) to saidthis registration statement, and to sign any subsequent registration statement filedfor the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462(b)462 under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and the other documents in connection therewith, with the Securities and Exchange Commission, and generally to do all such things in our nametheir names and behalf in ourtheir capacities as officers and directors to enable Ritter Pharmaceuticals,Qualigen Therapeutics, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, herebygranting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, ratifying and confirming our signatures as they may be signed by ourall that said attorneys,attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to said registration statement and any and all amendments thereto.be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statementregistration statement has been signed below by the following persons in the capacities and on the dates indicated below.
indicated.
| Title | Date | |||||
| /s/ | June 17, 2022 | |||||
| Michael S. Poirier | (Principal Executive Officer) | |||||
| /s/ Christopher L. Lotz | Vice President of Finance, Chief Financial Officer | June 17, 2022 | ||||
| Christopher L. Lotz | (Principal | |||||
| /s/ Amy S. Broidrick | Director | June 17, 2022 | ||||
| Amy S. Broidrick | ||||||
| /s/ | June 17, 2022 | |||||
| /s/ Sidney W. | Director | June 17, 2022 | ||||
| Sidney W. Emery, Jr. | ||||||
| /s/ Matthew E. Korenberg | Director | June 17, 2022 | ||||
| Matthew E. Korenberg | ||||||
| /s/ Kurt H. Kruger | Director | June 17, 2022 | ||||
| Kurt H. Kruger | ||||||
| /s/ Ira E. Ritter | ||||||
| Ira E. Ritter | ||||||
| 16 |