UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) of the SECURITIES EXCHANGE ACT OF
1934
Date of Report (Date of earliest event reported): December 18,
2020
VistaGen Therapeutics, Inc.
(Exact name of registrant as specified in its charter)
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NEVADA
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000-54014
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20-5093315
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification Number)
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343 Allerton Ave.
South San Francisco, California 94090
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(Address of principal executive offices)
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(650) 577-3600
(Registrant’s telephone number, including area
code)
Not Applicable
(Former name or former address, if changed since last
report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
☐ Written communications
pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
☐ Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a
-12)
☐ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d -2(b))
☐ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e -4(c))
Securities registered pursuant to Section 12(b) of the
Act:
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Title
of each class
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Trading
Symbol(s)
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Name of
each exchange on which registered
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Common
Stock, par value $0.001 per share
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VTGN
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Nasdaq
Capital Market
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Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (17
CFR 230.405) or Rule 12b-2 of the Securities Exchange Act of 1934
(17 CFR 240.12b-2)
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 ☐
Item 1.01 Entry into a Material Definitive
Agreement.
On December 18, 2020, VistaGen Therapeutics, Inc.
(the “Company”) entered into an underwriting agreement
(the “Underwriting
Agreement”) with
Jefferies LLC and William Blair & Company, L.L.C., as
representatives of the underwriters named therein (the
“Underwriters”),
pursuant to which the Company agreed to issue and sell to the
Underwriters, in an underwritten public offering (the
“Public
Offering”), 63,000,000
shares of the Company’s common stock, par value $0.001 per
share (“Common
Stock”) at a public
offering price of $0.92 per share and 2,000,000 shares of a
newly issued series of convertible preferred stock
(“Series D Preferred
Stock” and, together with the Common Stock, the
“Securities”)
at a public offering price of $21.16
per share, resulting in gross proceeds to the Company of $100
million. The Public Offering closed on December 22, 2020 at which
time the Securities were issued and sold to the
Underwriters.
The Company expects to use the net proceeds from
the Public Offering of approximately $93.5 million, after deducting
underwriting discounts and commissions and offering expenses
payable by the Company, for research, development and
manufacturing and regulatory expenses associated with continuing
development of PH94B, PH10, AV-101, and potential drug candidates
to expand its CNS pipeline, and for other working capital and
general corporate purposes.
The Securities were sold pursuant to the
Company’s effective
shelf registration statement filed with the
Securities and Exchange Commission (“SEC”) on September 30, 2019, and declared
effective on October 7, 2019 (File No. 333-234025).
A prospectus supplement relating to the Public Offering
was filed with the SEC on December 18, 2020.
The
Underwriting Agreement contains customary representations,
warranties and agreements by the Company, customary conditions to
closing, indemnification obligations of the Company and the
Underwriters, including for liabilities under the Securities Act of
1933, as amended (the “Securities Act”), other obligations of the
parties, and termination provisions. The representations,
warranties and covenants contained in the Underwriting Agreement
were made solely for the benefit of the parties thereto and may be
subject to limitations agreed upon by the contracting parties.
Accordingly, the Underwriting Agreement is incorporated herein by
reference only to provide investors with information regarding the
terms of the Underwriting Agreement and not to provide investors
with any other factual information regarding the Company or its
business, and should be read in conjunction with the disclosures in
the Company’s periodic reports and other filings with the
SEC.
A
copy of the Underwriting Agreement is attached hereto as Exhibit
1.1 and is incorporated herein by reference. The foregoing
description of the material terms of the Underwriting Agreement
does not purport to be complete and is qualified in its entirety by
reference to such exhibit.
A
copy of the legal opinion and consent of Woodburn and Wedge,
relating to the Securities is attached hereto as Exhibit
5.1.
Item 3.03 Material Modification to Rights of Security
Holders.
The
information contained in Item 5.03 with respect to the Certificate
of Designation (as defined below) is incorporated by reference into
this Item 3.03.
Item 5.03 Amendments to Articles of Incorporation; Change in
Fiscal Year.
In connection with the Public Offering, on
December 21, 2020, the Company filed the Certificate of
Designation of the Relative Rights and Preferences of the Series D
Convertible Preferred Stock (the
“Certificate of
Designation”) with
the Secretary of State of the State of Nevada to establish the terms, rights, obligations and
preferences of the Series D Preferred Stock. The Certificate of
Designation became effective upon the filing with the
Secretary of State of the State of Nevada. The Certificate of Designation designates
2,000,000 shares as Series D Preferred Stock, par value $0.001 per
share.
Rank
The
shares of Series D Preferred Stock rank: (i) senior to all of the
Company’s Common Stock until the date of the Charter
Amendment (as defined below); (ii) senior to any class or series of
the Company’s capital stock hereafter created specifically
ranking by its terms junior to the Series D Preferred Stock; (iii)
on parity to all shares of the Company’s Series A Convertible
Preferred Stock, Series B 10% Convertible Preferred Stock and
Series C Convertible Preferred Stock; (iv) on parity to any class
or series of the Company’s capital stock hereafter created
specifically ranking by its terms on parity with the Series D
Preferred Stock; and (v) junior to any class or series of the
Company’s capital stock hereafter created specifically
ranking by its terms senior to the Series D Preferred Stock, in
each case, as to distributions of assets upon the Company’s
liquidation, dissolution or winding up whether voluntarily or
involuntarily and/or the right to receive dividends.
Conversion
Each
whole share of Series D Preferred Stock is initially convertible
into 23 shares of Common Stock at any time at the option of the
holder; provided, that the
Series D Preferred Stock will not be convertible prior to the date
on which the Company receives approval of its stockholders of an
amendment to the Company’s Restated and Amended Articles of
Incorporation (the “Articles
of Incorporation”) to increase the number of
authorized shares of Common Stock to a total of 325 million shares
(the “Charter
Amendment”) and such Charter Amendment is effective;
and provided further, that
the holders of Series D Preferred Stock will be prohibited, subject
to certain exceptions, from converting such shares of Series D
Preferred Stock into shares of Common Stock if, as a result of such
conversion, the holder, together with its affiliates, would own
more than 9.99% of the total number of shares of Common Stock then
issued and outstanding, which percentage may be changed at the
holder’s election to a lower percentage at any time or to a
higher percentage not to exceed 19.99% upon 61 days’ notice
to the Company.
Liquidation Preference
Prior
to approval and effectiveness of the Charter Amendment, each holder
of shares of Series D Preferred Stock is entitled to receive, in
preference to any distributions of any of the assets or surplus
funds of the Company to the holders of Common Stock and any of the
Company’s securities that by their terms are junior to the
Series D Preferred Stock and pari passu with any distribution to
the holders of any securities having (by their terms) parity with
the Series D Preferred Stock, an amount equal to $0.001 per share
of Series D Preferred Stock, plus an additional amount equal to any
dividends declared but unpaid on such shares, before any payments
shall be made or any assets distributed to holders of any class of
Common Stock or any of the Company’s securities that by their
terms are junior to the Series D Preferred Stock. If, upon any such
liquidation, dissolution or winding up of the Company, the assets
of the Company shall be insufficient to pay the holders of shares
of the Series D Preferred Stock the amount required under the
preceding sentence, then all remaining assets of the Company shall
be distributed ratably to holders of the shares of the Series D
Preferred Stock and any securities having (by their terms) parity
with the Series D Preferred Stock. After such preferential payment,
each holder of shares of Series D Preferred Stock shall be entitled
to participate pari passu with the holders of Common Stock (on an
as-converted basis, without regard to the 9.99% beneficial
ownership limitation) and any securities having (by their terms)
parity with the Series D Preferred Stock, including the Series A
Convertible Preferred Stock, the Series B 10% Convertible Preferred
Stock and the Series C Convertible Preferred Stock, in the
remaining distribution of the net assets of the Company available
for distribution.
On and
after the approval and effectiveness of the Charter Amendment, the
Series D Preferred Stock will have no liquidation
preference.
Voting Rights
Prior
to the date of the Charter Amendment, holders of shares of the
Series D Preferred Stock will have one vote per share of Series D
Preferred Stock and will vote as a single class with the shares of
Common Stock. On and after the date of the Charter Amendment, the
Series D Preferred Stock will generally have no voting rights.
However, so long as shares of Series D Preferred Stock remain
outstanding, the affirmative vote of holders of a majority of the
then-outstanding shares of Series D Preferred Stock will be
required before the Company can: (a) amend, alter, modify or repeal
(whether by merger, consolidation or otherwise) the Certificate of
Designation, the Articles of Incorporation or the Company’s
Second Amended and Restated Bylaws in any manner that adversely
affects the rights, preferences, privileges or the restrictions
provided for the benefit of, the Series D Preferred Stock; (b)
issue further shares of Series D Preferred Stock or increase or
decrease (other than by conversion) the number of authorized shares
of Series D Preferred Stock; or (c) enter into any agreement to do
any of the foregoing that is not expressly made conditional on
obtaining the affirmative vote or written consent of the requisite
holders.
Dividends
Shares
of the Series D Preferred Stock are entitled to receive any
dividends payable to holders of Common Stock on an
as-converted-to-common-stock basis.
Redemption
The
Company will not be obligated to redeem or repurchase any shares of
Series D Preferred Stock. Shares of Series D Preferred Stock will
not otherwise be entitled to any redemption rights or mandatory
sinking fund or analogous fund provisions.
Exchange Listing
The
Company does not intend to apply for listing of the Series D
Preferred Stock on any securities exchange or other trading
system.
The foregoing description of the
Certificate of Designation and the terms of the Series D Preferred
Stock does not purport to be complete and is subject to, and
qualified in its entirety by, the full text of the Certificate of
Designation, a copy of which is being filed as Exhibit 3.1 hereto
and is incorporated by reference herein.
Item 7.01
Regulation FD Disclosure.
On December 22, 2020, the Company
issued a press release announcing the closing of the Public
Offering. A copy of the press release is furnished as Exhibit 99.1
to this Current Report on Form 8-K and is incorporated herein by
reference into this Item 7.01.
The information in this Item 7.01
and Exhibit 99.1 hereto shall not be deemed “filed” for
purposes of Section 18 of the Securities Exchange Act of 1934, as
amended (the “Exchange
Act”), or otherwise subject to the liabilities of that
section and shall not be deemed incorporated by reference in any
filing made by the Company under the Securities Act or the Exchange
Act, except as set forth by specific reference in such
filing.
Item 8.01 Other Events.
On
December 18, 2020, the Company issued a press release announcing the pricing of the Public
Offering. A copy of the press release is attached to this Current
Report on Form 8-K as Exhibit 99.2, and is incorporated herein by
reference into this Item 8.01.
Item 9.01 Financial Statements and
Exhibits.
(d) Exhibits Index
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Exhibit No.
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Description
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Underwriting
Agreement, dated December 18, 2020, by and among VistaGen
Therapeutics, Inc., Jefferies LLC and William Blair & Company,
L.L.C.
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Certificate
of Designation of the Relative Rights and Preferences of the Series
D Convertible Preferred Stock.
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Opinion of Woodburn and Wedge.
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Consent of Woodburn and Wedge (included in Exhibit
5.1).
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Press Release issued by VistaGen Therapeutics, Inc. to announce
closing of the Public Offering, dated December 22,
2020.
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Press Release issued by VistaGen Therapeutics, Inc. to announce
pricing of the Public Offering, dated December 18,
2020.
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Signatures
Pursuant to the
requirements of the Securities Exchange Act of 1934, the registrant
has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
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VistaGen
Therapeutics, Inc.
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Date:
December 22, 2020
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By:
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/s/
Shawn K. Singh
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Shawn
K. Singh
Chief
Executive Officer
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Exhibit
1.1
2,000,000 Shares of Series D Preferred Stock
VistaGen Therapeutics, Inc.
UNDERWRITING
AGREEMENT
December
18, 2020
JEFFERIES
LLC
WILLIAM
BLAIR & COMPANY, L.L.C.
As
Representatives of the several Underwriters
c/o
JEFFERIES LLC
520
Madison Avenue
New
York, New York 10022
c/o
WILLIAM BLAIR & COMPANY, L.L.C.
150
North Riverside Plaza
Chicago,
Illinois 60606
Ladies
and Gentlemen:
VistaGen
Therapeutics, Inc., a Nevada corporation (the “Company”), proposes to issue and
sell to the several underwriters named in Schedule
A (the “Underwriters”) an aggregate of
63,000,000 shares of the Company’s common stock, par value
$0.001 per share (the “Common
Stock”) and 2,000,000 shares of the Company’s
Series D convertible preferred stock (the “Preferred Stock” and together with
the Common Stock, the “Securities”). Jefferies LLC
(“Jefferies”)
and William Blair & Company, L.L.C. (“William Blair”) agreed to act as
representatives of the several Underwriters (in such capacity, the
“Representatives”) in connection
with the offering and sale of the Securities. To the extent there
are no additional underwriters listed on Schedule
A, the term “Representatives” as used herein
shall mean you, as Underwriters, and the term
“Underwriters” shall mean either the singular or the
plural, as the context requires.
Each
share of the Preferred Stock shall be initially convertible into 23
shares of Common Stock at any time at the option of the holder,
provided that the Preferred
Stock shall not be convertible prior to the date on which the
Company has received approval by its stockholders to increase the
total authorized shares of Common Stock by at least the amount
necessary to reserve Common Stock sufficient to satisfy the
Company’s conversion obligations in respect of the Preferred
Stock, provided further,
that the holder will be prohibited, subject to certain exceptions,
from converting the Preferred Stock into shares of Common Stock if,
as a result of such conversion, the holder, together with its
affiliates and other attribution parties, would own more than 9.99%
of the total number of shares of the Company’s Common Stock
then issued and outstanding, which percentage may be changed at the
holder’s election to a lower percentage at any time or a
higher percentage not to exceed 19.99% upon 61 days’ notice
to the Company.
-1-
The
Company has prepared and filed with the Securities and Exchange
Commission (the “Commission”) a shelf registration
statement on Form S-3, File No. 333-234025, including a
base prospectus (the “Base
Prospectus”) to be used in connection with the public
offering and sale of the Securities. Such registration statement,
as amended, including the financial statements, exhibits and
schedules thereto, in the form in which it became effective under
the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (collectively, the
“Securities
Act”), including all documents incorporated or deemed
to be incorporated by reference therein and any information deemed
to be a part thereof at the time of effectiveness pursuant to
Rule 430A or 430B under the Securities Act, is called the
“Registration
Statement.” Any registration statement filed by the
Company pursuant to Rule 462(b) under the Securities Act in
connection with the offer and sale of the Securities is called the
“Rule 462(b) Registration
Statement,” and from and after the date and time of
filing of any such Rule 462(b) Registration Statement the term
“Registration Statement” shall include the Rule 462(b)
Registration Statement. The preliminary prospectus supplement dated
December 17, 2020 describing the Securities and the offering
thereof (the “Preliminary
Prospectus Supplement”), together with the Base
Prospectus, is called the “Preliminary Prospectus,” and the
Preliminary Prospectus and any other prospectus supplement to the
Base Prospectus in preliminary form that describes the Securities
and the offering thereof and is used prior to the filing of the
Prospectus (as defined below), together with the Base Prospectus,
is called a “preliminary
prospectus.” As used herein, the term
“Prospectus”
shall mean the final prospectus supplement to the Base Prospectus
that describes the Securities and the offering thereof (the
“Final Prospectus
Supplement”), together with the Base Prospectus, in
the form first used by the Underwriters to confirm sales of the
Securities or in the
form first made available to the Underwriters by the Company to
meet requests of purchasers pursuant to Rule 173 under the
Securities Act. References herein to the Preliminary Prospectus,
any preliminary prospectus and the Prospectus shall refer to both
the prospectus supplement and the Base Prospectus components of
such prospectus. As used herein, “Applicable Time” is 8:00 a.m. (New
York City time) on December 18, 2020. As used herein,
“free writing
prospectus” has the meaning set forth in Rule 405
under the Securities Act, and “Time of Sale Prospectus” means the
Preliminary Prospectus, as amended or supplemented immediately
prior to the Applicable Time, together with the free writing
prospectuses, if any, identified in Schedule B hereto. As used
herein, “Road
Show” means a “road show” (as defined in
Rule 433 under the Securities Act) relating to the offering of the
Securities contemplated hereby that is a “written
communication” (as defined in Rule 405 under the Securities
Act). As used herein, “Rule
163B Written Communication” means each written
communication (within the meaning of Rule 405 under the Securities
Act) that is made in reliance on Rule 163B under the Securities Act
by the Company or any person authorized to act on behalf of the
Company to one or more potential investors that are, or are
reasonably believed to be, qualified institutional buyers
(“QIBs”) and/or
institutions that are, or are reasonably believed to be, accredited
investors (“IAIs”), as such terms are
respectively defined in Rule 144A and Rule 501(a) under the
Securities Act, to determine whether such investors might have an
interest in the offering of the Securities; “Rule 163B Oral Communication”
means each oral communication, if any, made in reliance on Rule
163B under the Securities Act by the Company or any person
authorized to act on behalf of the Company made to one or more QIBs
and/or one or more IAIs to determine whether such investors might
have an interest in the offering of the Securities;
“Marketing
Materials” means any materials or information provided
to investors by, or with the approval of, the Company in connection
with the marketing of the offering of the Securities, including any
roadshow or investor presentations made to investors by the Company
(whether in person or electronically); and “Permitted Rule 163B Communication”
means the Rule 163B Written Communication(s) and Marketing
Materials listed on Schedule C attached hereto.
All
references in this Agreement to the Registration Statement, the
Preliminary Prospectus, any preliminary prospectus, the Base
Prospectus and the Prospectus shall include the documents
incorporated or deemed to be incorporated by reference therein. All
references in this Agreement to financial statements and schedules
and other information which are “contained,”
“included” or “stated” in, or “part
of” the Registration Statement, the Rule 462(b) Registration
Statement, the Preliminary Prospectus, any preliminary prospectus,
the Base Prospectus, the Time of Sale Prospectus or the Prospectus,
and all other references of like import, shall be deemed to mean
and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference
in the Registration Statement, the Rule 462(b) Registration
Statement, the Preliminary Prospectus, any preliminary prospectus,
the Base Prospectus, the Time of Sale Prospectus or the Prospectus,
as the case may be. All references in this Agreement to amendments
or supplements to the Registration Statement, the Preliminary
Prospectus, any preliminary prospectus, the Base Prospectus, the
Time of Sale Prospectus or the Prospectus shall be deemed to mean
and include the filing of any document under the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (collectively, the “Exchange Act”) that is or is
deemed to be incorporated by reference in the Registration
Statement, the Preliminary Prospectus, any preliminary prospectus,
the Base Prospectus, or the Prospectus, as the case may be. All
references in this Agreement to (i) the Registration
Statement, the Preliminary Prospectus, any preliminary prospectus,
the Base Prospectus or the Prospectus, any amendments or
supplements to any of the foregoing, or any free writing
prospectus, shall include any copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System (“EDGAR”) and (ii) the
Prospectus shall be deemed to include any “electronic
Prospectus” provided for use in connection with the offering
of the Securities as contemplated by Section 3(n) of this
Agreement.
-2-
The
Company hereby confirms its agreements with the Underwriters as
follows:
The
Company hereby represents, warrants and covenants to each
Underwriter, as of the date of this Agreement, as of the Closing
Date (as hereinafter defined), as follows:
(a) Compliance
with Registration Requirements. The Registration Statement has become
effective under the Securities Act. The Company has complied, to
the Commission’s satisfaction, with all requests of the
Commission for additional or supplemental information, if any. No
stop order suspending the effectiveness of the Registration
Statement is in effect and no proceedings for such purpose have
been instituted or are pending or, to the knowledge of the Company,
are contemplated or threatened by the Commission. At the time the
Company’s Annual Report on Form 10-K for the fiscal year
ended March 31, 2020 (the “Annual Report”) was filed with the
Commission, or, if later, at the time the Registration Statement
was originally filed with the Commission, the Company met the
then-applicable requirements for use of Form S-3 under the
Securities Act. The Company meets the requirements for use of Form
S-3 under the Securities Act. The documents incorporated or deemed
to be incorporated by reference in the Registration Statement, the
Time of Sale Prospectus and the Prospectus, at the time they were
or hereafter are filed with the Commission, or became effective
under the Exchange Act, as the case may be, complied and will
comply, in all material respects, with the requirements of the
Exchange Act.
(b) Disclosure.
Each preliminary prospectus and the Prospectus when filed complied,
in all material respects, with the Securities Act and, if filed by
electronic transmission pursuant to EDGAR, was identical (except as
may be permitted by Regulation S-T under the Securities Act)
to the copy thereof delivered to the Underwriters for use in
connection with the offer and sale of the Securities. Each of the
Registration Statement and any post-effective amendment thereto, at
the time it became or becomes effective, complied and will comply,
in all material respects, with the Securities Act and did not and
will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading. As of the Applicable
Time, the Time of Sale Prospectus did not, and at the Closing Date
(as defined in Section 2), will
not, contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. The Prospectus, as of its date, did not, and at the
Closing Date, will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading. The representations and
warranties set forth in the three immediately preceding sentences
do not apply to statements in or omissions from the Registration
Statement or any post-effective amendment thereto, or the
Prospectus or the Time of Sale Prospectus, or any amendments or
supplements thereto, made in reliance upon and in conformity with
written information relating to any Underwriter furnished to the
Company in writing by the Representatives expressly for use
therein, it being understood and agreed that the only such
information consists of the information described in Section 9(b) below. There are no
contracts or other documents required to be described in the Time
of Sale Prospectus or the Prospectus or to be filed as an exhibit
to the Registration Statement which have not been described or
filed as required.
(c) Free
Writing Prospectuses; Road Show. As of the determination date
referenced in Rule 164(h) under the Securities Act, the Company was
not, is not or will not be (as applicable) an “ineligible
issuer” in connection with the offering of the Securities
pursuant to Rules 164, 405 and 433 under the Securities Act. Each
free writing prospectus that the Company is required to file
pursuant to Rule 433(d) under the Securities Act has been, or will
be, filed with the Commission in accordance with the requirements
of the Securities Act. Each free writing prospectus that the
Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act or that was prepared by or on behalf of or
used or referred to by the Company complies or will comply in all
material respects with the requirements of Rule 433 under the
Securities Act, including timely filing with the Commission,
retention and legending, as applicable, and each such free writing
prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the
Securities did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information
contained in the Registration Statement, the Prospectus or any
preliminary prospectus unless such information has been superseded
or modified as of such time. Except for the free writing
prospectuses, if any, identified in Schedule B, and electronic road
shows, if any, furnished to you before first use, the Company has
not prepared, used or referred to, and will not, without your prior
written consent, which consent shall not be unreasonably withheld,
prepare, use or refer to, any free writing prospectus. Each Road
Show, when considered together with the Time of Sale Prospectus,
did not, as of the Applicable Time, contain any untrue statement of
a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
-3-
(d) Distribution
of Offering Material By the Company. Prior to the completion of the
Underwriters’ distribution of the Securities, the Company has not distributed and
will not distribute any offering material in connection with the
offering and sale of the Securities other than the Registration
Statement, the Time of Sale Prospectus, the Prospectus or any free
writing prospectus reviewed and consented to by the
Representatives, which consent shall not be unreasonably withheld,
the free writing prospectuses, if any, identified on Schedule B hereto and any
Permitted Rule 163B Communications.
(e) The
Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(f) Authorization
of the Common Stock.
The shares of Common Stock have been duly authorized by the Company
for issuance and sale pursuant to this Agreement and, when issued
and delivered by the Company against payment for the shares of
Common Stock included in the Securities pursuant to this Agreement,
will be validly issued, fully paid and nonassessable, and the
issuance and sale of the shares of Common Stock will not be subject
to any preemptive rights, rights of first refusal or other similar
rights to subscribe for or purchase the shares of Common
Stock.
(g) Authorization
of the Preferred Stock. The shares of Preferred Stock have
been duly authorized by the Company for issuance and sale pursuant
to this Agreement and, when issued and delivered by the Company
against payment for the shares of Preferred Stock pursuant to this
Agreement, will be validly issued, fully paid and nonassessable,
and the issuance and sale of the shares of Preferred Stock will not
subject to any preemptive rights, rights of first refusal or other
similar rights to subscribe for or purchase the Preferred
Stock.
(h) Authorization
of the Common Stock Issuable Upon Conversion of the Preferred
Stock. The shares of
Common Stock issuable upon conversion of the Preferred Stock will
be duly authorized by the Company and reserved for issuance upon
conversion thereof upon the Company’s receiving the requisite
approval from the holders of its voting securities (the
“Required Stockholder
Approval”) to amend the Company’s Restated and
Amended Articles of Incorporation (the “Articles of Incorporation”) to
increase the number of authorized and unissued shares of Common
Stock by an amount sufficient for the Company to deliver shares of
Common Stock upon conversion of each share of Preferred Stock in
accordance with the provisions of the Certificate of Designations
for the Preferred Stock (the “Certificate of Designations”) and,
assuming that the Required Stockholder Approval has been obtained,
when such shares of Common Stock are issued and delivered by the
Company in accordance with the provisions of the Certificate of
Designations, such shares of Common Stock will be validly issued,
fully paid and non-assessable, and the issuance of such shares of
Common Stock will not be subject to any preemptive rights, rights
of first refusal or other similar rights. The Company has, to the
fullest extent permitted under the Articles of Incorporation (and
subject to the Required Stockholder Approval), reserved from its
duly authorized capital stock the maximum number of shares of
Common Stock issuable pursuant to this Agreement and the
Certificate of Designations, subject to the Required Stockholder
Approval with respect to the shares of Common Stock issuable upon
conversion of the Preferred Stock.
(i) No
Applicable Registration or Other Similar Rights. There are no persons with registration
or other similar rights to have any equity or debt securities
registered for sale under the Registration Statement or included in
the offering contemplated by this Agreement, except for such rights
as have been duly waived.
-4-
(j) No
Material Adverse Change. Except as otherwise disclosed in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, subsequent to the respective dates as of which
information is given in the Registration Statement, the Time of
Sale Prospectus and the Prospectus: (i) there has been no
material adverse change, or any development that could be expected
to result in a material adverse change, in (A) the condition,
financial or otherwise, or in the earnings, business, properties,
operations, operating results, assets, liabilities or prospects,
whether or not arising from transactions in the ordinary course of
business, of the Company and its subsidiaries, considered as one
entity or (B) the ability of the Company to consummate the
transactions contemplated by this Agreement or perform its
obligations hereunder (any such change being referred to herein as
a “Material Adverse
Change”); (ii) the Company and its subsidiaries,
considered as one entity, have not incurred any material liability
or obligation, indirect, direct or contingent, including without
limitation any losses or interference with their business from
fire, explosion, flood, earthquakes, accident or other calamity,
whether or not covered by insurance, or from any strike, labor
dispute or court or governmental action, order or decree, that are
material, individually or in the aggregate, to the Company and its
subsidiaries, considered as one entity, and have not entered into
any material transactions not in the ordinary course of business;
and (iii) there has not been any material decrease in the
capital stock or any material increase in any short-term or
long-term indebtedness of the Company or its subsidiaries and there
has been no dividend or distribution of any kind declared, paid or
made by the Company or, except for dividends paid to the Company or
other subsidiaries, by any of the Company’s subsidiaries on
any class of capital stock, or any repurchase or redemption by the
Company or any of its subsidiaries of any class of capital
stock.
(k) Independent
Accountants. OUM
& Co. LLP, which has expressed its opinion with respect to the
consolidated financial statements (which term as used in this
Agreement includes the related notes thereto) filed with the
Commission as a part of the Registration Statement, the Time of
Sale Prospectus and the Prospectus, is (i) an independent
registered public accounting firm as required by the Securities
Act, the Exchange Act, and the rules of the Public Company
Accounting Oversight Board (“PCAOB”), (ii) in compliance with
the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X under the Securities
Act and (iii) a registered public accounting firm as defined by the
PCAOB whose registration has not been suspended or revoked and who
has not requested such registration to be withdrawn.
(l) Financial
Statements. The
financial statements filed with the Commission as a part of the
Registration Statement, the Time of Sale Prospectus and the
Prospectus present fairly, in all material respects, the
consolidated financial position of the Company and its subsidiaries
as of the dates indicated and the results of their operations,
changes in stockholders’ equity and cash flows for the
periods specified. The supporting schedules included in the
Registration Statement present fairly the information required to
be stated therein. Such financial statements and supporting
schedules have been prepared in conformity with generally accepted
accounting principles as applied in the United States applied on a
consistent basis throughout the periods involved, except as may be
expressly stated in the related notes thereto. The interactive data
in eXtensible Business Reporting Language included or incorporated
by reference in the Registration Statement fairly presents the
information called for in all material respects and has been
prepared in accordance with the Commission’s rules and
guidelines applicable thereto. No other financial statements or
supporting schedules are required to be included in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus. The financial data set forth in each of the
Registration Statement, the Time of Sale Prospectus and the
Prospectus under the caption “Capitalization” fairly
present, in all material respects, the information set forth
therein on a basis consistent with that of the audited financial
statements contained in the Registration Statement, the Time of
Sale Prospectus and the Prospectus. All disclosures contained in
the Registration Statement, any preliminary prospectus, the
Prospectus and any free writing prospectus that constitute non-GAAP
financial measures (as defined by the rules and regulations under
the Securities Act and the Exchange Act) comply with Regulation G
under the Exchange Act and Item 10 of Regulation S-K under the
Securities Act, as applicable. To the Company’s knowledge, no
person who has been suspended or barred from being associated with
a registered public accounting firm, or who has failed to comply
with any sanction pursuant to Rule 5300 promulgated by the PCAOB,
has participated in or otherwise aided the preparation of, or
audited, the financial statements, supporting schedules or other
financial data filed with the Commission as a part of the
Registration Statement, the Time of Sale Prospectus and the
Prospectus.
-5-
(m) Company’s
Accounting System.
The Company and each of its subsidiaries make and keep books and
records that are accurate, in all material respects, and maintain a
system of internal accounting controls sufficient to provide
reasonable assurance that: (i) transactions are executed in
accordance with management’s general or specific
authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles as applied in the United
States and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with management’s
general or specific authorization; (iv) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences; and (v) the interactive data in eXtensible
Business Reporting Language included or incorporated by reference
in the Registration Statement, the Time of Sale Prospectus and the
Prospectus fairly presents the information called for in all
material respects and is prepared in accordance with the
Commission's rules and guidelines applicable thereto.
(n) Disclosure
Controls and Procedures; Deficiencies in or Changes to Internal
Control Over Financial Reporting. The Company has established and
maintains disclosure controls and procedures (as defined in
Rules 13a-15 and 15d-15 under the Exchange Act), which (i) are
designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to
the Company’s principal executive officer and its principal
financial officer by others within those entities, particularly
during the periods in which the periodic reports required under the
Exchange Act are being prepared; (ii) have been evaluated by
management of the Company for effectiveness as of the end of the
Company’s most recent fiscal quarter; and (iii) are effective
in all material respects to perform the functions for which they
were established. Other than as disclosed in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, since
the end of the Company’s most recent audited fiscal year,
there have been no significant deficiencies or material weakness in
the Company’s internal control over financial reporting
(whether or not remediated) and no change in the Company’s
internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting (as
defined in Rule 13a-15(f) under the Exchange Act). The Company is
not aware of any change in its internal control over financial
reporting that has occurred during its most recent fiscal quarter
that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial
reporting.
(o) Incorporation
and Good Standing of the Company. The Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation and has the corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement,
the Time of Sale Prospectus and the Prospectus and to enter into
and perform its obligations under this Agreement. The Company is
duly qualified as a foreign corporation to transact business and is
in good standing in the State of jurisdiction of its principal
place of business and each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to qualify would not reasonably be expected to result in a
Material Adverse Change.
(p) Subsidiaries.
Each of the Company’s “subsidiaries” (for
purposes of this Agreement, as defined in Rule 405 under the
Securities Act) has been duly incorporated or organized, as the
case may be, and is validly existing as a corporation, partnership
or limited liability company, as applicable, in good standing under
the laws of the jurisdiction of its incorporation or organization
and has the power and authority (corporate or other) to own, lease
and operate its properties and to conduct its business as described
in the Registration Statement, the Time of Sale Prospectus and the
Prospectus. Each of the Company’s subsidiaries is duly
qualified as a foreign corporation, partnership or limited
liability company, as applicable, to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure to qualify
would not reasonably be expected to result in a Material Adverse
Change. All of the issued and outstanding capital stock or other
equity or ownership interests of each of the Company’s
subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable and are owned by the Company, directly
or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance or adverse claim. None of the outstanding
capital stock or equity interest in any subsidiary was issued in
violation of preemptive or similar rights of any security holder of
such subsidiary. The constitutive or organizational documents of
each of the subsidiaries comply, in all material respects, with the
requirements of applicable laws of its jurisdiction of
incorporation or organization and are in full force and
effect. The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than
the subsidiaries listed in Schedule D hereto.
-6-
(q) Capitalization
and Other Capital Stock Matters. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Registration
Statement, the Time of Sale Prospectus and the Prospectus under the
caption “Capitalization” (other than for subsequent
issuances, if any, pursuant to employee benefit plans, or upon the
exercise of outstanding options or warrants, in each case described
in the Registration Statement, the Time of Sale Prospectus and the
Prospectus). The share capital of the Company conforms, in all
material respects, to the description thereof contained in the Time
of Sale Prospectus. All of the issued and outstanding securities of
the Company have been duly authorized and validly issued, are fully
paid and nonassessable and have been issued in compliance with all
federal and state securities laws. None of the outstanding
securities was issued in violation of any preemptive rights, rights
of first refusal or other similar rights to subscribe for or
purchase securities of the Company. There are no authorized or
outstanding options, warrants, preemptive rights, rights of first
refusal or other rights to purchase, or equity or debt securities
convertible into or exchangeable or exercisable for, any capital
stock of the Company or any of its subsidiaries other than those
described in the Registration Statement, the Time of Sale
Prospectus and the Prospectus. The descriptions of the
Company’s stock option, stock bonus and other stock plans or
arrangements, and the options or other rights granted thereunder,
set forth in the Registration Statement, the Time of Sale
Prospectus and the Prospectus accurately and fairly presents, in
all material respects, the information required to be shown with
respect to such plans, arrangements, options and
rights.
(r) Stock
Exchange Listing. The
shares of Common Stock are registered pursuant to Section 12(b) or
12(g) of the Exchange Act and are listed on the Nasdaq Capital
Market (the “Nasdaq”), and the Company has
taken no action designed to, or likely to have the effect of,
terminating the registration of the shares of Common Stock under
the Exchange Act or delisting the shares of Common Stock from the
Nasdaq, nor, except as otherwise disclosed in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, has the
Company received any notification that the Commission or the Nasdaq
is contemplating terminating such registration or listing. Except
as otherwise disclosed in the Registration Statement, the Time of
Sale Prospectus and the Prospectus, to the Company’s
knowledge, it is in compliance with all applicable listing
requirements of Nasdaq.
(s) Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals
Required. Neither the
Company nor any of its subsidiaries is in violation of its charter
or by-laws, partnership agreement or operating agreement or similar
organizational documents, as applicable, or is in default (or, with
the giving of notice or lapse of time, would be in default)
(“Default”)
under any indenture, loan, credit agreement, note, lease, license
agreement, contract, franchise or other instrument (including,
without limitation, any pledge agreement, security agreement,
mortgage or other instrument or agreement evidencing, guaranteeing,
securing or relating to indebtedness) to which the Company or any
of its subsidiaries is a party or by which it or any of them may be
bound, or to which any of their respective properties or assets are
subject (each, an “Existing
Instrument”), except for such Defaults as would not be
reasonably expected, individually or in the aggregate, to result in
a Material Adverse Change. The Company’s execution, delivery
and performance of this Agreement, consummation of the transactions
contemplated hereby and by the Registration Statement, the Time of
Sale Prospectus and the Prospectus and the issuance and sale of the
Securities (including the use of proceeds from the sale of the
Securities as described in the Registration Statement, the Time of
Sale Prospectus and the Prospectus under the caption “Use of
Proceeds”) (i) have been duly authorized by all
necessary corporate action and will not result in any violation of
the provisions of the charter or by-laws, partnership agreement or
operating agreement or similar organizational documents, as
applicable, of the Company or any subsidiary (ii) will not
conflict with or constitute a breach of, or Default or a Debt
Repayment Triggering Event (as defined below) under, or result in
the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its subsidiaries
pursuant to, or require the consent of any other party to, any
Existing Instrument and (iii) will not result in any violation
of any law, administrative regulation or administrative or court
decree applicable to the Company or any of its subsidiaries, except
for such conflicts, breaches or violations specified in subsection
(ii) and (iii) above that would not reasonably be expected to
result in a Material Adverse Change. Except as otherwise disclosed
in the Registration Statement, the Time of Sale Prospectus and the
Prospectus, no consent, approval, authorization or other order of,
or registration or filing with, any court or other governmental or
regulatory authority or agency, is required for the Company’s
execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby and by the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, except such as have been obtained or made by the
Company and are in full force and effect under the Securities Act
and such as may be required under applicable state securities or
blue sky laws or the Financial Industry Regulatory Authority, Inc.
(“FINRA”). As
used herein, a “Debt
Repayment Triggering Event” means any event or
condition which gives, or with the giving of notice or lapse of
time would give, the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Company or any of its subsidiaries.
-7-
(t) Compliance
with Laws. The Company and its subsidiaries have been,
during the past three (3) years, and are in compliance with all
applicable laws, rules and regulations, except where failure to be
so in compliance would not reasonably be expected, individually or
in the aggregate, to result in a Material Adverse
Change.
(u) No
Material Actions or Proceedings. There is no action, suit, proceeding,
inquiry or investigation brought by or before any legal or
governmental entity now pending or, to the knowledge of the
Company, threatened, against or affecting the Company or any of its
subsidiaries, that would reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Change. No labor
dispute with the employees of the Company or any of its
subsidiaries, or with the employees of any principal supplier,
manufacturer, customer or contractor of the Company, exists or, to
the knowledge of the Company, is threatened or imminent, except as
would not reasonably be expected to result in a Material Adverse
Change.
(v) Intellectual
Property Rights. The
Company and its subsidiaries own, or have obtained valid and
enforceable licenses for, the inventions, patent applications,
patents, trademarks, trade names, service names, copyrights, trade
secrets and other intellectual property described in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus as being owned or licensed by them or used in the
conduct of their respective businesses as currently conducted or as
currently proposed to be conducted (collectively,
“Intellectual
Property”). To the Company’s knowledge, the
conduct of their respective businesses does not and will not
infringe, misappropriate or otherwise conflict in any material
respect with any intellectual property rights of others, except as
would not be reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Change. The Intellectual
Property of the Company has not been adjudged by a court of
competent jurisdiction to be invalid or unenforceable, in whole or
in part, and the Company is unaware of any facts which, in the
Company’s opinion, would form a reasonable basis for any such
adjudication. To the Company's knowledge, except as otherwise
described in the Registration Statement, the Time of Sale
Prospectus and the Prospectus: (i) there are no third parties who
have rights to any Intellectual Property, except for customary
reversionary rights of third-party licensors with respect to
Intellectual Property that is disclosed in the Registration
Statement, the Time of Sale Prospectus and the Prospectus as
licensed to the Company or one or more of its subsidiaries; and
(ii) there is no infringement by third parties of any Intellectual
Property, except, for each of (i) and (ii), as would not be
reasonably be expected, individually or in the aggregate, to result
in a Material Adverse Change. There is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or
claim by third parties: (A) challenging the Company’s
and its subsidiaries’ rights in or to any Intellectual
Property, and the Company is unaware of any facts which, in the
Company’s opinion, would form a reasonable basis for any such
action, suit, proceeding or claim; (B) challenging the validity,
enforceability or scope of any Intellectual Property, and the
Company is unaware of any facts which, in the Company’s
opinion, would form a reasonable basis for any such action, suit,
proceeding or claim; or (C) asserting that the Company or any of
its subsidiaries infringes or otherwise violates, or would, upon
the commercialization of any product or service described in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus as under development, infringe or violate, any patent,
trademark, trade name, service name, copyright, trade secret or
other proprietary rights of third parties, and the Company is
unaware of any facts which, in the Company’s opinion, would
form a reasonable basis for any such action, suit, proceeding or
claim; in each case of (A), (B) and (C), except as would not
reasonably be expected to result in a Material Adverse Change. The
Company and its subsidiaries have complied with the terms of each
agreement pursuant to which Intellectual Property has been licensed
to the Company or any subsidiary, and all such agreements are in
full force and effect, except when the failure to be in compliance
would not reasonably be expected to result in a Material Adverse
Change. To the Company’s knowledge, there are no defects in
any of the patents or patent applications included in the
Intellectual Property, except as would not reasonably be expected
to result in a Material Adverse Change. To the Company’s
knowledge, the Company and its subsidiaries have taken all
reasonable steps to protect, maintain and safeguard the
Intellectual Property, including the execution of appropriate
nondisclosure or confidentiality agreements and invention
assignment agreements with their employees, and to the
Company’s knowledge, no current employee of the Company
involved in the development of Intellectual Property is in or has
been in violation of any material term of any employment contract,
patent disclosure agreement, invention assignment agreement,
non-competition agreement, non-solicitation agreement,
nondisclosure agreement, or any restrictive covenant to or with a
former employer where the basis of such violation relates to such
employee’s employment with the Company, in each case except
when the failure to be in compliance would not reasonably be
expected to result in a Material Adverse Change. To the
Company’s knowledge, the duty of candor and good faith as
required by the United States Patent and Trademark Office during
the prosecution of the United States patents and patent
applications included in the Intellectual Property has been
complied with in all material respects; and in all foreign offices
having similar requirements, all such requirements have been
complied with in all material respects, in each case except when
the failure to be in compliance would not reasonably be expected to
result in a Material Adverse Change. To the knowledge of the
Company, none of the Company owned Intellectual Property or
technology (including information technology and outsourced
arrangements) employed by the Company or its subsidiaries in the
conduct of their respective businesses has been obtained or is
being used by the Company or its subsidiaries in violation of any
contractual obligation binding on the Company or its subsidiaries
or any of their respective officers, directors or employees or
otherwise in violation of the rights of any persons. The product
candidates described in the Registration Statement, the Time of
Sale Prospectus and the Prospectus as under development by the
Company or any subsidiary fall within the scope of the claims of
one or more patents and/or pending patent applications owned by, or
exclusively licensed to, the Company or its
subsidiaries.
-8-
(w) All
Necessary Permits, etc. The Company and its subsidiaries
possess such valid and current certificates, authorizations or
permits required by state, federal or foreign regulatory agencies
or bodies to conduct their respective businesses as currently
conducted and as described in the Registration Statement, the Time
of Sale Prospectus or the Prospectus (“Permits”), except where the
failure to so possess would not reasonably be expected to result in
a Material Adverse Change. Neither the Company nor any of its
subsidiaries is in violation of, or in default under, any of the
Permits or has received any notice of proceedings relating to the
revocation or modification of, or non-compliance with, any such
certificate, authorization or permit, that, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to result in a Material
Adverse Change.
(x) Title
to Properties. Except
as otherwise disclosed in the Registration Statement, the Time of
Sale Prospectus and the Prospectus, the Company and its
subsidiaries have good and marketable title to all of the real and
personal property and other assets reflected as owned in the
financial statements referred to in Section 1(l) above (or
elsewhere in the Registration Statement, the Time of Sale
Prospectus or the Prospectus), in each case free and clear of any
security interests, mortgages, liens, encumbrances, equities,
adverse claims and other defects that would reasonably be expected
to result in a Material Adverse Change. The real property,
improvements, equipment and personal property held under lease by
the Company or any of its subsidiaries are held under valid and
enforceable leases, with such exceptions as are not material and do
not materially interfere with the use made or proposed to be made
of such real property, improvements, equipment or personal property
by the Company or such subsidiary.
(y) Tax
Law Compliance.
Except as (i) disclosed in the Registration Statement, the Time of
Sale Prospectus and the Prospectus or (ii) would not reasonably be
expected to result in a Material Adverse Change, the Company and
its subsidiaries have filed all necessary federal, state and
foreign income and franchise tax returns or have properly requested
extensions thereof and have paid all taxes required to be paid by
any of them and, if due and payable, any related or similar
assessment, fine or penalty levied against any of them except as
may be being contested in good faith and by appropriate
proceedings. The Company has made adequate charges, accruals and
reserves in the applicable financial statements referred to in
Section 1(l) above in respect of all material federal, state and
foreign income and franchise taxes applicable to the Company for
all periods as to which the tax liability of the Company or any of
its subsidiaries has not been finally determined.
(z) Insurance.
Each of the Company and its subsidiaries are insured by recognized,
financially sound and reputable institutions with policies in such
amounts and with such deductibles and covering such risks as are
generally deemed adequate and customary for their businesses
including, but not limited to, policies covering real and personal
property owned or leased by the Company and its subsidiaries
against theft, damage, destruction, acts of vandalism and policies
covering the Company and its subsidiaries for product liability
claims and clinical trial liability claims. The Company has no
reason to believe that it or any of its subsidiaries will not be
able (i) to renew its existing insurance coverage as and when
such policies expire or (ii) to obtain comparable coverage
from similar institutions as may be necessary or appropriate to
conduct its business as now conducted and at a cost that would not
reasonably be expected to result in a Material Adverse Change.
Neither the Company nor any of its subsidiaries has been denied any
insurance coverage which it has sought or for which it has
applied.
(aa) Compliance with
Environmental Laws. Except as would not reasonably be
expected, individually or in the aggregate, to result in a Material
Adverse Change: (i) neither the Company nor any of its subsidiaries
is in violation of any federal, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, “Hazardous Materials”) or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials
(collectively, “Environmental
Laws”); (ii) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their
requirements; (iii) there are no pending or, to the knowledge of
the Company, threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating
to any Environmental Law against the Company or any of its
subsidiaries; and (iv) to the knowledge of the Company, there are
no events or circumstances that might reasonably be expected to
form the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or governmental
body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any Environmental
Laws.
-9-
(bb) [Reserved.]
(cc) ERISA
Compliance. The
Company and its subsidiaries and any “employee benefit
plan” (as defined under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, “ERISA”)) established or maintained
by the Company, its subsidiaries or their “ERISA
Affiliates” (as defined below) are in compliance in all
material respects with ERISA. “ERISA Affiliate” means, with
respect to the Company or any of its subsidiaries, any member of
any group of organizations described in Sections 414(b), (c),
(m) or (o) of the Internal Revenue Code of 1986, as amended, and
the regulations and published interpretations thereunder (the
“Code”) of which
the Company or such subsidiary is a member. Except as would not,
individually or in the aggregate, reasonably be expected to result
in a Material Adverse Change: (i) no “reportable event”
(as defined under ERISA) has occurred or is reasonably expected to
occur with respect to any “employee benefit plan”
established or maintained by the Company, its subsidiaries or any
of their ERISA Affiliates; (ii) no “employee benefit
plan” established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates, if such
“employee benefit plan” were terminated, would have any
“amount of unfunded benefit liabilities” (as defined
under ERISA); (iii) neither the Company, its subsidiaries nor any
of their ERISA Affiliates has incurred or reasonably expects to
incur (a) any liability under Title IV of ERISA with
respect to termination of, or withdrawal from, any “employee
benefit plan” or (b) any material liability
under Sections 412, 4971, 4975 or 4980B of the Code; and
(iv) each employee benefit plan established or maintained by the
Company, its subsidiaries or any of their ERISA Affiliates that is
intended to be qualified under Section 401(a) of the Code is
so qualified and, to the Company’s knowledge, nothing has
occurred, whether by action or failure to act, which would cause
the loss of such qualification.
(dd) Company
Not an “Investment Company.” The Company is not,
and will not be, either after receipt of payment for the Securities
or after the application of the proceeds therefrom as described
under “Use of Proceeds” in the Registration Statement,
the Time of Sale Prospectus or the Prospectus, required to register
as an “investment company” under the Investment Company
Act of 1940, as amended (the “Investment Company
Act”).
(ee) No
Price Stabilization or Manipulation; Compliance with Regulation
M. Neither the
Company nor any of its subsidiaries has taken, directly or
indirectly, any action designed to or that might cause or result in
stabilization or manipulation of the price of the Securities or of
any “reference security” (as defined in Rule 100 of
Regulation M under the Exchange Act (“Regulation M”)) with
respect to the Securities, whether to facilitate the sale or resale
of the Securities or otherwise, and has taken no action which would
directly or indirectly violate Regulation M.
(ff) Related-Party
Transactions. There
are no business relationships or related-party transactions
involving the Company or any of its subsidiaries or any other
person required to be described in the Registration Statement, the
Time of Sale Prospectus or the Prospectus that have not been
described as required.
(gg) FINRA
Matters. All of the
information provided to the Underwriters or to counsel for the
Underwriters by the Company, its counsel, its officers and
directors and the holders of any securities (debt or equity) or
options to acquire any securities of the Company in connection with
the offering of the Securities is true, complete, correct and
compliant with FINRA’s rules, in all material respects, and
any letters, filings or other supplemental information provided to
FINRA pursuant to FINRA Rules or NASD Conduct Rules is true,
complete and correct, in all material respects.
(hh) Parties to Lock-Up
Agreements. The
Company has furnished to the Underwriters a letter agreement in the
form attached hereto as Exhibit A (the
“Lock-up
Agreement”) from each of the persons listed on
Exhibit B.
Such Exhibit B
lists under an appropriate caption the directors and executive
officers of the Company. If any
additional persons shall become directors or executive
officers of the Company prior to the
end of the Company Lock-up Period (as defined below), the Company
shall cause each such person, prior to or contemporaneously
with their appointment or election as a director or executive
officer of the Company, to execute and
deliver to Jefferies a Lock-up Agreement.
-10-
(ii) Statistical
and Market-Related Data. All statistical, demographic and
market-related data included in the Registration Statement, the
Time of Sale Prospectus or the Prospectus are based on or derived
from sources that the Company believes, after reasonable inquiry,
to be reliable and accurate or represent the Company’s good
faith estimates that are made on the basis of data derived from
such sources. To the extent required, the Company has obtained the
written consent to the use of such data from such
sources.
(jj) Sarbanes-Oxley
Act. There is, and has been, no failure on the part of the
Company or, to the Company’s knowledge, any of the
Company’s directors or officers, in their capacities as such,
to comply in all material respects with any applicable provision of
the Sarbanes-Oxley Act of 2002, as amended and the rules and
regulations promulgated in connection therewith, including Section
402 related to loans and Sections 302 and 906 related to
certifications.
(kk) No
Unlawful Contributions or Other Payments. Neither the Company nor any of its
subsidiaries nor, to the Company’s knowledge, any employee or
agent of the Company or any subsidiary, has made any contribution
or other payment to any official of, or candidate for, any federal,
state or foreign office in violation of any law or of the character
required to be disclosed in the Registration Statement, the Time of
Sale Prospectus or the Prospectus.
(ll) Anti-Corruption
and Anti-Bribery Laws. Neither the Company nor any of its
subsidiaries nor any director, officer, or employee of the Company
or any of its subsidiaries, nor to the knowledge of the Company,
any agent, affiliate or other person acting on behalf of the
Company or any of its subsidiaries has, in the course of its
actions for, or on behalf of, the Company or any of its
subsidiaries (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses
relating to political activity; (ii) made or taken any act in
furtherance of an offer, promise, or authorization of any direct or
indirect unlawful payment or benefit to any foreign or domestic
government official or employee, including of any government-owned
or controlled entity or public international organization, or any
political party, party official, or candidate for political office;
(iii) violated or is in violation of any provision of the U.S.
Foreign Corrupt Practices Act of 1977, as amended (the
“FCPA”), the UK
Bribery Act 2010, or any other applicable anti-bribery or
anti-corruption law; or (iv) made, offered, authorized,
requested, or taken an act in furtherance of any unlawful bribe,
rebate, payoff, influence payment, kickback or other unlawful
payment or benefit . The Company and its subsidiaries and, to the
knowledge of the Company, the Company’s affiliates have
conducted their respective businesses in material compliance with
the FCPA and have instituted and maintain policies and procedures
designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance therewith.
(mm) Money
Laundering Laws. The
operations of the Company and its subsidiaries are, and have been
conducted at all times, in material compliance with applicable
financial recordkeeping and reporting requirements of the Currency
and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all applicable jurisdictions, the
rules and regulations thereunder and any related or similar
applicable rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the
“Money Laundering
Laws”) and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened.
(nn) Sanctions.
Neither the Company nor any of its subsidiaries, directors,
officers, or employees, nor, to the knowledge of the Company, after
due inquiry, any agent, affiliate or other person acting on behalf
of the Company or any of its subsidiaries is currently the subject
or the target of any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury
(“OFAC”) or the
U.S. Department of State, the United Nations Security Council, the
European Union, Her Majesty’s Treasury of the United Kingdom,
or other relevant sanctions authority (collectively,
“Sanctions”);
nor is the Company or any of its subsidiaries located, organized or
resident in a country or territory that is the subject or the
target of Sanctions, including, without limitation, Crimea, Cuba,
Iran, North Korea, and Syria; and the Company will not directly or
indirectly use the proceeds of this offering, or lend, contribute
or otherwise make available such proceeds to any subsidiary, or any
joint venture partner or other person or entity, for the purpose of
financing the activities of or business with any person, or in any
country or territory, that at the time of such financing, is the
subject or the target of Sanctions or in any other manner that will
result in a violation by any person (including any person
participating in the transaction whether as underwriter, advisor,
investor or otherwise) of applicable Sanctions. For the past five
years, the Company and its subsidiaries have not knowingly engaged
in and are not now knowingly engaged in any dealings or
transactions with any person that at the time of the dealing or
transaction is or was the subject or the target of Sanctions or
with any Sanctioned Country.
-11-
(oo) Brokers.
Except pursuant to this Agreement, there is no broker, finder or
other party that is entitled to receive from the Company any
brokerage or finder’s fee or other fee or commission as a
result of any transactions contemplated by this
Agreement.
(pp) Forward-Looking
Statements. Each financial or operational projection or
other “forward-looking statement” (as defined by
Section 27A of the Securities Act or Section 21E of the Exchange
Act) contained in the Registration Statement, the Time of Sale
Prospectus or the Prospectus (i) was so included by the
Company in good faith and with reasonable basis after due
consideration by the Company of the underlying assumptions,
estimates and other applicable facts and circumstances and
(ii) is accompanied by meaningful cautionary statements
identifying those factors that could cause actual results to differ
materially from those in such forward-looking statement. No such
statement was made with the knowledge of an executive officer or
director of the Company that it was false or
misleading.
(qq) No Outstanding Loans or
Other Extensions of Credit. The Company does not have any
outstanding extension of credit, in the form of a personal loan, to
or for any director or executive officer (or equivalent thereof) of
the Company except for such extensions of credit as are expressly
permitted by Section 13(k) of the Exchange Act.
(rr) Cybersecurity.
Except as would not reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Change; (i) the Company
and its subsidiaries’ information technology assets and
equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively,
“IT Systems”)
are adequate for, and operate and perform in all material respects
as required in connection with the operation of the business of the
Company and its subsidiaries as currently conducted, and to the
Company’s knowledge, are free and clear of all material bugs,
errors, defects, Trojan horses, time bombs, malware and other
corruptants; (ii) the Company and its subsidiaries have implemented
and maintained commercially reasonable physical, technical and
administrative controls, policies, procedures, and safeguards to
maintain and protect their material confidential information and
the integrity, continuous operation, redundancy and security of all
IT Systems and data, all personal, personally identifiable,
sensitive, confidential or regulated data (“Personal Data”) used in connection
with their businesses. To the Company’s knowledge, there have
been no material breaches, violations, outages or unauthorized uses
of or accesses to same, except for those that have been remedied
without material cost or liability or the duty to notify any other
person, nor any incidents under internal review or investigations
relating to the same. The Company and its subsidiaries are
presently in compliance with all applicable laws or statutes and
all applicable judgments, orders, rules and regulations of any
court or arbitrator or governmental or regulatory authority,
internal policies and contractual obligations relating to the
privacy and security of IT Systems and Personal Data and to the
protection of such IT Systems and Personal Data from unauthorized
use, access, misappropriation or modification, except as would not
reasonably be expected, individually or in the aggregate, to result
in a Material Adverse Change.
(ss) Compliance
with Data Privacy Laws. Except
as would not reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Change, the Company and
its subsidiaries are, and for the past three (3) years have been,
in compliance with all applicable state and federal data privacy
and security laws and regulations, including, to the extent
applicable, HIPAA (collectively, the “Privacy Laws”). To ensure compliance with the Privacy
Laws, the Company and its subsidiaries have in place, comply with,
and take appropriate steps reasonably designed to ensure
compliance, in all material respects, with their policies and
procedures relating to data privacy and security and the
collection, storage, use, disclosure, handling, and analysis of
Personal Data (the “Policies”). Except as would not reasonably be
expected, individually or in the aggregate, to result in a Material
Adverse Change, the Company and its subsidiaries have at all times
made all disclosures to users or customers required by applicable
laws, Privacy Laws and regulatory rules or requirements, and none
of such disclosures made or contained in any Policy have, to the
knowledge of the Company, been inaccurate, misleading, deceptive or
in violation of any applicable laws, Privacy Laws, Policies, and
regulatory rules or requirements in any material respect. Neither
the Company nor any subsidiary: (i) has received written notice of
any actual or potential liability under or relating to, or actual
or potential violation of, any of the Privacy Laws, and has no
knowledge of any event or condition that would reasonably be
expected to result in any such notice; (ii) is currently conducting
or paying for, in whole or in part, any investigation, remediation,
or other corrective action pursuant to any Privacy Law; (iii) is a
party to any order, decree, or agreement that imposes any
obligation or liability by any governmental or regulatory authority
under any Privacy Laws.
-12-
(tt) Communications.
The Company (i) has not alone engaged in communications with
potential investors in reliance on Rule 163B under the Securities
Act other than Permitted Rule 163B Communications with the consent
of the Representatives with entities that are, or are reasonably
believed to be, QIBs or IAIs and (ii) has not authorized anyone
other than the Representatives to engage in such communications;
the Company reconfirms that the Representatives has been authorized
to act on its behalf in undertaking Marketing Materials, Rule 163B
Oral Communications and Rule 163B Written Communications; as of the
Applicable Time, each Permitted Rule 163B Communication, when
considered together with the Time of Sale Prospectus, did not, as
of the Applicable Time, include an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; and each Permitted Rule 163B
Communication, if any, does not, as of the date hereof, conflict
with the information contained in the Registration Statement, the
Preliminary Prospectus and the Prospectus.
(uu) Clinical
Data and Regulatory Compliance. The preclinical tests and
clinical trials, and other studies (collectively,
“studies”) that are described in, or the results of
which are referred to in, the Registration Statement, the Time of
Sale Prospectus or the Prospectus were and, if still pending, are
being conducted in all material respects in accordance with
applicable Health Care Laws, each description of the results of
such studies is accurate and complete in all material respects and
fairly presents the data derived from such studies, and the Company
and its subsidiaries have no knowledge of any other studies the
results of which are materially inconsistent with, or otherwise
materially call into question, the results described or referred to
in the Registration Statement, the Time of Sale Prospectuses or the
Prospectus; the Company and its subsidiaries have made all such
filings and obtained all such approvals as may be required by the
Food and Drug Administration of the U.S. Department of Health and
Human Services or any committee thereof or from any other U.S. or
foreign government or drug or medical device regulatory agency, or
health care facility Institutional Review Board (collectively, the
“Regulatory
Agencies”), except for such failure which would not,
individually or in the aggregate, reasonably be expected to result
in a Material Adverse Change; and neither the Company nor any of
its subsidiaries has received any notice of, or correspondence
from, any Regulatory Agency requiring the termination, suspension
or material adverse modification of any clinical trials that are
described or referred to in the Registration Statement, the Time of
Sale Prospectus or the Prospectus, other than any suspension that
was subsequently lifted prior to January 1, 2018.
(vv) Compliance
with Health Care Laws. The Company and its subsidiaries are,
and at all times have been, in compliance with all Health Care
Laws, except for such noncompliance which would not, individually
or in the aggregate, reasonably be expected to result in a Material
Adverse Change. For purposes of this Agreement, “Health Care
Laws” means: (i) the Federal Food, Drug, and Cosmetic Act (21
U.S.C. Section 301 et seq.), the Public Health Service Act (42
U.S.C. Section 201 et seq.), and the regulations promulgated
thereunder; (ii) all applicable federal, state, local and foreign
health care fraud and abuse laws, including, without limitation,
the Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)), the
Civil False Claims Act (31 U.S.C. Section 3729 et seq.), the
criminal false statements law (42 U.S.C. Section 1320a-7b(a)), 18
U.S.C. Sections 286 and 287, the health care fraud criminal
provisions under the U.S. Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”) (42 U.S.C. Section
1320d et seq.), the civil monetary
penalties law (42 U.S.C. Section 1320a-7a), the exclusion
law (42 U.S.C. Section 1320a-7), the Physician Payments Sunshine
Act (42 U.S.C. Section 1320-7h), and applicable laws governing
government funded or sponsored healthcare programs; (iii) HIPAA, as
amended by the Health Information Technology for Economic and
Clinical Health Act (42 U.S.C. Section 17921 et seq.); (iv) all
other local, state, federal, national, supranational and foreign
laws, relating to the regulation of the Company or its
subsidiaries, and (v) the directives and regulations promulgated
pursuant to such statutes and any state or non-U.S. counterpart
thereof. Neither the Company nor any of its subsidiaries has
received written notice of any claim, action, suit, proceeding,
hearing, enforcement, investigation, arbitration or other action
from any court or arbitrator or governmental or regulatory
authority or third party alleging that any product operation or
activity is in material violation of any Health Care Laws nor, to
the Company’s knowledge, is any such claim, action, suit,
proceeding, hearing, enforcement, investigation, arbitration or
other action threatened. The Company and its subsidiaries have
filed, maintained or submitted all material reports, documents,
forms, notices, applications, records, claims, submissions and
supplements or amendments as required by any Health Care Laws, and
all such reports, documents, forms, notices, applications, records,
claims, submissions and supplements or amendments were complete and
accurate on the date filed in all material respects (or were
corrected or supplemented by a subsequent submission), except as
would not reasonably be expected to result in a Material Adverse
Change. Neither the Company nor any of its subsidiaries is a party
to any corporate integrity agreements, monitoring agreements,
consent decrees, settlement orders, or similar agreements with or
imposed by any governmental or regulatory authority. Additionally,
neither the Company, any of its subsidiaries nor, to the knowledge
of the Company and its subsidiaries, any of their respective
employees, officers, directors, or agents has been excluded,
suspended or debarred from participation in any U.S. federal health
care program or human clinical research or, to the knowledge of the
Company, is subject to a governmental inquiry, investigation,
proceeding, or other similar action that could reasonably be
expected to result in debarment, suspension, or
exclusion.
-13-
(ww) No
Contract Terminations. Neither the Company nor any of its
subsidiaries has sent or received any communication regarding
termination of, or intent not to renew, any of the contracts or
agreements referred to or described in any preliminary prospectus,
the Prospectus or any free writing prospectus, or referred to or
described in, or filed as an exhibit to, the Registration
Statement, or any document incorporated by reference therein, and
no such termination or non-renewal has been threatened by the
Company or any of its subsidiaries or, to the Company’s
knowledge, any other party to any such contract or agreement, which
threat of termination or non-renewal has not been rescinded as of
the date hereof, in each case except as would not reasonably be
expected to result in a Material Adverse Change.
Any
certificate signed by any officer of the Company or any of its
subsidiaries and delivered to any Underwriter or to counsel for the
Underwriters in connection with the offering, or the purchase and
sale, of the Securities shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters
covered thereby.
The
Company has a reasonable basis for making each of the
representations set forth in this Section 1. The Company
acknowledges that the Underwriters and, for purposes of the
opinions to be delivered pursuant to Section 6 hereof, counsel to the
Company and counsel to the Underwriters, will rely upon the
accuracy and truthfulness of the foregoing representations and
hereby consents to such reliance.
(a) The
Securities. Upon the
terms herein set forth, the Company agrees to issue and sell to the
several Underwriters an aggregate of 63,000,000 shares of Common
Stock and 2,000,000 shares of Preferred Stock On the basis of the
representations, warranties and agreements herein contained, and
upon the terms but subject to the conditions herein set forth, the
Underwriters agree, severally and not jointly, to purchase from the
Company the respective number of Securities set forth opposite
their names on Schedule A. The purchase
price to be paid by the several Underwriters to the Company shall
be (i) $0.8648 per share of Common Stock and (ii) $19.8904 per
share of Preferred Stock.
(b) The
Closing Date.
Delivery of certificates for the Securities to be purchased by the
Underwriters and payment therefor shall be made at the offices of
Cooley LLP (or such other place as may be agreed to by the Company
and the Representatives) at 9:00 a.m. New York City time, on
December 22, 2020, or such other time and date not later than
1:30 p.m. New York City time, on January 5, 2020 as the
Representatives shall designate by notice to the Company (the time
and date of such closing are called the “Closing Date”). The Company hereby
acknowledges that circumstances under which the Representatives may
provide notice to postpone the Closing Date as originally scheduled
include, but are not limited to, any determination by the Company
or the Representatives to recirculate to the public copies of an
amended or supplemented Prospectus or a delay as contemplated by
the provisions of Section 11.
(c) Public
Offering of the Securities. The Representatives hereby advise the
Company that the Underwriters intend to offer for sale to the
public, initially on the terms set forth in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, their
respective portions of the Securities as soon after this Agreement
has been executed as the Representatives, in its sole judgment, has
determined is advisable and practicable.
(d) Payment
for the Securities.
Payment for the Securities shall be made at the Closing Date by
wire transfer of immediately available funds to the order of the
Company.
(i) It is understood
that Jefferies has been authorized, for its own account and the
accounts of the several Underwriters, to accept delivery of and
receipt for, and make payment of the purchase price for, the
Securities the Underwriters have agreed to purchase. Jefferies,
individually and not as a Representative of the Underwriters, may
(but shall not be obligated to) make payment for any Securities to
be purchased by any Underwriter whose funds shall not have been
received by Jefferies by the Closing Date, as the case may be, for
the account of such Underwriter, but any such payment shall not
relieve such Underwriter from any of its obligations under this
Agreement.
-14-
(e) Delivery
of the Securities.
The Company shall deliver, or cause to be delivered to Jefferies
for the accounts of the several Underwriters certificates for the
Securities at the Closing Date, against release of a wire transfer
of immediately available funds for the amount of the purchase price
therefor. If Jefferies so elects, delivery of the Securities may be
made by credit to the accounts designated by Jefferies through The
Depository Trust Company’s full fast transfer or DWAC
programs. If Jefferies so elects, the certificates for the
Securities shall be registered in such names and denominations as
Jefferies shall have requested at least two full business days
prior to the Closing Date and shall be made available for
inspection on the business day preceding the Closing Date at a
location in New York City as Jefferies may designate. Time shall be
of the essence, and delivery at the time and place specified in
this Agreement is a further condition to the obligations of the
Underwriters.
Section 3. Additional
Covenants.
(a) Delivery
of Registration Statement, Time of Sale Prospectus and
Prospectus.
The Company shall furnish to you in New York City, without charge,
prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period when a
prospectus relating to the Securities is required by the Securities
Act to be delivered (whether physically or through compliance with
Rule 172 under the Securities Act or any similar rule) in
connection with sales of the Securities, as many copies of the Time
of Sale Prospectus, the Prospectus and any supplements and
amendments thereto or to the Registration Statement as you may
reasonably request.
(b) Representatives’
Review of Proposed Amendments and Supplements. During the period when a
prospectus relating to the Securities is required by the Securities
Act to be delivered (whether physically or through compliance with
Rule 172 under the Securities Act or any similar rule), the Company
(i) will furnish to the Representatives for review, a reasonable
period of time prior to the proposed time of filing of any proposed
amendment or supplement to the Registration Statement, a copy of
each such amendment or supplement and (ii) will not amend or
supplement the Registration Statement (including any amendment or
supplement through incorporation of any report filed under the
Exchange Act) without the Representatives’ prior written
consent, which shall not unreasonably be withheld. Prior to
amending or supplementing any preliminary prospectus, the Time of
Sale Prospectus or the Prospectus (including any amendment or
supplement through incorporation of any report filed under the
Exchange Act), the Company shall furnish to the Representatives for
review, a reasonable amount of time prior to the time of filing or
use of the proposed amendment or supplement, a copy of each such
proposed amendment or supplement. The Company shall not file or use
any such proposed amendment or supplement without the
Representatives’ prior written consent, which shall not
unreasonably be withheld. The Company shall file with the
Commission within the applicable period specified in Rule 424(b)
under the Securities Act any prospectus required to be filed
pursuant to such Rule.
(c) Free
Writing Prospectuses. The Company shall furnish to the
Representatives for review, a reasonable amount of time prior to
the proposed time of filing or use thereof, a copy of each proposed
free writing prospectus or any amendment or supplement thereto
prepared by or on behalf of, used by, or referred to by the
Company, and the Company shall not file, use or refer to any
proposed free writing prospectus or any amendment or supplement
thereto without the Representatives’ prior written consent,
which shall not unreasonably be withheld. The Company shall furnish
to each Underwriter, without charge, as many copies of any free
writing prospectus prepared by or on behalf of, used by or referred
to by the Company as such Underwriter may reasonably request. If at
any time when a prospectus is required by the Securities Act to be
delivered (whether physically or through compliance with Rule 172
under the Securities Act or any similar rule) in connection with
sales of the Securities (but in any event if at any time through
and including the Closing Date) there occurred or occurs an event
or development as a result of which any free writing prospectus
prepared by or on behalf of, used by, or referred to by the Company
conflicted or would conflict with the information contained in the
Registration Statement or included or would include an untrue
statement of a material fact or omitted or would omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances prevailing at such time, not
misleading, the Company shall promptly amend or supplement such
free writing prospectus to eliminate or correct such conflict so
that the statements in such free writing prospectus as so amended
or supplemented will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
prevailing at such time, not misleading, as the case may be;
provided, however, that
prior to amending or supplementing any such free writing
prospectus, the Company shall furnish to the Representatives for
review, a reasonable amount of time prior to the proposed time of
filing or use thereof, a copy of such proposed amended or
supplemented free writing prospectus, and the Company shall not
file, use or refer to any such amended or supplemented free writing
prospectus without the Representatives’ prior written
consent, which shall not unreasonably be withheld.
-15-
(d) Filing
of Underwriter Free Writing Prospectuses. The Company shall not take any
action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under
the Securities Act a free writing prospectus prepared by or on
behalf of such Underwriter that such Underwriter otherwise would
not have been required to file thereunder.
(e) Amendments
and Supplements to Time of Sale Prospectus. If the Time of Sale Prospectus
is being used to solicit offers to buy the Securities at a time
when the Prospectus is not yet available to prospective purchasers,
and any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Time of Sale Prospectus
so that the Time of Sale Prospectus does not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances when delivered to a prospective purchaser, not
misleading, or if any event shall occur or condition exist as a
result of which the Time of Sale Prospectus conflicts with the
information contained in the Registration Statement, or if, in the
opinion of counsel for the Underwriters, it is necessary to amend
or supplement the Time of Sale Prospectus to comply with applicable
law, the Company shall (subject to Section 3(b) and Section 3(c)
hereof) promptly prepare, file with the Commission and furnish, at
its own expense, to the Underwriters and to any dealer upon
request, either amendments or supplements to the Time of Sale
Prospectus so that the statements in the Time of Sale Prospectus as
so amended or supplemented will not include an untrue statement of
a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
when delivered to a prospective purchaser, not misleading or so
that the Time of Sale Prospectus, as amended or supplemented, will
no longer conflict with the information contained in the
Registration Statement, or so that the Time of Sale Prospectus, as
amended or supplemented, will comply with applicable
law.
(f) Certain
Notifications and Required Actions. After the date of this Agreement and
until such time as the Underwriters are no longer required to
deliver a Prospectus in order to confirm sales of the Securities,
the Company shall promptly advise the Representatives in writing
of: (i) the receipt of any comments of, or requests for additional
or supplemental information from, the Commission; (ii) the
time and date of any filing of any post-effective amendment to the
Registration Statement or any amendment or supplement to any
preliminary prospectus, the Time of Sale Prospectus, any free
writing prospectus or the Prospectus; (iii) the time and date that
any post-effective amendment to the Registration Statement becomes
effective; and (iv) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
any post-effective amendment thereto or any amendment or supplement
to any preliminary prospectus, the Time of Sale Prospectus or the
Prospectus or of any order preventing or suspending the use of any
preliminary prospectus, the Time of Sale Prospectus, any free
writing prospectus or the Prospectus, or of any proceedings to
remove, suspend or terminate from listing or quotation the Common
Stock from any securities exchange upon which they are listed for
trading or included or designated for quotation, or of the
threatening or initiation of any proceedings for any of such
purposes. If the Commission shall enter any such stop order at any
time, the Company will use its best efforts to obtain the lifting
of such order at the earliest possible moment. Additionally, the
Company agrees that it shall comply with all applicable provisions
of Rule 424(b), Rule 433 and Rule 430B under the Securities
Act and will use its reasonable efforts to confirm that any filings
made by the Company under Rule 424(b) or Rule 433 were received in
a timely manner by the Commission.
(g) Amendments
and Supplements to the Prospectus and Other Securities Act
Matters. If any event shall
occur or condition exist as a result of which it is necessary to
amend or supplement the Prospectus so that the Prospectus does not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered
(whether physically or through compliance with Rule 172 under the
Securities Act or any similar rule) to a purchaser, not misleading,
or if in the opinion of the Representatives or counsel for the
Underwriters it is otherwise necessary to amend or supplement the
Prospectus to comply with applicable law, the Company agrees
(subject to Section 3(b) and Section 3(c)) hereof to promptly
prepare, file with the Commission and furnish, at its own expense,
to the Underwriters and to any dealer upon request, amendments or
supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances when the Prospectus is delivered (whether
physically or through compliance with Rule 172 under the Securities
Act or any similar rule) to a purchaser, not misleading or so that
the Prospectus, as amended or supplemented, will comply with
applicable law. Neither the Representatives’ consent to, nor
delivery of, any such amendment or supplement shall constitute a
waiver of any of the Company’s obligations under Section 3(b)
or Section 3(c).
-16-
(h) Blue
Sky Compliance. The
Company shall cooperate with the Representatives and counsel for
the Underwriters to qualify or register the Securities for sale
under (or obtain exemptions from the application of) the state
securities or blue sky laws (or other foreign laws) of those
jurisdictions designated by the Representatives, shall comply with
such laws and shall continue such qualifications, registrations and
exemptions in effect so long as required for the distribution of
the Securities. The Company shall not be required to qualify as a
foreign corporation or to take any action that would subject it to
general service of process in any such jurisdiction where it is not
presently qualified or where it would be subject to taxation as a
foreign corporation. The Company will advise the Representatives
promptly of the suspension of the qualification or registration of
(or any such exemption relating to) the Securities for offering,
sale or trading in any jurisdiction or any initiation or threat of
any proceeding for any such purpose, and in the event of the
issuance of any order suspending such qualification, registration
or exemption, the Company shall use its best efforts to obtain the
withdrawal thereof at the earliest possible moment.
(i) Use
of Proceeds. The
Company shall apply the net proceeds from the sale of the
Securities sold by it in the manner described under the caption
“Use of Proceeds” in the Registration Statement, the
Time of Sale Prospectus and the Prospectus.
(j) Transfer
Agent. The Company
shall maintain, at its expense, a registrar and transfer agent for
the Securities.
(k) Earnings
Statement. The
Company will make generally available to its security holders and
to the Representatives as soon as reasonably practicable an
earnings statement (which need not be audited) covering a period of
at least twelve months beginning with the first fiscal quarter of
the Company commencing after the date of this Agreement that will
satisfy the provisions of Section 11(a) of the Securities Act and
the rules and regulations of the Commission thereunder;
provided, however, that the
requirements of this Section 3(k) shall be satisfied to the extent
that such information is available on EDGAR .
(l) Continued
Compliance with Securities Laws. The Company will comply with the
Securities Act and the Exchange Act so as to permit the completion
of the distribution of the Securities as contemplated by this
Agreement, the Registration
Statement, the Time of Sale Prospectus and the Prospectus. Without
limiting the generality of the foregoing, the Company will, during
the period when a prospectus relating to the Securities is required
by the Securities Act to be delivered (whether physically or
through compliance with Rule 172 under the Securities Act or any
similar rule), file on a timely basis with the Commission and the
Nasdaq all reports and documents required to be filed under the
Exchange Act.
(m) Listing.
The Company will use its best efforts to list, subject to notice of
issuance, the shares of Common Stock, and, subject to receipt of
the Required Stockholder Approval, the shares of Common Stock
issuable upon conversion of the Preferred Stock on the
Nasdaq.
(n) Company
to Provide Copy of the Prospectus in Form That May be Downloaded
from the Internet. If
requested by the Representatives, the Company shall cause to be
prepared and delivered, at its expense, within one business day
from the effective date of this Agreement, to the Representatives
an “electronic
Prospectus” to be used by the Underwriters in
connection with the offering and sale of the Securities. As used
herein, the term “electronic
Prospectus” means a form of Prospectus, and any
amendment or supplement thereto, that meets each of the following
conditions: (i) it shall be encoded in an electronic format,
satisfactory to the Representatives, that may be transmitted
electronically by the Representatives and the other Underwriters to
offerees and purchasers of the Securities; (ii) it shall
disclose the same information as the paper Prospectus, except to
the extent that graphic and image material cannot be disseminated
electronically, in which case such graphic and image material shall
be replaced in the electronic Prospectus with a fair and accurate
narrative description or tabular representation of such material,
as appropriate; and (iii) it shall be in or convertible into a
paper format or an electronic format, satisfactory to Jefferies,
that will allow investors to store and have continuously ready
access to the Prospectus at any future time, without charge to
investors (other than any fee charged for subscription to the
Internet as a whole and for on-line time). The Company hereby
confirms that it has included or will include in the Prospectus
filed pursuant to EDGAR or otherwise with the Commission and in the
Registration Statement at the time it was declared effective an
undertaking that, upon receipt of a request by an investor or his
or her representative, the Company shall transmit or cause to be
transmitted promptly, without charge, a paper copy of the
Prospectus.
-17-
(o) Agreement
Not to Offer or Sell Additional Securities of the
Company. During the
period commencing on and including the date hereof and continuing
through and including the 90th calendar day following the date of
the Prospectus (such period, as extended as described below, being
referred to herein as the “Lock-up Period”), the Company will
not, without the prior written consent of the Representatives
(which consent may be withheld in the Representatives’ sole
discretion), directly or indirectly: (i) sell, offer to sell,
contract to sell or lend any shares of Common Stock or any Related
Securities (as defined below); (ii) effect any short sale, or
establish or increase any “put equivalent position” (as
defined in Rule 16a-1(h) under the Exchange Act) or liquidate or
decrease any “call equivalent position” (as defined in
Rule 16a-1(b) under the Exchange Act) of any shares of Common
Stock or any Related Securities; (iii) pledge, hypothecate or grant
any security interest in any shares of Common Stock or any Related
Securities; (iv) in any other way transfer or dispose of any
shares of Common Stock or any Related Securities; (v) enter
into any swap, hedge or similar arrangement or agreement that
transfers, in whole or in part, the economic risk of ownership of
any shares of Common Stock or any Related Securities, regardless of
whether any such transaction is to be settled in securities, in
cash or otherwise; (vi) announce the offering of any shares of
Common Stock or any Related Securities; (vii) submit or file any
registration statement under the Securities Act in respect of any
shares of Common Stock or Related Securities (other than as
contemplated by this Agreement with respect to the Securities or
except for registration statements on Form S-8 with respect to any
and all shares of Common Stock or Related Securities to be issued
pursuant to any employee benefit plans); (viii) effect a reverse stock split,
recapitalization, share consolidation, reclassification or similar
transaction affecting the outstanding shares of Common
Stock; or (ix)
publicly announce the intention to do any of the foregoing;
provided, however, that the
Company may (A) effect the transactions contemplated hereby; (B)
issue shares of Common Stock, options or warrants or other equity
awards to acquire shares of Common Stock, pursuant to any stock
option, stock bonus or other stock plan or arrangement described in
the Registration Statement, the Time of Sale Prospectus and the
Prospectus as such plans may be amended; (C) issue shares of Common
Stock upon exercise of any such options, warrants or other equity
awards to acquire shares of Common Stock; (D) issue shares of
Common Stock upon exercise of options, warrants or other equity
awards to acquire shares of Common Stock described as outstanding
in the Registration Statement, the Time of Sale Prospectus and
Prospectus; (E) issue shares of Common Stock upon conversion of
shares of the Company’s Series A Convertible Preferred Stock
described as outstanding in the Registration Statement, the Time of
Sale Prospectus and Prospectus; (F) issue shares of Common Stock
upon conversion of shares of the Company’s Series B 10%
Convertible Preferred Stock described as outstanding in the
Registration Statement, the Time of Sale Prospectus and Prospectus
(the “Series B
Preferred”); (G) in connection with any conversion of
shares of the Series B Preferred, issue shares of Common Stock
issuable as payment of any accrued, but unpaid dividends on the
shares of Series B Preferred to be converted; and (H) issue shares
of Common Stock upon conversion of shares of the Company’s
Series C Convertible Preferred Stock described as outstanding in
the Registration Statement, the Time of Sale Prospectus and
Prospectus. For purposes of the foregoing, “Related Securities” shall mean any
options or warrants or other rights to acquire shares of Common
Stock or any securities exchangeable or exercisable for or
convertible into shares of Common Stock, or to acquire other
securities or rights ultimately exchangeable or exercisable for, or
convertible into, shares of Common Stock.
(p) Future Reports to the
Representatives. During the period of three years
hereafter, the Company will furnish to the Representative, c/o
Jefferies, at 520 Madison Avenue, New York, New York 10022,
Attention: Global Head of Syndicate: (i) as soon as practicable
after the end of each fiscal year, copies of the Annual Report of
the Company containing the balance sheet of the Company as of the
close of such fiscal year and statements of income,
stockholders’ equity and cash flows for the
year then ended and the opinion thereon of the Company’s
independent public or certified public accountants; (ii) as soon as
practicable after the filing thereof, copies of each proxy
statement, Annual Report on Form 10-K, Quarterly Report on Form
10-Q, Current Report on Form 8-K or other report filed by the
Company with the Commission or any securities exchange; and (iii)
as soon as available, copies of any report or communication of the
Company furnished or made available generally to holders of its
capital stock; provided,
however, that the requirements of this Section 3(p) shall be
satisfied to the extent that such reports, statement,
communications, financial statements or other documents are
available on EDGAR.
(q) Investment
Limitation. The
Company shall not invest or otherwise use the proceeds received by
the Company from its sale of the Securities in such a manner as
would require the Company or any of its subsidiaries to register as
an investment company under the Investment Company
Act.
-18-
(r) No
Stabilization or Manipulation; Compliance with Regulation
M. The Company will
not take, and will ensure that no affiliate of the Company will
take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Stock or any reference
security with respect to the Common Stock, whether to facilitate
the sale or resale of the Securities or otherwise, and the Company
will, and shall cause each of its affiliates to, comply with all
applicable provisions of Regulation M.
(s) Enforce
Lock-Up Agreements.
During the Lock-up Period, the Company will enforce all agreements
between the Company and any of its securityholders that restrict or
prohibit, expressly or in operation, the offer, sale or transfer of
Securities or Related Securities or any of the other actions
restricted or prohibited under the terms of the form of Lock-up
Agreement. In addition, the Company will direct the transfer agent
to place stop transfer restrictions upon any such securities of the
Company that are bound by such “lock-up” agreements for
the duration of the periods contemplated in such agreements,
including, without limitation, “lock-up” agreements
entered into by the Company’s officers and directors pursuant
to Section 6(k)
hereof.
(t) Company
to Provide Interim Financial Statements. Prior to the Closing Date, the Company
will furnish the Underwriters, as soon as they have been prepared
by or are available to the Company, a copy of any unaudited interim
financial statements of the Company for any period subsequent to
the period covered by the most recent financial statements
appearing in the Registration Statement and the
Prospectus.
(u) Amendments
and Supplements to Permitted Rule 163B
Communications. If at any time following the
distribution of any Permitted Rule 163B Communication, there
occurred or occurs an event or development as a result of which
such Permitted Rule 163B Communication included or would include an
untrue statement of a material fact or omitted or would omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at that
subsequent time, not misleading, the Company will promptly notify
the Representatives and will promptly amend or supplement, at its
own expense, such Permitted Rule 163B Communication to eliminate or
correct such untrue statement or omission.
(v) Announcement
Regarding Lock-ups.
The Company agrees to announce the Underwriters’ intention to
release any director or “officer” (within the meaning
of Rule 16a-1(f) under the Exchange Act) of the Company from any of
the restrictions imposed by any Lock-Up Agreement, by issuing,
through a major news service, a press release in form and substance
satisfactory to Jefferies or, if consented to by Jefferies, in a
registration statement that is publicly filed in connection with a
secondary offering of the Company’s shares promptly following
the Company’s receipt of any notification from the
Representatives in which such intention is indicated, but in any
case not later than the close of the third business day prior to
the date on which such release or waiver is to become effective;
provided, however, that nothing shall prevent Jefferies, on behalf
of the Underwriters, from announcing the same through a major news
service, irrespective of whether the Company has made the required
announcement; and provided,
further, that no such
announcement shall be made of any release or waiver granted solely
to permit a transfer of securities that is not for consideration
and where the transferee has agreed in writing to be bound by the
terms of a Lock-Up Agreement in the form set forth as Exhibit A hereto.
-19-
Section
4. Payment of Expenses. The Company agrees to pay all costs,
fees and expenses incurred in connection with the performance of
its obligations hereunder and in connection with the transactions
contemplated hereby, including without limitation (i) all
expenses incident to the issuance and delivery of the Securities
(including all printing and engraving costs), (ii) all fees
and expenses of the registrar and transfer agent of the Securities,
(iii) all necessary issue, transfer and other stamp taxes in
connection with the issuance and sale of the Securities to the
Underwriters, (iv) all fees and expenses of the
Company’s counsel, independent public or certified public
accountants and other advisors, (v) all costs and expenses
incurred in connection with the preparation, printing, filing,
shipping and distribution of the Registration Statement (including
financial statements, exhibits, schedules, consents and
certificates of experts), the Time of Sale Prospectus, the
Prospectus, each free writing prospectus prepared by or on behalf
of, used by, or referred to by the Company, and each preliminary
prospectus, each Permitted Rule 163B Communication, and all
amendments and supplements thereto, and this Agreement,
(vi) all filing fees, attorneys’ fees and expenses
incurred by the Company or the Underwriters in connection with
qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Securities
for offer and sale under the state securities or blue sky laws,
and, if requested by the Representatives, preparing and printing a
“Blue Sky Survey” or memorandum and a “Canadian
wrapper”, and any supplements thereto, advising the
Underwriters of such qualifications, registrations and exemptions,
(vii) the costs, fees and expenses incurred by the
Underwriters in connection with determining their compliance with
the rules and regulations of FINRA related to the
Underwriters’ participation in the offering and distribution
of the Securities, including any related filing fees and the legal
fees of, and disbursements by, counsel to the Underwriters (such
fees of and disbursements by counsel to the Underwriters pursuant
to clauses (vi) and (vii) not to exceed $15,000 in the
aggregate), (viii) the
costs and expenses of the Company relating to investor
presentations on any “road show”, any Permitted Rule
163B Communication or any Rule 163B Oral Communication undertaken
in connection with the offering of the Securities, including,
without limitation, expenses associated with the preparation or
dissemination of any electronic road show, expenses associated with
the production of road show slides and graphics, fees and expenses
of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and
lodging expenses of the representatives, employees and officers of
the Company and any such consultants, and one-half the cost of any
aircraft chartered in connection with the road show, (ix) the
fees and expenses associated with listing the shares of Common
Stock on the Nasdaq, and (x) all other fees, costs and
expenses of the nature referred to in Item 14 of Part II of
the Registration Statement. Except as provided in this Section 4 or in Section 7, Section 9 or Section 10 hereof, the Underwriters
shall pay their own expenses, including the fees and disbursements
of their counsel.
Section
5. Covenant of the Underwriters. Each
Underwriter severally and not jointly covenants with the Company
not to take any action that would result in the Company being
required to file with the Commission pursuant to Rule 433(d) under
the Securities Act a free writing prospectus prepared by or on
behalf of such Underwriter that otherwise would not, but for such
actions, be required to be filed by the Company under Rule
433(d).
Section
6. Conditions of the Obligations of the
Underwriters. The
respective obligations of the several Underwriters hereunder to
purchase and pay for the Securities as provided herein on the
Closing Date shall be subject to (x) the accuracy of the
representations and warranties on the part of the Company set forth
in Section 1 hereof as of the
date hereof and as of the Closing Date as though then made (except
in each case for representations and warranties made as of a
specified date, which shall be accurate (in all material respects
or in all respects, as applicable) only as of the specified date),
and (y) to the timely performance, in all material respects, by the
Company of its covenants and other obligations hereunder, and to
each of the following additional conditions:
(a) Comfort
Letter. On the date
hereof, the Representatives shall have received from OUM & Co.
LLP, independent registered public accountants for the Company, a
letter dated the date hereof, addressed to the Underwriters, in
form and substance satisfactory to the Representatives, containing
statements and information of the type ordinarily included in
accountant’s “comfort letters” to underwriters,
delivered according to Statement of Auditing Standards No. 72 (or
any successor bulletin), with respect to the audited and unaudited
financial statements and certain financial information contained in
the Registration Statement, the Time of Sale Prospectus, and each
free writing prospectus, if any.
-20-
(b) Compliance
with Registration Requirements; No Stop Order; No Objection
from FINRA. For the
period from and after the date of this Agreement and through and
including the Closing Date and:
(i) The Company shall
have filed the Prospectus with the Commission (including the
information previously omitted from the Registration Statement
pursuant to Rule 430B under the Securities Act) in the manner and
within the time period required by Rule 424(b) under the Securities
Act.
(ii) No stop order suspending the
effectiveness of the Registration Statement or any post-effective
amendment to the Registration Statement shall be in effect, and no
proceedings for such purpose shall have been instituted or, to the
Company’s knowledge, threatened by the
Commission.
(iii) If
a filing has been made with FINRA, FINRA shall have raised no
objection to the fairness and reasonableness of the underwriting
terms and arrangements.
(c) No
Material Adverse Change or Ratings Agency Change. For the period from and after the date
of this Agreement and through and including the Closing
Date:
(i) in the judgment of
the Representatives there shall not have occurred any Material
Adverse Change; and
(ii) there
shall not have occurred any downgrading, nor shall any notice have
been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any securities of
the Company or any of its subsidiaries by any “nationally
recognized statistical rating organization” as that term is
used in Rule 15c3-1(c)(2)(vi)(F) under the Exchange
Act.
(d) Opinion
of Latham &
Watkins. On the
Closing Date, the Representatives shall have received the (i)
opinion and negative assurance letter of Latham & Watkins LLP,
counsel for the Company and (ii) tax opinion of Latham &
Watkins, LLP, counsel for the Company, each dated as of such date,
in form and substance reasonably satisfactory to the
Representative.
(e) Opinion
of Capital Technology Law Group. On the Closing Date, the
Representatives shall have received the opinion of Capital
Technology Law Group, counsel for the Company with respect to
intellectual property matters, dated as of such date, in form and
substance reasonably satisfactory to the
Representatives.
(f) Opinion
of Hyman, Phelps & McNamara. On the Closing Date, the
Representatives shall have received an opinion of Hyman, Phelps
& McNamara, P.C., counsel for the Company with respect to
regulatory matters, dated as of such date, in form and substance
reasonably satisfactory to the Representatives.
(g) Opinion
of Woodburn and Wedge. On the Closing Date, the
Representatives shall have received an opinion of Woodburn and
Wedge, counsel for the Company with respect to the due
authorization and valid issuance of the Securities, dated as of
such date, in form and substance reasonably satisfactory to the
Representatives.
(h) Opinion
of Counsel for the Underwriters. On the Closing Date, the
Representatives shall have received the opinion and negative
assurance letter of Cooley LLP, counsel for the Underwriters in
connection with the offer and sale of the Securities, dated as of
such date, in form and substance satisfactory to the
Underwriters.
-21-
(i) Officers’
Certificate. On the
Closing Date, the Representatives shall have received a certificate
executed by the Chief Executive Officer of the Company and the
Chief Financial Officer of the Company, dated as of such date, to
the effect set forth in Section
6(b)(ii) and further to the effect that:
(i) for the period from
and including the date of this Agreement through and including such
date, there has not occurred any Material Adverse
Change;
(ii) the
representations, warranties and covenants of the Company set forth
in Section 1 of this Agreement are true and correct with the same
force and effect as though expressly made on and as of such date;
and
(iii) the
Company has complied with all the agreements hereunder and
satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to such date.
(j) Bring-down
Comfort Letter. On
the Closing Date, the Representatives shall have received from OUM
& Co. LLP, independent registered public accountants for the
Company, a letter dated such date, in form and substance
satisfactory to the Representatives, which letter shall: (i)
reaffirm the statements made in the letter furnished by them
pursuant to Section 6(a),
except that the specified date referred to therein for the carrying
out of procedures shall be no more than three business days prior
to the Closing Date, as the case may be; and (ii) cover certain
financial information contained in the Prospectus.
(k) Lock-Up
Agreements. On or prior to the
date hereof, the Company shall have furnished to the
Representatives an agreement in the form of Exhibit
A hereto from each
of the persons listed on Exhibit B hereto, and each such
agreement shall be in full force and effect on the
Closing.
(l) Rule 462(b)
Registration Statement. In the event that a Rule 462(b)
Registration Statement is filed in connection with the offering
contemplated by this Agreement, such Rule 462(b) Registration
Statement shall have been filed with the Commission on the date of
this Agreement and shall have become effective automatically upon
such filing.
(m) Additional
Documents. On or before the Closing Date, the
Representatives and counsel for the Underwriters shall have
received such information, documents and opinions as they may
reasonably request for the purposes of enabling them to pass upon
the issuance and sale of the Securities as contemplated herein, or
in order to evidence the accuracy of any of the representations and
warranties, or the satisfaction of any of the conditions or
agreements, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the Securities
as contemplated herein and in connection with the other
transactions contemplated by this Agreement shall be satisfactory
in form and substance to the Representatives and counsel for the
Underwriters.
If any
condition specified in this Section
6 is not satisfied when and as required to be satisfied, this
Agreement may be terminated by the Representatives by notice from
Jefferies to the Company at any time on or prior to the Closing
Date, which termination shall be without liability on the part of
any party to any other party, except that Section 4, Section 7, Section 9 and Section 10 shall at all times be
effective and shall survive such termination.
Section
7. Reimbursement of Underwriters’
Expenses. If this Agreement is terminated by the
Representatives pursuant to Section
6, Section 11 or Section 12, or if the sale to the
Underwriters of the Securities on the Closing Date is not
consummated because of any refusal, inability or failure on the
part of the Company to perform any agreement herein or to comply
with any provision hereof, the Company agrees to reimburse the
Representatives and the other Underwriters (or such Underwriters as
have terminated this Agreement with respect to themselves),
severally, upon demand for all out-of-pocket expenses that shall
have been reasonably incurred and documented by the Representatives
and the Underwriters in connection with the proposed purchase and
the offering and sale of the Securities, including, but not limited
to, reasonable and documented fees and disbursements of counsel,
printing expenses, travel expenses, postage, facsimile and
telephone charges.
Section
8. Effectiveness of this Agreement. This
Agreement shall become effective upon the execution and
delivery hereof by the parties hereto.
-22-
(a) Indemnification of the
Underwriters. The
Company agrees to indemnify and hold harmless each Underwriter, its
affiliates, directors, officers, employees and agents, and each
person, if any, who controls any Underwriter within the meaning of
the Securities Act or the Exchange Act against any loss, claim,
damage, liability or expense, as incurred, to which such
Underwriter or such affiliate, director, officer, employee, agent
or controlling person may become subject, under the Securities Act,
the Exchange Act, other federal or state statutory law or
regulation, or the laws or regulations of foreign jurisdictions
where Securities have been offered or sold or at common law or
otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of the Company),
insofar as such loss, claim, damage, liability or expense (or
actions in respect thereof as contemplated below) arises out of or
is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement, or any amendment thereto, or the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading;
or (ii) any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus, the Time of
Sale Prospectus, any free writing prospectus that the Company has
used, referred to or filed, or is required to file, pursuant to
Rule 433(d) of the Securities Act, any Marketing Material, any Rule
163B Written Communication or the Prospectus (or any amendment or
supplement to the foregoing), or the omission or alleged omission
to state therein a material fact necessary in order to make the
statements, in the light of the circumstances under which they were
made, not misleading; and to reimburse each Underwriter and each
such affiliate, director, officer, employee, agent and controlling
person for any and all reasonable and documented expenses
(including the reasonable and documented fees and disbursements of
counsel) as such expenses are incurred by such Underwriter or such
affiliate, director, officer, employee, agent or controlling person
in connection with investigating, defending, settling, compromising
or paying any such loss, claim, damage, liability, expense or
action; provided, however,
that the foregoing indemnity agreement shall not apply to any loss,
claim, damage, liability or expense to the extent, but only to the
extent, arising out of or based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company by the Representatives in
writing expressly for use in the Registration Statement, any
preliminary prospectus, the Time of Sale Prospectus, any such free
writing prospectus, any Marketing Material, any Rule 163B Written
Communication or the Prospectus (or any amendment or supplement
thereto), it being understood and agreed that the only such
information consists of the information described in Section 9(b) below. The indemnity
agreement set forth in this Section
9(a) shall be in addition to any liabilities that the Company
may otherwise have.
(b) Indemnification of the
Company, its Directors and Officers. Each Underwriter
agrees, severally and not jointly, to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed
the Registration Statement and each person, if any, who controls
the Company within the meaning of the Securities Act or the
Exchange Act, against any loss, claim, damage, liability or
expense, as incurred, to which the Company, or any such director,
officer or controlling person may become subject, under the
Securities Act, the Exchange Act, or other federal or state
statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is
effected with the written consent of such Underwriter), insofar as
such loss, claim, damage, liability or expense (or actions in
respect thereof as contemplated below) arises out of or is based
upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, or any
amendment thereto, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading or (ii) any untrue
statement or alleged untrue statement of a material fact included
in any preliminary prospectus, the Time of Sale Prospectus, any
free writing prospectus that the Company has used, referred to or
filed, or is required to file, pursuant to Rule 433 of the
Securities Act, any Rule 163B Written Communication or the
Prospectus (or any such amendment or supplement) or the omission or
alleged omission to state therein a material fact necessary in
order to make the statements, in the light of the circumstances
under which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made
in the Registration Statement, such preliminary prospectus, the
Time of Sale Prospectus, such free writing prospectus, such Rule
163B Communication or the Prospectus (or any such amendment or
supplement), in reliance upon and in conformity with information
relating to such Underwriter furnished to the Company by the
Representatives in writing expressly for use therein; and to
reimburse the Company, or any such director, officer or controlling
person for any and all expenses (including the reasonable and
documented fees and disbursements of counsel) as such expenses are
incurred by the Company, or any such director, officer, employee or
controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage,
liability, expense or action. The Company hereby acknowledges that
the only information that the Representatives has furnished to the
Company expressly for use in the Registration Statement, any
preliminary prospectus, the Time of Sale Prospectus, any free
writing prospectus that the Company has filed, or is required to
file, pursuant to Rule 433(d) of the Securities Act, any Rule 163B
Written Communication or the Prospectus (or any amendment or
supplement to the foregoing) are the statements set forth in the
first sentence of the third and fourth paragraphs under the caption
“Underwriting,” the first three sentences of the first
paragraph under the section entitled “Commission and
Expenses,” and the first sentence of the first paragraph
under the section entitled “Stabilization,” each under
the caption “Underwriting” in the Preliminary
Prospectus Supplement and the Final Prospectus Supplement. The
indemnity agreement set forth in this Section 9(b) shall be in addition to
any liabilities that each Underwriter may otherwise
have.
-23-
(c) Notifications and Other
Indemnification Procedures. Promptly after receipt by an
indemnified party under this Section 9 of notice of the commencement
of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this
Section 9, notify the
indemnifying party in writing of the commencement thereof, but the
omission to so notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any
indemnified party to the extent the indemnifying party is not
materially prejudiced as a proximate result of such failure and
shall not in any event relieve the indemnifying party from any
liability that it may have otherwise than on account of this
indemnity agreement. In case any such action is brought against any
indemnified party and such indemnified party seeks or intends to
seek indemnity from an indemnifying party, the indemnifying party
will be entitled to participate in, and, to the extent that it
shall elect, jointly with all other indemnifying parties similarly
notified, by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have
reasonably concluded that a conflict may arise between the
positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be
legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the
right to select separate counsel to assume such legal defenses and
to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of such indemnifying
party’s election to so assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this
Section 9 for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified
party shall have employed separate counsel in accordance with the
proviso to the preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the fees and
expenses of more than one separate counsel (together with local
counsel), representing the indemnified parties who are parties to
such action), which counsel (together with any local counsel) for
the indemnified parties shall be selected by Jefferies (in the case
of counsel for the indemnified parties referred to in Section 9(a) above) or by the Company (in the
case of counsel for the indemnified parties referred to in Section 9(b) above)) or (ii) the
indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized in writing the
employment of counsel for the indemnified party at the expense of
the indemnifying party, in each of which cases the fees and
expenses of counsel shall be at the expense of the indemnifying
party and shall be paid as they are incurred.
(d) Settlements.
The indemnifying party under this Section 9 shall not be liable for any
settlement of any proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party against any loss, claim, damage, liability or
expense by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by Section
9(c) hereof, the indemnifying party shall be liable for any
settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request and
(ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date
of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement,
compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity was
or could have been sought hereunder by such indemnified party,
unless such settlement, compromise or consent includes an
unconditional release of such indemnified party from all liability
on claims that are the subject matter of such action, suit or
proceeding and does not include an admission of fault or
culpability or a failure to act by or on behalf of such indemnified
party.
-24-
Section
10. Contribution. If the indemnification
provided for in Section 9 is
for any reason held to be unavailable to or otherwise insufficient
to hold harmless an indemnified party in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount
paid or payable by such indemnified party, as incurred, as a result
of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company, on the one hand, and
the Underwriters, on the other hand, from the offering of the
Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but
also the relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the statements
or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on
the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions
as the total proceeds from the offering of the Securities pursuant
to this Agreement (before deducting expenses) received by the
Company, and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth on the
front cover page of the Prospectus, bear to the aggregate initial
public offering price of the Securities as set forth on such cover.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference
to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the
Company, on the one hand, or the Underwriters, on the other hand,
and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The
amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall
be deemed to include, subject to the limitations set forth in
Section 9(c), any legal or
other reasonable and documented fees or expenses incurred by such
party in connection with investigating or defending any action or
claim. The provisions set forth in Section 9(c) with respect to notice of
commencement of any action shall apply if a claim for contribution
is to be made under this Section
10; provided, however,
that no additional notice shall be required with respect to any
action for which notice has been given under Section 9(c) for purposes of
indemnification.
The
Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 10 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this
Section 10.
Notwithstanding the
provisions of this Section 10,
no Underwriter shall be required to contribute any amount in excess
of the underwriting discounts and commissions received by such
Underwriter in connection with the Securities underwritten by it
and distributed to the public. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute pursuant to this
Section 10 are several, and not
joint, in proportion to their respective underwriting commitments
as set forth opposite their respective names on Schedule
A. For purposes of this Section 10, each affiliate, director,
officer, employee and agent of an Underwriter and each person, if
any, who controls an Underwriter within the meaning of the
Securities Act or the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director, officer or
employee of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the
Company within the meaning of the Securities Act and the Exchange
Act shall have the same rights to contribution as the
Company.
-25-
Section
11. Default of One or More of the Several
Underwriters. If, on
the Closing Date any one or more of the several Underwriters shall
fail or refuse to purchase Securities that it or they have agreed
to purchase hereunder on such date, and the aggregate number of
Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase does not exceed 10% of the
aggregate number of the Securities to be purchased on such date,
the Representatives may make arrangements satisfactory to the
Company for the purchase of such Securities by other persons,
including any of the Underwriters, but if no such arrangements are
made by such date, the other Underwriters shall be obligated,
severally and not jointly, in the proportions that the number of
Securities set forth opposite their respective names on Schedule A
bears to the aggregate number of Securities set forth opposite the
names of all such non-defaulting Underwriters, or in such other
proportions as may be specified by the Representatives with the
consent of the non-defaulting Underwriters, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase on such date. If, on the Closing
Date any one or more of the Underwriters shall fail or refuse to
purchase Securities and the aggregate number of Securities with
respect to which such default occurs exceeds 10% of the aggregate
number of Securities to be purchased on such date, and arrangements
satisfactory to the Representatives and the Company for the
purchase of such Securities are not made within 48 hours after such
default, this Agreement shall terminate without liability of any
party to any other party except that the provisions of Section 4, Section 7, Section 9 and Section 10 shall at all times be
effective and shall survive such termination. In any such case
either the Representatives or the Company shall have the right to
postpone the Closing Date, as the case may be, but in no event for
longer than seven days in order that the required changes, if any,
to the Registration Statement and the Prospectus or any other
documents or arrangements may be effected.
As used
in this Agreement, the term “Underwriter” shall be deemed to
include any person substituted for a defaulting Underwriter under
this Section 11. Any action
taken under this Section 11
shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this
Agreement.
Section
12. Termination of this
Agreement. Prior to
the purchase of the Securities by the Underwriters on the Closing
Date, this Agreement may be terminated by Jefferies by notice given
to the Company if at any time: (i) trading or quotation in any
of the Company’s securities shall have been suspended or
limited by the Commission or by the Nasdaq, or trading in
securities generally on either the Nasdaq or the NYSE shall have
been suspended or limited, or minimum or maximum prices shall have
been generally established on any of such stock exchanges;
(ii) a general banking moratorium shall have been declared by
any of federal, New York or California authorities;
(iii) there shall have occurred any outbreak or escalation of
national or international hostilities or any crisis or calamity, or
any substantial change in the United States or international
financial markets, or any substantial change or development
involving a prospective substantial change in United States’
or international political, financial or economic conditions, as in
the judgment of Jefferies is material and adverse and makes it
impracticable to market the Securities in the manner and on the
terms described in the Time of Sale Prospectus or the Prospectus or
to enforce contracts for the sale of securities; (iv) in the
judgment of Jefferies there shall have occurred any Material
Adverse Change; or (v) the Company shall have sustained a loss by
strike, fire, flood, earthquake, accident or other calamity of such
character as in the judgment of Jefferies may interfere materially
with the conduct of the business and operations of the Company
regardless of whether or not such loss shall have been insured. Any
termination pursuant to this Section 12 shall be without liability
on the part of (a) the Company to any Underwriter, except that
the Company shall be obligated to reimburse the expenses of the
Representatives and the Underwriters pursuant to Section 4 or Section 7 hereof or (b) any
Underwriter to the Company; provided, however, that the provisions
of Section 9 and Section 10 shall at all times be
effective and shall survive such termination.
Section 13. No Advisory or Fiduciary Relationship.
The Company acknowledges and agrees that (a) the purchase and sale
of the Securities pursuant to this Agreement, including the
determination of the public offering price of the Securities and
any related discounts and commissions, is an arm’s-length
commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other hand, (b) in connection with
the offering contemplated hereby and the process leading to such
transaction, each Underwriter is and has been acting solely as a
principal and is not the agent or fiduciary of the Company, or its
stockholders, creditors, employees or any other party, (c) no
Underwriter has assumed or will assume an advisory or fiduciary
responsibility in favor of the Company with respect to the offering
contemplated hereby or the process leading thereto (irrespective of
whether such Underwriter has advised or is currently advising the
Company on other matters) and no Underwriter has any obligation to
the Company with respect to the offering contemplated hereby except
the obligations expressly set forth in this Agreement, (d) the
Underwriters and their respective affiliates may be engaged in a
broad range of transactions that involve interests that differ from
those of the Company, and (e) the Underwriters have not provided
any legal, accounting, regulatory or tax advice with respect to the
offering contemplated hereby and the Company has consulted its own
legal, accounting, regulatory and tax advisors to the extent it
deemed appropriate.
-26-
Section
14. Representations and Indemnities to Survive
Delivery. The
respective indemnities, agreements, representations, warranties and
other statements of the Company, of its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of
its or their partners, officers or directors or any controlling
person, as the case may be, and, anything herein to the contrary
notwithstanding, will survive delivery of and payment for the
Securities sold hereunder and any termination of this
Agreement.
Section
15. Notices. All communications hereunder
shall be in writing and shall be mailed, hand delivered or
telecopied and confirmed to the parties hereto as
follows:
|
|
If to the
Representatives:
|
Jefferies
LLC
520
Madison Avenue
New York,
New York 10022
Facsimile:
(646) 619-4437
Attention:
General Counsel
William Blair &
Company, L.L.C.
150 North Riverside
Plaza
Chicago, Illinois
60606
Facsimile: (312)
551-4646
Attention: Equity
Capital Markets and separately, General
Counsel
|
|
|
with a copy to:
If to the
Company:
with a copy
to:
|
Cooley LLP
55 Hudson
Yards
New York, New York
10001
Attention: Eric
Blanchard
Joshua
Kaufman
Daniel I.
Goldberg
VistaGen Therapeutics,
Inc.
343
Allerton Avenue
South San Francisco,
California 94080
Facsimile:
(888)-482-2602
Attention:
Shawn Singh, Chief Executive Officer
Latham & Watkins
LLP
885 Third
Avenue
New York, New York
10022
Attention: Nathan
Ajiashvili
Christopher
Lueking
|
Any
party hereto may change the address for receipt of communications
by giving written notice to the others.
Section
16. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto, including any
substitute Underwriters pursuant to Section 11 hereof, and to the benefit
of the affiliates, directors, officers, employees, agents and
controlling persons referred to in Section 9 and Section 10, and in each case their
respective successors, and no other person will have any right or
obligation hereunder. The term “successors” shall not include any
purchaser of the Securities as such from any of the Underwriters
merely by reason of such purchase.
Section 17. Partial Unenforceability. The invalidity
or unenforceability of any section, paragraph or provision of this
Agreement shall not affect the validity or enforceability of any
other section, paragraph or provision hereof. If any section,
paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to
be made such minor changes (and only such minor changes) as are
necessary to make it valid and enforceable.
-27-
Section
18. Recognition
of the U.S. Special Resolution Regimes.
(a) In
the event that any Underwriter that is a Covered Entity becomes
subject to a proceeding under a U.S. Special Resolution Regime, the
transfer from such Underwriter of this Agreement, and any interest
and obligation in or under this Agreement, will be effective to the
same extent as the transfer would be effective under the U.S.
Special Resolution Regime if this Agreement, and any such interest
and obligation, were governed by the laws of the United States or a
state of the United States.
(b) In
the event that any Underwriter that is a Covered Entity or a BHC
Act Affiliate of such Underwriter becomes subject to a proceeding
under a U.S. Special Resolution Regime, Default Rights under this
Agreement that may be exercised against such Underwriter are
permitted to be exercised to no greater extent than such Default
Rights could be exercised under the U.S. Special Resolution Regime
if this Agreement were governed by the laws of the United States or
a state of the United States.
For
purposes of this Agreement, (A) “BHC Act Affiliate” has the meaning
assigned to the term “affiliate” in, and shall be
interpreted in accordance with, 12 U.S.C. § 1841(k); (B)
“Covered Entity”
means any of the following: (i) a “covered entity” as
that term is defined in, and interpreted in accordance with, 12
C.F.R. § 252.82(b); (ii) a “covered bank” as that
term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 47.3(b); or (iii) a “covered FSI” as that term
is defined in, and interpreted in accordance with, 12 C.F.R. §
382.2(b); (C) “Default
Right” has the meaning assigned to that term in, and
shall be interpreted in accordance with, 12 C.F.R. §§
252.81, 47.2 or 382.1, as applicable; and (D) “U.S. Special Resolution Regime”
means each of (i) the Federal Deposit Insurance Act and the
regulations promulgated thereunder and (ii) Title II of the
Dodd-Frank Wall Street Reform and Consumer Protection Act and the
regulations promulgated thereunder.
Section
19. Governing Law Provisions. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of
New York applicable to agreements made and to be performed in such
state. Any legal suit, action or proceeding arising out of or based
upon this Agreement or the transactions contemplated hereby
(“Related
Proceedings”) may be instituted in the federal courts
of the United States of America located in the Borough of Manhattan
in the City of New York or the courts of the State of New York in
each case located in the Borough of Manhattan in the City of New
York (collectively, the “Specified Courts”), and each party
irrevocably submits to the exclusive jurisdiction (except for
proceedings instituted in regard to the enforcement of a judgment
of any such court (a “Related
Judgment”), as to which such jurisdiction is
non-exclusive) of such courts in any such suit, action or
proceeding. Service of any process, summons, notice or document by
mail to such party’s address set forth above shall be
effective service of process for any suit, action or other
proceeding brought in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any
suit, action or other proceeding in the Specified Courts and
irrevocably and unconditionally waive and agree not to plead or
claim in any such court that any such suit, action or other
proceeding brought in any such court has been brought in an
inconvenient forum.
Section
20. General Provisions. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior
written or oral and all contemporaneous oral agreements,
understandings and negotiations with respect to the subject matter
hereof. This Agreement may be executed in two or more counterparts,
each one of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
This Agreement may not be amended or modified unless in writing by
all of the parties hereto, and no condition herein (express or
implied) may be waived unless waived in writing by each party whom
the condition is meant to benefit. The section headings herein are
for the convenience of the parties only and shall not affect the
construction or interpretation of this Agreement.
Each of
the parties hereto acknowledges that it is a sophisticated business
person who was adequately represented by counsel during
negotiations regarding the provisions hereof, including, without
limitation, the indemnification provisions of Section 9 and the contribution
provisions of Section 10, and
is fully informed regarding said provisions. Each of the parties
hereto further acknowledges that the provisions of Section 9 and Section 10 hereof fairly allocate the
risks in light of the ability of the parties to investigate the
Company, its affairs and its business in order to assure that
adequate disclosure has been made in the Registration Statement,
any preliminary prospectus, the Time of Sale Prospectus, each free
writing prospectus and the Prospectus (and any amendments and
supplements to the foregoing), as contemplated by the Securities
Act and the Exchange Act.
-28-
If the
foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company the enclosed
copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance
with its terms.
Very
truly yours,
VISTAGEN THERAPEUTICS, INC.
By: /s/ Shawn K.
Singh
Name:
Shawn K. Singh
Title:
Chief Executive Officer
-29-
The
foregoing Underwriting Agreement is hereby confirmed and accepted
by the Representatives in New York, New York as of the date first
above written.
JEFFERIES LLC
WILLIAM BLAIR & COMPANY, L.L.C.
Acting individually and as Representatives
of the several Underwriters
named in
the attached Schedule
A.
JEFFERIES LLC
By: /s/ Matthew
Kim
Name:
Matthew Kim
Title:
Managing Director, Joint US Head of Biopharmaceuticals
WILLIAM BLAIR & COMPANY,
L.L.C.
By: /s/ Steve
Maletzky
Name:
Steve Maletzky
Title:
Partner, Head of Equity Capital Markets
-30-
|
Underwriters
|
Number
of Shares of
Common
Stock
to
be Purchased
|
Number
of Shares of
Preferred
Stock
to
be Purchased
|
|
Jefferies
LLC
|
40,950,000
|
1,300,000
|
|
William Blair &
Company, L.L.C.
|
22,050,000
|
700,000
|
|
Total
|
63,000,000
|
2,000,000
|
-31-
Schedule B
Free Writing Prospectuses Included in the Time of Sale
Prospectus
Term
Sheet for the Preferred Stock, dated December 18,
2020.
-32-
Schedule C
Permitted Rule 163B Communications
[None]
-33-
Schedule D
Subsidiaries of the Company
VistaGen
Therapeutics, Inc. d/b/a VistaStem, a California
corporation
Artemis
Neuroscience, Inc., a Maryland corporation
VistaStem
Canada, Inc., a corporation organized under the laws of Ontario,
Canada
-34-
Form of Lock-up Agreement
___________, 2020
Jefferies LLC
As
Representative of the Several Underwriters
c/o Jefferies LLC
520 Madison Avenue
New York, New York 10022
RE:
VistaGen Therapeutics, Inc. (the
“Company”)
Ladies & Gentlemen:
The undersigned is an owner of shares of common
stock, par value $0.001 per share, of the Company
(“Common Stock”) or of securities convertible into or
exchangeable or exercisable for Common Stock. The Company proposes
to conduct a public offering (the “Offering”) of units consisting of shares of its
Common Stock and shares of its Series D Convertible Preferred Stock
(the “Preferred
Stock” and, together with
the Common Stock, the “Shares”) for which Jefferies LLC
(“Jefferies”) will act as the representative of the
underwriters. The undersigned recognizes that the Offering will
benefit each of the Company and
the undersigned. The undersigned acknowledges that the underwriters
are relying on the representations and agreements of the
undersigned contained in this letter agreement in conducting the
Offering and, at a subsequent date, in entering into an
underwriting agreement (the “Underwriting
Agreement”) and other
underwriting arrangements with the Company with respect to the
Offering.
Annex
A sets forth definitions for capitalized terms used in this letter
agreement that are not defined in the body of this agreement. Those
definitions are a part of this agreement.
In
consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned hereby agrees that, during the
Lock-up Period, the undersigned will not (and if the undersigned is
a natural person, will cause any Family Member not to), without the
prior written consent of Jefferies, which may withhold its consent
in its sole discretion:
●
Sell or Offer to
Sell any Shares or Related Securities currently or hereafter owned
either of record or beneficially (as defined in Rule 13d-3 under
the Exchange Act) by the undersigned or such Family
Member,
●
enter into any
Swap,
●
make any demand
for, or exercise any right with respect to, the registration under
the Securities Act of the offer and sale of any Shares or Related
Securities, or cause to be filed a registration statement,
prospectus or prospectus supplement (or an amendment or supplement
thereto) with respect to any such registration, or
●
publicly announce
any intention to do any of the foregoing.
A-1
Notwithstanding
the foregoing, the undersigned may transfer the Shares: (i) as a
bona fide gift or gifts;
(ii) to any trust for the direct or indirect benefit of the
undersigned or a Family Member of the undersigned; (iii) if the
undersigned is a corporation, partnership, limited liability
company, trust or other business entity, (a) to another
corporation, partnership, limited liability company, trust or other
business entity that is a direct or indirect affiliate (as defined
in Rule 405 promulgated under the Securities Act of 1933, as
amended) of the undersigned or (b) in distributions of Shares or
any security convertible into or exercisable for Shares to limited
partners, limited liability company members or stockholders of the
undersigned; (iv) if the undersigned is a trust, to the beneficiary
of such trust; or (v) by testate succession or intestate
succession; provided, in
the case of clauses (i)-(v), that (x) such transfer shall not
involve a disposition for value, (y) any such transferee executes
and delivers to the Representative a lock-up agreement in the form
of this lock-up agreement and (z) no public disclosure nor any
filing by any party under Section 16(a) of the Exchange Act, shall
be required or shall be made voluntarily in connection with such
transfer.
In
addition, the foregoing restrictions shall not apply to the
establishment of any contract, instruction or plan (a
“Plan”) that
satisfies all of the requirements of Rule 10b5-1(c)(1)(i)(B) under
the Exchange Act; provided,
that no sales of the undersigned’s Shares shall be made
pursuant to such a Plan prior to the expiration of the Lock-up
Period, and such a Plan may only be established if no public
announcement of the establishment or existence thereof and no
filing with the SEC or other regulatory authority in respect
thereof or transactions thereunder or contemplated thereby, by the
undersigned, the Company or any other person, shall be required,
and no such announcement or filing is made voluntarily, by the
undersigned, the Company or any other person, prior to the
expiration of the Lock-up Period.
The undersigned also agrees and consents to the entry of stop
transfer instructions with the Company’s transfer agent and
registrar against the transfer of Shares or Related Securities held
by the undersigned and the undersigned’s Family Members, if
any, except in compliance with the foregoing
restrictions.
With respect to the Offering only, the undersigned waives any
registration rights relating to registration under the Securities
Act of the offer and sale of any Shares and/or any Related
Securities owned either of record or beneficially by the
undersigned, including any rights to receive notice of the
Offering.
The undersigned confirms that the undersigned has not, and has no
knowledge that any Family Member has, directly or indirectly, taken
any action designed to or that might reasonably be expected to
cause or result in the stabilization or manipulation of the price
of any security of the Company to facilitate the sale of the
Shares. The undersigned will not, and will cause any Family Member
not to take, directly or indirectly, any such action.
The
undersigned acknowledges and agrees that the underwriters have not
provided any recommendation or investment advice nor have the
underwriters solicited any action from the undersigned with respect
to the Offering and the undersigned has consulted their own legal,
accounting, financial, regulatory and tax advisors to the extent
deemed appropriate.
Whether or not the Offering occurs as currently contemplated or at
all depends on market conditions and other factors. The Offering
will only be made pursuant to the Underwriting Agreement, the terms
of which are subject to negotiation between the Company and the
underwriters.
The undersigned hereby represents and warrants that the undersigned
has full power, capacity and authority to enter into this letter
agreement. This letter agreement is irrevocable and will be binding
on the undersigned and the successors, heirs, personal
representatives and assigns of the undersigned.
This letter agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
This Lock-up Agreement shall automatically terminate and be of no
further force and effect if (i) Jefferies advises the Company, or
the Company advises Jefferies, in writing, prior to the execution
of the Underwriting Agreement, that they have determined not to
proceed with the public offering of Shares, (ii) the Company files
an application to withdraw the Registration Statement, (iii) the
Underwriting Agreement is executed but is terminated (other than
the provisions thereof that survive termination) prior to payment
for and delivery of the Shares to be sold thereunder; or (iv)
February 12, 2021 if the offering is not completed by such
date.
[Signature
Page Follows]
A-2
Signature
______________________________________
Printed
Name of Person Signing
(Indicate capacity of person signing if
signing as custodian or trustee, or on behalf
of an entity)
A-3
Certain Defined Terms
Used in Lock-up Agreement
For
purposes of the Lock-up Agreement to which this Annex A is attached
and of which it is made a part:
●
“Call Equivalent
Position” shall have the meaning set forth
in Rule 16a-1(b) under the Exchange Act.
●
“Exchange Act” shall mean the Securities Exchange
Act of 1934, as amended.
●
“Family Member” shall mean the
spouse of the undersigned, an immediate family member of the
undersigned or an immediate family member of the undersigned's
spouse, in each case living in the undersigned's household or whose
principal residence is the undersigned's household (regardless of
whether such spouse or family member may at the time be living
elsewhere due to educational activities, health care treatment,
military service, temporary internship or employment or otherwise).
“Immediate family
member” as used above shall have the meaning set forth
in Rule 16a-1(e) under the Exchange Act.
●
“Lock-up Period” shall mean the
later of (i) 90 days from the date of the final prospectus
supplement or (ii) the earlier of (x) the date on which the
Company’s stockholders approve an increase in the authorized
shares of Common Stock of the Company in an amount sufficient to
permit the conversion of the Preferred Stock and (y) 120 days from
the date of the final prospectus supplement.
●
“Put Equivalent Position” shall
have the meaning set forth in Rule 16a-1(h) under the Exchange
Act.
●
“Related Securities” shall mean any
options or warrants or other rights to acquire Shares or any
securities exchangeable or exercisable for or convertible into
Shares, or to acquire other securities or rights ultimately
exchangeable or exercisable for or convertible into
Shares.
●
“Securities Act” shall mean the
Securities Act of 1933, as amended.
●
“Sell or Offer to Sell” shall mean
to:
–
sell, offer to
sell, contract to sell or lend,
–
effect any short
sale or establish or increase a Put Equivalent Position or
liquidate or decrease any Call Equivalent Position
–
pledge, hypothecate
or grant any security interest in, or
–
in any other way
transfer or dispose of,
in each
case whether effected directly or indirectly.
●
“Swap” shall mean any swap, hedge
or similar arrangement or agreement that transfers, in whole or in
part, the economic risk of ownership of Shares or Related
Securities, regardless of whether any such transaction is to be
settled in securities, in cash or otherwise.
Capitalized terms
not defined in this Annex A shall have the meanings given to them
in the body of this lock-up agreement.
A-4
Exhibit B
Directors and Executive Officers
Signing
Lock-up
Agreement
Directors:
Ann M.
Cunningham
Jerry
B. Gin
Jon S.
Saxe
Shawn
K. Singh
H.
Ralph Snodgrass
Brian
J. Underdown
Executive
Officers:
Jerrold
D. Dotson
Mark A.
McPartland
Mark A.
Smith
Others:
Louis
Monti
B-1
Exhibit 3.1
CERTIFICATE OF DESIGNATION OF THE RELATIVE RIGHTS AND
PREFERENCES
OF THE
SERIES D CONVERTIBLE PREFERRED STOCK
OF
VISTAGEN THERAPEUTICS, INC.
The
undersigned, Shawn Singh, does hereby certify that:
1. He is the Chief
Executive Officer of VistaGen Therapeutics, Inc., a Nevada
corporation (the “Company”).
2. The Company,
pursuant to Article V of its Restated and Amended Articles of
Incorporation (the “Articles of
Incorporation”) is authorized to issue 10,000,000
shares of preferred stock, par value $0.001 per share, of which
7,500,000 shares have been previously designated.
3. The following
resolution was duly adopted by the board of directors of the
Company (the “Board of
Directors”), or by a duly authorized committee
thereof, in accordance with the provisions of Section 78.195 of the
Nevada Revised Statutes.
4. Pursuant to the
authority conferred upon the Board of Directors of the Company by
the Articles of Incorporation, the following resolution creating a
series of Series D Convertible Preferred Stock, was duly adopted on
December 17, 2020:
WHEREAS, the Articles of Incorporation
provide for the Preferred Stock issuable from time to time in one
or more series;
WHEREAS, the Board of Directors is
authorized to fix the dividend rights, dividend rate, voting
rights, conversion rights, rights and terms of redemption and
liquidation preference of any wholly unissued series of Preferred
Stock and the number of shares constituting any series and the
designation thereof, or any of them; and
WHEREAS, it is the desire of the Board
of Directors, pursuant to its authority as aforesaid, to fix the
rights, preferences, restrictions and other matters relating to a
new series of the Preferred Stock, which consist of 2,000,000
shares of Preferred Stock, which the Company has the authority to
issue, as follows.
RESOLVED, that the Board of Directors
does hereby provide for the issuance of a series of Preferred Stock
for cash or exchange of other securities, rights or property and
does hereby fix and determine the rights, preferences, restrictions
and other matters relating to such series of Preferred Stock as
follows; and
RESOLVED, pursuant to the authority
expressly set forth in the Articles of Incorporation, the issuance
of a series of Preferred Stock designated as the Series D
Convertible Preferred Stock, par value $0.001 per share, of the
Company is hereby authorized and the designation, number of shares,
powers, preferences, rights, qualifications limitations and
restrictions thereof (in addition to any provisions set forth in
the Articles of Incorporation that are applicable to the Preferred
Stock of all classes and series) are hereby fixed, and the
Certificate of Designation of Relative Rights and Preferences of
the Series D Convertible Preferred Stock (this “Certificate of
Designation”) is hereby approved as
follows:
-1-
1. Designation,
Amount and Par Value.
(a) The
designation of such series of the Preferred Stock shall be the
Series D Convertible Preferred Stock, par value $0.001 per share
(the “Series D
Preferred”).
The maximum number of shares of Series D Preferred shall be
2,000,000 shares. The Series D Preferred shall be issued in
book-entry form, or if requested by any holder, such holder’s
shares may be issued in certificated form. To the extent that any
shares of Series D Preferred Stock are issued in book-entry form,
references herein to “certificates” shall refer to the
book-entry notation relating to such shares.
(b) The
Company shall register shares of the Series D Preferred upon
records to be maintained by the Company for that purpose (the
“Series D
Preferred Stock Register”), in the name of the holders
thereof from time to time. The Company may deem and treat the
registered holder of shares of Series D Preferred as the absolute
owner thereof for the purpose of any conversion thereof and for all
other purposes. The Company shall register the transfer of any
shares of Series D Preferred in the Series D Preferred Stock
Register, upon surrender of the certificates evidencing such shares
to be transferred, duly endorsed by the holder thereof, to the
Company at its address specified herein. Upon any such registration
or transfer, a new certificate evidencing the shares of Series D
Preferred so transferred shall be issued to the transferee and a
new certificate evidencing the remaining portion of the shares not
so transferred, if any, shall be issued to the transferring holder,
in each case, within three business days. The provisions of this
Certificate of Designation are intended to be for the benefit of
all holders from time to time and shall be enforceable by any such
holder.
2. Dividends.
Whenever the Board of Directors declares a dividend on the common
stock of the Company, par value $0.001 per share (the
“Common
Stock”), each holder of record of a share of Series D
Preferred, or any fraction of a share of Series D Preferred, on the
date set by the Board of Directors to determine the owners of the
Common Stock of record entitled to receive such dividend (the
“Record
Date”) shall be entitled to receive out
of any assets at the time legally available therefore, an amount
equal to such dividend declared on one share of Common Stock
multiplied by the number of shares of Common Stock into which such
share, or such fraction of a share, of Series D Preferred could be
converted on the Record Date.
3. Voting
Rights.
(a) Class
Voting Rights. So long as any shares of the Series D
Preferred remain outstanding, the Company shall not, without the
affirmative vote or consent of the holders of majority of the
shares of the Series D Preferred then-outstanding, given in person
or by proxy, either in writing or at a meeting, in which the
holders of the Series D Preferred vote separately as a
class:
(i) amend,
alter, modify or repeal (whether by merger, consolidation or
otherwise) this Certificate of Designation, the Articles of
Incorporation or the bylaws in any manner that adversely affects
the rights, preferences, privileges or the restrictions provided
for the benefit of, the Series D Preferred;
(ii) issue
further shares of Series D Preferred or increase or decrease (other
than by conversion) the number of authorized shares of Series D
Preferred; or
(iii) enter
into any agreement to do any of the foregoing that is not expressly
made conditional on obtaining the affirmative vote or written
consent of the majority of then-outstanding Series D
Preferred.
-2-
(b) General
Voting Rights. In addition to the class voting rights set
forth in Section 3(a), the Series D Preferred shall have the
following general voting rights.
(i) Prior
to Approval Date (as defined in Section 5(a)), the Series D
Preferred will be entitled to one vote per share of Series D
Preferred and vote as a single class with the shares of our Common
Stock.
(ii) On
and after the Approval Date, the Series D Preferred shall have no
voting rights except to the extent provided in Section 3(a), in the
Articles of Incorporation or as otherwise required by applicable
law.
4. Rank;
Liquidation Preference.
(a) The
Series D Preferred shall rank (i) senior all of the common stock,
par value $0.001 per share, of the Company (the “Common
Stock”); (ii) senior to all other classes and series
of equity securities of the Company that by their terms do not rank
senior to the Series D Preferred (“Junior
Stock”); (iii) on parity with all shares of the
Company’s Series A Convertible Preferred Stock, Series B
Convertible Preferred Stock and Series C Convertible Preferred
Stock; (iv) on parity with any class or series of capital stock of
the Company hereafter created specifically ranking by its terms on
parity with the Series D Preferred (together with the
Corporation’s Series A Convertible Preferred Stock, Series B
Convertible Preferred Stock and Series C Convertible Preferred
Stock, the “Parity
Stock”); and (v) junior to any class or series of
capital stock of the Company hereafter created specifically ranking
by its terms senior to any Series D Preferred Stock
(“Senior
Stock”), in each case, as to distributions of assets
upon liquidation, dissolution or winding up of the Company, whether
voluntarily or involuntarily and/or as to the right to receive
dividends.
(b) Prior
to the Approval Date, in the event of the liquidation, dissolution
or winding up of the affairs of the Company, whether voluntary or
involuntary, after payment or provision for payment of the debts
and other liabilities of the Company, and subject to the prior and
superior rights of any Senior Stock, each holder of shares of
Series D Preferred is entitled to receive, in preference to any
distributions of any of the assets or surplus funds of the Company
to the holders of the Common Stock and any of our securities that
are Junior Stock and pari passu with any distribution to the
holders of any Parity Stock, an amount equal to $0.001 per share of
Series D Preferred, plus an additional amount equal to any
dividends declared but unpaid on such shares, before any payments
shall be made or any assets distributed to holders of the Common
Stock or any of our securities that Junior Stock. If, upon any such
liquidation, dissolution or winding up of the Company, the assets
of the Company shall be insufficient to pay the holders of shares
of the Series D Preferred Stock the amount required under the
preceding sentence, then all remaining assets of the Company shall
be distributed ratably to holders of the shares of the Series D
Preferred Stock and any Parity Stock. After such preferential payment, each holder of
shares of Series D Preferred shall be entitled to participate pari
passu with the holders of the Common Stock (on an as-converted
basis, without regard to the limitations set forth in Section 7)
and any Parity Stock, in the remaining distribution of the net
assets of the Company available for distribution. On or after the
Approval Date, the Series D Preferred shall have no liquidation
preference.
(c) Written
notice of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Company, stating a payment date
and the place where the distributable amounts shall be payable,
shall be given by mail, postage prepaid, no less than forty-five
(45) days prior to the payment date stated therein, to the holders
of record of the Series D Preferred at their respective addresses
as the same shall appear on the books of the Company.
-3-
5. Conversion.
(a) Right
to Convert. At any time on or after the issuance date of the
Series D Preferred (the “Issuance
Date”), the holder of any such shares of Series D
Preferred may, at such holder’s option, subject to the
limitations set forth in Section 7, elect to convert (a
“Voluntary
Conversion”) all or any portion of such
holder’s shares of Series D Preferred into a number of fully
paid and nonassessable shares of Common Stock at a conversion rate
of twenty-three (23) shares of Common Stock for each whole share of
Series D Preferred (subject to adjustments set forth in Section
7(e), the “Conversion
Rate”); provided, however, that no shares of
Series D Preferred shall be convertible into shares of Common Stock
prior to the date on which the Company’s stockholders approve
an amendment to the Company’s Articles of Incorporation to
authorize the issuance of additional shares of Common Stock
sufficient to satisfy the conversion in full of each share of
Series D Preferred authorized by this Certificate of Designation
into shares of Common Stock at the Conversion Rate and such
amendment to the Articles of Incorporation becomes effective (the
“Approval
Date”). The Company shall keep written
records of the conversion of the shares of Series D Preferred
converted by each holder. A holder shall be required to deliver the
original certificates representing the shares of Series D Preferred
upon any conversion of the Series D Preferred as provided in
Section 5(b).
(b) Mechanics
of Voluntary Conversion. The Voluntary Conversion of Series
D Preferred shall be conducted in the following
manner:
(i) Holder’s
Delivery Requirements. To convert Series D Preferred into
shares of Common Stock on any date (a “Voluntary Conversion
Date”), the holder thereof shall (A)
transmit by electronic mail, facsimile, or otherwise deliver, for
receipt on or prior to 5:00 p.m., New York time on such date, a
copy of a fully executed notice of conversion in the form attached
hereto as Exhibit A
(the “Conversion
Notice”)o the Company, and (B) with respect to the
conversion of shares of Series D Preferred held by any holder, such
holder shall surrender to a common carrier for delivery to the
Company as soon as practicable following such Voluntary Conversion
Date, but in no event later than five (5) business days after such
date, the original certificates representing the shares of Series D
Preferred being converted (or an indemnification undertaking with
respect to such shares in the case of their loss, theft or
destruction) (the “Preferred Stock
Certificates”).
(ii) Company’s Response.
Upon receipt by the Company of a copy of a Conversion Notice, the
Company shall immediately send, via electronic mail or facsimile, a
confirmation of receipt of such Conversion Notice to such holder
and the Company or its designated transfer agent (the
“Transfer
Agent”), as applicable, shall, within five
(5) business days following the date of receipt by the Company of
the certificate representing the shares of Series D Preferred being
converted, (x) issue and deliver to the holder the number of shares
of Common Stock to which the holder shall be entitled, and (y) if
the certificate so surrendered represents more shares of Series D
Preferred than those being converted, issue and deliver to the
holder a new certificate for such number of shares of Series D
Preferred represented by the surrendered certificate which were not
converted.
(iii) Record
Holder. The person or persons entitled to receive the shares
of Common Stock issuable upon a conversion of the Series D
Preferred shall be treated for all purposes as the record holder or
holders of such shares of Common Stock on the Voluntary Conversion
Date.
(iv) Company’s
Failure to Timely Convert. If within five (5) business days
of the Company’s receipt of the Conversion Notice (the
“Share
Delivery Period”) the Company shall fail to issue and
deliver to a holder the number of shares of Common Stock to which
such holder is entitled upon such holder’s conversion of the
Series D Preferred (a “Conversion
Failure”), in addition to all other available remedies
which such holder may pursue hereunder, the Company shall pay
additional damages to such holder on each business day after such
fifth (5th) business day that such conversion is not timely
effected in an amount equal to 0.5% of the product of (A) the sum
of the number of shares of Common Stock not issued to the holder on
a timely basis pursuant to Section 5(b)(ii) and to which such
holder is entitled and (B) the closing bid price of the Common
Stock on the last possible date which the Company could have issued
such Common Stock to such holder without violating Section
5(b)(ii). If the Company fails to pay the additional damages set
forth in this Section 5(b)(iv) within five (5) business days of the
date incurred, then such payment shall bear interest at the rate of
2% per month (pro rated for partial months) until such payments are
made.
-4-
(c) Adjustments
of Conversion Rate.
(i) Adjustments
for Stock Splits and Combinations. If the Company shall at
any time or from time to time after the Issuance Date, effect a
stock split of the outstanding Common Stock, the Conversion Rate
shall be proportionately increased. If the Company shall at any
time or from time to time after the Issuance Date, combine the
outstanding shares of Common Stock, the Conversion Rate shall be
proportionately decreased. Any adjustments under this Section
5(c)(i) shall be effective at the close of business on the date the
stock split or combination occurs.
(ii) Adjustments
for Certain Dividends and Distributions. If the Company
shall at any time or from time to time after the Issuance Date,
make or issue or set a record date for the determination of holders
of Common Stock entitled to receive a dividend or other
distribution payable in shares of Common Stock, then, and in each
event, the Conversion Rate shall be increased as of the time of
such issuance or, in the event such record date shall have been
fixed, as of the close of business on such record date, by
multiplying, as applicable, the Conversion Rate then in effect by a
fraction:
(1) the
numerator of which shall be the total number of shares of Common
Stock issued and outstanding immediately after such issuance on the
close of business on such record date; and
(2) the
denominator of which shall be the total number of shares of Common
Stock issued and outstanding immediately prior to the time of such
issuance on the close of business on such record date.
(iii) Adjustment
for Other Dividends and Distributions. If the Company shall,
at any time or from time to time after the Issuance Date, make or
issue or set a record date for the determination of holders of
Common Stock entitled to receive a dividend or other distribution
payable in securities of the Company other than shares of Common
Stock, then, and in each event, an appropriate revision to the
applicable Conversion Rate shall be made and provision shall be
made (by adjustments of the Conversion Rate or otherwise) so that
the holders of Series D Preferred shall receive upon conversions
thereof, in addition to the number of shares of Common Stock
receivable thereon, the number of securities of the Company which
they would have received had their Series D Preferred been
converted into Common Stock on the date of such event and had
thereafter, during the period from the date of such event to and
including the Conversion Date, retained such securities (together
with any distributions payable thereon during such period), giving
application to all adjustments called for during such period under
this Section 5(c)(iii) with respect to the rights of the holders of
the Series D Preferred.
(iv) Adjustments
for Reclassification, Exchange or Substitution. If the
Common Stock issuable upon conversion of the Series D Preferred at
any time or from time to time after the Issuance Date shall be
changed to the same or different number of shares of any class or
classes of stock, whether by reclassification, exchange,
substitution or otherwise (other than by way of a stock split or
combination of shares or stock dividends provided for in Sections
5(c)(i), (ii) and (iii), or a reorganization, merger,
consolidation, or sale of assets provided for in Section 5(c)(v)),
then, and in each event, an appropriate revision to the Conversion
Rate shall be made and provisions shall be made so that the holder
of each share of Series D Preferred shall have the right thereafter
to convert such share of Series D Preferred into the kind and
amount of shares of stock and other securities receivable upon
reclassification, exchange, substitution or other change, by
holders of the number of shares of Common Stock into which such
share of Series D Preferred might have been converted immediately
prior to such reclassification, exchange, substitution or other
change, all subject to further adjustment as provided
herein.
-5-
(v) Adjustments
for Reorganization, Merger, Consolidation or Sales of
Assets. If at any time or from time to time after the
Issuance Date there shall be a capital reorganization of the
Company (other than by way of a stock split or combination of
shares or stock dividends or distributions provided for in Section
5(c)(i), (ii) and (iii), or a reclassification, exchange or
substitution of shares provided for in Section 5(c)(iv)), or a
merger or consolidation of the Company with or into another
corporation, or the sale of all or substantially all of the
Company’s properties or assets to any other person (an
"Organic
Change"), then as a
part of such Organic Change an appropriate revision to the
Conversion Rate shall be made and provision shall be made so that
the holder of each share of Series D Preferred shall have the right
thereafter to convert such share of Series D Preferred into the
kind and amount of shares of stock and other securities or property
of the Company or any successor corporation resulting from the
Organic Change which the holder of such share of Series D Preferred
would have received if such share of Series D Preferred had been
converted prior to such Organic Change.
(vi) Record
Date. In case the Company shall take record of the holders
of its Common Stock or any other Preferred Stock for the purpose of
entitling them to subscribe for or purchase Common Stock or
Convertible Securities, then the date of the issue or sale of the
shares of Common Stock shall be deemed to be such record
date.
(f) No
Impairment. The Company shall not, by amendment of its
Articles of Incorporation or through any reorganization, transfer
of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms to be observed or
performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this
Section 5 and in the taking of all such action as may be necessary
or appropriate in order to protect the conversion rights of the
holders of the Series D Preferred against impairment. In the event
a holder shall elect to convert any shares of Series D Preferred as
provided herein, the Company cannot refuse conversion based on any
claim that such holder or any person associated or affiliated with
such holder has been engaged in any violation of law, unless an
injunction from a court, on notice, restraining and/or adjoining
conversion of all or of such shares of Series D Preferred shall
have been issued.
(g) Certificates
as to Adjustments. Upon occurrence of each adjustment or
readjustment of the Conversion Rate or number of shares of Common
Stock issuable upon conversion of the Series D Preferred pursuant
to this Section 5, the Company at its expense shall promptly
compute such adjustment or readjustment in accordance with the
terms hereof and furnish to each holder of such Series D Preferred
a certificate setting forth such adjustment and readjustment,
showing in detail the facts upon which such adjustment or
readjustment is based. The Company shall, upon written request of
the holder of such affected Series D Preferred, at any time,
furnish or cause to be furnished to such holder a like certificate
setting forth such adjustments and readjustments, the Conversion
Rate in effect at the time, and the number of shares of Common
Stock and the amount, if any, of other securities or property which
at the time would be received upon the conversion of a share of
such Series D Preferred. Notwithstanding the foregoing, the Company
shall not be obligated to deliver a certificate unless such
certificate would reflect an increase or decrease of at least one
percent of such adjusted amount.
(h) Issue
Taxes. The Company shall pay any and all issue and other
taxes, excluding federal, state or local income taxes, that may be
payable in respect of any issue or delivery of shares of Common
Stock on conversion of shares of Series D Preferred pursuant
hereto; provided,
however, that the
Company shall not be obligated to pay any transfer taxes resulting
from any transfer requested by any holder in connection with any
such conversion.
-6-
(i) Notices.
All notices and other communications hereunder shall be in writing
and shall be deemed given if delivered personally, by facsimile,
electronic mail or three (3) business days following (A) being
mailed by certified or registered mail, postage prepaid,
return-receipt requested, or (B) delivered to an express mail
delivery service such as Federal Express, with written receipt by
the addressee required, in either case addressed to the holder of
record at its address appearing on the books of the Company. The
Company will give written notice to each holder of Series D
Preferred at least twenty (20) days prior to the date on which the
Company closes its books or takes a record (z) with respect to any
dividend or distribution upon the Common Stock, (y) with respect to
any pro rata subscription offer to holders of Common Stock or (x)
for determining rights to vote with respect to any Organic Change,
dissolution, liquidation or winding-up and in no event shall such
notice be provided to such holder prior to such information being
made known to the public. The Company will also give written notice
to each holder of Series D Preferred at least twenty (20) days
prior to the date on which any Organic Change, dissolution,
liquidation or winding-up will take place and in no event shall
such notice be provided to such holder prior to such information
being made known to the public.
(j) Fractional
Shares. No fractional shares of Common Stock shall be issued
upon conversion of the Series D Preferred. In lieu of any
fractional shares to which the holder would otherwise be entitled,
the Company, at its option, shall (A) pay cash equal to the product
of such fraction multiplied by the average of the closing bid
prices of the Common Stock for the five (5) consecutive trading
immediately preceding the Voluntary Conversion Date, or (B) issue
one whole share of Common Stock to the holder.
(k) Reservation
of Common Stock. Following the Approval Date, the Company
shall, so long as any shares of Series D Preferred are outstanding,
reserve and keep available out of its authorized and unissued
Common Stock, solely for the purpose of effecting the conversion of
the Series D Preferred, such number of shares of Common Stock as
shall from time to time be sufficient to effect the conversion of
all of the Series D Preferred then outstanding (without giving
effect to the limitations set forth in Section 7).
(1) Retirement
of Series D Preferred. Conversion of Series D Preferred
shall be deemed to have been effected on the applicable Voluntary
Conversion Date. The Company shall keep written records of the
conversion of the shares of Series D Preferred converted by each
holder. A holder shall be required to deliver the original
certificates representing the shares of Series D Preferred upon any
conversion of the Series D Preferred represented by such
certificates.
(m) Regulatory
Compliance. If any shares of Common Stock to be reserved for
the purpose of conversion of Series D Preferred require
registration or listing with or approval of any governmental
authority, stock exchange or other regulatory body under any
federal or state law or regulation or otherwise before such shares
may be validly issued or delivered upon conversion, the Company
shall, at its sole cost and expense, in good faith and as
expeditiously as possible, endeavor to secure such registration,
listing or approval, as the case may be.
6. No
Preemptive or Redemption Rights. No holder of the Series D
Preferred shall be entitled to rights to subscribe for, purchase or
receive any part of any new or additional shares of any class,
whether now or hereafter authorized, or of bonds or debentures, or
other evidences of indebtedness convertible into or exchangeable
for shares of any class, but all such new or additional shares of
any class, or any bond, debentures or other evidences of
indebtedness convertible into or exchangeable for shares, may be
issued and disposed of by the Board of Directors on such terms and
for such consideration (to the extent permitted by law), and to
such person or persons as the Board of Directors in their absolute
discretion may deem advisable.
7. Conversion
Restriction. Notwithstanding anything to the contrary set
forth in Section 5, at no time may a holder of shares of Series D
Preferred convert shares of the Series D Preferred if the number of
shares of Common Stock to be issued pursuant to such conversion
would exceed, when aggregated with all other shares of Common Stock
owned by such holder at such time, the number of shares of Common
Stock which would result in such holder beneficially owning (as
determined in accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended, and the rules thereunder) more
than 9.99% of all of the Common Stock outstanding at such time (the
“Ownership
Limitation”); provided, however, that upon a holder of
Series D Preferred providing the Company with sixty-one (61)
days’ notice (pursuant to Section 5(i)) the Ownership
Limitation may be increased up to 19.99% with respect to such
holder.
-7-
8. Inability
to Fully Convert.
(a) Holder’s
Option if Company Cannot Fully Convert. If, upon the
Company’s receipt of a Conversion Notice, the Company cannot
issue shares of Common Stock for any reason, including, without
limitation, because the Company (x) does not have a sufficient
number of shares of Common Stock authorized and available, (y)
pursuant to Section 7 or (z) is otherwise prohibited by applicable
law or by the rules or regulations of any stock exchange,
interdealer quotation system or other self-regulatory organization
with jurisdiction over the Company or its securities, from issuing
all of the Common Stock which is to be issued to a holder of Series
D Preferred pursuant to a Conversion Notice, then the Company shall
issue as many shares of Common Stock as it is able to issue in
accordance with such holder’s Conversion Notice and with
respect to the unconverted Series D Preferred (the
“Unconverted Preferred
Stock”) the holder, solely at such
holder’s option, can elect, at any time after receipt of
notice from the Company that there is Unconverted Preferred Stock,
to void the holder’s Conversion Notice as to the number of
shares of Common Stock the Company is unable to issue and retain or
have returned, as the case may be, the certificates for the shares
of the Unconverted Preferred Stock.
In the
event a Holder shall elect to convert any shares of Series D
Preferred as provided herein, the Company cannot refuse conversion
based on any claim that such Holder or any person associated or
affiliated with such Holder has been engaged in any violation of
law, violation of an agreement to which such Holder is a party or
for any reason whatsoever, unless, an injunction from a court, on
notice, restraining and or enjoining conversion of all or any of
such shares of Series D Preferred shall have issued.
(b) Mechanics
of Fulfilling; Holder’s Election. The Company shall
immediately send via facsimile to a holder of Series D Preferred,
upon receipt of a facsimile copy of a Conversion Notice from such
holder which cannot be fully satisfied as described in Section
8(a), a notice of the Company’s inability to fully satisfy
such holder’s Conversion Notice (the “Inability to Fully Convert
Notice”). Such Inability to Fully Convert
Notice shall indicate (i) the reason why the Company is unable to
fully satisfy such holder’s Conversion Notice and (ii) the
number of shares of Series D Preferred which cannot be
converted.
9. Vote
to Change the Terms of or Issue Preferred Stock. The
affirmative vote at a meeting duly called for such purpose, or the
written consent without a meeting, of the holders of not less than
a majority of the then-outstanding shares of Series D Preferred,
shall be required for any change to this Certificate of Designation
or the Company’s Articles of Incorporation which would amend,
alter, change or repeal any of the powers, designations,
preferences and rights of the Series D Preferred.
10. Lost
or Stolen Certificates. Upon receipt by the Company of
evidence satisfactory to the Company of the loss, theft,
destruction or mutilation of any Preferred Stock Certificates
representing the shares of Series D Preferred, and, in the case of
loss, theft or destruction, of any indemnification undertaking by
the holder to the Company and, in the case of mutilation, upon
surrender and cancellation of the Preferred Stock Certificate(s),
the Company shall execute and deliver new preferred stock
certificate(s) of like tenor and date.
11. Remedies,
Characterizations, Other Obligations, Breaches and Injunctive
Relief. The remedies provided in this Certificate of
Designation shall be cumulative and in addition to all other
remedies available under this Certificate of Designation, at law or
in equity (including a decree of specific performance and/or other
injunctive relief), no remedy contained herein shall be deemed a
waiver of compliance with the provisions giving rise to such remedy
and nothing herein shall limit a holder’s right to pursue
actual damages for any failure by the Company to comply with the
terms of this Certificate of Designation. Amounts set forth or
provided for herein with respect to conversion and the like (and
the computation thereof) shall be the amounts to be received by the
holder thereof and shall not, except as expressly provided herein,
be subject to any other obligation of the Company (or the
performance thereof). The Company acknowledges that a breach by it
of its obligations hereunder will cause irreparable harm to the
holders of the Series D Preferred and that the remedy at law for
any such breach may be inadequate. The Company therefore agrees
that, in the event of any such breach or threatened breach, the
holders of the Series D Preferred shall be entitled, in addition to
all other available remedies, to an injunction restraining any
breach, without the necessity of showing economic loss and without
any bond or other security being required.
-8-
12. Specific
Shall Not Limit General; Construction. No specific provision
contained in this Certificate of Designation shall limit or modify
any more general provision contained herein.
13. Failure
or Indulgence Not Waiver. No failure or delay on the part of
a holder of Series D Preferred in the exercise of any power, right
or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any
other right, power or privilege.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
-9-
IN WITNESS WHEREOF, this Certificate of
Designation is executed on Company this 21st day of December,
2020.
|
|
VISTAGEN
THERAPEUTICS, INC.
By:
/s/ Shawn K.
Singh
Name: Shawn
K. Singh
Title: Chief
Executive Officer
|
|[Signature
Page to Certificate of Designation of Series D Preferred
Stock]
-10-
EXHIBIT
A
VISTAGEN
THERAPEUTICS, INC. CONVERSION NOTICE
Reference
is made to the Certificate of Designation of the Relative Rights
and Preferences of the Series D Convertible Preferred Stock of
VistaGen Therapeutics, Inc. (the “Certificate of
Designation”). In accordance with and pursuant to
the Certificate of Designation, the undersigned hereby elects to
convert the number of shares of Series D Preferred, par value
$0.001 per share (the “Preferred
Shares”), of VistaGen Therapeutics, Inc., a Nevada
corporation (the “Company”), indicated
below into shares of common stock, par value $0.001 per share (the
“Common
Stock”), of the Company, by tendering the
stock certificate(s) representing the share(s) of Preferred Shares
specified below as of the date specified below.
Date of
Conversion:
Number
of Preferred Shares to be converted:
Stock
certificate no(s).:
Number
of Preferred Shares to be converted:
Common
Stock has been sold:
YES NO
Please
confirm the following information:
Conversion
Rate:
Number
of shares of Common Stock to be issued:
Number
of shares of Common Stock beneficially owned or deemed beneficially
owned by the Holder on the Date of Conversion determined in
accordance with Section 16 of the Securities Exchange Act of 1934,
as amended:
Please
issue the Common Stock into which the Preferred Shares are being
converted and, if applicable, any check drawn on an account of the
Company in the following name and to the following
address:
Issue
to:
Facsimile
Number:
Authorization:
By: _____________
Title: _____________
Dated: _____________
-11-
Exhibit 5.1
December 22,
2020
VistaGen
Therapeutics, Inc.
343 Allerton
Avenue
South San
Francisco, California 94090
Ladies and
Gentlemen:
We
have acted as special Nevada counsel to VistaGen Therapeutics,
Inc., a Nevada corporation (the “Company”),
in connection with the offer and sale
by the Company of 63,000,000 shares of common stock of the Company,
$0.001 par value per share (the “Common
Shares”), and (ii)
2,000,000 shares of the Company’s Series D Convertible
Preferred Stock, $0.001 par value per share (the
“Preferred
Shares,” and together
with the Common Shares, the “Securities”).
The offer and sale of the Securities have been registered
pursuant to a
Registration Statement on Form S-3 (Registration No. 333-234025)
filed by the Company with the Securities and Exchange Commission
(the “Commission”),
under the Securities Act of 1933, as amended (the
“Securities
Act”) (as so filed and as
amended, the “Registration
Statement”),
including a base prospectus dated
September 30, 2019 (the “Base
Prospectus”), as
supplemented by a Final Prospectus Supplement dated December 18,
2020 relating to the Securities (the “Prospectus
Supplement).
The Company has entered into an
Underwriting Agreement dated as of December 18, 2020, among the
Company and Jefferies LLC and William Blair & Company, L.L.C.,
as representatives of the Underwriters listed on Schedule A thereto
(the “Underwriting
Agreement”), relating to
the sale of the Securities. Capitalized terms not defined herein
shall have such meaning as set forth in the Underwriting
Agreement.
In connection
with this opinion, we have examined originals or copies, certified,
or otherwise identified to our satisfaction,
of:
(i)
Certificate of
Designation designating 500,000 shares of the Company’s
authorized preferred stock, par value $0.001 per share, as Series A
Convertible Preferred Stock, as filed with the Nevada Secretary of
State on December 22, 2011;
(ii)
Certificate of
Designation designating 4,000,000 shares of the Company’s
authorized preferred stock, par value $0.001 per share, as Series B
10% Convertible Preferred Stock, as filed with the Nevada Secretary
of State on May 7, 2015;
(iii)
Certificate of
Designation designating 3,000,000 shares of the Company’s
authorized preferred stock, par value $0.001 per share, as Series C
Convertible Preferred Stock, as filed with the Nevada Secretary of
State on January 22, 2016;
VistaGen Therapeutics,
Inc.
December 22,
2020
Page 2
(iv)
the Restated
Articles of Incorporation of the Company, as filed with the Nevada
Secretary of State on August 11, 2016;
(v)
Certificate of
Amendment to Articles of Incorporation of the Company, as filed
with the Nevada Secretary of State on September 15,
2017;
(vi)
Certificate of
Amendment to Articles of Incorporation of the Company, as filed
with the Nevada Secretary of State on September 6,
2019;
(vii)
Certificate of Designation designating 2,000,000
shares of the Company’s authorized preferred stock, par value
$0.001 per share, as Series D Convertible Preferred Stock, as filed
with the Nevada Secretary of State on December 22, 2020 (the
“Series D Certificate
of Designation”);
(viii)
Second Amended
and Restated Bylaws of the Company, adopted August 16, 2016, and
certified to us to be currently in effect;
(ix)
a Certificate
of Good Standing for the Company issued by the Nevada Secretary of
State on December 22, 2020;
(x)
the
Registration Statement;
(xi)
the Base
Prospectus;
(xii)
the Prospectus
Supplement;
(xiii)
an
unfiled Certificate of Amendment to the Company’s Articles of
Incorporation reflecting the Articles Amendment (as that term is
defined below) (the “Certificate of
Amendment”);
(xiv)
Resolutions adopted by the Board of Directors of
the Company (the “Board of
Directors”) dated
September 5, 2019, authorizing and approving the Registration
Statement, the issuance and sale of the securities described in the
Registration Statement;
(xv)
Resolutions of the board of directors of the
Company adopted as of December 16, 2020, authorizing and approving
the Prospectus Supplement, the issuance and sale of the securities
described in the Prospectus Supplement, the amendment of the
Company’s Articles of Incorporation to increase the number of
authorized Common Shares from One Hundred Seventy Five Million
(175,000,000) shares to Three Hundred Twenty Five Million
(325,000,000) shares (the “Articles
Amendment”), recommending
the Articles Amendment to the Company’s stockholders for
approval, and designating the Pricing
Committee;
(xvi)
Resolutions of
the Board of Directors of the Company, dated December 17, 2020,
approving certain pricing terms of the Securities, authorizing the
reservation of Common Shares into which the Preferred Shares will
be converted upon filing of the Certificate of Amendment with the
Nevada Secretary of State reflecting the Articles Amendment, and
matters related thereto; and
(xvii)
a
certificate, dated December 22, 2020, from an Officer of the
Company as to certain factual matters, including, the incumbency of
the officers of the Company (the “Officer's
Certificate”).
In addition
to the foregoing, we have examined such other instruments,
documents and records that we deemed relevant and necessary for the
basis of our opinion hereinafter expressed. We have assumed
the authenticity of all records, documents and instruments
submitted to us as originals, the genuineness of all signatures,
the legal capacity of natural persons and the conformity to the
originals of all records, documents and instruments submitted to us
as copies.
VistaGen Therapeutics,
Inc.
December 22,
2020
Page 3
In rendering
the opinions contained herein, we have, with your permission, made
the following assumptions: (i) all documents submitted to or
reviewed by us, including all amendments and supplements thereto,
are accurate and complete and, if not originals, are true, correct,
and complete copies of the originals; (ii) the signatures on
each of such documents by the parties thereto are genuine;
(iii) each individual who signed such documents had the legal
capacity to do so; (iv) all persons who signed such documents
on behalf of a business entity were duly authorized to do so; (v)
all statements in certificates of public officials and officers of
the Company that we reviewed were and are accurate, and (vi) all
representations made by the Company as to matters of fact in the
documents that we reviewed were and are accurate. We have assumed
that there are no amendments, modifications, or supplements to such
documents other than those amendments, modifications, and
supplements that are known to us.
This
opinion is limited to the Nevada Revised Statutes, and we
disclaim any opinion as to the laws of any other jurisdiction.
We further disclaim any opinion as to any other statute,
rule, regulation, ordinance, order or other promulgation of any
other jurisdiction or any regional or local governmental body or as
to any related judicial or administrative
opinion.
Based upon
the foregoing and our examination of such questions of law as we
have deemed necessary or appropriate for the purpose of this
opinion, it is our opinion that
1.
The
Securities have been duly authorized by all necessary corporate
action of the Company, and upon receipt of consideration therefor,
the Common Shares and the Preferred Shares will be validly issued,
fully paid and nonassessable.
2.
Upon
receipt by the Company of the requisite stockholder approval of the
Articles Amendment, which, with your consent, we have assumed the
Company will have taken all required corporate action necessary to
obtain, and the filing of the Certificate of Amendment with the
Nevada Secretary of State, the Common Shares initially issuable
upon conversion of the Preferred Shares (the
“Conversion
Shares”) will be duly
authorized by all necessary corporate action of the Company and
reserved for issuance upon conversion of the Preferred Shares and
would be validly issued, fully paid and nonassessable,
assuming the issuance of the
Conversion Shares upon the conversion of the Preferred Shares in
accordance with the terms of the Series D Certificate of
Designation on the date upon which the Certificate of Amendment is
filed with the Nevada Secretary of State. In rendering the
foregoing opinion, we have assumed that the Company will comply
with all applicable notice requirements regarding uncertificated
shares required by Nevada law.
This
opinion is rendered to you in connection with the Registration
Statement and is not to be relied upon for any other purpose. We
disclaim any obligation to advise you of any change of law that
occurs, or any facts of which we may become aware, after the date
of this opinion.
This opinion
is based upon our knowledge of the law and facts relevant to the
transactions herein referenced as of the date hereof. We assume no
duty to update or supplement this opinion to reflect any facts or
circumstances that may hereafter come to our attention or to
reflect any changes in any law that may hereafter occur or become
effective.
VistaGen Therapeutics,
Inc.
December 22,
2020
Page 4
We
hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In
giving this consent, we do not thereby admit that we are included
in the category of persons whose consent is required under
Section 7 of the Securities Act or the rules and regulations
of the Securities and Exchange
Commission.
Very truly
yours,
WOODBURN AND
WEDGE
By:
/s/
Shawn G. Pearson
Shawn G.
Pearson
Exhibit
99.1
December 22,
2020
VistaGen
Therapeutics Announces Closing of $100 Million Underwritten Public
Offering
SOUTH SAN
FRANCISCO, Calif., Dec. 22, 2020 (GLOBE NEWSWIRE) --
VistaGen Therapeutics,
Inc. (NASDAQ: VTGN) (“VistaGen”), a biopharmaceutical
company committed to developing a new generation of medicines with
potential to go beyond the current standard of care for anxiety,
depression and other central nervous system (CNS) disorders, today
announced the closing of its $100 million underwritten public
offering consisting of 63,000,000 shares of its common stock at an
offering price of $0.92 per share, par value $0.001 per share (the
“Common Stock”), and 2,000,000 shares of its Series D
convertible preferred stock (“Series D Preferred
Stock”) at a public offering price of $21.16 per share. All
of the securities in the offering were sold by
VistaGen.
Lead investors that participated in
the offering include Acuta Capital, New Enterprise Associates
(NEA), OrbiMed and Venrock Healthcare Capital Partners, among
others.
Each share of the Series D
Preferred Stock is convertible into 23 shares of Common Stock at
any time at the option of the holder, provided, that no such
conversion will be permitted until VistaGen’s stockholders
approve an amendment to its articles of incorporation increasing
the number of authorized shares of Common Stock in an amount
sufficient to permit the conversion in full of the Series D
Preferred Stock.
VistaGen intends to use the net
proceeds from the offering for research, development and
manufacturing and regulatory expenses associated with continuing
development of PH94B, PH10, AV-101, and potential drug candidates
to expand its CNS pipeline and for other working capital and
general corporate purposes.
Jefferies LLC and William Blair
& Company, L.L.C. acted as joint book-running managers for the
offering and Maxim Group LLC acted as a financial
advisor.
The public offering was made
pursuant to a shelf registration statement on Form S-3 (File No.
333-234025), previously filed with the Securities and Exchange
Commission (the SEC) and declared effective on October 7, 2019. A
final prospectus supplement and accompanying prospectus, and an
issuer free writing prospectus, each of which form a part of the
registration statement, were filed by VistaGen with the Securities
and Exchange Commission (“SEC”). All offers of
securities were made by means of the final prospectus supplement
and accompanying prospectus, and the issuer free writing
prospectus. The final prospectus supplement and accompanying
prospectus, and the issuer free writing prospectus related to the
offering are available on the SEC's website at www.sec.gov.
Copies of the final prospectus
supplement and the accompanying prospectus, and the issuer free
writing prospectus for the offering may also be obtained by
contacting: Jefferies LLC by mail at Attention: Equity Syndicate
Prospectus Department, 520 Madison Avenue, 2nd Floor, New York, NY,
10022 or by telephone at +1-877-547-6340, or by email at
prospectus_department@jefferies.com
or William Blair & Company, L.L.C., Attention: Prospectus
Department, 150 North Riverside Plaza, Chicago, IL 60606 or by
email at prospectus@williamblair.com
or by telephone at +1-800-621-0687.
This press release does not
constitute an offer to sell or the solicitation of an offer to buy,
nor shall there be any sale of these securities in any state or
jurisdiction in which such offer, solicitation or sale would be
unlawful prior to the registration or qualification under the
securities laws of any such state or
jurisdiction.
About
VistaGen
VistaGen Therapeutics, Inc. is a
biopharmaceutical company committed to developing and
commercializing innovative medicines with potential to go beyond
the current standard of care for anxiety, depression and other CNS
disorders. Each of VistaGen’s three drug candidates has a
differentiated potential mechanism of action, has been
well-tolerated in all clinical studies to date and has therapeutic
potential in multiple CNS markets.
Forward-Looking
Statements
Certain of the statements made in this press
release are forward-looking. Actual results or developments may
differ materially from those projected or implied in these
forward-looking statements. Factors that may cause such a
difference include, without limitation, risks and uncertainties
related to uncertainties regarding the impact of the COVID-19
pandemic, market and other conditions, and the impact of general
economic, industry or political conditions in the United States or
internationally. You should not place undue reliance on these
forward-looking statements, which apply only as of the date of this
press release. Other risks and uncertainties include, but are not
limited to, issues related to: adverse healthcare reforms and
changes of laws and regulations; manufacturing and marketing risks,
including risks related to the COVID-19 pandemic, which may
include, but are not limited to, unavailability of or delays in
delivery of raw materials for manufacture of its CNS drug
candidates and difficulty in conducting clinical trials; inadequate
and/or untimely supply of one or more of its CNS drug candidates to
meet demand; entry of competitive products; and other technical and
unexpected hurdles in the development, manufacture and
commercialization of its CNS drug candidates, as well as those
risks more fully discussed in the section entitled "Risk Factors"
in our most recent Annual Report on Form 10-K for the year ended
March 31, 2020, and in our most recent Quarterly Report on Form
10-Q for the quarter and six months ended September 30, 2020, as
well as discussions of potential risks, uncertainties, and other
important factors in our other filings with the SEC. Our SEC
filings are available on the SEC’s website at www.sec.gov. In
addition, any forward-looking statements represent our views only
as of the issuance of this release and should not be relied upon as
representing our views as of any subsequent date. We explicitly
disclaim any obligation to update any forward-looking
statements.
Company
Contact
Mark A.
McPartland
VistaGen
Therapeutics Inc.
Phone:
+1 (650) 577-3600
Email:
IR@vistagen.com
Source:
VistaGen Therapeutics, Inc.
Exhibit
99.2
December 18,
2020
VistaGen
Therapeutics Announces Pricing of Underwritten Public
Offering
SOUTH
SAN FRANCISCO, Calif., Dec. 18, 2020 (GLOBE NEWSWIRE) --
VistaGen Therapeutics, Inc.
(NASDAQ: VTGN), a biopharmaceutical company committed to developing
a new generation of medicines with potential to go beyond the
current standard of care for anxiety, depression and other central
nervous system (CNS) disorders, today announced the pricing of its
underwritten public offering consisting of 63,000,000 shares of its
common stock at an offering price of $0.92 per share, par value
$0.001 per share (the “Common Stock”), and 2,000,000
shares of its Series D convertible preferred stock (“Series D
Preferred Stock”) at a public offering price of $21.16 per
share.
Gross
proceeds from the offering, before underwriting discounts and
commissions and estimated offering expenses, are expected to be
$100 million. All of the securities in the offering are being sold
by VistaGen.
Each
share of the Series D Preferred Stock will be initially convertible
into 23 shares of Common Stock at any time at the option of the
holder, provided that no such conversion will be permitted until
VistaGen’s stockholders approve an amendment to its articles
of incorporation increasing the number of authorized shares of
Common Stock in an amount sufficient to permit the conversion in
full of the Series D Preferred Stock.
The
offering is expected to close on or about December 22, 2020,
subject to customary closing conditions.
VistaGen intends to
use the net proceeds from the offering for research, development
and manufacturing and regulatory expenses associated with
continuing development of PH94B, PH10, AV-101, and potential drug
candidates to expand its CNS pipeline and for other working capital
and general corporate purposes.
Jefferies LLC and
William Blair & Company, L.L.C. are acting as joint
book-running managers for the offering.
The
public offering is being made pursuant to a shelf registration
statement on Form S-3 (File No. 333-234025), previously filed with
the Securities and Exchange Commission (the SEC) and declared
effective on October 7, 2019. The securities may be offered only by
means of a prospectus supplement and accompanying prospectus that
form a part of the registration statement. In connection with the
offering, a preliminary prospectus supplement, including the
accompanying prospectus, describing the terms of the offering was
filed with the SEC on December 17, 2020. A final prospectus
supplement relating to and describing the terms of the offering
will be filed with the SEC and will be available on the SEC's
website at www.sec.gov.
When available, copies of the final prospectus supplement and the
accompanying prospectus relating to the offering may also be
obtained by contacting Jefferies LLC by mail at Attention: Equity
Syndicate Prospectus Department, 520 Madison Avenue, 2nd Floor, New
York, NY, 10022 or by telephone at +1 877-547-6340, or
by email at Prospectus_Department@Jefferies.com
or William Blair & Company, L.L.C., Attention: Prospectus
Department, 150 North Riverside Plaza, Chicago, IL 60606 or by
email at prospectus@williamblair.com
or by telephone at +1-800-621-0687.
This
press release does not constitute an offer to sell or the
solicitation of an offer to buy, nor shall there be any sale of
these securities in any state or jurisdiction in which such offer,
solicitation or sale would be unlawful prior to the registration or
qualification under the securities laws of any such state or
jurisdiction.
About
VistaGen
VistaGen
Therapeutics, Inc. is a biopharmaceutical company committed to
developing and commercializing innovative medicines with potential
to go beyond the current standard of care for anxiety, depression
and other CNS disorders. Each of VistaGen’s three drug
candidates has a differentiated potential mechanism of action, has
been well-tolerated in all clinical studies to date and has
therapeutic potential in multiple CNS markets.
Forward-Looking
Statements
Certain
of the statements made in this press release are forward-looking,
such as those, among others, relating to our expectations regarding
the completion of the proposed public offering. Actual results or
developments may differ materially from those projected or implied
in these forward-looking statements. Factors that may cause such a
difference include, without limitation, risks and uncertainties
related to whether or not we will be able to raise capital through
the sale of shares of Common Stock and preferred stock, the final
terms of the proposed public offering, market and other conditions,
the satisfaction of customary closing conditions related to the
proposed public offering and the impact of the COVID-19 pandemic,
general economic, industry or political conditions in the United
States or internationally. There can be no assurance that we will
be able to complete the proposed public offering on the anticipated
terms, or at all. We will need to raise additional capital to fund
our operations and may be unable to raise capital when needed,
which would force us to delay, reduce or eliminate our product
development programs or commercialization efforts. You should not
place undue reliance on these forward-looking statements, which
apply only as of the date of this press release. Other risks and
uncertainties include, but are not limited to, issues related to:
adverse healthcare reforms and changes of laws and regulations;
manufacturing and marketing risks, including risks related to the
COVID-19 pandemic, which may include, but are not limited to,
unavailability of or delays in delivery of raw materials for
manufacture of its CNS drug candidates and difficulty in conducting
clinical trials; inadequate and/or untimely supply of one or more
of its CNS drug candidates to meet demand; entry of competitive
products; and other technical and unexpected hurdles in the
development, manufacture and commercialization of its CNS drug
candidates, as well as those risks more fully discussed in the
section entitled "Risk Factors" in our most recent Annual Report on
Form 10-K for the year ended March 31, 2020, and in our most recent
Quarterly Report on Form 10-Q for the quarter and six months ended
September 30, 2020, as well as discussions of potential risks,
uncertainties, and other important factors in our other filings
with the SEC. Our SEC filings are available on the SEC’s
website at www.sec.gov. In addition, any forward-looking statements
represent our views only as of the issuance of this release and
should not be relied upon as representing our views as of any
subsequent date. We explicitly disclaim any obligation to update
any forward-looking statements.
Company
Contact
Mark A.
McPartland
VistaGen
Therapeutics Inc.
Phone:
+1 (650) 577-3600
Email:
IR@vistagen.com
Source:
VistaGen Therapeutics, Inc.