As filed with the Securities and Exchange Commission
on January 23, 2017
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)
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Nevada
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20-5093315
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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VistaGen Therapeutics, Inc.
343 Allerton Avenue
South San Francisco, California 94080
(650) 577-3600
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Shawn K. Singh
Chief Executive Officer
c/o 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:
Daniel W. Rumsey, Esq.
Jessica R. Sudweeks, Esq.
Disclosure Law Group,
a Professional Corporation
600 W. Broadway, Suite 700
San Diego, CA 92101
(619) 795-1134
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 post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [
]
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,
or a smaller reporting company. See the definitions of “large
accelerated filer,” “accelerated filer” and
“smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
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Large accelerated filer
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[ ]
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Accelerated filer
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[ ]
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Non-accelerated filer
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[ ]
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Smaller reporting company
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[X]
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(Do not check if a smaller reporting company)
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CALCULATION OF
REGISTRATION FEE
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Title of each class of securities to
be registered
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Amount to be Registered
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Proposed
Maximum Offering Price Per Unit
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Proposed Maximum Aggregate
Offering
Price
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Amount of
Registration
Fee
(3)
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Common Stock, par value $0.001 per share
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(1)
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(2)
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(2)
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$
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—
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Preferred Stock, par value $0.001 per share
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(1)
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(2)
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(2)
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—
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Debt Securities
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(1)
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(2)
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(2)
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—
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Warrants
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(1)
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(2)
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(2)
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—
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Units
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(1)
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(2)
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(2)
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—
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Total
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(1)
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(2)
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$
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100,000,000
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$
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11,590
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(1)
There are being registered hereunder such
indeterminate number of shares of common stock and preferred stock,
such indeterminate principal amount of debt securities and such
indeterminate number of warrants and units as shall have an
aggregate offering price not to exceed $100,000,000. If any debt
securities are issued at an original issue discount, then the
principal amount of such debt securities shall be in such greater
amount as shall result in an aggregate offering price not to exceed
$100,000,000, less the aggregate dollar amount of all securities
previously issued hereunder. Any securities registered hereunder
may be sold separately or as units with other securities registered
hereunder. The securities registered also include such
indeterminate number of shares of common stock and preferred stock
and amount of debt securities as may be issued upon conversion of
or exchange for preferred stock or debt securities that provide for
conversion or exchange, upon exercise of warrants or pursuant to
the anti-dilution provisions of any such securities. In addition,
pursuant to Rule 416 under the Securities Act of 1933, as amended
(the Securities
Act), the shares being
registered hereunder include such indeterminate number of shares of
common stock and 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.
(2)
The proposed maximum aggregate offering price per class of security
will be determined from time to time by the Registrant in
connection with the issuance by the Registrant of the securities
registered hereunder and is not specified as to each class of
security.
(3)
Calculated
pursuant to Rule 457(o) under the Securities Act.
The Registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933 or until the registration statement shall become effective on
such date as the Commission, acting pursuant to said section 8(a),
may determine.
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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 JANUARY 23, 2017
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$100,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
From time to time, we may offer and sell, in one or more offerings,
up to $100,000,000 of any combination of the securities described
in this prospectus. We may also offer securities as may be issuable
upon conversion, redemption, repurchase, exchange or exercise of
any securities registered hereunder, including any applicable
anti-dilution provisions.
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 quoted on The NASDAQ Capital Market under the
symbol “VTGN”. The last reported sale price of our
common stock on January 20, 2017 was $3.40 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 January 20, 2017, the aggregate market value of our
outstanding common stock held by non-affiliates was approximately
$19.9 million, which was calculated based on 5,848,556 shares of
outstanding common stock held by non-affiliates, at a price per
share of $3.40. Pursuant to General Instruction I.B.6 of Form S-3,
in no event will we sell the securities described in this
prospectus in a public primary offering with a value exceeding more
than one-third of the aggregate market value of our common stock
held by non-affiliates in any 12-month period, so long as the
aggregate market value of our outstanding common stock held by
non-affiliates remains below $75 million. During the 12 calendar
months prior to and including the date of this prospectus, we have
not offered or sold any securities pursuant to General Instruction
I.B.6 of Form S-3.
Our business and investing in shares
of our common stock involves significant risks. You should review
carefully the risks and uncertainties referenced under the heading
“Risk
Factors” on page 5 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 [_________], 2017
-i-
VISTAGEN THERAPEUTICS, INC.
TABLE OF CONTENTS
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PAGE
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About This Prospectus
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1
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| Company Overview |
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Risk Factors
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5
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Cautionary Notes Regarding Forward-Looking Statements
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6
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Ratio of Earnings to Fixed Charges
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7
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Use of Proceeds
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8
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Description of our Capital Stock
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9
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Description of our Debt Securities
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14
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Description of our Warrants
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20
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Description of our Units
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22
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Description of Certain Provisions of Nevada Law and Our Articles of
Incorporation and Bylaws
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23
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Plan Of Distribution
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24
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Legal Matters
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25
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Experts
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25
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Where You Can Find More Information
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25
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Incorporation Of Certain Information By Reference
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25
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-ii-
ABOUT
THIS PROSPECTUS
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. Each
time we offer securities for sale, we will provide a prospectus
supplement that contains specific information about the 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.”
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”.
-1-
COMPANY
OVERVIEW
This summary highlights information contained elsewhere in this
prospectus. This summary does not contain all the information you
should consider before buying our common stock. You should read the
following summary together with the more detailed information
appearing in this prospectus, including the section titled
“Risk Factors” on page 5, before deciding whether to
purchase shares of our common stock.
All brand names or trademarks appearing in this report are the
property of their respective holders. Unless the context requires
otherwise, references in this report to “VistaGen,” the
“Company,” “we,” “us,” and
“our” refer to VistaGen Therapeutics, Inc., a Nevada
corporation.
Overview
We are a clinical-stage biopharmaceutical company focused on
developing and commercializing new generation therapies for
depression and other central nervous system (CNS) disorders. 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.
Unless the context otherwise requires, the words
“VistaGen Therapeutics,
Inc.”
“VistaGen,” “we,” “the Company,” “us” and “our” refer to VistaGen Therapeutics, Inc., a
Nevada corporation.
AV-101, our lead product candidate, is a new generation, oral
antidepressant drug candidate in Phase 2 development, initially for
the adjunctive treatment of Major Depressive Disorder
(MDD) in patients with an inadequate response to
standard antidepressants approved by the U.S. Food and Drug
Administration (FDA). We believe AV-101 may also have
therapeutic potential in other CNS indications, including chronic
neuropathic pain, epilepsy, Huntington’s disease and
Parkinson’s disease.
AV-101’s mechanism of action, as an N-methyl D aspartate
receptor (NMDAR) antagonist binding selectively at the glycine
binding (GlyB) co-agonist site of the NMDAR, is fundamentally
differentiated from all FDA-approved antidepressants, as well as
all atypical antipsychotics used adjunctively with standard
antidepressants.
Our ongoing Phase 2a clinical study of AV-101 as a monotherapy
(Phase 2a
Study) in subjects with
treatment-resistant MDD is being conducted and fully funded by the
U.S. National Institute of Mental Health (NIMH), part of the U.S. National Institutes of Health
(NIH), under our February 2015 Cooperative Research
and Development Agreement (CRADA) with the NIMH. The Principal Investigator of the
Phase 2a Study is Dr. Carlos Zarate, Jr., Chief of the NIMH’s
Experimental Therapeutics & Pathophysiology Branch and its
Section on Neurobiology and Treatment of Mood and Anxiety
Disorders. Previous NIMH studies, including studies conducted by
Dr. Zarate, have focused on the antidepressant effects of low dose,
intravenous (I.V.) ketamine, a NMDAR antagonist, in patients with
treatment-resistant MDD. These NIMH studies, as well as clinical
research by Yale University and other academic institutions, have
demonstrated robust antidepressant effects in MDD patients within
twenty-four hours of a single low dose of I.V. ketamine. We believe
orally-administered AV-101 may have potential to deliver
ketamine-like fast-acting antidepressant effects without
ketamine’s serious side effects. We currently anticipate top
line results in this Phase 2a Study in as early as the second
quarter of 2017.
We are preparing to launch our Phase 2b clinical study of AV-101 as
an adjunctive treatment of MDD in patients with an inadequate
response to standard, FDA-approved antidepressants
(Phase 2b
Study). We currently
anticipate commencement of this multi-center, multi-dose, double
blind, placebo-controlled efficacy and safety study in the first
half of 2017. Dr. Maurizio Fava, Professor of Psychiatry at Harvard
Medical School and Director, Division of Clinical Research,
Massachusetts General Hospital (MGH) Research Institute, will be the Principal
Investigator of the Phase 2b Study. Dr. Fava was the
co-Principal Investigator with Dr. A. John Rush of the largest
clinical trial conducted in depression to date, the STAR*D study,
whose findings were published in journals such as the New England
Journal of Medicine (NEJM) and the Journal of the American Medical
Association (JAMA). We currently completing enrollment of the Phase
2b Study in the fourth quarter of 2018.
VistaStem Therapeutics (VistaStem) is our wholly owned subsidiary focused on
applying human pluripotent stem cell (hPSC) technology to discover, rescue, develop and
commercialize proprietary new chemical entities
(NCEs),
including small molecule NCEs with regenerative potential, for CNS
and other diseases, as well as potential cellular therapies
involving stem cell-derived blood, cartilage, heart and liver
cells. Our small molecule drug rescue programs utilize
CardioSafe
3D, our customized cardiac
bioassay system, to develop NCEs for our internal pipeline. In
December 2016, we exclusively sublicensed to BlueRock Therapeutics
LP, a stem cell research company established in December 2016 by
Bayer AG and Versant Ventures, rights to certain proprietary
technologies relating to the production of cardiac stem cells for
the treatment of heart disease. VistaStem may also pursue
additional potential regenerative medicine (RM) applications include using blood, cartilage,
and/or liver cells derived from hPSCs for (A) cell-based therapy,
(B) cell repair therapy, and/or (C) tissue engineering. In a
manner similar to our exclusive sublicense agreement with BlueRock
Therapeutics, VistaStem may pursue these additional RM applications
in collaboration with third-parties.
-2-
AV-101 and Major Depressive Disorder
Background
The World Health Organization (WHO) estimates that 350 million people worldwide are
affected by depression. According to the NIH, major depression is one of the most common mental
disorders in the U.S. The NIMH reports that, in 2014, an estimated
15.7 million adults aged 18 or older in the U.S. had at least one
major depressive episode in the past year. This represented 6.7
percent of all U.S. adults. According to the U.S. Centers for
Disease Control and Prevention (CDC) one in 10 Americans over the age of 12 takes a
standard, FDA-approved antidepressant.
Most standard, FDA-approved antidepressants target neurotransmitter
reuptake inhibition – either serotonin (antidepressants known
as SSRIs) or serotonin/norepinephrine (antidepressants
known as SNRIs). Even when effective, these standard depression
medications take many weeks to achieve adequate antidepressant
effects. Nearly two out of every three drug-treated depression
patients, including an estimated 6.9 million drug-treated MDD
patients in the U.S., obtain inadequate therapeutic benefit from
initial treatment with a standard antidepressant. Unfortunately,
even after treatment with as many as four different standard
antidepressants, nearly one out of every three drug-treated
depression patients do not achieve adequate therapeutic
benefits. Such treatment-resistant depression patients
often seek to treat their depression with non-drug-related
approaches, such as Electroconvulsive Therapy (ECT), or to augment their inadequate response to
standard antidepressants by adding an atypical antipsychotic (such
as, for example, aripiprazole) to their treatment regimen, despite
only modest potential therapeutic benefit and significant risk of
additional side effects from such augmentation
options.
All standard, FDA-approved antidepressants have risks of
significant side effects, including, among others, potential
anxiety, metabolic syndrome, sleep disturbance and sexual
dysfunction. They also have a “Black Box”
warning due to risks of worsening depression and suicide in certain
groups. Adjunctive use of atypical antipsychotics to augment
inadequately performing standard antidepressants increases the risk
of serious side effects, including, potentially, tardive
dyskinesia, significant weight gain, diabetes and heart disease,
while offering only a modest potential increase in therapeutic
benefit. Use of ECT increases the risk of serious side effects,
including, headaches, tiredness, disorientation, intense
sleepiness, hallucinations and long-term memory loss.
AV-101
AV-101, our oral new generation antidepressant prodrug candidate,
is in Phase 2 clinical development for the adjunctive treatment of
MDD patients with an inadequate response to standard
antidepressants. As published in the October 2015 issue of the
peer-reviewed, Journal of Pharmacology and
Experimental Therapeutics, in an article entitled, The prodrug 4-chlorokynurenine
causes ketamine-like antidepressant effects, but not side effects,
by NMDA/glycineB-site inhibition, using well-established preclinical models of
depression, AV-101 was shown to induce fast-acting, dose-dependent,
persistent and statistically significant antidepressant-like
responses following a single treatment. These responses were
equivalent to those seen with a single, IV administered
sub-anesthetic control dose of ketamine, a NMDAR antagonist. In the
same preclinical studies, a standard antidepressant, the SSRI
fluoxetine, did not induce rapid onset antidepressant-like
responses. In addition, these studies confirmed that the
fast-acting antidepressant effects of AV-101 were mediated through
the GlyB site and involved the activation of a key neurological
pathway, the alpha-amino-3-hydroxy-5-methyl-4-isoxazolepropionic
acid (AMPA) receptor pathway. Activation of the AMPA
receptor pathway is a final common pathway feature of new
generation antidepressants.
Following the completion of our NIH-funded, randomized, double
blind, placebo-controlled AV-101 Phase 1a and Phase 1b safety
studies, we are now collaborating with the NIMH in a Phase 2a
study. Under our February 2015 CRADA, the NIMH is funding, and Dr.
Carlos Zarate Jr. of the NIMH, as Principal Investigator, is
conducting our ongoing Phase 2a Study of AV-101 as a monotherapy in
subjects with treatment-resistant MDD. The trial is expected to
enroll 20 to 24 patients. The first patient was dosed in
November 2015, and we currently anticipate topline results as early
as the second quarter of 2017.
We are preparing to launch our approximately 280-patient Phase 2b
Study of AV-101 for the adjunctive treatment of MDD in patients
with an inadequate response to standard, FDA-approved
antidepressants. We currently anticipate the launch of the Phase 2b
Study, with Dr. Maurizio Fava of Harvard Medical School serving as
Principal Investigator, in the first half of 2017. We currently
anticipate completing enrollment of the Phase 2b Study in the
fourth quarter of 2018.
We believe several preclinical studies support the hypothesis that
AV-101 also has the potential to treat multiple CNS disorders and
neurodegenerative diseases in addition to MDD, including chronic
neuropathic pain, epilepsy, Parkinson’s disease and
Huntington’s disease, where modulation of the NMDAR, AMPA
pathway and/or key active metabolites of AV-101 may achieve
therapeutic benefit.
-3-
CardioSafe 3D™; NCE Drug Rescue and Regenerative
Medicine
VistaStem Therapeutics is our wholly owned subsidiary focused on
applying hPSC technology to
discover, rescue, develop and commercialize proprietary NCEs,
including small molecule NCEs with regenerative potential, for CNS
and other diseases, as well as potential cellular therapies
involving stem cell-derived blood, cartilage, heart and liver
cells. CardioSafe 3D™ is our
customized in vitro cardiac bioassay system capable of
predicting potential human heart toxicity of small molecule
NCEs in vitro, long before they are ever tested in animal and
human studies. We are currently focused on potential commercial
applications of our stem cell technology platform involving (i) use
of CardioSafe 3D for small molecule NCE drug discovery and
drug rescue to expand our internal drug candidate
pipeline, leveraging substantial prior research and
development investments by pharmaceutical companies and others
related to public domain NCEs terminated before FDA approval due to
heart toxicity risks and (ii) RM. With respect to RM, in December
2016, we exclusively sublicensed to BlueRock Therapeutics LP, a
stem cell research company established in December 2016 by Bayer AG
and Versant Ventures, rights to certain proprietary technologies
relating to the production of cardiac stem cells for the treatment
of heart disease. We may also pursue additional potential RM
applications using blood, cartilage, and/or liver cells derived
from hPSCs for (A) cell-based therapy (injection of stem
cell-derived mature organ-specific cells obtained through directed
differentiation), (B) cell repair therapy (induction of
regeneration by biologically active molecules administered alone or
produced by infused genetically engineered cells), or (C) tissue
engineering (transplantation of in vitro grown complex tissues) using hPSC-derived
blood, bone, cartilage, and/or liver cells. In a manner
similar to our exclusive sublicense agreement with BlueRock
Therapeutics, we may pursue these additional RM applications in
collaboration with third-parties.
Risk Factors
Our business is subject to substantial risk. Please carefully
consider the section titled “Risk
Factors” on page 5 of
this prospectus for a discussion of the factors you should
carefully consider before deciding to purchase the securities
offered by this prospectus. These risks include, among
others:
●
we
are a development stage biopharmaceutical company with no sources
of recurring revenue or approved products, and limited experience
developing new drug, biological and/or regenerative medicine
candidates, which makes it difficult to assess our future
viability;
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we depend heavily on the success of AV-101, and we cannot be
certain that we will be able to obtain regulatory approval for, or
successfully commercialize, AV-101, or any product
candidate;
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failures or delays in the commencement or completion of our planned
clinical trials could delay, prevent or limit our ability to
generate revenue and continue our business;
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we face significant competition, and if we are unable to compete
effectively, we may not be able to achieve or maintain significant
market penetration or improve our results of
operations;
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some of our programs have been partially or substantially supported
by government grants and agreements, which may not be available to
us in the future;
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if we are unable to adequately protect our proprietary technology,
or obtain and maintain issued patents that are sufficient to
protect our product candidates, others could compete against us
more directly, which would have a material adverse impact on our
business, results of operations, financial condition and prospects;
and
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we have incurred significant net losses since inception and we will
continue to incur substantial operating losses for the foreseeable
future.
Additional risks and uncertainties not presently known to us or
that we currently deem immaterial may also impair our business
operations. You should be able to bear a complete loss of your
investment.
Corporate information
VistaGen Therapeutics, Inc., a Nevada corporation, is the parent of
VistaGen Therapeutics, Inc. (dba VistaStem Therapeutics, Inc.), a
wholly-owned California corporation founded in 1998. Our principal
executive offices are located at 343 Allerton Avenue, South San
Francisco, California 94080, and our telephone number is (650)
577-3600. Our website address is www.vistagen.com.
The information contained on our website is not part of this
prospectus. We have included our website address as a factual
reference and do not intend it to be an active link to our
website.
-4-
RISK
FACTORS
An investment in our securities involves a high degree of risk. You
should consider the risks, uncertainties and assumptions described
under Item 1A, “Risk
Factors,” in our Annual
Report on Form 10-K for the fiscal year ended March 31, 2016, as
well as subsequently filed Quarterly Reports on Form 10-Q, which
risk factors are incorporated herein by reference, and may be
amended, supplemented or superseded from time to time by other
reports we file with the SEC in the future and any prospectus
supplement related to a particular offering. The risks and
uncertainties we have described in our Annual Report on Form 10-K
for the fiscal year ended March 31, 2016 and subsequent Quarterly
Reports on Form 10-Q are not the only ones we face. Additional
risks and uncertainties not presently known to us or that we
currently deem immaterial may also affect our operations. The
occurrence of any of these known or unknown risks might cause you
to lose all or part of your investment in the offered
securities.
-5-
CAUTIONARY
NOTES REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements that involve
substantial risks and uncertainties. All statements contained in
this prospectus and/or any applicable prospectus supplement other
than statements of historical facts, 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
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 lead product candidate,
AV-101, initially as an adjunctive treatment for MDD in patients
with an inadequate response to standard, FDA-approved
antidepressants, and subsequently as a treatment for additional CNS
diseases and disorders;
●
our
ability to initiate and complete our clinical trials and to advance
our product candidates into additional clinical trials, including
pivotal clinical trials, and successfully complete such clinical
trials;
●
regulatory
developments in the U.S. and foreign countries;
●
the
performance of the U.S. National Institute of Mental Health, our
third-party contractors involved with the manufacturer and
production of our drug candidates for nonclinical and clinical
development activities, contract research organizations and other
third-party nonclinical and clinical development collaborators and
regulatory service providers;
●
our
ability to obtain and maintain intellectual property protection for
our core assets;
●
the
size of the potential markets for our product candidates and our
ability to serve those markets;
●
the
rate and degree of market acceptance of our product candidates for
any indication once approved;
●
the
success of competing products and product candidates in development
by others that are or become available for the indications that we
are pursuing;
●
the
loss of key scientific, clinical and nonclinical development,
and/or management personnel, internally or from one of our
third-party collaborators; and
●
other risks and uncertainties,
including those described
under Item 1A, “Risk
Factors,”
in our Annual Report on Form 10-K for the fiscal year ended March
31, 2016 and subsequent Quarterly Reports on Form 10-Q, which risk
factors are incorporated herein by reference.
These forward-looking statements are only predictions and we may
not actually achieve the plans, intentions or expectations
disclosed in our forward-looking statements, so you should not
place undue reliance on our forward-looking statements. Actual
results or events could differ materially from the plans,
intentions and expectations disclosed in the forward-looking
statements we make. We have based these forward-looking statements
largely on our current expectations and projections about future
events and trends that we believe may affect our business,
financial condition and operating results. We have included
important factors in the cautionary statements included in this
prospectus, as well as certain information incorporated by
reference into this prospectus, that could cause actual future
results or events to differ materially from the forward-looking
statements that we make. Our forward-looking statements do not
reflect the potential impact of any future acquisitions, mergers,
dispositions, joint ventures or investments we may
make.
You should read this prospectus with the understanding that our
actual future results may be materially different from what we
expect. We do not assume any obligation to update any
forward-looking statements whether as a result of new information,
future events or otherwise, except as required by applicable
law.
-6-
RATIO OF EARNINGS TO FIXED CHARGES
Our
ratio of earnings to fixed charges for recently completed fiscal
years and any required interim periods will be specified in a
prospectus supplement or in a document that we file with the SEC
and incorporated by reference in the future.
-7-
USE OF PROCEEDS
Unless otherwise provided in the applicable prospectus supplement,
we intend to use the net proceeds from the sale of
the securities
under this prospectus for general corporate purposes, including
research and development, working capital
and capital expenditures. We may use a portion of the net proceeds
to fund production of, and nonclinical and clinical studies related
to Phase 2 and Phase 3 development of, AV-101 and other drug
candidates. 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. We
may set forth additional information on the use of
proceeds from
the sale or the securities we offer under this prospectus in a
prospectus supplement relating to the specific offering. We
cannot currently
allocate specific percentages of the net proceeds that we may use
for the purposes specified above. As a result, our
management will
have broad discretion in the allocation of the net proceeds.
Pending the application of the net proceeds, we intend to invest
the net proceeds
in short- and intermediate-term, interest-bearing obligations,
investment-grade instruments, certificates of deposit or direct
or guaranteed
obligations of the U.S. government.
-8-
DESCRIPTION OF OUR CAPITAL STOCK
General
Our authorized capital stock consists of 30.0 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
Restated Articles of Incorporation (Articles), and our amended and restated bylaws
(Bylaws), and certain provisions of Nevada
law.
As of January 20, 2017, there were issued and outstanding, or
reserved for issuance:
●
8,581,471
shares of common stock held by approximately 700 stockholders of
record;
●
750,000
shares of common stock reserved for issuance upon conversion of
500,000 shares our Series A Preferred held by one institutional
investor and one accredited individual investor;
●
1,160,240
shares of common stock reserved for issuance upon conversion of
1,160,240 shares of our Series B Preferred held by two
institutional investors;
●
2,318,012
shares of common stock reserved for issuance upon conversion of
2,318,012 shares of our Series C Preferred held by one
institutional investor;
●
4,550,370
shares of common stock that have been reserved for issuance upon
exercise of outstanding warrants, with a weighted average exercise
price of $6.30 per share;
●
1,659,324
shares of common stock reserved for issuance upon exercise of
outstanding stock options under our 1999 Stock Incentive Plan and
our Amended and Restated 2016 Stock Incentive Plan, with a weighted
average exercise price of $4.76 per share; and
●
1,334,911
shares of common stock reserved for future issuance in connection
with future grants under our Amended and Restated 2016 Stock
Incentive Plan.
We may elect or be required to amend our Articles to increase the
number of shares of common stock authorized for issuance prior to
completing sales of shares of our common stock, or securities
convertible and/or exchangeable into shares of our common stock
described in this prospectus.
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 Articles 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 Articles, or as
required by applicable law, all shares of our common stock have the
same rights and privileges and rank equally, share ratably and are
identical in all respects as to all matters, including, without
limitation, those described below. All outstanding shares of common
stock are fully paid and nonassessable.
Voting Rights
Each holder of our common stock is entitled to cast one vote for
each share of common stock held on all matters submitted to a vote
of stockholders. Cumulative voting for election of directors is not
allowed under our Articles, which means that a plurality of the
shares voted can elect all of the directors then outstanding for
election. Except as otherwise provided under Nevada law or our
Articles, and Bylaws, on matters other than election of directors,
action on a matter is approved if the votes cast favoring the
action exceed the votes cast opposing the action.
Dividend Rights
The holders of outstanding shares of our common stock are entitled
to receive dividends out of funds legally available, if our board
of directors, in its discretion, determines to issue dividend, and
only at the times and in the amounts that our board of directors
may determine. Our board of directors is not obligated to declare a
dividend. We have not paid any dividends in the past and we do not
intend to pay dividends in the foreseeable future.
-9-
Liquidation Rights
Upon our liquidation, dissolution or winding-up, the holders of our
common stock will be entitled to share equally, identically and
ratably in all assets remaining, subject to the prior satisfaction
of all outstanding debt and liabilities and the preferential rights
and payment of liquidation preferences, if any, on any outstanding
shares of preferred stock.
No Preemptive or Similar Rights
Our common stock is not subject to conversion, redemption, sinking
fund or similar provisions.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is
Computershare Trust Company, N.A., Jersey City, New
Jersey.
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 Articles 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 of directors
can increase or decrease the number of shares of any series, but
not below the number of shares of that series then outstanding,
without any further vote or action by our stockholders. Our board
of directors 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 three series of our preferred stock
outstanding- Series A Convertible Preferred Stock, Series B 10%
Convertible Preferred Stock, and Series C Convertible Preferred
Stock. The rights and preferences associated with each series are
summarized below.
Series A Preferred
General
In December 2011, our board of directors authorized the creation of
a series of up to 500,000 shares of Series A Preferred. The
Certificate of Designation of the Relative Rights and Preferences
of the Series A Convertible Preferred Stock was filed with the
Nevada Secretary of State effective December 20, 2011.
Conversion and Rank
At January 20, 2017, 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 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.
-10-
Dividend Rights
The Series A Preferred has no separate dividend rights. However,
whenever the board of directors declares a dividend on the 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 of directors 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 May 2015, our board of directors authorized the creation of a
series of up to 4.0 million shares of Series B 10% Convertible
Preferred Stock (Series B
Preferred). The Certificate of
Designation of the Relative Rights and Preferences of the Series B
10% Convertible Preferred Stock was filed with the Nevada Secretary
of State on May 7, 2015 (the Series B Certificate of
Designation).
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 January 20, 2017, there were 1,160,240
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 1,160,240 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.
-11-
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). 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 shall have 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 of directors authorized the creation of
a series of up to 3.0 million shares of Series C Convertible
Preferred Stock (Series C
Preferred). The Certificate of
Designation of the Relative Rights and Preferences of the Series C
Convertible Preferred Stock was filed with the Nevada Secretary of
State, effective January 25, 2016 (the Series C Certificate of
Designation).
Conversion and Rank
At January 20, 2017, 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 the board of directors declares a dividend on the 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 date set by
the board of directors 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 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.
-12-
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.
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 purchase price;
●
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;
●
whether the preferred stock will be exchangeable into debt
securities, and, if applicable, the exchange price, or how it will
be calculated, and the exchange 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.
-13-
DESCRIPTION OF OUR DEBT SECURITIES
This section describes the general terms and provisions of debt
securities that we may issue from time to time. We may issue debt
securities, in one or more series, as either senior or subordinated
debt or as senior or subordinated convertible debt. While the terms
we have summarized below will apply generally to any future debt
securities we may offer under this prospectus, the applicable
prospectus supplement or free writing prospectus will describe the
specific terms of any debt securities offered through that
prospectus supplement or free writing prospectus. The terms of any
debt securities we offer under a prospectus supplement or free
writing prospectus may differ from the terms we describe below.
Unless the context requires otherwise, whenever we refer to the
“indentures,” we also are referring to any supplemental
indentures that specify the terms of a particular series of debt
securities.
In the
event that we issue any debt securities, we will issue such senior
debt securities under a senior indenture that we will enter into
with the trustee named in such senior indenture. We will file forms
of these documents as exhibits to the registration statement, of
which this prospectus is a part, and supplemental indentures and
forms of debt securities containing the terms of the debt
securities 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.
The
indentures will be qualified under the Trust Indenture Act of 1939,
as amended, (the Trust Indenture
Act). We use the term “trustee” to refer to
either the trustee under the senior indenture or the trustee under
the subordinated indenture, as applicable.
The
following summaries of material provisions of potential senior debt
securities, subordinated debt securities and the indentures are
subject to, and qualified in their entirety by reference to, all of
the provisions of the indenture applicable to a particular series
of debt securities. We urge you to read the applicable prospectus
supplement or free writing prospectus and any related free writing
prospectuses related to the debt securities that we may offer under
this prospectus, as well as the complete applicable indenture that
contains the terms of the debt securities. Except as we may
otherwise indicate, the terms of the senior indenture and the
subordinated indenture are identical.
General
We will
describe in the applicable prospectus supplement or free writing
prospectus the terms of the series of debt securities being
offered, including:
●
the
title;
●
the
principal amount being offered, and if a series, the total amount
authorized and the total amount outstanding;
●
any
limit on the amount that may be issued;
●
whether or not we
will issue the series of debt securities in global form, and, if
so, the terms and who the depository will be;
●
the
maturity date;
●
whether and under
what circumstances, if any, we will pay additional amounts on any
debt securities held by a person who is not a United States person
for tax purposes, and whether we can redeem the debt securities if
we have to pay such additional amounts;
●
the
annual interest rate, which may be fixed or variable, or the method
for determining the rate and the date interest will begin to
accrue, the dates interest will be payable and the regular record
dates for interest payment dates or the method for determining such
dates;
●
whether or not the
debt securities will be secured or unsecured, and the terms of any
secured debt;
●
the
terms of the subordination of any series of subordinated
debt;
●
the
place where payments will be payable;
●
restrictions on
transfer, sale or other assignment, if any;
●
our
right, if any, to defer payment of interest and the maximum length
of any such deferral period;
-14-
●
the
date, if any, after which, the conditions upon which, and the price
at which, we may, at our option, redeem the series of debt
securities pursuant to any optional or provisional redemption
provisions and the terms of those redemption
provisions;
●
the
date, if any, on which, and the price at which we are obligated,
pursuant to any mandatory sinking fund or analogous fund provisions
or otherwise, to redeem, or at the holder’s option, to
purchase, the series of debt securities and the currency or
currency unit in which the debt securities are
payable;
●
whether the
indenture will restrict our ability or the ability of our
subsidiaries to:
●
incur
additional indebtedness;
●
issue
additional securities;
●
create
liens;
●
pay
dividends or make distributions in respect of our capital stock or
the capital stock of our subsidiaries;
●
redeem
capital stock;
●
place
restrictions on our subsidiaries’ ability to pay dividends,
make distributions or transfer assets;
●
make
investments or other restricted payments;
●
sell
or otherwise dispose of assets;
●
enter
into sale-leaseback transactions;
●
engage
in transactions with stockholders or affiliates;
●
issue
or sell stock of our subsidiaries; or
●
effect
a consolidation or merger;
●
whether the
indenture will require us to maintain any interest coverage, fixed
charge, cash flow-based, asset-based or other financial
ratios;
●
a
discussion of certain material or special United States federal
income tax considerations applicable to the debt
securities;
●
information
describing any book-entry features;
●
provisions for a
sinking fund purchase or other analogous fund, if any;
●
the
applicability of the provisions in the indenture on
discharge;
●
whether the debt
securities are to be offered at a price such that they will be
deemed to be offered at an “original issue discount” as
defined in paragraph (a) of Section 1273 of the Internal Revenue
Code of 1986, as amended;
●
the
denominations in which we will issue the series of debt securities,
if other than denominations of $1,000 and any integral multiple
thereof;
●
the
currency of payment of debt securities if other than U.S. dollars
and the manner of determining the equivalent amount in U.S.
dollars; and
●
any
other specific terms, preferences, rights or limitations of, or
restrictions on, the debt securities, including any additional
events of default or covenants provided with respect to the debt
securities, and any terms that may be required by us or advisable
under applicable laws or regulations or advisable in connection
with the marketing of the debt securities.
Conversion or Exchange Rights
We will
set forth in the applicable prospectus supplement or free writing
prospectus the terms on which a series of debt securities may be
convertible into or exchangeable for our common stock, our
preferred stock or other securities (including securities of a
third-party). We will include provisions as to whether conversion
or exchange is mandatory, at the option of the holder or at our
option. We may include provisions pursuant to which the number of
shares of our common stock, our preferred stock or other securities
(including securities of a third-party) that the holders of the
series of debt securities receive would be subject to
adjustment.
-15-
Consolidation, Merger or Sale
Unless
we provide otherwise in the prospectus supplement or free writing
prospectus applicable to a particular series of debt securities,
the indentures will not contain any covenant that restricts our
ability to merge or consolidate, or sell, convey, transfer or
otherwise dispose of all or substantially all of our assets.
However, any successor to or acquirer of such assets must assume
all of our obligations under the indentures or the debt securities,
as appropriate. If the debt securities are convertible into or
exchangeable for other securities of ours or securities of other
entities, the person with whom we consolidate or merge or to whom
we sell all of our property must make provisions for the conversion
of the debt securities into securities that the holders of the debt
securities would have received if they had converted the debt
securities before the consolidation, merger or sale.
Events of Default Under the Indenture
Unless we provide
otherwise in the prospectus supplement or free writing prospectus
applicable to a particular series of debt securities, the following
are events of default under the indentures with respect to any
series of debt securities that we may issue:
●
if we
fail to pay interest when due and payable and our failure continues
for 90 days and the time for payment has not been
extended;
●
if we
fail to pay the principal, premium or sinking fund payment, if any,
when due and payable at maturity, upon redemption or repurchase or
otherwise, and the time for payment has not been
extended;
●
if we
fail to observe or perform any other covenant contained in the debt
securities or the indentures, other than a covenant specifically
relating to another series of debt securities, and our failure
continues for 90 days after we receive notice from the trustee or
holders of at least 25% in aggregate principal amount of the
outstanding debt securities of the applicable series;
and
●
if
specified events of bankruptcy, insolvency or reorganization
occur.
We will
describe in each applicable prospectus supplement or free writing
prospectus any additional events of default relating to the
relevant series of debt securities.
If an
event of default with respect to debt securities of any series
occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at
least 25% in aggregate principal amount of the outstanding debt
securities of that series, by notice to us in writing, and to the
trustee if notice is given by such holders, may declare the unpaid
principal, premium, if any, and accrued interest, if any, due and
payable immediately. If an event of default specified in the last
bullet point above occurs with respect to us, the unpaid principal,
premium, if any, and accrued interest, if any, of each issue of
debt securities then outstanding shall be due and payable without
any notice or other action on the part of the trustee or any
holder.
The
holders of a majority in principal amount of the outstanding debt
securities of an affected series may waive any default or event of
default with respect to the series and its consequences, except
defaults or events of default regarding payment of principal,
premium, if any, or interest, unless we have cured the default or
event of default in accordance with the indenture. Any waiver shall
cure the default or event of default.
Subject
to the terms of the indentures, if an event of default under an
indenture shall occur and be continuing, the trustee will be under
no obligation to exercise any of its rights or powers under such
indenture at the request or direction of any of the holders of the
applicable series of debt securities, unless such holders have
offered the trustee reasonable indemnity or security satisfactory
to it against any loss, liability or expense. The holders of a
majority in principal amount of the outstanding debt securities of
any series will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the
trustee, or exercising any trust or power conferred on the trustee,
with respect to the debt securities of that series, provided
that:
●
the
direction so given by the holder is not in conflict with any law or
the applicable indenture; and
●
subject to its
duties under the Trust Indenture Act, the trustee need not take any
action that might involve it in personal liability or might be
unduly prejudicial to the holders not involved in the
proceeding.
A
holder of the debt securities of any series will have the right to
institute a proceeding under the indentures or to appoint a
receiver or trustee, or to seek other remedies if:
●
the
holder has given written notice to the trustee of a continuing
event of default with respect to that series;
-16-
●
the
holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series have made written
request, and such holders have offered reasonable indemnity to the
trustee or security satisfactory to it against any loss, liability
or expense or to be incurred in compliance with instituting the
proceeding as trustee; and
●
the
trustee does not institute the proceeding, and does not receive
from the holders of a majority in aggregate principal amount of the
outstanding debt securities of that series other conflicting
directions within 90 days after the notice, request and
offer.
These
limitations do not apply to a suit instituted by a holder of debt
securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities, or other defaults that
may be specified in the applicable prospectus supplement or free
writing prospectus.
We will
periodically file statements with the trustee regarding our
compliance with specified covenants in the indentures.
Modification of Indenture; Waiver
Subject
to the terms of the indenture for any series of debt securities
that we may issue, we and the trustee may change an indenture
without the consent of any holders with respect to the following
specific matters:
●
to fix
any ambiguity, defect or inconsistency in the
indenture;
●
to
comply with the provisions described above under
“Description of Our Debt
Securities—Consolidation, Merger or Sale
;”
●
to
comply with any requirements of the SEC in connection with the
qualification of any indenture under the Trust Indenture
Act;
●
to add
to, delete from or revise the conditions, limitations, and
restrictions on the authorized amount, terms, or purposes of issue,
authentication and delivery of debt securities, as set forth in the
indenture;
●
to
provide for the issuance of and establish the form and terms and
conditions of the debt securities of any series as provided under
“Description of Our Debt
Securities—General ,” to establish the form of
any certifications required to be furnished pursuant to the terms
of the indenture or any series of debt securities, or to add to the
rights of the holders of any series of debt
securities;
●
to
evidence and provide for the acceptance of appointment hereunder by
a successor trustee;
●
to
provide for uncertificated debt securities and to make all
appropriate changes for such purpose;
●
to add
to our covenants such new covenants, restrictions, conditions or
provisions for the benefit of the holders, to make the occurrence,
or the occurrence and the continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an
event of default or to surrender any right or power conferred to us
in the indenture; or
●
to
change anything that does not materially adversely affect the
interests of any holder of debt securities of any
series.
In
addition, under the indentures, the rights of holders of a series
of debt securities may be changed by us and the trustee with the
written consent of the holders of at least a majority in aggregate
principal amount of the outstanding debt securities of each series
that is affected. However, subject to the terms of the indenture
for any series of debt securities that we may issue or as otherwise
provided in the prospectus supplement or free writing prospectus
applicable to a particular series of debt securities, we and the
trustee may make the following changes only with the consent of
each holder of any outstanding debt securities
affected:
●
extending the
stated maturity of the series of debt securities;
●
reducing the
principal amount, reducing the rate of or extending the time of
payment of interest, or reducing any premium payable upon the
redemption or repurchase of any debt securities; or
●
reducing the
percentage of debt securities, the holders of which are required to
consent to any amendment, supplement, modification or
waiver.
-17-
Discharge
Each
indenture provides that, subject to the terms of the indenture and
any limitation otherwise provided in the prospectus supplement or
free writing prospectus applicable to a particular series of debt
securities, we can elect to be discharged from our obligations with
respect to one or more series of debt securities, except for
specified obligations, including obligations to:
●
register the
transfer or exchange of debt securities of the series;
●
replace stolen,
lost or mutilated debt securities of the series;
●
maintain paying
agencies;
●
hold
monies for payment in trust;
●
recover excess
money held by the trustee;
●
compensate and
indemnify the trustee; and
●
appoint any
successor trustee.
In
order to exercise our rights to be discharged, we must deposit with
the trustee money or government obligations sufficient to pay all
the principal of, and any premium and interest on, the debt
securities of the series on the dates payments are
due.
Form, Exchange and Transfer
In the
event that we issue debt securities, we will issue such debt
securities of each series only in fully registered form without
coupons and, unless we otherwise specify in the applicable
prospectus supplement or free writing prospectus, in denominations
of $1,000 and any integral multiple thereof. The indentures provide
that we may issue debt securities of a series in temporary or
permanent global form and as book-entry securities that will be
deposited with, or on behalf of, The Depository Trust Company or
another depository named by us and identified in a prospectus
supplement or free writing prospectus with respect to that
series.
At the
option of the holder, subject to the terms of the indentures and
the limitations applicable to global securities described in the
applicable prospectus supplement or free writing prospectus, the
holder of the debt securities of any series can exchange the debt
securities for other debt securities of the same series, in any
authorized denomination and of like tenor and aggregate principal
amount.
Subject
to the terms of the indentures and the limitations applicable to
global securities set forth in the applicable prospectus supplement
or free writing prospectus, holders of the debt securities may
present the debt securities for exchange or for registration of
transfer, duly endorsed or with the form of transfer endorsed
thereon duly executed if so required by us or the security
registrar, at the office of the security registrar or at the office
of any transfer agent designated by us for this purpose. Unless
otherwise provided in the debt securities that the holder presents
for transfer or exchange, we will make no service charge for any
registration of transfer or exchange, but we may require payment of
any taxes or other governmental charges.
We will
name in the applicable prospectus supplement or free writing
prospectus the security registrar, and any transfer agent in
addition to the security registrar, that we initially designate for
any debt securities. We may at any time designate additional
transfer agents or rescind the designation of any transfer agent or
approve a change in the office through which any transfer agent
acts, except that we will be required to maintain a transfer agent
in each place of payment for the debt securities of each series. If
we elect to redeem the debt securities of any series, we will not
be required to:
●
issue,
register the transfer of, or exchange any debt securities of that
series during a period beginning at the opening of business 15 days
before the day of mailing of a notice of redemption of any debt
securities that may be selected for redemption and ending at the
close of business on the day of the mailing; or
●
register the
transfer of or exchange any debt securities so selected for
redemption, in whole or in part, except the unredeemed portion of
any debt securities we are redeeming in part.
Information Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an
event of default under an indenture, undertakes to perform only
those duties as are specifically set forth in the applicable
indenture. Upon an event of default under an indenture, the trustee
must use the same degree of care as a prudent person would exercise
or use in the conduct of his or her own affairs.
Subject
to this provision, the trustee is under no obligation to exercise
any of the powers given it by the indentures at the request of any
holder of debt securities unless it is offered reasonable security
and indemnity against the costs, expenses and liabilities that it
might incur.
-18-
Payment and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement or
free writing prospectus, we will make payment of the interest on
any debt securities on any interest payment date to the person in
whose name the debt securities, or one or more predecessor
securities, are registered at the close of business on the regular
record date for the interest.
We will
pay principal of and any premium and interest on the debt
securities of a particular series at the office of the paying
agents designated by us, except that unless we otherwise indicate
in the applicable prospectus supplement or free writing prospectus,
we will make interest payments by check that we will mail to the
holder or by wire transfer to certain holders. Unless we otherwise
indicate in the applicable prospectus supplement or free writing
prospectus, we will designate the corporate trust office of the
trustee as our sole paying agent for payments with respect to debt
securities of each series. We will name in the applicable
prospectus supplement or free writing prospectus any other paying
agents that we initially designate for the debt securities of a
particular series. We will maintain a paying agent in each place of
payment for the debt securities of a particular
series.
All
money we pay to a paying agent or the trustee for the payment of
the principal of or any premium or interest on any debt securities
that remains unclaimed at the end of two years after such
principal, premium or interest has become due and payable will be
repaid to us, and the holder of the debt security thereafter may
look only to us for payment thereof.
Governing Law
The
indentures and the debt securities will be governed by and
construed in accordance with the laws of the State of New York,
except to the extent that the Trust Indenture Act is
applicable.
Ranking of Debt Securities
The
subordinated debt securities will be subordinate and junior in
priority of payment to certain of our other indebtedness to the
extent described in a prospectus supplement or free writing
prospectus. The subordinated indenture does not limit the amount of
subordinated debt securities that we may issue. It also does not
limit us from issuing any other secured or unsecured
debt.
The
senior debt securities will rank equally in right of payment to all
our other senior unsecured debt. The senior indenture does not
limit the amount of senior debt securities that we may issue. It
also does not limit us from issuing any other secured or unsecured
debt.
-19-
DESCRIPTION OF OUR WARRANTS
The following description, together with the additional information
we include in any applicable prospectus supplements or free writing
prospectus, summarizes the material terms and provisions of the
warrants that we may offer under this prospectus, which may consist
of warrants to purchase common stock, preferred stock and/or debt
securities in one or more series. Warrants may be offered
independently or together with common stock, preferred stock and/or
debt securities 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 will issue the warrants
under a warrant agreement which 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 supplements 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 debt securities 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
currencies in which the warrants are being offered;
●
the
designation, aggregate principal amount, currencies, denominations
and terms of the series of debt securities that can be purchased if
a holder exercises a warrant;
●
the
designation and terms of any series of debt securities with which
the warrants are being offered and the number of warrants offered
with each such debt security;
●
the
date on and after which the holder of the warrants can transfer
them separately from the related series of debt
securities;
●
the
principal amount of the series of debt securities that can be
purchased if a holder exercises a warrant and the price at which
and currencies in which such principal amount may be purchased upon
exercise;
●
the
terms of any rights to redeem or call the warrants;
●
the
date on which the right to exercise the warrants begins and the
date on which such 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.
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;
-20-
●
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 or series of
preferred 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 is entitled to purchase the principal
amount of debt securities or 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 you comply with the procedures described above, your 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 you have completed those
procedures and subject to the foregoing, we will, as soon as
practicable, issue and deliver to you the debt securities, common
stock or preferred stock that you purchased upon exercise. If you
exercise fewer than all of the warrants represented by a warrant
certificate, a new warrant certificate will be issued to you 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 warrant or 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:
-21-
●
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 warrants and preferred stock
warrants, as applicable, 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 warrant
and preferred stock warrant, and the amounts of other securities or
property to be received, if any, upon exercise of those warrants,
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 warrants 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.
DESCRIPTION OF OUR UNITS
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
preferred stock, debt securities, 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, debt securities, 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.
-22-
DESCRIPTION OF CERTAIN PROVISIONS OF NEVADA LAW AND
OUR ARTICLES OF INCORPORATION AND BYLAWS
Transactions with Interested Persons
Under the Nevada Revised Statutes, or 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 the board of directors or a committee of the board of
directors and a majority of disinterested directors on the board of
directors (or on the committee) authorized, approved or ratified
the transaction;
●
the
fact of the common directorship, office or financial interest is
known to the stockholders and disinterested stockholders holding a
majority of the shares held by disinterested stockholders
authorized, approved or ratified the transaction;
●
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 of directors for action; or
●
the
transaction was fair to the Company at the time it is authorized or
approved.
Control Share Acquisition Provisions
Nevada law precludes an acquirer of the shares of a Nevada
corporation who crosses one of three ownership thresholds (20%, 33
1/3% or 50%) from obtaining voting rights with respect to those
shares unless the disinterested holders of a majority of the shares
of the Company held by disinterested stockholders vote to accord
voting power to those shares.
Combinations with Interested Stockholders
Under the NRS, except under certain circumstances, a corporation is
not permitted to engage in a business combination with any
“interested stockholder” for a period of two years
following the date such stockholder became an interested
stockholder. An “interested stockholder” is
a person or entity who owns 10% or more of the outstanding shares
of voting stock. Nevada permits a corporation to opt out
of the application of these business combination provisions by so
providing in the articles of incorporation or
bylaws. The Company’s Bylaws contain a provision
opting out of the application of these business combination
provisions.
-23-
PLAN OF
DISTRIBUTION
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, 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.
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 of 1933, as amended (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 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.
-24-
LEGAL MATTERS
The validity of the securities offered by this prospectus will be
passed upon by Disclosure Law Group, a Professional Corporation,
San Diego, California (DLG). Partners of DLG beneficially own an aggregate
of 65,987 registered and/or restricted shares of our common
stock.
EXPERTS
The financial statements of the Company incorporated in this
prospectus by reference to the Annual Report on Form 10-K for the
fiscal year ended March 31, 2016 have been audited by OUM & Co.
LLP, an independent registered public accounting firm, as set forth
in their report thereon.
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. You
may read and copy any document we file at the SEC’s public
reference room at 100 F Street, NE, Washington, D.C. 20549. You can
request copies of these documents by writing to the SEC and paying
a fee for the copying cost. Please call the SEC at 1-800-SEC-0330
for more information about the operation of the public reference
room. Our SEC filings are also 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:
●
Annual Report on Form 10-K for
the fiscal year ended March 31, 2016, filed on June 24,
2016;
●
Quarterly Report on Form 10-Q for
the quarter ended June 30, 2016, filed on August 12,
2016;
●
Quarterly Report on Form 10-Q for
the quarter ended September 30, 2016, filed on November 14,
2016;
●
Current Report on Form 8-K, filed
on May 16, 2016;
●
Current Report on Form 8-K, filed
on June 22, 2016;
●
Current Report on Form 8-K filed
on August 17, 2016;
●
●
Current Report on Form 8-K filed on December 14,
2016; 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 of the Exchange Act (other than any
portions of filings that are furnished rather than filed pursuant
to Items 2.02 and 7.01 of a Current Report on Form 8-K) after the
date of the initial registration statement of which this prospectus
is a part and prior to effectiveness of such registration
statement. All documents we file in the future pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this prospectus and prior to the termination of the offering are
also incorporated by reference and are an important part of this
prospectus.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for the purposes of this registration statement to the
extent that a statement contained herein or in any other
subsequently filed document which also is or deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this registration statement.
We will provide to each person, including any beneficial owner, to
whom a prospectus is delivered, a copy of any or all of the
information that has been incorporated by reference in the
prospectus but not delivered with the prospectus. You may request a
copy of these filings, excluding the exhibits to such filings which
we have not specifically incorporated by reference in such filings,
at no cost, by writing to or calling us at:
VistaGen Therapeutics, Inc.
Attn: Corporate Secretary
343 Allerton Avenue
South San Francisco, CA 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.
-25-
PROSPECTUS
$ 100,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
[______________], 2017
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 registration fee.
|
|
Amount
|
|
SEC registration
fee
|
$11,590
|
|
FINRA filing fee
(if applicable)
|
15,500
|
|
Accounting fees and
expenses
|
50,000
|
|
Legal fees and
expenses
|
100,000
|
|
Transfer agent and
registrar fees and expenses
|
5,000
|
|
Trustee fees and
expenses
|
15,000
|
|
Printing and
miscellaneous fees and expenses
|
10,000
|
|
|
|
|
Total
|
$207,090
|
ITEM 15. INDEMNIFICATION OF OFFICERS AND
DIRECTORS
Limitations of liability and indemnification
Our amended and restated bylaws provide that we will indemnify our
directors, officers and employees to the fullest extent permitted
by the Nevada Revised Statutes (NRS).
If the NRS are amended to authorize corporate action further
eliminating or limiting the personal liability of a director, then
the liability of our directors will be eliminated or limited to the
fullest extent permitted by the NRS, as so amended. Our articles of
incorporation do not eliminate a director’s duty of care and,
in appropriate circumstances, equitable remedies, such as
injunctive or other forms of non-monetary relief, will remain
available under the NRS. This provision also does not affect a
director’s responsibilities under any other laws, such as the
federal securities laws or other state or federal laws. Under our
bylaws, we are empowered to enter into indemnification agreements
with our directors, officers and employees to purchase insurance on
behalf of any person whom we are required or permitted to
indemnify.
In addition to the indemnification required in our bylaws, we have
entered into indemnification agreements with each of the
individuals serving on our board of directors. These agreements
provide for the indemnification of our directors to the fullest
extent permitted by law. We believe that these bylaw provisions and
indemnification agreements are necessary to attract and retain
qualified persons as directors, officers and employees. We also
maintain directors’ and officers’ liability
insurance.
The limitation of liability and indemnification provisions in our
bylaws may discourage stockholders from bringing a lawsuit against
our directors and officers for breach of their fiduciary duties.
They may also reduce the likelihood of derivative litigation
against directors and officers, even though an action, if
successful, might benefit us and our stockholders. Further, a
stockholder’s investment may be adversely affected to the
extent that we pay the costs of settlement and damage awards
against directors and officers pursuant to these indemnification
provisions.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers and
certain employees pursuant to the foregoing provisions, or
otherwise, we have been advised that, in the opinion of the SEC,
such indemnification is against public policy as expressed in the
Securities Act, and is, therefore, unenforceable.
There is no pending litigation or proceeding naming any of our
directors or officers as to which indemnification is being sought,
nor are we aware of any pending or threatened litigation that may
result in claims for indemnification.
ITEM 16. EXHIBITS
|
1.1*
|
Form of Underwriting 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 unit agreement with respect to any unit issued
hereunder
|
|
4.4*
|
Form of indenture for senior debt securities
|
|
4.5*
|
Form of indenture for subordinated debt
securities
|
|
4.6*
|
Form of senior note
|
|
4.7*
|
Form of subordinated note
|
|
5.1*
|
Opinion of Disclosure Law Group, a Professional
Corporation
|
|
12.1*
|
Computation of Ratio of Earnings to Fixed Charges
|
|
23.1*
|
Consent of Disclosure Law Group, a Professional
Corporation
|
|
23.2
|
Consent of Independent Registered Public Accounting Firm
– OUM & Co., LLP
|
|
24
|
Power of Attorney (located on signature page to this Registration
Statement)
|
|
25.1**
|
Form T-1 Statement of Eligibility of Trustee for senior
indenture under the Trust Indenture Act of 1939
|
|
25.2**
|
Form T-1 Statement of Eligibility of Trustee for subordinated
indenture under the Trust Indenture Act of 1939
|
|
*
|
To be
filed, if necessary, subsequent to the effectiveness of this
registration 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.
|
|
**
|
To be
filed as an exhibit to a Current Report on Form 8-K or pursuant to
Section 305(b)(2) of the Trust Indenture Act of 1939 and
incorporated herein by reference.
|
II-1
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
Securities 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) If
the Registrant is relying on Rule 430B:
(A)
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
(B)
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; or
(ii) If
the registrant is subject to Rule 430C, each prospectus filed
pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying
on Rule 430B or other than prospectuses filed in reliance on Rule
430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such date of
first use.
II-2
(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 of 1933, 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.
(7) To file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 of 1933 and will be governed by the final
adjudication of such issue.
II-3
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 January 23, 2017.
|
|
VISTAGEN THERAPEUTICS, INC.
|
||
|
|
|
|
|
|
|
By:
|
/s/
Shawn K. Singh, JD
|
|
|
|
|
Shawn K. Singh, JD
|
|
|
|
|
Chief Executive Officer
|
|
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature
below constitutes and appoints Shawn K. Singh as attorney-in-fact,
with power of substitution, for him in any and all capacities, to
sign any amendments to this Registration Statement on Form S-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 |
|
Title
|
|
Date
|
|
|
|
|
|
|
|
/s/ Shawn K.
Singh
|
|
Chief Executive Officer, and Director
(Principal
Executive Officer)
|
|
|
|
Shawn K. Singh
|
|
|
|
January 23, 2017
|
|
|
|
|
|
|
|
/s/ Jerrold D. Dotson
|
|
Vice President and Chief Financial
Officer (Principal Financial and
Accounting Officer)
|
|
|
|
Jerrold D. Dotson
|
|
|
|
January
23, 2017
|
|
|
|
|
|
|
|
/s/ Jon S. Saxe
|
|
Chairman of the Board of Directors
|
|
|
|
Jon S. Saxe
|
|
|
|
January
23, 2017
|
|
|
|
|
|
|
|
/s/ H. Ralph Snodgrass
|
|
President, Chief Scientific Officer and Director
|
|
|
|
H. Ralph Snodgrass, Ph.D.
|
|
|
|
January
23, 2017
|
|
|
|
|
|
|
|
/s/ Brian J. Underdown
|
|
Director
|
|
|
|
Brian J. Underdown, Ph.D.
|
|
|
|
January
23, 2017
|
|
|
|
|
|
|
|
/s/ Jerry B. Gin
|
|
Director
|
|
|
|
Jerry B. Gin, Ph.D, MBA
|
|
|
|
January
23, 2017
|
|
|
|
|
|
|
II-4