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 4, 2020
RITTER
PHARMACEUTICALS, INC.
(Exact
name of registrant as specified in its charter)
Delaware
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001-37428
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26-3474527
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(State
or other jurisdiction
of incorporation)
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(Commission
File
Number)
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(I.R.S.
Employer
Identification
No.)
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1880
Century Park East, Suite 1000
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Los
Angeles, California
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90067
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(Address
of principal executive offices)
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(Zip
Code)
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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]
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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[ ]
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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[ ]
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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[ ]
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities
Registered Pursuant to Section 12(b) of the Exchange Act:
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Title
of Each Class
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Trading
Symbol
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Name
of Each Exchange on Which Registered
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Common
Stock, par value $0.001
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RTTR
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Nasdaq
Capital Market
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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
3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
Item
8.01. Other Events.
On
February 4, 2020, Ritter Pharmaceuticals, Inc. (the “Company”) received notice from the Nasdaq Hearings Panel that
it has granted the Company’s request for continued listing through May 19, 2020 in order to allow it to complete its proposed
merger with Qualigen, Inc., subject to the conditions described below.
As
previously disclosed, on August 19, 2019, Ritter Pharmaceuticals, Inc. (the “Company”) received written notice from
the Nasdaq Stock Market (“Nasdaq”) stating that the Company no longer complied with the minimum stockholders’
equity requirement under Nasdaq Listing Rule 5550(b)(1) for continued listing on The Nasdaq Capital Market because the Company’s
stockholders’ equity, as reported in the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June
30, 2019, had fallen below $2.5 million.
On
October 28, 2019, the Company received a second written notice from Nasdaq stating that, because the closing bid price for the
Company’s common stock had fallen below $1.00 per share for 30 consecutive business days, the Company no longer complied
with the minimum bid price requirement for continued listing on The Nasdaq Capital Market. On November 21, 2019, Ritter received
a letter from the Listing Qualifications Department of Nasdaq, notifying Ritter that Nasdaq had determined to delist Ritter’s
common stock pursuant to Nasdaq’s discretionary authority under Listing Rule 5101, based on Ritter’s failure to comply
with the above described continued listing requirements and its belief that Ritter has no current operating business. The letter
stated that, unless Ritter appealed Nasdaq’s determination and requested a hearing on the matter by the applicable deadline,
trading of Ritter’s common stock on the Nasdaq Capital Market would be suspended at the opening of business on December
3, 2019 and a Form 25-NSE would be filed with the Securities and Exchange Commission (the “SEC”).
Ritter
appealed Nasdaq’s determination and a hearing was held on January 16, 2020, at which Ritter submitted its compliance plan
to Nasdaq. The plan identified the proposed merger with Qualigen and formally requested, on behalf of the Company and its proposed
merger partner, Qualigen, that the Company’s noncompliance with the continued listing requirements be waived until May 19,
2020, in order to allow the Company to complete the proposed merger and for the combined company to demonstrate compliance with
all applicable requirements for initial listing on the Nasdaq Capital Market.
On
February 4, 2020, the Company received notice that the Nasdaq Hearings Panel had determined to grant the Company’s request
for continued listing in light of the Company’s planned merger with Qualigen, the relatively short time frame needed to
complete the business combination and Qualigen’s securing $4 million in equity prior to the merger’s closing. The
Hearings Panel also noted its disagreement with the Nasdaq Staff’s determination that the Company was a public shell. The
extension is subject to the following conditions:
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1.
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On
or before April 1, 2020, the Company will have filed a listing application for Companies
Conducting a Business Combination that Results in a Change of Control Application with
the Nasdaq Listing Center;
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2.
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On
or before May 8, 2020, the Company will have held a meeting of the Company’s shareholders
and obtained shareholder approval of the business combination; and
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3.
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On
or before May 19, 2020, the Company will have completed the business combination and
established compliance with Nasdaq Listing Rule 5505.
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There
can be no assurance that the Company will be able to complete the merger with Qualigen and otherwise satisfy Nasdaq’s conditions
to continued listing.
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 above; 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 which 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.
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.
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RITTER
PHARMACEUTICALS, INC.
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By:
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/s/
Andrew J. Ritter
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Name:
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Andrew
J. Ritter
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Title:
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Chief
Executive Officer
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Date:
February 7, 2020
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