As filed with the Securities and Exchange Commission on September
24, 2021
Registration
No. 333- _______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VistaGen Therapeutics, Inc.
(Exact
name of registrant as specified in its charter)
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Nevada
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20-5093315
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(State
or Other Jurisdiction of
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(I.R.S.
Employer
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Incorporation
or Organization)
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Identification
No.)
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343 Allerton Avenue
South San Francisco, California 94080
(Address
of Principal Executive Offices)
VistaGen Therapeutics, Inc. Amended and Restated 2019 Omnibus
Equity Incentive Plan
(Full title of the plan)
Shawn K. Singh
Chief Executive Officer
VistaGen Therapeutics, Inc.
343 Allerton Avenue
South San Francisco, California 94080
(Name
and address of agent for service)
(650) 577-3600
(Telephone
number, including area code, of agent for service)
Copies to:
Jessica R. Sudweeks, Esq.
Disclosure Law Group, a Professional Corporation
655 W. Broadway, Suite 870
San Diego, California 92101
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated
filer,” “smaller reporting company,” and
"emerging growth company" in Rule 12b-2 of the Exchange
Act.
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Large Accelerated filer
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[
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Accelerated filer
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[
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Non-accelerated filer
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[
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Smaller reporting company
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[X]
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Emerging
growth company
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[
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If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of the Securities Act. [
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CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered
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Amount to be
Registered (1)
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Proposed Maximum
Offering Price
per Share
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Proposed Maximum Aggregate Offering Price
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Amount of
Registration Fee
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Common
Stock, $0.001 par value per share:
To
be issued under the Amended and Restated 2019 Omnibus Equity
Incentive Plan
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10,500,000(2)
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$2.805(3)
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$29,452,500
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$3,213.27
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(1)
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Pursuant
to Rule 416(c) under the Securities Act of 1933, as amended (the
“Securities
Act”), this registration statement on Form S-8 (the
“Registration
Statement”) also covers an indeterminate number of
shares of common stock, $0.001 par value per share
(“Common
Stock”), of VistaGen Therapeutics, Inc. (the
“Registrant”)
that may be offered or issued by reason of stock splits, stock
dividends or similar transactions. In addition, any shares
subject to outstanding options or other equity “Awards”
(as defined in the VistaGen Therapeutics, Inc. Amended and Restated
2019 Omnibus Equity Incentive Plan (the “2019 Plan”)) under the 2019 Plan
that are cancelled, forfeited, expired, terminated, unearned or
settled in cash, which in any such case does not result in the
issuance of shares, shall be again available for issuance pursuant
to Awards granted under the 2019 Plan.
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(2)
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This
Registration Statements registers 10,500,000 additional shares of Common
Stock available for future issuance under the 2019 Plan. The
Registrant previously registered a total of 7,500,000 shares of Common Stock issuable
under the 2019 Plan on a registration statement on Form S-8 (File
No. 333-234026).
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(3)
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Estimated
solely for purposes of calculating the registration fee pursuant to
Securities Act Rule 457(c) and (h). The proposed maximum
offering price per share, proposed maximum aggregate offering price
and the amount of the registration fee are based on the average of
the high and low prices of the Registrant’s Common Stock
reported on the Nasdaq Capital Market on September 22, 2021.
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EXPLANATORY NOTE
This Registration Statement on Form S-8 (the
“Registration
Statement”) is
filed by VistaGen Therapeutics, Inc. (the “Registrant”) to register
an additional 10,500,000 shares (the
“Shares”) of its common stock, $0.001 par
value per share (“Common
Stock”), issuable
pursuant to the Registrant’s Amended and Restated 2019
Omnibus Equity Incentive Plan (the “2019 Plan)”. The Shares registered on this Registration
Statement, along with shares of Common Stock registered on the
previous Registration Statement on Form S-8 (File No. 333-234026)
(the “Prior Registration
Statement”) amount to a
total of 18,000,000 shares of registered Common Stock authorized
for issuance under the 2019 Plan as of the date of this
Registration Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Item 1. Plan Information.
The information called
for by Part I of Form S-8 is omitted from this
Registration Statement in accordance with Rule 428 of the
Securities Act of 1933, as amended (the “Securities
Act”) and the instructions
to Form S-8. In accordance with the rules and regulations
of the Securities and Exchange Commission (the
“Commission”)
and the instructions to Form S-8, such documents are not
being filed with the Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference
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The following documents, which have been previously filed by
the Registrant with the Commission, are hereby incorporated by
reference in this Registration Statement:
●
our Annual Report
on
Form 10-K for the year ended March 31, 2021, filed on June 29,
2021;
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our Quarterly
Report on
Form 10-Q for the year ended June 30, 2021, filed on August 12,
2021;
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our Current Report
on
Form 8-K, filed on April 26, 2021;
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our Current Report
on
Form 8-K, filed on April 27, 2021;
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our Current Report
on
Form 8-K, filed on May 4, 2021;
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our Current Report
on
Form 8-K, filed on May 14, 2021;
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our Current Report
on
Form 8-K, filed on May 27, 2021;
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our Current Report
on
Form 8-K, filed on June 17, 2021;
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our Current Report
on
Form 8-K, filed on July 8, 2021;
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our Current Report
on
Form 8-K, filed on July 21, 2021;
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our Current Report
on
Form 8-K, filed on July 22, 2021;
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our Current Report
on
Form 8-K, filed on September 13, 2021;
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our Current Report
on
Form 8-K, filed on September 17, 2021; and
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the description of
our common stock contained in the Registration Statement on Form
8-A filed pursuant to Section 12(b) of the Exchange Act on May 3,
2016, including any amendment or report filed with the Commission
for the purpose of updating this description.
Until
such time that a post-effective amendment to this Registration
Statement has been filed which indicates that all securities
offered hereby have been sold or which deregisters all securities
remaining unsold at the time of such amendment, all documents
subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of
filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which is
also deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration
Statement.
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Item 4.
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Description of Securities
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Not
applicable.
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Item 5.
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Interests of Named Experts and Counsel
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Not
applicable.
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Item 6.
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Indemnification of Directors and Officers
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Limitations of liability and indemnification
Our
amended and restated bylaws (“Bylaws”) provide that we will
indemnify our directors, officers and employees to the fullest
extent permitted by the Nevada Revised Statutes
(“NRS”).
If the
NRS are amended to authorize corporate action further eliminating
or limiting the personal liability of a director, then the
liability of our directors will be eliminated or limited to the
fullest extent permitted by the NRS, as so amended. Our Articles of
Incorporation do not eliminate a director’s duty of care and,
in appropriate circumstances, equitable remedies, such as
injunctive or other forms of non-monetary relief, will remain
available under the NRS. This provision also does not affect a
director’s responsibilities under any other laws, such as the
federal securities laws or other state or federal laws. Under our
bylaws, we are empowered to enter into indemnification agreements
with our directors, officers and employees to purchase insurance on
behalf of any person whom we are required or permitted to
indemnify.
In
addition to the indemnification required in our bylaws, we have
entered into indemnification agreements with each of the
individuals serving on our board of directors. These agreements
provide for the indemnification of our directors to the fullest
extent permitted by law. We believe that these bylaw provisions and
indemnification agreements are necessary to attract and retain
qualified persons as directors, officers and employees. We also
maintain directors’ and officers’ liability
insurance.
The
limitation of liability and indemnification provisions in our
bylaws may discourage stockholders from bringing a lawsuit against
our directors and officers for breach of their fiduciary duties.
They may also reduce the likelihood of derivative litigation
against our directors and officers, even though an action, if
successful, might benefit us and our stockholders. Further, a
stockholder’s investment may be adversely affected to the
extent that we pay the costs of settlement and damage awards
against our directors and officers pursuant to these
indemnification provisions.
Insofar as
indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers and certain employees
pursuant to the foregoing provisions, or otherwise, we have been
advised that, in the opinion of the SEC, such indemnification is
against public policy as expressed in the Securities Act, and is,
therefore, unenforceable.
There is no
pending litigation or proceeding naming us or any of our directors
or officers as to which indemnification is being sought, nor are we
aware of any pending or threatened litigation that may result in
claims for indemnification.
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Item 7.
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Exemption from Registration Claimed
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Not
applicable.
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Item 8.
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Exhibits
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Exhibit No.
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Document Description
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Incorporation by Reference
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Opinion
of Disclosure Law Group, a Professional Corporation.
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Filed
herewith.
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Consent
of OUM
& Co. LLP, independent registered public accounting
firm
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Filed
herewith.
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Consent
of Disclosure Law Group, a Professional Corporation.
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Included
in Exhibit 5.1.
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Power
of Attorney
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Included
on the signature page of this Registration Statement.
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Item 9.
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Undertakings
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(a) The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act; and
(ii) To
reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the Registration Statement; and
(iii) To include any material information
with respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement; and
(2) That,
for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof; and
(3) To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
Provided, however,
that paragraphs (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished
to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act that are incorporated
by reference in the Registration Statement.
(b) The
undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of South San
Francisco, State of California, on September 24, 2021.
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VistaGen Therapeutics, Inc.
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By: /s/
Shawn K. Singh
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Name:
Shawn K. Singh
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Title:
Chief Executive Officer
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POWER OF
ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Shawn K. Singh and Jerrold
D. Dotson, and each one of them, as his or her true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in their name,
place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and to sign any registration statement for
the same offering covered by this registration statement that is to
be effective on filing pursuant to Rule 462(b) under the Securities
Act of 1933, as amended, and all post-effective amendments thereto,
and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be
done in connection therewith, as fully to all intents and purposes
as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of
them, or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the
requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the
capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Shawn
K. Singh
Shawn K. Singh, J.D.
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Chief Executive Officer, and Director
(Principal Executive Officer)
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September 24, 2021
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/s/ Jerrold
D. Dotson
Jerrold D. Dotson
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Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
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September 24, 2021
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/s/ Jon
S. Saxe
Jon S. Saxe, J.D., LL.M.
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Chairman of the Board of Directors
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September 24, 2021
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/s/ Ann
M. Cunningham
Ann M. Cunningham, MBA
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Director
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September 24, 2021
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/s/ Joanne
Curley, Ph.D.
Joanne Curley, Ph.D.
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Director
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September 24, 2021
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/s/ Margaret
M. FitzPatrick
Margaret M. FitzPatrick, M.A.
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Director
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September 24, 2021
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/s/ Jerry
B. Gin, Ph.D.
Jerry B. Gin, Ph.D., MBA
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Director
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September 24, 2021
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/s/ Mary
L. Rotunno
Mary L.
Rotunno, JD
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Director
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September 24, 2021
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-4-
Exhibit 5.1
September 24, 2021
VistaGen Therapeutics, Inc.
343 Allerton Avenue
South San Francisco, CA 94090
Ladies and Gentlemen:
We have acted as counsel to VistaGen Therapeutics,
Inc., a Nevada corporation (the “Company”), in connection with the preparation of a
Registration Statement on Form S-8 (the “Registration
Statement”) under the
Securities Act of 1933, as amended (the “Act”). The Registration Statement relates to
the registration of a total of 10,500,000 shares (the
“Plan
Shares”) of the
Company’s common stock, par value $0.001, issuable under the
VistaGen Therapeutics, Inc., Amended and Restated 2019 Omnibus
Equity Incentive Plan (the “Plan”).
In
connection with this opinion letter, we have examined and relied
upon the Registration Statement, the Company’s Restated and
Amended Articles of Incorporation and Amended and Restated Bylaws,
as currently in effect, and the originals or copies certified to
our satisfaction of such records, documents, certificates,
memoranda and other instruments as we have deemed relevant in
connection with this opinion. We have assumed the genuineness and
authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies,
and the accuracy, completeness and authenticity of certificates of
public officials.
The
opinions set forth in this letter are limited to the Nevada Revised
Statutes and the law of the State of California, in each case as in
effect on the date hereof. We are not rendering any opinion as to
compliance with any federal or state antifraud law, rule or
regulation relating to securities or to the sale or issuance
thereof. On the basis of the foregoing, and in reliance thereon,
and subject to the qualifications herein stated, we are of the
opinion that the Plan Shares have been duly authorized by all
necessary corporate action on the part of the Company, and when and
to the extent issued in accordance with the terms of the Plan and,
with respect to the Plan Shares, when and to the extent issued in
accordance with the terms of any award agreement entered into under
the Plan, the Plan Shares will be validly issued, fully paid
and nonassessable.
We
hereby consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement. In giving such consent, we do not hereby
admit that we are acting within the category of persons whose
consent is required under Section 7 of the Act or the rules or
regulations of the U.S. Securities and Exchange Commission
thereunder.
Very
truly yours,
/s/ Disclosure Law Group
Disclosure
Law Group, a Professional Corporation
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We
hereby consent to the incorporation by reference in this
Registration Statement on Form
S-8 of VistaGen Therapeutics, Inc., pertaining to the VistaGen Therapeutics,
Inc. Amended and Restated 2019 Omnibus Equity Incentive Plan of our
report dated June 29, 2021, 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, 2021.
/s/ OUM & CO. LLP
San Francisco, California
September 24, 2021