As filed with the Securities and Exchange Commission on March 15,
2021
Registration No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
VistaGen Therapeutics, Inc.
(Exact Name Of Registrant As Specified In Its Charter)
Nevada
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20-5093315
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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VistaGen Therapeutics, Inc.
343 Allerton Avenue
South San Francisco, California 94080
(650) 577-3600
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Shawn K. Singh, J.D.
Chief Executive Officer
VistaGen Therapeutics, Inc.
343 Allerton Avenue
South San Francisco, California 94080
(650) 577-3600
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(Address, including zip code, and telephone number,
including area code of Registrant’s principal executive
offices)
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(Name, address, including zip code, and telephone
number,
including area code, of agent for service)
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From time to time after the effective date of this Registration
Statement
(Approximate date of commencement of proposed sale to
public)
Copies of all communications, including all communications sent to
the agent for service, should be sent to:
Shawn K. Singh, J.D.
Chief Executive Officer
VistaGen Therapeutics, Inc.
343 Allerton Avenue
South San Francisco, California 94080
(650) 577-3600
Daniel W. Rumsey, Esq.
Jessica R. Sudweeks, Esq.
Disclosure Law Group,
a Professional Corporation
655 West Broadway, Suite 870
San Diego, California 92101
Tel: (619) 272-7050
Fax: (619) 330-2101
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415
of the Securities Act of 1933, other than securities offered only
in connection with dividend or interest reinvestment plans, check
the following box. [X]
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [
]
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to Rule
462(e) under the Securities Act, please check the following
box. [ ]
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, please check the
following box. [ ]
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company or an emerging growth company. See the
definitions of “large accelerated filer,”
“accelerated filer,” “smaller reporting
company” and “emerging growth company” in
Rule 12b-2 of the Exchange Act.
Large accelerated filer [ ]
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Accelerated filer [ ]
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Non-accelerated filer [ ]
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Smaller reporting company [X]
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Emerging growth company [ ]
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided Section 7(a)(2)(B) of the Securities Act.
[ ]
CALCULATION OF REGISTRATION FEE
Title of each class of securities to
be registered
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Amount to be Registered(1)(2)
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Proposed Maximum Offering Price Per
Unit(1)(3)
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Proposed Maximum Aggregate Offering Price(1)(3)
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Amount of Registration Fee(4)
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Common
Stock, par value $0.001 per share
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—
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—
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—
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$—
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Preferred
Stock, par value $0.001 per share
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—
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—
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—
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—
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Warrants
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—
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—
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—
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—
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Units
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—
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—
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—
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—
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Total
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$250,000,000
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$250,000,000
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$27,275.00
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(1)
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This
registration statement covers the registration of such
indeterminate number of shares of common stock, such indeterminate
number of shares of preferred stock; such indeterminate number of
warrants to purchase shares of common stock, shares of preferred
stock and /or units; and such indeterminate number of units as may
be sold by the registrant from time to time, which together shall
have an aggregate initial offering price not to exceed
$250,000,000. Any securities
registered hereunder may be sold separately, together or as units
with any other securities registered. Any unit sold hereunder will
represent an interest in two or more other securities, which may or
may not be separable from one another. The securities registered
hereunder also include such indeterminate number of shares of
common stock and preferred stock, and such indeterminate number of
warrants as may be issued upon the conversion of, or exchange for,
preferred stock; upon the exercise of warrants; or pursuant to the
customary anti-dilution provisions of any such securities (e.g.,
stock-splits, stock dividends and the like). Separate consideration
may or may not be received for securities that are issuable upon
conversion of, or in exchange for, or upon exercise of, convertible
or exchangeable securities. In addition, pursuant to Rule 416 under
the Securities Act of 1933, as amended (the Securities Act), the securities being
registered hereunder include such indeterminate number of shares of
common stock or preferred stock as may be issuable with respect to
the shares being registered hereunder as a result of stock splits,
stock dividends, or similar transactions effected without the
receipt of consideration which result in an increase in the number
of our outstanding shares of common stock or preferred
stock.
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(2)
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The
common stock to be issued pursuant to this registration statement
may include the issuance of (i) up to 1,388,931 shares of
common stock (the Series A1
Warrant Shares) issuable pursuant to the potential future
exercise of currently outstanding Series A1 warrants (the
Series A1 Warrants) with an
exercise price of $1.82 per share and a term expiring on or about
March 7, 2023, the date which is five years from the date of their
issuance and (ii) up to 46,000,000 shares of common stock issuable
upon conversion of 2,000,000 shares of the registrant’s
Series D Convertible Preferred Stock (Series D Preferred) issued and
outstanding as of March 10, 2021 (the Series D Conversion Shares). The Series
A1 Warrants and the Series A1 Warrant Shares were previously
registered on the registrant’s registration statements on
Form S-3 (File Nos. 333-215671 and 333-234025),
and the Series D Conversion Shares were previously registered on
the registrant’s registration statement on Form S-3 (File No.
333-234025) (collectively, the Prior Registration Statements), which
were originally filed with the Securities and Exchange Commission
(the SEC) on January 23,
2017 and September 30, 2019, respectively, and declared effective
by the SEC on July 27, 2017 and October 8, 2019, respectively.
Pursuant to Rule 415(a)(6) and Rule 429 under the Securities Act,
the offering of the Series A1 Warrant Shares and Series D
Conversion Shares will be registered pursuant to this registration
statement.
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(3)
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The
proposed maximum aggregate offering price per class of security
will be determined, from time to time, by the registrant in
connection with, and at the time of, the issuance of the securities
registered pursuant to this registration statement and is not
specified as to each class of security pursuant to General
Instruction II.D. of Form S-3. The proposed maximum
initial offering prices per unit will be determined, from time to
time, by the registrant in connection with, and at the time of, the
issuance of the securities.
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(4)
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Pursuant
to Rule 457(o) under the Securities Act, the registration fee is
calculated based on the proposed maximum offering price of the
securities being registered. Pursuant to Rule 415(a)(6) under the
Securities Act, this registration statement covers a total of
$32,675,400 of securities that were previously registered pursuant
to the Prior Registration Statements, but which remain unsold as of
the date hereof (the Unsold
Securities). The Unsold Securities are being carried forward
to and registered on this registration statement. In connection
with the registration of the Unsold Securities on the Prior
Registration Statements, the registrant previously paid a
registration fee of $3,960.26. Pursuant to Rule 415(a)(6) under the
Securities Act, (i) the registration fee applicable to the Unsold
Securities is being carried forward to this registration statement
and will continue to be applied to the Unsold Securities, and (ii)
the offering of the Unsold Securities registered on the Prior
Registration Statements will be deemed terminated as of the date of
effectiveness of this registration statement. Accordingly, the
Registrant is paying a registration fee of $23,314.74 with the
filing of this registration statement. If the registrant sells any
of the Unsold Securities pursuant to the Prior Registration
Statements after the date of the initial filing, and prior to the
date of effectiveness, of this registration statement, the
registrant will file a pre-effective amendment to this registration
statement, which will reduce the number of Unsold Securities
included on this registration statement.
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The registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities
Act of 1933 or until the registration statement shall become
effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may
determine.
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The information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities
and it is not soliciting an offer to buy these securities in any
jurisdiction where the offer or sale is not permitted.
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PRELIMINARY
PROSPECTUS
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SUBJECT TO COMPLETION
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DATED MARCH 15, 2021
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$250,000,000
COMMON STOCK
PREFERRED STOCK
WARRANTS
UNITS
From time to time, we may offer and sell, in one or more offerings,
up to approximately $250 million of any combination of the
securities described in this prospectus. We may also offer
securities as may be issuable upon conversion, repurchase, exchange
or exercise of any securities registered hereunder, including
applicable anti-dilution provisions, if any. Any warrants sold
hereunder may be exercisable for shares of our common stock, shares
of our preferred stock and/or units. Any units sold hereunder will
represent an interest in two or more other securities, which may or
may not be separable from one another. The shares of our
common stock that may become issuable from time to time upon the
exercise of our Series A1 Warrants and upon conversion of shares of
Series D Preferred (each as defined herein) are also being offered
pursuant to this prospectus.
This prospectus provides a general description of the securities we
may offer from time to time. Each time we offer securities, we will
provide specific terms of the securities offered in a supplement to
this prospectus. We may also authorize one or more free writing
prospectuses to be provided to you in connection with an offering.
The prospectus supplement and any related free writing prospectus
may also add, update or change information contained in this
prospectus. You should carefully read this prospectus, the
applicable prospectus supplement and any related free writing
prospectus, as well as any documents incorporated by reference,
before you invest in any of the securities being
offered.
Our
common stock is listed on the Nasdaq Capital Market under the
symbol “VTGN.” On March
12, 2021, the closing price of our common stock on the
Nasdaq Capital Market was $2.35
per share.
We may offer and sell our securities to or through one or more
agents, underwriters, dealers or other third parties or directly to
one or more purchasers on a continuous or delayed basis. If agents,
underwriters or dealers are used to sell our securities, we will
name them and describe their compensation in a prospectus
supplement. The price to the public of our securities and the net
proceeds we expect to receive from the sale of such securities will
also be set forth in a prospectus supplement. For additional
information on the methods of sale, you should refer to the section
entitled “Plan of
Distribution” in this
prospectus.
As of March 10, 2021, the aggregate market value of our outstanding
common stock held by non-affiliates was approximately $308,181,800,
which was calculated in accordance with General Instruction I.B.1
of Form S-3, based on 143,340,410 shares of outstanding common
stock held by non-affiliates, at a price per share of $2.15, the
closing sale price of our common stock reported on the Nasdaq
Capital Market on March 10, 2021.
Our business and investing in our
securities involve significant risks. You should review carefully
the risks and uncertainties referenced under the heading
“Risk
Factors” on page 7
of this prospectus, as well as those
contained in the applicable prospectus supplement and any related
free writing prospectus, and in the other documents that are
incorporated by reference into this prospectus or the applicable
prospectus supplement.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is ,
2021
VISTAGEN THERAPEUTICS, INC.
TABLE OF CONTENTS
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PAGE
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About This Prospectus
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This prospectus is part of a registration statement filed with the
Securities and Exchange Commission (the SEC), using a “shelf” registration
process. Under this shelf registration process, we may sell
the securities described in this prospectus in one or more
offerings. This prospectus provides you with a general
description of the securities which may be offered from
time-to-time. Each time we offer securities for sale, we will
provide a prospectus supplement that contains information about the
specific terms of that offering. Any prospectus supplement may also
add or update information contained in this prospectus. You
should read both this prospectus and any prospectus supplement
together with additional information described below under
“Where You Can Find More
Information” and
“Incorporation of Certain
Information by Reference.”
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
You should rely only on the information contained or incorporated
by reference in this prospectus, and in any prospectus
supplement. We have not authorized any other person to provide
you with different information. If anyone provides you with
different or inconsistent information, you should not rely on
it. We are not making offers to sell or solicitations to buy
the securities described in this prospectus in any jurisdiction in
which an offer or solicitation is not authorized, or in which the
person making that offer or solicitation is not qualified to do so
or to anyone to whom it is unlawful to make an offer or
solicitation. You should not assume that the information in
this prospectus or any prospectus supplement, as well as the
information we file or previously filed with the SEC that we
incorporate by reference in this prospectus or any prospectus
supplement, is accurate as of any date other than its respective
date. Our business, financial condition, results of operations
and prospects may have changed since those dates.
This prospectus contains summaries of certain provisions contained
in some of the documents described herein, but reference is made to
the actual documents for complete information. All of the summaries
are qualified in their entirety by the actual documents. Copies of
some of the documents referred to herein have been filed, will be
filed or will be incorporated by reference as exhibits to the
registration statement of which this prospectus is a part, and you
may obtain copies of those documents as described below under the
heading “Where You Can Find More
Information.”
This summary highlights information contained elsewhere in this
prospectus. This summary does not contain all the information you
should consider before buying our securities. You should read the
following summary together with the more detailed information
appearing in this prospectus and any accompanying prospectus
supplement, including the section titled “Risk Factors”
on page 7, before deciding whether to purchase our
securities.
In this prospectus, unless otherwise stated or the context
otherwise requires, references to “VistaGen,”
“Company,” “we,” “us,”
“our,” refer to VistaGen Therapeutics,
Inc.
Overview
We are a clinical-stage biopharmaceutical
company committed to developing and commercializing
differentiated new generation medications that go beyond the
current standard of care for anxiety, depression and other central
nervous system (CNS) disorders. Our pipeline includes three CNS
product candidates, each with a differentiated potential mechanism
of action, favorable safety results observed in all clinical
studies to date, and therapeutic potential in multiple CNS markets.
We are currently preparing PH94B for a pivotal Phase 3 clinical
study as a potential acute treatment of anxiety in adults with
social anxiety disorder (SAD), as well as additional nonclinical and
clinical studies required to support our U.S. New Drug Application
(NDA) for that indication should our Phase 3 clinical
program be successful. In addition, we are planning
for several small exploratory Phase 2A studies of PH94B in
adult patients, including in adjustment disorder, pre-procedural
anxiety, postpartum anxiety and post-traumatic stress disorder.
PH10 has completed a successful exploratory Phase 2A study for the
treatment of major depressive disorder (MDD). We are currently preparing for planned Phase 2B
clinical development of PH10 as a potential stand-alone treatment
for MDD. In several clinical studies, AV-101 was shown to be orally
bioavailable and was well-tolerated. Based on successful
preclinical studies involving AV-101 alone and in combination with
probenecid, we are currently planning to pursue Phase 1B, and, if
successful, subsequent Phase 2A clinical development of AV-101, in
combination with probenecid, for treatment of CNS indications
involving the N-methyl-D-aspartate receptor (NMDAR). Additionally, our wholly owned subsidiary,
VistaGen Therapeutics, Inc., d/b/a VistaStem, a California
corporation (VistaStem), has pluripotent stem cell technology focused on
assessing and developing small molecule new chemical entities
(NCEs) for our CNS pipeline, or for out-licensing, by
utilizing CardioSafe
3D, VistaStem’s
customized human heart cell-based cardiac bioassay system. Our goal
is to become a biopharmaceutical company that develops and
commercializes innovative CNS therapies for multiple large and
growing neuropsychiatry and neurology markets worldwide where we
believe current treatments are inadequate to meet the needs of
millions of patients.
Our Product Candidates
PH94B Nasal Spray for Anxiety Disorders
PH94B is an odorless synthetic rapid-onset pherine nasal spray with
therapeutic potential in a wide range of neuropsychiatric
indications involving anxiety or phobia. Conveniently
self-administered in microgram-level doses without requiring
systemic uptake and distribution to achieve its anti-anxiety
effects, we are initially developing PH94B as a potential as a
fast-acting, non-sedating, non-addictive new generation acute
treatment of anxiety in adults with SAD. SAD affects approximately
20 million Americans and, according to the National Institutes of
Health (NIH), is the third most common psychiatric condition
after depression and substance abuse. A person with SAD feels
symptoms of anxiety or fear in certain social situations, such as
meeting new people, dating, being on a job interview, answering a
question in a classroom or conference room, or having to talk to a
cashier in a store. Doing everyday things in front of other people
- such as eating, drinking or using a public restroom – may
also cause anxiety or fear. A person with SAD may also feel
symptoms of fear and anxiety in performance situations, such as
giving a lecture, a speech or a presentation to classmates at
school, or colleagues at work, as well as playing in a sports game,
or dancing or playing a musical instrument on stage. A person
with SAD is afraid that he or she will be humiliated, judged, or
rejected. The fear and anxiety that people with SAD have in
social and performance situations is so strong that they feel they
are beyond their ability to control. As a result, SAD gets in the
way of going to work, attending school, meeting with others
socially or doing everyday things in situations with potential for
interpersonal interaction. People with SAD may worry about these
and other things for weeks before they happen. Sometimes, they end
up avoiding places or events where they think they might have to do
something that will embarrass or humiliate them or cause them to be
judged. Without treatment, SAD can last for many years or a
lifetime and prevent a person from reaching his or her full
potential.
Three oral antidepressants are approved by the U.S Food and Drug
Administration (FDA) specifically for treatment of SAD. These
FDA-approved antidepressants have slow onset of therapeutic effect
(often taking many weeks to months), require chronic administration
and often cause significant side effects that begin soon after
administration. We believe their slow onset of effect, required
chronic administration and significant potential side effects and
safety concerns may make these FDA-approved oral antidepressants
inadequate or inappropriate treatment alternatives for many
individuals affected by SAD. Our PH94B is fundamentally different
from the oral antidepressants approved by the FDA for treatment of
SAD, as well as all current anti-anxiety drugs, such as
benzodiazepines prescribed off-label for treatment of
SAD.
We believe PH94B-induced anxiolytic effects appear consistent with
the modulation of neural circuits involved in the pathogenesis of
SAD. Neurons in the limbic amygdala regulate fear and anxiety by
modulating inhibitory neurotransmission in other brain regions. A
microgram level intranasal dose of PH94B (3.2 micrograms) engages
specific nasal chemosensory neurons which activate olfactory bulb
neurons (OBNs) on the base of the brain. OBNs send neural
connections to neurons in the central limbic amygdala, the brain
center where fear and anxiety are regulated, resulting in
downstream signaling and rapid-onset anti-anxiety effects.
Importantly, PH94B does not require systemic uptake and
distribution to produce its rapid-onset anti-anxiety effects. In
all clinical studies to date, PH94B has not shown psychological
side effects (such as dissociation, euphoria or hallucinations),
sedation or other side effects and safety concerns that may be
caused by the current oral antidepressants approved by the FDA for
treatment of SAD, or by benzodiazepines and beta blockers, which,
although not FDA-approved to treat SAD, are often prescribed by
psychiatrists and physicians for treatment of SAD on an off-label
basis. While oral antidepressants, benzodiazepines and beta
blockers require systemic administration to achieve anxiolytic
effects, due to its unique pharmacology, PH94B does not require
systemic uptake and distribution to achieve its rapid-onset
anti-anxiety effects.
In a peer-reviewed, published double-blind, placebo-controlled
Phase 2 clinical trial, PH94B was statistically significantly more
effective than placebo in reducing both public-speaking anxiety
(p=0.002) and social interaction anxiety (p=0.009) in
laboratory-simulated challenges of SAD patients, within 15 minutes
of their self-administration of a non-systemic 1.6 microgram dose
of PH94B. Based on the results of
this Phase
2 study and our recent
consensus with the FDA that our initial pivotal
Phase 3 study of PH94B may be conducted in a manner substantially
similar to the public speaking anxiety component of such Phase 2
study, we are preparing
for Phase 3 clinical development of PH94B as an acute treatment of
anxiety in adults with SAD. Our goal is to develop and
commercialize PH94B as the first FDA-approved, rapid-onset,
non-sedating, non-systemic, non-additive acute treatment of anxiety
in adults with SAD. We believe PH94B has potential for use on
demand to treat symptoms of anxiety which result from often
predictable anxiety-provoking stressors, much like a rescue inhaler
is used on demand, before an asthma attack or a migraine drug is
used before onset of a migraine episode. We also believe PH94B has
potential to treat other anxiety-related neuropsychiatric
indications, such as adjustment disorder, postpartum anxiety,
preprocedural anxiety (e.g., pre-MRI), panic disorder,
post-traumatic stress disorder and specific social phobias. In
addition to preparing for Phase 3 development of PH94B as a
potential acute treatment of anxiety for adults with SAD, we are
planning for a series of small exploratory Phase 2A clinical
studies of PH94B for treatment of adjustment disorder, postpartum
anxiety, post-traumatic stress disorder, and pre-procedural
anxiety. The FDA has granted
Fast Track designation for development of PH94B for acute treatment
of anxiety in adults with SAD, which we believe is the FDA’s
first such designation for a drug candidate for
SAD.
PH10 Nasal Spray for Depression Disorders and Suicidal
Ideation
PH10 is an odorless synthetic pherine nasal spray with potential to
be a fast-acting treatment for multiple neuropsychiatric
indications involving depression and suicidal ideation.
Conveniently self-administered in microgram-level doses without
systemic exposure, we are develop PH10 as a potential rapid-onset,
stand-alone treatment of MDD.
Depression is a serious medical illness and a global public health
concern that can occur at any time over a person's life. While most
people will experience depressed mood at some point during their
lifetime, MDD is different. MDD is the chronic, pervasive feeling
of utter unhappiness and suffering, which impairs daily
functioning. Symptoms of MDD include diminished pleasure or loss of
interest in activities, changes in appetite that result in weight
changes, insomnia or oversleeping, psychomotor agitation, loss of
energy or increased fatigue, feelings of worthlessness or
inappropriate guilt, difficulty thinking, concentrating or making
decisions, and thoughts of death or suicide and attempts at
suicide.
The most commonly-prescribed current oral antidepressants are known
as selective serotonin reuptake inhibitors (SSRIs), and serotonin-norepinephrine reuptake
inhibitors (SNRIs). SSRIs are intended to increase the amount of
available serotonin, a neurotransmitter closely linked to mood and
anxiety disorders, by inhibiting the reuptake of serotonin in the
brain, preventing nerve cells from reabsorbing serotonin and
reducing the levels in the brain. This means more serotonin remains
available, which can sometimes improve symptoms and make patients
more responsive to psychotherapy and other treatments. SNRIs
similarly are intended to inhibit the reuptake of serotonin and
another neurotransmitter, norepinephrine, and increase the
available amounts of each in the brain. Like serotonin,
norepinephrine is a neurotransmitter linked to
mood.
While these medications can certainly be effective in the right
context, it can be a challenge to find the right drug or
combination of drugs for a particular patient. About
two-thirds of patients with MDD do not respond to their initial
treatment with such medications. In addition, it can take many
weeks or even months to identify whether an antidepressant is
working, all the while leaving a patient to cope with their
depression symptoms and the potentially debilitating side effects
of the antidepressants they are prescribed.
Due to their long-onset pharmacology, limited efficacy and many
side effects and safety concerns, current FDA-approved oral
antidepressants available in the multi-billion-dollar global
depression market are often inadequate to satisfy the underserved
medical needs of millions suffering from the debilitating effects
of depression. Inadequate response to current medications is among
the key reasons MDD is one of the leading public health concerns in
the United States, creating a significant unmet medical need for
new agents with fundamentally different mechanisms of action and
side effect and safety profiles.
PH10 is a new generation antidepressant with a mechanism of action
that is fundamentally different from all current FDA-approved
antidepressants. After self-administration, a non-systemic
microgram-level dose of PH10 binds to nasal chemosensory receptors
that, in turn, activate key neural circuits in the brain that can
lead to rapid-onset antidepressant effects, but without the
psychological side effects (such as dissociation and
hallucinations) or safety concerns that maybe be caused by
rapid-onset ketamine-based therapy, including both intravenous
ketamine and esketamine nasal spray, or the side effects and safety
concerns of current long-onset oral antidepressants. In a small
exploratory Phase 2A clinical trial (n=30), PH10, self-administered
at a dose of 6.4 micrograms, was well-tolerated and demonstrated
statistically significant (p=0.022) rapid-onset antidepressant
effects, which were sustained over an 8-week period, as measured by
the Hamilton Depression Rating Scale (HAM-D), without side effects or safety concerns that
may be caused by ketamine-based therapy and oral antidepressants.
Based on positive results from this exploratory Phase 2A study, we
are preparing for Phase 2B clinical development of PH10 in MDD,
which preparation includes completing two additional preclinical
toxicology studies required by the FDA to support our new
Investigational New Drug (IND) application for proposed Phase 2B clinical
development of PH10 in the U.S. With its favorable safety profile
observed during clinical development to date, we believe PH10 has
potential for multiple applications in global depression markets,
including first as a differentiated stand-alone therapy for
MDD.
AV-101, an Oral NMDA Receptor Antagonist for Depression and
Neurological Disorders
AV-101 (4-Cl-KYN) targets the NMDAR (N-methyl-D-aspartate
receptor), an ionotropic glutamate receptor in the brain. Abnormal
NMDAR function is associated with numerous CNS diseases and
disorders. AV-101 is an oral prodrug of 7-chloro-kynurenic acid
(7-Cl-KYNA), which is a potent and selective full antagonist of the
glycine co-agonist site of the NMDAR that inhibits the function of
the NMDAR. Unlike ketamine and many other NMDAR antagonists,
7-Cl-KYNA is not an ion channel blocker. At doses administered in
all studies to date, AV-101 has exhibited no dissociative or
hallucinogenic psychological side effects or safety concerns. With
its exceptionally few side effects and favorable safety profile
observed in all studies to date, AV-101, in combination with the
FDA-approved drug, probenecid, has potential to be a new,
differentiated oral treatment for multiple large-market CNS
indications where we believe current treatments are inadequate to
meet high underserved patient needs. The FDA has granted Fast Track
designation for development of AV-101 as both a potential
adjunctive treatment for MDD and as a non-opioid treatment for
neuropathic pain.
In late-2019, we completed a Phase 2 clinical trial of AV-101 as a
potential adjunctive treatment, together with a standard
FDA-approved oral SSRI or SNRI, in MDD patients who had an
inadequate response to a stable dose of their oral antidepressant
(the Elevate
Study). Topline results of
the Elevate Study (n=199) indicated that the AV-101 treatment arm
did not differentiate from placebo on the primary endpoint (change
in the Montgomery-Åsberg Depression Rating Scale
(MADRS-10) total score compared to baseline), potentially
due to sub-therapeutic levels of 7-Cl-KYNA in the brain. As in
prior clinical studies, AV-101 was well tolerated, with no
psychotomimetic side effects or drug-related serious adverse
events.
Our recent discoveries from successful preclinical studies of
AV-101 in combination with probenecid, a safe and well-known oral
anion transport inhibitor approved by the FDA for treatment of
gout, suggest that there is a substantially increased brain
concentration of AV-101 and its active metabolite, 7-Cl-KYNA, when
AV-101 is given together with probenecid. These surprising effects
were first revealed as to AV-101 and 7-Cl-KYNA in our recent
preclinical studies, although the effects are consistent with
well-documented clinical studies of probenecid’s ability to
increase the therapeutic benefits of several classes of
FDA-approved drugs that are unrelated to AV-101 and 7-Cl-KYNA,
including certain antibacterial, anticancer and antiviral
drugs. When probenecid was administered in combination with AV-101
in animal models, substantially increased brain concentrations of
AV-101 and 7-Cl-KYNA were discovered. We
also recently identified that some of the same kidney transporters
that reduce drug concentrations in the blood, by excretion in the
urine, are also found in the blood brain barrier and function to
reduce 7-Cl-KYNA levels in the brain by pumping it out of the brain
and back into the blood. In our recent preclinical studies with
AV-101 and probenecid, we discovered that blocking those
transporters in the blood brain barrier with probenecid resulted,
as noted above, in a substantially increased brain concentration of
7-Cl-KYNA. This 7-Cl-KYNA efflux-blocking effect of probenecid,
with the resulting increased brain levels and duration of
7-Cl-KYNA, suggests the potential impact of AV-101 with probenecid
could result in far more profound therapeutic benefits for patients
with MDD and other NMDAR-focused CNS disorders than demonstrated in
the Elevate Study.
In addition, a Phase 1B target engagement study completed after the
Elevate Study by the Baylor College of Medicine
(Baylor)
with financial support from the U.S. Department of Veterans Affairs
(VA), involved 10 healthy volunteer U.S. military
Veterans who received single doses of AV-101 (720 mg or 1440 mg) or
placebo, in a double-blind, randomized, cross-over controlled
trial. The primary goal of the study was to identify and define a
dose-response relationship between AV-101 and multiple
electrophysiological (EEG) biomarkers related to NMDAR function, as well as
blood biomarkers associated with suicidality
(the Baylor
Study). We believe the findings
from the Baylor Study suggest that, in healthy Veterans, the higher
dose of AV-101 (1440 mg) was associated with dose-related increase
in the 40 Hz Auditory Steady State Response (ASSR), a robust measure of the integrity of inhibitory
interneuron synchronization that is associated with NMDAR
inhibition. Findings from the Baylor Study were presented at the
58th Annual Meeting of the American College of
Neuropsychopharmacology (ACNP) in Orlando, Florida in December
2019.
The Baylor Study and the results of our recent preclinical studies
involving AV-101 in combination with probenecid suggest that it may
be possible to increase therapeutic concentrations and duration of
7-Cl-KYNA in the brain, and thus increase NMDAR antagonism in MDD
patients and individuals suffering from other CNS indications
involving abnormal function of the NMDAR, when AV-101 and
probenecid are combined. We are currently preparing for Phase 1B
clinical development of AV-101 in combination with
probenecid.
VistaStem Therapeutics – Stem Cell Technology for Drug
Rescue, Cell Therapy and Regenerative Medicine
In addition to our current CNS drug candidates, our wholly-owned
subsidiary, VistaStem Therapeutics (VistaStem) has developed stem cell technology-based,
pipeline-enabling capabilities involving application of human
pluripotent stem cell (hPSC) technologies. VistaStem’s customized
cardiac bioassay system, CardioSafe 3D, has been developed to discover and
develop small molecule New Chemical Entities (NCEs) for our CNS pipeline or out-licensing. In
addition, VistaStem’s stem cell technologies involving
hPSC-derived blood, cartilage, heart and liver cells have multiple
potential applications in the cell therapy (CT) and regenerative medicine (RM) fields.
To advance potential CT and RM applications of VistaStem’s
hPSC technologies related to heart cells, we licensed to BlueRock
Therapeutics LP, a next generation CT/RM company formed jointly by
Bayer AG and Versant Ventures and acquired by Bayer AG in 2019,
rights to develop and commercialize certain proprietary
technologies relating to the production of cardiac stem cells for
the treatment of heart disease. As a result of its acquisition of
BlueRock Therapeutics in 2019, Bayer AG now holds such rights
(the Bayer
Agreement). VistaStem
retains all rights to such technologies to discover and develop
small molecule NCEs and certain other applications not licensed
pursuant to the Bayer Agreement. In a manner similar to the Bayer
Agreement, we may pursue additional VistaStem collaborations
involving rights to develop and commercialize its hPSC technologies
for production of blood, cartilage, and/or liver cells for CT and
RM applications, including, among other indications, treatment of
arthritis, cancer and liver disease.
Corporate Information
VistaGen Therapeutics, Inc., a Nevada corporation, is the parent of
VistaGen Therapeutics, Inc. (d/b/a VistaStem Therapeutics, Inc.), a
wholly owned California corporation founded in 1998. Our principal
executive offices are located at 343 Allerton Avenue, South San
Francisco, California 94080, and our telephone number is (650)
577-3600. Our website address is www.vistagen.com.
The information contained on our website is not part of this
prospectus supplement or the accompanying prospectus. We have
included our website address as a factual reference and do not
intend it to be an active link to our website.
Securities Offerings under Prior Registration
Statements
Series A1 Warrants
On August 31, 2017, we entered into an underwriting agreement with
Oppenheimer & Co. Inc., relating to the issuance and sale
(the September 2017
Public Offering) of 1,371,430 shares of our common stock and
warrants to purchase an aggregate total of 1,892,572 shares of our
common stock, consisting of Series A1 Warrants to purchase up to
1,388,931 shares of common stock and Series A2 Warrants to purchase
up to 503,641 shares of common stock (the Series A1 Warrants and
Series A2 Warrants are collectively referred herein as the
Warrants). Each share of common stock was sold together
with 1.0128 Series A1 Warrants, each whole Series A1 Warrant
to purchase one share of common stock, and 0.3672 of a Series A2
Warrant, each whole Series A2 Warrant to purchase one share of
common stock, at a public offering price of $1.75 per share and
related Warrants.
Each Series A1 Warrant became exercisable six months following the
date of issuance, while the Series A2 Warrants were immediately
exercisable. The Warrants have an exercise price of $1.82 per whole
share, and expire five years from the date first exercisable. In
December 2017 and January 2018, all of the Series A2 Warrants were
exercised at the reset exercise price resulting from a subsequent
public offering of shares of our common stock and warrants
completed in December 2017, from which we received nominal cash
proceeds. As of the date of this prospectus, all Series A1 Warrants
offered and sold in the September 2017 Public Offering remain
outstanding.
Series D Convertible Preferred Stock
On
December 17, 2020, in connection with the December 2020 Public
Offering, as defined below, our Board of Directors (our
Board) authorized the
creation of a series of up to 2.0 million shares of Series D
Convertible Preferred Stock, par value $0.001 (Series D Preferred), which became
effective with the filing of a Certificate of Designation of the
Relative Rights and Preferences of the Series D Convertible
Preferred Stock with the Secretary of State of the State of Nevada
on December 21, 2020.
On December 18, 2020, we entered into an underwriting
agreement (the December 2020
Underwriting Agreement) pursuant to which we sold, in an
underwritten public offering (the December 2020 Public Offering), 63.0
million shares of our common stock at a public offering price of
$0.92 per share and 2.0 million shares of Series D Preferred at a
public offering price of $21.16 per share, resulting in gross
proceeds to us of $100 million. Net proceeds to us from the
securities sold in the December 2020 Public Offering, after
deducting underwriting discounts and commissions and offering
expenses payable by us, were approximately $93.6
million.
Each
whole share of Series D Preferred is initially convertible into 23
shares of our common stock, or an aggregate of 46.0 million shares
of our common stock (the Series D
Conversion Shares), at any time at the option of the
holder; provided, that
the Series D Preferred was not convertible until the effective date
of the Charter Amendment (defined below); and provided further, that the holders of
Series D Preferred will be prohibited, subject to certain
exceptions, from converting such shares of Series D Preferred into
shares of our 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 our
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’ prior notice to us.
Charter Amendment
On
March 5, 2021, at a virtual special meeting of stockholders of the
Company, stockholders approved an amendment to our Restated
Articles of Incorporation, as amended (our Charter), to increase the number of
shares of common stock authorized for potential future issuance
from 175 million to 325 million shares (the Charter Amendment). We filed a
certificate of amendment with the Secretary of State of the State
of Nevada to effect the Charter Amendment on March 5, 2021.
Investing in our securities involves a high degree of risk. Before
deciding whether to purchase any of our securities, you should
carefully consider the risks and uncertainties described under
“Risk
Factors”
in our Annual Report on Form 10-K
for the fiscal year ended March 31, 2020, our Quarterly Reports on
Form 10-Q for the periods ended June 30, 2020, September 30, 2020
and December 31, 2020, and our other filings with the SEC, all of
which are incorporated by reference herein. If any of these risks
actually occur, our business, financial condition and results of
operations could be materially and adversely affected and we may
not be able to achieve our goals, the value of our securities could
decline and you could lose some or all of your investment.
Additional risks not presently known to us or that we currently
deem immaterial may also impair our business operations. If any of
these risks occur, the trading price of our common stock could
decline materially and you could lose all or part of your
investment.
CAUTIONARY NOTES REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus, any prospectus supplement and the documents
incorporated by reference herein contain forward-looking statements
that involve substantial risks and uncertainties. All statements,
other than statements of historical facts, contained in this
prospectus, any prospectus supplement and the documents
incorporated by reference herein, including statements
regarding our strategy,
future operations, future financial position, future revenue,
projected costs, prospects, plans, objectives of management and
expected market growth, are forward-looking statements. These
statements involve known and unknown risks, uncertainties and other
important factors that may cause our actual results, performance or
achievements to be materially different from any future results,
performance or achievements expressed or implied by the
forward-looking statements.
The words “anticipate,” “believe,”
“estimate,” “expect,” “intend,”
“may,” “plan,” “predict,”
“project,” “target,”
“potential,” “will,” “would,”
“could,” “should,” “continue,”
and similar expressions are intended to identify forward-looking
statements, although not all forward-looking statements contain
these identifying words. These forward-looking statements include,
among other things, statements about:
●
the impact of the
COVID-19 pandemic, efforts to contain the pandemic and resulting
economic downturn on our operations and financial
condition;
●
the availability of
capital to satisfy our working capital requirements;
●
the accuracy of our
estimates regarding expenses, future revenues and capital
requirements;
●
our plans to
develop and commercialize our any of our current product
candidates;
●
our ability to
initiate and complete our clinical trials and to advance our
product candidates into additional clinical trials, including
pivotal clinical trials, and successfully complete such clinical
trials;
●
regulatory
developments in the United States and foreign
countries;
●
the performance of
our third-party contractors involved with the manufacture and
production of our drug candidates for nonclinical and clinical
development activities, contract research organizations and other
third-party nonclinical and clinical development collaborators and
regulatory service providers;
●
our ability to
obtain and maintain intellectual property protection for our core
assets;
●
the size of the
potential markets for our product candidates and our ability to
serve those markets;
●
the rate and degree
of market acceptance of our product candidates for any indication
once approved;
●
the success of
competing products and product candidates in development by others
that are or become available for the indications that we are
pursuing;
●
the loss of key
scientific, clinical and nonclinical development, and/or management
personnel, internally or from one of our third-party
collaborators;
●
our ability to
comply with Nasdaq continued listing standards;
●
our ability to
continue as a going concern; and
●
other risks and
uncertainties, including those described under Item 1A,
“Risk Factors,”
in our Annual Report on Form 10-K for the fiscal year ended March
31, 2020, and those described under Part II, Item 1A,
“Risk Factors,”
in our Quarterly Reports on Form 10-Q for the quarters ended June
30, 2020, September 30, 2020 and December 31, 2020, which risk
factors are incorporated herein by reference.
These forward-looking statements are only predictions and we may
not actually achieve the plans, intentions or expectations
disclosed in our forward-looking statements, so you should not
place undue reliance on our forward-looking statements. Actual
results or events could differ materially from the plans,
intentions and expectations disclosed in the forward-looking
statements we make. We have based these forward-looking statements
largely on our current expectations and projections about future
events and trends that we believe may affect our business,
financial condition and operating results. We have included
important factors in the cautionary statements included in this
prospectus, particularly in the “Risk
Factors” sections in
this prospectus, any accompanying prospectus supplement and the
documents incorporated by reference herein, that we believe could
cause actual future results or events to differ materially from the
forward-looking statements that we make. Our forward-looking statements do not
reflect the potential impact of any future acquisitions, mergers,
dispositions, joint ventures or investments we may
make.
You should read this prospectus, any prospectus supplement and the
documents incorporated by reference herein and the documents that
we have filed as exhibits to the registration statement of which
this prospectus is a part completely and with the understanding
that our actual future results may be materially different from
what we expect. We qualify all of the forward-looking statements in
this prospectus and the documents incorporated by reference herein
by these cautionary statements. Except as required by law, we
undertake no obligation to publicly update any forward-looking
statements, whether as a result of new information, future events
or otherwise.
Unless otherwise provided in the applicable prospectus supplement,
we intend to use the net proceeds from the sale of
the securities under this prospectus primarily for
research and development expenses associated with continuing
development of PH94B, PH10, AV-101,
VistaStem’s drug rescue activities focused on potential drug
candidates to expand our CNS pipeline or out-licensing
opportunities, proof of principle studies with respect to
potential CT and RM applications of VistaStem’s stem cell
technology involving blood, cartilage and liver cells, and for
other working capital and capital expenditures. We may also use the
net proceeds from the sale of the securities under this
prospectus to in-license, acquire or invest in complementary
businesses, technologies, products or assets. However, we have
no current commitments or obligations to do so.
Pending other uses, we intend to invest our proceeds from the
offering in short-term investments or hold them as cash. We cannot
predict whether the proceeds invested will yield a favorable
return. Our management will have broad discretion in the use of the
net proceeds from this offering, and investors will be relying on
the judgment of our management regarding the application of the net
proceeds.
DESCRIPTION
OF OUR CAPITAL
STOCK
General
Our
authorized capital stock consists of 325.0 million shares of common
stock, $0.001 par value per share, and 10.0 million shares of preferred
stock, $0.001 par value per share. The following is a description
of our common stock and certain provisions of our Charter, and our
amended and restated bylaws, and certain provisions of Nevada
law.
As of
March 10, 2021, there were
issued and outstanding, or reserved for issuance:
●
143,762,996 shares of common stock held by approximately
25,000 stockholders of
record;
●
750,000 shares of common stock reserved for issuance upon
conversion of 500,000 shares
our Series A Preferred held by one institutional investor and one
accredited individual investor;
●
1,131,669 shares of common stock reserved for issuance upon
conversion of 1,131,669 shares
of our Series B Preferred held by one institutional
investor;
●
2,318,012 shares of common stock reserved for issuance upon
conversion of 2,318,012 shares
of our Series C Preferred held by one institutional
investor;
●
46,000,000 shares of common stock reserved for issuance upon
conversion of 2,000,000 shares
of our Series D Preferred held by 23 institutional
investors;
●
19,437,532 shares of common stock that have been reserved
for issuance upon exercise of outstanding warrants, with a weighted
average exercise price of $1.77
per share, including up to 1,371,430 shares of common stock
issuable upon exercise of the Series A1 Warrants;
●
7,643,088 shares of common stock reserved for issuance upon
exercise of outstanding stock options under our Amended and
Restated 2016 Stock Incentive Plan, with a weighted average
exercise price of $1.41 per share;
●
6,700,000 shares of common stock reserved for issuance upon
exercise of outstanding stock options under our 2019 Omnibus Equity
Incentive Plan, with a weighted average exercise price of $1.22 per
share, and
●
2,168,158 shares of common stock reserved for future
issuance in connection with future grants under our 2019 Omnibus
Equity Incentive Plan.
We may
elect or be required to amend our Charter to increase the number of
shares of common stock authorized for issuance prior to completing
sales of shares of our common stock, or securities convertible
and/or exchangeable into shares of our common stock described in
this prospectus and/or any accompanying prospectus
supplement.
Common Stock
This section describes the general terms of our common stock that
we may offer from time to time. For more detailed information, a
holder of our common stock should refer to our Charter and our
Bylaws, copies of which are filed with the SEC as exhibits to the
registration statement of which this prospectus is a
part.
Except
as otherwise expressly provided in our Charter, or as required by
applicable law, all shares of our common stock have the same rights
and privileges and rank equally, share ratably and are identical in
all respects as to all matters, including, without limitation,
those described below. All outstanding shares of common stock are
fully paid and nonassessable.
Voting Rights
Each
holder of our common stock is entitled to cast one vote for each
share of common stock held on all matters submitted to a vote of
stockholders. Cumulative voting for election of directors is not
allowed under our Charter, which means that a plurality of the
shares voted can elect all of the directors then outstanding for
election. Except as otherwise provided under Nevada law or our
Charter and Bylaws, on matters other than election of directors,
action on a matter is approved if the votes cast favoring the
action exceed the votes cast opposing the action.
Dividend Rights
The
holders of outstanding shares of our common stock are entitled to
receive dividends out of funds legally available, if our Board, in
its discretion, determines to issue a dividend, and only at the
times and in the amounts that our Board may determine. Our Board is
not obligated to declare a dividend. We have not paid any dividends
in the past and we do not intend to pay dividends in the
foreseeable future.
Liquidation Rights
Upon
our liquidation, dissolution or winding-up, the holders of our
common stock will be entitled to share equally, identically and
ratably in all assets remaining, subject to the prior satisfaction
of all outstanding debt and liabilities and the preferential rights
and payment of liquidation preferences, if any, on any outstanding
shares of preferred stock.
No Preemptive or Similar Rights
Our
common stock is not subject to conversion, redemption, sinking fund
or similar provisions.
Transfer Agent and Registrar
The
transfer agent and registrar for our common stock is Computershare
Trust Company, N.A.
Preferred Stock
This section describes the general terms and provisions of our
outstanding shares of preferred stock, as well as preferred stock
that we may offer from time to time. The applicable prospectus
supplement will describe the specific terms of the shares of
preferred stock offered through that prospectus supplement, which
may differ from the terms we describe below. We will file a
copy of the certificate of designation that contains the terms of
each new series of preferred stock with the SEC each time we issue
a new series of preferred stock, and these certificates of
designation will be incorporated by reference into the registration
statement of which this prospectus is a part. Each certificate of
designation will establish the number of shares included in a
designated series and fix the designation, powers, privileges,
preferences and rights of the shares of each series as well as any
applicable qualifications, limitations or restrictions. A holder of
our preferred stock should refer to the applicable certificate of
designation, our Charter, and the applicable prospectus supplement
(and any related free writing prospectus that we may authorize to
be provided to you) for more specific information.
We are
authorized, subject to limitations prescribed by Nevada law, to
issue up to 10.0 million shares of preferred stock in one or more
series, to establish from time to time the number of shares to be
included in each series and to fix the designation, powers,
preferences and rights of the shares of each series and any of its
qualifications, limitations or restrictions. Our Board may
authorize the issuance of preferred stock with voting or conversion
rights that could adversely affect the voting power or other rights
of the holders of the common stock. The issuance of preferred
stock, while providing flexibility in connection with possible
acquisitions and other corporate purposes, could, among other
things, have the effect of delaying, deferring or preventing a
change in control of the Company and may adversely affect the
market price of our common stock and the voting and other rights of
the holders of our common stock.
Outstanding Series of Preferred Stock
Currently,
there are four series of our preferred stock outstanding- Series A
Convertible Preferred Stock, Series B 10% Convertible Preferred
Stock, Series C Convertible Preferred Stock and Series D
Convertible Preferred Stock. The rights and preferences associated
with each series are summarized below.
Series A Preferred
General
In December 2011, our Board authorized the creation of a series of
up to 500,000 shares of Series A Preferred, par value $0.001
(Series A
Preferred). Each
restricted share of Series A Preferred is currently convertible at
the option of the holder into one and one-half restricted shares of
our common stock. The Series A Preferred ranks prior to
the common stock for purposes of liquidation
preference.
Conversion and Rank
At
March 10, 2021, there were
500,000 shares of Series A Preferred outstanding, which shares are
currently subject to beneficial ownership blockers and are
exchangeable at the option of the holders into an aggregate of
750,000 shares of our common stock. The Series A Preferred ranks
prior to our common stock for purposes of liquidation
preference.
Conversion Restriction
At no
time may a holder of shares of Series A Preferred convert shares of
the Series A Preferred if the number of shares of common stock to
be issued pursuant to such conversion would result in such holder
beneficially owning (as determined in accordance with Section 13(d)
of the Securities and Exchange Act of 1934, as amended (the
Exchange Act) and the rules
thereunder) more than 9.99% of all of the common stock outstanding
at such time; provided, however, that this limitation may be
waived upon sixty-one (61) days’ notice to us.
Dividend Rights
The
Series A Preferred has no separate dividend rights. However,
whenever our Board declares a dividend on our common stock, each
holder of record of a share of Series A Preferred, or any fraction
of a share of Series A Preferred, on the date set by the Board to
determine the owners of the common stock of record entitled to
receive such dividend (Record
Date) shall be entitled to receive out of any assets at the
time legally available therefor, 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 A Preferred could be exchanged on the Record
Date.
Voting Rights
The
Series A Preferred has no voting rights, except with respect to
transactions upon which the Series A Preferred shall be entitled to
vote separately as a class. The common stock into which the Series
A Preferred is exchangeable shall, upon issuance, have all of the
same voting rights as other issued and outstanding shares of our
common stock.
Liquidation Rights
In the
event of the liquidation, dissolution or winding up of our affairs,
after payment or provision for payment of our debts and other
liabilities, the holders of Series A Preferred then outstanding
shall be entitled to receive, out of our assets, if any, an amount
per share of Series A Preferred calculated by taking the total
amount available for distribution to holders of all of our
outstanding common stock before deduction of any preference
payments for the Series A Preferred, divided by the total of (x),
all of the then outstanding shares of our common stock, plus (y)
all of the shares of our common stock into which all of the
outstanding shares of the Series A Preferred can be exchanged
before any payment shall be made or any assets distributed to the
holders of the common stock or any other junior stock.
Series B Preferred
General
In July 2014, our Board authorized the creation of a class of
Series B Preferred Stock, par value $0.001 (Series B
Preferred). In May 2015, we
filed a Certificate of Designation of the Relative Rights and
Preferences of the Series B 10% Preferred Stock of VistaGen
Therapeutics, Inc. (Certificate of
Designation) with the Nevada
Secretary of State to designate 4.0 million shares of our
authorized preferred stock as Series B
Preferred.
Conversion
Each
share of Series B Preferred is convertible, at the option of the
holder (Voluntary
Conversion), into one (1) share of the Company’s
common stock. All outstanding shares of Series B Preferred are also
automatically convertible into common stock (Automatic Conversion) upon the closing
or effective date of any of the following transactions or events:
(i) a strategic transaction involving AV-101 with an initial up
front cash payment to the Company of at least $10.0 million; (ii) a
registered public offering of Common Stock with aggregate gross
proceeds to the Company of at least $10.0 million; or (iii) for 20
consecutive trading days the Company’s Common Stock trades at
least 20,000 shares per day with a daily closing price of at least
$12.00 per share; provided, however, that Automatic Conversion and
Voluntary Conversion are subject to certain beneficial ownership
blockers set forth in Section 6 of the Certificate of
Designation.
Following
the completion of our $10.9 million underwritten public offering of
our common stock in May 2016, which public offering occurred
concurrently with and facilitated our listing on the Nasdaq Capital
Market, approximately 2.4 million shares of Series B Preferred were
converted automatically into approximately 2.4 million shares of
our common stock pursuant to the Automatic Conversion provision. At
March 10, 2021, there were
1,131,669 shares of Series B Preferred outstanding, which shares
are currently subject to beneficial ownership blockers and are
exchangeable at the option of the respective holders by Voluntary
Conversion, or pursuant to Automatic Conversion to the extent not
otherwise subject to beneficial ownership blockers, into an
aggregate of 1,131,669 shares of our common stock.
Conversion Restriction
At no
time may a holder of shares of Series B Preferred convert shares of
the Series B Preferred, either by Voluntary Conversion or Automatic
Conversion, if the number of shares of common stock to be issued
pursuant to such conversion would result in such holder
beneficially owning (as determined in accordance with Section 13(d)
of the Exchange Act and the rules thereunder) more than 9.99% of
all of the common stock outstanding at such time; provided, however, that this limitation may be
waived upon sixty-one (61) days’ notice to us.
Rank
The
Series B Preferred ranks prior to our common stock,
and pari
passu with the Series A Preferred for purposes of
liquidation preference.
Dividend Rights
Prior to either a Voluntary Conversion or Automatic Conversion,
shares of Series B Preferred will accrue dividends, payable only in
unregistered common stock, at a rate of 10% per annum
(the Accrued
Dividend) on the
stated value of the Series B Preferred ($7.00 per share). The
Accrued Dividend will be payable on the date of either a Voluntary
Conversion or Automatic Conversion solely in that number of shares
of Common Stock equal to the Accrued Dividend.
Voting Rights
The
Series B Preferred has no voting rights, except with respect to
transactions upon which the Series B Preferred shall be entitled to
vote separately as a class. The common stock into which the Series
B Preferred shall be exchangeable shall, upon issuance, have all of
the same voting rights as other issued and outstanding shares of
our common stock.
Liquidation Rights
Upon
any liquidation, dissolution, or winding-up of the Company, whether
voluntary or involuntary, the holders of Series B Preferred are
entitled to receive out of the Company’s assets, whether
capital or surplus, an amount equal to the stated value of the
Series B Preferred ($7.00 per share), plus any accrued and unpaid
dividends thereon, before any distribution or payment shall be made
to the holders of any junior securities, including holders of our
common stock. If the assets of the Company are insufficient to pay,
in full, such amounts, then the entire assets to be distributed to
the holders of the Series B Preferred shall be ratably distributed
among the holders in accordance with the respective amounts that
would be payable on such shares if all amounts payable thereon were
paid in full.
Series C Preferred
General
In
January 2016, our Board authorized the creation of and,
accordingly, we filed a Certificate of
Designation of the Relative Rights and Preferences of the Series C
Convertible Preferred Stock of VistaGen Therapeutics, Inc.
(the Series
C Preferred Certificate of
Designation) with the Nevada
Secretary of State to designate 3.0 million shares of our preferred
stock, par value $0.001 per share, as Series C Convertible
Preferred Stock (Series C
Preferred).
Conversion and Rank
At
March 10, 2021, there were
2,318,012 shares of Series C Preferred outstanding, which shares of
Series C Preferred are currently subject to beneficial ownership
blockers and are exchangeable at the option of the holder into
2,318,012 shares of our common stock. The Series C Preferred ranks
prior to our common stock for purposes of liquidation preference,
and pari
passu with the Series A Preferred and Series B
Preferred.
Conversion Restriction
At no
time may a holder of shares of Series C Preferred convert shares of
the Series C Preferred if the number of shares of common stock to
be issued pursuant to such conversion would result in such holder
beneficially owning (as determined in accordance with Section 13(d)
of the Exchange Act and the rules thereunder) more than 9.99% of
all of the common stock outstanding at such time; provided, however, that this limitation may be
waived upon sixty-one (61) days’ notice to us.
Dividend Rights
The
Series C Preferred has no separate dividend rights. However,
whenever our Board declares a dividend on our common stock, each
holder of record of a share of Series C Preferred, or any fraction
of a share of Series C Preferred, on the Record Date set by the
Board to determine the owners of the common stock of record
entitled to receive such dividend shall be entitled to receive out
of any assets at the time legally available therefor, 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 C Preferred could be
exchanged on the Record Date.
Voting Rights
The
Series C Preferred has no voting rights, except with respect to
transactions upon which the Series C Preferred shall be entitled to
vote separately as a class. The common stock into which the Series
C Preferred is exchangeable shall, upon issuance, have all of the
same voting rights as other issued and outstanding shares of our
common stock.
Liquidation Rights
In the
event of the liquidation, dissolution or winding up of our affairs,
after payment or provision for payment of our debts and other
liabilities, the holders of Series C Preferred then outstanding
shall be entitled to receive, out of our assets, if any, an amount
per share of Series C Preferred calculated by taking the total
amount available for distribution to holders of all of our
outstanding common stock before deduction of any preference
payments for the Series C Preferred, divided by the total of (x),
all of the then outstanding shares of our common stock, plus (y)
all of the shares of our common stock into which all of the
outstanding shares of the Series C Preferred can be exchanged
before any payment shall be made or any assets distributed to the
holders of the common stock or any other junior stock.
Series D Preferred
In connection with the December 2020 Public Offering, on December
21, 2020, we filed the Certificate of Designation of the
Relative Rights and Preferences of the Series D Convertible
Preferred Stock (the
Series
D COD) 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 Series D COD became effective upon the filing with
the Secretary of State of the State of Nevada. The Series D COD designates 2,000,000 shares as
Series D Convertible Preferred Stock, par value $0.001 per share
(Series D
Preferred).
Rank
The
shares of Series D Preferred rank: (i) senior to all of our common
stock until the date of the Charter Amendment; (ii) senior to any
class or series of our capital stock hereafter created specifically
ranking by its terms junior to the Series D Preferred; (iii) on
parity to all shares of our Series A Preferred, Series B Preferred
and Series C Preferred; (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; and (v)
junior to any class or series of the Company’s capital stock
thereafter created specifically ranking by its terms senior to the
Series D Preferred, 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 is initially convertible into 23
shares of common stock at any time at the option of the holder (the
Series D Conversion
Shares); provided,
that the Series D Preferred will not be convertible prior to the
date on which the Company receives stockholder approval and upon
effectiveness of the Charter Amendment; and provided further, that the holders of
Series D Preferred will be prohibited, subject to certain
exceptions, from converting such shares of Series D Preferred 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
us.
As
noted above, our stockholders approved the Charter Amendment at a
virtual special meeting of stockholders on March 5, 2021, and the
Charter Amendment was filed with the State of Nevada and became
effective on the same date.
Liquidation Rights
Prior
to approval and effectiveness of the Charter Amendment, each holder
of shares of Series D Preferred was entitled to receive, in
preference to any distributions of any of our assets or surplus
funds to the holders of common stock and any of our securities that
by their terms are junior to the Series D Preferred and
pari passu with any
distribution to the holders of any securities having (by their
terms) parity with the Series D Preferred, 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
any class of common stock or any of our securities that by their
terms are junior to the Series D Preferred. If, upon any such
liquidation, dissolution or winding up of the Company, our assets
shall be insufficient to pay the holders of shares of the Series D
Preferred the amount required under the preceding sentence, then
all of our remaining assets shall be distributed ratably to holders
of the shares of the Series D Preferred and any securities having
(by their terms) parity with the Series D Preferred. After such
preferential payment, each holder of shares of Series D Preferred
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, including the
Series A Preferred, the Series B Preferred Stock and the Series C
Preferred, in the remaining distribution of our net assets
available for distribution.
Following
the approval and effectiveness of the Charter Amendment on March 5,
2021, the Series D Preferred now has no liquidation
preference.
Dividend Rights
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.
Voting Rights
Following
the approval and effectiveness of the Charter Amendment on March 5,
2021, the affirmative vote of holders of a majority of the
then-outstanding shares of Series D Preferred will be required
before we can: (a) amend, alter, modify or repeal (whether by
merger, consolidation or otherwise) the Series D COD, our Charter
and our Bylaws in any manner that adversely affects the rights,
preferences, privileges or the restrictions provided for the
benefit of, the Series D Preferred; (b) 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 (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.
Redemption
We are
not obligated to redeem or repurchase any shares of Series D
Preferred. Shares of Series D Preferred will not otherwise be
entitled to any redemption rights or mandatory sinking fund or
analogous fund provisions.
Registration of Series D Conversion Shares
The Series D Conversion Shares were previously registered pursuant
to a prospectus supplement filed with the SEC on December
18, 2020
pursuant to Rule 424(b)(5) under the Securities Act of 1933, as
amended (the Securities
Act), which supplemented the Company’s
effective shelf registration
statement on Form S-3 (File No.
333-234025), originally filed with the SEC on September 30,
2019 and declared effective on October 8, 2019. Pursuant to Rule
415(a)(6) and Rule 429 under the Securities Act, the offering of
the Series D Conversion Shares will be registered pursuant to this
registration statement.
Shares of Preferred Stock Issuable Pursuant to this
Prospectus
We will
incorporate by reference as an exhibit to the registration
statement, which includes this prospectus, the form of any
certificate of designation that describes the terms of the series
of preferred stock we are offering. This description and the
applicable prospectus supplement will include:
●
the
title and stated value;
●
the
number of shares authorized;
●
the
liquidation preference per share;
●
the
dividend rate, period and payment date, and method of calculation
for dividends;
●
whether
dividends will be cumulative or non-cumulative and, if cumulative,
the date from which dividends will accumulate;
●
the
procedures for any auction and remarketing, if any;
●
the
provisions for a sinking fund, if any;
●
the
provisions for redemption or repurchase, if applicable, and any
restrictions on our ability to exercise such redemption and
repurchase rights;
●
any
listing of the preferred stock on any securities exchange or
market;
●
whether
the preferred stock will be convertible into our common stock, and,
if applicable, the conversion price, or how it will be calculated,
and the conversion period;
●
voting
rights, if any, of the preferred stock;
●
preemptive
rights, if any;
●
restrictions
on transfer, sale or other assignment, if any;
●
a
discussion of any material United States federal income tax
considerations applicable to the preferred stock;
●
the
relative ranking and preferences of the preferred stock as to
dividend rights and rights if we liquidate, dissolve or wind up our
affairs;
●
any
limitations on issuance of any class or series of preferred stock
ranking senior to or on a parity with the series of preferred stock
as to dividend rights and rights if we liquidate, dissolve or wind
up our affairs; and
●
any
other specific terms, preferences, rights or limitations of, or
restrictions on, the preferred stock.
When we
issue shares of preferred stock under this prospectus, the shares
will fully be paid and nonassessable and will not have, or be
subject to, any preemptive or similar rights.
DESCRIPTION OF
OUR WARRANTS
The following description, together with the additional information
we include in any applicable prospectus supplement or free writing
prospectus, summarizes the material terms and provisions of the
warrants that we may offer under this prospectus. Warrants may be
offered independently or together with common stock or preferred
stock offered by any prospectus supplement or free writing
prospectus, and may be attached to or separate from those
securities. While the terms we have summarized below will generally
apply to any future warrants we may offer under this prospectus, we
will describe the particular terms of any warrants that we may
offer in more detail in the applicable prospectus supplement or
free writing prospectus. The terms of any warrants we offer under a
prospectus supplement or free writing prospectus may differ from
the terms we describe below.
In the event that we issue warrants, we may issue the warrants
under a warrant agreement, which, if applicable, we will enter into
with a warrant agent to be selected by us. Forms of these warrant
agreements and forms of the warrant certificates representing the
warrants, and the complete warrant agreements and forms of warrant
certificates containing the terms of the warrants being offered,
will be filed as exhibits to the registration statement of which
this prospectus is a part or will be incorporated by reference from
reports that we file with the SEC. We use the term “warrant
agreement” to refer to any of these warrant agreements. We
use the term “warrant agent” to refer to the warrant
agent under any of these warrant agreements. The warrant agent will
act solely as an agent of ours in connection with the warrants and
will not act as an agent for the holders or beneficial owners of
the warrants.
The following summaries of material provisions of the warrants and
the warrant agreements are subject to, and qualified in their
entirety by reference to, all the provisions of the warrant
agreement applicable to a particular series of warrants. We urge
you to read the applicable prospectus supplement or free writing
prospectus related to the warrants that we sell under this
prospectus, as well as the complete warrant agreements that contain
the terms of the warrants.
General
We will describe in the applicable prospectus supplement or free
writing prospectus the terms relating to a series of warrants. If
warrants for the purchase of common stock or preferred stock are
offered, the prospectus supplement or free writing prospectus will
describe the following terms, to the extent
applicable:
●
the offering price and the aggregate number of warrants
offered;
●
the total number of shares that can be purchased if a holder of the
warrants exercises them and, in the case of warrants for preferred
stock, the designation, total number and terms of the series of
preferred stock that can be purchased upon exercise;
●
the designation and terms of any series of preferred stock with
which the warrants are being offered and the number of warrants
being offered with each share of common stock or preferred
stock;
●
the date on and after which the holder of the warrants can transfer
them separately from the related common stock;
●
the number of shares of common stock or preferred stock that can be
purchased if a holder exercises the warrant and the price at which
such common stock or preferred stock may be purchased upon
exercise, including, if applicable, any provisions for changes to
or adjustments in the exercise price and in the securities or other
property receivable upon exercise;
●
the terms of any rights to redeem or call, or accelerate the
expiration of, the warrants;
●
the date on which the right to exercise the warrants begins and the
date on which that right expires;
●
federal income tax consequences of holding or exercising the
warrants; and
●
any other specific terms, preferences, rights or limitations of, or
restrictions on, the warrants.
Exercise of Warrants
Each holder of a warrant will be entitled to purchase the number of
shares of common stock or preferred stock, as the case may be, at
the exercise price described in the applicable prospectus
supplement or free writing prospectus. After the close of business
on the day when the right to exercise terminates (or a later date
if we extend the time for exercise), unexercised warrants will
become void.
A holder of warrants may exercise them by following the general
procedure outlined below:
●
delivering to the warrant agent the payment required by the
applicable prospectus supplement or free writing prospectus to
purchase the underlying security;
●
properly completing and signing the reverse side of the warrant
certificate representing the warrants; and
●
delivering the warrant certificate representing the warrants to the
warrant agent within five business days of the warrant agent
receiving payment of the exercise price.
If a holder complies with the procedures described above, such
warrants will be considered to have been exercised when the warrant
agent receives payment of the exercise price, subject to the
transfer books for the securities issuable upon exercise of the
warrant not being closed on such date. After the holder has
completed those procedures and subject to the foregoing, we will,
as soon as practicable, issue and deliver to such holder the common
stock or preferred stock purchased upon exercise. If the holder
exercises fewer than all of the warrants represented by a warrant
certificate, a new warrant certificate will be issued to the holder
for the unexercised amount of warrants. Holders of warrants will be
required to pay any tax or governmental charge that may be imposed
in connection with transferring the underlying securities in
connection with the exercise of the warrants.
Amendments and Supplements to the Warrant Agreements
We may amend or supplement a warrant agreement without the consent
of the holders of the applicable warrants to cure ambiguities in
the warrant agreement, to cure or correct a defective provision in
the warrant agreement, or to provide for other matters under the
warrant agreement that we and the warrant agent deem necessary or
desirable, so long as, in each case, such amendments or supplements
do not materially adversely affect the interests of the holders of
the warrants.
Warrant Adjustments
Unless the applicable prospectus supplement or free writing
prospectus states otherwise, the exercise price of, and the number
of securities covered by, a common stock or a preferred stock
warrant will be adjusted proportionately if we subdivide or combine
our common stock or preferred stock, as applicable. In addition,
unless the prospectus supplement or free writing prospectus states
otherwise, if we, without receiving payment:
●
issue capital stock or other securities convertible into or
exchangeable for common stock or preferred stock, or any rights to
subscribe for, purchase or otherwise acquire any of the foregoing,
as a dividend or distribution to holders of our common stock or
preferred stock;
●
pay any cash to holders of our common stock or preferred stock
other than a cash dividend paid out of our current or retained
earnings or other than in accordance with the terms of the
preferred stock;
●
issue any evidence of our indebtedness or rights to subscribe for
or purchase our indebtedness to holders of our common stock or
preferred stock; or
●
issue common stock or preferred stock or additional stock or other
securities or property to holders of our common stock or preferred
stock by way of spinoff, split-up, reclassification, combination of
shares or similar corporate rearrangement,
then the holders of common stock or preferred stock warrants will
be entitled to receive upon exercise of the warrants, in addition
to the securities otherwise receivable upon exercise of the
warrants and without paying any additional consideration, the
amount of stock and other securities and property such holders
would have been entitled to receive had they held the common stock
or preferred stock, as applicable, issuable under the warrants on
the dates on which holders of those securities received or became
entitled to receive such additional stock and other securities and
property.
Except as stated above or as otherwise set forth in the applicable
prospectus supplement or free writing prospectus, the exercise
price and number of securities covered by a common stock or
preferred stock warrant, and the amounts of other securities or
property to be received, if any, upon exercise of such warrant,
will not be adjusted or provided for if we issue those securities
or any securities convertible into or exchangeable for those
securities, or securities carrying the right to purchase those
securities or securities convertible into or exchangeable for those
securities.
Holders of common stock and preferred stock warrants may have
additional rights under the following circumstances:
●
certain reclassifications, capital reorganizations or changes of
the common stock or preferred stock, as applicable;
●
certain share exchanges, mergers, or similar transactions involving
us and which result in changes of the common stock or preferred
stock, as applicable; or
●
certain sales or dispositions to another entity of all or
substantially all of our property and assets.
If one of the above transactions occurs and holders of our common
stock or preferred stock are entitled to receive stock, securities
or other property with respect to or in exchange for their
securities, the holders of the common stock warrants and preferred
stock warrants then outstanding, as applicable, will be entitled to
receive, upon exercise of their warrants, the kind and amount of
shares of stock and other securities or property that they would
have received upon the applicable transaction if they had exercised
their warrants immediately before the transaction.
Series A1 Warrants
As
described above, we have issued Series A1 Warrants to purchase up
to 1,388,931 shares of our common
stock at an exercise price of $1.82 per share, which warrants
expire on or about March 7, 2023. The Series A1 Warrants Shares
that may become issuable from time to time upon the exercise of the
Series A1 Warrants are being offered pursuant to this prospectus.
For more information, see “Registration of Series A1
Warrants and Series A1 Warrant Shares” below.
Duration and Exercise Price: The Series A1 Warrants are exercisable for a
five-year period commencing on or about March 7, 2018, and have an
exercise price of $1.82 per share.
Exercisability: Each of
Series A1 Warrant may be exercised, in whole or in part, by
delivering to the Company a written notice of election to exercise
the applicable Series A1 Warrant and delivering to the Company cash
payment of the exercise price, if applicable. The exercise price
and the number of shares of our common stock issuable upon exercise
of the Series A1 Warrants is subject to adjustment in the event of
certain subdivisions and combinations, including by any stock split
or reverse stock split, stock dividend, recapitalization or
otherwise.
Cashless Exercise: If, at
any time during the term of the Series A1 Warrants, the issuance or
resale of shares of our common stock upon exercise of the Series A1
Warrants is not covered by an effective registration statement, the
holder is permitted to effect a cashless exercise of the Series A1
Warrants (in whole or in part) in which case the holder would
receive upon such exercise the net number of shares of common stock
determined according to the formula set forth in the Series A1
Warrants. Shares issued pursuant to a cashless exercise would be
deemed to have been issued pursuant to the exemption from
registration provided by Section 3(a)(9) of the Securities Act, and
the shares of common stock issued upon such cashless exercise would
take on the characteristics of the Series A1 Warrants being
exercised, including, for purposes of Rule 144(d) promulgated under
the Securities Act, a holding period beginning from the original
issuance date of the Series A1 Warrants.
Adjustment Provisions: The
exercise price and the number and type of securities purchasable
upon exercise of the Series A1 Warrants are subject to adjustment
upon certain corporate events, including certain subdivisions,
combinations and similar events If we declare any dividend or
distribution of assets (including cash, stock or other securities,
evidence of indebtedness, purchase rights or other property), each
holder of a Series A1 Warrant will be entitled to participate in
such distribution to the same extent that the holder would have
participated had the applicable Series A1 Warrant been exercised
immediately before the record date for the
distribution.
Transferability: Subject
to applicable laws, the Series A1 Warrants may be offered for sale,
sold, transferred or assigned without our consent. However, as of
the date of this prospectus there is no established trading market
for the Series A1 Warrants and it is not expected that a trading
market for the Series A1 Warrants will develop in the future.
Without an active trading market, the liquidity of the Series A1
Warrants will be limited.
Listing: We have not and
will not apply to list the Series A1 Warrants on Nasdaq Capital
Market. We do not intend to list the Series A1 Warrants on any
securities exchange or other quotation system. Without an
active market, the liquidity of the Series A1 Warrants will be
limited.
Rights as a stockholder: Except as set forth in the Series A1
Warrants or by virtue of such holders’ ownership of shares of
our common stock, the holders of the Series A1 Warrants do not have
the rights or privileges of holders of our common stock, including
any voting rights, until they exercise the Series A1
Warrants.
Limitations on Exercise: The exercise of the Series A1 Warrants may
be limited in certain circumstances if, after giving effect to such
exercise, the holder or any of its affiliates would beneficially
own (as determined in accordance with the terms of the Series A1
Warrants) more than 4.99% (or, at the election of the holder,
9.99%) of our outstanding common stock immediately after giving
effect to the exercise.
Fundamental Transactions: In the event of certain fundamental
transactions, as described in the Series A1 Warrants and generally
including any merger or consolidation with or into another entity,
the holders of the Series A1 Warrants shall thereafter have the
right to exercise the applicable Series A1 Warrant for the same
amount and kind of securities, cash or property as it would have
been entitled to receive upon the occurrence of such fundamental
transaction if it had been, immediately prior to such fundamental
transaction, the holder of shares of common stock issuable upon
exercise in full of the Series A1 Warrant. In the event of a Change
of Control (as defined in the Series A1 Warrants) (other than a
Change of Control which was not approved by our Board, as to which
this right shall not apply), at the request of the holder delivered
before the 30th day after such Change of Control, a holder of a
Series A1 Warrant will have the right to require us or any
successor entity to purchase the holder’s Series A1 Warrant
for the Black-Scholes Value of the remaining unexercised portion of
the Series A1 Warrant on the effective date of such Change of
Control (determined in accordance with a formula specified in the
Series A1 Warrants), payable in cash; provided, that if the
applicable Change of Control was not approved by our Board, such
amount shall be payable, at our option in either (x) shares of our
common stock or the consideration receivable by holders of common
stock in the Change of Control transaction, as applicable, valued
at the value of the consideration received by the shareholders in
such Change of Control, or (y) cash.
Dividends and Other Distributions: If we declare or make any dividend or other
distribution of our assets to holders of shares of our common stock
(including any distribution of cash, stock or other securities,
property, options, evidence of indebtedness or any other assets),
then, subject to certain limitation on exercise described in the
Series A1 Warrants, each holder of a Series A1 Warrant shall
receive the distributed assets that such holder would have been
entitled to receive in the distribution had the holder exercised
the Series A1 Warrant immediately prior to the record date for the
distribution.
Registration of Series A1 Warrants and Series A1 Warrant
Shares. The Series A1
Warrants and the Series A1 Warrant Shares were previously
registered pursuant to a prospectus supplement filed with the SEC
on August 31, 2017 pursuant to Rule 424(b)(5) under the Securities
Act, and pursuant to the Company’s effective shelf registration statements on
Form S-3 (File Nos. 333-215671 and
333-234025) (the Prior
Registration Statements), which were originally filed with
the Securities and Exchange Commission (the SEC) on January 23, 2017 and September
30, 2019, respectively, and declared effective by the SEC on July
27, 2017 and October 8, 2019, respectively. Pursuant to Rule
415(a)(6) and Rule 429 under the Securities Act, the offering of
the Series A1 Warrant Shares will be registered pursuant to this
registration statement.
This section outlines some of the provisions of the units and the
unit agreements. This information may not be complete in all
respects and is qualified entirely by reference to the unit
agreement with respect to the units of any particular series. The
specific terms of any series of units will be described in the
applicable prospectus supplement or free writing prospectus. If so
described in a particular prospectus supplement or free writing
prospectus, the specific terms of any series of units may differ
from the general description of terms presented below.
As specified in the applicable prospectus supplement, we may issue
units consisting of one or more shares of common stock, shares of
our preferred stock, warrants or any combination of such
securities.
The applicable prospectus supplement will specify the following
terms of any units in respect of which this prospectus is being
delivered:
●
the terms of the units and of any of the shares of common stock,
shares of preferred stock, or warrants comprising the units,
including whether and under what circumstances the securities
comprising the units may be traded separately;
●
a description of the terms of any unit agreement governing the
units;
●
if appropriate, a discussion of material U.S. federal income tax
considerations; and
●
a description of the provisions for the payment, settlement,
transfer or exchange of the units.
DESCRIPTION OF CERTAIN PROVISIONS OF NEVADA LAW AND
OUR CHARTER AND BYLAWS
Transactions with Interested Persons
Under
the Nevada Revised Statutes (the NRS) a transaction with the Company (i)
in which a Company director or officer has a direct or indirect
interest, or (ii) involving another corporation, firm or
association in which one or more of the Company’s directors
or officers are directors or officers of the corporation, firm or
association or have a financial interest in the corporation firm or
association, is not void or voidable solely because of the
director’s or officer’s interest or common role in the
transaction if any one of the following circumstances
exists:
●
the
fact of the common directorship, office or financial interest is
known to our Board or a committee of our Board and a majority of
disinterested directors on the Board (or on the committee)
authorize, approved or ratify the transaction in good
faith;
●
the
fact of the common directorship, office or financial interest is
known to the stockholders and stockholders holding a majority of
the shares, including shares held by the common or interested
directors or officers, authorize, approve or ratify the transaction
in good faith;
●
the
fact of the common directorship, office or financial interest is
not known to the director or officer at the time the transaction is
brought to the Board for action; or
●
the
transaction is fair to the Company at the time it is authorized or
approved.
Anti-Takeover Provisions
Our
Charter and Nevada law include certain provisions which may have
the effect of delaying or deterring a change in control or in our
management or encouraging persons considering unsolicited tender
offers or other unilateral takeover proposals to negotiate with our
board of directors rather than pursue non-negotiated takeover
attempts. These provisions include authorized blank check preferred
stock, restrictions on business combinations, and the availability
of authorized but unissued common stock.
Combination with Interested Stockholders Statute
Sections
78.411 to 78.444 of the NRS, which apply to any Nevada corporation
which has at least 200 stockholders of record and is publicly
traded, including us, prohibits an “interested
stockholder” from entering into specified types of business
“combinations” with the Nevada corporation for two
years, unless certain conditions are met. A
“combination” includes:
●
any merger of the
corporation or any subsidiary of the corporation with an
“interested stockholder,” or any other entity, whether
or not itself an “interested stockholder,” which is, or
after and as a result of the merger would be, an affiliate or
associate of an “interested stockholder;”
●
any sale, lease,
exchange, mortgage, pledge, transfer, or other disposition in one
transaction, or a series of transactions, to or with an
“interested stockholder” or any affiliate or associate
of an “interested stockholder,” of assets of the
corporation or any subsidiary:
i.
having an aggregate
market value equal to more than 5% of the aggregate market value of
the corporation’s assets, determined on a consolidated
basis;
ii.
having an aggregate
market value equal to more than 5% of the aggregate market value of
all outstanding voting shares of the corporation; or
iii.
representing more
than 10% of the earning power or net income, determined on a
consolidated basis, of the corporation; or
●
the issuance or
transfer by the corporation or any subsidiary, of any shares of the
corporation or any subsidiary to an “interested
stockholder” or any affiliate or associate of an
“interested stockholder,” having an aggregate market
value equal to 5% or more of the aggregate market value of all of
the outstanding voting shares of the corporation, except under the
exercise of warrants or rights to purchase shares offered, or a
dividend or distribution paid or made, pro rata to all stockholders
of the resident domestic corporation;
●
the adoption of any
plan, or proposal for the liquidation or dissolution of the
corporation, under any agreement, arrangement or understanding,
with the “interested stockholder,” or any affiliate or
associate of the “interested stockholder;”
●
if any of the
following actions occurs
i.
a reclassification
of the corporation’s securities, including, without
limitation, any splitting of shares, share dividend, or other
distribution of shares with respect to other shares, or any
issuance of new shares in exchange for a proportionately greater
number of old shares;
ii.
recapitalization of
the corporation;
iii.
merger or
consolidation of the corporation with any subsidiary;
or
iv.
any other
transaction, whether or not with or into or otherwise involving the
interested stockholder,
under
any agreement, arrangement or understanding, whether or not in
writing, with the interested stockholder or any affiliate or
associate of the interested stockholder, which has the immediate
and proximate effect of increasing the proportionate share of the
outstanding shares of any class or series of voting shares or
securities convertible into voting shares of the corporation or any
subsidiary of the corporation which is beneficially owned by the
interested stockholder or any affiliate or associate of the
interested stockholder, except as a result of immaterial changes
because of adjustments of fractional shares; or
●
any receipt by an
“interested stockholder” or any affiliate or associate
of an “interested stockholder,” except proportionately
as a stockholder of the corporation, of the benefit of any loan,
advance, guarantee, pledge or other financial assistance or any tax
credit or other tax advantage provided by or through the
corporation.
An
“interested stockholder” is a person who
is:
●
directly or
indirectly, the beneficial owner of 10% or more of the voting power
of the outstanding voting shares of the corporation;
or
●
an affiliate or
associate of the corporation, which at any time within two years
immediately before the date in question was the beneficial owner,
directly or indirectly, of 10% or more of the voting power of the
then outstanding shares of the corporation.
A
corporation to which the Combinations with Interested Stockholders
Statute applies may not engage in a “combination”
within two years after the interested stockholder first became an
interested stockholder, unless the combination meets all of the
requirements of the corporation’s articles of incorporation
and (i) the combination or the transaction by which the person
first became an interested stockholder is approved by the board of
directors before the person first became an interested stockholder,
or (ii)(a) the combination is approved by the board of directors
and (b) at or after that time, the combination is approved at an
annual or special meeting of the stockholders, and not by written
consent, by the affirmative vote of the stockholders representing
at least 60% of the outstanding voting power of the corporation not
beneficially owned by the interested stockholder or the affiliates
or associates of the interested stockholder. If this approval is
not obtained, the combination may be consummated after the two year
period expires if either (i)(a) the combination or transaction by
which the person first became an interested stockholder is approved
by the board of directors before such person first became an
interested stockholder, (b) the combination is approved by a
majority of the outstanding voting power of the corporation not
beneficially owned by the interested stockholder or any affiliate
or associate of the interested stockholder, or (c) the
combination otherwise meets the requirements of the Combination
with Interested Stockholders statute. Alternatively, a combination
with an interested stockholder engaged in more than 2 years after
the date the person first became an interested stockholder may be
permissible if the aggregate amount of cash and the market
value of consideration other than cash to be received by holders of
shares of common stock and holders of any other class or series of
shares meets the minimum requirements set forth in the statue, and
prior to the completion of the combination, except in limited
circumstances, the interested stockholder has not become the
beneficial owner of additional voting shares of the
corporation.
Acquisition of Controlling Interest Statute
In
addition, Nevada’s “Acquisition of Controlling Interest
Statute,” prohibits an acquiror, under certain circumstances,
from voting shares of a target corporation’s stock after
crossing certain threshold ownership percentages, unless the
acquiror obtains the approval of the target corporation’s
stockholders. Sections 78.378 to 78.3793 of the NRS only apply to
Nevada corporations with at least 200 stockholders, including at
least 100 record stockholders who are Nevada residents, that do
business directly or indirectly in Nevada and whose articles of
incorporation or bylaws in effect ten days following the
acquisition of a controlling interest by an acquiror do not
prohibit its application.
We do
not intend to “do business” in Nevada within the
meaning of the Acquisition of Controlling Interest Statute.
Further, our Bylaws contain a specific opt out from the statute.
Therefore, we believe it is unlikely that this statute will apply
to us. The statute specifies three thresholds:
●
at least one-fifth
but less than one-third;
●
at least one-third
but less than a majority; and
●
a majority or more,
of the outstanding voting power.
Once an
acquiror crosses one of these thresholds, shares which it acquired
in the transaction taking it over the threshold (or within 90 days
preceding the date thereof) become “control shares”
which could be deprived of the right to vote until a majority of
the disinterested stockholders restore that right. A special
stockholders’ meeting may be called at the request of the
acquiror to consider the voting rights of the acquiror’s
shares. If the acquiror requests a special meeting and gives an
undertaking to pay the expenses of said meeting, then the meeting
must take place no earlier than 30 days (unless the acquiror
requests that the meeting be held sooner) and no more than 50 days
(unless the acquiror agrees to a later date) after the delivery by
the acquiror to the corporation of an information statement which
sets forth the range of voting power that the acquiror has acquired
or proposes to acquire and certain other information concerning the
acquiror and the proposed control share acquisition.
If no
such request for a stockholders’ meeting is made,
consideration of the voting rights of the acquiror’s shares
must be taken at the next special or annual stockholders’
meeting. If the stockholders fail to restore voting rights to the
acquiror, or if the acquiror fails to timely deliver an information
statement to the corporation, then the corporation may, if so
provided in its articles of incorporation or bylaws, call certain
of the acquiror’s shares for redemption at the average price
paid for the control shares by the acquiror.
Our
Charter and our Bylaws, as do not currently permit us to redeem an
acquiror’s shares under these circumstances. The Acquisition
of Controlling Interest Statute also provides that in the event the
stockholders restore full voting rights to a holder of control
shares that owns a majority of the voting stock, then all other
stockholders who do not vote in favor of restoring voting rights to
the control shares may demand payment for the “fair
value” of their shares as determined by a court in
dissenter’s rights proceeding pursuant to Chapter 92A of the
NRS.
We may sell the securities described in this prospectus to or
through underwriters or dealers, through agents, or directly to one
or more purchasers. A prospectus supplement or supplements (and any
related free writing prospectus that we may authorize to be
provided to you) will describe the terms of the offering of the
securities, including, to the extent applicable:
●
the
name or names of any underwriters or agents, if
applicable;
●
the
purchase price of the securities and the proceeds we will receive
from the sale;
●
any
over-allotment options under which underwriters may purchase
additional securities from us;
●
any
agency fees or underwriting discounts and other items constituting
agents’ or underwriters’ compensation;
●
any
public offering price;
●
any
discounts or concessions allowed or reallowed or paid to dealers;
and
●
any
securities exchange or market on which the securities may be
listed.
We may also sell equity securities covered by this registration
statement in an “at the market offering” as defined in
Rule 415 under the Securities Act. Such offering may be made into
an existing trading market for such securities in transactions at
other than a fixed price, either:
●
on
or through the facilities of the Nasdaq Capital Market or any other
securities exchange or quotation or trading service on which such
securities may be listed, quoted or traded at the time of sale;
and/or
●
to
or through a market maker otherwise than on the Nasdaq Capital
Market or such other securities exchanges or quotation or trading
services.
Such at-the-market offerings, if any, may be conducted by
underwriters acting as principal or agent.
Only underwriters named in a prospectus supplement are underwriters
of the securities offered by the prospectus
supplement.
If underwriters are used in the sale, they will acquire the
securities for their own account and may resell the securities from
time to time in one or more transactions at a fixed public offering
price or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the securities will be
subject to the conditions set forth in the applicable underwriting
agreement. We may offer the securities to the public through
underwriting syndicates represented by managing underwriters or by
underwriters without a syndicate. Subject to certain conditions,
the underwriters will be obligated to purchase all of the
securities offered by the prospectus supplement. Any public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers may change from time to time. We may
use underwriters with whom we have a material relationship. We will
describe in the prospectus supplement that names the underwriter,
the nature of any such relationship.
We may sell securities directly or through agents we designate from
time to time. We will name any agent involved in the offering and
sale of securities, and we will describe any commissions we will
pay the agent in the prospectus supplement. Unless the prospectus
supplement states otherwise, our agent will act on a best-efforts
basis for the period of its appointment.
We may authorize agents or underwriters to solicit offers by
certain types of institutional investors to purchase securities
from us at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. We will
describe the conditions to these contracts and the commissions we
must pay for solicitation of these contracts in the prospectus
supplement.
We may provide agents and underwriters with indemnification against
civil liabilities related to this offering, including liabilities
under the Securities Act, or contribution with respect to payments
that the agents or underwriters may make with respect to these
liabilities. Agents and underwriters may engage in transactions
with, or perform services for, us in the ordinary course of
business.
Any underwriter may engage in overallotment, stabilizing
transactions, short covering transactions and penalty bids in
accordance with Regulation M under the Securities Exchange Act of
1934, as amended (the Exchange
Act). Overallotment involves
sales in excess of the offering size, which create a short
position. Stabilizing transactions permit bids to purchase the
underlying security so long as the stabilizing bids do not exceed a
specified maximum. Short covering transactions involve purchases of
the securities in the open market after the distribution is
completed to cover short positions. Penalty bids permit the
underwriters to reclaim a selling concession from a dealer when the
securities originally sold by the dealer are purchased in a
covering transaction to cover short positions. Those activities may
cause the price of the securities to be higher than it would
otherwise be. If commenced, the underwriters may discontinue any of
the activities at any time.
Any underwriters who are qualified market makers on the Nasdaq
Capital Market may engage in passive market making transactions in
accordance with Rule 103 of Regulation M during the business day
prior to the pricing of the offering, before the commencement of
offers or sales of the securities. Passive market makers must
comply with applicable volume and price limitations and must be
identified as passive market makers. In general, a passive market
maker must display its bid at a price not in excess of the highest
independent bid for such security; if all independent bids are
lowered below the passive market maker’s bid, however, the
passive market maker’s bid must then be lowered when certain
purchase limits are exceeded.
Certain legal matters in connection with this offering will be
passed upon for us by Woodburn and Wedge, of Reno,
Nevada.
EXPERTS
OUM & Co. LLP, our independent registered public accounting
firm, has audited our consolidated financial statements included in
our Annual Report on Form 10-K for the year ended March 31, 2020,
as set forth in their report, which is incorporated by reference in
this prospectus. The report for VistaGen Therapeutics, Inc.
includes an explanatory paragraph about the existence of
substantial doubt concerning its ability to continue as a going
concern. Our financial statements are incorporated by reference in
reliance on OUM & Co. LLP’s report, given on their
authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are a public company and file annual, quarterly and special
reports, proxy statements and other information with the SEC. Our
SEC filings are available, at no charge, to the public at the
SEC’s website at
http://www.sec.gov.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by us with the SEC are incorporated
by reference in this prospectus:
●
our
Annual Report on Form 10-K for the year ended March 31, 2020, filed
on June 29, 2020;
●
our
Quarterly Report on Form 10-Q for the quarter ended June 30, 2020,
filed on August 13, 2020;
●
our
Quarterly Report on Form 10-Q for the quarter ended September 30,
2020, filed on November 12, 2020;
●
our
Quarterly Report on Form 10-Q for the quarter ended December 31,
2020, filed on February 11, 2021;
●
our
Definitive Proxy Statement on Schedule 14A, filed on July 27, 2020
(solely with respect to information required by Part III of our
Annual Report on Form 10-K for the year ended March 31, 2020, which
information shall update and supersede information included in Part
III of our Annual Report on Form 10-K for the year ended March 31,
2020);
●
our
Current Report on Form 8-K, filed on April 3, 2020;
●
our
Current Report on Form 8-K, filed on April 27, 2020;
●
our
Current Report on Form 8-K, filed on June 26, 2020;
●
our
Current Report on Form 8-K, filed on August 6, 2020;
●
our
Current Report on Form 8-K, filed on September 18,
2020;
●
our
Current Report on Form 8-K, filed on October 13, 2020;
●
our
Current Report on Form 8-K, filed on December 1, 2020;
●
our
Current Report on Form 8-K, filed on December 22,
2020;
●
our
Current Report on Form 8-K, filed on January 6, 2021;
●
our
Current Report on Form 8-K, filed on February 2, 2021;
●
our
Current Report on Form 8-K, filed on March 5, 2021;
and
●
The
description of our common stock contained in the Registration
Statement on Form 8-A filed pursuant to Section 12(b) of the
Exchange Act on May 3, 2016, including any amendment or report
filed with the SEC for the purpose of updating this
description.
We also incorporate by reference all documents we file pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than
any portions of filings that are furnished rather than filed
pursuant to Items 2.02 and 7.01 of a Current Report on Form 8-K)
after the date of the initial registration statement of which this
prospectus is a part and prior to effectiveness of such
registration statement. All documents we file in the future
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this prospectus and prior to the termination of
the offering are also incorporated by reference (other than any
portions of filings that are furnished rather than filed pursuant
to Items 2.02 and 7.01 of a Current Report on Form 8-K) and are an
important part of this prospectus.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for the purposes of this registration statement to the
extent that a statement contained herein or in any other
subsequently filed document which also is or deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this registration statement.
We will provide to each person, including any beneficial owner, to
whom a prospectus is delivered, a copy of any or all of the
information that has been incorporated by reference in the
prospectus but not delivered with the prospectus. You may request a
copy of these filings, excluding the exhibits to such filings which
we have not specifically incorporated by reference in such filings,
at no cost, by writing to or calling us at:
VistaGen Therapeutics, Inc.
343 Allerton Avenue
South San Francisco, California 94080
(650) 577-3600
This prospectus is part of a registration statement we filed with
the SEC. You should only rely on the information or representations
contained in this prospectus and any accompanying prospectus
supplement. We have not authorized anyone to provide information
other than that provided in this prospectus and any accompanying
prospectus supplement. We are not making an offer of the securities
in any state where the offer is not permitted. You should not
assume that the information in this prospectus or any accompanying
prospectus supplement is accurate as of any date other than the
date on the front of the document.
PROSPECTUS
$250,000,000
COMMON STOCK
PREFERRED STOCK
WARRANTS
UNITS
,
2021
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND
DISTRIBUTION
The following table sets forth an estimate of the fees and
expenses, other than the underwriting discounts and commissions,
payable by us in connection with the issuance and distribution of
the securities being registered. All the amounts shown are
estimates, except for the SEC and FINRA registration
fees.
|
|
SEC
registration fee
|
$27,275
|
FINRA
registration fee
|
$30,099
|
Legal
fees and expenses
|
$25,000
|
Accounting
fees and expenses
|
$14,000
|
Printing
and miscellaneous fees and expenses
|
$5,000
|
Total
|
$104,374
|
ITEM 15. INDEMNIFICATION OF OFFICERS AND
DIRECTORS
Section
78.7502 of the NRS permits a corporation to indemnify any person
who was, is or is threatened to be made a party in a completed,
pending or threatened proceeding, whether civil, criminal,
administrative or investigative (except an action by or in the
right of the corporation), by reason of being or having been an
officer, director, employee or agent of the corporation or serving
in certain capacities at the request of the corporation.
Indemnification may include attorneys' fees, judgments, fines and
amounts paid in settlement. The person to be indemnified must have
acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the corporation
and, with respect to any criminal action, such person must have had
no reasonable cause to believe his conduct was
unlawful.
With
respect to actions by or in the right of the corporation,
indemnification may not be made for any claim, issue or matter as
to which such a person has been finally adjudged by a court of
competent jurisdiction to be liable to the corporation or for
amounts paid in settlement to the corporation, unless and only to
the extent that the court in which the action was brought or other
court of competent jurisdiction determines upon application that in
view of all circumstances the person is fairly and reasonably
entitled to indemnity for such expenses as the court deems
proper.
Unless
indemnification is ordered by a court, the determination to pay
indemnification must be made by the stockholders, by a majority
vote of a quorum of the Board of Directors who were not parties to
the action, suit or proceeding, or in certain circumstances by
independent legal counsel in a written opinion. Section 78.751 of
the NRS permits the articles of incorporation or bylaws to provide
for payment to an indemnified person of the expenses of defending
an action as incurred upon receipt of an undertaking to repay the
amount if it is ultimately determined by a court of competent
jurisdiction that the person is not entitled to
indemnification.
Section
78.7502 also provides that to the extent a director, officer,
employee or agent has been successful on the merits or otherwise in
the defense of any such action, he must be indemnified by the
corporation against expenses, including attorneys' fees, actually
and reasonably incurred in connection with the
defense.
Article
X of our Charter, entitled “Indemnification,” provides
that we shall indemnify, and shall advance or reimburse the
reasonable expenses incurred in advance of final disposition of the
proceeding of, any individual made a party to a proceeding because
that individual is or was a director of the corporation to the full
extent and under all circumstances permitted by applicable law.
Article X of our Bylaws, entitled “Indemnification,”
provides that we shall indemnify our directors and officers to the
fullest extent not prohibited by the NRS, except in the case of
proceedings initiated by such officers or directors unless certain
other factors are present.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers and
certain employees pursuant to the foregoing provisions, or
otherwise, we have been advised that, in the opinion of the SEC,
such indemnification is against public policy as expressed in the
Securities Act, and is, therefore, unenforceable.
There is no pending litigation or proceeding naming any of our
directors or officers as to which indemnification is being sought,
nor are we aware of any pending or threatened litigation that may
result in claims for indemnification.
ITEM 16. EXHIBITS
1.1*
|
Form
of Underwriting Agreement
|
1.2*
|
Form
of Placement Agent Agreement
|
4.1*
|
Form
of any certificate of designation with respect to any preferred
stock issued hereunder and the related form of preferred stock
certificate
|
4.2*
|
Form
of any warrant agreement with respect to each particular series of
warrants issued hereunder
|
4.3*
|
Form
of any warrant agency agreement with respect to each particular
series of warrants issued hereunder
|
4.4*
|
Form
of any unit agreement with respect to any unit issued
hereunder
|
|
Opinion
of Woodburn and Wedge
|
|
Consent
of Woodburn and Wedge (included in
Exhibit 5.1)
|
|
Consent
of Independent Registered Public Accounting Firm – OUM
& Co., LLP
|
|
Power
of Attorney (located on signature page)
|
*
|
To be filed, if necessary, by an amendment to this registration
statement or incorporation by reference pursuant to a Current
Report on Form 8-K in connection with an offering of
securities.
|
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
(i) To
include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the
effective registration statement.
(iii) To
include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided,
however, that paragraphs (i),
(ii) and (iii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration
statement.
(2) That,
for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4) That,
for the purpose of determining liability under the Securities Act
of 1933 to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the
registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by section 10(a) of the Securities Act of 1933
shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which
that prospectus relates, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
(5) That,
for the purpose of determining liability of the registrant under
the Securities Act of 1933 to any purchaser in the initial
distribution of the securities: The undersigned registrant
undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
(ii) Any
free writing prospectus relating to the offering prepared by or on
behalf of the undersigned registrant or used or referred to by the
undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the
undersigned registrant to the purchaser.
(6)
That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant’s annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of each Registrant pursuant to the foregoing
provisions, or otherwise, each Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
a Registrant of expenses incurred or paid by a director, officer or
controlling person of a Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being
registered, that Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has
duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of South
San Francisco, California, on March 15, 2021.
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VistaGen Therapeutics, Inc.
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By:
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/s/
Shawn K. Singh
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Shawn K. Singh, J.D.
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Chief Executive Officer
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature below constitutes and appoints Shawn K. Singh as
attorney-in-fact, with power of substitution, for him or her in any
and all capacities, to sign any amendments to this Registration
Statement on Form S-3, and file the same, with exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that each
of said attorneys-in-fact, or his substitute or substitutes, may do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
Signature
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Title
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Date
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/s/
Shawn K. Singh
Shawn K. Singh, JD
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Chief Executive Officer, and Director
(Principal Executive Officer)
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March 15, 2021
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/s/
Jerrold D. Dotson
Jerrold D. Dotson
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Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
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March 15, 2021
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/s/
H. Ralph Snodgrass
H. Ralph Snodgrass, Ph.D
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President, Chief Scientific Officer and Director
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March 15, 2021
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/s/
Jon S. Saxe
Jon S. Saxe
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Chairman of the Board of Directors
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March 15, 2021
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/s/
Brian J. Underdown
Brian J. Underdown, Ph. D
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Director
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March15, 2021
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/s/
Jerry B. Gin, Ph.D
Jerry B. Gin, Ph.D.
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Director
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March 15, 2021
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/s/
Ann M. Cunningham
Ann M. Cunningham
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Director
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March 15, 2021
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