As
filed with the Securities and Exchange Commission on March
31, 2020
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VISTAGEN THERAPEUTICS, INC.
(Exact
name of registrant as specified in its charter)
|
Nevada
|
2834
|
20-5093315
|
|
(State
or Other Jurisdiction of
Incorporation
or Organization)
|
(Primary
Standard Industrial
Classification
Code Number)
|
(I.R.S.
Employer
Identification
Number)
|
343 Allerton Ave.
South San Francisco, California 94090
(650) 577-3600
(Address,
including zip code, and telephone number,
including
area code, of registrant’s principal executive
offices)
Shawn K. Singh
Chief Executive Officer
VistaGen Therapeutics, Inc.
343 Allerton Avenue
South San Francisco, California 94080
(650) 577-3600
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
Copies to
Daniel W. Rumsey, Esq.
Jessica R. Sudweeks, Esq.
Disclosure Law Group, a Professional Corporation
655 West Broadway, Suite 870
San Diego, CA 92101
Telephone: (619) 272-7050
Facsimile: (619) 330-2101
Approximate date of commencement of proposed sale to the
public: As soon as practicable after this registration
statement becomes effective.
If any
of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, 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, 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 post-effective amendment filed pursuant to Rule 462(d)
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. ☐
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:
|
Large accelerated filer
|
[
]
|
Accelerated filer
|
[
]
|
|
Non-accelerated
filer
|
[
]
|
Smaller reporting company
|
[X]
|
|
|
Emerging
growth company
|
[
]
|
|
If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 13(a) of the Exchange Act. ☐
CALCULATION OF REGISTRATION FEE
|
Title
of each class of
securities
to be registered
|
Amount
to
be
registered
(1)
|
Proposed
maximum
offering
price per
share
(2)
|
Proposed
maximum
aggregate
offering
price
|
Amount
of
registration
fee
|
|
Common stock, par
value $0.001 per share
|
9,592,607
|
$0.46
|
$4,412,599.22
|
$572.76
|
(1)
Pursuant
to Rule 416 under the Securities Act of 1933, as amended, this
registration statement shall be deemed to cover the additional
securities of the same class as the securities covered by this
registration statement issued or issuable prior to completion of
the distribution of the securities covered by this registration
statement as a result of a split of, or a stock dividend on, the
registered securities.
(2)
Pursuant
to Rule 457(c) of the Securities Act of 1933, as amended,
calculated on the basis of the average of the high and low prices
per share of the registrant’s common stock as reported by The
Nasdaq Capital Market on March 25, 2020.
The
Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states
that this Registration Statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933
or until the Registration Statement shall become effective on such
date as the Commission, acting pursuant to said Section 8(a),
may determine.
The information in this preliminary prospectus is not complete and
may be changed. These securities may not be sold until the
registration statement filed with the Securities and Exchange
Commission is effective. This preliminary prospectus is not an
offer to sell these securities nor does it seek an offer to buy
these securities in any jurisdiction where the offer or sale is not
permitted.
|
PRELIMINARY PROSPECTUS
|
SUBJECT TO COMPLETION
|
DATED MARCH 31, 2020
|
9,592,607 Shares of Common
Stock
This
prospectus relates to the offer and sale of up to 9,592,607 shares
of common stock, par value $0.001, of VistaGen Therapeutics, Inc.,
a Nevada corporation, by Lincoln Park Capital Fund, LLC
(Lincoln Park) or the selling
stockholder.
The
shares of common stock being offered by the selling stockholder
have been or may be issued pursuant to a purchase agreement that we
entered into with Lincoln Park on March 24, 2020. See The Lincoln Park Transaction for a
description of that agreement and Selling Stockholder for additional
information regarding Lincoln Park. The prices at which Lincoln
Park may sell the shares will be determined by the prevailing
market price for the shares or in negotiated
transactions.
We are
not selling any securities under this prospectus and will not
receive any of the proceeds from the sale of shares by the selling
stockholder.
The
selling stockholder may sell the shares of common stock described
in this prospectus in a number of different ways and at varying
prices. See Plan of
Distribution for more information about how the selling
stockholder may sell the shares of common stock being registered
pursuant to this prospectus. The selling stockholder is an
“underwriter” within the meaning of Section 2(a)(11) of
the Securities Act of 1933, as amended (the
Securities Act)
..
The
selling stockholder will pay all brokerage fees and commissions and
similar expenses. We will pay the expenses (except brokerage fees
and commissions and similar expenses) incurred in registering the
shares, including legal and accounting fees. See Plan of Distribution.
Our
common stock is currently listed on The Nasdaq Capital Market under
the symbol “VTGN”. On March 31, 2020, the last reported
sale price of our common stock on The Nasdaq Capital Market was
$0.44 per share.
Investing in our common stock involves a high degree of risk. You
should review carefully the risks and uncertainties described under
“Risk Factors” beginning on page 6 of this prospectus,
and under similar headings in any amendments or supplements to this
prospectus.
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
,
2020.
TABLE OF CONTENTS
|
1
|
|
|
6
|
|
|
9
|
|
|
10
|
|
|
11
|
|
|
12
|
|
|
13
|
|
|
14
|
|
|
18
|
|
|
19
|
|
|
21
|
|
|
21
|
|
|
21
|
|
|
II-2
|
|
|
|
|
|
|
This summary highlights information contained elsewhere in this
prospectus and does not contain all of the information you should
consider in making your investment decision. Before deciding to
invest in our common stock, you should read this entire prospectus
carefully, including the sections of this prospectus entitled
“Risk Factors” and “Management’s Discussion
and Analysis of Financial Condition and Results of
Operations” and our consolidated financial statements and
related notes contained elsewhere in this prospectus. Unless the
context otherwise requires, the words “VistaGen Therapeutics,
Inc.” “VistaGen,” “we,” “the
Company,” “us” and “our” refer to
VistaGen Therapeutics, Inc., a Nevada corporation. “VistaStem
Therapeutics, Inc.” and “VistaGen California”
refer to our wholly owned subsidiary, VistaGen Therapeutics, Inc.,
a California corporation doing business as VistaStem Therapeutics,
Inc.
Business Overview
We are a multi-asset, clinical-stage
biopharmaceutical company committed to developing differentiated
new generation medications for anxiety, depression and other
central nervous system (CNS) diseases and disorders with high unmet need. Our
pipeline includes three clinical-stage CNS drug candidates, each
with a differentiated mechanism of action, an exceptional safety
profile in all clinical studies to date, and therapeutic potential
in multiple CNS markets. 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.
PH94B Neuroactive Nasal Spray for Anxiety-related
Disorders
PH94B neuroactive nasal spray is an odorless,
first-in-class, fast-acting synthetic neurosteroid with therapeutic
potential in a wide range of neuropsychiatric indications involving
anxiety or phobia. Conveniently self-administered in microgram
doses without systemic exposure, we are initially developing PH94B
as a potential fast-acting, non-sedating, non-addictive new
generation treatment of social anxiety disorder
(SAD).
SAD affects over 20 million Americans and, according to the
National Institutes of Health (NIH), is the third most common psychiatric condition
after depression and substance abuse. A person with SAD feels
symptoms of anxiety or fear in certain social situations, such as
meeting new people, dating, being on a job interview, answering a
question in class, or having to talk to a cashier in a store. Doing
everyday things in front of people - such as eating or drinking in
front of others or using a public restroom - also causes anxiety or
fear. A person with SAD is afraid that he or she will be
humiliated, judged, and rejected. The fear that people with
SAD have in social situations is so strong that they feel it is
beyond their ability to control. As a result, SAD gets in the way
of going to work, attending school, or doing everyday things in
situations with potential for interpersonal interaction. People
with SAD may worry about these and other things for weeks before
they happen. Sometimes, they end up staying away from places or
events where they think they might have to do something that will
embarrass or humiliate them. Some people with SAD have
performance anxiety. They feel physical symptoms of fear and
anxiety in performance situations, such as giving a lecture, a
speech or a presentation at school or work, as well as playing a
sports game, or dancing or playing a musical instrument on
stage. Without treatment, SAD can last for many years or a
lifetime and prevent a person from reaching his or her full
potential.
Only three drugs, all oral antidepressants
(ADs), are approved by the U.S Food and Drug
Administration (FDA) specifically for treatment of SAD. These
FDA-approved chronic ADs have slow onset of therapeutic effect
(often taking many weeks to months) and significant side effects
(often beginning soon after administration). Slow onset of effect,
chronic administration and significant side effects may make the
FDA-approved ADs inadequate or inappropriate treatment alternatives
for many individuals affected by SAD episodically. VistaGen’s
PH94B is fundamentally differentiated from all current anxiolytics,
including all ADs approved by the FDA for treatment of SAD.
Intranasal self-administration of only approximately 3.2 micrograms
of PH94B binds to nasal chemosensory receptors that, in turn,
activate key neural circuits in the brain that lead to rapid
suppression of fear and anxiety. In Phase 2 and pilot Phase 3
clinical studies to date, PH94B has not shown psychological side
effects (such as dissociation or hallucinations), systemic
exposure, sedation or other side effects and safety concerns that
may be caused by the current ADs approved by the FDA for treatment
of SAD, as well as by benzodiazepines and beta blockers, which are
not approved by the FDA to treat SAD but which may be prescribed by
psychiatrists and physicians for treatment of SAD on an off-label
basis.
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
both public-speaking (performance) anxiety (p=0.002) and social
interaction anxiety (p=0.009) in laboratory challenges of
individuals with SAD within 15 minutes of self-administration of a
non-systemic 1.6 microgram dose of PH94B. Based on its novel
mechanism of pharmacological action, rapid-onset of therapeutic
effects and exceptional safety and tolerability profile in Phase 2
and pilot Phase 3 clinical trials to date, we are preparing for
Phase 3 clinical development of PH94B for treatment of SAD in
adults. Our goal is to develop and commercialize PH94B as the first
FDA-approved, fast-acting, on-demand, at-home treatment for SAD.
Additional potential anxiety-related neuropsychiatric indications
for PH94B include general anxiety disorder, peripartum anxiety
(pre- and post-partum anxiety), preoperative or pre-testing (e.g.,
pre-MRI) anxiety, panic disorder, post-traumatic stress disorder
and specific social phobias. The FDA has granted
Fast Track designation for development of our PH94B neuroactive
nasal spray for on-demand treatment of SAD, the FDA’s first
such designation for a drug candidate for SAD.
|
|
|
|
|
|
|
|
|
|
|
|
PH10 Neuroactive Nasal Spray for Depression and Suicidal
Ideation
PH10 neuroactive nasal spray is an odorless,
first-in-class, fast-acting synthetic neurosteroid with therapeutic
potential in a wide range of neuropsychiatric indications involving
depression and suicidal ideation. Conveniently self-administered in
microgram doses without systemic exposure, we are initially
developing PH94B as a potential fast-acting, non-sedating,
non-addictive new generation treatment of major depressive disorder
(MDD).
Depression
is a serious medical illness and a global public health concern
that can occur at any time over a person's life. While most people
will experience depressed mood at some point during their lifetime,
MDD is different. MDD is the chronic, pervasive feeling of utter
unhappiness and suffering, which impairs daily functioning.
Symptoms of MDD include diminished pleasure or loss of interest in
activities, changes in appetite that result in weight changes,
insomnia or oversleeping, psychomotor agitation, loss of energy or
increased fatigue, feelings of worthlessness or inappropriate
guilt, difficulty thinking, concentrating or making decisions, and
thoughts of death or suicide and attempts at suicide. Current
FDA-approved medications available in the multi-billion-dollar
global AD market often fall far short of satisfying the unmet
medical needs of millions suffering from the debilitating effects
of depression.
While
current FDA-approved ADs are widely used, about two-thirds of
patients with MDD do not respond to their initial AD treatment.
Inadequate response to current ADs is among the key reasons MDD is
one of the leading public health concerns in the United States,
creating a significant unmet medical need for new agents with
fundamentally different mechanisms of action and side effect and
safety profiles.
PH10 is a new generation antidepressant with a
mechanism of action that is fundamentally different from all
current ADs. After self-administration, a non-systemic
microgram-level dose of PH10 binds to nasal chemosensory receptors
that, in turn, activate key neural circuits in the brain that can
lead to rapid-onset antidepressant effects, but without the
psychological side effects (such as dissociation and
hallucinations) or safety concerns that maybe be caused by
ketamine-based therapy (KBT), including intravenous ketamine or esketamine
nasal spray, or the significant side effects of current ADs. In an
exploratory 30-patient Phase 2a clinical trial, PH10,
self-administered at a dose of 6.4 micrograms, was well-tolerated
and demonstrated significant (p=0.022) rapid-onset antidepressant
effects, which were sustained over an 8-week period, as measured by
the Hamilton Depression Rating Scale (HAM-D), without side effects
or safety concerns that may be caused by KBT. Based on positive
results from this exploratory Phase 2a study, we are preparing for
Phase 2b clinical development of PH10 in MDD. With its exceptional
safety profile during clinical development to date, we believe
PH10, as a convenient at-home therapy, has potential for multiple
applications in global depression markets, including as a
stand-alone front-line therapy for MDD, as an add-on therapy to
augment current FDA-approved ADs for patients with MDD who have an
inadequate response to standard ADs, and to prevent relapse
following successful treatment with KBT.
AV-101, an Oral NMDA Receptor Antagonist
AV-101
(4-Cl-KYN) targets the NMDAR (N-methyl-D-aspartate receptor), an
ionotropic glutamate receptor in the brain. Abnormal NMDAR function
is associated with numerous CNS diseases and disorders. AV-101 is
an oral prodrug of 7-chloro-kynurenic acid (7-Cl-KYNA), which is a
potent and selective full antagonist of the glycine co-agonist site
of the NMDAR that inhibits the function of the NMDAR. Unlike
ketamine and many other NMDAR antagonists, 7-Cl-KYNA is not an ion
channel blocker. In all studies to date, AV-101 has exhibited no
dissociative or hallucinogenic psychological side effects or safety
concerns similar to those that may be caused by amantadine and KBT.
With its exceptionally few side effects and excellent safety
profile, AV-101 has potential to be a differentiated oral, new
generation treatment for multiple large-market CNS indications
where current treatments are inadequate to meet high unmet patient
needs. The FDA has granted Fast Track designation for development
of AV-101 as both a potential adjunctive treatment for MDD and as a
non-opioid treatment for neuropathic pain.
We recently completed a double-blind,
placebo-controlled, multi-center Phase 2 clinical trial of AV-101
as a potential adjunctive treatment, together with a standard
FDA-approved oral AD (either a selective serotonin reuptake
inhibitor (SSRI) or a
serotonin norepinephrine reuptake inhibitor (SNRI)), in
MDD patients who had an inadequate response to a stable dose
of a standard AD (the Elevate
Study). Topline results of the
Elevate Study (n=199) indicated that the AV-101 treatment arm (1440
mg) did not differentiate from placebo on the primary endpoint
(change in the Montgomery-Åsberg Depression Rating Scale
(MADRS-10) total score compared to baseline), potentially due to
sub-therapeutic levels of 7-Cl-KYNA in the brain. As in prior
clinical studies, AV-101 was well tolerated, with no
psychotomimetic side effects or drug-related serious adverse
events.
|
|
|
|
|
|
|
|
|
|
|
|
Recent discoveries from successful AV-101
preclinical studies suggest that there is a substantially increased
brain concentration of AV-101 and its active metabolite, 7-Cl-KYNA,
when AV-101 is given together with probenecid, a safe and
well-known oral anion transport inhibitor used to treat gout. These
surprising effects were first revealed in our recent preclinical
studies, although they are consistent with well-documented clinical
studies of probenecid increasing the therapeutic benefits of
several unrelated classes of approved drugs, including
certain antibacterial, anticancer and antiviral drugs. When probenecid was administered adjunctively
with AV-101 in an animal model, substantially increased brain
concentrations of both AV-101 (7-fold) and of 7-Cl-KYNA (35-fold)
were discovered. We
also recently identified that some of the same kidney transporters
that reduce drug concentrations in the blood, by excretion in the
urine, are also found in the blood brain barrier and function to
reduce 7-Cl-KYNA levels in the brain by pumping it out of the brain
and back into the blood. In the recent preclinical studies with
AV-101 and probenecid, we discovered that blocking those
transporters in the blood brain barrier with probenecid resulted,
as noted above, in a substantially increased brain concentration of
7-Cl-KYNA. This 7-Cl-KYNA efflux-blocking effect of probenecid,
with the resulting increased brain levels and duration of
7-Cl-KYNA, suggests the potential impact of AV-101 with probenecid
could result in far more profound therapeutic benefits for patients
with MDD and other NMDAR-focused CNS diseases and disorders than
demonstrated in the Elevate Study.
Some of the new discoveries from our
recent AV-101 preclinical studies with adjunctive probenecid were
presented by a collaborator of VistaGen at the British
Pharmacological Society’s Pharmacology 2019 annual conference
in Edinburgh, UK in December 2019.
In addition, a Phase 1b target engagement study
completed after the Elevate Study by the Baylor College of Medicine
(Baylor) with financial support from the U.S. Department
of Veterans Affairs (VA), involved 10 healthy volunteer U.S. military
Veterans who received single doses of AV-101 (720 mg or 1440 mg) or
placebo, in a double-blind, randomized, cross-over controlled
trial. The primary goal of the study was to identify and define a
dose-response relationship between AV-101 and multiple
electrophysiological (EEG) biomarkers related to NMDAR function, as well as
blood biomarkers associated with suicidality (the
Baylor
Study). The findings from the
Baylor Study suggest that, in healthy Veterans, the higher dose of
AV-101 (1440 mg) was associated with dose-related increase in the
40 Hz Auditory Steady State Response (ASSR), a robust measure of the integrity of inhibitory
interneuron synchronization that is associated with NMDAR
inhibition. Findings from the successful Baylor Study were
presented at the 58th Annual Meeting of the American College of
Neuropsychopharmacology (ACNP) in Orlando, Florida in December
2019.
The
successful Baylor Study and the recent discoveries in our
preclinical studies involving AV-101 and adjunctive probenecid
suggest that it may be possible to increase therapeutic
concentrations and duration of 7-Cl-KYNA in the brain, and thus
increase NMDAR antagonism in MDD patients with an inadequate
response to standard ADs when AV-101 and probenecid are combined.
During 2020, we plan to conduct additional AV-101 preclinical
studies with adjunctive probenecid to evaluate its potential
applicability to MDD, suicidal ideation and other NMDAR-focused CNS
indications for which we have existing preclinical data with AV-101
as a monotherapy, including epilepsy, levodopa-induced dyskinesia,
and neuropathic pain, to determine the most appropriate path
forward for potential future clinical development and
commercialization of AV-101.
VistaStem Therapeutics – Stem Cell Technology for Drug Rescue
and Regenerative Medicine
In addition to our current CNS drug candidates, we
have stem cell technology-based, pipeline-enabling programs through
our wholly-owned subsidiary, VistaStem Therapeutics
(VistaStem). VistaStem is focused on applying human
pluripotent stem cell (hPSC) technologies, including our customized cardiac
bioassay system, CardioSafe
3D, to discover and develop
small molecule New Chemical Entities (NCEs) for our CNS pipeline or out-licensing. In
addition, VistaStem’s stem cell technologies involving
hPSC-derived blood, cartilage, heart and liver cells have multiple
potential applications in the cell therapy (CT) and regenerative medicine (RM)
fields.
To advance potential CT and RM applications of
VistaStem’s hPSC technologies related to heart cells, we
licensed to BlueRock Therapeutics LP, a next generation CT/RM
company formed jointly by Bayer AG and Versant Ventures, rights to
develop and commercialize certain proprietary technologies relating
to the production of cardiac stem cells for the treatment of heart
disease. As a result of its acquisition of BlueRock Therapeutics in
2019, Bayer AG now holds rights to develop and commercialize
VistaStem’s hPSC technologies relating to the production of
heart cells for the treatment of heart disease
(the Bayer
Agreement). In a manner
similar to the Bayer Agreement, we may pursue additional
collaborations involving rights to develop and commercialize
VistaStem’s hPSC technologies for production of blood,
cartilage, and/or liver cells for CT and RM applications,
including, among other indications, treatment of arthritis, cancer
and liver disease.
|
|
|
|
|
|
|
|
|
|
|
|
Recent Developments
January 2020 Registered Direct Offering and Concurrent Offering of
Warrants
On January 24, 2020, we entered into a
securities purchase agreement with certain accredited investors
pursuant to which we received gross cash proceeds of $2.75 million
upon the sale of an aggregate of 3,870,077 shares of our common
stock at a purchase price of $0.71058 per share (the
January 2020
Offering). Concurrently with
the January 2020 Offering, we also commenced a private placement in
which we issued and sold warrants exercisable for an aggregate of
3,870,077 unregistered shares of our common stock (the
Warrant
Shares), having an exercise
price of $0.73 per Warrant Share.
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 supplement or the accompanying prospectus. We have
included our website address as a factual reference and do not
intend it to be an active link to our website.
Lincoln Park Purchase Agreement
On March 24, 2020, we entered into a purchase
agreement (the Purchase
Agreement) and a registration
rights agreement (the Registration Rights
Agreement) with Lincoln Park
pursuant to which Lincoln Park committed to purchase up to
$10,250,000 of our common stock.
Under the terms and subject to the conditions of
the Purchase Agreement, we have the right, but not the obligation,
to sell to Lincoln Park, and Lincoln Park is obligated to purchase
up to $10,250,000 of shares of our common stock. On March 24, 2020,
we sold 500,000 shares of common stock to Lincoln Park under the
Purchase Agreement at a price of $0.50 per share for proceeds of
$250,000. Future sales of common stock under the Purchase
Agreement, if any, will be subject to certain limitations, and may
occur from time to time, at our sole discretion, over the 24-month
period commencing on the date that a registration statement of
which this prospectus forms a part, which we agreed to file with
the Securities and Exchange Commission (the SEC) pursuant to the Registration Rights Agreement,
is declared effective by the SEC and a final prospectus in
connection therewith is filed and the other conditions set forth in
the Purchase Agreement are satisfied (such date on which all of
such conditions are satisfied, the Commencement
Date).
After the Commencement Date, on any business day
over the term of the Purchase Agreement, we have the right, in our
sole discretion, to direct Lincoln Park to purchase up to 100,000
shares on such business day (the Regular
Purchase), subject to increases
under certain circumstances as provided in the Purchase Agreement.
The purchase price per share for each such Regular Purchase will be
based on prevailing market prices of the Company’s common
stock immediately preceding the time of sale as computed under the
Purchase Agreement. In each case, Lincoln Park’s maximum
commitment in any single Regular Purchase may not exceed
$1,000,000. In addition to Regular Purchases, provided that we
present Lincoln Park with a purchase notice for the full amount
allowed for a Regular Purchase, we may also direct Lincoln Park to
make accelerated purchases
and additional accelerated purchases as described in the Purchase
Agreement.
Under applicable rules of the Nasdaq Capital
Market, the aggregate number of shares that we can sell to Lincoln
Park under the Purchase Agreement may in no case exceed 19.99%
of our common stock outstanding immediately prior to the execution
of the Purchase Agreement (which is 9,592,607 shares of common
stock) (the Exchange
Cap), unless (i) stockholder
approval is obtained to issue more, in which case the Exchange Cap
will not apply, or (ii) the average price of all applicable sales
of our common stock to Lincoln Park under the Purchase Agreement
equals or exceeds the closing price of our common stock on the
Nasdaq Capital Market immediately preceding the signing of the
Purchase Agreement, plus an incremental amount such that
issuances and sales of our common stock to Lincoln Park under the
Purchase Agreement would be exempt from the Exchange Cap limitation
under applicable rules of the Nasdaq Capital
Market.
Lincoln
Park has no right to require us to sell any shares of common stock
to Lincoln Park, but Lincoln Park is obligated to make purchases as
we direct, subject to certain conditions. In all instances, we may
not sell shares of our common stock to Lincoln Park under the
Purchase Agreement if it would result in Lincoln Park beneficially
owning more than 9.99% of our common stock. There are no upper
limits on the price per share that Lincoln Park must pay for shares
of our common stock pursuant to the Purchase
Agreement.
The
Purchase Agreement and the Registration Rights Agreement contain
customary representations, warranties, agreements and conditions
and indemnification obligations of the parties. We have the right
to terminate the Purchase Agreement at any time, at no cost or
penalty. We issued to Lincoln Park 750,000 shares of common
stock, or approximately 2.7% of the value of the shares of common
stock issuable under the Purchase Agreement, in consideration for
entering into the Purchase Agreement.
Issuances of our
common stock in this offering will not affect the rights or
privileges of our existing stockholders, except that the economic
and voting interests of each of our existing stockholders will be
diluted as a result of any such issuance. Although the number of
shares of common stock that our existing stockholders own will not
decrease, the shares owned by our existing stockholders will
represent a smaller percentage of our total outstanding shares
after any such issuance to Lincoln Park.
|
|
|
|
|
|
|
|
|
|
||
|
|
The Offering
|
|
||
|
|
|
|
|
|
|
|
Shares of common stock offered by the selling
stockholders
|
|
9,592,607 shares consisting
of:
●
500,000 shares sold to Lincoln Park at $0.50
per share on the Execution Date (the Initial Purchase Shares);
●
8,342,607
shares we may sell to Lincoln Park under the Purchase Agreement
from time to time after the date of this prospectus;
and
●
750,000 commitment shares issued to Lincoln
Park on the Execution Date (the Commitment Shares).
|
|
|
|
|
|
|
|
|
|
Shares of common stock outstanding before this
offering
|
|
47,963,042 shares of common stock.
|
|
|
|
|
|
|
|
|
|
Shares of common stock to be outstanding after giving effect to the
issuance of 9,592,607 shares under the Purchase Agreement
registered hereunder
|
|
57,555,649 shares of common stock.
|
|
|
|
|
|
|
|
|
|
Use of proceeds
|
|
We will
receive no proceeds from the sale of shares of common stock by
Lincoln Park in this offering. We may receive up to $10,000,000
aggregate gross proceeds under the Purchase Agreement from any
sales we make to Lincoln Park pursuant to the Purchase Agreement
after the date of this prospectus.
Any
proceeds that we receive from sales to Lincoln Park under the
Purchase Agreement will be used for working capital and general
corporate purposes. See Use of
Proceeds.
|
|
|
|
|
|
|
|
|
|
Terms of this offering
|
|
The
selling stockholder, including its transferees, donees, pledgees,
assignees and successors-in-interest, may sell, transfer or
otherwise dispose of any or all of the shares of common stock
offered by this prospectus from time to time on The Nasdaq Capital
Market or any other stock exchange, market or trading facility on
which the shares are traded or in private transactions. The shares
of common stock may be sold at fixed prices, at market prices
prevailing at the time of sale, at prices related to prevailing
market price or at negotiated prices.
|
|
|
|
|
|
|
|
|
|
Nasdaq symbol
|
|
Our
common stock is listed on The Nasdaq Capital Market under the
symbol “VTGN”.
|
|
|
|
|
|
|
|
|
|
Risk Factors
|
|
Investing
in our common stock involves a high degree of risk. You should
review carefully the risks and uncertainties described in or
incorporated by reference under the heading “Risk Factors” in this prospectus,
the documents we have incorporated by reference herein, and under
similar headings in other documents filed after the date hereof and
incorporated by reference into this prospectus. See
“Incorporation of Certain
Information by Reference” and “Where You Can Find More
Information”.
|
|
|
|
Unless
otherwise noted, the number of shares of our common stock prior to
and after this offering is based on 49,213,042 shares outstanding as of
March 30, 2020 and excludes:
●
750,000 shares
of common stock reserved for
issuance upon conversion of 500,000 shares our Series A
Preferred Stock 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 10% Convertible
Preferred Stock 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 Convertible Preferred
Stock held by one institutional investor;
●
22,555,281 shares
of common stock that have been reserved for issuance upon exercise
of outstanding warrants, with a weighted average exercise price of
$1.64 per share;
●
7,768,088 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 $1.41 per share;
and
●
6,730,162 shares
of common stock reserved for future issuance in connection with
future grants under our 2019 Omnibus Equity Incentive
Plan.
●
1,000,000 shares of
common stock reserved for future issuance in connection with future
sales under our 2019 Employee Stock Purchase Plan.
|
|
||
RISK FACTORS
Our Annual Report on Form 10-K for the fiscal year ended March 31,
2019 and our Quarterly Report on Form 10-Q for the quarters ended
June 30, 2019, September 30, 2019 and December 31, 2019, which are
incorporated by reference into this prospectus, as well as our
other filings with the SEC, include material risk factors relating
to our business. Those risks and uncertainties and the risks and
uncertainties described below are not the only risks and
uncertainties that we face. Additional risks and uncertainties that
are not presently known to us or that we currently deem immaterial
or that are not specific to us, such as general economic
conditions, may also materially and adversely affect our business
and operations. If any of those risks and uncertainties or the
risks and uncertainties described below actually occurs, our
business, financial condition or results of operations could be
harmed substantially. In such a case, you may lose all or part of
your investment. You should carefully consider the risks and
uncertainties described below and those risks and uncertainties
incorporated by reference into this prospectus supplement, as well
as the other information included in this prospectus supplement,
before making an investment decision with respect to our common
stock.
Risks Related to this Offering
The sale or issuance of our common stock to Lincoln Park may cause
dilution and the sale of the shares of common stock acquired by
Lincoln Park, or the perception that such sales may occur, could
cause the price of our common stock to fall.
On
March 24, 2020, we entered into the Purchase Agreement with Lincoln
Park, pursuant to which Lincoln Park has committed to purchase up
to $10,250,000 of our common stock, including the Initial Purchase
Shares. Upon the execution of the Purchase Agreement, we issued
750,000 Commitment Shares to Lincoln Park as a fee for its
commitment to enter into the Purchase Agreement and purchase shares
of our common stock thereunder. The remaining shares of our common
stock that may be issued under the Purchase Agreement may be sold
by us to Lincoln Park, at our sole discretion, from time to time
over a 24-month period commencing after the satisfaction of certain
conditions set forth in the Purchase Agreement, including that the
SEC has declared effective the registration statement that includes
this prospectus. The purchase price for the shares that we may sell
to Lincoln Park under the Purchase Agreement will fluctuate based
on the prevailing price of our common stock on the date(s) of
purchase. Depending on market liquidity at the time, sales of such
shares may cause the trading price of our common stock to
fall.
We
generally have the right to control the timing and amount of any
future sales of our shares to Lincoln Park. Additional sales of our
common stock, if any, to Lincoln Park will depend upon market
conditions and other factors to be determined solely by us. We may
ultimately decide to sell to Lincoln Park all, some or none of the
8,342,607 additional shares of
our common stock that may be available for us to sell pursuant to
the Purchase Agreement. If and when we do sell any additional
shares to Lincoln Park, after Lincoln Park has acquired the shares,
Lincoln Park may resell all, some or none of those shares at any
time or from time to time in its discretion. Therefore, sales to
Lincoln Park by us could result in substantial dilution to the
interests of other holders of our common stock. Additionally, the
sale of a substantial number of shares of our common stock to
Lincoln Park, or the anticipation of such sales, could make it more
difficult for us to sell equity or equity-related securities in the
future at a time and at a price that we might otherwise wish to
effect sales.
Our stock price may be volatile, and you may not be able to resell
shares of our common stock at or above the price you
paid.
The
public trading price for our common stock can be affected by a
number of factors, including:
●
plans
for, progress of or results from nonclinical and clinical
development activities related to our product
candidates;
●
the
failure of the FDA or other regulatory authority to approve our
product candidates;
●
announcements
of new products, technologies, commercial relationships,
acquisitions or other events by us or our competitors;
●
the
success or failure of other CNS therapies;
●
regulatory
or legal developments in the U.S. and other countries;
●
announcements
regarding our intellectual property portfolio;
●
failure
of our product candidates, if approved, to achieve commercial
success;
●
fluctuations
in stock market prices and trading volumes of similar
companies;
●
variations
in our quarterly operating results;
●
changes
in our financial guidance or securities analysts’ estimates
of our financial performance;
●
sales
or purchases of large blocks of our common stock, including sales
or purchases by our executive officers, directors and significant
stockholders;
●
establishment of
short positions by holders or non-holders of our
stock;
●
additions
or departures of key personnel;
●
discussion
of us or our stock price by the press and by online investor
communities; and
●
general market conditions and overall fluctuations
in U.S. equity markets, including fluctuations attributable to the
recent outbreak of the novel coronavirus (COVID-19);
●
conditions
that are outside of our control, such as the impact of health and
safety concerns from the current outbreak of COVID-19 or other
unforeseeable circumstances; and
●
other
risks and uncertainties described in these risk factors and the
risk factors incorporated into this prospectus by
reference.
In recent years, the stock markets generally and
the stock prices of many companies in the pharmaceutical industry
have experienced extreme price and volume fluctuations that have
often been unrelated or disproportionate to the operating
performance of those companies. Broad market and industry factors
may significantly affect the market price of our common stock,
regardless of our actual operating performance. These fluctuations
may be even more pronounced in the trading market for our common
stock shortly following this offering. If the market price of shares of our common stock
does not ever exceed the price at which shares are acquired under
the Purchase Agreement, you may not be able to resell shares of our
common stock at or above the price you paid.
We may require additional financing to sustain our operations and
without it we may not be able to continue operations.
We may
direct Lincoln Park to purchase up to $10,250,000 worth of shares
of our common stock under our agreement over a 24-month period
generally in amounts up to 100,000 shares of our common stock,
which share amount may be increased to include additional shares of
our common stock depending on the market price of our common stock
at the time of sale, and subject to a maximum limit of $1,000,000
per purchase, on any such business day. In addition to the 750,000
Commitment Shares and 500,000 Initial Purchase Shares, an
additional 8,342,607 shares of our common stock are being offered
under this prospectus that may be sold by us to Lincoln Park, at
our discretion, from time to time over a 24-month period commencing
after the date of the Commencement. Depending on the price per
share at which we sell our common stock to Lincoln Park pursuant to
the Purchase Agreement, we may need to sell to Lincoln Park more
shares of our common stock than are offered under this prospectus
in order to receive aggregate gross proceeds equal to $10,250,000.
The number of shares ultimately offered for resale by Lincoln Park
is dependent upon the number of shares we sell to Lincoln Park
under the Purchase Agreement.
The
extent we rely on Lincoln Park as a source of funding will depend
on a number of factors including the prevailing market price of our
common stock and the extent to which we are able to secure working
capital from other sources. If obtaining sufficient funding from
Lincoln Park were to prove unavailable or prohibitively dilutive,
we will need to secure another source of funding in order to
satisfy our working capital needs. Even if we sell all $10,250,000
under the Purchase Agreement to Lincoln Park, we may still need
additional capital to fully implement our business, operating and
development plans. Should the financing we require to sustain our
working capital needs be unavailable or prohibitively expensive
when we require it, the consequences could be a material adverse
effect on our business, operating results, financial condition and
prospects.
Future sales and issuances of our common stock or other securities
may result in significant dilution and could cause the price of our
common stock to decline.
To
raise capital, we may sell common stock, convertible securities or
other equity securities in one or more transactions at prices and
in a manner we determine from time to time, including pursuant to
the Purchase Agreement with Lincoln Park. These sales, or the
perception in the market that the holders of a large number of
shares intend to sell shares, could reduce the market price of our
common stock. These sales may also result in material dilution to
our existing stockholders, and new investors could gain rights
superior to our existing stockholders.
In
addition, sales of a substantial number of shares of our
outstanding common stock in the public market could occur at any
time. Certain of our stockholders, including Lincoln Park, hold a
substantial number of our common stock that many of them are now
able to sell in the public market. Sales of stock by these
stockholders could have a material adverse effect on the trading
price of our common stock.
We
cannot predict what effect, if any, sales of our shares in the
public market or the availability of shares for sale will have on
the market price of our common stock. However, future sales of
substantial amounts of our common stock in the public market,
including shares issued upon exercise of outstanding warrants or
options, or the perception that such sales may occur, could
adversely affect the market price of our common
stock.
Our management will have broad discretion over the use of the net
proceeds from our sale of shares of common stock to Lincoln Park,
you may not agree with how we use the proceeds and the proceeds may
not be invested successfully.
Our
management will have broad discretion as to the use of the net
proceeds from our sale of shares of common stock to Lincoln Park,
and we could use them for purposes other than those contemplated at
the time of commencement of this offering. Accordingly, you will be
relying on the judgment of our management with regard to the use of
those net proceeds, and you will not have the opportunity, as part
of your investment decision, to assess whether the proceeds are
being used appropriately. It is possible that, pending their use,
we may invest those net proceeds in a way that does not yield a
favorable, or any, return for us. The failure of our management to
use such funds effectively could have a material adverse effect on
our business, financial condition, operating results and cash
flows.
INCORPORATION 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 period ended June 30, 2019,
filed on August 13, 2019;
●
our
Quarterly Report on Form 10-Q for the period ended September 30,
2019, filed on November 7, 2019;
●
our
Quarterly Report on Form 10-Q for the period ended December 31,
2019, filed on February 13, 2020;
●
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;
●
our Current Report
on Form 8-K, filed on October 9, 2019;
●
our Current Report on Form 8-K, filed on October
30, 2019;
●
our Current Report
on Form 8-K, filed on November 8, 2019;
●
our Current Report
on Form 8-K, filed on December 12, 2019;
●
our Current Report
on Form 8-K, filed on December 27, 2019;
●
our Current Report
on Form 8-K, filed on January 27, 2020;
●
our Current Report
on Form 8-K, filed on January 31, 2020;
●
our Current Report
on Form 8-K, filed on February 13, 2020;
●
our Current Report
on Form 8-K, filed on February 21, 2020;
●
our Current Report
on Form 8-K, filed on March 26, 2020; and
●
The
description of our common stock contained in the Registration
Statement on Form 8-A filed pursuant to Section 12(b) of the
Securities Exchange Act of 1934, as amended (the
Securities 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. 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.
CAUTIONARY NOTES REGARDING FORWARD-LOOKING
STATEMENTS
This
prospectus contains forward-looking statements that involve
substantial risks and uncertainties. All statements contained in
this prospectus, other than statements of historical facts, are
forward-looking statements including statements regarding our
strategy, future operations, future financial position, future
revenue, projected costs, prospects, plans, objectives of
management and expected market growth. 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;
●
the
accuracy of our estimates regarding expenses, future revenues and
capital requirements;
●
our
plans to develop and commercialize our any of our current product
candidates;
●
our
ability to initiate and complete our clinical trials and to advance
our product candidates into additional clinical trials, including
pivotal clinical trials, and successfully complete such clinical
trials;
●
regulatory
developments in the U.S. and foreign countries;
●
the
performance of our third-party contractors involved with the
manufacturer and production of our drug candidates for nonclinical
and clinical development activities, contract research
organizations and other third-party nonclinical and clinical
development collaborators and regulatory service
providers;
●
our
ability to obtain and maintain intellectual property protection for
our core assets;
●
the
size of the potential markets for our product candidates and our
ability to 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;
●
the
loss of key scientific, clinical and nonclinical development,
and/or management personnel, internally or from one of our
third-party collaborators; and
●
other risks and uncertainties, including
those described under Item 1A, “Risk
Factors,” in our Annual
Report on Form 10-K for the fiscal year ended March 31, 2019 and
subsequent Quarterly Reports on Form 10-Q, which risk factors are
incorporated herein by reference.
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, as well as
certain information incorporated by reference into this prospectus,
that could cause actual future 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 with the understanding that our actual
future results may be materially different from what we expect. We
do not assume any obligation to update any forward-looking
statements whether as a result of new information, future events or
otherwise, except as required by applicable law.
USE OF
PROCEEDS
This
prospectus relates to shares of our common stock that may be
offered and sold from time to time by Lincoln Park. We may receive
up to $10,000,000 aggregate gross proceeds under the Purchase
Agreement from any sales we make to Lincoln Park pursuant to the
Purchase Agreement after the date of this prospectus. However, we
may not be registering for sale or offering for resale under the
registration statement of which this prospectus is a part all of
the shares issuable pursuant to the Purchase Agreement. In any
evert, we will receive no proceeds from the sale of any shares of
common stock by Lincoln Park pursuant to this prospectus. As we are
unable to predict the timing or amount of potential issuances of
all of the shares offered hereby (other than the Commitment Shares
or the Initial Purchase Shares), we have not allocated any proceeds
of such issuances to any particular purpose. Accordingly, all such
proceeds are expected to be used for working capital and
general corporate purposes.
Pending
other uses, we intend to invest any 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.
DIVIDEND POLICY
We
have never paid or declared any cash dividends on our common stock,
and we do not anticipate paying any cash dividends on our
common stock in the foreseeable future. Shares of our
Series B 10% Convertible Preferred Stock accrue dividends at a rate
of 10% per annum, which dividends are payable solely in
unregistered shares of our common stock at the time the Series B
10% Convertible Preferred Stock is converted into common
stock.
SELLING
STOCKHOLDER
This
prospectus relates to only the resale by the selling stockholder,
Lincoln Park, of shares of common stock that have been or may be
issued and sold to Lincoln Park pursuant to the Purchase Agreement.
We are filing the registration statement of which this prospectus
forms a part pursuant to the provisions of the Registration Rights
Agreement, which we entered into with Lincoln Park on March 24,
2020 concurrently with our execution of the Purchase Agreement, in
which we agreed to provide certain registration rights with respect
to sales by Lincoln Park of the shares of our common stock that
have been and may be issued to Lincoln Park under the Purchase
Agreement.
Lincoln
Park, as the selling stockholder, may, from time to time, offer and
sell pursuant to this prospectus any or all of the shares that we
have sold and may sell to Lincoln Park under the Purchase
Agreement. The selling stockholder may sell some, all or none of
its shares. We do not know how long the selling stockholder will
hold the shares before selling them, and we currently have no
agreements, arrangements or understandings with the selling
stockholder regarding the sale of any of the shares.
The
following table presents information regarding the selling
stockholder and the shares that it may offer and sell from time to
time under this prospectus. The table is prepared based on
information supplied to us by the selling stockholder, and reflects
its holdings as of March 24, 2020. Neither Lincoln Park nor any of
its affiliates has held a position or office, or had any other
material relationship, with us or any of our predecessors or
affiliates. Beneficial ownership is determined in accordance with
Section 13(d) of the Exchange Act and Rule 13d-3
thereunder.
|
Selling
Stockholder
|
Shares
Beneficially
Owned
Before this
Offering
|
Percentage
of
Outstanding
Shares
Beneficially
Owned
Before
this Offering
|
Shares
to be Sold in this Offering Assuming The
Company issues the Maximum Number of Shares
Under the Purchase Agreement
|
Percentage
of
Outstanding
Shares
Beneficially
Owned
After
this Offering
|
|
Lincoln Park
Capital Fund, LLC (1)
|
3,904,966(2)
|
7.78%(3)
|
9,592,607(4)
|
6.78%
|
|
(1)
|
Josh
Scheinfeld and Jonathan Cope, the Managing Members of Lincoln Park
Capital, LLC, are deemed to be beneficial owners of all of the
shares of common stock owned by Lincoln Park Capital Fund, LLC.
Messrs. Cope and Scheinfeld have shared voting and investment power
over the shares being offered under the prospectus filed with the
SEC in connection with the transactions contemplated under the
Purchase Agreement. Lincoln Park Capital, LLC is not a licensed
broker dealer or an affiliate of a licensed broker
dealer.
|
|
|
|
|
(2)
|
Includes
(i) the 500,000 shares sold to Lincoln Park as Initial Purchase
Shares under the Purchase Agreement and the 750,000 shares issued
to Lincoln Park as Commitment Shares which are being registered
under the registration statement of which this prospectus is a
part. Includes a currently exercisable warrant to purchase
1,000,000 shares of our common stock. Excludes a warrant to
purchase 2,814,602 shares of our common stock not exercisable
within 60 days. See the description under the heading
“The Lincoln Park
Transaction” below for more information about the
Purchase Agreement.
|
|
|
|
|
(3)
|
Based
on 49,213,042 outstanding shares of our common stock as of March
30, 2020.
|
|
|
|
|
(4)
|
Although
the Purchase Agreement provides that we may sell up to $10,250,000
of our common stock to Lincoln Park, in addition to the 750,000
Commitment Shares and 500,000 Initial Purchase Shares, an
additional 8,342,607 shares of our common stock are being offered
under this prospectus that may be sold by us to Lincoln Park, at
our discretion, from time to time over a 24-month period commencing
after the Commencement Date. Depending on the price per share at
which we sell our common stock to Lincoln Park pursuant to the
Purchase Agreement, we may need to sell to Lincoln Park under the
Purchase Agreement more shares of our common stock than are offered
under this prospectus in order to receive aggregate gross proceeds
equal to the $10,250,000 total commitment available to us under the
Purchase Agreement. If we choose to do so, we must first register
for resale under the Securities Act such additional shares. The
number of shares ultimately offered for resale by Lincoln Park is
dependent upon the number of shares we sell to Lincoln Park under
the Purchase Agreement. See “The Lincoln Park
Transaction.”
|
LINCOLN PARK TRANSACTION
General
On
March 24, 2020 (the Execution
Date), we entered into a Purchase Agreement and a
Registration Rights Agreement with Lincoln Park. Pursuant to the
terms of the Purchase Agreement, Lincoln Park has agreed to
purchase from us up to $10,250,000 of our common stock from time to
time during the term of the Purchase Agreement, subject to certain
limitations.
Other
than the Initial Purchase Shares, which we sold to Lincoln Park on
the Execution Date, we do not have the right to commence any sales
to Lincoln Park under the Purchase Agreement until the Commencement
Date (defined below) has occurred. Thereafter, we may, from time to
time, and at our sole discretion, on any single business day,
direct Lincoln Park to purchase shares of our common stock in
amounts up to 100,000 shares, which amounts may be increased
depending on the market price of our common stock at the time of
sale and subject to a maximum commitment by Lincoln Park of
$1,000,000 per single purchase (Regular Purchases). In addition, at our
discretion, Lincoln Park has committed to purchase other amounts
under an Accelerated Purchase (as defined below) under certain
circumstances. The purchase price per share sold will be based on
the market price of our common stock immediately preceding the time
of sale as computed under the Purchase Agreement. Lincoln Park may
not assign or transfer its rights and obligations under the
Purchase Agreement.
Under
applicable rules of The Nasdaq Capital Market, in no event may we
issue or sell to Lincoln Park under the Purchase Agreement shares
of our common stock in excess of the Exchange Cap (which is
9,592,607 shares, or 19.99% of the shares of our common stock
outstanding immediately prior to the execution of the Purchase
Agreement), unless (i) we obtain stockholder approval to issue
shares of common stock in excess of the Exchange Cap or (ii) the
average price of all applicable sales of our common stock to
Lincoln Park under the Purchase Agreement equals or exceeds the
closing price of our common stock on The Nasdaq Capital Market on
the business day immediately preceding March 24, 2020 plus an incremental amount, such
that issuances and sales of our common stock to Lincoln Park under
the Purchase Agreement would be exempt from the Exchange Cap
limitation under applicable Nasdaq rules. In any event, the
Purchase Agreement specifically provides that we may not issue or
sell any shares of our common stock under the Purchase Agreement if
such issuance or sale would breach any applicable Nasdaq
rules.
The
Purchase Agreement also prohibits us from directing Lincoln Park to
purchase any shares of common stock if those shares, when
aggregated with all other shares of our common stock then
beneficially owned by Lincoln Park and its affiliates, would result
in Lincoln Park exceeding the Beneficial Ownership
Cap.
Pursuant to the
Registration Rights Agreement, the Company is required to register
the shares of common stock that have been and may be issued to
Lincoln Park under the Purchase Agreement. We have filed the
registration statement with the SEC that includes this prospectus
to register for resale under the Securities Act, up to 9,592,607
shares of common stock, representing 19.99% of our issued and
outstanding shares of common stock on March 24, 2020.
Purchase of Shares Under the Purchase Agreement
Under
the terms and subject to the conditions of the Purchase Agreement,
the Company has the right, but not the obligation, to sell to
Lincoln Park, and Lincoln Park is obligated to purchase up to
$10,250,000 of shares of common stock, including the Initial
Purchase Shares purchased by Lincoln Park on the Execution Date.
Such sales of common stock by the Company, if any, will be subject
to certain limitations, and may occur from time to time, at the
Company’s sole discretion, over the 24-month period
commencing on the date that a registration statement covering the
resale of shares of common stock that have been and may be issued
under the Purchase Agreement, which the Company agreed to file with
the SEC pursuant to the Registration Rights Agreement, is declared
effective by the SEC and a final prospectus in connection therewith
is filed and the other conditions set forth in the Purchase
Agreement are satisfied, all of which are outside the control of
Lincoln Park (such date on which all of such conditions are
satisfied, the Commencement
Date).
Thereafter, under
the Purchase Agreement, on any business day over the term of the
Purchase Agreement, the Company has the right, in its sole
discretion, to present Lincoln Park with a purchase notice (each, a
Purchase Notice) directing
Lincoln Park to purchase up to 100,000 shares per business day (the
Regular Purchase), (subject
to adjustment for any reorganization, recapitalization, non-cash
dividend, stock split, reverse stock split or other similar
transaction as provided in the Purchase Agreement). The Regular
Purchase Amount may be increased up to 150,000 shares if the
closing price is not below $0.80 per share, may be increased up to
200,000 shares if the closing price is not below $1.00 per share,
and may be increased up to 250,000 shares if the closing price is
not below $1.50 per share.
In each
case, Lincoln Park’s maximum commitment in any single Regular
Purchase may not exceed $1,000,000. The Purchase Agreement provides
for a purchase price per Purchase Share (the Purchase Price) equal to the lesser
of:
●
the
lowest sale price of the Company’s common stock on the
purchase date; and
●
the
average of the three lowest closing sale prices for the
Company’s common stock during the ten consecutive business
days ending on the business day immediately preceding the purchase
date of such shares.
In
addition, on any date on which the Company submits a Purchase
Notice to Lincoln Park and on which date the Company has directed a
Regular Purchase in full, the Company also has the right, in its
sole discretion, to present Lincoln with an accelerated purchase
notice (each, an Accelerated
Purchase Notice) directing Lincoln Park to purchase an
amount of stock (the Accelerated
Purchase) equal to up to the lesser of (i) three times the
number of shares purchased pursuant to such Regular Purchase; or
(ii) 30% of the aggregate shares of the Company’s common
stock traded during all or, if certain trading volume or market
price thresholds specified in the Purchase Agreement are crossed on
the applicable Accelerated Purchase date, the portion of the normal
trading hours on the applicable Accelerated Purchase date prior to
such time that any one of such thresholds is crossed (such period
of time on the applicable Accelerated Purchase Date, the
Accelerated Purchase Measurement
Period). The purchase price per share for each such
Accelerated Purchase will be equal to the lesser of:
●
95% of
the volume weighted average price of the Company’s common
stock during the applicable Accelerated Purchase Measurement Period
on the applicable Accelerated Purchase date; and
●
the
closing sale price of the Company’s common stock on the
applicable Accelerated Purchase Date.
In the
case of the regular purchases and accelerated purchases, the
purchase price per share will be equitably adjusted for any
reorganization, recapitalization, non-cash dividend, stock split,
reverse stock split or other similar transaction occurring during
the business days used to compute the purchase price.
Other
than as described above, there are no trading volume requirements
or restrictions under the Purchase Agreement, and we will control
the timing and amount of any sales of our common stock to Lincoln
Park.
Events of Default
Events
of default under the Purchase Agreement include the
following:
●
the
effectiveness of a registration statement registering the resale of
the Securities lapses for any reason (including, without
limitation, the issuance of a stop order or similar order) or such
registration statement (or the prospectus forming a part thereof)
is unavailable to the Investor for resale of any or all of the
Securities to be issued to the Investor under the Transaction
Documents, and such lapse or unavailability continues for a period
of ten (10) consecutive Business Days or for more than an aggregate
of thirty (30) Business Days in any 365-day period, but excluding a
lapse or unavailability where (i) the Company terminates a
registration statement after the Investor has confirmed in writing
that all of the Securities covered thereby have been resold or (ii)
the Company supersedes one registration statement with another
registration statement, including (without limitation) by
terminating a prior registration statement when it is effectively
replaced with a new registration statement covering Securities
(provided in the case of this clause (ii) that all of the
Securities covered by the superseded (or terminated) registration
statement that have not theretofore been resold are included in the
superseding (or new) registration statement);
●
the
suspension of the common stock from trading on the Principal Market
for a period of one (1) Business Day, provided that the Company may
not direct the Investor to purchase any shares of common stock
during any such suspension;
●
the
delisting of the common stock from The Nasdaq Capital Market,
provided, however, that the common stock is not immediately
thereafter trading on the New York Stock Exchange, The Nasdaq
Global Market, The Nasdaq Global Select Market, the NYSE American,
the NYSE Arca, the OTC Bulletin Board, the OTCQX operated by the
OTC Markets Group, Inc. or the OTCQB operated by the OTC Markets
Group, Inc. (or nationally recognized successor to any of the
foregoing);
●
If at
any time after the Commencement Date, the Exchange Cap is exceeded
unless and until stockholder approval is obtained pursuant to the
Purchase Agreement. The Exchange Cap shall be deemed to be exceeded
at such time if, upon submission of a Regular Purchase Notice or
Accelerated Purchase Notice under this Agreement, the issuance of
such shares of common stock would exceed that number of shares of
common stock which the Company may issue under this Agreement
without breaching the Company’s obligations under the rules
or regulations of the Principal Market;
●
the
failure for any reason by the Transfer Agent to issue Purchase
Shares to the Investor within three (3) Business Days after the
applicable Purchase Date, Accelerated Purchase Date or Additional
Accelerated Purchase Date (as applicable) on which the Investor is
entitled to receive such Purchase Shares;
●
the
Company breaches any representation, warranty, covenant or other
term or condition under any Transaction Document if such breach has
or could have a Material Adverse Effect and except, in the case of
a breach of a covenant which is reasonably curable, only if such
breach continues for a period of at least five (5) Business
Days;
●
if any
Person commences a proceeding against the Company pursuant to or
within the meaning of any Bankruptcy Law;
●
if the
Company is at any time insolvent, or, pursuant to or within the
meaning of any Bankruptcy Law, (i) commences a voluntary case, (ii)
consents to the entry of an order for relief against it in an
involuntary case, (iii) consents to the appointment of a Custodian
of it or for all or substantially all of its property, or (iv)
makes a general assignment for the benefit of its creditors or is
generally unable to pay its debts as the same become
due;
●
a court
of competent jurisdiction enters an order or decree under any
Bankruptcy Law that (i) is for relief against the Company in an
involuntary case, (ii) appoints a Custodian of the Company or for
all or substantially all of its property, or (iii) orders the
liquidation of the Company or any Subsidiary; or
●
if at
any time the Company is not eligible to transfer its common stock
electronically as DWAC Shares.
Lincoln
Park does not have the right to terminate the Purchase Agreement
upon any of the events of default set forth above. During an event
of default, all of which are outside of Lincoln Park’s
control, we may not direct Lincoln Park to purchase any shares of
our common stock under the Purchase Agreement.
Termination Rights of the Company
We have
the unconditional right, at any time, for any reason and without
any payment or liability to Lincoln Park, to give notice to Lincoln
Park to terminate the Purchase Agreement.
No Short-Selling or Hedging by Lincoln Park
Lincoln
Park has agreed that neither it nor any of its affiliates shall
engage in any direct or indirect short-selling or hedging of our
common stock during any time prior to the termination of the
Purchase Agreement.
Prohibitions on Variable Rate Transactions
There
are no restrictions on future financings, rights of first refusal,
participation rights, penalties or liquidated damages in the
Purchase Agreement or Registration Rights Agreement, other than a
prohibition on entering into a “Variable Rate
Transaction,” as defined in the Purchase
Agreement.
Effect of Performance of the Purchase Agreement on Our
Stockholders
All
9,592,607 shares registered in this offering which have been and
may be issued or sold by us to Lincoln Park under the Purchase
Agreement are expected to be freely tradable. It is anticipated
that shares registered in this offering may be sold over a period
of up to 24-months commencing on the date that the registration
statement including this prospectus becomes effective. The sale by
Lincoln Park of a significant number of shares registered in this
offering at any given time could cause the market price of our
common stock to decline and to be highly volatile. Sales of our
common stock to Lincoln Park, if any, will depend upon market
conditions and other factors to be determined by us. We may
ultimately decide to sell to Lincoln Park all, some or none of the
additional shares of our common stock that may be available for us
to sell pursuant to the Purchase Agreement. If and when we do sell
shares to Lincoln Park, after Lincoln Park has acquired the shares,
Lincoln Park may resell all, some or none of those shares at any
time or from time to time in its discretion. Therefore, sales to
Lincoln Park by us under the Purchase Agreement may result in
substantial dilution to the interests of other holders of our
common stock. In addition, if we sell a substantial number of
shares to Lincoln Park under the Purchase Agreement, or if
investors expect that we will do so, the actual sales of shares or
the mere existence of our arrangement with Lincoln Park may make it
more difficult for us to sell equity or equity-related securities
in the future at a time and at a price that we might otherwise wish
to effect such sales. However, we have the right to control the
timing and amount of any additional sales of our shares to Lincoln
Park and the Purchase Agreement may be terminated by us at any time
at our discretion without any cost to us.
The
Purchase Agreement prohibits us from issuing or selling to Lincoln
Park under the Purchase Agreement (i) shares of our common stock in
excess of the Exchange Cap, unless we obtain stockholder approval
to issue shares in excess of the Exchange Cap or the average price
of all applicable sales of our common stock to Lincoln Park under
the Purchase Agreement equals or exceeds the closing price of our
common stock on The Nasdaq Capital Market on the business day
immediately preceding March 24, 2020 plus an incremental amount,
such that the transactions contemplated by the Purchase Agreement
are exempt from the Exchange Cap limitation under applicable Nasdaq
rules, and (ii) any shares of our common stock if those shares,
when aggregated with all other shares of our common stock then
beneficially owned by Lincoln Park and its affiliates, would exceed
the Beneficial Ownership Cap.
The
following table sets forth the amount of gross proceeds we would
receive from Lincoln Park from our sale of shares to Lincoln Park
under the Purchase Agreement at varying purchase
prices:
|
Assumed
Average Purchase Price Per Share
|
Number
of Registered Shares to be Issued if Full Purchase (1)
|
Percentage
of Outstanding Shares After Giving Effect to the Issuance to
Lincoln Park (2)
|
Proceeds
from the Sale of Shares to Lincoln Park Under the $10.25M Purchase
Agreement (4)
|
|
$0.3557(3)
|
8,342,607
|
14.49%
|
$3,217,465
|
|
$0.50
|
8,342,607
|
14.49%
|
$4,421,304
|
|
$1.00
|
8,342,607
|
14.49%
|
$8,592,607
|
|
$1.50
|
6,666,607
|
11.93%
|
$10,250,000
|
|
$2.00
|
5,000,000
|
9.22%
|
$10,250,000
|
(1)
Includes
the total number of purchase shares which we would have sold under
the Purchase Agreement at the corresponding assumed purchase price
per share set forth in the adjacent column, which does not include
the 750,000 Commitment Shares previously issued to Lincoln Park,
nor the 500,000 Initial Purchase Shares previously sold to Lincoln
Park. Although the Purchase Agreement provides that we may sell up
to $10,250,000 of our common stock to Lincoln Park (including the
Initial Purchase Shares), we are only registering 9,592,607 shares
(including the 750,000 Commitment Shares and the 500,000 Initial
Purchase Shares previously issued to Lincoln Park) under this
prospectus, which may or may not cover all the shares we ultimately
sell to Lincoln Park under the Purchase Agreement, depending on the
purchase price per share. As a result, we have included in this
column only those shares that we are registering in this offering.
If we seek to issue shares of our common stock, including shares
from other transactions that may be aggregated with the
transactions contemplated by the Purchase Agreement under the
applicable rules of The Nasdaq Capital Market, in excess of
9,592,607 shares, or 19.99% of the total common stock outstanding
immediately prior to the execution of the Purchase Agreement unless
the average price per share exceeds the closing price of our common
stock on The Nasdaq Capital Market on the business day immediately
preceeding March 24, 2020, plus an incremental amount, such that
issuances and sales of our common stock to Lincoln Park under the
Purchase Agreement would be exempt from the Exchange Cap limitation
under applicable Nasdaq rules, we may be required to seek
stockholder approval to maintain compliance with the rules of The
Nasdaq Capital Market.
(2)
The
denominator is based on 49,213,042 shares outstanding as of March
30, 2020, which includes (i) 750,000 Commitment Shares and 500,000
Initial Purchase Shares issued to Lincoln Park upon the execution
of the Purchase Agreement, and (ii) the number of shares set forth
in the adjacent column which we would have sold to Lincoln Park,
assuming the purchase price in the adjacent column. The numerator
is based on the number of shares issuable under the Purchase
Agreement at the corresponding assumed purchase price set forth in
the adjacent column.
(3)
The
Minimum Price as calculated in accordance with rules of the Nasdaq
Capital Market.
(4)
Includes
$250,000 proceeds from sale of 500,000 Initial Purchase
Shares.
PLAN OF DISTRIBUTION
The
common stock offered by this prospectus is being offered by the
selling stockholder, Lincoln Park. The common stock may be sold or
distributed from time to time by the selling stockholder directly
to one or more purchasers or through brokers, dealers, or
underwriters who may act solely as agents at market prices
prevailing at the time of sale, at prices related to the prevailing
market prices, at negotiated prices, or at fixed prices, which may
be changed. The sale of the common stock offered by this prospectus
could be affected in one or more of the following
methods:
●
ordinary
brokers’ transactions;
●
transactions
involving cross or block trades;
●
through
brokers, dealers, or underwriters who may act solely as
agents;
●
“at
the market” into an existing market for the common
stock;
●
in
other ways not involving market makers or established business
markets, including direct sales to purchasers or sales effected
through agents;
●
in
privately negotiated transactions; or
●
any
combination of the foregoing.
In
order to comply with the securities laws of certain states, if
applicable, the shares may be sold only through registered or
licensed brokers or dealers. In addition, in certain states, the
shares may not be sold unless they have been registered or
qualified for sale in the state or an exemption from the
state’s registration or qualification requirement is
available and complied with.
Lincoln
Park is an “underwriter” within the meaning of Section
2(a)(11) of the Securities Act.
Lincoln
Park has informed us that it intends to use an unaffiliated
broker-dealer to effectuate all sales, if any, of the common stock
that it may purchase from us pursuant to the Purchase Agreement.
Such sales will be made at prices and at terms then prevailing or
at prices related to the then current market price. Each such
unaffiliated broker-dealer will be an underwriter within the
meaning of Section 2(a)(11) of the Securities Act. Lincoln Park has
informed us that each such broker-dealer will receive commissions
from Lincoln Park that will not exceed customary brokerage
commissions.
Brokers, dealers,
underwriters or agents participating in the distribution of the
shares as agents may receive compensation in the form of
commissions, discounts, or concessions from the selling stockholder
and/or purchasers of the common stock for whom the broker-dealers
may act as agent. The compensation paid to a particular
broker-dealer may be less than or in excess of customary
commissions. Neither we nor Lincoln Park can presently estimate the
amount of compensation that any agent will receive.
We know
of no existing arrangements between Lincoln Park or any other
stockholder, broker, dealer, underwriter or agent relating to the
sale or distribution of the shares offered by this prospectus. At
the time a particular offer of shares is made, a prospectus
supplement, if required, will be distributed that will set forth
the names of any agents, underwriters or dealers and any
compensation from the selling stockholder, and any other required
information.
We will
pay the expenses (except brokerage fees and commissions and similar
expenses) incurred in registering the shares, including legal and
accounting fees. We have agreed to indemnify Lincoln Park and
certain other persons against certain liabilities in connection
with the offering of shares of common stock offered hereby,
including liabilities arising under the Securities Act or, if such
indemnity is unavailable, to contribute amounts required to be paid
in respect of such liabilities. Lincoln Park has agreed to
indemnify us against liabilities under the Securities Act that may
arise from certain written information furnished to us by Lincoln
Park specifically for use in this prospectus or, if such indemnity
is unavailable, to contribute amounts required to be paid in
respect of such liabilities.
Lincoln
Park has represented to us that at no time prior to the Purchase
Agreement has Lincoln Park or its agents, representatives or
affiliates engaged in or effected, in any manner whatsoever,
directly or indirectly, any short sale (as such term is defined in
Rule 200 of Regulation SHO of the Exchange Act) of our common stock
or any hedging transaction, which establishes a net short position
with respect to our common stock. Lincoln Park agreed that during
the term of the Purchase Agreement, it, its agents, representatives
or affiliates will not enter into or effect, directly or
indirectly, any of the foregoing transactions.
We have
advised Lincoln Park that it is required to comply with Regulation
M promulgated under the Exchange Act. With certain exceptions,
Regulation M precludes the selling stockholder, any affiliated
purchasers, and any broker-dealer or other person who participates
in the distribution from bidding for or purchasing, or attempting
to induce any person to bid for or purchase any security which is
the subject of the distribution until the entire distribution is
complete. Regulation M also prohibits any bids or purchases made in
order to stabilize the price of a security in connection with the
distribution of that security. All of the foregoing may affect the
marketability of the securities offered by this
prospectus.
This
offering will terminate on the earlier of (i) termination of the
Purchase Agreement or (ii) the date that all shares offered by this
prospectus have been sold by Lincoln Park.
Our
common stock is quoted on The Nasdaq Capital Market under the
symbol “VTGN”.
DESCRIPTION OF CAPITAL
STOCK
The following summary of the rights of our capital stock is not
complete and is subject to and qualified in its entirety by
reference to our certificate of incorporation and bylaws, copies of
which are filed as exhibits to our Annual Report on Form 10-K for
the year ended March 31, 2019, filed with the SEC on June 25, 2019,
which is incorporated by reference
herein.
General
Our
authorized capital stock consists of 175.0 million shares of common
stock, $0.001 par value per share, and 10.0 million shares of
preferred stock, $0.001 par value per share.
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 Restated and Amended
Article of Incorporation, as amended (our Articles) and our Amended
and Restated Bylaws (our Bylaws), copies of which are filed with
the SEC as exhibits to the registration statement of which this
prospectus is a part.
As of
March 30, 2020, there were
issued and outstanding, or reserved for issuance:
●
49,213,042 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;
●
26,555,281 shares of common stock that have
been reserved for issuance upon exercise of outstanding warrants,
with a weighted average exercise price of $1.64 per share;
●
7,768,088 registered 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 $1.41 per share;
●
2,235,000
registered 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 $1.22 per
share, and
●
6,730,162 registered shares of common stock
reserved for future issuance in connection with future grants under
our 2019 Omnibus Equity Incentive Plan.
●
1,000,000 shares of
common stock reserved for future issuance in connection with future
sales under our 2019 Employee Stock Purchase 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.
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.
Listing
Our
common stock is listed on The Nasdaq Capital Market under the
symbol “VTGN”.
LEGAL
MATTERS
The
validity of the securities offered hereby will be passed upon for
us by Disclosure Law Group, a Professional Corporation, San Diego,
California (DLG). Partners
of DLG beneficially own an aggregate of 74,487 registered and/or
restricted shares of our common stock.
EXPERTS
The
audited financial statements incorporated by reference in this
prospectus and elsewhere in the registration statement have been
incorporated by reference in reliance upon the report of
OUM & Co. LLP, independent
registered public accounting firm, upon the authority of said firm
as experts in accounting and auditing. The 2019 and 2018 audited
annual consolidated financial statements of VistaGen Therapeutics,
Inc., as of and for the years ended March 31, 2019 and 2018, have
been audited by OUM & Co.
LLP, independent registered public accounting firm. The
audit report dated June 25, 2019 for the 2019 audited annual
consolidated financial statements includes an explanatory paragraph
which states that certain circumstances raise substantial doubt
about our ability to continue as a going concern.
WHERE YOU CAN FIND MORE INFORMATION
We are
subject to the informational requirements of the Exchange Act and
in accordance therewith we file annual, quarterly, and other
reports, proxy statements and other information with the Commission
under the Exchange Act. Such reports, proxy statements and other
information, including the Registration Statement, and exhibits and
schedules thereto, are available to the public through the
Commission’s website at www.sec.gov.
We make
available free of charge on or through our website our Annual
Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current
Reports on Form 8-K and amendments to those reports filed or
furnished pursuant to Section 13(a) or 15(d) of the Exchange Act as
soon as reasonably practicable after we electronically file such
material with or otherwise furnish it to the
Commission.
We have
filed with the Commission a registration statement under the
Securities Act of 1933, as amended, relating to the offering of
these securities. The registration statement, including the
attached exhibits, contains additional relevant information about
us and the securities. This prospectus does not contain all of the
information set forth in the registration statement. You can obtain
a copy of the registration statement, at prescribed rates, from the
Commission at the address listed above, or for free at www.sec.gov.
The registration statement and the documents referred to below
under “Incorporation of
Certain Information by Reference” are also available
on our website, www.vistagen.com/sec-filings.
We have
not incorporated by reference into this prospectus the information
on our website, and you should not consider it to be a part of this
prospectus.
-21-
9,592,607 Shares
Common Stock
PROSPECTUS
We have
not authorized any dealer, salesperson or other person to give any
information or to make any representations not contained in this
prospectus. You must not rely on any unauthorized information. This
prospectus is not an offer to sell these securities in any
jurisdiction where an offer or sale is not permitted.
,
2020
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and
Distribution.
The
following table indicates the expenses to be incurred in connection
with the offering described in this registration statement, other
than underwriting discounts and commissions, all of which will be
paid by us. All amounts are estimated except the Securities and
Exchange Commission registration fee.
|
|
|
Amount
|
|
|
|
SEC
Registration Fee
|
|
$
|
573
|
|
|
Legal
Fees and Expenses
|
|
|
40,000
|
|
|
Accounting Fees and
Expenses
|
|
|
15,000
|
|
|
Transfer Agent and
Registrar fees and expenses
|
|
|
1,000
|
|
|
Miscellaneous
Expenses
|
|
|
5,000
|
|
|
|
|
|
|
|
|
Total
expenses
|
|
$
|
61,573
|
|
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.
II-1
Item 15. Recent Sales of Unregistered
Securities
There
have been no securities sold by us during the past three years
which were not registered under the Securities Act and/or are not
otherwise described in the accompanying prospectus or the documents
incorporated by reference into the accompanying
prospectus.
Item 16. Exhibits
Exhibit Index
|
Exhibit No.
|
Description
|
|
Agreement and Plan
of Merger by and among Excaliber Enterprises, Ltd., VistaGen
Therapeutics, Inc. and Excaliber Merger Subsidiary,
Inc.
|
|
|
Articles of Merger
filed with the Nevada Secretary of State on May 24, 2011,
incorporated by reference from Exhibit 3.1 to the Company’s
Current Report on Form 8-K filed on May 31, 2011.
|
|
|
Certificate of
Designations Series A Preferred, incorporated by reference from
Exhibit 3.1 to the Company’s Current Report on Form 8-K
filed on December 23, 2011.
|
|
|
Certificate of
Change filed with the Nevada Secretary of State on August 11, 2014
incorporated by reference from Exhibit 3.1 to the
Company’s Current Report on Form 8-K filed on August 14,
2014.
|
|
|
Certificate of
Designation of the Relative Rights and Preferences of the Series B
10% Convertible Preferred Stock of VistaGen Therapeutics, Inc.,
filed with the Nevada Secretary of State on May 7, 2015,
incorporated by reference from Exhibit 3.1 to the
Company’s Current Report on Form 8-K filed on May 13,
2015.
|
|
|
Certificate of
Designation of the Relative Rights and Preferences of the Series C
Convertible Preferred Stock of VistaGen Therapeutics, Inc., dated
January 25, 2016, incorporated by reference from Exhibit 3.1 to the
Company’s Current Report on Form 8-K filed on January 29,
2016.
|
|
|
Restated Articles
of Incorporation of VistaGen Therapeutics, Inc., dated August 16,
2016, incorporated by reference from Exhibit 3.1 to the
Company’s Current Report on Form 8-K, filed on August 17,
2016.
|
|
|
Second Amended and
Restated Bylaws of VistaGen Therapeutics, Inc., dated August 16,
2016, incorporated by reference from Exhibit 3.2 to the
Company’s Current Report on Form 8-K, filed on August 16,
2016.
|
|
|
Certificate of
Amendment to the Restated and Amended Articles of Incorporation of
VistaGen Therapeutics, Inc., dated September 15, 2017; incorporated
by reference from Exhibit 3.1 to the Company’s Current Report
on Form 8-K, filed on September 20, 2017.
|
|
|
License Agreement
by and between Mount Sinai School of Medicine of New York
University and the Company, dated October 1, 2004.
|
|
Opinion
of Disclosure Law Group, a Professional Corporation, filed
herewith.
|
|
License Agreement,
dated October 24, 2001, by and between the University of Maryland,
Baltimore, Cornell Research Foundation and Artemis Neuroscience,
Inc.
|
|
|
Employment
Agreement, by and between, VistaGen and Shawn K. Singh, dated April
28, 2010, as amended May 9, 2011.
|
|
|
Employment
Agreement, by and between, VistaGen and H. Ralph Snodgrass, PhD,
dated April 28, 2010, as amended May 9, 2011.
|
|
|
License Agreement
No. 1, dated as of October 24, 2011 between University Health
Network and VistaGen Therapeutics, Inc., incorporated by reference
from Exhibit 10.1 to the Company’s Current Report on Form 8-K
filed on November 30, 2011.
|
|
|
License Agreement
No. 2, dated as of March 19, 2012 between University Health Network
and VistaGen Therapeutics, Inc., incorporated by reference from
Exhibit 10.57 to the Company’s Annual Report on Form 10-K
filed on July 2, 2012.
|
|
|
Note Exchange and
Purchase Agreement dated as of October 11, 2012 by and between
VistaGen Therapeutics, Inc. and Platinum Long Term Growth VII, LLP,
incorporated by reference from Exhibit 10.1 to the Company’s
Current Report on Form 8-K filed on October 16, 2012.
|
|
Amendment to Note
Exchange and Purchase Agreement as of November 14, 2012 between
VistaGen Therapeutics Inc. and Platinum Long Term Growth VII, LLP,
incorporated by reference from Exhibit 10.1 to the
Company’s Current Report on Form 8-K filed on November 20,
2012.
|
|
|
Amendment No. 2 to
Note Exchange and Purchase Agreement as of January 31, 2013 between
VistaGen Therapeutics Inc. and Platinum Long Term Growth VII, LLP,
incorporated by reference from Exhibit 10.1 to the
Company’s Quarterly Report on Form 10-Q filed on February 14,
2013.
|
|
|
Amendment No. 3 to
Note Exchange and Purchase Agreement as of February 22, 2013
between VistaGen Therapeutics Inc. and Platinum Long Term Growth
VII, LLP, incorporated by reference from Exhibit 10.1 to the
Company’s Current Report on Form 8-K filed on February 28,
2013.
|
|
Form of Warrant to
Purchase Common Stock issued to independent members of the
Company’s Board of Directors and its executive officers on
March 3, 2013, incorporated by reference from Exhibit 10.1 to the
Company’s Current Report on Form 8-K filed on March 6,
2013.
|
|
|
Lease between
Bayside Area Development, LLC and VistaGen Therapeutics, Inc.
(California) dated April 24, 2013, incorporated by reference from
Exhibit 10.83 to the Company’s Annual Report on Form 10-K
filed July 18, 2013.
|
|
|
Indemnification
Agreement effective May 20, 2013 between the Company and Jon S.
Saxe, incorporated by reference from Exhibit 10.84 to the
Company’s Annual Report on Form 10-K filed on July 18,
2013.
|
|
|
Indemnification
Agreement effective May 20, 2013 between the Company and Shawn K.
Singh, incorporated by reference from Exhibit 10.85 to the
Company’s Annual Report on Form 10-K filed on July 18,
2013.
|
|
|
Indemnification
Agreement effective May 20, 2013 between the Company and H. Ralph
Snodgrass, incorporated by reference from Exhibit 10.86 to the
Company’s Annual Report on Form 10-K filed on July 18,
2013.
|
|
|
Indemnification
Agreement effective May 20, 2013 between the Company and Brian J.
Underdown, incorporated by reference from Exhibit 10.87 to the
Company’s Annual Report on Form 10-K filed on July 18,
2013.
|
|
|
Indemnification
Agreement effective May 20, 2013 between the Company and Jerrold D.
Dotson, incorporated by reference from Exhibit 10.88 to the
Company’s Annual Report on Form 10-K filed on July 18,
2013.
|
|
|
Exchange Agreement,
by and between VistaGen Therapeutics, Inc., and Platinum Long Term
Growth VII, LLC and Montsant Partners, LLC, dated January 25, 2016,
incorporated by reference from Exhibit 10.1 to the Company’s
Current Report on Form 8-K filed on January 29, 2016.
|
|
Indemnification
Agreement effective April 8, 2016 between the Company and Jerry B.
Gin, incorporated by reference from Exhibit 10.112 to the
Company’s Annual Report on Form 10-K filed on June 24,
2016.
|
|
|
Underwriting
Agreement, by and between Chardan Capital Markets, LLC and
WallachBeth Capital, LLC, as representatives of the several
underwriters, and VistaGen Therapeutics, Inc., dated May 10, 2016,
incorporated by reference from Exhibit 1.1 to the Company’s
Current Report on Form 8-K filed on May 16, 2016.
|
|
|
Warrant Agency
Agreement, by and between Computershare, Inc. and VistaGen
Therapeutics, Inc., dated May 16, 2016, incorporated by reference
from Exhibit 4.1 to the Company’s Current Report on Form 8-K
filed on May 16, 2016.
|
|
|
Form of Warrant;
incorporated by reference from Exhibit 4.2 to the Company’s
Current Report on Form 8-K filed on May 16, 2016.
|
|
|
Second Amendment to
Employment Agreement by and between VistaGen Therapeutics, Inc. and
Shawn K. Singh, dated June 22, 2016, incorporated by reference from
Exhibit 10.116 to the Company’s Annual Report on Form 10-K
filed on June 24, 2016.
|
|
|
Second Amendment to
Employment Agreement by and between VistaGen Therapeutics, Inc. and
H. Ralph Snodgrass, Ph.D., dated June 22, 2016, incorporated by
reference from Exhibit 10.117 to the Company’s Annual Report
on Form 10-K filed on June 24, 2016.
|
|
|
Second Amendment to
Lease between Bayside Area Development and the Company, effective
November 10, 2016, incorporated by reference from Exhibit 10.1 to
the Company’s Quarterly report on Form 10-Q filed on November
15, 2016.
|
|
|
Indemnification
Agreement effective November 10, 2016 between the Company and Mark
A. Smith, incorporated by reference from Exhibit 10.2 to the
Company’s Quarterly report on Form 10-Q filed on November 15,
2016.
|
|
|
Exclusive License
and Sublicense Agreement by and between VistaGen Therapeutics, Inc.
and Apollo Biologics LP, effective December 9, 2016, incorporated
by reference from Exhibit 10.1 to the Company’s Quarterly
Report on Form 10-Q filed on May 11, 2017.
|
|
Patent License
Amendment Agreement between VistaGen Therapeutics Inc. and
University Health Network effective December 9, 2016, incorporated
by reference from Exhibit 10.2 to the Company’s Quarterly
Report on Form 10-Q/A filed on May 1, 2017.
|
|
|
Amended and
Restated 2016 Stock Incentive Plan (formerly the VistaGen
Therapeutics, Inc. 2008 Stock Incentive Plan), incorporated by
reference from Exhibit 10.122 to the Company’s Annual Report
on Form 10-K filed on June 29, 2017.
|
|
Underwriting
Agreement, dated as of August 31, 2017, by and between VistaGen
Therapeutics, Inc. and Oppenheimer & Co. Inc., incorporated by
reference from Exhibit 1.1 to the Company’s Current Report on
Form 8-K filed on August 31, 2017.
|
|
|
Form of Series A1
Warrant, incorporated by reference from Exhibit 4.1 to the
Company’s Current Report on Form 8-K filed on August 31,
2017.
|
|
|
Form of Series A2
Warrant, incorporated by reference from Exhibit 4.2 to the
Company’s Current Report on Form 8-K filed on August 31,
2017.
|
|
|
Underwriting
Agreement, dated as of December 11, 2017, by and between VistaGen
Therapeutics, Inc. and Oppenheimer & Co. Inc., incorporated by
reference from Exhibit 1.1 to the Company’s Current Report on
Form 8-K filed on December 13, 2017.
|
|
|
Form of Warrant,
incorporated by reference from Exhibit 4.1 to the Company’s
Current Report on Form 8-K filed on December 13, 2017.
|
|
|
Form
of Summer 2018 Private Placement Subscription Agreement,
incorporated by reference from the Company’s Current Report
on Form 8-K filed on August 9, 2018.
|
|
|
Form of Summer 2018
Private Placement Warrant, incorporated by reference from the
Company’s Current Report on Form 8-K filed on August 9,
2018.
|
|
License
Agreement (PH94B), by and between VistaGen Therapeutics, Inc. and
Pherin Pharmaceuticals, Inc., dated September 11, 2018,
incorporated by reference from Exhibit 10.1 to the Company’s
Current Report on Form 8-K filed on September 13, 2018
|
|
|
Option Agreement,
by and between VistaGen Therapeutics, Inc. and Pherin
Pharmaceuticals, Inc., dated September 11, 2018, incorporated by
reference from Exhibit 10.2 to the Company’s Current Report
on Form 8-K filed on September 13, 2018.
|
|
|
License
Agreement (PH10), by and between VistaGen Therapeutics, Inc. and
Pherin Pharmaceuticals, Inc., dated October 24, 2018, incorporated
by reference from Exhibit 10.3 to the Company’s Quarterly
Report on Form 10-Q/A filed on October 30, 2018.
|
|
|
Form of Fall 2018
Private Placement Subscription Agreement, incorporated by reference
from Exhibit 10.4 to the Company’s Quarterly Report on Form
10-Q filed on October 29, 2018.
|
|
|
Form
of Fall 2018 Private Placement Warrant, incorporated by reference
from Exhibit 10.5 to the Company’s Quarterly Report on Form
10-Q filed on October 29, 2018.
|
|
|
Indemnification
Agreement, dated January 10, 2019, by and between VistaGen
Therapeutics, Inc. and Ann Cunningham, incorporated by reference
from Exhibit 10.1 to the Company’s Current Report on Form 8-K
filed on January 15, 2019.
|
|
|
Indemnification
Agreement, dated November 10, 2016, by and between VistaGen
Therapeutics, Inc. and Mark A. McPartland, incorporated by
reference from Exhibit 10.136 to the Company’s Annual Report
on Form 10-K filed on June 25, 2019.
|
|
Underwriting
Agreement, dated as of February 26, 2019, by and between VistaGen
Therapeutics, Inc. and William Blair & Company, LLC,
incorporated by reference from Exhibit 1.1 to the Company’s
Current Report on Form 8-K filed on March 4, 2019.
|
|
|
Master Services
Agreement, dated July 11, 2017, by and between VistaGen
Therapeutics, Inc. and Cato Research Ltd.,
incorporated by reference from Exhibit 10.136 to the
Company’s Annual Report on Form 10-K filed on June 25,
2019 .
|
|
Consent
of Disclosure Law Group, a Professional Corporation (included in
Exhibit 5.1).
|
|
|
Consent
of Independent Registered Public Accounting Firm – OUM &
Co., LLP, filed herewith.
|
|
|
Power
of Attorney (located on signature page).
|
_______________
* Incorporated by reference from the like-numbered
exhibit filed with our Current Report on Form 8-K on May 16,
2011.
+ Confidential treatment has been granted for certain confidential
portions of this agreement.
Item 17. Undertakings
The
undersigned registrant hereby undertakes to provide to the
underwriters at the closing specified in the underwriting agreement
certificates in such denominations and registered in such names as
required by the underwriters to permit prompt delivery to each
purchaser.
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
Securities and Exchange Commission 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.
(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;
(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 percent 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 (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this
section do not apply if the registration statement is on Form S-1
and 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 of 1934 that are
incorporated by reference in the registration
statement.
(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.
(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 to
any purchaser:
(i)
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.
(b) The
undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to section
13(a) or section 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.
(c)
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions
referenced in Item 14 of this Registration Statement, or
otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is
against public policy as expressed in the 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 hereunder, 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 of
whether such indemnification by it is against public policy as
expressed in the 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-1 and has duly caused
this registration statement or amendment thereto to be signed on
its behalf by the undersigned, thereunto duly authorized, in
the City of South San Francisco, State
of California, on the 31st day of March, 2020.
|
|
VistaGen Therapeutics, Inc.
|
|
|
|
|
|
|
|
|
Date: March 31, 2020
|
By:
|
/s/ Shawn
K. Singh
|
|
|
|
|
Shawn K. Singh, J.D.
|
|
|
|
|
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-1, 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.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
||
|
/s/
Shawn K. Singh
Shawn K. Singh, JD
|
|
Chief Executive Officer and Director
(Principal Executive Officer)
|
|
March 31, 2020
|
|
|
|
|
||
|
/s/
Jerrold D. Dotson
Jerrold D. Dotson
|
|
Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
|
|
March 31, 2020
|
|
|
|
|
||
|
/s/
H. Ralph Snodgrass
H. Ralph Snodgrass, Ph. D
|
|
President, Chief Scientific Officer and Director
|
|
March 31, 2020
|
|
|
|
|
||
|
/s/
Jon S. Saxe
Jon S. Saxe
|
|
Chairman of the Board of Directors
|
|
March 31, 2020
|
|
|
|
|
||
|
/s/
Brian J. Underdown
Brian J. Underdown, Ph. D
|
|
Director
|
|
March 31, 2020
|
|
|
|
|
|
|
|
/s/
Jerry B. Gin
Jerry B. Gin, Ph. D.
|
|
Director
|
|
March 31, 2020
|
|
|
|
|
|
|
|
/s/
Ann M. Cunningham
Ann M. Cunningham
|
|
Director
|
|
March 31, 2020
|
II-7
Exhibit 5.1
March 31, 2020
VistaGen Therapeutics, Inc.
343 Allerton Avenue
South San Francisco, California 94080
Ladies and Gentlemen:
We have acted as legal counsel to VistaGen
Therapeutics, Inc., a Nevada corporation (the
“Company”), in connection with its registration
statement on Form S-1 (the “Registration
Statement”), first filed
on March 31, 2020 with the Securities and Exchange Commission (the
“Commission”), relating to the proposed resale of up to
9,592,607 shares (the “Shares”) of the Company’s common stock, par
value $0.001 per share (“Common
Stock”), by the selling
stockholders identified in the Registration Statement (the
“Selling
Stockholders”). This
opinion letter is furnished to you at your request to enable you to
fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17
C.F.R. § 229.601(b)(5), in connection with the Registration
Statement.
As
the basis for the opinion hereinafter expressed, we have examined
such statutes, Company corporate records and documents,
certificates of Company and public officials, and other instruments
and documents as we deemed relevant or necessary for the purposes
of the opinion set forth below.
In
making our examination, we have assumed the legal capacity of all
natural persons, that all signatures on documents examined by us
are genuine, the authenticity of all documents submitted to us as
originals and the conformity with the original documents of all
documents submitted to us as certified, conformed or photostatic
copies. We have also assumed the accuracy and completeness of all
information provided to us by the Company during the course of our
investigations, on which we have relied in issuing the opinion
expressed below. We have relied upon a certificate and other
assurances of officers of the Company and others as to factual
matters without having independently verified such factual matters.
In connection with the opinion hereinafter expressed, we have
assumed that all of the Shares will be resold in the manner stated
in the prospectus forming a part of the Registration
Statement.
Based
on the foregoing and on such legal considerations as we deem
relevant, and subject to the qualifications, assumptions and
limitations stated herein and in reliance on the statements of fact
contained in the documents we have examined, we are of the opinion
that the Shares will be duly authorized, validly issued, fully paid
and nonassessable.
The opinions expressed herein are with respect to,
and limited to, the corporate laws of the State of Nevada
and the federal laws of the United
States, in each case as currently in effect, and we express no
opinion as to the effect of the laws of any other
jurisdiction.
We
hereby consent to the reference to us under the caption
“Legal Matters” in the prospectus forming a part of the
Registration Statement and to the filing of this opinion letter as
an exhibit to the Registration Statement, and any amendments
thereto. In giving this consent, we do not admit that we are
included in the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Commission promulgated
thereunder.
Very
truly yours,
/s/ Disclosure Law Group
Disclosure
Law Group, a Professional Corporation
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-1 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
March 31, 2020