As filed with the Securities and Exchange Commission on September
30, 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
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
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:
Shawn K. Singh
Chief Executive Officer
VistaGen Therapeutics, Inc.
343 Allerton Avenue
South San Francisco, California 94080
(650) 577-3600
Daniel W. Rumsey, Esq.
Jessica R. Sudweeks, Esq.
Disclosure Law Group,
a Professional Corporation
655 West Broadway, Suite 870
San Diego, California 92101
Tel: (619) 272-7050
Fax: (619) 330-2101
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
of 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, please 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, please check the
following box. [ ]
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company or an emerging growth company. See the
definitions of “large accelerated filer,”
“accelerated filer,” “smaller reporting
company” and “emerging growth company” in
Rule 12b-2 of the Exchange Act.
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Large accelerated filer [ ]
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Accelerated filer [ ]
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Non-accelerated filer [ ]
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Smaller reporting company [X]
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Emerging growth company [ ]
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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 Section 7(a)(2)(B) of the Securities Act.
[ ]
CALCULATION OF REGISTRATION FEE
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Title of each class of securities to
be registered
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Amount to be Registered(1)(2)
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Proposed
Maximum
Offering Price Per Unit(1)(3)
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Proposed
Maximum
Aggregate
Offering Price(1)(3)
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Amount of
Registration
Fee(4)
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Common
Stock, par value $0.001 per share
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—
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—
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—
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$—
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Preferred
Stock, par value $0.001 per share
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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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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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$150,000,000
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$150,000,000
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$18,180.00
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(1)
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This
registration statement covers the registration of such
indeterminate number of shares of common stock, such indeterminate
number of shares of preferred stock; such indeterminate number of
warrants to purchase shares of common stock, shares of preferred
stock and /or units; and such indeterminate number of units as may
be sold by the registrant from time to time, which together shall
have an aggregate initial offering price not to exceed
$150,000,000. Any securities registered hereunder may be sold
separately, together or as units with any other securities
registered. Any unit sold hereunder will represent an interest in
two or more other securities, which may or may not be separable
from one another. The securities registered hereunder also include
such indeterminate number of shares of common stock and preferred
stock, and such indeterminate number of warrants, as may be issued
upon the conversion of, or exchange for, preferred stock; upon the
exercise of warrants; or pursuant to the customary anti-dilution
provisions of any such securities (e.g., stock-splits, stock
dividends and the like). Separate consideration may or may not be
received for securities that are issuable upon conversion of, or in
exchange for, or upon exercise of, convertible or exchangeable
securities. In addition, pursuant to Rule 416 under the Securities
Act of 1933, as amended (the “Securities Act”), the securities
being registered hereunder include such indeterminate number of
shares of common stock or 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 effected
without the receipt of consideration which result in an increase in
the number of our outstanding shares of common stock or preferred
stock.
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(2)
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The
common stock to be issued pursuant to this registration statement
may include the issuance of up to 1,388,931 shares of common
stock (the “Series A1
Warrant Shares”) issuable pursuant to the potential
future exercise of currently outstanding Series A1 warrants (the
“Series A1
Warrants”) with an exercise price of $1.82 per share
and a term expiring on or about March 7, 2023, the date which is
five years from the date of issuance. The Series A1 Warrants and
the Series A1 Warrant Shares were previously registered on the
registrant’s registration statement on
Form S-3 (File No. 333-215671) (the
“Prior Registration
Statement”), which was originally filed with the
Securities and Exchange Commission (the “SEC”) on January 23, 2017 and
declared effective by the SEC on July 27, 2017. Pursuant to Rule
415(a)(6) and Rule 429 under the Securities Act, the offering of
the Series A1 Warrant Shares will be registered pursuant to this
registration statement.
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(3)
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Estimated
solely for the purpose of calculating the registration fee in
accordance with Rule 457(o) of the Securities Act. The proposed
maximum aggregate offering price per class of security will be
determined, from time to time, by the registrant in connection
with, and at the time of, the issuance of the securities registered
pursuant to this registration statement and is not specified as to
each class of security pursuant to General Instruction II.D. of
Form S-3. The proposed maximum initial offering prices
per unit will be determined, from time to time, by the registrant
in connection with, and at the time of, the issuance of the
securities.
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(4)
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Pursuant
to Rule 457(o) under the Securities Act, the registration
fee is calculated based on the proposed maximum offering price of
the securities being registered. Pursuant to
Rule 415(a)(6) under the Securities Act, this
registration statement covers a total of $82,220,224 of securities
that were previously registered pursuant to the Prior Registration
Statement, but which remain unsold as of the date hereof (the
“Unsold
Securities”). The Unsold Securities are being carried
forward to and registered on this registration statement. In
connection with the registration of the Unsold Securities on the
Prior Registration Statement, the registrant previously paid a
registration fee of $9,978.99. Pursuant to Rule 415(a)(6) under the
Securities Act, (i) the registration fee applicable to the
Unsold Securities is being carried forward to this registration
statement and will continue to be applied to the Unsold Securities,
and (ii) the offering of the Unsold Securities registered on
the Prior Registration Statement will be deemed terminated as of
the date of effectiveness of this registration statement.
Accordingly, the Registrant is paying a registration fee of
$8,201.01 with the filing of this registration statement. If the
registrant sells any of the Unsold Securities pursuant to the Prior
Registration Statement after the date of the initial filing, and
prior to the date of effectiveness, of this registration statement,
the registrant will file a pre-effective amendment to
this registration statement, which will reduce the number of Unsold
Securities included on this registration statement.
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The registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities
Act of 1933 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.
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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 it is not soliciting an offer to buy these securities in any
jurisdiction where the offer or sale is not permitted.
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PRELIMINARY
PROSPECTUS
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SUBJECT TO COMPLETION
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DATED SEPTEMBER 30, 2019
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$150,000,000
COMMON STOCK
PREFERRED STOCK
WARRANTS
UNITS
From time to time, we may offer and sell, in one or more offerings,
up to approximately $147.1 million of any combination of the
securities described in this prospectus. We may also offer
securities as may be issuable upon conversion, repurchase, exchange
or exercise of any securities registered hereunder, including
applicable anti-dilution provisions, if any. Any warrants sold
hereunder may be exercisable for shares of our common stock, shares
of our preferred stock and/or units. Any units sold hereunder will
represent an interest in two or more other securities, which may or
may not be separable from one another. The shares of our
common stock that may become issuable from time to time upon the
exercise of our Series A1 Warrants (as defined herein) are also
being offered pursuant to this prospectus.
This prospectus provides a general description of the securities we
may offer from time to time. Each time we offer securities, we will
provide specific terms of the securities offered in a supplement to
this prospectus. We may also authorize one or more free writing
prospectuses to be provided to you in connection with an offering.
The prospectus supplement and any related free writing prospectus
may also add, update or change information contained in this
prospectus. You should carefully read this prospectus, the
applicable prospectus supplement and any related free writing
prospectus, as well as any documents incorporated by reference,
before you invest in any of the securities being
offered.
Our
common stock is listed on the Nasdaq Capital Market under the
symbol “VTGN.” On September 27, 2019, the closing price of our common
stock on the Nasdaq Capital Market was $1.14 per share.
We may offer and sell our securities to or through one or more
agents, underwriters, dealers or other third parties or directly to
one or more purchasers on a continuous or delayed basis. If agents,
underwriters or dealers are used to sell our securities, we will
name them and describe their compensation in a prospectus
supplement. The price to the public of our securities and the net
proceeds we expect to receive from the sale of such securities will
also be set forth in a prospectus supplement. For additional
information on the methods of sale, you should refer to the section
entitled “Plan of
Distribution” in this
prospectus.
As of September 30, 2019, the aggregate market value of our
outstanding common stock held by non-affiliates was approximately
$54,677,141, which was calculated in accordance with General
Instruction I.B.6 of Form S-3, based on 42,385,381 shares of
outstanding common stock held by non-affiliates, at a price per
share of $1.29, the closing sale price of our common stock reported
on the Nasdaq Capital Market on September 20, 2019.
Pursuant to General Instruction I.B.6 of Form S-3, in no event will
we sell the securities described in this prospectus in a public
primary offering with a value exceeding more than one-third (1/3)
of the aggregate market value of our common stock held by
non-affiliates in any twelve (12)-month period, so long as the
aggregate market value of our outstanding common stock held by
non-affiliates remains below $75.0 million. During the twelve (12)
calendar months prior to and including the date of this prospectus,
we have offered and sold $11.5 million of securities pursuant to
General Instruction I.B.6 of Form S-3. As a result, we are
currently eligible to offer and sell up to an aggregate of
approximately $6.7 million of our securities pursuant to General
Instruction I.B.6. of Form S-3.
Our business and investing in our
securities involve significant risks. You should review carefully
the risks and uncertainties referenced under the heading
“Risk
Factors” on page 6 of
this prospectus, as well as those contained in the applicable
prospectus supplement and any related free writing prospectus, and
in the other documents that are incorporated by reference into this
prospectus or the applicable prospectus
supplement.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is ,
2019
VISTAGEN THERAPEUTICS, INC.
TABLE OF CONTENTS
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PAGE
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ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement filed with the
Securities and Exchange Commission
(the “SEC”), using a “shelf” registration
process. Under this shelf registration process, we may sell
the securities described in this prospectus in one or more
offerings. This prospectus provides you with a general
description of the securities which may be offered from
time-to-time. Each time we offer securities for sale, we will
provide a prospectus supplement that contains information about the
specific terms of that offering. Any prospectus supplement may also
add or update information contained in this prospectus. You
should read both this prospectus and any prospectus supplement
together with additional information described below under
“Where You Can Find More
Information” and
“Incorporation of Certain
Information by Reference.”
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
You should rely only on the information contained or incorporated
by reference in this prospectus, and in any prospectus
supplement. We have not authorized any other person to provide
you with different information. If anyone provides you with
different or inconsistent information, you should not rely on
it. We are not making offers to sell or solicitations to buy
the securities described in this prospectus in any jurisdiction in
which an offer or solicitation is not authorized, or in which the
person making that offer or solicitation is not qualified to do so
or to anyone to whom it is unlawful to make an offer or
solicitation. You should not assume that the information in
this prospectus or any prospectus supplement, as well as the
information we file or previously filed with the SEC that we
incorporate by reference in this prospectus or any prospectus
supplement, is accurate as of any date other than its respective
date. Our business, financial condition, results of operations
and prospects may have changed since those dates.
This prospectus contains summaries of certain provisions contained
in some of the documents described herein, but reference is made to
the actual documents for complete information. All of the summaries
are qualified in their entirety by the actual documents. Copies of
some of the documents referred to herein have been filed, will be
filed or will be incorporated by reference as exhibits to the
registration statement of which this prospectus is a part, and you
may obtain copies of those documents as described below under the
heading “Where You Can Find More
Information.”
COMPANY OVERVIEW
This summary highlights information contained elsewhere in this
prospectus. This summary does not contain all the information you
should consider before buying our securities. You should read the
following summary together with the more detailed information
appearing in this prospectus, including the section titled
“Risk Factors” on page 6, before deciding whether to
purchase our securities.
In this prospectus, unless otherwise stated or the context
otherwise requires, references to “VistaGen,”
“Company,” “we,” “us,”
“our,” refer to VistaGen Therapeutics,
Inc.
Overview
We are a clinical-stage biopharmaceutical company committed to
developing differentiated new generation medications for central
nervous system (CNS) diseases and disorders with high unmet need. Our
product candidate portfolio includes three differentiated
clinical-stage candidates, AV-101, PH10 and PH94B, which we are
developing for multiple CNS indications. We aim to become a
fully-integrated biopharmaceutical company that develops and
commercializes innovative CNS therapies for large and growing
mental health and neurology markets where current treatments are
inadequate to meet the needs of millions of patients and caregivers
worldwide.
AV-101 (4-Cl-KYN) belongs to a new generation of investigational
medicines in neuropsychiatry and neurology known as NMDA
(N-methyl-D-aspartate) glutamate receptor modulators. The NMDA
receptor is a pivotal receptor in the brain and abnormal NMDA
function is associated with multiple CNS diseases and disorders,
including major depressive disorder (MDD), chronic neuropathic pain, epilepsy,
levodopa-induced dyskinesia and many others. AV-101 is an oral
prodrug of 7-Cl-KYNA which binds uniquely at the glycine site of
the NMDA receptor. We are developing AV-101 initially for the
treatment of MDD, a serious neurobiologically-based mood disorder
the leading cause of disability globally, affecting approximately
16 million adults in the United States and nearly 300 million
people worldwide according to the U.S. National Institutes of
Health (NIH). AV-101 is currently in Phase 2 development in
the U.S. as an add-on treatment (together with current FDA-approved
antidepressants (SSRIs and SNRIs)) for adult patients with MDD who
have an inadequate response to their current antideperssant. The
FDA has granted Fast Track designation for development of AV-101 as
an add-on, or adjunctive, treatment for MDD. We believe AV-101 has
potential as a novel treatment for multile additional CNS
indivcations, including as a non-opioid treatment for chronic
neuropathic pain, for which the FDA has granted a second AV-101
Fast Track designation, as well as a novel oral therapy for
levodopa-induced dyskinesia associated with Parkinson’s
disease therapy and suicidal ideation.
Our second product candidate, PH10, is a novel, rapid-acting CNS
neuroactive nasal spray administered in microgram doses. PH10
activates nasal chemosensory receptors that, in turn, engage neural
circuits that lead to rapid antidepressant effects without
psychological side effects, systemic exposure or safety concerns
often associated with current antidepressants and ketamine-based
therapy (intravenous ketamine or esketamine nasal spray). In
an exploratory 30-patient Phase 2a clinical study, PH10 was
well-tolerated and, at microgram doses, demonstrated rapid-onset
antidepressant effects, as measured by the Hamilton Depression
Rating Scale (HAM-D), without psychological side effects or safety
concerns. Based on positive results from this exploratory Phase 2a
study, we are planning Phase 2b clinical development of PH10 in
2020, initially as a new stand-alone treatment for MDD. With its
exceptional safety profile during clinical development to date,
PH10 also has potential to change the current paradigm for
treatment of treatment-resistant depression (TRD) with ketamine-based therapy (intravenous
ketamine or esketamine nasal spray, both of which must be
administered in a clinical setting), by enabling those who respond
to such therapy to transition to more convenient at-home
administration of PH10 to maintain the therapeutic benefits of
ketamine or esketamine.
Our third product candidate, PH94B, is also a novel, rapid-acting
CNS neuroactive nasal spray administered in microgram doses. We are
developing PH94B initially for treatment of social anxiety disorder
(SAD), which affects over 19 million Americans and is
the third most common psychiatric condition after depression and
substance abuse according to the NIH. SAD is characterized by a
persistent and unreasonable fear of one or more social or
performance situations, where the individual fears that he or she
will act in a way or show symptoms that will be embarrassing or
humiliating, leading to avoidance of the situations when possible
and anxiety or distress when they occur. These fears have a
significant impact on the person's employment, social activities
and overall quality of life. Only three drugs, all antidepressants,
are approved by the U.S Food and Drug Administration
(FDA) specifically for treatment of SAD. However, for
treatment of both MDD and SAD, current oral antidepressants
(ADs) have slow onset of effect (often several weeks
to months) and significant side effects that may make them
inadequate treatment alternatives for many individuals affected by
MDD and SAD.
PH94B is fundamentally differentiated from all current treatments
for SAD. PH94B activates nasal chemosensory receptors that, in
turn, engage neural circuits that lead to rapid suppression of fear
and anxiety, but without psychological side effects, systemic
exposure, sedation or other safety concerns often associated with
current antidepressants approved by the FDA for treatment of SAD,
as well as benzodiazepines and beta blockers, which are not
approved by the FDA to treat SAD but are often prescribed for
treatment of SAD off-label. In a peer-reviewed, published
double-blind, placebo-controlled Phase 2 clinical trial, PH94B
neuroactive nasal spray was significantly more effective than
placebo in reducing public-speaking and social interaction anxiety
on laboratory challenges of individuals with SAD within 10 to 15
minutes of self-administration. Based on its novel mechanism of pharmacological
action, rapid-onset of therapeutic effects and exceptional safety
and tolerability profile in Phase 2 clinical trials to date, we are
preparing to begin pivotal Phase 3 development of PH94B neuroactive
nasal spray to become the first FDA-approved on-demand treatment
for SAD. Additional potential CNS indications for PH94B include,
general anxiety disorder (GAD), peripartum anxiety, preoperative anxiety, panic
disorder and post-tramautic stress disorder (PTSD).
In addition to our current CNS product candidates, we have
pipeline-enabling programs through our wholly-owned subsidiary,
VistaStem Therapeutics (VistaStem). VistaStem is focused on applying pluripotent
stem cell (hPSC) technology to discover, rescue, develop and
commercialize proprietary new chemical entities
(NCEs)
for CNS and other diseases and regenerative medicine
(RM) involving hPSC-derived blood, cartilage, heart
and liver cells. Our internal drug rescue programs are designed to
utilize CardioSafe
3D, our customized cardiac
bioassay system, to discover and develop small molecule NCEs for
our CNS pipeline or for out-licensing. To advance potential RM
applications of our cardiac stem cell technology, we have
sublicensed to BlueRock Therapeutics LP, a next generation cell
therapy and RM company recently acquired by Bayer AG
(BlueRock
Therapeutics), rights to
certain proprietary technologies relating to the production of
cardiac stem cells for the treatment of heart disease
(the BlueRock
Agreement). In a manner
similar to the BlueRock Agreement, we may pursue additional
collaborations or licensing transactions involving blood,
cartilage, and/or liver cells derived from hPSCs for cell-based
therapy, cell repair therapy, RM and/or tissue
engineering.
Securities Offerings under Prior Registration
Statement
On August 31, 2017, we entered into an underwriting agreement with
Oppenheimer & Co. Inc., relating to the issuance and sale (the
“September 2017
Public Offering”) of 1,371,430 shares of our common stock
and warrants to purchase an aggregate total of 1,892,572 shares of
our common stock, consisting of Series A1 Warrants to purchase up
to 1,388,931 shares of common stock and Series A2 Warrant to
purchase up to 503,641 shares of common stock (the Series A1
Warrants and Series A2 Warrants are collectively referred herein as
the “Warrants”). Each share of common stock was sold
together with 1.0128 Series A1 Warrants, each whole Series A1
Warrant to purchase one share of common stock, and 0.3672 of a
Series A2 Warrant, each whole Series A2 Warrant to purchase one
share of common stock, at a public offering price of $1.75 per
share and related Warrants.
Each Series A1 Warrant became exercisable six months from the date
of issuance, while the Series A2 Warrants were immediately
exercisable. Both Warrants have an exercise price of $1.82 per
whole share, and expire five years from the date first exercisable.
In December 2017 and January 2018, all of the Series A2 Warrants
were exercised at the reset exercise price resulting from a
subsequent public offering of shares of our common stock and
warrants completed in December 2017, from which we received nominal
cash proceeds. As of the date of this prospectus, all Series A1
Warrants offered and sold in the September 2017 Public Offering
remain outstanding.
Risk Factors
Our business is subject to substantial risk. Please carefully
consider the section titled “Risk
Factors” on page 6 of
this prospectus for a discussion of the factors you should
carefully consider before deciding to purchase securities that may
be offered by this prospectus.
Additional risks and uncertainties not presently known to us or
that we currently deem immaterial may also impair our business
operations. The
occurrence of any of these known or unknown risks might cause you
to lose all or part of your investment in the offered
securities.
Risks Related to our Common Stock and our Series A1
Warrants
The price of our common stock might fluctuate significantly, which
could reduce the value of our Series A1 Warrants.
Our common stock is listed for trading on the Nasdaq Capital Market
under the symbol “VTGN.” Our stock price has been and
could continue to be subject to wide fluctuations in response to a
variety of factors, including the following:
●
plans
for, progress of or results from nonclinical and clinical
development activities related to our product
candidates;
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the
failure of the FDA or other regulatory authority to approve our
product candidates;
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announcements
of new products, technologies, commercial relationships,
acquisitions or other events by us or our competitors;
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the
success or failure of other CNS therapies;
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regulatory
or legal developments in the U.S. and other countries;
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announcements
regarding our intellectual property portfolio;
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failure
of our product candidates, if approved, to achieve commercial
success;
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fluctuations
in stock market prices and trading volumes of similar
companies;
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general
market conditions and overall fluctuations in U.S. equity
markets;
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variations
in our quarterly operating results;
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changes
in our financial guidance or securities analysts’ estimates
of our financial performance;
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changes
in accounting principles;
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our
ability to raise additional capital and the terms on which we can
raise it;
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sales
or purchases of large blocks of our common stock, including sales
or purchases by our executive officers, directors and significant
stockholders;
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establishment of
short positions by holders or non-holders of our stock or
warrants;
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additions
or departures of key personnel;
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discussion
of us or our stock price by the press and by online investor
communities; and
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other
risks and uncertainties described in these risk factors, and the
risk factors incorporated by reference into this
prospectus.
These and other factors might cause the market price of our common
stock to fluctuate substantially, which may negatively affect the
liquidity of our common stock. In addition, in recent years, the
stock market has experienced significant price and volume
fluctuations. This volatility has had a significant impact on the
market price of securities issued by many companies across many
industries. The changes frequently appear to occur without regard
to the operating performance of the affected companies.
Accordingly, the price of our common stock could fluctuate based
upon factors that have little or nothing to do with our company,
and these fluctuations could materially reduce the market price of
our common stock and the value of the Series A1
Warrants.
Securities class action litigation has often been instituted
against companies following periods of volatility in the overall
market and in the market price of a company’s securities.
This litigation, if instituted against us, could result in
substantial costs, divert our management’s attention and
resources, and harm our business, operating results and financial
condition.
There is no public market
for our Series A1
Warrants and the liquidity of our Series A1 Warrants may be
limited.
There is no established public trading market for our Series A1
Warrants, and we do not expect a market to develop. In addition, we
do not intend to apply for the listing of our Series A1 Warrants on
any national securities exchange or other trading market. Without
an active market, we expect the liquidity of our Series A1 Warrants
will be limited, which may negatively impact the value of our
Series A1 Warrants.
Holders of our Series A1 Warrants will generally not have rights as
a common stockholder until such holders exercise their Series A1
Warrants and acquire our common stock.
Except as set forth in our Series A1 Warrants, holders of our
Series A1 Warrants will generally not have rights with respect to
the Series A1 Warrant Shares underlying the Series A1 Warrants.
Upon exercise of the Series A1 Warrants, the holders thereof will
be entitled to exercise the rights of a common stockholder only as
to matters for which the record date occurs after the exercise
date.
Due to the speculative nature of our Series A1 Warrants, there is
no guarantee that it will ever be profitable for holders of our
Series A1 Warrants to exercise their Series A1
Warrants.
Holders of Series A1 Warrants may exercise their right to acquire
the Series A Warrant Shares by paying an exercise price of $1.82
per share prior to their expiration on or about March 7, 2023,
after which date any unexercised Series A1 Warrants will expire and
have no further value. There can be no assurance that the market
price of our common stock will ever equal or exceed the exercise
price of the Series A1 Warrants, and, consequently, whether it will
ever be profitable for holders to exercise their Series A1
Warrants.
Significant holders or beneficial holders of our common stock may
not be permitted to exercise Series A1 Warrants that they
hold.
The terms of the Series A1 Warrants prohibit holders from
exercising their Series A1 Warrants if doing so would result in
such holders (together with such holders’ affiliates)
beneficially owning more than 4.99% (which threshold may be
decreased or increased, but not above 9.99%, at the election of the
holders upon prior written notice to us) of the number of shares of
common stock outstanding immediately after giving effect to the
exercise, as such percentage ownership is determined in accordance
with the terms of the Series A1 Warrants. As a result, holders of
the Series A1 Warrants may not be able to exercise our Series A1
Warrants for Series A1 Warrant Shares at a time when it would be
financially beneficial for them to do so.
We have broad discretion to determine how any funds received in
connection with any offering will be used, and may use them in ways
that may not enhance our operating results or the price of our
common stock.
Our management will have broad discretion over the use of proceeds
received from any offering pursuant to this registration statement,
including upon the exercise of the Series A1 Warrants, and we could
spend the proceeds in ways in which our investors do not agree or
that do not yield a favorable return. If we do not invest or apply
the proceeds of any offering in ways that improve our operating
results, we may fail to achieve expected financial results, which
could cause the market price of our common stock and the value of
our Series A1 Warrants to decline.
We do not intend to pay cash dividends.
We have never declared or paid cash dividends on our common stock
or other securities. We currently intend to retain all available
funds and any future earnings for use in the operation and
expansion of our business and do not anticipate paying any cash
dividends in the foreseeable future. Accordingly, investors may
have to sell some or all of their shares of our common stock in
order to generate cash flow from their investment. Investors may
not receive a gain on their investment when they sell their shares
of our common stock and may lose the entire amount of their
investment.
Corporate Information
VistaGen Therapeutics, Inc., a Nevada corporation, is the parent of
VistaGen Therapeutics, Inc. (dba VistaStem Therapeutics, Inc.), a
wholly owned California corporation founded in 1998. Our principal
executive offices are located at 343 Allerton Avenue, South San
Francisco, California 94080, and our telephone number is (650)
577-3600. Our website address is www.vistagen.com.
The information contained on our website is not part of this
prospectus. We have included our website address as a factual
reference and do not intend it to be an active link to our
website.
RISK FACTORS
Investing in our securities involves a high degree of risk. Before
deciding whether to purchase any of our securities, you should
carefully consider the risks and uncertainties described under
“Risk
Factors” on page 6 of
this prospectus and in our Annual Report on Form 10-K for the
fiscal year ended March 31, 2019, our Quarterly Report on Form 10-Q
for the period ended June 30, 2019 and our other filings with the
SEC, all of which are incorporated by reference herein. If any of
these risks actually occur, our business, financial condition and
results of operations could be materially and adversely affected
and we may not be able to achieve our goals, the value of our
securities could decline and you could lose some or all of your
investment. Additional risks not presently known to us or that we
currently deem immaterial may also impair our business operations.
If any of these risks occur, the trading price of our common stock
could decline materially and you could lose all or part of your
investment.
CAUTIONARY NOTES REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference herein
contain forward-looking statements that involve substantial risks
and uncertainties. All statements, other than statements of
historical facts, contained in this
prospectus and the documents incorporated by reference herein,
including statements regarding our strategy, future operations, future
financial position, future revenue, projected costs, prospects,
plans, objectives of management and expected market growth, are
forward-looking statements. These statements involve known and
unknown risks, uncertainties and other important factors that may
cause our actual results, performance or achievements to be
materially different from any future results, performance or
achievements expressed or implied by the forward-looking
statements.
The words “anticipate,” “believe,”
“estimate,” “expect,” “intend,”
“may,” “plan,” “predict,”
“project,” “target,”
“potential,” “will,” “would,”
“could,” “should,” “continue,”
and similar expressions are intended to identify forward-looking
statements, although not all forward-looking statements contain
these identifying words. These forward-looking statements include,
among other things, statements about:
●
the availability of
capital to satisfy our working capital requirements and clinical
and nonclinical development objectives;
●
the accuracy of our
estimates regarding expenses, future revenues and capital
requirements;
●
our
plans to develop and commercialize our product candidates,
including, among other things, AV-101, initially as an add-on
treatment for MDD, and subsequently as a treatment for additional
diseases and disorders involving the CNS, PH94B, initially, as a
treatment for SAD and PH10, initially, as a stand-alone treatment
for MDD;
●
our
ability to initiate and complete necessary preclinical and clinical
trials, to advance our product candidates into additional
preclinical and clinical trials, including pivotal clinical trials,
to successfully complete any such preclinical and clinical trials,
and for those trials to generate positive results;
●
economic,
regulatory and political developments in the U.S. and foreign
countries;
●
the performance of the Department of Veterans
Affairs (VA), Baylor University, our third-party contract
manufacturer(s) (CMOs), contract research organizations
(CROs) and other third-party preclinical and clinical
drug development collaborators and regulatory service
providers;
●
our ability to obtain and maintain intellectual
property (IP) protection for our core assets, including our
product candidates;
●
the
size of the potential markets for our product candidates and our
ability to enter and serve those markets;
●
the
rate and degree of market acceptance of our product candidates for
any indication once approved;
●
the
success of competing products and product candidates in development
by others that are or become available for the indications that we
are pursuing in the markets we seek to enter on our own or with
collaborators;
●
the
loss of key scientific, clinical or nonclinical development,
regulatory, and/or management personnel, internally or from one or
more of our third-party collaborators; and
●
other risks and
uncertainties, including those listed in the “Risk Factors” section of this
prospectus and the documents incorporated by reference
herein.
These forward-looking statements are only predictions and we may
not actually achieve the plans, intentions or expectations
disclosed in our forward-looking statements, so you should not
place undue reliance on our forward-looking statements. Actual
results or events could differ materially from the plans,
intentions and expectations disclosed in the forward-looking
statements we make. We have based these forward-looking statements
largely on our current expectations and projections about future
events and trends that we believe may affect our business,
financial condition and operating results. We have included
important factors in the cautionary statements included in this
prospectus, particularly in the “Risk
Factors” sections in
this prospectus and the documents incorporated by reference herein,
that we believe could cause actual results or events to differ
materially from the forward-looking statements that we
make. Our forward-looking
statements do not reflect the potential impact of any future
acquisitions, mergers, dispositions, joint ventures or investments
we may make.
You should read this prospectus, the documents incorporated by
reference herein and the documents that we have filed as exhibits
to the registration statement of which this prospectus is a part
completely and with the understanding that our actual future
results may be materially different from what we expect. We qualify
all of the forward-looking statements in this prospectus and the
documents incorporated by reference herein by these cautionary
statements. Except as required by law, we undertake no obligation
to publicly update any forward-looking statements, whether as a
result of new information, future events or otherwise.
USE OF
PROCEEDS
Unless otherwise provided in the applicable prospectus supplement,
we intend to use the net proceeds from the sale of
the securities under this prospectus primarily for
research and development expenses associated with continuing
development of AV-101, PH10, PH94B,
potential drug rescue candidates, and for other working
capital and capital expenditures. We may use a portion of the net
proceeds to fund production of, and nonclinical and clinical
studies related to Phase 2 and Phase 3 development of, AV-101, PH10
and PH94B and our other drug candidates. We may also use the net
proceeds from the sale of the securities under this prospectus
to in-license, acquire or invest in complementary businesses,
technologies, products or assets. However, we have no current
commitments or obligations to do so.
Pending other uses, we intend to invest our proceeds from the
offering in short-term investments or hold them as cash. We cannot
predict whether the proceeds invested will yield a favorable
return. Our management will have broad discretion in the use of the
net proceeds from this offering, and investors will be relying on
the judgment of our management regarding the application of the net
proceeds
DESCRIPTION OF OUR
CAPITAL STOCK
General
Our
authorized capital stock consists of 175.0 million shares of common
stock, $0.001 par value per share (“Common Stock”), and 10.0 million
shares of preferred stock, $0.001 par value per share
(“Preferred
Stock”). The following is a description of our common
stock and certain provisions of our Restated Articles of
Incorporation (“Articles”), and our amended and
restated bylaws (“Bylaws”), and certain provisions
of Nevada law.
As of
September 30, 2019, there were
issued and outstanding, or reserved for issuance:
●
42,622,965 shares of common stock held by
approximately 6,000
stockholders of record;
●
750,000 shares of common stock reserved for
issuance upon conversion of 500,000 shares our Series A Preferred held
by one institutional investor and one accredited individual
investor;
●
1,160,240 shares of common stock reserved
for issuance upon conversion of 1,160,240 shares of our Series B Preferred
held by two institutional investors;
●
2,318,012 shares of common stock reserved
for issuance upon conversion of 2,318,012 shares of our Series C Preferred
held by one institutional investor;
●
21,242,954 shares of common stock that have
been reserved for issuance upon exercise of outstanding warrants,
with a weighted average exercise price of $2.43 per share;
●
7,844,838 shares of common stock reserved
for issuance upon exercise of outstanding stock options under our
Amended and Restated 2016 Stock Incentive Plan, with a weighted
average exercise price of $1.76 per share;
●
170,000 shares of
common stock reserved for issuance upon exercise of outstanding
stock options under our 2019 Omnibus Equity Incentive Plan, with a
weighted average exercise price of $1.00 per share,
and
●
8,718,412 shares of common stock reserved
for future issuance in connection with future grants under our 2019
Omnibus Equity Incentive Plan.
We may
elect or be required to amend our Articles to increase the number
of shares of common stock authorized for issuance prior to
completing sales of shares of our common stock, or securities
convertible and/or exchangeable into shares of our common stock
described in this prospectus.
Common Stock
This section describes the general terms of our common stock that
we may offer from time to time. For more detailed information, a
holder of our common stock should refer to our Articles and our
Bylaws, copies of which are filed with the SEC as exhibits to the
registration statement of which this prospectus is a
part.
Except
as otherwise expressly provided in our Articles, or as required by
applicable law, all shares of our common stock have the same rights
and privileges and rank equally, share ratably and are identical in
all respects as to all matters, including, without limitation,
those described below. All outstanding shares of common stock are
fully paid and nonassessable.
Voting Rights
Each
holder of our common stock is entitled to cast one vote for each
share of common stock held on all matters submitted to a vote of
stockholders. Cumulative voting for election of directors is not
allowed under our Articles, which means that a plurality of the
shares voted can elect all of the directors then outstanding for
election. Except as otherwise provided under Nevada law or our
Articles, and Bylaws, on matters other than election of directors,
action on a matter is approved if the votes cast favoring the
action exceed the votes cast opposing the action.
Dividend Rights
The
holders of outstanding shares of our common stock are entitled to
receive dividends out of funds legally available, if our board of
directors, in its discretion, determines to issue dividend, and
only at the times and in the amounts that our board of directors
may determine. Our board of directors is not obligated to declare a
dividend. We have not paid any dividends in the past and we do not
intend to pay dividends in the foreseeable future.
Liquidation Rights
Upon
our liquidation, dissolution or winding-up, the holders of our
common stock will be entitled to share equally, identically and
ratably in all assets remaining, subject to the prior satisfaction
of all outstanding debt and liabilities and the preferential rights
and payment of liquidation preferences, if any, on any outstanding
shares of preferred stock.
No Preemptive or Similar Rights
Our
common stock is not subject to conversion, redemption, sinking fund
or similar provisions.
Transfer Agent and Registrar
The
transfer agent and registrar for our common stock is Computershare
Trust Company, N.A., Jersey City, New Jersey.
September 2017 Public Offering and Series A1 Warrant
Shares
On August 31, 2017, we entered into an underwriting agreement with
Oppenheimer & Co. Inc., relating to the issuance and sale (the
“September 2017
Public Offering”) of 1,371,430 shares of our common stock
and warrants to purchase an aggregate total of 1,892,572 shares of
our common stock, consisting of Series A1 Warrants to purchase up
to 1,388,931 shares of common stock and Series A2 Warrant to
purchase up to 503,641 shares of common stock (the Series A1
Warrants and Series A2 Warrants are collectively referred herein as
the “Warrants”). Each share of common stock was sold
together with 1.0128 Series A1 Warrants, each whole Series A1
Warrant to purchase one share of common stock, and 0.3672 of a
Series A2 Warrant, each whole Series A2 Warrant to purchase one
share of common stock, at a public offering price of $1.75 per
share and related Warrants.
Each Series A1 Warrant became exercisable six months from the date
of issuance, while the Series A2 Warrants were immediately
exercisable. Both Warrants have an exercise price of $1.82 per
whole share, and expire five years from the date first exercisable.
In December 2017 and January 2018, all of the Series A2 Warrants
were exercised at the reset exercise price resulting from a
subsequent public offering of shares of our common stock and
warrants completed in December 2017, from which we received nominal
cash proceeds. As of the date of this prospectus, all Series A1
Warrants offered and sold in the September 2017 Public Offering
remain outstanding.
Preferred Stock
This section describes the general terms and provisions of our
outstanding shares of preferred stock, as well as preferred stock
that we may offer from time to time. The applicable prospectus
supplement will describe the specific terms of the shares of
preferred stock offered through that prospectus supplement, which
may differ from the terms we describe below. We will file a
copy of the certificate of designation that contains the terms of
each new series of preferred stock with the SEC each time we issue
a new series of preferred stock, and these certificates of
designation will be incorporated by reference into the registration
statement of which this prospectus is a part. Each certificate of
designation will establish the number of shares included in a
designated series and fix the designation, powers, privileges,
preferences and rights of the shares of each series as well as any
applicable qualifications, limitations or restrictions. A holder of
our preferred stock should refer to the applicable certificate of
designation, our Articles and the applicable prospectus supplement
(and any related free writing prospectus that we may authorize to
be provided to you) for more specific information.
We are
authorized, subject to limitations prescribed by Nevada law, to
issue up to 10.0 million shares of preferred stock in one or more
series, to establish from time to time the number of shares to be
included in each series and to fix the designation, powers,
preferences and rights of the shares of each series and any of its
qualifications, limitations or restrictions. Our board of directors
can increase or decrease the number of shares of any series, but
not below the number of shares of that series then outstanding,
without any further vote or action by our stockholders. Our board
of directors may authorize the issuance of preferred stock with
voting or conversion rights that could adversely affect the voting
power or other rights of the holders of the common stock. The
issuance of preferred stock, while providing flexibility in
connection with possible acquisitions and other corporate purposes,
could, among other things, have the effect of delaying, deferring
or preventing a change in control of the Company and may adversely
affect the market price of our common stock and the voting and
other rights of the holders of our common stock.
Outstanding Series of Preferred Stock
Currently,
there are three series of our preferred stock outstanding- Series A
Convertible Preferred Stock, Series B 10% Convertible Preferred
Stock, and Series C Convertible Preferred Stock. The rights and
preferences associated with each series are summarized
below.
Series A Preferred
General
In December 2011, our Board authorized the creation of a series of
up to 500,000 shares of Series A Preferred, par value $0.001
(Series A
Preferred). Each
restricted share of Series A Preferred is currently convertible at
the option of the holder into one and one-half restricted shares of
our common stock. The Series A Preferred ranks prior to
the common stock for purposes of liquidation
preference.
Conversion and Rank
At
September 30, 2019, there were
500,000 shares of Series A Preferred outstanding, which shares are
currently subject to beneficial ownership blockers and are
exchangeable at the option of the holders into an aggregate of
750,000 shares of our common stock. The Series A Preferred ranks
prior to our common stock for purposes of liquidation
preference.
Conversion Restriction
At no
time may a holder of shares of Series A Preferred convert shares of
the Series A Preferred if the number of shares of common stock to
be issued pursuant to such conversion would result in such holder
beneficially owning (as determined in accordance with Section 13(d)
of the Exchange Act and the rules thereunder) more than 9.99% of
all of the common stock outstanding at such time; provided, however, that this limitation may be
waived upon sixty-one (61) days’ notice to us.
Dividend Rights
The
Series A Preferred has no separate dividend rights. However,
whenever the board of directors declares a dividend on the common
stock, each holder of record of a share of Series A Preferred, or
any fraction of a share of Series A Preferred, on the date set by
the board of directors to determine the owners of the common stock
of record entitled to receive such dividend (Record Date) shall be entitled to
receive out of any assets at the time legally available therefor,
an amount equal to such dividend declared on one share of common
stock multiplied by the number of shares of common stock into which
such share, or such fraction of a share, of Series A Preferred
could be exchanged on the Record Date.
Voting Rights
The
Series A Preferred has no voting rights, except with respect to
transactions upon which the Series A Preferred shall be entitled to
vote separately as a class. The common stock into which the Series
A Preferred is exchangeable shall, upon issuance, have all of the
same voting rights as other issued and outstanding shares of our
common stock.
Liquidation Rights
In the
event of the liquidation, dissolution or winding up of our affairs,
after payment or provision for payment of our debts and other
liabilities, the holders of Series A Preferred then outstanding
shall be entitled to receive, out of our assets, if any, an amount
per share of Series A Preferred calculated by taking the total
amount available for distribution to holders of all of our
outstanding common stock before deduction of any preference
payments for the Series A Preferred, divided by the total of (x),
all of the then outstanding shares of our common stock, plus (y)
all of the shares of our common stock into which all of the
outstanding shares of the Series A Preferred can be exchanged
before any payment shall be made or any assets distributed to the
holders of the common stock or any other junior stock.
Series B Preferred
General
In July 2014, our Board authorized the creation of a class of
Series B Preferred Stock, par value $0.001 (Series B
Preferred). In May 2015, we
filed a Certificate of Designation of the Relative Rights and
Preferences of the Series B 10% Preferred Stock of VistaGen
Therapeutics, Inc. (Certificate of
Designation) with the Nevada
Secretary of State to designate 4.0 million shares of our
authorized preferred stock as Series B
Preferred.
Conversion
Each
share of Series B Preferred is convertible, at the option of the
holder (Voluntary
Conversion), into one (1) share of the Company’s
common stock. All outstanding shares of Series B Preferred are also
automatically convertible into common stock (Automatic Conversion) upon the closing
or effective date of any of the following transactions or events:
(i) a strategic transaction involving AV-101 with an initial up
front cash payment to the Company of at least $10.0 million; (ii) a
registered public offering of Common Stock with aggregate gross
proceeds to the Company of at least $10.0 million; or (iii) for 20
consecutive trading days the Company’s Common Stock trades at
least 20,000 shares per day with a daily closing price of at least
$12.00 per share; provided, however, that Automatic Conversion and
Voluntary Conversion are subject to certain beneficial ownership
blockers set forth in Section 6 of the Certificate of
Designation.
Following
the completion of our $10.9 million underwritten public offering of
our common stock in May 2016, which public offering occurred
concurrently with and facilitated our listing on the Nasdaq Capital
Market, approximately 2.4 million shares of Series B Preferred were
converted automatically into approximately 2.4 million shares of
our common stock pursuant to the Automatic Conversion provision. At
September 30, 2019, there were
1,160,240 shares of Series B Preferred outstanding, which shares
are currently subject to beneficial ownership blockers and are
exchangeable at the option of the respective holders by Voluntary
Conversion, or pursuant to Automatic Conversion to the extent not
otherwise subject to beneficial ownership blockers, into an
aggregate of 1,160,240 shares of our common stock.
Conversion Restriction
At no
time may a holder of shares of Series B Preferred convert shares of
the Series B Preferred, either by Voluntary Conversion or Automatic
Conversion, if the number of shares of common stock to be issued
pursuant to such conversion would result in such holder
beneficially owning (as determined in accordance with Section 13(d)
of the Exchange Act and the rules thereunder) more than 9.99% of
all of the common stock outstanding at such time; provided, however, that this limitation may be
waived upon sixty-one (61) days’ notice to us.
Rank
The
Series B Preferred ranks prior to our common stock,
and pari
passu with the Series A Preferred for purposes of
liquidation preference.
Dividend Rights
Prior to either a Voluntary Conversion or Automatic Conversion,
shares of Series B Preferred will accrue dividends, payable only in
unregistered common stock, at a rate of 10% per annum
(the Accrued
Dividend). The
Accrued Dividend will be payable on the date of either a Voluntary
Conversion or Automatic Conversion solely in that number of shares
of Common Stock equal to the Accrued Dividend.
Voting Rights
The
Series B Preferred has no voting rights, except with respect to
transactions upon which the Series B Preferred shall be entitled to
vote separately as a class. The common stock into which the Series
B Preferred shall be exchangeable shall, upon issuance, have all of
the same voting rights as other issued and outstanding shares of
our common stock.
Liquidation Rights
Upon
any liquidation, dissolution, or winding-up of the Company, whether
voluntary or involuntary, the holders of Series B Preferred are
entitled to receive out of the Company’s assets, whether
capital or surplus, an amount equal to the stated value of the
Series B Preferred ($7.00 per share), plus any accrued and unpaid
dividends thereon, before any distribution or payment shall be made
to the holders of any junior securities, including holders of our
common stock. If the assets of the Company are insufficient to pay,
in full, such amounts, then the entire assets to be distributed to
the holders of the Series B Preferred shall be ratably distributed
among the holders in accordance with the respective amounts that
would be payable on such shares if all amounts payable thereon were
paid in full.
Series C Preferred
General
In
January 2016, our Board authorized the creation of and,
accordingly, we filed a Certificate of
Designation of the Relative Rights and Preferences of the Series C
Convertible Preferred Stock of VistaGen Therapeutics, Inc.
(the Series
C Preferred Certificate of
Designation) with the Nevada
Secretary of State to designate 3.0 million shares of our preferred
stock, par value $0.001 per share, as Series C Convertible
Preferred Stock (Series C
Preferred).
Conversion and Rank
At
September 30, 2019, there were
2,318,012 shares of Series C Preferred outstanding, which shares of
Series C Preferred are currently subject to beneficial ownership
blockers and are exchangeable at the option of the holder into
2,318,012 shares of our common stock. The Series C Preferred ranks
prior to our common stock for purposes of liquidation preference,
and pari
passu with the Series A Preferred and Series B
Preferred.
Conversion Restriction
At no
time may a holder of shares of Series C Preferred convert shares of
the Series C Preferred if the number of shares of common stock to
be issued pursuant to such conversion would result in such holder
beneficially owning (as determined in accordance with Section 13(d)
of the Exchange Act and the rules thereunder) more than 9.99% of
all of the common stock outstanding at such time; provided, however, that this limitation may be
waived upon sixty-one (61) days’ notice to us.
Dividend Rights
The
Series C Preferred has no separate dividend rights. However,
whenever the board of directors declares a dividend on the common
stock, each holder of record of a share of Series C Preferred, or
any fraction of a share of Series C Preferred, on the date set by
the board of directors to determine the owners of the common stock
of record entitled to receive such dividend (Record Date) shall be entitled to
receive out of any assets at the time legally available therefor,
an amount equal to such dividend declared on one share of common
stock multiplied by the number of shares of common stock into which
such share, or such fraction of a share, of Series C Preferred
could be exchanged on the Record Date.
Voting Rights
The
Series C Preferred has no voting rights, except with respect to
transactions upon which the Series C Preferred shall be entitled to
vote separately as a class. The common stock into which the Series
C Preferred is exchangeable shall, upon issuance, have all of the
same voting rights as other issued and outstanding shares of our
common stock.
Liquidation Rights
In the
event of the liquidation, dissolution or winding up of our affairs,
after payment or provision for payment of our debts and other
liabilities, the holders of Series C Preferred then outstanding
shall be entitled to receive, out of our assets, if any, an amount
per share of Series C Preferred calculated by taking the total
amount available for distribution to holders of all of our
outstanding common stock before deduction of any preference
payments for the Series C Preferred, divided by the total of (x),
all of the then outstanding shares of our common stock, plus (y)
all of the shares of our common stock into which all of the
outstanding shares of the Series C Preferred can be exchanged
before any payment shall be made or any assets distributed to the
holders of the common stock or any other junior stock.
Shares of Preferred Stock Issuable Pursuant to this
Prospectus
We will
incorporate by reference as an exhibit to the registration
statement, which includes this prospectus, the form of any
certificate of designation that describes the terms of the series
of preferred stock we are offering. This description and the
applicable prospectus supplement will include:
●
the title and
stated value;
●
the number of
shares authorized;
●
the liquidation
preference per share;
●
the purchase
price;
●
the dividend rate,
period and payment date, and method of calculation for
dividends;
●
whether dividends
will be cumulative or non-cumulative and, if cumulative, the date
from which dividends will accumulate;
●
the procedures for
any auction and remarketing, if any;
●
the provisions for
a sinking fund, if any;
●
the provisions for
redemption or repurchase, if applicable, and any restrictions on
our ability to exercise such redemption and repurchase
rights;
●
any listing of the
preferred stock on any securities exchange or market;
●
whether the
preferred stock will be convertible into our common stock, and, if
applicable, the conversion price, or how it will be calculated, and
the conversion period;
●
voting rights, if
any, of the preferred stock;
●
preemptive rights,
if any;
●
restrictions on
transfer, sale or other assignment, if any;
●
a discussion of any
material United States federal income tax considerations applicable
to the preferred stock;
●
the relative
ranking and preferences of the preferred stock as to dividend
rights and rights if we liquidate, dissolve or wind up our
affairs;
●
any limitations on
issuance of any class or series of preferred stock ranking senior
to or on a parity with the series of preferred stock as to dividend
rights and rights if we liquidate, dissolve or wind up our affairs;
and
●
any other specific
terms, preferences, rights or limitations of, or restrictions on,
the preferred stock.
When we
issue shares of preferred stock under this prospectus, the shares
will fully be paid and nonassessable and will not have, or be
subject to, any preemptive or similar rights.
DESCRIPTION OF
WARRANTS
The following description, together with the additional information
we include in any applicable prospectus supplements or free writing
prospectus, summarizes the material terms and provisions of the
warrants that we may offer under this prospectus. Warrants may be
offered independently or together with common stock or preferred
stock offered by any prospectus supplement or free writing
prospectus, and may be attached to or separate from those
securities. While the terms we have summarized below will generally
apply to any future warrants we may offer under this prospectus, we
will describe the particular terms of any warrants that we may
offer in more detail in the applicable prospectus supplement or
free writing prospectus. The terms of any warrants we offer under a
prospectus supplement or free writing prospectus may differ from
the terms we describe below.
In the event that we issue warrants, we may issue the warrants
under a warrant agreement, which, if applicable, we will enter into
with a warrant agent to be selected by us. Forms of these warrant
agreements and forms of the warrant certificates representing the
warrants, and the complete warrant agreements and forms of warrant
certificates containing the terms of the warrants being offered,
will be filed as exhibits to the registration statement of which
this prospectus is a part or will be incorporated by reference from
reports that we file with the SEC. We use the term “warrant
agreement” to refer to any of these warrant agreements. We
use the term “warrant agent” to refer to the warrant
agent under any of these warrant agreements. The warrant agent will
act solely as an agent of ours in connection with the warrants and
will not act as an agent for the holders or beneficial owners of
the warrants.
The following summaries of material provisions of the warrants and
the warrant agreements are subject to, and qualified in their
entirety by reference to, all the provisions of the warrant
agreement applicable to a particular series of warrants. We urge
you to read the applicable prospectus supplements or free writing
prospectus related to the warrants that we sell under this
prospectus, as well as the complete warrant agreements that contain
the terms of the warrants.
General
We will describe in the applicable prospectus supplement or free
writing prospectus the terms relating to a series of warrants. If
warrants for the purchase of common stock or preferred stock are
offered, the prospectus supplement or free writing prospectus will
describe the following terms, to the extent
applicable:
●
the
offering price and the aggregate number of warrants
offered;
●
the
total number of shares that can be purchased if a holder of the
warrants exercises them and, in the case of warrants for preferred
stock, the designation, total number and terms of the series of
preferred stock that can be purchased upon exercise;
●
the
designation and terms of any series of preferred stock with which
the warrants are being offered and the number of warrants being
offered with each share of common stock or preferred
stock;
●
the
date on and after which the holder of the warrants can transfer
them separately from the related common stock;
●
the
number of shares of common stock or preferred stock that can be
purchased if a holder exercises the warrant and the price at which
such common stock or preferred stock may be purchased upon
exercise, including, if applicable, any provisions for changes to
or adjustments in the exercise price and in the securities or other
property receivable upon exercise;
●
the
terms of any rights to redeem or call, or accelerate the expiration
of, the warrants;
●
the
date on which the right to exercise the warrants begins and the
date on which that right expires;
●
federal
income tax consequences of holding or exercising the warrants;
and
●
any
other specific terms, preferences, rights or limitations of, or
restrictions on, the warrants.
Exercise of Warrants
Each holder of a warrant is entitled to purchase the number of
shares of common stock or preferred stock, as the case may be, at
the exercise price described in the applicable prospectus
supplement or free writing prospectus. After the close of business
on the day when the right to exercise terminates (or a later date
if we extend the time for exercise), unexercised warrants will
become void.
A holder of warrants may exercise them by following the general
procedure outlined below:
●
delivering
to the warrant agent the payment required by the applicable
prospectus supplement or free writing prospectus to purchase the
underlying security;
●
properly
completing and signing the reverse side of the warrant certificate
representing the warrants; and
●
delivering
the warrant certificate representing the warrants to the warrant
agent within five business days of the warrant agent receiving
payment of the exercise price.
If you comply with the procedures described above, your warrants
will be considered to have been exercised when the warrant agent
receives payment of the exercise price, subject to the transfer
books for the securities issuable upon exercise of the warrant not
being closed on such date. After you have completed those
procedures and subject to the foregoing, we will, as soon as
practicable, issue and deliver to you the common stock or preferred
stock that you purchased upon exercise. If you exercise fewer than
all of the warrants represented by a warrant certificate, a new
warrant certificate will be issued to you for the unexercised
amount of warrants. Holders of warrants will be required to pay any
tax or governmental charge that may be imposed in connection with
transferring the underlying securities in connection with the
exercise of the warrants.
Amendments and Supplements to the Warrant Agreements
We may amend or supplement a warrant agreement without the consent
of the holders of the applicable warrants to cure ambiguities in
the warrant agreement, to cure or correct a defective provision in
the warrant agreement, or to provide for other matters under the
warrant agreement that we and the warrant agent deem necessary or
desirable, so long as, in each case, such amendments or supplements
do not materially adversely affect the interests of the holders of
the warrants.
Warrant Adjustments
Unless the applicable prospectus supplement or free writing
prospectus states otherwise, the exercise price of, and the number
of securities covered by, a common stock or a preferred stock
warrant will be adjusted proportionately if we subdivide or combine
our common stock or preferred stock, as applicable. In addition,
unless the prospectus supplement or free writing prospectus states
otherwise, if we, without receiving payment:
●
issue
capital stock or other securities convertible into or exchangeable
for common stock or preferred stock, or any rights to subscribe
for, purchase or otherwise acquire any of the foregoing, as a
dividend or distribution to holders of our common stock or
preferred stock;
●
pay
any cash to holders of our common stock or preferred stock other
than a cash dividend paid out of our current or retained earnings
or other than in accordance with the terms of the preferred
stock;
●
issue
any evidence of our indebtedness or rights to subscribe for or
purchase our indebtedness to holders of our common stock or
preferred stock; or
●
issue
common stock or preferred stock or additional stock or other
securities or property to holders of our common stock or preferred
stock by way of spinoff, split-up, reclassification, combination of
shares or similar corporate rearrangement,
then the holders of common stock or preferred stock warrants will
be entitled to receive upon exercise of the warrants, in addition
to the securities otherwise receivable upon exercise of the
warrants and without paying any additional consideration, the
amount of stock and other securities and property such holders
would have been entitled to receive had they held the common stock
or preferred stock, as applicable, issuable under the warrants on
the dates on which holders of those securities received or became
entitled to receive such additional stock and other securities and
property.
Except as stated above or as otherwise set forth in the applicable
prospectus supplement or free writing prospectus, the exercise
price and number of securities covered by a common stock or
preferred stock warrant, and the amounts of other securities or
property to be received, if any, upon exercise of such warrant,
will not be adjusted or provided for if we issue those securities
or any securities convertible into or exchangeable for those
securities, or securities carrying the right to purchase those
securities or securities convertible into or exchangeable for those
securities.
Holders of common stock and preferred stock warrants may have
additional rights under the following circumstances:
●
certain
reclassifications, capital reorganizations or changes of the common
stock or preferred stock, as applicable;
●
certain
share exchanges, mergers, or similar transactions involving us and
which result in changes of the common stock or preferred stock, as
applicable; or
●
certain
sales or dispositions to another entity of all or substantially all
of our property and assets.
If one of the above transactions occurs and holders of our common
stock or preferred stock are entitled to receive stock, securities
or other property with respect to or in exchange for their
securities, the holders of the common stock warrants and preferred
stock warrants then outstanding, as applicable, will be entitled to
receive, upon exercise of their warrants, the kind and amount of
shares of stock and other securities or property that they would
have received upon the applicable transaction if they had exercised
their warrants immediately before the transaction.
Series A1 Warrants
As
described above, we have issued Series A1 Warrants to purchase up
to 1,388,931 shares of our common
stock at an exercise price of $1.82 per share, which warrants
expire on or about March 7, 2023. The Series A1 Warrants Shares
that may become issuable from time to time upon the exercise of the
Series A1 Warrants are being offered pursuant to this prospectus.
Form more information, see “Decription of Warrants –
Registration of Series A1 Warrants and Series A1 Warrant
Shares”
below.
Duration and Exercise Price: The Series A1 Warrants are exercisable for a
five-year period commencing on or about March 7, 2018, and have an
exercise price of $1.82 per share.
Exercisability: Each of
Series A1 Warrant may be exercised, in whole or in part, by
delivering to the Company a written notice of election to exercise
the applicable Series A1 Warrant and delivering to the Company cash
payment of the exercise price, if applicable. The exercise price
and the number of shares of our common stock issuable upon exercise
of the Series A1 Warrants is subject to adjustment in the event of
certain subdivisions and combinations, including by any stock split
or reverse stock split, stock dividend, recapitalization or
otherwise.
Cashless Exercise: If, at
any time during the term of the Series A1 Warrants, the issuance or
resale of shares of our common stock upon exercise of the Series A1
Warrants is not covered by an effective registration statement, the
holder is permitted to effect a cashless exercise of the Series A1
Warrants (in whole or in part) in which case the holder would
receive upon such exercise the net number of shares of common stock
determined according to the formula set forth in the Series A1
Warrants. Shares issued pursuant to a cashless exercise would be
deemed to have been issued pursuant to the exemption from
registration provided by Section 3(a)(9) of the Securities Act, and
the shares of common stock issued upon such cashless exercise would
take on the characteristics of the Series A1 Warrants being
exercised, including, for purposes of Rule 144(d) promulgated under
the Securities Act, a holding period beginning from the original
issuance date of the Series A1 Warrants.
Adjustment Provisions: The
exercise price and the number and type of securities purchasable
upon exercise of the Series A1 Warrants are subject to adjustment
upon certain corporate events, including certain subdivisions,
combinations and similar events If we declare any dividend or
distribution of assets (including cash, stock or other securities,
evidence of indebtedness, purchase rights or other property), each
holder of a Series A1 Warrant will be entitled to participate in
such distribution to the same extent that the holder would have
participated had the applicable Series A1 Warrant been exercised
immediately before the record date for the
distribution.
Transferability: Subject
to applicable laws, the Series A1 Warrants may be offered for sale,
sold, transferred or assigned without our consent. However, as of
the date of this prospectus there is no established trading market
for the Series A1 Warrants and it is not expected that a trading
market for the Series A1 Warrants will develop in the future.
Without an active trading market, the liquidity of the Series A1
Warrants will be limited.
Listing: We have not and
will not apply to list the Series A1 Warrants on Nasdaq Capital
Market. We do not intend to list the Series A1 Warrants on any
securities exchange or other quotation system. Without an
active market, the liquidity of the Series A1 Warrants will be
limited.
Rights as a stockholder: Except as set forth in the Series A1
Warrants or by virtue of such holders’ ownership of shares of
our common stock, the holders of the Series A1 Warrants do not have
the rights or privileges of holders of our common stock, including
any voting rights, until they exercise the Series A1
Warrants.
Limitations on Exercise: The exercise of the Series A1 Warrants may
be limited in certain circumstances if, after giving effect to such
exercise, the holder or any of its affiliates would beneficially
own (as determined in accordance with the terms of the Series A1
Warrants) more than 4.99% (or, at the election of the holder,
9.99%) of our outstanding common stock immediately after giving
effect to the exercise.
Fundamental Transactions: In the event of certain fundamental
transactions, as described in the Series A1 Warrants and generally
including any merger or consolidation with or into another entity,
the holders of the Series A1 Warrants shall thereafter have the
right to exercise the applicable Series A1 Warrant for the same
amount and kind of securities, cash or property as it would have
been entitled to receive upon the occurrence of such fundamental
transaction if it had been, immediately prior to such fundamental
transaction, the holder of shares of common stock issuable upon
exercise in full of the Series A1 Warrant. In the event of a Change
of Control (as defined in the Series A1 Warrants) (other than a
Change of Control which was not approved by the Board of Directors,
as to which this right shall not apply), at the request of the
holder delivered before the 30th day after such Change of Control,
a holder of a Series A1 Warrant will have the right to require us
or any successor entity to purchase the holder’s Series A1
Warrant for the Black-Scholes Value of the remaining unexercised
portion of the Series A1 Warrant on the effective date of such
Change of Control (determined in accordance with a formula
specified in the Series A1 Warrants), payable in cash; provided,
that if the applicable Change of Control was not approved by our
Board of Directors, such amount shall be payable, at our option in
either (x) shares of our common stock or the consideration
receivable by holders of common stock in the Change of Control
transaction, as applicable, valued at the value of the
consideration received by the shareholders in such Change of
Control, or (y) cash.
Dividends and Other Distributions: If we declare or make any dividend or other
distribution of our assets to holders of shares of our common stock
(including any distribution of cash, stock or other securities,
property, options, evidence of indebtedness or any other assets),
then, subject to certain limitation on exercise described in the
Series A1 Warrants, each holder of a Series A1 Warrant shall
receive the distributed assets that such holder would have been
entitled to receive in the distribution had the holder exercised
the Series A1 Warrant immediately prior to the record date for the
distribution.
Registration of Series A1 Warrants and Series A1 Warrant
Shares. The Series A1
Warrants and the Series A1 Warrant Shares were previously
registered pursuant to the Prior Registration Statement and a
prospectus supplement filed with the SEC on August 31, 2017
pursuant to Rule 424(b)(5) under the Securities Act. Pursuant to
Rule 415(a)(6) and Rule 429 under the Securities Act, the offering
of the Series A1 Warrant Shares will be registered pursuant to this
registration statement.
DESCRIPTION OF
UNITS
This section outlines some of the provisions of the units and the
unit agreements. This information may not be complete in all
respects and is qualified entirely by reference to the unit
agreement with respect to the units of any particular series. The
specific terms of any series of units will be described in the
applicable prospectus supplement or free writing prospectus. If so
described in a particular prospectus supplement or free writing
prospectus, the specific terms of any series of units may differ
from the general description of terms presented below.
As specified in the applicable prospectus supplement, we may issue
units consisting of one or more shares of common stock, shares of
our preferred stock, warrants or any combination of such
securities.
The applicable prospectus supplement will specify the following
terms of any units in respect of which this prospectus is being
delivered:
●
the
terms of the units and of any of the shares of common stock, shares
of preferred stock, or warrants comprising the units, including
whether and under what circumstances the securities comprising the
units may be traded separately;
●
a
description of the terms of any unit agreement governing the
units;
●
if
appropriate, a discussion of material U.S. federal income tax
considerations; and
●
a
description of the provisions for the payment, settlement, transfer
or exchange of the units.
DESCRIPTION OF
CERTAIN PROVISIONS OF NEVADA LAW AND
OUR ARTICLES OF INCORPORATION AND BYLAWS
Transactions with Interested Persons
Under
the Nevada Revised Statutes (the NRS) a transaction with the Company (i)
in which a Company director or officer has a direct or indirect
interest, or (ii) involving another corporation, firm or
association in which one or more of the Company’s directors
or officers are directors or officers of the corporation, firm or
association or have a financial interest in the corporation firm or
association, is not void or voidable solely because of the
director’s or officer’s interest or common role in the
transaction if any one of the following circumstances
exists:
●
the fact of the
common directorship, office or financial interest is known to the
board of directors or a committee of the board of directors and a
majority of disinterested directors on the board of directors (or
on the committee) authorized, approved or ratified the
transaction;
●
the fact of the
common directorship, office or financial interest is known to the
stockholders and disinterested stockholders holding a majority of
the shares held by disinterested stockholders authorized, approved
or ratified the transaction;
●
the fact of the
common directorship, office or financial interest is not known to
the director or officer at the time the transaction is brought to
the board of directors for action; or
●
the transaction was
fair to the Company at the time it is authorized or
approved.
Control Share Acquisition Provisions
Nevada
law precludes an acquirer of the shares of a Nevada corporation who
crosses one of three ownership thresholds (20%, 33 1/3% or 50%)
from obtaining voting rights with respect to those shares unless
the disinterested holders of a majority of the shares of the
Company held by disinterested stockholders vote to accord voting
power to those shares.
Combinations with Interested Stockholders
Under
the NRS, except under certain circumstances, a corporation is not
permitted to engage in a business combination with any
“interested stockholder” for a period of two years
following the date such stockholder became an interested
stockholder. An “interested stockholder” is
a person or entity who owns 10% or more of the outstanding shares
of voting stock. Nevada permits a corporation to opt out
of the application of these business combination provisions by so
providing in the articles of incorporation or
bylaws. The Company’s Bylaws contain a provision
opting out of the application of these business combination
provisions.
PLAN OF DISTRIBUTION
We may sell the securities described in this prospectus to or
through underwriters or dealers, through agents, or directly to one
or more purchasers. A prospectus supplement or supplements (and any
related free writing prospectus that we may authorize to be
provided to you) will describe the terms of the offering of the
securities, including, to the extent applicable:
●
the
name or names of any underwriters or agents, if
applicable;
●
the
purchase price of the securities and the proceeds we will receive
from the sale;
●
any
over-allotment options under which underwriters may purchase
additional securities from us;
●
any
agency fees or underwriting discounts and other items constituting
agents’ or underwriters’ compensation;
●
any
public offering price;
●
any
discounts or concessions allowed or reallowed or paid to dealers;
and
●
any
securities exchange or market on which the securities may be
listed.
We may also sell equity securities covered by this registration
statement in an “at the market offering” as defined in
Rule 415 under the Securities Act. Such offering may be made into
an existing trading market for such securities in transactions at
other than a fixed price, either:
●
on
or through the facilities of the Nasdaq Capital Market or any other
securities exchange or quotation or trading service on which such
securities may be listed, quoted or traded at the time of sale;
and/or
●
to
or through a market maker otherwise than on the Nasdaq Capital
Market or such other securities exchanges or quotation or trading
services.
Such at-the-market offerings, if any, may be conducted by
underwriters acting as principal or agent.
Only underwriters named in a prospectus supplement are underwriters
of the securities offered by the prospectus
supplement.
If underwriters are used in the sale, they will acquire the
securities for their own account and may resell the securities from
time to time in one or more transactions at a fixed public offering
price or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the securities will be
subject to the conditions set forth in the applicable underwriting
agreement. We may offer the securities to the public through
underwriting syndicates represented by managing underwriters or by
underwriters without a syndicate. Subject to certain conditions,
the underwriters will be obligated to purchase all of the
securities offered by the prospectus supplement. Any public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers may change from time to time. We may
use underwriters with whom we have a material relationship. We will
describe in the prospectus supplement that names the underwriter,
the nature of any such relationship.
We may sell securities directly or through agents we designate from
time to time. We will name any agent involved in the offering and
sale of securities, and we will describe any commissions we will
pay the agent in the prospectus supplement. Unless the prospectus
supplement states otherwise, our agent will act on a best-efforts
basis for the period of its appointment.
We may authorize agents or underwriters to solicit offers by
certain types of institutional investors to purchase securities
from us at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. We will
describe the conditions to these contracts and the commissions we
must pay for solicitation of these contracts in the prospectus
supplement.
We may provide agents and underwriters with indemnification against
civil liabilities related to this offering, including liabilities
under the Securities Act, or contribution with respect to payments
that the agents or underwriters may make with respect to these
liabilities. Agents and underwriters may engage in transactions
with, or perform services for, us in the ordinary course of
business.
Any underwriter may engage in overallotment, stabilizing
transactions, short covering transactions and penalty bids in
accordance with Regulation M under the Securities Exchange Act of
1934, as amended (the “Exchange
Act”). Overallotment
involves sales in excess of the offering size, which create a short
position. Stabilizing transactions permit bids to purchase the
underlying security so long as the stabilizing bids do not exceed a
specified maximum. Short covering transactions involve purchases of
the securities in the open market after the distribution is
completed to cover short positions. Penalty bids permit the
underwriters to reclaim a selling concession from a dealer when the
securities originally sold by the dealer are purchased in a
covering transaction to cover short positions. Those activities may
cause the price of the securities to be higher than it would
otherwise be. If commenced, the underwriters may discontinue any of
the activities at any time.
Any underwriters who are qualified market makers on the Nasdaq
Capital Market may engage in passive market making transactions in
accordance with Rule 103 of Regulation M during the business day
prior to the pricing of the offering, before the commencement of
offers or sales of the securities. Passive market makers must
comply with applicable volume and price limitations and must be
identified as passive market makers. In general, a passive market
maker must display its bid at a price not in excess of the highest
independent bid for such security; if all independent bids are
lowered below the passive market maker’s bid, however, the
passive market maker’s bid must then be lowered when certain
purchase limits are exceeded.
LEGAL
MATTERS
Certain legal matters in connection with this offering will be
passed upon for us by Disclosure Law Group, a Professional
Corporation, of San Diego, California.
EXPERTS
OUM & Co. LLP, our independent registered public accounting
firm, has audited our consolidated financial statements included in
our Annual Report on Form 10-K for the year ended March 31, 2019,
as set forth in their report, which is incorporated by reference in
this prospectus. The report for VistaGen Therapeutics, Inc.
includes an explanatory paragraph about the existence of
substantial doubt concerning its ability to continue as a going
concern. Our financial statements are incorporated by reference in
reliance on OUM & Co. LLP’s report, given on their
authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are a public company and file annual, quarterly and special
reports, proxy statements and other information with the SEC. Our
SEC filings are available, at no charge, to the public at the
SEC’s website at
http://www.sec.gov.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by us with the SEC are incorporated
by reference in this prospectus:
●
our
Annual Report on Form 10-K for the year ended March 31, 2019, filed
on June 25, 2019;
●
our
Quarterly Report on Form 10-Q for the year ended June 30, 2019,
filed on August 13, 2019;
●
our
Current Report on Form 8-K, filed on April 4, 2019;
●
our
Current Report on Form 8-K, filed on May 2, 2019;
●
our
Current Report on Form 8-K, filed on June 21, 2019;
●
our
Current Report on Form 8-K, filed on July 23, 2019;
●
our
Current Report on Form 8-K, filed on August 16, 2019;
●
our
Current Report on Form 8-K, filed on August 23, 2019;
●
our
Current Report on Form 8-K, filed on September 6,
2019;
●
our
Current Report on Form 8-K, filed on September 25, 2019;
and
●
The
description of our common stock contained in the Registration
Statement on Form 8-A filed pursuant to Section 12(b) of the
Exchange Act on May 3, 2016, including any amendment or report
filed with the SEC for the purpose of updating this
description.
We also incorporate by reference all documents we file pursuant to
Section 13(a), 13(c), 14 or 15 of the Exchange Act (other than any
portions of filings that are furnished rather than filed pursuant
to Items 2.02 and 7.01 of a Current Report on Form 8-K) after the
date of the initial registration statement of which this prospectus
is a part and prior to effectiveness of such registration
statement. All documents we file in the future pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this prospectus and prior to the termination of the offering are
also incorporated by reference and are an important part of this
prospectus.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for the purposes of this registration statement to the
extent that a statement contained herein or in any other
subsequently filed document which also is or deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this registration statement.
We will provide to each person, including any beneficial owner, to
whom a prospectus is delivered, a copy of any or all of the
information that has been incorporated by reference in the
prospectus but not delivered with the prospectus. You may request a
copy of these filings, excluding the exhibits to such filings which
we have not specifically incorporated by reference in such filings,
at no cost, by writing to or calling us at:
VistaGen Therapeutics, Inc.
343 Allerton Avenue
South San Francisco, California 94080
(650) 577-3600
This prospectus is part of a registration statement we filed with
the SEC. You should only rely on the information or representations
contained in this prospectus and any accompanying prospectus
supplement. We have not authorized anyone to provide information
other than that provided in this prospectus and any accompanying
prospectus supplement. We are not making an offer of the securities
in any state where the offer is not permitted. You should not
assume that the information in this prospectus or any accompanying
prospectus supplement is accurate as of any date other than the
date on the front of the document.
PROSPECTUS
$150,000,000
COMMON STOCK
PREFERRED STOCK
WARRANTS
UNITS
,
2019
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND
DISTRIBUTION
The following table sets forth an estimate of the fees and
expenses, other than the underwriting discounts and commissions,
payable by us in connection with the issuance and distribution of
the securities being registered. All the amounts shown are
estimates, except for the SEC and FINRA registration
fees.
|
|
Amount
|
|
SEC
registration fee
|
$8,201
|
|
FINRA
registration fee
|
$*
|
|
Legal
fees and expenses
|
$*
|
|
Accounting
fees and expenses
|
$*
|
|
Printing
and miscellaneous fees and expenses
|
$*
|
|
Total
|
$*
|
* To be included by amendment.
ITEM 15. INDEMNIFICATION OF OFFICERS AND
DIRECTORS
Limitations of liability and indemnification
Our amended and restated bylaws provide that we will indemnify our
directors, officers and employees to the fullest extent permitted
by the Nevada Revised Statutes (NRS).
If the NRS are amended to authorize corporate action further
eliminating or limiting the personal liability of a director, then
the liability of our directors will be eliminated or limited to the
fullest extent permitted by the NRS, as so amended. Our articles of
incorporation do not eliminate a director’s duty of care and,
in appropriate circumstances, equitable remedies, such as
injunctive or other forms of non-monetary relief, will remain
available under the NRS. This provision also does not affect a
director’s responsibilities under any other laws, such as the
federal securities laws or other state or federal laws. Under our
bylaws, we are empowered to enter into indemnification agreements
with our directors, officers and employees to purchase insurance on
behalf of any person whom we are required or permitted to
indemnify.
In addition to the indemnification required in our bylaws, we have
entered into indemnification agreements with each of the
individuals serving on our board of directors. These agreements
provide for the indemnification of our directors to the fullest
extent permitted by law. We believe that these bylaw provisions and
indemnification agreements are necessary to attract and retain
qualified persons as directors, officers and employees. We also
maintain directors’ and officers’ liability
insurance.
The limitation of liability and indemnification provisions in our
bylaws may discourage stockholders from bringing a lawsuit against
our directors and officers for breach of their fiduciary duties.
They may also reduce the likelihood of derivative litigation
against directors and officers, even though an action, if
successful, might benefit us and our stockholders. Further, a
stockholder’s investment may be adversely affected to the
extent that we pay the costs of settlement and damage awards
against directors and officers pursuant to these indemnification
provisions.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers and
certain employees pursuant to the foregoing provisions, or
otherwise, we have been advised that, in the opinion of the SEC,
such indemnification is against public policy as expressed in the
Securities Act, and is, therefore, unenforceable.
There is no pending litigation or proceeding naming any of our
directors or officers as to which indemnification is being sought,
nor are we aware of any pending or threatened litigation that may
result in claims for indemnification.
ITEM 16. EXHIBITS
|
1.1*
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Form of Underwriting Agreement
|
|
1.2*
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Form of Placement Agent Agreement
|
|
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
|
|
4.2*
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Form of any warrant agreement with respect to each particular
series of warrants issued hereunder
|
|
4.3*
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Form of any warrant agency agreement with respect to each
particular series of warrants issued hereunder
|
|
4.4*
|
Form of any unit agreement with respect to any unit issued
hereunder
|
|
5.1*
|
Opinion of Disclosure Law Group, a Professional
Corporation
|
|
23.1*
|
Consent of Disclosure Law Group, a Professional
Corporation
|
|
Consent of Independent Registered Public Accounting Firm
– OUM & Co., LLP, filed herewith
|
|
|
Power of Attorney (located on signature page)
|
|
*
|
To be filed, if necessary, 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.
|
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 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the
effective registration statement.
(iii) To include any material
information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to
such information in the registration statement; provided,
however, that paragraphs (i),
(ii) and (iii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration
statement.
(2) That,
for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4) That,
for the purpose of determining liability under the Securities Act
of 1933 to any purchaser:
(i) If
the Registrant is relying on Rule 430B:
(A)
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
(B)
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; or
(ii) If
the registrant is subject to Rule 430C, each prospectus filed
pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying
on Rule 430B or other than prospectuses filed in reliance on Rule
430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after
effectiveness. 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 first use,
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 date of
first use.
(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: The undersigned registrant
undertakes that 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.
(6)
That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant’s annual report
pursuant to Section 13(a) or 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.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of each Registrant pursuant to the foregoing
provisions, or otherwise, each Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
a Registrant of expenses incurred or paid by a director, officer or
controlling person of a 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, that 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 Securities Act and will be governed by the final adjudication
of such issue.
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 September 30, 2019.
|
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VistaGen Therapeutics, Inc..
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||
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By:
|
/s/
Shawn K. Singh
|
|
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Shawn K. Singh, J.D.
|
|
|
|
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Chief Executive Officer
|
|
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature
below constitutes and appoints Shawn K. Singh as attorney-in-fact,
with power of substitution, for him in any and all capacities, to
sign any amendments to this Registration Statement on Form S-3, and
file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
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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|
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|
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||
|
/s/
Shawn K. Singh
Shawn K. Singh, JD
|
|
Chief Executive Officer, and Director
(Principal Executive Officer)
|
|
September 30, 2019
|
|
|
|
|
||
|
/s/ Jerrold D.
Dotson
Jerrold D. Dotson
|
|
Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
|
|
September 30, 2019
|
|
|
|
|
||
|
/s/
H. Ralph Snodgrass
H. Ralph Snodgrass, Ph.D
|
|
President, Chief Scientific Officer and Director
|
|
September 30, 2019
|
|
|
|
|
||
|
/s/
Jon S. Saxe
Jon S. Saxe
|
|
Chairman of the Board of Directors
|
|
September 30, 2019
|
|
|
|
|
||
|
/s/
Brian J. Underdown
Brian J. Underdown, Ph. D
|
|
Director
|
|
September 30, 2019
|
|
|
|
|
|
|
|
/s/
Jerry B. Gin, Ph.D
Jerry B. Gin, Ph.D.
|
|
Director
|
|
September 30, 2019
|
|
|
|
|
|
|
|
/s/
Ann M. Cunningham
Ann M. Cunningham
|
|
Director
|
|
September 30, 2019
|
-27-
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 of VistaGen
Therapeutics, Inc. of our
report dated June 25, 2019 (which report expresses an
unqualified opinion and includes an explanatory paragraph
expressing substantial doubt about the Company’s ability to
continue as a going
concern), 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, 2019.
We also
consent to the reference to us under the caption
“Experts” in the
Prospectus.
/s/ OUM & CO. LLP
San Francisco, California
September 30, 2019