As filed with the Securities and Exchange Commission on
September 30, 2019
Registration No. 333-223556
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
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
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(I.R.S.
Employer
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Incorporation
or Organization)
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Identification
No.)
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343 Allerton Avenue
South San Francisco, California 94080
(Address
of Principal Executive Offices)
VistaGen Therapeutics, Inc. 1999 Stock Incentive Plan
VistaGen Therapeutics, Inc. Amended and Restated 2016 Equity
Incentive Plan
VistaGen
Therapeutics, Inc. 2019 Omnibus Equity Incentive
Plan
(Full
title of the plan)
Shawn K. Singh
Chief Executive Officer
VistaGen Therapeutics, Inc.
343 Allerton Avenue
South San Francisco, California 94080
(Name
and address of agent for service)
(650) 577-3600
(Telephone
number, including area code, of agent for service)
Copies to:
Jessica R. Sudweeks, Esq.
Disclosure Law Group, a Professional Corporation
655 W. Broadway, Suite 870
San Diego, California 92101
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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[ ]
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Accelerated filer
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[ ]
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Non-accelerated filer
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[ ]
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Smaller reporting company
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[X]
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Emerging
growth company
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[
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If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of the Securities Act. [
]
EXPLANATORY NOTE
VistaGen
Therapeutics, Inc. (the Registrant) previously registered
shares of the Registrant’s common stock, $0.001 par value per
share (Common Stock), to be
issued under the VistaGen Therapeutics, Inc. Amended and Restated 2016 Equity Incentive Plan,
formerly the 2008 Stock Incentive Plan
(the 2016
Plan) and the VistaGen
Therapeutics, Inc. 1999 Stock Incentive Plan
(the 1999 Plan). In connection with the 2016 Plan and the
1999 Plan, the Registrant previously filed with the Securities and
Exchange Commission (the Commission) a registration statement on
Form S-8 on March 9, 2018 (File No. 333-223556) (the Prior Registration Statement).
The Prior Registration Statement also covered any additional
securities that may from time to time become issuable under the
2016 Plan and the 1999 Plan by reason of any stock dividend, stock
split, recapitalization, or any other similar transaction that
results in an increase in the number of outstanding shares of
Common Stock of the Registrant.
Since
the date of the Prior Registration Statement, the 1999 Plan has
terminated in accordance with its terms, and no awards remain
outstanding under the 1999 Plan. On September 5, 2019 (the
Effective Date), at the
2019 Annual Meeting of Stockholders of the Registrant, the
Registrant’s stockholders approved the VistaGen Therapeutics,
Inc. 2019 Omnibus Equity Incentive Plan (the 2019 Plan), and, in connection
therewith, no further awards will be made under the 2016
Plan. The shares of Common Stock initially reserved for
issuance under the 2019 Plan consist of (i) 7,500,000 shares of
Common Stock registered pursuant to a separate registration
statement on Form S-8 being filed concurrently with this
Post-Effective Amendment No. 1 to the Prior Registration Statement
(the Post-Effective
Amendment), plus (ii) 1,388,412 unallocated shares of Common
Stock available for issuance under the 2016 Plan that are not
subject to outstanding “Awards” (as defined in the 2016
Plan) as of the Effective Date (the Carryover Shares). The Prior
Registration Statement will cover the issuance of the Carryover
Shares of the 2016 Plan once they are available for issuance under
the 2019 Plan.
Therefore, in
addition to filing this Post-Effective Amendment, pursuant to
undertaking in Item 512(a)(1)(iii) of Regulation S-K that the
Registrant disclose a material change in the plan of distribution
as it was originally disclosed in the Prior Registration Statement
and Commission Compliance and Disclosure Interpretation 126.43, the
Registrant is filing this Post-Effective Amendment to reflect that,
as of the Effective Date, the Carryover Shares of the 2016 Plan may
be issued under the 2019 Plan, and to file as an exhibit hereto a
copy of the 2019 Plan and a new opinion as to the validity of the
Carryover Shares of the 2016 Plan that may be issued under the 2019
Plan. All other items of the Prior Registration Statement are
incorporated herein by reference without change.
The
Registrant is concurrently filing a separate registration statement
on Form S-8 to register to total of 7,500,000 shares of Common
Stock for offer or sale pursuant to the 2019 Plan, excluding the
Carryover Shares. No additional securities are being registered by
this Post-Effective Amendment.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Item 1. Plan Information.
The information called
for by Part I of Form S-8 is omitted from this
Registration Statement in accordance with Rule 428 of the
Securities Act of 1933, as amended (the Securities
Act)
and the instructions to Form S-8. In accordance with the
rules and regulations of the Securities and Exchange Commission
(the Commission)
and the instructions to Form S-8, such documents are not
being filed with the Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference
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The following documents, which have been previously filed by
the Registrant with the Commission, are hereby incorporated by
reference in this Registration Statement:
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our
Annual Report on Form 10-K for the year ended March 31, 2019, filed
on June 25, 2019;
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our
Quarterly Report on Form 10-Q for the year ended June 30, 2019,
filed on August 13, 2019;
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our
Current Report on Form 8-K, filed on April 4, 2019;
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our
Current Report on Form 8-K, filed on May 2, 2019;
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our
Current Report on Form 8-K, filed on June 21, 2019;
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our
Current Report on Form 8-K, filed on July 23, 2019;
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our
Current Report on Form 8-K, filed on August 16, 2019;
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our
Current Report on Form 8-K, filed on August 23, 2019;
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our
Current Report on Form 8-K, filed on September 6,
2019;
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our
Current Report on Form 8-K, filed on September 25, 2019;
and
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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 Commission for the purpose of updating this
description.
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Until
such time that a post-effective amendment to this Registration
Statement has been filed which indicates that all securities
offered hereby have been sold or which deregisters all securities
remaining unsold at the time of such amendment, all documents
subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of
filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which is
also deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration
Statement.
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Item 4.
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Description of Securities
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Not
applicable.
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Item 5.
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Interests of Named Experts and Counsel
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Not
applicable.
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Item 6.
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Indemnification of Directors and Officers
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Limitations of liability and indemnification
Our
amended and restated bylaws (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 our 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 our 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 us or 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.
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Item 7.
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Exemption from Registration Claimed
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Not
applicable.
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Item 8.
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Exhibits
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Exhibit No.
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Document
Description
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Incorporation
by Reference
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Opinion
of Disclosure Law Group, a Professional Corporation.
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Filed
herewith.
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Consent
of OUM & Co., LLP, independent registered public accounting
firm.
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Filed
herewith.
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Consent
of Disclosure Law Group, a Professional Corporation.
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Included in Exhibit
5.1.
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VistaGen Therapeutics, Inc. 1999
Stock Incentive Plan, as amended.
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Incorporated by reference to Exhibit
10.1 to the Registrant's Current Report on Form 8-K, filed with the
Commission on May 16, 2011.
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VistaGen Therapeutics, Inc. Amended
and Restated 2016 Equity Incentive Plan.
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Incorporated by reference Appendix
A to the Registrant's Definitive Proxy Statement, filed with the
Commission on August 8, 2016.
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VistaGen Therapeutics, Inc. 2019
Omnibus Equity Incentive Plan.
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Incorporated by reference to
Appendix B from the Registrant’s Definitive Proxy Statement,
filed with the Commission on July 23, 2019.
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Item 9.
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Undertakings
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(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; and
(ii) To
reflect in the prospectus any facts or events arising after the
effective date of this 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; and
(iii) To include any material information
with respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement; and
(2) That,
for the purpose of determining any liability under the Securities
Act, 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; and
(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.
Provided, however,
that paragraphs (1)(i) and (1)(ii) above 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 Securities Exchange Act that are incorporated
by reference in the Registration Statement.
(b) The
undersigned Registrant hereby undertakes 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
Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has 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. In the event that
a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the 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-8 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, State of California, on September 30, 2019.
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VistaGen Therapeutics, Inc.
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By:
/s/ Shawn K.
Singh
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Name:
Shawn K. Singh
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Title:
Chief Executive Officer
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Pursuant to the
requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the
capacities and on the dates indicated.
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Signature
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Title(s)
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Date
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/s/ Shawn K.
Singh
Shawn
K. Singh
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Chief
Executive Officer, and Director
(Principal Executive Officer)
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September 30,
2019
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/s/ Jerrold D.
Dotson
Jerrold
D. Dotson
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Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
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September 30,
2019
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/s/ H. Ralph
Snodgrass
H.
Ralph Snodgrass, Ph. D.
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President, Chief Scientific Officer and Director
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September 30,
2019
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/s/ Jon S.
Saxe
Jon S.
Saxe
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Chairman of the Board of Directors
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September 30,
2019
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/s/ Brian J.
Underdown
Brian
J. Underdown, Ph. D.
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Director
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September 30,
2019
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/s/ Jerry B.
Gin
Jerry
B. Gin, Ph. D., MBA
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Director
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September 30,
2019
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/s/ Ann M.
Cunningham
Ann M.
Cunningham
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Director
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September 30,
2019
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September
30, 2019
VistaGen Therapeutics, Inc.
343 Allerton Avenue
South San Francisco, CA 94080
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Re:
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Post-Effective
Amendment to Registration Statement on Form S-8 for VistaGen
Therapeutics, Inc.
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Dear Ladies and Gentlemen:
We have acted as legal counsel to VistaGen
Therapeutics, Inc., a Nevada corporation (the
“Company”), in connection with the preparation of
the Company’s Post-Effective Amendment No. 1 to the
Registration Statement on Form S-8 (the “Post-Effective
Amendment”), relating to
the registration under the Securities Act of 1933, as amended (the
“Act”), of the Prior Plan Shares (as defined
below) authorized for issuance under the 2019 Plan (as defined
below). On September 5, 2019 (the
“Effective
Date”), the stockholders
of the Company approved the VistaGen Therapeutics, Inc. 2019
Omnibus Equity Incentive Plan (the “2019 Plan”). The total number of shares of
the Company’s common stock, par value $0.001 per share (the
“Common
Stock”), authorized for
issuance under the 2019 Plan includes, in addition to 7,500,000 new
shares of Common Stock registered concurrently on a new
registration statement on Form S-8 being filed by the Company (the
“New
Registration Statement”),
an aggregate of 1,388,412 unallocated shares of Common Stock
available for issuance under the VistaGen Therapeutics, Inc.
Amended and Restated 2016 Equity Incentive Plan (the
“Prior Plan” and collectively with the 2019 Plan, the
“Plans”), that are not subject to outstanding
“Awards” (as defined in the 2019 Plan) as of the
Effective Date (the “Prior Plan
Shares”).
With respect to the opinion set forth below, we
have examined originals, certified copies, or copies otherwise
identified to our satisfaction as being true copies, of the
following: (i) the Restated Articles of Incorporation of the
Company, as amended, as currently in effect; (ii) the Amended and
Restated Bylaws of the Company, as currently in effect; (iii)
resolutions of the Board of Directors of the Company adopting the
2019 Plan, authorizing the issuance of the shares of Common Stock
under the 2019 Plan and authorizing the filing of the New
Registration Statement; (iv) resolutions of the Board of Directors
of the Company adopting the Prior Plan, authorizing the issuance of
the shares of Common Stock under the Prior Plan and authorizing the
filing of the prior registration statement on Form S-8 relating to
the Prior Plan (collectively, the “Prior Registration
Statement”); (v) the
Plans; (vi) the Post-Effective Amendment, the Prior Registration
Statement and the New Registration Statement; and (vii) such other
documents, records and other instruments as we have deemed
appropriate for purposes of the opinion set forth
herein.
In making the foregoing examinations, we have assumed the
genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents
of all documents submitted to us as certified or photostatic copies
and that the persons executing the documents examined by us have
the legal capacity to execute such documents. We have
also assumed that the offer and sale of the Prior Plan Shares
complies and will comply in all respects with the terms, conditions
and restrictions set forth in the Prior Registration Statements (as
amended by the Post-Effective Amendment) and the 2019 Plan. As to
various questions of fact material to this opinion, we have relied,
to the extent we deemed reasonably appropriate, upon
representations of officers or directors of the Company and upon
documents, records and instruments furnished to us by the Company,
without independently checking or verifying the accuracy of such
documents, records and instruments.
Based upon the foregoing examination and assumptions and further
assuming that (i) the Company maintains an adequate number of
authorized and unissued shares of Common Stock available for
issuance pursuant to the 2019 Plan and (ii) the consideration, if
any, required to be paid in connection with the issuance of
underlying Prior Plan Shares issued pursuant to the 2019 Plan is
actually received by the Company as provided in the 2019 Plan, we
are of the opinion that the Prior Plan Shares to be issued pursuant
to the 2019 Plan will be duly authorized, validly issued, fully
paid and nonassessable.
The opinion expressed herein is specifically limited to the Nevada
Revised Statutes and the federal laws of the United States of
America and speaks only as of the date hereof. Further,
our opinion is based solely upon existing laws, rules, and
regulations, and we undertake no obligation to update or supplement
such opinion to reflect any facts or circumstances that may
hereafter come to our attention or any changes in law that may
hereafter occur. This opinion is rendered solely in
connection with the transactions covered hereby and may not be
relied upon for any other purpose, without our prior written
consent.
We hereby consent to the inclusion of this opinion as an exhibit to
the Post-Effective Amendment. In giving such consent, we
do not admit that we come within the category of persons whose
consent is required under Section 7 of the Act or the rules or
regulations of the U.S. Securities and Exchange Commission
thereunder.
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Very
truly yours,
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/s/ Disclosure Law
Group
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Disclosure
Law Group, a Professional Corporation
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Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We
hereby consent to the incorporation by reference in this
Post-Effective Amendment No. 1 to the Registration Statement
on Form S-8 of VistaGen
Therapeutics, Inc., pertaining to the
VistaGen Therapeutics, Inc. 1999 Stock Incentive Plan and the
VistaGen Therapeutics, Inc. Amended and Restated 2016 Equity
Incentive Plan 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.
/s/ OUM & CO. LLP
San Francisco, California
September 30, 2019