As
filed with the Securities and Exchange Commission on July 24, 2019
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)
Delaware
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26-3474527
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
No.)
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1880
Century Park East, Suite 1000
Los
Angeles, CA 90067
(310)
203-1000
(Address,
including zip code, and telephone number, including area
code,
of registrant’s principal executive offices)
Andrew
J. Ritter
Chief
Executive Officer
Ritter
Pharmaceuticals, Inc.
1880
Century Park East, Suite 1000
Los
Angeles, CA 90067
(310)
203-1000
(Name,
address, including zip code, and telephone number, including area
code,
of agent for service)
Copies
to:
Michael
Sanders, Esq.
Reed
Smith LLP
1901
Avenue of the Stars, Suite 700
Los
Angeles, California 90067-6078
(310)
734-5200
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement
as determined by the registrant.
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 upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. [ ]
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. [ ]
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large
accelerated filer [ ]
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Accelerated
filer [ ]
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Non-accelerated
filer [ ]
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Smaller
reporting company [X]
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Emerging
growth company [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 7a)(2)(B) of Securities Act. [ ]
CALCULATION
OF REGISTRATION FEE
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 Unit
(2)
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Proposed Maximum Aggregate Offering Price
(2)
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Amount of Registration Fee
(3)
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Common Stock, $0.001 par value
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—
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—
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—
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—
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Preferred Stock, $0.001 per value
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—
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—
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—
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—
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Debt Securities
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—
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—
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—
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—
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Warrants
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—
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—
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—
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—
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Rights
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—
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—
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—
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—
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Units
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—
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—
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—
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—
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Total
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$
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150,000,000
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$
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18,180
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(4)
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(1)
There are being registered hereunder such indeterminate number of shares of common stock, such indeterminate number of shares
of preferred stock, such indeterminate principal amount of debt securities, such indeterminate number of warrants and rights to
purchase common stock, preferred stock or debt securities, and such indeterminate number of units, as shall have an aggregate
initial offering price not to exceed $150,000,000. If any debt securities are issued at an original issue discount, then the offering
price of such debt securities shall be in such greater principal amount as shall result in an aggregate initial offering price
not to exceed $150,000,000, less the aggregate dollar amount of all securities previously issued hereunder. Any securities registered
hereunder may be sold separately or as units with other securities registered hereunder. The proposed maximum initial offering
price per unit will be determined, from time to time, by the registrant in connection with the issuance by the registrant of the
securities registered hereunder. The securities registered also include such indeterminate number of shares of common stock and
preferred stock as may be issued upon conversion or exchange of convertible or exchangeable securities being registered hereunder
or pursuant to the anti-dilution provisions of any such securities. In addition, pursuant to Rule 416 under the Securities Act
of 1933, as amended, the shares being registered hereunder include such indeterminate number of shares of common stock and preferred
stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or
similar transactions.
(2)
The proposed maximum aggregate offering price per class of security will be determined from time to time by the registrant in
connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of
security pursuant to General Instruction II.D. of Form S-3 under the Securities Act of 1933, as amended.
(3)
Calculated pursuant to Rule 457(o) under the Securities Act of 1933, as amended, based on the proposed maximum aggregate offering
price.
(4)
Pursuant to Rule
457(p
) under the Securities
Act, a portion of the registration fee is offset by registration fees of $14,601 previously paid with respect to securities that
were registered pursuant to a Registration Statement on Form S-3 (No. 333-213087) filed by the registrant and declared effective
by the Securities and Exchange Commission on August 23, 2016, but never sold. Accordingly, $3,579 is being paid with the filing
of this Registration Statement.
The
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 the Registration Statement shall
become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
THE
INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS
NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT
TO COMPLETION, DATED JULY 24, 2019
PROSPECTUS
RITTER
PHARMACEUTICALS, INC.
$150,000,000
COMMON
STOCK
PREFERRED
STOCK
DEBT
SECURITIES
WARRANTS
RIGHTS
UNITS
This
prospectus will allow us to issue, from time to time at prices and on terms to be determined at or prior to the time of the offering,
up to $150,000,000 of any combination of the securities described in this prospectus, either individually or in units. We may
also offer common stock or preferred stock upon conversion of or exchange for the debt securities; and common stock or preferred
stock or debt securities upon the exercise of warrants or rights.
This
prospectus describes the general terms of these securities and the general manner in which these securities will be offered. We
will provide you with the specific terms of any offering in one or more supplements to this prospectus. The prospectus supplements
will also describe the specific manner in which these securities will be offered and may also supplement, update or amend information
contained in this document. You should read this prospectus and any prospectus supplement, as well as any documents incorporated
by reference into this prospectus or any prospectus supplement, carefully before you invest.
Our
securities may be sold directly by us to you, through agents designated from time to time or to or through underwriters or dealers.
For additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution”
in this prospectus and in the applicable prospectus supplement. If any underwriters or agents are involved in the sale of our
securities with respect to which this prospectus is being delivered, the names of such underwriters or agents and any applicable
fees, commissions or discounts and over-allotment options will be set forth in a prospectus supplement. The price to the public
of such securities and the net proceeds that we expect to receive from such sale will also be set forth in a prospectus supplement.
Our
common stock is listed on the Nasdaq Capital Market, under the symbol “RTTR.” On July 23, 2019, the last reported
sale price of our common stock on the Nasdaq Capital Market was $1.01 per share.
As
of July 23, 2019, the aggregate market value of our outstanding common stock held by non-affiliates was approximately $8.5
million, based on 9,350,026 shares of outstanding common stock, of which 8,363,969 shares were held by non-affiliates,
and a per share price of $1.01 based on the closing sale price of our common stock as of July 23, 2019. Pursuant
to General Instruction I.B.6 of Form S-3, in no event will we sell securities pursuant to this prospectus with a value of more
than one-third of the aggregate market value of our common stock held by non-affiliates in any twelve-month period, so long as
the aggregate market value of our common stock held by non-affiliates is less than $75,000,000. In the event that subsequent to
the date of this prospectus, the aggregate market value of our outstanding common stock held by non-affiliates equals or exceeds
$75,000,000, then the one-third limitation on sales shall not apply to additional sales made pursuant to this prospectus. We have
not offered any securities pursuant to General Instruction I.B.6 of Form S-3 during the twelve calendar months prior to and including
the date of this prospectus.
Investing
in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider carefully
the risks that we have described on page 2 of this prospectus under the caption “Risk Factors.” We may include specific
risk factors in supplements to this prospectus under the caption “Risk Factors.” This prospectus may not be used to
sell our securities unless accompanied by a prospectus supplement.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is ________, 2019
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, utilizing a
“shelf” registration process. Under this shelf registration process, we may offer shares of our common stock, preferred
stock, various series of debt securities and/or warrants or rights to purchase any of such securities, either individually or
in units, in one or more offerings, with a total value of up to $150,000,000. This prospectus provides you with a general description
of the securities we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus
supplement that will contain specific information about the terms of that offering.
This
prospectus does not contain all of the information included in the registration statement. For a more complete understanding of
the offering of the securities, you should refer to the registration statement, including its exhibits. The prospectus supplement
may also add, update or change information contained or incorporated by reference in this prospectus. However, no prospectus supplement
will offer a security that is not registered and described in this prospectus at the time of its effectiveness. This prospectus,
together with the applicable prospectus supplements and the documents incorporated by reference into this prospectus, includes
all material information relating to the offering of securities under this prospectus. You should carefully read this prospectus,
the applicable prospectus supplement, the information and documents incorporated herein by reference and the additional information
under the heading “Where You Can Find More Information” before making an investment decision.
You
should rely only on the information we have provided or incorporated by reference in this prospectus or any prospectus supplement.
We have not authorized anyone to provide you with information different from that contained or incorporated by reference in this
prospectus. No dealer, salesperson or other person is authorized to give any information or to represent anything not contained
or incorporated by reference in this prospectus. You must not rely on any unauthorized information or representation. This prospectus
is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to
do so. You should assume that the information in this prospectus or any prospectus supplement is accurate only as of the date
on the front of the document and that any information we have incorporated herein by reference is accurate only as of the date
of the document incorporated by reference, regardless of the time of delivery of this prospectus or any sale of a security.
We
further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any
document that is incorporated by reference in the accompanying prospectus were made solely for the benefit of the parties to such
agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be
deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate
only as of the date when made. Accordingly, such representations, warranties and covenants should not be relied on as accurately
representing the current state of our affairs.
This
prospectus may not be used to consummate sales of our securities, unless it is accompanied by a prospectus supplement. To the
extent there are inconsistencies between any prospectus supplement, this prospectus and any documents incorporated by reference,
the document with the most recent date will control.
We
were formed as a Nevada limited liability company on March 29, 2004 under the name Ritter Natural Sciences, LLC. On September
16, 2008, we converted into a Delaware corporation under the name Ritter Pharmaceuticals, Inc. Unless the context otherwise requires,
“Ritter,” “the Company,” “we,” “us,” “our” and similar terms refer
to Ritter Pharmaceuticals, Inc.
PROSPECTUS
SUMMARY
The
following is a summary of what we believe to be the most important aspects of our business and the offering of our securities
under this prospectus. We urge you to read this entire prospectus, including the more detailed consolidated financial statements,
notes to the consolidated financial statements and other information incorporated by reference from our other filings with the
SEC or included in any applicable prospectus supplement. Investing in our securities involves risks. Therefore, carefully consider
the risk factors set forth in any prospectus supplements and in our most recent annual and quarterly filings with the SEC, as
well as other information in this prospectus and any prospectus supplements and the documents incorporated by reference herein
or therein, before purchasing our securities. Each of the risk factors could adversely affect our business, operating results
and financial condition, as well as adversely affect the value of an investment in our securities.
The
Company
Ritter
Pharmaceuticals, Inc. develops novel therapeutic products that modulate the gut microbiome to treat digestive disorders and gastrointestinal
diseases. The Company’s lead product candidate, RP-G28, is an orally administered, high purity galacto-oligosaccharide,
currently in Phase 3 clinical development for the treatment of lactose intolerance (“LI”), a condition that affects
millions of people worldwide. RP-G28 is designed to selectively stimulate the growth of lactose-metabolizing bacteria in the colon,
thereby effectively adapting the gut microbiome to assist in digesting lactose (the sugar found in milk) that reaches the large
intestine. RP-G28 has the potential to become the first drug approved by the Food and Drug Administration for the treatment of
LI. The Company is further exploring the functionality and discovering the therapeutic potential that gut microbiome changes may
have on treating/preventing a variety of conditions including gastrointestinal diseases, cancer, metabolic, and liver diseases.
The Company intends to expand its product pipeline and create added value in the future by evaluating RP-G28 in other indications,
developing additional products based on its underlying, microbiome-modulating technology or in-licensing complementary products
to treat these, or other, conditions.
Corporate
Information
We
were formed as a Nevada limited liability company on March 29, 2004 under the name Ritter Natural Sciences, LLC. On September
16, 2008, we converted into a Delaware corporation under the name Ritter Pharmaceuticals, Inc. Our principal executive offices
are located at 1880 Century Park East, #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.
Offerings
Under This Prospectus
Under
this prospectus, we may offer shares of our common stock, preferred stock, various series of debt securities and/or warrants or
rights to purchase any of such securities, either individually or in units, with a total value of up to $150,000,000, from time
to time at prices and on terms to be determined by market conditions at the time of the offering. This prospectus provides you
with a general description of the securities we may offer. Each time we offer a type or series of securities under this prospectus,
we will provide a prospectus supplement that will describe the specific amounts, prices and other important terms of the securities.
The
prospectus supplement also may add, update or change information contained in this prospectus or in documents we have incorporated
by reference into this prospectus. However, no prospectus supplement will fundamentally change the terms that are set forth in
this prospectus or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We
may sell the securities directly to investors or to or through agents, underwriters or dealers. We, and our agents or underwriters,
reserve the right to accept or reject all or part of any proposed purchase of securities. If we offer securities through agents
or underwriters, we will include in the applicable prospectus supplement:
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the
names of those agents or underwriters;
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applicable
fees, discounts and commissions to be paid to them;
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details
regarding over-allotment options, if any; and
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the
net proceeds to us.
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RISK
FACTORS
Please
carefully consider the risk factors described in our periodic reports filed with the SEC, which are incorporated by reference
in this prospectus. Before making an investment decision, you should carefully consider these risks as well as other information
we include or incorporate by reference in this prospectus or include in any applicable prospectus supplement. Additional risks
and uncertainties not presently known to us or that we deem currently immaterial may also impair our business operations or adversely
affect our results of operations or financial condition.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some
of the statements in this prospectus and in any prospectus supplement we may file constitute “forward-looking statements”
within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E
of the Securities Exchange Act of 1934 as amended (the “Exchange Act”). These statements relate to future events concerning
our business and to our future revenues, operating results and financial condition. In some cases, you can identify forward-looking
statements by terminology such as “may,” “will,” “could,” “would,” “should,”
“expect,” “plan,” “anticipate,” “intend,” “believe,” “estimate,”
“forecast,” “predict,” “propose,” “potential” or “continue,” or the
negative of those terms or other comparable terminology.
Any
forward looking statements contained in this prospectus or any prospectus supplement are only estimates or predictions of future
events based on information currently available to our management and management’s current beliefs about the potential outcome
of future events. Whether these future events will occur as management anticipates, whether we will achieve our business objectives,
and whether our revenues, operating results or financial condition will improve in future periods are subject to numerous risks.
There are a number of important factors that could cause actual results to differ materially from the results anticipated by these
forward-looking statements. These important factors include those that we discuss under the heading “Risk Factors”
and in other sections of our Annual Report on Form 10-K for the year ended December 31, 2018, our Quarterly Reports on Form 10-Q
for the quarterly period ended March 31, 2019, each filed with the SEC, as well as in our Current Reports filed on Form 8-K from
time to time with the SEC, that are incorporated by reference into this prospectus. You should read these factors and the other
cautionary statements made in this prospectus and in the documents we incorporate by reference into this prospectus as being applicable
to all related forward-looking statements wherever they appear in this prospectus or the documents we incorporate by reference
into this prospectus. If one or more of these factors materialize, or if any underlying assumptions prove incorrect, our actual
results, performance or achievements may vary materially from any future results, performance or achievements expressed or implied
by these forward-looking statements. We undertake no obligation to publicly update any forward-looking statements, whether as
a result of new information, future events or otherwise, except as required by law.
USE
OF PROCEEDS
We
cannot assure you that we will receive any proceeds in connection with securities which may be offered pursuant to this prospectus.
Unless otherwise indicated in the applicable prospectus supplement, we intend to use any net proceeds from the sale of securities
under this prospectus for our operations and for other general corporate purposes, including, but not limited to, our internal
research and development programs and the development of new programs, general working capital and possible future acquisitions.
We have not determined the amounts we plan to spend on any of the areas listed above or the timing of these expenditures. As a
result, our management will have broad discretion to allocate the net proceeds, if any, we receive in connection with securities
offered pursuant to this prospectus for any purpose. Pending application of the net proceeds as described above, we may initially
invest the net proceeds in short-term, investment-grade, interest-bearing securities or apply them to the reduction of short-term
indebtedness.
PLAN
OF DISTRIBUTION
General
Plan of Distribution
We
may offer securities under this prospectus from time to time pursuant to underwritten public offerings, negotiated transactions,
block trades or a combination of these methods. We may sell the securities (1) through underwriters or dealers, (2) through agents
or (3) directly to one or more purchasers, or through a combination of such methods. We may distribute the securities from time
to time in one or more transactions at:
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a
fixed price or prices, which may be changed from time to time;
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market
prices prevailing at the time of sale;
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prices
related to the prevailing market prices; or
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negotiated
prices.
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We
may directly solicit offers to purchase the securities being offered by this prospectus. We may also designate agents to solicit
offers to purchase the securities from time to time. We will name in a prospectus supplement any underwriter or agent involved
in the offer or sale of the securities.
If
we utilize a dealer in the sale of the securities being offered by this prospectus, we will sell the securities to the dealer,
as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the
time of resale.
If
we utilize an underwriter in the sale of the securities being offered by this prospectus, we will execute an underwriting agreement
with the underwriter at the time of sale, and we will provide the name of any underwriter in the prospectus supplement which the
underwriter will use to make re-sales of the securities to the public. In connection with the sale of the securities, we, or the
purchasers of the securities for whom the underwriter may act as agent, may compensate the underwriter in the form of underwriting
discounts or commissions. The underwriter may sell the securities to or through dealers, and the underwriter may compensate those
dealers in the form of discounts, concessions or commissions.
With
respect to underwritten public offerings, negotiated transactions and block trades, we will provide in the applicable prospectus
supplement information regarding any compensation we pay to underwriters, dealers or agents in connection with the offering of
the securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers. Underwriters,
dealers and agents participating in the distribution of the securities may be deemed to be underwriters within the meaning of
the Securities Act of 1933, as amended, or the Securities Act, and any discounts and commissions received by them and any profit
realized by them on resale of the securities may be deemed to be underwriting discounts and commissions. We may enter into agreements
to indemnify underwriters, dealers and agents against civil liabilities, including liabilities under the Securities Act, or to
contribute to payments they may be required to make in respect thereof.
If
so indicated in the applicable prospectus supplement, we will authorize underwriters or other persons acting as our agents to
solicit offers by certain institutions to purchase securities from us pursuant to delayed delivery contracts providing for payment
and delivery on the date stated in the prospectus supplement. Each contract will be for an amount not less than, and the aggregate
amount of securities sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in the prospectus
supplement. Institutions with whom the contracts, when authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable institutions and other institutions, but shall in all
cases be subject to our approval. Delayed delivery contracts will not be subject to any conditions except that:
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the
purchase by an institution of the securities covered under that contract shall not at the time of delivery be prohibited under
the laws of the jurisdiction to which that institution is subject; and
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if
the securities are also being sold to underwriters acting as principals for their own account, the underwriters shall have
purchased such securities not sold for delayed delivery. The underwriters and other persons acting as our agents will not
have any responsibility in respect of the validity or performance of delayed delivery contracts.
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Shares
of our common stock sold pursuant to the registration statement of which this prospectus is a part will be authorized for quotation
and trading on the Nasdaq Capital Market. The applicable prospectus supplement will contain information, where applicable, as
to any other listing, if any, on the Nasdaq Capital Market or any securities market or other securities exchange of the securities
covered by the prospectus supplement. We can make no assurance as to the liquidity of or the existence of trading markets for
any of the securities.
In
order to facilitate the offering of the securities, certain persons participating in the offering may engage in transactions that
stabilize, maintain or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities,
which involve the sale by persons participating in the offering of more securities than we sold to them. In these circumstances,
these persons would cover such over-allotments or short positions by making purchases in the open market or by exercising their
over-allotment option. In addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing
the applicable security in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating
in the offering may be reclaimed if the securities sold by them are repurchased in connection with stabilization transactions.
The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which
might otherwise prevail in the open market. These transactions may be discontinued at any time.
The
underwriters, dealers and agents may engage in other transactions with us, or perform other services for us, in the ordinary course
of their business.
DESCRIPTION
OF CAPITAL STOCK
General
The
following description of our capital stock and certain provisions of our amended and restated certificate of incorporation and
amended and restated bylaws are summaries and are qualified by reference to our amended and restated certificate of incorporation
and our amended and restated bylaws.
Our
authorized capital stock consists of 240,000,000 shares, all with a par value of $0.001 per share, 225,000,000 of which are designated
as common stock and 15,000,000 of which are designated as preferred stock, consisting of (i) 9,500 shares that have been designated
Series A Convertible Preferred Stock, (ii) 6,000 shares that have been designated as Series B Convertible Preferred Stock, and
(iii) 1,880 shares that have been designated as Series C Convertible Preferred Stock.
As
of July 23, 2019, we had 35 holders of record of our common stock, which excludes stockholders whose shares were
held in nominee or street name by brokers. The actual number of common stockholders is greater than the number of record holders
and includes stockholders who are beneficial owners, but whose shares are held in street name by brokers and other nominees. This
number of holders of record also does not include stockholders whose shares may be held in trust by other entities.
Common
Stock
Pursuant
to the terms of our amended and restated certificate of incorporation, the holders of common stock are entitled to one vote per
share on all matters to be voted upon by the stockholders, except on matters relating solely to terms of preferred stock. Subject
to preferences that may be applicable to any outstanding preferred stock, the holders of common stock will be entitled to receive
ratably such dividends, if any, as may be declared from time to time by the board of directors out of funds legally available
therefor. See “Dividend Policy.” In the event of our liquidation, dissolution or winding up, the holders of our common
stock will be entitled to share ratably in all assets remaining after payment of liabilities, subject to prior distribution rights
of preferred stock, if any, then outstanding. The holders of our common stock will have no preemptive or conversion rights or
other subscription rights. There will be no redemption or sinking fund provisions applicable to our common stock.
As
of July 23, 2019, we had 9,350,026 shares of our common stock outstanding.
Preferred
Stock
Pursuant
to the terms of our amended and restated certificate of incorporation, our board of directors has the authority to issue preferred
stock in one or more classes or series and to fix the designations, powers, preferences and rights, and the qualifications, limitations
or restrictions thereof, including dividend rights, conversion right, voting rights, terms of redemption, liquidation preferences
and the number of shares constituting any class or series, without further vote or action by the stockholders.
The
issuance of shares of preferred stock, or the issuance of rights to purchase such shares, may decrease the amount of earnings
and assets available for distribution to the holders of common stock, could adversely affect the rights and powers, including
voting rights, of the common stock, and could have the effect of delaying, deterring or preventing a change of control of us or
an unsolicited acquisition proposal.
As
of July 23, 2019, we had 6,720 shares of preferred stock outstanding, consisting of (i) 4,080 shares of Series A Convertible
Preferred Stock, (ii) 2,400 shares of Series B Convertible Preferred Stock, and (iii) 240 shares of Series C Convertible Preferred
Stock.
Equity
Incentive Plans
As
of July 23, 2019, we had outstanding options to acquire 1,341,135 shares of our common stock, having a weighted-average
exercise price of $10.25 per share. We also had 1,410,000 restricted stock units outstanding. Each restricted stock unit represents
a contingent right to receive one share of our common stock provided certain timing and/or performance conditions are satisfied.
Warrants
As
of July 23, 2019, we had outstanding warrants to purchase an aggregate of 8,413,017 shares of our common stock, having
a weighted-average exercise price of $1.78 per share.
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 is authorized to issue, without stockholder approval, preferred stock, the rights
of which will be determined at the discretion of the board of directors and that, if issued, could operate as a “poison
pill” to dilute the stock ownership of a potential hostile acquirer to prevent an acquisition that our board of directors
does not approve.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Corporate Stock Transfer, Inc.
Stock
Market Listing
Our
common stock is listed on The Nasdaq Capital Market under the symbol “RTTR.”
DESCRIPTION
OF DEBT SECURITIES
The
following description, together with the additional information we include in any applicable prospectus supplements, summarizes
the material terms and provisions of the debt securities that we may offer under this prospectus. While the terms we have summarized
below will apply generally to any future debt securities we may offer pursuant to this prospectus, we will describe the particular
terms of any debt securities that we may offer in more detail in the applicable prospectus supplement. If we so indicate in a
prospectus supplement, the terms of any debt securities offered under such prospectus supplement may differ from the terms we
describe below, and to the extent the terms set forth in a prospectus supplement differ from the terms described below, the terms
set forth in the prospectus supplement shall control.
We
may sell from time to time, in one or more offerings under this prospectus, debt securities, which may be senior or subordinated.
We will issue any such senior debt securities under a senior indenture that we will enter into with a trustee to be named in the
senior indenture. We will issue any such subordinated debt securities under a subordinated indenture, which we will enter into
with a trustee to be named in the subordinated indenture. We use the term “indentures” to refer to either the senior
indenture or the subordinated indenture, as applicable. The indentures will be qualified under the Trust Indenture Act of 1939,
as in effect on the date of the indenture. We use the term “debenture trustee” to refer to either the trustee under
the senior indenture or the trustee under the subordinated indenture, as applicable.
The
following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures
are subject to, and qualified in their entirety by reference to, all the provisions of the indenture applicable to a particular
series of debt securities.
General
Each
indenture will provide that debt securities may be issued from time to time in one or more series and may be denominated and payable
in foreign currencies or units based on or relating to foreign currencies. Neither indenture will limit the amount of debt securities
that may be issued thereunder, and each indenture will provide that the specific terms of any series of debt securities shall
be set forth in, or determined pursuant to, an authorizing resolution and/or a supplemental indenture, if any, relating to such
series.
We
will describe in each prospectus supplement the following terms relating to a series of debt securities:
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title or designation;
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the
aggregate principal amount and any limit on the amount that may be issued;
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the
currency or units based on or relating to currencies in which debt securities of such series are denominated and the currency
or units in which principal or interest or both will or may be payable;
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whether
we will issue the series of debt securities in global form, the terms of any global securities and who the depositary will
be;
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the
maturity date and the date or dates on which principal will be payable;
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the
interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to
accrue, the date or dates interest will be payable and the record dates for interest payment dates or the method for determining
such dates;
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whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt;
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the
terms of the subordination of any series of subordinated debt;
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the
place or places where payments will be payable;
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our
right, if any, to defer payment of interest and the maximum length of any such deferral period;
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the
date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to
any optional redemption provisions;
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the
date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking fund provisions or otherwise,
to redeem, or at the holder’s option to purchase, the series of debt securities;
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whether
the indenture will restrict our ability to pay dividends, or will require us to maintain any asset ratios or reserves;
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whether
we will be restricted from incurring any additional indebtedness;
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a
discussion on any material or special U.S. federal income tax considerations applicable to a series of debt securities;
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the
denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral
multiple thereof; and
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities.
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We
may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration
of acceleration of their maturity pursuant to the terms of the indenture. We will provide you with information on the federal
income tax considerations and other special considerations applicable to any of these debt securities in the applicable prospectus
supplement.
Conversion
or Exchange Rights
We
will set forth in the prospectus supplement the terms, if any, on which a series of debt securities may be convertible into or
exchangeable for our common stock or our other securities. We will include provisions as to whether conversion or exchange is
mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our
common stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Information
Concerning the Debenture Trustee
The
debenture trustee, other than during the occurrence and continuance of an event of default under the applicable indenture, undertakes
to perform only those duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture,
the debenture trustee under such indenture must use the same degree of care as a prudent person would exercise or use in the conduct
of his or her own affairs. Subject to this provision, the debenture trustee is under no obligation to exercise any of the powers
given it by the indentures at the request of any holder of debt securities unless it is offered reasonable security and indemnity
against the costs, expenses and liabilities that it might incur.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on
any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered
at the close of business on the regular record date for the interest.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents
designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments
by check which we will mail to the holder. Unless we otherwise indicate in a prospectus supplement, we will designate the corporate
trust office of the debenture trustee in the City of New York as our sole paying agent for payments with respect to debt securities
of each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the
debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a
particular series.
All
money we pay to a paying agent or the debenture trustee for the payment of the principal of or any premium or interest on any
debt securities which remains unclaimed at the end of two years after such principal, premium or interest has become due and payable
will be repaid to us, and the holder of the security thereafter may look only to us for payment thereof.
Governing
Law
The
indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except
to the extent that the Trust Indenture Act is applicable.
Subordination
of Subordinated Debt Securities
Our
obligations pursuant to any subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment
to certain of our other indebtedness to the extent described in a prospectus supplement. The subordinated indenture does not limit
the amount of senior indebtedness we may incur. It also does not limit us from issuing any other secured or unsecured debt.
DESCRIPTION
OF WARRANTS
General
We
may issue warrants to our stockholders to purchase shares of our common stock, preferred stock and/or debt securities. We may
offer warrants separately or together with one or more additional warrants, debt securities, common stock, preferred stock, rights
or purchase contracts, or any combination of those securities in the form of units, as described in the applicable prospectus
supplement. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank
or trust company, as warrant agent. The warrant agent will act solely as our agent in connection with the certificates relating
to the rights of the series of certificates and will not assume any obligation or relationship of agency or trust for or with
any holders of rights certificates or beneficial owners of rights. The following description sets forth certain general terms
and provisions of the rights to which any prospectus supplement may relate. The particular terms of the warrant to which any prospectus
supplement may relate and the extent, if any, to which the general provisions may apply to the rights so offered will be described
in the applicable prospectus supplement. To the extent that any particular terms of the warrant, warrant agreement or warrant
certificates described in a prospectus supplement differ from any of the terms described below, then the terms described below
will be deemed to have been superseded by that prospectus supplement. We encourage you to read the applicable warrant agreement
and warrant certificate for additional information before you decide whether to purchase any of our rights.
We
will provide in a prospectus supplement the following terms of the warrants being issued:
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the
specific designation and aggregate number of, and the price at which we will issue, the warrants;
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the
currency or currency units in which the offering price, if any, and the exercise price are payable;
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the
designation, amount and terms of the securities purchasable upon exercise of the warrants;
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if
applicable, the exercise price for shares of our common stock and the number of shares of common stock to be received upon
exercise of the warrants;
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if
applicable, the exercise price for shares of our preferred stock, the number of shares of preferred stock to be received upon
exercise, and a description of that series of our preferred stock;
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if
applicable, the exercise price for our debt securities, the amount of debt securities to be received upon exercise, and a
description of that series of debt securities;
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the
date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not
continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants;
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whether
the warrants will be issued in fully registered form or bearer form, in definitive or global form or in any combination of
these forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of
any security included in that unit;
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any
applicable material U.S. federal income tax consequences;
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the
identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents,
registrars or other agents;
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the
proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange;
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if
applicable, the date from and after which the warrants and the common stock, preferred stock and/or debt securities will be
separately transferable;
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if
applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
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information
with respect to book-entry procedures, if any;
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the
anti-dilution provisions of the warrants, if any;
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any
redemption or call provisions;
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whether
the warrants may be sold separately or with other securities as parts of units; and
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any
additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the
warrants.
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Each
warrant will entitle the holder of rights to purchase for cash the principal amount of shares of common stock or other securities
at the exercise price provided in the applicable prospectus supplement. Warrants may be exercised at any time up to the close
of business on the expiration date for the rights provided in the applicable prospectus supplement.
Holders
may exercise warrants as described in the applicable prospectus supplement. Upon receipt of payment and the warrant certificate
properly completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus
supplement, we will, as soon as practicable, forward the shares of common stock or other securities, as applicable, purchasable
upon exercise of the rights. If less than all of the warrants issued in any rights offering are exercised, we may offer any unsubscribed
securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination
of such methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement.
Warrant
Agent
The
warrant agent for any warrants we offer will be set forth in the applicable prospectus supplement.
DESCRIPTION
OF RIGHTS
General
We
may issue rights to our stockholders to purchase shares of our common stock, preferred stock, and/or debt securities described
in this prospectus. We may offer rights separately or together with one or more additional rights, debt securities, common stock,
warrants or purchase contracts, or any combination of those securities in the form of units, as described in the applicable prospectus
supplement. Each series of rights will be issued under a separate rights agreement to be entered into between us and a bank or
trust company, as rights agent. The rights agent will act solely as our agent in connection with the certificates relating to
the rights of the series of certificates and will not assume any obligation or relationship of agency or trust for or with any
holders of rights certificates or beneficial owners of rights. The following description sets forth certain general terms and
provisions of the rights to which any prospectus supplement may relate. The particular terms of the rights to which any prospectus
supplement may relate and the extent, if any, to which the general provisions may apply to the rights so offered will be described
in the applicable prospectus supplement. To the extent that any particular terms of the rights, rights agreement or rights certificates
described in a prospectus supplement differ from any of the terms described below, then the terms described below will be deemed
to have been superseded by that prospectus supplement. We encourage you to read the applicable rights agreement and rights certificate
for additional information before you decide whether to purchase any of our rights.
We
will provide in a prospectus supplement the following terms of the rights being issued:
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the
date of determining the stockholders entitled to the rights distribution;
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the
aggregate number of shares of common stock or other securities purchasable upon exercise of the rights;
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the
exercise price;
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the
aggregate number of rights issued;
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whether
the rights are transferrable and the date, if any, on and after which the rights may be separately transferred;
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the
date on which the right to exercise the rights will commence, and the date on which the right to exercise the rights will
expire;
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the
method by which holders of rights will be entitled to exercise;
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the
conditions to the completion of the offering, if any;
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the
withdrawal, termination and cancellation rights, if any;
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whether
there are any backstop or standby purchaser or purchasers and the terms of their commitment, if any;
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whether
stockholders are entitled to oversubscription rights, if any;
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any
applicable U.S. federal income tax considerations; and
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any
other terms of the rights, including terms, procedures and limitations relating to the distribution, exchange and exercise
of the rights, as applicable.
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Each
right will entitle the holder of rights to purchase for cash the principal amount of shares of common stock or other securities
at the exercise price provided in the applicable prospectus supplement. Rights may be exercised at any time up to the close of
business on the expiration date for the rights provided in the applicable prospectus supplement.
Holders
may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly
completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus
supplement, we will, as soon as practicable, forward the shares of common stock or other securities, as applicable, purchasable
upon exercise of the rights. If less than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed
securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination
of such methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement.
Rights
Agent
The
rights agent for any rights we offer will be set forth in the applicable prospectus supplement.
DESCRIPTION
OF UNITS
The
following description, together with the additional information that we include in any applicable prospectus supplements summarizes
the material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized below
will apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series
of units in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement
may differ from the terms described below.
We
will incorporate by reference from reports that we file with the SEC, the form of unit agreement that describes the terms of the
series of units we are offering, and any supplemental agreements, before the issuance of the related series of units. The following
summaries of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the
provisions of the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read
the applicable prospectus supplements related to the particular series of units that we may offer under this prospectus, as well
as any related free writing prospectuses and the complete unit agreement and any supplemental agreements that contain the terms
of the units.
General
We
may issue units consisting of common stock, preferred stock, one or more debt securities, warrants, rights or purchase contacts
for the purchase of common stock, preferred stock and/or debt securities in one or more series, in any combination. Each unit
will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a
unit will have the rights and obligations of a holder of each security included in the unit. The unit agreement under which a
unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or
at any time before a specified date.
We
will describe in the applicable prospectus supplement the terms of the series of units being offered, including:
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the
designation and terms of the units and of the securities comprising the units, including whether and under what circumstances
those securities may be held or transferred separately;
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any
provisions of the governing unit agreement that differ from those described below; and
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any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units.
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The
provisions described in this section, as well as those set forth in any prospectus supplement or as described under “Description
of Capital Stock,” “Description of Debt Securities,” “Description of Warrants,” “Description
of Rights” and “Description of Purchase Contracts” will apply to each unit, as applicable, and to any common
stock, debt security, warrant, right or purchase contract included in each unit, as applicable.
Unit
Agent
The
name and address of the unit agent for any units we offer will be set forth in the applicable prospectus supplement.
Issuance
in Series
We
may issue units in such amounts and in such numerous distinct series as we determine.
Enforceability
of Rights by Holders of Units
Each
unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship
of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series
of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or
unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any
holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate legal
action its rights as holder under any security included in the unit.
LEGAL
MATTERS
Reed
Smith LLP, New York, New York, will pass upon the validity of the issuance of the securities to be offered by this prospectus.
EXPERTS
Mayer
Hoffman McCann P.C., our independent registered public accounting firm, has audited our balance sheets as of December 31, 2018
and 2017, and the related Statements of Operations and Comprehensive Loss, Statements of Changes in Stockholders’ Equity
and Statements of Cash Flows for each of the two years in the period ended December 31, 2018, as set forth in their
report, which report expresses an unqualified opinion and includes an explanatory paragraph relating to our ability to continue
as a going concern. We have incorporated by reference our financial statements in this prospectus and in this registration statement
in reliance on the report of Mayer Hoffman McCann P.C. given on their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
As
permitted by SEC rules, this prospectus omits certain information that is included in the registration statement of which this
prospectus forms a part and its exhibits. Since this prospectus may not contain all of the information that you may find important,
we urge you to review the full text of these documents. If we have filed a contract, agreement or other document as an exhibit
to the registration statement of which this prospectus forms a part, please read the exhibit for a more complete understanding
of the document or matter involved. Each statement in this prospectus, including statements incorporated by reference as discussed
above, regarding a contract, agreement or other document is qualified in its entirety by reference to the actual document.
We
are subject to the information reporting requirements of the Exchange Act and, in accordance with these requirements, we file
annual, quarterly and current reports, proxy statements, information statements, and other information with the SEC. Our SEC filings
are available to the public over the Internet at the SEC’s website at
www.sec.gov
. In addition, we provide free access
to these materials through our website,
www.ritterpharmaceuticals.com
, as soon as reasonably practicable after they are
filed with or furnished to the SEC.
INCORPORATION
OF INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” information that we file with them. Incorporation by reference allows
us to disclose important information to you by referring you to those other documents. The information incorporated by reference
is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede
this information. This prospectus omits certain information contained in the registration statement, as permitted by the SEC.
You should refer to the registration statement and any prospectus supplement filed hereafter, including the exhibits, for further
information about us and the securities we may offer pursuant to this prospectus. Statements in this prospectus regarding the
provisions of certain documents filed with, or incorporated by reference in, the registration statement are not necessarily complete
and each statement is qualified in all respects by that reference. Copies of all or any part of the registration statement, including
the documents incorporated by reference or the exhibits, may be obtained upon payment of the prescribed rates at the offices of
the SEC listed above in “Where You Can Find More Information.” The documents we are incorporating by reference are:
|
●
|
our
Annual Report on Form 10-K for the fiscal year ended December 31, 2018 filed with the SEC on April 1, 2019;
|
|
|
|
|
●
|
our
proxy statement filed with the SEC on April 26, 2019;
|
|
|
|
|
●
|
our
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2019, filed with the SEC on May 15, 2019;
|
|
|
|
|
●
|
our
Current Reports on Form 8-K filed on March 6, 2019, June 17, 2019, July 1, 2019 and July 11, 2019; and
|
|
|
|
|
●
|
the
description of the Company’s Common Stock contained in the Company’ Registration Statement on Form 8-A (File No.
1-37428) filed on June 15, 2015, including any amendment or report filed for the purpose of updating such description
|
In
addition, all documents that the Company files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act of 1934, as
amended (the “Exchange Act”), subsequent to the filing of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof
from the date of filing of such documents, except as to any document or portion of any document that is deemed furnished and not
filed.
Pursuant
to Rule 412 under the Securities Act, any statement contained in the documents incorporated or deemed to be incorporated by reference
in this Registration Statement shall be deemed to be modified, superseded or replaced for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed
to be incorporated by reference in this Registration Statement modifies, supersedes or replaces such statement. Any such statement
so modified, superseded or replaced shall not be deemed, except as so modified, superseded or replaced, to constitute a part of
this Registration Statement.
Upon
written or oral request made to us at the address or telephone number below, we will, at no cost to the requester, provide to
each person, including any beneficial owner, to whom this prospectus is delivered, a copy of any or all of the information that
has been incorporated by reference into this prospectus (other than an exhibit to a filing, unless that exhibit is specifically
incorporated by reference into that filing), but not delivered with this prospectus:
Ritter
Pharmaceuticals, Inc.
1880
Century Park East, Suite 1000
Los
Angeles, California 90067
(310)
203-1000
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth an itemization of the various expenses, all of which we will pay, in connection with the issuance and
distribution of the securities being registered. All of the amounts shown are estimated except the SEC Registration Fee.
SEC Registration Fee
|
|
$
|
3,579
|
|
Legal Fees and Expenses
|
|
|
*
|
|
Accounting Fees and Expenses
|
|
|
*
|
|
Miscellaneous
|
|
|
*
|
|
Total
|
|
$
|
*
|
|
*
These fees will be dependent on the type of securities offered and number of offerings and, therefore, cannot be estimated
at this time. In accordance with Rule 430B under the Securities Act, additional information regarding estimated fees and expenses
will be provided at the time information as to an offering is included in a prospectus supplement.
Item
15. Indemnification of Directors and Officers
Our
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:
|
●
|
from
any breach of the director’s duty of loyalty to us or our stockholders;
|
|
|
|
|
●
|
from
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
|
|
|
|
|
●
|
under
Section 174 of the Delaware General Corporation Law; or
|
|
|
|
|
●
|
from
any transaction from which the director derived an improper personal benefit.
|
We
carry insurance policies insuring our directors and officers against certain liabilities that they may incur in their capacity
as directors and officers.
In
addition, we have entered into indemnification agreements with each of our current directors and executive officers. These agreements
require us to indemnify these individuals to the fullest extent permitted under Delaware law against liabilities that may arise
by reason of their service to us and to advance expenses incurred as a result of any proceeding against them as to which they
could be indemnified. We also intend to enter into indemnification agreements with our future directors and executive officers.
Item
16. Exhibits
The
exhibits to this registration statement are listed in the Exhibit Index to this registration statement, which Exhibit Index is
hereby incorporated by reference.
Item
17. Undertakings
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(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 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;
(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 a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by 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 that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial
bona fide
offering thereof.
Provided, however,
that no statement
made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the registration statement or made in any such document immediately
prior to such effective date.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser
and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant’s annual report pursuant to 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.
(d)
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of Section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and regulations
prescribed by the Commission under section 305(b)(2) of the Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Company certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, thereto duly authorized, in the City of Los Angeles, State of California,
on July 24, 2019.
|
RITTER
PHARMACEUTICALS, INC.
|
|
|
|
|
By:
|
/s/
Andrew
J. Ritter
|
|
|
Andrew
J. Ritter
|
|
|
Chief
Executive Officer
|
POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS that each of the undersigned directors and officers of Ritter Pharmaceuticals, Inc. hereby appoints
Andrew J. Ritter and John W. Beck, and each of them acting singly, as his or her true and lawful attorney-in-fact and agent, for
him or her and in his or her name, place and stead, with full power to act alone, to sign on his or her behalf and in the capacity
set forth below, any and all amendments and post-effective amendments and supplements to this Registration Statement on Form S-3
and to file each such amendment and post-effective amendment and supplements to this Registration Statement, with all exhibits
thereto, and any and all other documents in connection therewith, with the Securities and Exchange Commission, hereby granting
unto said attorney-in-fact and agent full power and authority to do and perform any and all acts and things requisite and necessary
or appropriate to be done in and about the premises as fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
Chief
Executive Officer and Director
|
|
|
/s/
Andrew
J. Ritter
|
|
(
Principal
Executive Officer
)
|
|
July 24
,
2019
|
Andrew
J. Ritter
|
|
|
|
|
|
|
|
|
|
|
|
Chief
Financial Officer
|
|
|
/s/
John
W. Beck
|
|
(
Principal
Financial and Accounting Officer
)
|
|
July 24
,
2019
|
John
W. Beck
|
|
|
|
|
|
|
|
|
|
/s/
Ira
E. Ritter
|
|
Executive
Chairman, Chief Strategic Officer and Director
|
|
July 24
,
2019
|
Ira
E. Ritter
|
|
|
|
|
|
|
|
|
|
/s/
Noah
Doyle
|
|
Director
|
|
July 24
,
2019
|
Noah
Doyle
|
|
|
|
|
|
|
|
|
|
/s/
Matthew
W. Foehr
|
|
Director
|
|
July 24
,
2019
|
Matthew
W. Foehr
|
|
|
|
|
|
|
|
|
|
/s/
Paul
V. Maier
|
|
Director
|
|
July 24
,
2019
|
Paul
V. Maier
|
|
|
|
|
|
|
|
|
|
/s/ William M. Merino
|
|
Director
|
|
July 24, 2019
|
William M. Merino
|
|
|
|
|
|
|
|
|
|
/s/ Michael D. Step
|
|
Director
|
|
July 24, 2019
|
Michael D. Step
|
|
|
|
|
EXHIBIT
INDEX
|
|
|
|
Incorporated
by Reference
|
Exhibit
No.
|
|
Description
|
|
Form
|
|
File
No.
|
|
Exhibit
|
|
Filing
Date
|
1.1*
|
|
Form
of Underwriting Agreement
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
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|
4.1
|
|
Form of Common Stock Certificate of Ritter Pharmaceuticals, Inc.
|
|
8-K
|
|
001-37428
|
|
4.1
|
|
3/22/2018
|
|
|
|
|
|
|
|
|
|
|
|
4.2
|
|
Amended and Restated Investors’ Rights Agreement, dated as of November 17, 2010, by and among Ritter Pharmaceuticals, Inc. and the persons and entities named therein
|
|
S-1
|
|
333-202924
|
|
4.2
|
|
3/23/2015
|
|
|
|
|
|
|
|
|
|
|
|
4.3
|
|
Amendment No. 1 to the Amended and Restated Investors’ Rights Agreement, dated as of January 13, 2011, by and among Ritter Pharmaceuticals, Inc. and the persons and entities named therein
|
|
S-1
|
|
333-202924
|
|
4.3
|
|
3/23/2015
|
|
|
|
|
|
|
|
|
|
|
|
4.4
|
|
Amendment No. 2 to the Amended and Restated Investors’ Rights Agreement, dated as of February 6, 2012, by and among Ritter Pharmaceuticals, Inc. and the persons and entities named therein
|
|
S-1
|
|
333-202924
|
|
4.4
|
|
3/23/2015
|
|
|
|
|
|
|
|
|
|
|
|
4.5
|
|
Amendment No. 3 to the Amended and Restated Investors’ Rights Agreement, dated as of December 4, 2014, by and among Ritter Pharmaceuticals, Inc. and the persons and entities named therein
|
|
S-1
|
|
333-202924
|
|
4.5
|
|
3/23/2015
|
|
|
|
|
|
|
|
|
|
|
|
4.6
|
|
Amendment No. 4 to the Amended and Restated Investors’ Rights Agreement, by and among Ritter Pharmaceuticals, Inc. and the persons and entities named therein
|
|
S-1
|
|
333-208818
|
|
4.6
|
|
12/31/2015
|
|
|
|
|
|
|
|
|
|
|
|
4.7
|
|
Form of Representative’s Warrant Agreement
|
|
S-1/A
|
|
333-202924
|
|
4.7
|
|
5/8/2015
|
|
|
|
|
|
|
|
|
|
|
|
4.8
|
|
Amended and Restated Registration Rights Agreement, dated July 23, 2019, by and between Ritter Pharmaceuticals, Inc. and Aspire Capital Fund, LLC
|
|
S-1
|
|
333
-232792
|
|
4.9
|
|
07
/24/2019
|
|
|
|
|
|
|
|
|
|
|
|
4.9
|
|
Warrant Agency Agreement by and between Ritter Pharmaceuticals, Inc. and Corporate Stock Transfer and Form of Warrant Certificate
|
|
8-K
|
|
001-37428
|
|
4.1
|
|
10/4/2017
|
|
|
|
|
|
|
|
|
|
|
|
4.10
|
|
First Amendment to Warrant Agency Agreement by and between Ritter Pharmaceuticals, Inc. and Corporate Stock Transfer, Inc.
|
|
8-K
|
|
001-37428
|
|
4.1
|
|
5/7/2018
|
|
|
|
|
|
|
|
|
|
|
|
4.11
|
|
Registration Rights Agreement, by and among Ritter Pharmaceuticals, Inc. and the Purchasers signatory thereto, dated October 30, 2018
|
|
10-Q
|
|
001-37428
|
|
10.5
|
|
11/9/2018
|
|
|
|
|
|
|
|
|
|
|
|
4.12*
|
|
Certificate
of designation, preferences and rights with respect to any preferred stock issued hereunder
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.13*
|
|
Form
of Senior Debt Security
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.14*
|
|
Form
of Subordinated Debt Security
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
4.15
|
|
Form of Senior Indenture
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.16
|
|
Form of Subordinated Indenture
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.17*
|
|
Form
of Warrant Agreement and Warrant Certificate
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.18*
|
|
Form
of Rights Agreement and Right Certificate
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.19*
|
|
Form
of Unit Agreement and Unit
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5.1
|
|
Opinion of Reed Smith LLP with respect to the legality of the securities being registered
|
|
|
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|
|
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|
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|
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|
|
|
|
|
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|
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23.1
|
|
Consent of Mayer Hoffman McCann P.C., independent registered public accounting firm
|
|
|
|
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|
|
|
|
|
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|
|
|
|
|
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|
|
23.2
|
|
Consent of Reed Smith LLP (included in Exhibit 5.1)
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
24.1
|
|
Power of Attorney (included on applicable signature pages)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25.1*
|
|
The
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Senior Indenture
will be incorporated herein by reference from a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture
Act of 1939
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25.2*
|
|
The
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Subordinated
Indenture will be incorporated herein by reference from a subsequent filing in accordance with Section 305(b)(2) of the Trust
Indenture Act of 1939
|
|
|
|
|
|
|
|
|
*
To be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act.
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