UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 20, 2020
RITTER PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 001-37428 | 26-3474527 | ||
|
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
| 1880 Century Park East, Suite 1000 | ||
| Los Angeles, California | 90067 | |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (310) 203-1000
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| [X] | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| [ ] | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| [ ] | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| [ ] | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Securities Registered Pursuant to Section 12(b) of the Exchange Act: | ||||
| Title of Each Class | Trading Symbol | Name of Each Exchange on Which Registered | ||
| Common Stock, par value $0.001 | RTTR | Nasdaq Capital Market | ||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company [X]
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 13(a) of the Exchange Act. [ ]
Item 1.01. Entry into a Material Definitive Agreement.
On February 20, 2020, Ritter Pharmaceuticals, Inc. (the “Company”) entered into private exchange agreements with certain holders (the “Warrant Holders”) of warrants issued in connection with the Company’s October 2018 private offering of common stock and warrants (the “Warrants”). The Warrants being exchanged provide for the purchase of up to an aggregate of 1,153,844 shares of the Company’s common stock at an exercise price of $1.30, with an expiration date of October 30, 2023. Pursuant to such exchange agreements, the Company agreed to issue 1,153,844 shares of common stock to the Warrant Holders in exchange for such Warrants on a 1:1 basis.
The exchanges were consummated as part of an ongoing effort to satisfy a closing condition of the Agreement and Plan of Merger (as amended, the “Merger Agreement”), by and between the Company, RG28 Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of the Company, and Qualigen, Inc. (“Qualigen”), previously described in a Current Report on Form 8-K filed with the Securities and Exchange Commission on January 21, 2020.
The description of the exchange agreements is qualified in its entirety by reference to the full and complete terms of such agreements, the form of which is attached as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
Forward-Looking Statements
Except for the factual statements made herein, information contained in this report consists of forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 that involve risks, uncertainties and assumptions that are difficult to predict. Words such as “will,” “would,” “may,” “intends,” “potential,” and similar expressions, or the use of future tense, identify forward-looking statements, but their absence does not mean that a statement is not forward-looking. Such forward-looking statements are not guarantees of performance. Actual results could differ materially from those contained in any forward-looking statement as a result of various factors, including, without limitation: the risk that the conditions to the closing of the proposed merger with Qualigen are not satisfied, including the failure to obtain stockholder approval for the proposed merger by May 19, 2020 and to satisfy the other Nasdaq conditions described in the Merger Agreement; uncertainties as to the timing of the consummation of the proposed merger and the ability of each of Ritter and Qualigen to consummate the merger; risks related to Ritter’s ability to correctly estimate and manage its operating expenses and its expenses associated with the proposed merger pending closing; risks related to Ritter’s continued listing on The Nasdaq Capital Market until closing of the proposed merger; risks that Ritter may be unable to regain compliance with the minimum stockholders’ equity or minimum bid price requirements during any compliance period or in the future, or otherwise meet Nasdaq compliance standards; the risk that Qualigen may not receive approval of its initial listing application; risks related to the failure or delay in obtaining required approvals from any governmental or quasi-governmental entity necessary to consummate the proposed merger; risks associated with the possible failure to realize certain anticipated benefits of the proposed merger, including with respect to future financial and operating results; unexpected costs, charges or expenses resulting from the proposed merger; potential adverse reactions or changes to business relationships resulting from the announcement or completion of the proposed merger; regulatory requirements or developments; changes in capital resource requirements; risks related to the inability of the combined company to obtain sufficient additional capital to continue to advance its product candidates and its preclinical programs; and legislative, regulatory, political and economic developments. The foregoing review of important factors that could cause actual events to differ from expectations should not be construed as exhaustive and should be read in conjunction with statements that are included herein and elsewhere, including the risk factors included in Ritter’s most recent Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed with the Securities and Exchange Commission (“SEC”), as well as Ritter’s registration statement on Form S-4, filed with the SEC on February 4, 2020, and the joint proxy and consent solicitation statement/prospectus included therein. The forward-looking statements contained in this report speak only as of the date of this report and Ritter undertakes no obligation to publicly update any forward-looking statements to reflect changes in information, events or circumstances after the date of this report, unless required by law.
Important Additional Information Will be Filed with the SEC
On February 4, 2020, Ritter filed a registration statement on Form S-4 with the SEC that included a joint proxy and consent solicitation statement/prospectus. A definitive joint proxy and consent solicitation statement/prospectus will be filed with the SEC and mailed to the stockholders of Ritter and Qualigen once the registration statement becomes effective. Each party may file other documents with the SEC in connection with the merger. INVESTORS AND STOCKHOLDERS OF RITTER AND QUALIGEN ARE URGED TO READ THESE MATERIALS CAREFULLY AND IN THEIR ENTIRETY BECAUSE THEY CONTAIN, OR WILL CONTAIN, IMPORTANT INFORMATION ABOUT RITTER, QUALIGEN, THE MERGER AND RELATED MATTERS. Investors and stockholders may obtain free copies of the documents filed with the SEC through the website maintained by the SEC at www.sec.gov. Investors and stockholders may also obtain free copies of the documents filed by Ritter with the SEC by contacting Ritter by mail at Ritter Pharmaceuticals, Inc., 1880 Century Park East, Suite 1000, Los Angeles, CA 90067, Attention: John Beck. Investors and stockholders are urged to read the definitive proxy statement/prospectus/information statement and the other relevant materials when they become available before making any voting or investment decision with respect to the Merger.
No Offer or Solicitation
This communication shall not constitute an offer to sell or the solicitation of an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended.
Participants in the Solicitation
Ritter and its directors and executive officers and Qualigen and its directors and executive officers may be deemed to be participants in the solicitation of proxies from the stockholders of Ritter in connection with the Merger. Information regarding the special interests of these directors and executive officers in the merger is included in the joint proxy and consent solicitation statement/prospectus referred to above. Additional information about Ritter’s directors and executive officers is included in Ritter’s definitive proxy statement filed with the SEC on April 26, 2019. These documents are available free of charge at the SEC website (www.sec.gov) and from the Corporate Secretary of Ritter at the address above.
Item 9.01. Financial Statements and Exhibits.
|
Exhibit No. |
Description | |
| 10.1 | Form of Agreement to Exchange Warrants |
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| RITTER PHARMACEUTICALS, INC. | ||
| By: | /s/ Andrew J. Ritter | |
| Name: | Andrew J. Ritter | |
| Title: | Chief Executive Officer | |
Date: February 21, 2020
Exhibit 10.1
FORM OF
AGREEMENT TO EXHANGE WARRANTS
Ritter Pharmaceuticals, Inc.
1880 Century Park East, Suite 1000
Los Angeles, California 90067
Ladies and Gentlemen:
This is to record the agreement between Ritter Pharmaceuticals, Inc. (the “Company”) and _________ (the “Warrantholder”) regarding the terms on which the Company will issue shares of common stock (“Common Stock”), par value $0.001 per share, to the Warrantholder in exchange for warrants originally issued to the Warrantholder on October 30, 2018 (the “2018 Warrants”) entitling the holders to purchase shares of Common Stock, which Agreement is as follows:
| 1. | The Company hereby agrees to issue __________ shares (the “Exchange Shares”) of Common Stock to the Warrantholder in exchange for __________ 2018 Warrants (the “Exchange”). | |
| 2. | In order to carry out the exchange of the Exchange Shares for the 2018 Warrants described in Section 1, at or prior to 6:00 p.m., Eastern Time on February 24, 2020 (the “Exchange Date”) (a) the number of Warrants stated in Section 1 shall be automatically deemed cancelled upon receipt of the Exchange Shares, and (b) the Company will cause Corporate Stock Transfer, Inc., as transfer agent for the Company, to issue via the Deposit / Withdrawal at Custodian system into an account with The Depositary Trust Company (“DTC”) specified by the Warrantholder, the number of shares of Common Stock stated in Section 1. The Exchange Shares shall not bear any restrictive legends. No later than five Nasdaq Capital Market trading days following the date hereof, the Warrantholder shall deliver the original certificate representing the 2018 Warrants stated in Section 1 above to the Company for cancellation. However, failure to deliver the original certificate will not affect the automatic cancellation of the Warrants described in clause (a). If the Company fails for any reason to deliver the Exchange Shares without restriction or any restrictive legend by February 24, 2020, the Company shall pay to the Warrantholder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Exchange Shares (based on the VWAP of the Common Stock on February 24, 2020) $10 per Nasdaq Capital Market trading day for each trading day after February 24, 2020 until the Exchange Shares without restriction or any restrictive legend are delivered to the Warrantholder. For purposes herein, “VWAP” means, for any date, if the Common Stock is then listed on the Nasdaq Capital Market or another trading market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Nasdaq Capital Market or such trading market as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)). |
| 3. | The Warrantholder represents and warrants to the Company that: |
| a. | The Warrantholder owns all the 2018 Warrants described in Section 1 and has all power and authority that is necessary to enable the Warrantholder to exchange them for Common Stock as contemplated by this Agreement, without requiring consent of any other person or any governmental authority. | |
| b. | After the 2018 Warrants described in Section 1 are automatically cancelled as described in Section 2, neither the Warrantholder nor any other person will have any rights under or with regard to the 2018 Warrants. |
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| c. | The Warrantholder is aware that: |
i. On February 4, 2020, the Company filed a registration statement on Form S-4 (the “Registration Statement”) relating to a proposed merger (the “Merger”) with Qualigen, Inc. (“Qualigen”). Consummation of the Merger is subject to certain closing conditions including, among other things, the Registration Statement being declared effective by the Securities and Exchange Commission, approval by the stockholders of the Company and Qualigen, the Common Stock to be issued in the Merger being approved for listing on Nasdaq, the consummation of a pre-closing Qualigen financing, and the Company’s stockholders’ equity being no less than $0.00 as of immediately prior to the effective time of the Merger.
ii. Subject to the approval of the Company’s stockholders, as described in the Registration Statement, the Company intends to effect a reverse stock split prior to the consummation of the Merger, at a ratio to be determined in the future. If there is a reverse stock split, the number of shares that may be purchased by exercising the 2018 Warrants or the 2017 Warrants will be reduced proportionately, and the exercise price of the 2018 Warrants and the 2017 Warrants will be increased proportionately.
iii. The 2018 Warrants include a provision that states that upon a “Fundamental Transaction”, which would include the Merger, a holder of 2018 Warrants will have the right to require the Company or any successor entity to repurchase the 2018 Warrants at their fair value using the Black Scholes option pricing formula described in the 2018 Warrant agreement.
iv. The last sale price of the Common Stock reported on the Nasdaq Capital Market on February 20, 2020 was $0.2070 per share. The Company is not aware of any trading in the 2018 Warrants.
v. The Company files annual, quarterly and current reports and other information with the SEC. The materials the Company files with the SEC are available on the SEC’s website, www.sec.gov. They also are available on the Company’s website, www.ritterpharmaceuticals.com. The Company is current in its annual, quarterly and current reports and other filings with the SEC for purposes of SEC Rule 144.
| 4. | The Company represents and warrants to the Warrantholder as follows: |
| a. | The Company has all power and authority, and has obtained all approvals, that are necessary to enable it to issue Common Stock in exchange for 2018 Warrants as contemplated by this Agreement. | |
| b. | When the Company issues the Exchange Shares, those shares (i) will be issued in reliance on an exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”) contained in Section 3(a)(9) of the Securities Act, and (ii) will be duly authorized and issued, fully paid and non-assessable and will be eligible for trading on the Nasdaq Capital Market. For purposes of SEC Rule 144, the holding period of the Exchange Shares will include the holding period of the 2018 Warrants, which is more than six months, and the Company agrees not to take a position contrary to this sentence. The Company agrees to take all actions, including, without limitation, the issuance by its legal counsel of any necessary legal opinions, necessary to issue to the Exchange Shares without restriction or any restrictive legend without the need for any action by the Warrantholder. |
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| 5. | From the date hereof until fifteen (15) days following the Exchange Date, neither the Company nor any subsidiary of the Company shall issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents. For purposes herein, “Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock. | |
| 6. | The Company covenants and agrees that it has not entered into an agreement to exchange warrants with any other holder of 2018 Warrants (each, an “Other Warrantholder”) for any material amendments, modifications or exchanges to the terms of such 2018 Warrants (or settlement or exchange of such 2018 Warrants for other material consideration) (each a “More Favorable Agreement”), that is more favorable to such Other Warrantholder than those of the Warrantholder pursuant to this Agreement. From the date hereof until the earlier of (a) ninety (90) days following the Exchange Date or (b) the closing of the proposed merger between the Company and Qualigen, if the Company enters into a More Favorable Agreement with terms that are materially different from this Agreement (“material” shall be in the reasonable determination of the Warrantholder), then (i) the Company shall provide written notice thereof to the Warrantholder promptly following the occurrence thereof and (ii) the terms and conditions of this Agreement that shall be, without any further action by the Warrantholder or the Company, automatically and retroactively to the date hereof, amended and modified in an economically and legally equivalent manner such that the Warrantholder shall receive the benefit of such more favorable material terms and/or conditions (as the case may be) set forth in such More Favorable Agreement, provided that upon written notice to the Company within five business days of such Company’s written notice, the Warrantholder may elect not to accept the benefit of any such amended or modified material term or condition, in which event the material term or condition contained in this Agreement shall continue to apply to the Warrantholder as it was in effect immediately prior to such amendment or modification as if such amendment or modification never occurred with respect to the Warrantholder. The provisions of this paragraph shall apply similarly and equally to each More Favorable Agreement and shall be effective whether or not the Warrantholder holds Exchange Shares at such time. The Company will notify the Warrantholder any time it enters into any agreement with any Other Warrantholder relating to the 2018 Warrants and, at the request of the Warrantholder, provide the Warrantholder with such agreement for its review. |
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| 7. | The Company shall, on or before 8:30 a.m., New York City time, on the Nasdaq Capital Market trading day immediately following the date hereof issue a Current Report on Form 8-K disclosing all material terms of the transactions contemplated hereby and attaching the form of this Agreement as an exhibit thereto (such Current Report on Form 8-K with all exhibits attached thereto, the “8-K Filing”). From and after the filing of the 8-K Filing, the Warrantholder shall not be in possession of any material, nonpublic information received from the Company or any of its subsidiaries or any of their respective officers, directors, employees, affiliates or agents, that is not disclosed in the 8-K Filing. The Company shall not, and shall cause its officers, directors, employees, affiliates and agents, not to, provide the Warrantholder with any material, nonpublic information regarding the Company from and after the filing of the 8-K Filing without the express written consent of the Warrantholder. To the extent that the Company delivers any material, non-public information to the Warrantholder without the Warrantholder’s express prior written consent, the Company hereby covenants and agrees that the Warrantholder shall not have any duty of confidentiality to the Company, any of its subsidiaries or any of their respective officers, directors, employees, affiliates or agents with respect to, or a duty to the Company, any of its subsidiaries or any of their respective officers, directors, employees, affiliates or agents not to trade on the basis of, such material, non-public information. The Company shall not disclose the name of the Warrantholder in any filing, announcement, release or otherwise, unless such disclosure is required by law or regulation. In addition, effective upon the filing of the 8-K Filing, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and the Warrantholder or any of its affiliates, on the other hand, shall terminate and be of no further force or effect. The Company understands and confirms that the Warrantholder will rely on the foregoing representations in effecting transactions in securities of the Company. |
| The Warrantholder is aware that the issuance of Exchange Shares in exchange for the 2018 Warrants, as described in this Agreement, has not been registered under the Securities Act and that the Exchange Shares are being issued in reliance on an exemption from the registration requirements of the Securities Act contained in Section 3(a)(9) of the Securities Act. | ||
| 8. | This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile or .pdf transmission, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or .pdf signature page were an original thereof. If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be determined pursuant to the internal law of the State of New York. |
(Signatures on following page)
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Please sign a copy of this Agreement which, when it is signed by the Company, will constitute a legally binding agreement between the Warrantholder and the Company.
| Very truly yours, | ||
|
[WARRANTHOLDER] |
||
| Dated: February 20, 2020 | By | |
| Name: | ||
| Title: | ||
AGREED TO:
RITTER PHARMACEUTICALS, INC.
| By: | ||
| Name: | Andrew J. Ritter | |
| Title: | Chief Executive Officer |
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