As
filed with the Securities and Exchange Commission on November 21, 2018
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, Inc.
(Exact
Name of Registrant as Specified in Its Charter)
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Delaware
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1880
Century Park East
Suite
1000
Los
Angeles, California 90067
(310)
203-1000
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26-3474527
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(State
or other jurisdiction of
incorporation
or organization)
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(Address,
including zip code, and telephone
number, including area code, of
registrant’s principal executive offices)
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(I.R.S.
Employer
Identification
No.)
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Andrew
J. Ritter
President
and Chief Executive Officer
Ritter
Pharmaceuticals, Inc., Inc.
1880
Century Park East
Suite
1000
Los
Angeles, California 90067
(310)
203-1000
(Name,
address, including ZIP code, and telephone number, including area code, of agent for service)
Copies
to:
Michael
Sanders
Aron
Izower
Reed
Smith LLP
1901
Avenue of the Stars, Suite 700
Los
Angeles, California 90067-6078
(310)
734-5200
Approximate
date of commencement of proposed sale to the public:
From time to time after the effective date of this registration statement.
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 on 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.
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Large
accelerated filer
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[ ]
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Accelerated
filer
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[ ]
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Non-accelerated
filer
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[ ]
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Smaller
reporting company
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[X]
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Emerging
growth company
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[X]
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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
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Title
of each Class of
Securities
to be Registered
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Amount
to be
Registered
(1)
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Proposed
Maximum
Offering
Price
Per
Share
(2)
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Proposed
Maximum
Aggregate
Offering
Price
(2)
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Amount
of
Registration
Fee
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Shares of Common Stock, par value
$0.001 per share, issuable upon conversion of shares of Series B convertible preferred stock
(3)
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4,615,379
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$
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0.8615
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$
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3,976,149.01
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$
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481.91
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Shares of Common Stock, par value $0.001 per
share, issuable upon conversion of shares of Series C convertible preferred stock
(4)
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1,146,341
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$
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0.8615
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$
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987,572.77
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$
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119.69
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Shares of Common Stock, par value $0.0001 per
share, issuable upon exercise of warrants
(5)
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2,307,686
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$
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0.8615
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$
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1,988,071.49
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$
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240.95
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Total
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8,069,406
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$
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0.8615
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6,951,793.27
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$
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842.56
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(1)
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Pursuant
to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also
includes an indeterminate number of additional shares of common stock as may from time to time become issuable by reason of
stock splits, stock dividends, recapitalizations or other similar transactions.
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(2)
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Estimated
solely for the purpose of calculating the registration fee pursuant to Rule 457(c) of the Securities Act based upon the average
of the high and low prices of the Registrant’s common stock as reported on the Nasdaq Capital Market on November 16,
2018.
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(3)
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Represents
shares of common stock issuable upon conversion of shares of Series B convertible preferred stock, with each share of Series
B convertible preferred stock having a stated value of $1,000 per share and a conversion price of $1.30 per share (subject
to customary adjustments in the event of future stock splits and dividends).
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(4)
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Represents
shares of common stock issuable upon conversion of shares of Series C convertible preferred stock, with each share of Series
C convertible preferred stock having a stated value of $1,000 per share and a conversion price of $1.64 per share (subject
to customary adjustments in the event of future stock splits and dividends).
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(5)
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Represents
shares of common stock issuable upon exercise of warrants, at an exercise price of $1.30 per share (subject to customary adjustments
in the event of future stock splits and dividends).
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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 which 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 this registration statement shall
become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. The selling stockholders may not sell the securities until
the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to
sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED NOVEMBER 21, 2018
PROSPECTUS
8,069,406
Shares of Common Stock
RITTER
PHARMACEUTICALS, INC.
This
prospectus relates to the resale or other disposition by the selling stockholders identified in this prospectus of up to 8,069,406
shares of our common stock. Of these shares, 4,615,379 shares are issuable upon the conversion of our Series B convertible
preferred stock, 1,146,341 shares are issuable upon the conversion of our Series C convertible preferred stock, and 2,307,686
shares are issuable upon the exercise of outstanding warrants to purchase our common stock, all issued to the selling
stockholders in connection with a private placement we completed on November 5, 2018.
We
are not selling any shares of common stock under this prospectus and will not receive any of the proceeds from the sale or other
disposition of common stock by the selling stockholders. To the extent the warrants are exercised for cash, if at all, we will
receive the exercise price of the warrants.
The
selling stockholders or their pledgees, assignees or successors-in-interest may offer and sell or otherwise dispose of the shares
of common stock described in this prospectus from time to time through public or private transactions at prevailing market prices,
at prices related to prevailing market prices or at privately negotiated prices. The selling stockholders will bear all commissions
and discounts, if any, attributable to the sales of shares. We will bear all costs, expenses and fees in connection with the registration
of the shares. See “Plan of Distribution” beginning on page 11 for more information about how the selling stockholders
may sell or dispose of their shares of common stock.
Our
common stock is listed on the Nasdaq Capital Market under the symbol “RTTR.” On November 20, 2018, the last
reported sale price of our common stock was $0.83 per share.
Investing
in our common stock involves a high degree of risk. Before making an investment decision, please read the information under the
heading “
Risk Factors
” beginning on page 5 of this prospectus and in the documents incorporated by reference
in this prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2018
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is a part of a registration statement that we filed with the Securities and Exchange Commission, or the SEC, utilizing
a “shelf” registration process. Under this shelf registration process, certain selling stockholders may from time
to time sell the shares of common stock described in this prospectus in one or more offerings.
We
have not authorized anyone to give any information or to make any representation other than those contained or incorporated by
reference in this prospectus. You must 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 shares in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation
in such jurisdiction. You should not assume that the information contained in this prospectus is accurate on any date subsequent
to the date set forth on the front of the document or that any information we have incorporated by reference is correct on any
date subsequent to the date of the document incorporated by reference, even though this prospectus is delivered or shares are
sold on a later date.
You
should read this prospectus together with the additional information described under the headings “Where You Can Find More
Information” and “Incorporation of Certain Information by Reference.”
This
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
®
or
TM
symbols, but such references are not intended to indicate, in any way, that we will not assert, to the
fullest extent under applicable law, our rights or the rights of the applicable licensor to these trademarks and trade names.
We do not intend our use or display of other companies’ trade names or trademarks to imply a relationship with, or endorsement
or sponsorship of us by, any other company.
PROSPECTUS
SUMMARY
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 contain all of the information you should consider before investing in
our common stock. You should carefully read this entire prospectus, including each of the 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.
Overview
Ritter
Pharmaceuticals, Inc. develops novel therapeutic products that modulate the gut microbiome to treat gastrointestinal diseases.
Our lead product candidate, RP-G28, has the potential to become the first drug approved by the Food and Drug Administration for
the treatment of lactose intolerance, a condition that affects millions worldwide. RP-G28 has been studied in Phase 2 clinical
trials and is now in Phase 3 clinical development with its first Phase 3 study currently underway. We are further exploring the
functionality and discovering the therapeutic potential that gut microbiome changes may have on treating/preventing a variety
of conditions including: gastrointestinal cancer, metabolic, and liver diseases.
Our
first novel microbiome modulator, RP-G28, an orally administered, high purity galacto-oligosaccharide, is currently under development
for the treatment of lactose intolerance. RP-G28 is designed to selectively stimulate the growth of lactose-metabolizing bacteria
in the colon, thereby effectively adapting the gut microbiome to assist in digesting lactose (the sugar found in milk) that reaches
the large intestine.
Our
current Phase 3 clinical program includes two confirmatory clinical trials of similar trial design as our Phase 2b clinical trial.
The first Phase 3 clinical trial was initiated in the second quarter of 2018.
Corporate
Information
We
were formed as a Nevada limited liability company on March 29, 2004 under the name Ritter Natural Sciences, LLC. On September
16, 2008, we converted into a Delaware corporation under the name Ritter Pharmaceuticals, Inc. Our principal executive offices
are located at 1880 Century Park East, Suite 1000, Los Angeles, CA 90067, and our telephone number is (310) 203-1000. Our website
address is
www.ritterpharmaceuticals.com
. The information contained on, or that can be accessed through, our website is
not part of this prospectus.
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
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Selling
stockholders
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Institutional
and accredited investors who purchased shares of our Series B convertible preferred stock and Warrants in the Private Placement,
including certain investors who received Series C convertible preferred stock in the Exchange.
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Common
stock offered by the selling stockholders
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Up
to 8,069,406 shares, including 4,615,379 shares of our common stock issuable upon conversion of shares of our
Series B convertible preferred stock, 1,146,341 shares of our common stock issuable upon conversion of our Series C convertible
preferred stock, and 2,307,686 shares of our common stock issuable upon exercise of the Warrants.
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Use
of proceeds
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We
will not receive any proceeds from the sale or other disposition of the shares of common stock offered hereby. However, if
all of the Warrants were exercised for cash, we would receive gross proceeds of approximately $3.0 million. We currently intend
to use such proceeds, if any, to fund operations, including our 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.
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Risk
factors
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Investing
in our common stock involves a high degree of risk. See “Risk Factors” beginning on page 5 of this prospectus,
and any other risk factors described in the documents incorporated by reference herein, for a discussion of factors that you
should carefully consider before deciding to invest in our common stock.
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Nasdaq
Capital Market symbol
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RTTR
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RISK
FACTORS
An
investment in our common stock involves a high degree of risk. Prior to making a decision about investing in our common stock,
you should carefully consider the risks, uncertainties and assumptions discussed under Item 1A, “Risk Factors,” in
our Annual Report on Form 10-K for the fiscal year ended December 31, 2017, as updated by our subsequent filings with the Securities
and Exchange Commission, or the SEC, under the Securities Exchange Act of 1934, as amended, or the Exchange Act, which are incorporated
herein by reference, together with the information in this prospectus and any other information 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.
FORWARD-LOOKING
STATEMENTS
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:
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our
ability to obtain additional financing;
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the
accuracy of our estimates regarding expenses, future revenues and capital requirements;
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the
success and timing of our preclinical studies and clinical trials;
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our
ability to obtain and maintain regulatory approval of RP-G28 and any other product candidates we may develop, and the labeling
under any approval we may obtain;
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regulatory
developments in the United States and other countries;
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the
performance of third-party manufacturers;
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our
ability to develop and commercialize RP-G28 and any other product candidates that we may develop in the future;
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our
ability to obtain and maintain intellectual property protection for RP-G28 and any other product candidates we may develop
in the future;
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the
successful development of our sales and marketing capabilities;
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the
potential markets for RP-G28 and any other product candidates we may develop in the future and our ability to serve those
markets;
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the
rate and degree of market acceptance of our products, if approved;
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the
success of competing drugs that are or become available; and
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the
loss of key scientific or management personnel.
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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.
USE
OF PROCEEDS
We
will not receive any of the proceeds from the sale of shares of our common stock in this offering by the selling stockholders.
The selling stockholders will receive all of the proceeds from this offering.
A
portion of the shares covered by this prospectus are issuable upon exercise of the Warrants to purchase shares of our common stock.
Pursuant to conditions set forth in the warrants, the warrants are exercisable under certain circumstances on a cashless basis,
and should a selling stockholder elect to exercise on a cashless basis we will not receive any proceeds from the sale of common
stock issued upon the cashless exercise of the warrant. The holders of the Warrants are not obligated to exercise their Warrants,
and we cannot predict whether holders of the Warrants will choose to exercise all or any of their Warrants or if they will do
so for cash or on a cashless basis. However, if all of the Warrants were exercised for cash, we would receive gross proceeds of
approximately $3.0 million. We currently intend to use such proceeds, if any, to fund operations, including our ongoing Phase
3 clinical trial for RP-G28 through its completion and dissemination of top-line results, and for working capital and general
corporate purposes.
We
have agreed to pay all costs, expenses and fees relating to the registration of the shares of our common stock covered by this
prospectus. The selling stockholders will pay any brokerage commissions and/or similar charges incurred in connection with the
sale or other disposition by them of the shares covered hereby.
SELLING
STOCKHOLDERS
The
shares of common stock being offered by the selling stockholders are those issuable to the selling stockholders upon conversion
of the Series B convertible preferred stock and Series C convertible preferred stock and upon exercise of the Warrants. For additional
information regarding the issuances of those securities, see “Prospectus Summary—Summary of Private Placement”
above. We are registering the shares of common stock in order to permit the selling stockholders to offer the shares for resale
from time to time.
Except
for the sale and issuance of the shares of the Series B convertible preferred stock, the Series C convertible preferred stock
and the Warrants in the Private Placement and the Exchange, and except as otherwise disclosed in the footnotes below, the selling
stockholders have not had any material relationship with us within the past three years. To our knowledge, none of the selling
stockholders are affiliates of broker-dealers.
The
table below lists the selling stockholders and other information regarding the beneficial ownership of the shares of common stock
of each of the selling stockholders. The second column lists the number of shares of common stock beneficially owned by each selling
stockholder, as of the Closing, assuming full conversion of the Series B convertible preferred stock and Series C convertible
preferred stock and full exercise of the Warrants held by the selling stockholders on that date, without regard to any limitations
on conversions or exercises. The third column lists the number of shares of common stock being offered by the selling stockholders
in this prospectus.
In
accordance with the terms of the Registration Rights Agreement with the selling stockholders, this prospectus generally covers
the resale of (i) the shares of common stock issuable upon conversion in full of the shares of Series B convertible preferred
stock issued to the selling stockholders in the Private Placement (assuming the shares of Series B convertible preferred stock
are converted in full without regard to the limitation described below), (ii) the shares of common stock issuable upon conversion
in full of the shares of Series C convertible preferred stock issued to certain selling stockholders in the Exchange (assuming
the shares of Series C convertible preferred stock are converted in full without regard to the limitation described below), and
(iii) the maximum number of shares of common stock issuable upon exercise of the Warrants issued to the selling stockholders in
the Private Placement (assuming the Warrants are exercised in full without regard to the limitation described below). The fourth
and fifth columns list the number of shares of common stock and percentage of our outstanding common stock to be held by the selling
stockholder assuming the sale of all of the shares of common stock offered by the selling stockholders pursuant to this prospectus.
Pursuant
to the Certificates of Designation of Preferences, Right and Limitations for our Series B convertible preferred stock and Series
C convertible preferred stock, our shares of Series B convertible preferred stock and Series C convertible preferred stock may
not be converted by the selling stockholders, at their election, if such conversion would cause such selling stockholders, together
with their affiliates and attribution parties, to beneficially own a number of shares of common stock that would exceed 4.99%
of our then outstanding common stock following such conversion (subject to adjustment up to 9.99% upon the fulfillment of certain
conditions).
Similarly,
under the terms of the Warrants, the selling stockholders, at their election, may not exercise the Warrants to the extent such
exercise would cause such selling stockholders, together with their affiliates and attribution parties, to beneficially own a
number of shares of common stock which would exceed 4.99% of our then outstanding common stock following such exercise (subject
to adjustment up to 9.99% upon the fulfillment of certain conditions), excluding for purposes of such determination shares of
common stock issuable upon exercise of the Warrants which have not been exercised.
The
number of shares in the first and second columns below does not reflect the limitations set forth in the preceding paragraphs.
The selling stockholders may sell all, some or none of their shares in this offering. See “Plan of Distribution.”
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Name
of Selling Stockholder
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Number
of
Shares of
Common
Stock Owned
Prior
to
Offering(1)
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Maximum
Number of
Shares
of
Common
Stock
to be
Sold
Pursuant
to
this
Prospectus(1)
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Number
of
Shares of
Common
Stock Owned
After
Offering(2)
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Percentage
of Class
Following
the
Offering(2)
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Armistice Capital Master
Fund, Ltd.
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4,369,230
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(3)
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3,307,691
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1,061,539
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15.8
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%
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Sabby Volatility Warrant Master Fund,
Ltd.
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1,201,523
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(4)
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|
|
576,923
|
|
|
|
624,600
|
|
|
|
10.1
|
%
|
|
Medpace, Inc.
|
|
|
865,384
|
(5)
|
|
|
865,384
|
|
|
|
0
|
|
|
|
—
|
|
|
Bigger Capital Fund, LP
|
|
|
738,460
|
(6)
|
|
|
663,460
|
|
|
|
75,000
|
|
|
|
1.3
|
%
|
|
District 2 Capital Fund LP
|
|
|
663,460
|
(7)
|
|
|
663,460
|
|
|
|
0
|
|
|
|
—
|
|
|
Alpha Capital Anstalt
|
|
|
723,263
|
(8)
|
|
|
723,263
|
|
|
|
0
|
|
|
|
—
|
|
|
Iroquois Capital Investment Group LLC
|
|
|
317,307
|
(9)
|
|
|
317,307
|
|
|
|
0
|
|
|
|
—
|
|
|
Steven G. Lampe
|
|
|
288,460
|
(10)
|
|
|
288,460
|
|
|
|
0
|
|
|
|
—
|
|
|
Steven Lampe and Jill Lampe JTWROS
|
|
|
288,460
|
(11)
|
|
|
288,460
|
|
|
|
0
|
|
|
|
—
|
|
|
Iroquois Master Fund Ltd.
|
|
|
259,614
|
(12)
|
|
|
259,614
|
|
|
|
0
|
|
|
|
—
|
|
|
Matthew W. Foehr
|
|
|
142,580
|
(13)
|
|
|
115,384
|
|
|
|
27,196
|
|
|
|
*
|
|
|
*
|
Less
than one percent of our outstanding shares of common stock.
|
|
(1)
|
Assumes
the conversion of all shares of our Series B convertible preferred stock and Series C convertible preferred stock and the
exercise for cash of all of the warrants held by the selling stockholders that are currently exercisable, irrespective of
limitations on conversion or exercise, as applicable.
|
|
|
|
|
(2)
|
Represents
the number of shares of common stock that will be beneficially owned by the selling stockholder after completion of this offering
based on the assumptions that (i) all of the shares of common stock registered for resale by the registration statement of
which this prospectus is a part will be sold and (ii) no other shares of common stock will be acquired or sold by the selling
stockholder before completion of this offering. However, the selling stockholder may sell all, part or none of its shares
of common stock offered pursuant to this prospectus and may sell all, part or none of its common stock pursuant to one or
more exemptions from the registration provisions of the Securities Act. Applicable percentage ownership following the offering
is based on 5,734,639 shares of common stock that would be outstanding following the offering if all shares registered by
this prospectus are sold in the offering. Shares of common stock that may be acquired by a selling stockholder within 60 days,
pursuant to the exercise of options or warrants are deemed to be outstanding for the purpose of computing the percentage ownership
of such selling stockholder, but are not deemed to be outstanding for the purpose of computing the percentage ownership of
any other selling stockholder.
|
|
|
|
|
(3)
|
The number of shares of common
stock beneficially owned by Armistice Capital Master Fund, Ltd. consists of (i) 61,539
shares of common stock, (ii) 1,538,461 shares of common stock issuable upon the conversion
of shares of Series B convertible preferred stock, (iii) 1,000,000 shares of common stock
issuable upon the conversion of shares of Series C convertible preferred stock, and (ii)
1,769,230 shares of common stock issuable upon the exercise of warrants (including 769,230
shares issuable upon the exercise of the Warrants purchased in the Offering). Armistice
Capital, LLC is an investment manager to Armistice Capital Master Fund, Ltd. and Steven
J. Boyd, the chief investment officer of Armistice Capital, LLC, may be deemed to have
voting and investment power with respect to the securities held by Armistice Capital
Master Fund, Ltd. The selling stockholder’s address is c/o Armistice Capital, LLC,
510 Madison Ave, 7th Floor New York, NY 10022.
|
|
|
|
|
(4)
|
The
number of shares of common stock beneficially owned by Sabby Volatility Warrant Master Fund, Ltd. consists of (i) 149,600
shares of common stock, (ii) 384,615 shares of common stock issuable upon the conversion of shares of Series B convertible
preferred stock, and (iii) 667,308 shares of common stock issuable upon the exercise of warrants (including 192,308 shares
issuable upon the exercise of the Warrants purchased in the Offering). The selling stockholder has indicated that Hal Mintz
has voting and investment power over the shares held by it and that Sabby Management, LLC serves as its investment manager.
Mr. Mintz is the manager of Sabby Management, LLC. Each of Sabby Management, LLC and Mr. Mintz disclaim beneficial ownership
over these shares except to the extent of any pecuniary interest therein. The selling stockholder’s address is c/o Sabby
Management, LLC, 10 Mountainview Road, Suite 205, Upper Saddle River, NJ 07458.
|
|
(5)
|
The
number of shares of common stock beneficially owned by Medpace, Inc. consists of (i) 576,923 shares of common stock issuable
upon the conversion of shares of Series B convertible preferred stock and (ii) 288,461 shares of common stock issuable upon
the exercise of the Warrants. Medpace, Inc., a clinical research organization, provides certain services to us related
to the management and execution of our clinical trials related to RP-628. The selling stockholder’s address is 5375
Medpace Way, Cincinnati, Ohio 45227.
|
|
|
|
|
(6)
|
The
number of shares of common stock beneficially owned by Bigger Capital Fund, LP consists of (i) 442,307 shares of common stock
issuable upon the conversion of shares of Series B convertible preferred stock and (ii) 296,153 shares of common stock issuable
upon the exercise of warrants (including 221,153 shares of common stock issuable upon the exercise of the Warrants purchased
in the Offering). The selling stockholder has indicated that Bigger Capital GP, LLC, the general partner of Bigger Capital
Fund, LP, and Michael Bigger, the managing member of Bigger Capital GP, LLC, each has voting and investment power over the
shares held by it. The selling stockholder’s address is 159 Jennings Road, Cold Spring Harbor, New York 11724.
|
|
|
|
|
(7)
|
The
number of shares of common stock beneficially owned by District 2 Capital Fund LP consists of (i) 442,307 shares of common
stock issuable upon the conversion of shares of Series B convertible preferred stock and (ii) 221,153 shares of common stock
issuable upon the exercise of the Warrants. The selling stockholder has indicated that District 2 GP LLC, the general partner
of District 2 Capital LP, and Michael Bigger, the managing member of District 2 Capital Fund LP, each has voting and investment
power over the shares held by it. The selling stockholder’s address is 175 W. Carver St., Huntington, New York 11743.
|
|
|
|
|
(8)
|
The
number of shares of common stock beneficially owned by Alpha Capital Anstalt consists of (i) 384,615 shares of common stock
issuable upon the conversion of shares of Series B convertible preferred stock, (ii) 146,341 shares of common stock issuable
upon the conversion of shares of Series C convertible preferred stock, and (iii) 192,307 shares of common stock issuable
upon the exercise of the Warrants. The selling stockholder has indicated that Konrad Ackerman has voting and investment
power over the shares held by it. The selling stockholder’s address is c/o LH Financial Services Corp., 510 Madison
Avenue, Suite 1400, New York, New York 10022.
|
|
|
|
|
(9)
|
The
number of shares of common stock beneficially owned by Iroquois Capital Investment Group LLC consists of (i) 211,538 shares
of common stock issuable upon the conversion of shares of Series B convertible preferred stock and (ii) 105,769 shares of
common stock issuable upon the exercise of the Warrants. The selling stockholder’s address is 205 East 42
nd
Street, 20
th
Floor, New York, New York 10017.
|
|
|
|
|
(10)
|
The
number of shares of common stock beneficially owned by Steven G. Lampe consists of (i) 192,307 shares of common stock issuable
upon the conversion of shares of Series B convertible preferred stock and (ii) 96,153 shares of common stock issuable upon
the exercise of the Warrants. This number does not include the 288,460 shares described in footnote 11, of which the selling
stockholder is also a beneficial owner. The selling stockholder’s address is Lampe Conway & Co. LLC, 680 Fifth Avenue,
12
th
Floor, New York, New York 10019.
|
|
|
|
|
(11)
|
The
number of shares of common stock beneficially owned by Steven Lampe and Jill Lampe JTWROS consists of (i) 192,307 shares of
common stock issuable upon the conversion of shares of Series B convertible preferred stock and (ii) 96,153 shares of common
stock issuable upon the exercise of the Warrants. This number does not include the 288,460 shares described in footnote 10,
of which Steven Lampe is also a beneficial owner. The selling stockholders’ address is Lampe Conway & Co. LLC, 680
Fifth Avenue, 12
th
Floor, New York, New York 10019.
|
|
|
|
|
(12)
|
The
number of shares of common stock beneficially owned by Iroquois Master Fund Ltd. consists of (i) 173,076 shares of common
stock issuable upon the conversion of shares of Series B convertible preferred stock and (ii) 86,538 shares of common stock
issuable upon the exercise of the Warrants. The selling stockholder’s address is 205 East 42
nd
Street, 20
th
Floor, New York, New York 10017.
|
|
|
|
|
(13)
|
The
number of shares of common stock beneficially owned by Matthew W. Foehr consists of (i) 27,196 shares of common stock (including
3,945 shares of common stock issuable upon the exercise of stock options held by the selling stockholder that are currently
exercisable or exercisable within 60 days), (ii) 76,923 shares of common stock issuable upon the conversion of shares of Series
B convertible preferred stock, and (iii) 38,461 shares of common stock issuable upon the exercise of the Warrants. Mr.
Foehr serves as director on our board of directors. The selling stockholder’s address is c/o Ritter Pharmaceuticals,
Inc., 1880 Century Park East, #1000, Los Angeles, California 90067.
|
PLAN
OF DISTRIBUTION
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:
|
|
●
|
ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers;
|
|
|
|
|
|
|
●
|
block
trades in which the broker-dealer will attempt to sell the securities 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;
|
|
|
|
|
|
|
●
|
in
transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number of such securities
at a stipulated price per security;
|
|
|
|
|
|
|
●
|
through
the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
|
|
|
|
|
|
|
●
|
a
combination of any such methods of sale; or
|
|
|
|
|
|
|
●
|
any
other method permitted pursuant to applicable law.
|
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).
DESCRIPTION
OF CAPITAL STOCK
The
following description of our capital stock is not complete and may not contain all the information you should consider before
investing in our capital stock. This description is summarized from, and qualified in its entirety by reference to, our Amended
and Restated Certificate of Incorporation, the Certificates of Designation of Preferences, Right and Limitations for our Series
A convertible preferred stock, Series B convertible preferred stock and Series C convertible preferred stock and our Amended and
Restated Bylaws, which have been publicly filed with the SEC. See the sections of this prospectus entitled “Where You Can
Find More Information” and “Incorporation of Certain Information by Reference.”
Our
authorized capital stock consists of:
|
|
●
|
225,000,000
shares of common stock, par value $0.001 per share; and
|
|
|
|
|
|
|
●
|
15,000,000
shares of preferred stock, par value $0.001 per share, of which 9,500 shares have been designated Series A convertible preferred
stock, 6,000 shares have been designated Series B convertible preferred stock and 1,880 shares have been designated Series
C convertible preferred stock.
|
In
addition to the descriptions set forth below, please refer to our other publicly filed documents incorporated herein by reference,
which describe our other outstanding warrants, registration rights, equity incentive plans and other securities.
Common
Stock
As
of November 20, 2018, there were 5,734,639 shares of our common stock outstanding.
Pursuant
to the terms of our Amended and Restated Certificate of Incorporation, the holders of common stock are entitled to one vote per
share on all matters to be voted upon by the stockholders, except on matters relating solely to terms of preferred stock. Subject
to preferences that may be applicable to any outstanding preferred stock, the holders of common stock will be entitled to receive
ratably such dividends, if any, as may be declared from time to time by the board of directors out of funds legally available
therefor. In the event of our liquidation, dissolution or winding up, the holders of our common stock will be entitled to share
ratably in all assets remaining after payment of liabilities, subject to prior distribution rights of preferred stock, if any,
then outstanding. The holders of our common stock will have no preemptive or conversion rights or other subscription rights. There
will be no redemption or sinking fund provisions applicable to our common stock.
Series
A Convertible Preferred Stock
The rights of the Series A convertible preferred
stock are set forth in the Certificate of Designation of Preferences, Right and Limitations. A total of 9,500 shares of Series
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, would own more than 4.99% of the total number of shares of our common
stock then issued and outstanding.
Liquidation
Preference.
In the event of our liquidation, dissolution or winding-up, holders of Series A convertible preferred stock will
be entitled to receive the same amount that a holder of our common stock would receive if the Series A convertible preferred stock
were fully converted into shares of our common stock at the conversion price (disregarding for such purposes any conversion limitations)
which amounts shall be paid
pari passu
with all holders of common stock.
Voting
Rights.
Shares of Series A convertible preferred stock generally have no voting rights, except as required by law and except
that the affirmative vote of the holders of a majority of the then outstanding shares of Series A convertible preferred stock
is required to, (a) alter or change adversely the powers, preferences or rights given to the Series A convertible preferred stock,
(b) amend our certificate of incorporation or other charter documents in any manner that materially adversely affects any rights
of the holders, (c) increase the number of authorized shares of Series A convertible preferred stock, or (d) enter into any agreement
with respect to any of the foregoing.
Dividends.
Shares of Series A convertible preferred stock are not entitled to receive any dividends, unless and until specifically declared
by our board of directors. The holders of the Series A convertible preferred stock participate, on an as-if-converted-to-common
stock basis, in any dividends to the holders of common stock.
Redemption.
We are not obligated to redeem or repurchase any shares of Series A convertible preferred stock. Shares of Series A convertible
preferred stock are not otherwise entitled to any redemption rights or mandatory sinking fund or analogous fund provisions.
Exchange
Listing.
The Series A convertible preferred stock is not listed on any national securities exchange or other nationally recognized
trading system.
Series
B Convertible Preferred Stock
The rights of the Series B convertible preferred
stock are set forth in the Certificate of Designation of Preferences, Right and Limitations. A total of 6,000 shares of Series
B convertible preferred stock are authorized for issuance under the Certificate of Designation of Preferences, Right and Limitations,
and a total of 6,000 shares of Series B convertible preferred stock were outstanding as of November 20, 2018. The shares
of Series B convertible preferred stock have a stated value of $1,000 per share and have a conversion price of $1.30 per share
(subject to customary adjustment in the event of future stock dividends and stock splits).
Rank.
The Series B convertible preferred stock rank on parity to our common stock.
Conversion.
Each share of Series B convertible preferred stock is convertible into shares of our common stock (subject to adjustment as
provided in the related Certificate of Designation of Preferences, Rights and Limitations) at any time at the option of the holder
at a conversion price of $1.30 (subject to customary adjustment in the event of future stock dividends and stock splits). Holders
of Series B convertible preferred stock will be prohibited from converting Series B convertible preferred stock into shares of
our common stock if, as a result of such conversion, the holder, together with its affiliates, would own more than 4.99% of the
total number of shares of our common stock then issued and outstanding.
Liquidation
Preference.
In the event of our liquidation, dissolution or winding-up, holders of Series B convertible preferred stock will
be entitled to receive the same amount that a holder of our common stock would receive if the Series B convertible preferred stock
were fully converted into shares of our common stock at the conversion price (disregarding for such purposes any conversion limitations)
which amounts shall be paid
pari passu
with all holders of common stock.
Voting
Rights.
Shares of Series B convertible preferred stock generally have no voting rights, except as required by law and except
that the affirmative vote of the holders of a majority of the then outstanding shares of Series B convertible preferred stock
is required to, (a) alter or change adversely the powers, preferences or rights given to the Series B convertible preferred stock,
(b) amend our certificate of incorporation or other charter documents in any manner that materially adversely affects any rights
of the holders, (c) increase the number of authorized shares of Series B convertible preferred stock, or (d) enter into any agreement
with respect to any of the foregoing.
Dividends.
Shares of Series B convertible preferred stock are not entitled to receive any dividends, unless and until specifically declared
by our board of directors. The holders of the Series B convertible preferred stock participate, on an as-if-converted-to-common
stock basis, in any dividends to the holders of common stock.
Redemption.
We are not obligated to redeem or repurchase any shares of Series B convertible preferred stock. Shares of Series B convertible
preferred stock are not otherwise entitled to any redemption rights or mandatory sinking fund or analogous fund provisions.
Exchange
Listing.
The Series B convertible preferred stock is not listed on any national securities exchange or other nationally recognized
trading system.
Series
C Convertible Preferred Stock
The rights of the Series C convertible preferred
stock are set forth in the Certificate of Designation of Preferences, Right and Limitations. A total of 1,880 shares of Series
C convertible preferred stock are authorized for issuance under the Certificate of Designation of Preferences, Right and Limitations,
and a total of 1,880 shares of Series C convertible preferred stock were outstanding as of November 20, 2018. The shares
of Series C convertible preferred stock have a stated value of $1,000 per share and have a conversion price of $1.64 per share
(subject to customary adjustment in the event of future stock dividends and stock splits).
Rank.
The Series C convertible preferred stock rank on parity to our common stock.
Conversion.
Each share of Series C convertible preferred stock is convertible into shares of our common stock (subject to adjustment as
provided in the related Certificate of Designation of Preferences, Rights and Limitations) at any time at the option of the holder
at a conversion price of $1.64 (subject to customary adjustment in the event of future stock dividends and stock splits). Holders
of Series C convertible preferred stock will be prohibited from converting Series C convertible preferred stock into shares of
our common stock if, as a result of such conversion, the holder, together with its affiliates, would own more than 4.99% of the
total number of shares of our common stock then issued and outstanding.
Liquidation
Preference.
In the event of our liquidation, dissolution or winding-up, holders of Series C convertible preferred stock will
be entitled to receive the same amount that a holder of our common stock would receive if the Series C convertible preferred stock
were fully converted into shares of our common stock at the conversion price (disregarding for such purposes any conversion limitations)
which amounts shall be paid
pari passu
with all holders of common stock.
Voting
Rights.
Shares of Series C convertible preferred stock generally have no voting rights, except as required by law and except
that the affirmative vote of the holders of a majority of the then outstanding shares of Series C convertible preferred stock
is required to, (a) alter or change adversely the powers, preferences or rights given to the Series C convertible preferred stock,
(b) amend our certificate of incorporation or other charter documents in any manner that materially adversely affects any rights
of the holders, (c) increase the number of authorized shares of Series C convertible preferred stock, or (d) enter into any agreement
with respect to any of the foregoing.
Dividends.
Shares of Series C convertible preferred stock are not entitled to receive any dividends, unless and until specifically declared
by our board of directors. The holders of the Series C convertible preferred stock participate, on an as-if-converted-to-common
stock basis, in any dividends to the holders of common stock.
Redemption.
We are not obligated to redeem or repurchase any shares of Series C convertible preferred stock. Shares of Series C convertible
preferred stock are not otherwise entitled to any redemption rights or mandatory sinking fund or analogous fund provisions.
Exchange
Listing.
The Series C convertible preferred stock is not listed on any national securities exchange or other nationally recognized
trading system.
Warrants
Prior
to the Offering, there were warrants to purchase an aggregate of 6,105,332 shares of the Company’s common stock outstanding.
These warrants are all vested and exercisable, have exercise prices ranging from $4.40 to $93.00 per share, with a weighted average
exercise price of $5.20 (subject to adjustment), and expire at various dates through October 2022.
Warrants
to purchase an additional 2,307,686 shares of our common stock were issued to the selling stockholders in the Offering.
These Warrants have an exercise price per share of $1.30 (subject to customary adjustment in the event of future stock dividends
and stock splits).
Registration
Rights Agreement
As
part of the Private Placement, we entered into the Registration Rights Agreement, pursuant to which we agreed to file this registration
statement to register for resale the shares of common stock issuable upon conversion of the shares of Series B convertible preferred
stock and the Series C convertible preferred stock and upon the exercise of the Warrants issued in the Private Placement, within
30 days following the Closing. We are required to use our reasonable best efforts to cause this registration statement to be declared
effective under the Securities Act, as soon as practicable, but in no event later than 60 days after the Closing (or 90 days in
the event of a full review of the registration statement by the SEC). We agreed to keep this or any subsequent registration statement
effective until all registrable securities may be sold pursuant to Rule 144 under the Securities Act, without the need for current
public information or other restriction. We also agreed, among other things, to indemnify the selling stockholders under the registration
statements from certain liabilities and to pay all fees and expenses incident to our performance of or compliance with the Registration
Rights Agreement.
Aspire
Capital Registration Rights
We
are a party to a registration rights agreement with Aspire Capital Fund, LLC, in which we agreed to file one or more registration
statements as permissible and necessary to register under the Securities Act, the sale of the shares of our common stock that
have been and may be issued to Aspire Capital Fund, LLC, under that certain Common Stock Purchase Agreement, dated May 2, 2017,
by and between us and Aspire Capital Fund, LLC.
Anti-Takeover
Effects of Delaware Law and Our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws
The
provisions of Delaware law and our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, could discourage
or make it more difficult to accomplish a proxy contest or other change in our management or the acquisition of control by a holder
of a substantial amount of our voting stock. It is possible that these provisions could make it more difficult to accomplish,
or could deter, transactions that stockholders may otherwise consider to be in their best interests or in our best interests.
These provisions are intended to enhance the likelihood of continuity and stability in the composition of our board of directors
and in the policies formulated by the board of directors and to discourage certain types of transactions that may involve an actual
or threatened change of our control. These provisions are designed to reduce our vulnerability to an unsolicited acquisition proposal
and to discourage certain tactics that may be used in proxy fights. Such provisions also may have the effect of preventing changes
in our management.
Delaware
Statutory Business Combinations Provision
. We are subject to the anti-takeover provisions of Section 203 of the Delaware General
Corporation Law, or the DGCL. Section 203 prohibits a publicly-held Delaware corporation from engaging in a ‘business combination’
with an ‘interested stockholder’ for a period of three years after the date of the transaction in which the person
became an interested stockholder, unless the business combination is, or the transaction in which the person became an interested
stockholder was, approved in a prescribed manner or another prescribed exception applies. For purposes of Section 203, a ‘business
combination’ is defined 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’ 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 Amended and Restated Bylaws provide
that, for nominations to the board of directors or for other business to be properly brought by a stockholder before a meeting
of stockholders, the stockholder must first have given timely notice of the proposal in writing to our Secretary. For an annual
meeting, a stockholder’s notice generally must be delivered not less than 90 days or more than 120 days prior to the anniversary
of the previous year’s annual meeting.
Special
Meetings of Stockholders
. Special meetings of the stockholders may be called at any time only by the board of directors, the
Chairman of the board of directors, the Chief Executive Officer or the President, subject to the rights of the holders of any
series of preferred stock then outstanding.
Blank-Check
Preferred Stock
. Our board of directors will be authorized to issue, without stockholder approval, preferred stock, the rights
of which will be determined at the discretion of the board of directors and that, if issued, could operate as a ‘poison
pill’ to dilute the stock ownership of a potential hostile acquirer to prevent an acquisition that our board of directors
does not approve.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Corporate Stock Transfer, Inc.
LEGAL
MATTERS
The
validity of the shares offered by this prospectus will be passed upon by Reed Smith LLP, New York, New York.
EXPERTS
Mayer Hoffman McCann P.C., our 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 forth in their report, which report expresses an unqualified opinion and includes an
explanatory paragraph relating to our ability to continue as a going concern. We have incorporated by reference our financial
statements in this prospectus and in this registration statement in reliance on the report of Mayer Hoffman McCann P.C. given
on their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
have filed with the SEC a registration statement on Form S-3 under the Securities Act, of which this prospectus forms a part.
The rules and regulations of the SEC allow us to omit from this prospectus certain information included in the registration statement.
For further information about us and our securities, you should refer to the registration statement and the exhibits and schedules
filed with the registration statement. With respect to the statements contained in 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, a copy of which has been filed as an exhibit to the registration statement.
We
file reports, proxy statements and other information with the SEC under the Exchange Act. You may read and copy this information
from the Public Reference Room of the SEC, 100 F Street, N.E., Room 1580, Washington, D.C. 20549, at prescribed rates. You may
obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also maintains
an Internet website that contains reports, proxy statements and other information about issuers, like us, that file electronically
with the SEC. The address of that website is
www.sec.gov
.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to incorporate by reference into this document the information we have filed with it. This means that we can disclose
important business, financial and other information to you by referring you to other documents separately filed with the SEC.
The information incorporated by reference is an important part of this prospectus, and information that we file later with the
SEC will automatically update and supersede this information. Statements in this prospectus regarding the provisions of certain
documents filed with, or incorporated by reference in, the registration statement are not necessarily complete and each statement
is qualified in all respects by that reference. Copies of all or any part of the registration statement, including the documents
incorporated by reference and the exhibits, may be obtained at the SEC’s public reference room or at the SEC’s website
at
http://www.sec.gov
or by writing to the SEC and paying a fee for the copying cost. We incorporate by reference the documents
listed below:
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our
Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed with the SEC on March 19, 2018;
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our
Definitive Proxy Statement on Schedule 14A filed with the SEC on May 15, 2018;
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●
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our
Quarterly Reports on Form 10-Q for the quarterly period ended March 31, 2018, June 30, 2018 and September 30, 2018, filed
with the SEC on May 15, 2018, August 14, 2018 and November 9, 2018, respectively;
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●
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the
portions of our Current Reports on Form 8-K that are deemed “filed” with the SEC under the Exchange Act, filed
with the SEC on March 1, 2018, March 22, 2018, April 13, 2018, May 7, 2018, May 29, 2018, June 27, 2018, July 2, 2018, November
5, 2018 and November 6, 2018;
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●
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the
description of our common stock contained in our Registration Statement on Form 8-A filed pursuant to Section 12(b) of the
Exchange Act as filed with SEC on June 15, 2015, including any subsequent amendments or reports filed for the purpose of updating
such description; and
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all
documents filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of offerings
under this prospectus, including all such documents we may file with the SEC after the date of the initial registration statement
of which this prospectus forms a part and prior to the effectiveness of the registration statement, are deemed to be incorporated
by reference into, and to be a part of, this prospectus, except in each case for information contained in any such filing
where we indicate that such information is being furnished and is not considered “filed” under the Exchange Act.
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Any
statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference into this prospectus
will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus
or any other subsequently filed document that is deemed to be incorporated by reference into this prospectus modifies 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.
To
receive a free copy of any of the documents incorporated by reference in this prospectus (other than exhibits to the Registration
Statement) call or write us at the following address:
Ritter
Pharmaceuticals, Inc.
1880 Century Park East #1000
Los
Angeles, CA 90067
Attention:
Corporate Secretary
(310)
203-1000
Copies
of these filings are also available through the “Investor” section of our website at
www.ritterpharmaceuticals.com.
For other ways to obtain a copy of these filings, please refer to “Where You Can Find More Information” above.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item
14.
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Other
Expenses of Issuance and Distribution.
|
The
following table sets forth an itemization of the various expenses, all of which we will pay, in connection with the issuance and
distribution of the common stock being registered. All of the amounts shown are estimated except the Securities and Exchange Commission
registration fee:
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Securities
and Exchange Commission registration fee
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$
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482
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Printing
and engraving expenses
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1,000
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Legal
fees and expenses
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15
,000
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Accounting
fees and expenses
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10,000
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Total
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$
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26,482
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Item
15.
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Indemnification
of Directors and Officers.
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Our
Amended and Restated Certificate of Incorporation provides that we shall indemnify, to the fullest extent authorized by the Delaware
General Corporation Law, each person who is involved in any litigation or other proceeding because such person is or was a director
or officer of Ritter Pharmaceuticals, Inc. or is or was serving as an officer or director of another entity at our request, against
all expense, loss or liability reasonably incurred or suffered in connection therewith. Our amended and restated certificate of
incorporation provides that the right to indemnification includes the right to be paid expenses incurred in defending any proceeding
in advance of its final disposition, provided, however, that such advance payment will only be made upon delivery to us of an
undertaking, by or on behalf of the director or officer, to repay all amounts so advanced if it is ultimately determined that
such director is not entitled to indemnification. If we do not pay a proper claim for indemnification in full within 30 days after
we receive a written claim for such indemnification, our certificate of incorporation and our bylaws authorize the claimant to
bring an action against us and prescribe what constitutes a defense to such action.
Section
145 of the Delaware General Corporation Law permits a corporation to indemnify any director or officer of the corporation against
expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in
connection with any action, suit or proceeding brought by reason of the fact that such person is or was a director or officer
of the corporation, if such person acted in good faith and in a manner that he reasonably believed to be in, or not opposed to,
the best interests of the corporation, and, with respect to any criminal action or proceeding, if he or she had no reason to believe
his or her conduct was unlawful. In a derivative action, (
i.e
., one brought by or on behalf of the corporation), indemnification
may be provided only for expenses actually and reasonably incurred by any director or officer in connection with the defense or
settlement of such an action or suit if such person acted in good faith and in a manner that he or she reasonably believed to
be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be provided if such person
shall have been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action or
suit was brought shall determine that the defendant is fairly and reasonably entitled to indemnity for such expenses despite such
adjudication of liability.
Pursuant
to Section 102(b)(7) of the Delaware General Corporation Law, our certificate of incorporation eliminates the liability of a director
to us or our stockholders for monetary damages for such a breach of fiduciary duty as a director, except for liabilities arising:
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from
any breach of the director’s duty of loyalty to us or our stockholders;
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from
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
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●
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under
Section 174 of the Delaware General Corporation Law; or
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●
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from
any transaction from which the director derived an improper personal benefit.
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We
carry insurance policies insuring our directors and officers against certain liabilities that they may incur in their capacity
as directors and officers.
In
addition, we have entered into indemnification agreements with each of our current directors and executive officers. These agreements
require us to indemnify these individuals to the fullest extent permitted under Delaware law against liabilities that may arise
by reason of their service to us and to advance expenses incurred as a result of any proceeding against them as to which they
could be indemnified. We also intend to enter into indemnification agreements with our future directors and executive officers.
(a) The undersigned registrant
hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or any decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration statement;
provided
,
however
, that paragraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial
bona 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 the 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 the prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial
bona fide
offering thereof.
Provided, however
, that no statement
made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or 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.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant’s annual report pursuant to 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 Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial
bona fide
offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant, the registrant has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Registration Statement on Form
S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Los Angeles, California, on the 21
st
day of November 2018.
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RITTER
PHARMACEUTICALS, INC.
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By:
|
/s/
Andrew
J. Ritter
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Name:
|
Andrew
J. Ritter
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Title:
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President
and Chief Executive Officer
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POWER
OF ATTORNEY
We
the undersigned officers and directors of Ritter Pharmaceutics, Inc., hereby severally constitute and appoint Andrew J. Ritter
and John W. Beck, and each of them singly, our true and lawful attorneys with full power to any of them, and to each of them singly,
to sign for us and in our names in the capacities indicated below the registration statement on Form S-3 filed herewith and any
and all pre-effective and post-effective amendments to said registration statement and any subsequent registration statement filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the 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
name and behalf in our capacities as officers and directors to enable Ritter Pharmaceuticals, Inc. to comply with the provisions
of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and any
and all amendments thereto.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated below.
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Signature
|
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Title
|
|
Date
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/s/
Andrew
J. Ritter
|
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President
and Chief Executive Officer and Director
(
Principal Executive Officer
)
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November
21, 2018
|
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Andrew
J. Ritter
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/s/
John
W. Beck
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Chief
Financial Officer
(
Principal Financial and Accounting Officer
)
|
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November
21, 2018
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John
W. Beck
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/s/
Ira E. Ritter
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Executive
Chairman, Chief Strategic Officer and Director
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November
21, 2018
|
|
Ira
E. Ritter
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Director
|
|
November
21, 2018
|
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Noah
Doyle
|
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/s/
Matthew W. Foehr
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Director
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November
21, 2018
|
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Matthew
W. Foehr
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/s/
Paul V. Maier
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Director
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November
21, 2018
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Paul
V. Maier
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/s/
William M. Merino
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Director
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November
21, 2018
|
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William
M. Merino
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/s/
Michael D. Step
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Director
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November
21, 2018
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Michael
D. Step
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