As filed with the Securities and Exchange Commission on May
11, 2017
Registration No. 333-215671
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3/A
(Amendment No. 2)
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
VISTAGEN THERAPEUTICS, INC.
(Exact Name Of Registrant As Specified In Its Charter)
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Nevada
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20-5093315
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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VistaGen Therapeutics, Inc.
343 Allerton Avenue
South San Francisco, California 94080
(650) 577-3600
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Shawn K. Singh
Chief Executive Officer
c/o VistaGen Therapeutics, Inc.
343 Allerton Avenue
South San Francisco, California 94080
(650) 577-3600
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(Address, including zip code, and telephone number,
including area code of Registrant’s principal executive
offices),
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(Name, address, including zip code, and telephone
number,
including area code, of agent for service)
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From time to time after the effective date of this Registration
Statement
(Approximate date of commencement of proposed sale to
public)
Copies of all communications, including all communications sent to
the agent for service, should be sent to:
Daniel W. Rumsey, Esq.
Jessica R. Sudweeks, Esq.
Disclosure Law Group,
a Professional Corporation
600 W. Broadway, Suite 700
San Diego, CA 92101
(619) 795-1134
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. ☒
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, smaller reporting company, or an emerging
growth company. See the definitions of “large accelerated
filer,” “accelerated filer,” “smaller
reporting company,” and “emerging growth company”
in Rule 12b-2 of the Exchange Act. (Check
one):
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Large accelerated filer
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[ ]
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Accelerated filer
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[ ]
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Non-accelerated filer
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[ ]
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Smaller reporting company
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[X]
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(Do not check if a smaller reporting company)
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Emerging growth
company
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[
]
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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 13(a) of the
Exchange Act. ☐
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 or until the registration statement shall become effective on
such date as the Commission, acting pursuant to said section 8(a),
may determine.
Explanatory Note
VistaGen
Therapeutics, Inc. is hereby filing this Pre-Effective Amendment
No. 2 to the Registration Statement on Form S-3 (Registration No.
333-215671), originally filed on January 23, 2017 (the
“Registration
Statement”), as an exhibit-only filing to file an
updated consent of OUM & Co., LLP, filed herewith as Exhibit
23.2 (the “Consent”). Accordingly, this
Pre-Effective Amendment No. 2 consists only of the facing page,
this explanatory note, Item 16 of Part II of the Registration
Statement, the signature pages to the Registration Statement, and
the Consent filed herewith as Exhibit 23.2. The prospectus and the
balance of Part II of the Registration Statement are unchanged and
have been omitted.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS
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1.1*
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Form of Underwriting Agreement
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1.2*
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Form of
Placement Agent Agreement
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4.1*
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Form of any certificate of designation with respect to any
preferred stock issued hereunder and the related form of preferred
stock certificate
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4.2*
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Form of any warrant agreement with respect to each particular
series of warrants issued hereunder
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4.3*
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Form of any unit agreement with respect to any unit issued
hereunder
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5.1+
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Opinion of Disclosure Law Group, a Professional
Corporation
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12.1*
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Computation of Ratio of Earnings to Fixed Charges
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23.1+
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Consent of Disclosure Law Group, a Professional
Corporation
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23.2
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Consent of Independent Registered Public Accounting Firm
– OUM & Co., LLP (filed herewith)
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24
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Power of Attorney (located on signature page of the Registration
Statement on Form S-3, filed January 23, 2017)
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*
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To be filed, if necessary, subsequent to the effectiveness of this
registration by an amendment to this registration statement or
incorporation by reference pursuant to a Current Report on
Form 8-K in connection with an offering of
securities.
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+
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Previously filed as an exhibit to Pre-Effective Amendment No. 1 to
the Registration Statement on Form S-3, filed April 4,
2017.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant 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, in the City of South
San Francisco, California on May 11, 2017.
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VISTAGEN THERAPEUTICS, INC.
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By:
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/s/ Shawn K. Singh
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Shawn K. Singh
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Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ *
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Chief Executive Officer, and Director (Principal Executive
Officer)
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Shawn K. Singh
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May 11, 2017
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/s/ *
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Vice President and Chief Financial Officer (Principal Financial and
Accounting Officer)
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Jerrold D. Dotson
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May 11, 2017
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/s/ *
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Chairman of the Board of Directors
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Jon S. Saxe
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May 11, 2017
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/s/ *
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President, Chief Scientific Officer and Director
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H. Ralph Snodgrass, Ph.D.
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May 11, 2017
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/s/ *
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Director
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Brian J. Underdown, Ph.D.
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May 11, 2017
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/s/ *
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Director
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Jerry B. Gin, Ph.D., MBA
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May 11, 2017
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* By: /s/ Shawn K.
Singh
Attorney-in-fact
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We hereby consent to the incorporation by reference, in the
Prospectus constituting a part of this Registration Statement on
Form S-3/A, Amendment No. 2, of our report dated June 24, 2016
relating to the consolidated financial statements of VistaGen
Therapeutics, Inc. appearing in the Company’s Annual Report
on Form 10-K for the fiscal year ended March 31, 2016.
We also
consent to the reference to us under the caption
“Experts” in the
Prospectus.
/s/ OUM
& CO. LLP
San
Francisco, California
May 11,
2017