As filed with the Securities and Exchange Commission on October 3,
2019
Registration No. 333-234025
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
VistaGen Therapeutics, Inc.
(Exact Name Of Registrant As Specified In Its Charter)
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Nevada
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20-5093315
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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VistaGen Therapeutics, Inc.
343 Allerton Avenue
South San Francisco, California 94080
(650) 577-3600
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Shawn K. Singh
Chief Executive Officer
VistaGen Therapeutics, Inc.
343 Allerton Avenue
South San Francisco, California 94080
(650) 577-3600
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(Address, including zip code, and telephone number,
including area code of Registrant’s principal executive
offices),
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(Name, address, including zip code, and telephone
number,
including area code, of agent for service)
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From time to time after the effective date of this Registration
Statement
(Approximate date of commencement of proposed sale to
public)
Copies of all communications, including all communications sent to
the agent for service, should be sent to:
Shawn K. Singh
Chief Executive Officer
VistaGen Therapeutics, Inc.
343 Allerton Avenue
South San Francisco, California 94080
(650) 577-3600
Daniel W. Rumsey, Esq.
Jessica R. Sudweeks, Esq.
Disclosure Law Group,
a Professional Corporation
655 West Broadway, Suite 870
San Diego, California 92101
Tel: (619) 272-7050
Fax: (619) 330-2101
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415
of the Securities Act of 1933, other than securities offered only
in connection with dividend or interest reinvestment plans, check
the following box. [X]
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [
]
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to Rule
462(e) under the Securities Act, please check the following
box. [ ]
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, please check the
following box. [ ]
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company or an emerging growth company. See the
definitions of “large accelerated filer,”
“accelerated filer,” “smaller reporting
company” and “emerging growth company” in
Rule 12b-2 of the Exchange Act.
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Large accelerated filer [ ]
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Accelerated filer [ ]
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Non-accelerated filer [ ]
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Smaller reporting company [X]
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Emerging growth company [ ]
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided Section 7(a)(2)(B) of the Securities Act.
[ ]
EXPLANATORY NOTE
VistaGen Therapeutics, Inc. (the
“Company”) is filing this Amendment No. 1 to
our Registration Statement on Form S-3 (File No. 333-234025) for
the sole purpose of filing Exhibits 5.1 and 23.1 with the
Securities and Exchange Commission. This Amendment No. 1 does not
modify any provision of the Prospectus that forms a part of the
Registration Statement and accordingly such Prospectus has not been
included herein.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS
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1.1*
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Form of Underwriting Agreement
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1.2*
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Form of Placement Agent Agreement
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4.1*
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Form of any certificate of designation with respect to any
preferred stock issued hereunder and the related form of preferred
stock certificate
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4.2*
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Form of any warrant agreement with respect to each particular
series of warrants issued hereunder
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4.3*
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Form of any warrant agency agreement with respect to each
particular series of warrants issued hereunder
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4.4*
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Form of any unit agreement with respect to any unit issued
hereunder
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Opinion of Disclosure Law Group, a Professional
Corporation
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Consent of Disclosure Law Group, a Professional Corporation
(included in Exhibit 5.1)
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Consent of Independent Registered Public Accounting Firm
– OUM & Co., LLP
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Power of Attorney (located on signature page of the Registration
Statement on Form S-3, filed September 30, 2019)
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*
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To be filed, if necessary, by incorporation by reference pursuant
to a Current Report on Form 8-K in connection with an offering
of securities.
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**
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Previously filed as an exhibit to the Company’s Registration
Statement on Form S-3, filed on September 30, 2019.
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Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has
duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of South
San Francisco, California, on October 3, 2019.
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VistaGen Therapeutics, Inc..
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By:
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/s/
Shawn K. Singh
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Shawn K. Singh, J.D.
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Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/
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Shawn K. Singh, JD
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Chief Executive Officer, and Director
(Principal Executive Officer)
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October 3, 2019
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/s/
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Jerrold D. Dotson
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Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
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October 3, 2019
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/s/
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H. Ralph Snodgrass, Ph.D
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President, Chief Scientific Officer and Director
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October 3, 2019
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/s/
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Jon S. Saxe
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Chairman of the Board of Directors
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October 3, 2019
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/s/
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Brian J. Underdown, Ph. D
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Director
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October 3, 2019
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/s/
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Jerry B. Gin, Ph.D.
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Director
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October 3, 2019
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/s/
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Ann M. Cunningham
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Director
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October 3, 2019
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*By:
/s/ Shawn K.
Singh
Attorney-in-fact
Exhibit 5.1
October 3, 2019
VistaGen Therapeutics, Inc.
343 Allerton Avenue
South
San Francisco, CA 94080
Re: Registration
Statement on Form S-3
Ladies and Gentlemen:
We are acting as counsel
for VistaGen Therapeutics, Inc., a
Nevada corporation (the “Company”),
in connection with the filing of a Registration Statement
on Form S-3 relating to the registration under the
Securities Act of 1933, as amended (the “Act”),
of the following securities of the Company: (i) shares
(the “Company
Shares”)
of common stock, par value $0.001 per share
(“Common
Stock”),
(ii) shares of preferred stock, par value $0.0001 per share
(“Preferred
Stock”),
in one or more series, (iii) warrants to purchase Common Stock
(“Warrants”),
and (iv) units consisting of two or more of the Securities (as
defined below) (“Units”).
The Company Shares, Preferred Stock, Warrants and Units are
collectively referred to herein as the “Securities.”
The Securities shall include any additional amounts of such
securities the offer and sale of which are registered pursuant to a
registration statement filed pursuant to Rule 462(b) under the Act
in connection with one or more offerings contemplated by such
Registration Statement. Such Registration Statement, as amended,
and including any registration statement related thereto and filed
pursuant to Rule 462(b) under the Act, is herein referred to
as the “Registration
Statement.”
The Securities may be offered and sold from time
to time by the Company as set forth in the Registration Statement,
the prospectus contained within the Registration Statement (the
“Prospectus”), and supplements to the Prospectus (each,
a “Prospectus
Supplement”). The
Warrants may be issued under one or more warrant agreements (each,
a “Warrant
Agreement”) by and
between the Company and a bank or trust company to be identified
therein as warrant agent. The Units may be issued under one or more
unit agreements (each, a “Unit
Agreement”) between the
Company and a third party to be identified therein as unit agent.
Each Warrant Agreement and each Unit Agreement are herein
collectively called the “Agreements.”
We
have reviewed the Registration Statement and such other agreements,
documents, records, certificates and other materials, and have
reviewed and are familiar with such corporate proceedings and
satisfied ourselves as to such other matters, as we have considered
relevant or necessary as a basis for this opinion. In such review,
we have assumed the accuracy and completeness of all agreements,
documents, records, certificates and other materials submitted to
us, the conformity with the originals of all such materials
submitted to us as copies (whether or not certified and including
facsimiles), the authenticity of the originals of such materials
and all materials submitted to us as originals, the genuineness of
all signatures and the legal capacity of all natural
persons.
On
the basis of the assumptions and subject to the qualifications and
limitations set forth herein, we are of the opinion
that:
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1.
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When an issuance of Common Stock has been duly authorized by all
necessary corporate action of the Company, upon issuance, delivery
and payment therefor in an amount not less than the par value
thereof in the manner contemplated by the Registration Statement
and/or the Prospectus and related Prospectus Supplement(s) and by
such corporate action, such shares of Common Stock will be validly
issued, fully paid and nonassessable.
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2.
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With
respect to the Preferred Stock, when (a) the Company’s Board
of Directors (the “Board”) has taken all necessary
corporate action to approve the issuance and establish the terms of
any particular series of Preferred Stock, the offering thereof and
related matters, including the filing of a certificate of
designations conforming to the Nevada Revised Statutes regarding
such series of Preferred Stock with the Nevada Secretary of State
and (b) shares of such series of Preferred Stock have been issued
and sold by the Company in the manner contemplated by the
Registration Statement and in accordance with such Board action,
such shares of such series of Preferred Stock (including any shares
of such series of Preferred Stock duly issued upon conversion,
exchange or exercise of any other Security in accordance with the
terms of such other Security or the instrument governing such other
Security providing for such conversion, exchange or exercise as
approved by the Board) will be duly authorized, legally issued,
fully paid and nonassessable.
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3.
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When a Warrant Agreement has been duly authorized by all necessary
corporate action of the Company and duly executed and delivered,
and when the specific terms of a particular issuance of Warrants
have been duly established in accordance with such Warrant
Agreement and authorized by all necessary corporate action of the
Company, and the Warrants have been duly executed, authenticated,
issued and delivered against payment therefor in accordance with
such Warrant Agreement and in the manner contemplated by the
Registration Statement and/or the Prospectus and related Prospectus
Supplement(s) and by such corporate action (assuming the securities
issuable upon exercise of the Warrants have been duly authorized
and reserved for issuance by all necessary corporate action), the
Warrants will be legally valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms.
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4.
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When a Unit Agreement has been duly authorized by all necessary
corporate action of the Company and duly executed and delivered,
and when the specific terms of a particular issuance of Units have
been duly established in accordance with such Unit Agreement and
authorized by all necessary corporate action of the Company, and
the Units have been duly executed, authenticated, issued and
delivered against payment therefor in accordance with such Unit
Agreement and in the manner contemplated by the Registration
Statement and/or the Prospectus and related Prospectus
Supplement(s) and by such corporate action (assuming the
constituent securities of the Units have been duly authorized and
reserved for issuance by all necessary corporate action), the Units
will be legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their
terms.
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Our
opinions set forth above are subject to and limited by the effect
of (a) applicable bankruptcy, insolvency, fraudulent
conveyance, fraudulent transfer, receivership, conservatorship,
arrangement, moratorium and other laws affecting and relating to
the rights of creditors generally, (b) general equitable
principles and (c) general principles of equity, including
without limitation concepts of materiality, reasonableness, good
faith and fair dealing, and the possible unavailability of specific
performance or injunctive relief and limitation of rights of
acceleration, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
In connection with the opinions expressed above,
we have assumed that at or prior to the time of the delivery of any
of the Securities (a) the Registration Statement, and any
amendments thereto (including post-effective amendments), will have
been declared effective under the Act and a Prospectus Supplement
relating to the offer and sale of such Securities to the Prospectus
will have been prepared and filed with the Securities and Exchange
Commission (the “Commission”) pursuant to Rule 424(b) under the Act,
(b) the Board shall not have rescinded or otherwise modified
the authorization of such Securities, (c) that a definitive
purchase, underwriting or similar agreement, including any
Agreements, with respect to any Securities offered will have been
duly authorized and validly executed and delivered by the Company
and the other parties thereto, (d) that any Securities issuable
upon conversion, exchange, redemption or exercise of any Securities
being offered will be duly authorized, created and, if appropriate,
reserved for issuance upon such conversion, exchange, redemption or
exercise, and (e) neither the establishment of any terms of
such Securities after the date hereof nor the issuance and delivery
of, or the performance of the Company’s obligations under,
such Securities will require any authorization, consent, approval
or license of or exemption from, or registration or filing with, or
report or notice to, any governmental unit, agency, commission,
department or other authority (a “Governmental
Approval”) or violate or
conflict with, result in a breach of, or constitute a default
under, (i) any agreement or instrument to which the Company or
any of its affiliates is a party or by which the Company or any of
its affiliates or any of their respective properties may be bound,
(ii) any Governmental Approval that may be applicable to the
Company or any of its affiliates or any of their respective
properties, (iii) any order, decision, judgment or decree that
may be applicable to the Company or any of its affiliates or any of
their respective properties, or (iv) any applicable law (other
than the Nevada Revised Statutes and the law of the State of
California in each case as in effect on the date
hereof).
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
hereby consent to the filing of this opinion letter as
Exhibit 5.1 to the Registration Statement and to the use of
our name under the caption “Legal Matters” in the
Registration Statement and in the Prospectus forming a part thereof
and any supplement thereto. In giving this consent, we do not
thereby admit that we are within the category of persons whose
consent is required under Section 7 of the Act or the rules
and regulations of the Commission promulgated
thereunder.
Very
truly yours,
/s/ Disclosure Law Group
Disclosure
Law Group, a Professional Corporation