S-8
As filed with the Securities and Exchange Commission on March 9,
2018
Registration
No. 333- _______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VistaGen Therapeutics, Inc.
(Exact
name of registrant as specified in its charter)
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Nevada
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20-5093315
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(State
or Other Jurisdiction of
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(I.R.S.
Employer
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Incorporation
or Organization)
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Identification
No.)
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343 Allerton Avenue
South San Francisco, California 94080
(Address
of Principal Executive Offices)
1999 Stock Incentive Plan
and
Amended and Restated 2016 Equity Incentive Plan
(Full
title of the plan)
Shawn K. Singh
Chief Executive Officer
VistaGen Therapeutics, Inc.
343 Allerton Avenue
South San Francisco, California 94080
(Name
and address of agent for service)
(650) 577-3600
(Telephone
number, including area code, of agent for service)
Copies to:
Jessica R. Sudweeks, Esq.
Disclosure Law Group, a Professional Corporation
600 W. Broadway, Suite 700
San Diego, California 92101
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.
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Large Accelerated filer
[ ]
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Accelerated filer [ ]
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Non-accelerated filer [ ]
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Smaller reporting company [X]
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CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered
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Amount to be
Registered (1)
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Proposed Maximum
Offering Price per
Share (2)
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Proposed Maximum
Aggregate Offering
Price
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Amount of
Registration Fee
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Common Stock,
$0.001 par value per share: To be issued under the Amended and
Restated 2016 Equity Incentive Plan
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3,286,671
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$1.22
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$4,009,738.62
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$499.21
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Common Stock,
$0.001 par value per share: Outstanding options issued by the
Registrant under the Amended and Restated 2016 Equity Incentive
Plan
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5,015,829(3)
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$1.22
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$6,119,311.38
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$761.86
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Total
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8,302,500
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$10,129,050.00
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$1,261.07
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(1)
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We
previously registered an aggregate total of 997,229 shares of our
common stock, both issued and issuable under our 1999 Stock
Incentive Plan (the 1999
Plan) and our Amended and Restated 2016 Equity Incentive
Plan, formerly the 2008 Stock Incentive Plan (the 2016 Plan, and collectively, the
Plans) on a registration
statement on Form S-8 (File No. 333-208354). This registration
statement on Form S-8 is being filed to register an additional
8,302,500 shares of our common stock underlying options that may be
issued or are currently outstanding under the 2016 Plan. In
accordance with Rule 416 under the Securities Act of 1933, as
amended, this registration statement shall also be deemed to cover
any additional securities that may from time to time be offered or
issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
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(2)
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Estimated
solely for the purpose of calculating the amount of the
registration fee pursuant to Rules 457(c) and (h) under the
Securities Act of 1933, as amended.
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(3)
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Represents
5,015,829 shares of common stock issuable upon exercise of
outstanding stock options previously issued under the 2016
Plan.
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EXPLANATORY NOTE
VistaGen
Therapeutics, Inc. (the Company) has prepared this
Registration Statement in accordance with the requirements of Form
S-8 under the Securities Act of 1933, as amended (the Securities Act), to register an additional
8,302,500 shares of the Company’s common stock, $0.001 par
value, issuable pursuant to the Company’s Amended and
Restated 2016 Equity Incentive Plan, formerly the 2008 Stock
Incentive Plan (the 2016
Plan). The 2016 Plan provides for the grant of incentive
stock options, non-qualified stock options, restricted shares of
common stock, stock appreciation rights and dividend equivalent
rights, collectively referred to as “Awards.” Awards,
other than incentive stock options, may be granted to the
Company’s employees, directors and consultants. The Company
previously registered an aggregate of 997,229 shares of its common
stock (Registration No. 333-208354) (the Prior Registration Statement) under
the 2008 Stock Incentive Plan (the 2008 Plan) and the Company’s
1999 Stock Incentive Plan (the 1999 Plan). The 2008 Plan was amended
and restated on July 26, 2016 and subsequently
amended on September 15, 2017, and is now known as the 2016
Plan.
Pursuant to General
Instruction E to Form S-8, the contents of the Prior Registration
Statement relating to the 2008 Plan and the 1999 Plan, and all
periodic reports filed by the Company after the Prior Registration
Statement to maintain current information about the Company are
hereby incorporated by reference. The Prior Registration Statement
included a reoffer prospectus, which is not incorporated by
reference and made a part hereof. Instead, a revised reoffer
prospectus (the Reoffer
Prospectus) has been included in Part I of this Registration
Statement.
The
names of certain persons who may, from time to time in the future,
sell shares under the Reoffer Prospectus and the amount of such
shares are set forth below under the caption “Selling Stockholders.” However,
non-affiliates who hold less than the lesser of 1,000 shares or 1%
of our common stock issuable under the Plans may resell restricted
securities issued under each respective Plan and are not identified
herein as Selling Stockholders, but may use this Reoffer Prospectus
for future reoffers and resales. In addition, other affiliate
selling stockholders may elect to sell shares under the Reoffer
Prospectus as they receive them from time to time in the future in
which case, as their names and amounts of shares to be reoffered
become known, we will supplement the Reoffer Prospectus with that
information. Any securities covered by the Reoffer Prospectus which
qualify for sale pursuant to Rule 144 may be sold under Rule 144
rather than pursuant to the Reoffer Prospectus.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
document(s) containing the information concerning the 1999 Plan and
the 2016 Plan (collectively, the Plans) specified in Part I will be
sent or given to participants of the Plans as specified by Rule
428(b)(1). Such documents are not filed as part of this
Registration Statement in accordance with the Note to Part I of the
Form S-8 Registration Statement.
REOFFER PROSPECTUS
VISTAGEN THERAPEUTICS, INC.
5,301,546 Shares of Common Stock
This Reoffer Prospectus relates to the sale of up 5,301,546 shares
of our common stock, par value $0.001 per share, that may be
offered and resold from time to time in the future by existing
stockholders of the Company (the Selling Stockholders) identified in
this Reoffer Prospectus for his or her own account issuable
pursuant to the Company's 1999 Stock Incentive Plan (the
1999 Plan) and the Amended
and Restated 2016 Equity incentive Plan, formerly known as the 2008
Stock Incentive Plan (the 2016
Plan and, together with the 1999 Plan, the Plans). The Plans
provide for the grant of incentive stock options, non-qualified
stock options, restricted shares of common stock, stock
appreciation rights and dividend equivalent rights, collectively
referred to as “Awards.” Awards, other than incentive
stock options, may be granted to the Company’s employees,
directors and consultants. It is anticipated that the
Selling Stockholders will offer common stock for sale at prevailing
prices, as reported by the NASDAQ Capital Market on the date of
sale. We will receive no part of the proceeds from sales made under
this Reoffer Prospectus. The Selling Stockholders will bear all
sales commissions and similar expenses. Any other expenses incurred
in connection with the registration and offering of the shares will
be borne by the Company.
The
shares of common stock will be issued pursuant to stock options
previously granted under the Plans or granted in the future under
the 2016 Plan. This Reoffer Prospectus has been prepared for the
purposes of registering the common stock under the Securities Act
of 1933, as amended, to allow for future sales by the Selling
Stockholders on a continuous or delayed basis to the public without
restriction.
Our common stock is quoted on NASDAQ Capital Market under the
symbol “VTGN.” The closing sales price for our common
stock on March 8, 2018 was $1.37 per share.
Investing
in our common stock involves risks. See “Risk Factors” on page 6 of this
Reoffer Prospectus.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
DETERMINED
IF THIS REOFFER PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY
REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
The
date of this Reoffer Prospectus is March 9, 2018
VISTAGEN THERAPEUTICS, INC.
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You should rely only on the information contained in this Reoffer
Prospectus or any related prospectus supplement. We have not
authorized anyone to provide you with different information. If
anyone provides you with different or inconsistent information, you
should not rely on it. The information contained in this Reoffer
Prospectus or incorporated by reference herein is accurate only on
the date of this Reoffer Prospectus. Our business, financial
condition, results of operations and prospects may have changed
since such date. Other than as required under the federal
securities laws, we undertake no obligation to publicly update or
revise such information, whether as a result of new information,
future events or any other reason.
This Reoffer Prospectus is not an offer to sell, nor is it an offer
to buy, these securities in any jurisdiction where the offer or
sale is not permitted.
This summary highlights certain information that we present more
fully in the rest of this Reoffer Prospectus. This summary does not
contain all of the information you should consider before investing
in the securities offered pursuant to this Reoffer Prospectus. You
should read the entire prospectus carefully, including the section
titled “Risk Factors,” before making an investment
decision.
Except where the context otherwise requires and for purposes of
this Reoffer Prospectus only, “we,” “us,”
“our,” “Company,” “our
Company,” and “VistaGen” refer to VistaGen
Therapeutics, Inc., a Nevada corporation, and its consolidated
subsidiaries.
Overview
We are
a clinical-stage biopharmaceutical company focused on developing
new generation medicines for depression and other central nervous
system (CNS) disorders.
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. All references
to future quarters and years in this Report refer to calendar
quarters and calendar years, unless reference is made
otherwise.
AV-101
is our oral CNS glutamatergic product candidate in Phase 2 clinical
development in the United States, initially as a new generation
adjunctive treatment for Major Depressive Disorder (MDD) in patients with an inadequate
response to standard antidepressants approved by the U.S. Food and
Drug Administration (FDA). AV-101’s
mechanism of action (MOA)
involves both NMDA (N-methyl-D-aspartate) and AMPA
(alpha-amino-3-hydroxy-5-methyl-4-isoxazolepropionic acid)
receptors in the brain responsible for fast excitatory synaptic
activity throughout the CNS. AV-101’s MOA is
fundamentally different from all standard FDA-approved
antidepressants, as well as all atypical antipsychotics, such as
aripiprazole, often used adjunctively with standard
antidepressants. We believe AV-101 also has potential to treat
several additional CNS indications where modulation of the
NMDA receptors, activation of AMPA pathways and/or key active
metabolites of AV-101 may achieve therapeutic benefit,
including, among others, as a non-opioid alternative for
neuropathic pain, Parkinson’s disease levodopa-induced
dyskinesia (PD LID) and
suicidal ideation.
Clinical studies
conducted at the U.S. National Institute of Mental Health
(NIMH), part of the U.S.
National Institutes of Health (NIH), by 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, have focused on the antidepressant effects of
ketamine hydrochloride injection (ketamine), an ion-channel blocking
NMDA receptor antagonist approved by the FDA as an anesthetic, in
MDD patients with inadequate responses to multiple standard
antidepressants. These NIMH studies, as well as clinical research
at Yale University and other academic institutions in the U.S.,
have demonstrated ketamine’s fast-acting antidepressant
effects in treatment-resistant MDD patients, achieving therapeutic
benefits within twenty-four hours of a single sub-anesthetic dose
administered by intravenous (IV) injection.
We
believe orally administered AV-101 may have potential to deliver
ketamine-like antidepressant effects, without ketamine’s
psychological side effects and other safety concerns, and without
the need for IV administration. As published in the October 2015
issue of the peer-reviewed, Journal of Pharmacology and Experimental
Therapeutics, in an article titled, 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 sub-anesthetic control dose of ketamine. In addition, these
studies confirmed that the fast-acting antidepressant effects of
AV-101 were mediated through both inhibiting the glycine binding
(GlyB) site of the NMDA
receptor and activating the AMPA receptor pathway in the
brain.
In
October 2017, we received FDA authorization to launch our Phase 2
double blind, placebo-controlled efficacy and safety study of
AV-101 as a new generation adjunctive treatment for MDD patients
with an inadequate therapeutic response to standard, FDA-approved
antidepressants (the AV-101
MDD Phase 2 Adjunctive Treatment Study), and in December
2017 the FDA granted Fast Track Designation to AV-101 for
development as a potential adjunctive treatment for MDD. We
intend to launch the AV-101 MDD Phase 2 Adjunctive Treatment Study
in the first quarter of 2018 with Dr. Maurizio Fava, Professor of
Psychiatry at Harvard Medical School and Director, Division of
Clinical Research, Massachusetts General Hospital (MGH) Research Institute, as the
Principal Investigator. Dr. Fava was the co-Principal
Investigator with Dr. A. John Rush of the STAR*D study, the largest
clinical trial conducted in depression to date, 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 expect top line results of
the AV-101 MDD Phase 2 Adjunctive Treatment Study to be available
in the first half of 2019. In addition, pursuant to our
Cooperative Research and Development Agreement (CRADA) with the NIMH, the NIMH is
currently funding, and Dr. Zarate, as Principal Investigator, and
his team are currently conducting, a small Phase 2 clinical study
of AV-101 as a monotherapy in subjects with treatment-resistant MDD
(the NIMH AV-101 MDD Phase 2
Monotherapy Study).
VistaStem
Therapeutics (VistaStem)
is our wholly owned subsidiary focused on applying human
pluripotent stem cell (hPSC) technology to discover, rescue,
develop and commercialize (i) proprietary new chemical entities
(NCEs) for CNS and other
diseases and, through collaborations, (ii) regenerative medicine
(RM) involving
hPSC-derived blood, cartilage, heart and liver cells. Our
internal drug rescue programs are designed to
utilize CardioSafe
3D, our customized cardiac bioassay system, to develop small
molecule NCEs for our pipeline. To advance potential RM
applications of our cardiac stem cell technology, in December 2016,
we exclusively licensed to BlueRock Therapeutics LP, a next
generation RM company established by Bayer AG and Versant Ventures
(BlueRock Therapeutics),
rights to certain proprietary technologies relating to the
production of cardiac stem cells for the treatment of heart disease
(the BlueRock
Agreement). In a manner similar to our agreement with
BlueRock Therapeutics, we may pursue additional RM collaborations
or out-licensing transactions involving blood, cartilage, and/or
liver cells derived from hPSCs for RM and cell-based therapy, cell
repair therapy, and/or tissue engineering.
AV-101 and Major Depressive Disorder
Background
The
World Health Organization (WHO) estimates that 300 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 2016, approximately 16 million adults in
the U.S. had at least one major depressive episode in the past
year. According to the U.S. Centers for Disease Control and
Prevention (CDC) in an
August 2017 report, 1 in 8 Americans over the age of 12 reported
taking an FDA-approved antidepressant in the previous
month.
Most
antidepressants target chemical imbalances in the brain related to
neurotransmitter reuptake inhibition – either serotonin
(antidepressants known as SSRIs) or serotonin/norepinephrine
(antidepressants known as SNRIs). Nearly 2 out of every 3
drug-treated depression patients do not obtain adequate therapeutic
benefit from their initial treatment with a standard
antidepressant. Even when effective, these standard antidepressants
take many weeks to achieve adequate therapeutic effects. After
multiple treatment attempts involving many different standard
antidepressants, nearly one out of every three drug-treated
depression patients still do not achieve adequate therapeutic
benefits from their antidepressant medication. Such
patients with an inadequate response to standard antidepressants
often seek to augment their treatment regimen by adding an atypical
antipsychotic drug (a drug such as aripiprazole), despite only
modest potential therapeutic benefit and the significant risk of
additional side effects from such adjunctive drugs.
All
antidepressants have risks of side effects, including, among
others, anxiety, metabolic syndrome, sleep disturbance and sexual
dysfunction. Adjunctive use of atypical antipsychotics to augment
inadequately performing standard antidepressants may increase the
risk of significant side effects, including, tardive dyskinesia,
substantial weight gain, diabetes and heart disease, while offering
only a modest potential increase in therapeutic
benefit.
AV-101
AV-101
is our oral CNS product candidate in Phase 2 development in the
United States, initially as a new generation glutamatergic
antidepressant for the adjunctive treatment of MDD patients with an
inadequate therapeutic response to standard, FDA-approved
antidepressants. As published in the October 2015 issue of the
peer-reviewed, Journal of
Pharmacology and Experimental Therapeutics, in an
article titled, “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 ketamine-like antidepressant effects following a single
treatment, responses equivalent to those seen with a single
sub-anesthetic control dose of ketamine, but without the negative
side effects seen with ketamine. In addition, these studies
confirmed that the antidepressant effects of AV-101 were mediated
through both inhibition of the GlyB site of NMDA receptors and
activation of the AMPA receptor pathway in the brain, a key final
common pathway feature of certain new generation glutamatergic
antidepressants such as ketamine and AV-101, each with a MOA that
is fundamentally different from all standard antidepressants and
atypical antipsychotics used adjunctively to augment
them.
We
have completed two NIH-funded, randomized, double blind,
placebo-controlled AV-101 Phase 1 first-in-human safety studies.
Currently, pursuant to our CRADA with the NIMH and Dr. Carlos
Zarate, Jr., the NIMH is currently funding, and Dr. Zarate, as
Principal Investigator, and his team are currently conducting, the
NIMH AV-101 MDD Phase 2 Monotherapy Study.
In
October 2017, we received authorization from the FDA to proceed,
under our Investigational New Drug (IND) application, with the AV-101 MDD
Phase 2 Adjunctive Treatment Study, which will test the safety,
efficacy and tolerability of AV-101 as an adjunctive treatment of
MDD in adult patients with an inadequate therapeutic response to
standard, FDA-approved antidepressants. We intend to launch the
AV-101 MDD Phase 2 Adjunctive Treatment Study in the first quarter
of 2018, and expect top line results to be available in the first
half of 2019. Additionally, in December 2017 the FDA granted Fast
Track Designation to AV-101 for development as a potential
adjunctive treatment for MDD. The FDA’s Fast Track
Designation is a process designed to facilitate the development and
expedite the review of drugs to treat serious conditions and unmet
medical needs. With Fast Track Designation, there is an increased
possibility for a priority review of AV-101 by the
FDA.
We
believe preclinical studies and Phase 1 safety studies support our
hypothesis that AV-101 also has potential as a non-opioid treatment
alternative for neuropathic pain, as well as several additional CNS
indications where modulation of the
NMDA receptors, activation of AMPA pathways and/or key active
metabolites of AV-101 may achieve therapeutic benefit,
including PD LID, epilepsy, Huntington’s disease and suicidal
ideation. We are beginning to plan additional Phase 2 clinical
studies to further evaluate the therapeutic potential of AV-101
beyond MDD, however we do not intend to initiate such studies in
2018.
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 small molecule NCEs for CNS and other diseases, as well
as potential regenerative medicine (RM) and 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. Potential
commercial applications of our stem cell technology platform
involve using CardioSafe 3D internally for NCE
drug discovery and drug rescue to expand our proprietary drug
candidate pipeline. Drug rescue involves leveraging substantial
prior research and development investments by pharmaceutical
companies and others related to public domain NCE programs
terminated before FDA approval due to heart toxicity risks and RM
and cellular therapies. To advance potential RM applications of our
cardiac stem cell technology, in December 2016, we exclusively
licensed to BlueRock Therapeutics LP, a next generation
regenerative medicine company established 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. In a manner similar to the BlueRock Agreement, 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.
Risk Factors
Our
business is subject to substantial risk. Please carefully consider
the section titled “Risk
Factors” on page 6 of this Reoffer Prospectus for a
discussion of the factors you should carefully consider before
deciding to purchase the securities offered by this Reoffer
Prospectus. These risks include, among others:
●
we
are a development stage biopharmaceutical company with no current
revenues or approved products, and limited experience developing
new drug, biological and/or regenerative medicine candidates, which
makes it difficult to assess our future viability;
●
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;
●
failures or delays in the commencement or completion of, or supply
of AV-101 for, our planned clinical trials could delay, prevent or
limit our ability to complete clinical development of AV-101 in a
timely manner, or at all, or generate revenue and continue our
business;
●
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;
●
some of our programs have been partially supported by government
grants, which may not be available to us in the
future;
●
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
●
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.
By
this Reoffer Prospectus, the Selling Stockholders are offering up
to 5,301,546 shares of our common stock, which are issuable
pursuant to our 1999 Plan and 2016 Plan. The Selling Stockholders
are not required to sell their shares, and any future sales of
common stock by the Selling Stockholders are entirely at the
discretion of the Selling Stockholders. We will receive no proceeds
from any future sale of the shares of common stock in this
offering. However, upon any exercise of outstanding stock options
granted under the Plans and any stock options granted in the future
under the 2016 Plan, we will receive proceeds associated with such
exercises.
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Securities Registered:
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5,301,546
shares of common stock, par value $0.001
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Shares of Common Stock Outstanding Prior to Completion of the
Offering:
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22,902,615
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NASDAQ Symbol:
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VTGN
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Transfer Agent:
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Computershare,
Jersey City, New Jersey.
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Risk Factors:
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Our
business operations are subject to numerous risks. See
“Risk Factors”
beginning on page 6 of this prospectus for a discussion of factors
you should carefully consider before investing in our
securities.
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Use of Proceeds:
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We
will not receive any proceeds from the sale of the shares of common
stock registered pursuant to this Reoffer Prospectus. However, upon
exercise of oustanding stock options granted under the Plans and
any stock options granted in the future under the 2016 Plan, we
will receive proceeds associated with such exercises. To the extent
that we receive any funds from the exercise of options or other
awards issued to the Selling Stockholders under the Plans, such
funds will be used to fund the research and development of our
product candidates, including AV-101, and for working capital and
general corporate purposes.
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Sales by Affiliates and Sales of Restricted Securities
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Selling
Stockholders who are considered “affiliates” of the
Company, as defined in Rule 405 under the Securities Act, or who
are selling “restricted securities”, as defined in Rule
144(a)(3) under the Securities Act, may not sell an amount of
shares pursuant to this Reoffer Prospectus which exceeds in any
three month period the amount specified in Rule 144(e) under the
Securities Act.
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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, 2017, 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. The risks and
uncertainties we have described in our Annual Report on Form 10-K
for the fiscal year ended March 31, 2017 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.
CAUTIONARY NOTES REGARDING
FORWARD-LOOKING STATEMENTS
This
Reoffer Prospectus contains forward-looking statements that involve
substantial risks and uncertainties. All statements contained in
this Reoffer Prospectus 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 of MDD patients with an inadequate therapeutic
response to standard, FDA-approved antidepressants,
and
subsequently as a treatment for additional diseases and disorders
involving the CNS;
●
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
timely and satisfactory performance of the U.S. National Institute
of Mental Health, our third-party contract manufacturer(s),
contract research organization(s) and other third-party
non-clinical and clinical development collaborators and regulatory
service providers;
●
our
ability to obtain and maintain intellectual property protection for
our 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, 2017 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 Reoffer Prospectus, as well
as certain information incorporated by reference into this Reoffer
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 Reoffer 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.
DETERMINATION OF OFFERING PRICE
The Selling Stockholders may, from time-to-time in the future, sell
the common stock issued to them from time-to-time upon exercise of
stock options granted to them under the Plans at prices and on
terms then prevailing or at prices related to the then current
market price, or in negotiated transactions.
This Reoffer Prospectus relates to shares of our common stock that
may be offered and sold from time to time in the future by the
Selling Stockholders. We will not receive any proceeds from the
sale of the shares of common stock registered pursuant to this
Reoffer Prospectus. However,
upon any exercise of outstanding stock options granted under the
Plans and any stock options granted in the future under the 2016
Plan, we will receive proceeds associated with such
exercises. To the extent that we receive any funds from the
exercise of options or other awards issued to the Selling
Stockholders under the Plans, such funds will be used to fund the
development of product candidates, including AV-101, and for
working capital and general corporate purposes.
The Selling Stockholders named in this Reoffer Prospectus are
offering up to 5,301,546 shares of our common stock, issuable upon
exercise of stock options granted to the Selling Stockholders
pursuant to the Plans.
The following table provides, as of March 2, 2018, information
regarding the beneficial ownership of our common stock held by each
of the Selling Stockholders, including:
|
1.
|
the
number of shares of common stock beneficially owned by each Selling
Stockholder prior to this offering;
|
|
2.
|
the
total number of shares of common stock that are to be offered by
each Selling Stockholder;
|
|
3.
|
the
total number of shares of common stock that will be beneficially
owned by each Selling Stockholder upon completion of the offering;
and
|
|
4.
|
the
percentage beneficially owned by each Selling
Stockholder.
|
Non-affiliates
who hold less than the lesser of 1,000 shares or 1% of our common
stock issuable under the Plans may resell restricted securities
issued under each respective Plan and are not identified herein as
Selling Stockholders. These non-affiliates may, however, use this
Reoffer Prospectus for reoffers and resales.
Information with respect to beneficial ownership is largely based
upon Company records, as well as information obtained from the
Selling Stockholders. Information with respect to "Shares
Beneficially Owned Prior to this Offering" includes the shares
issued pursuant to the Plans. Information with respect to "Shares
Beneficially Owned Upon Completion of this Offering" assumes the
sale of all shares of the common stock offered by this Reoffer
Prospectus and no other purchases or sales of our common stock by
the Selling Stockholders. Except as described below and to our
knowledge, each named Selling Stockholder beneficially owns and has
sole voting and investment power over all common stock or rights to
these shares of common stock.
|
|
|
Position
with
|
Shares
Beneficially
Owned Prior
to
this
Offering (1)
|
|
Shares
Beneficially
Owned
Upon
Completion
of
this
Offering
|
|
Name
(3)
|
|
the
Company
|
|
|
|
|
|
|
Shawn
K. Singh
|
|
Chief
Executive Officer, Director
|
941,348
|
3.95%
|
980,375
|
(2)
|
504,037
|
2.16%
|
|
Mark
A. Smith, Ph. D.
|
|
Chief
Medical Officer
|
277,215
|
1.20%
|
685,000
|
(2)
|
-
|
*
|
|
H.
Ralph Snodgrass, Ph. D.
|
|
President,
Chief Scientific Officer and Director
|
630,668
|
2.69%
|
621,250
|
(2)
|
370,224
|
1.59%
|
|
Jerrold
D. Dotson
|
|
Vice-President
and Chief Financial Officer
|
377,593
|
1.62%
|
531,001
|
(2)
|
165,000
|
*
|
|
Mark
McPartland
|
|
Vice-President
- Corporate Development
|
174,960
|
*
|
465,000
|
(2)
|
-
|
*
|
|
Jerry
B. Gin, Ph. D.
|
|
Director
|
317,566
|
1.37%
|
260,000
|
(2)
|
200,000
|
*
|
|
Jon
S. Saxe
|
|
Chairman
|
189,067
|
*
|
246,375
|
(2)
|
85,126
|
*
|
|
Brian
Underdown, Ph. D.
|
|
Director
|
184,316
|
*
|
244,250
|
(2)
|
82,500
|
*
|
|
Kristina
Bonham
|
|
Employee
|
95,282
|
*
|
216,501
|
(2)
|
-
|
*
|
|
Hai-Qing
Xian
|
|
Employee
|
94,532
|
*
|
215,751
|
(2)
|
-
|
*
|
|
Danajane
Katz
|
|
Employee
|
52,555
|
*
|
122,250
|
(2)
|
30
|
*
|
|
Caren
Scannell
|
|
Employee
|
59,837
|
*
|
146,750
|
(2)
|
-
|
*
|
|
Jason
Adelman
|
|
Consultant
|
27,687
|
*
|
25,000
|
(2)
|
19,875
|
*
|
|
Reid
Adler
|
|
Consultant
|
106,329
|
*
|
77,500
|
(2)
|
69,629
|
*
|
|
Steven
Angel
|
|
Consultant
|
39,062
|
*
|
125,000
|
(2)
|
-
|
*
|
|
James
A. Burness
|
|
Consultant
|
96,221
|
*
|
25,125
|
(2)
|
88,724
|
*
|
|
Andrew
Golden
|
|
Consultant
|
104,501
|
*
|
10,000
|
(2)
|
101,376
|
*
|
|
Roberta
Jones
|
|
Consultant
|
16,070
|
*
|
25,551
|
(2)
|
-
|
*
|
|
Gordon
Keller, Ph. D.
|
|
Consultant
|
36,007
|
*
|
32,528
|
(2)
|
5,563
|
*
|
|
Marion
Kennedy
|
|
Consultant
|
1,001
|
*
|
1,001
|
(2)
|
-
|
*
|
|
Jeffrey
A. Lindeman
|
|
Consultant
|
38,621
|
*
|
25,000
|
(2)
|
30,809
|
*
|
|
Michael
Phillips
|
|
Consultant
|
184,966
|
*
|
25,438
|
(2)
|
176,716
|
*
|
|
Valter
Pinto
|
|
Consultant
|
38,850
|
*
|
100,000
|
(2)
|
7,600
|
*
|
|
Assaf
Raz
|
|
Consultant
|
21,375
|
*
|
10,000
|
(2)
|
18,250
|
*
|
|
Justin
Romanowski
|
|
Consultant
|
15,140
|
*
|
10,000
|
(2)
|
5,140
|
*
|
|
James
V. Sanders DVM, Ph. D.
|
|
Consultant
|
3,895
|
*
|
1,001
|
(2)
|
2,894
|
*
|
|
Jenene
Thomas
|
|
Consultant
|
43,125
|
*
|
20,000
|
(2)
|
23,125
|
*
|
|
Bernhard
Votteri, M.D.
|
|
Consultant
|
46,869
|
*
|
775
|
(2)
|
46,094
|
*
|
|
Ronald
Wester, Ph. D.
|
|
Consultant
|
3,816
|
*
|
1,001
|
(2)
|
2,815
|
*
|
|
Charles
M. Whiteman
|
|
Consultant
|
15,625
|
*
|
50,000
|
(2)
|
-
|
*
|
|
Holders of less than 1,000 shares (as a group)
|
5,146
|
*
|
2,123
|
(2)
|
3,373
|
*
|
|
|
|
|
|
5,301,546
|
|
|
|
____________
* less
than 1%
|
(1)
|
The
number and percentage of shares beneficially owned is determined in
accordance with Rule 13d-3 of the Securities Exchange Act of 1934,
as amended, and the information is not necessarily indicative of
beneficial ownership for any other purpose. Under such rule,
beneficial ownership includes any shares as to which the Selling
Stockholder has sole or shared voting power or investment power and
also any shares, which the Selling Stockholder has the right to
acquire within 60 days. "Shares
Beneficially Owned Upon Completion of this Offering" assumes
the sale of all of the common stock offered by this Reoffer
Prospectus and no other purchases or sales of our common stock by
the Selling stockholders.
|
|
|
|
|
(2)
|
Includes
shares that are issuable upon exercise of stock options issued
pursuant to the Plans, some of which are not, and will not become
vested within 60 days from March 2, 2018, and are not included in
the calculation of "Shares
Beneficially Owned Prior to this Offering".
|
|
|
|
|
(3)
|
Unless
otherwise indicated, the address for each Selling Stockholder is
c/o VistaGen Therapeutics, Inc., 343 Allerton Avenue, South San
Francisco, CA 94080.
|
|
|
|
|
(4)
|
Applicable
percentage ownership is based on 22,902,615 shares of common stock
outstanding as of March 2, 2018, together with securities
exercisable or convertible into shares of common stock within 60
days of March 2, 2018 for each stockholder, including, for purposes
of the shares beneficially owned prior to the Offering, the shares
offered for resale pursuant to this Reoffer
Prospectus.
|
Beneficial
ownership is determined in accordance with the rules of the SEC and
generally includes voting or investment power with respect to
securities. Shares of common stock that are currently exercisable
or exercisable within 60 days of March 2, 2018, are deemed to be
beneficially owned by the person holding such securities for the
purpose of computing the percentage of ownership of such person,
but are not treated as outstanding for the purpose of computing the
percentage ownership of any other person.
Timing of Sales
Subject to the
foregoing, the Selling Stockholders may elect to offer and sell the
shares covered by this Reoffer Prospectus at various times in the
future. The Selling Stockholders will act independently of our
Company in making decisions with respect to the timing, manner and
size of each sale.
No Known Agreements to Resell the Shares
To
our knowledge, no Selling Stockholder has any agreement or
understanding, directly or indirectly, with any person to resell
the common stock covered by this Reoffer Prospectus.
Offering Price
The
sales price offered by the Selling Stockholders to the public may
be:
|
1.
|
the
market price prevailing at the time of sale;
|
|
2.
|
a
price related to such prevailing market price; or
|
|
3.
|
such
other price as the selling stockholders determine from time to
time.
|
Manner of Sale
To the extent permissible, the shares of common stock may be sold
by means of one or more of the following methods:
|
1.
|
a
block trade in which the broker-dealer so engaged will attempt to
sell the common stock as agent, but may position and resell a
portion of the block as principal to facilitate the
transaction;
|
|
2.
|
purchases
by a broker-dealer as principal and resale by that broker-dealer
for its account pursuant to this Reoffer Prospectus;
|
|
3.
|
ordinary
brokerage transactions in which the broker solicits
purchasers;
|
|
4.
|
through
options, swaps or derivatives;
|
|
5.
|
in
transactions to cover short sales;
|
|
6.
|
privately
negotiated transactions; or
|
|
7.
|
in a
combination of any of the above methods.
|
The
Selling Stockholders may, from time-to-time in the future, sell
their common stock directly to purchasers or may use brokers,
dealers, underwriters or agents to sell their common stock. Brokers
or dealers engaged by the selling stockholders may arrange for
other brokers or dealers to participate. Brokers or dealers may
receive commissions, discounts or concessions from the selling
stockholders, or, if any such broker-dealer acts as agent for the
purchaser of common stock, from the purchaser in amounts to be
negotiated immediately prior to the sale. The compensation received
by brokers or dealers may, but is not expected to, exceed that
which is customary for the types of transactions
involved.
Broker-dealers
may agree with a Selling Stockholder to sell a specified number of
common stock at a stipulated price per share, and, to the extent
the broker-dealer is unable to do so acting as agent for a selling
stockholder, to purchase as principal any unsold common stock at
the price required to fulfill the broker-dealer commitment to the
selling stockholder.
Broker-dealers
who acquire common stock as principal may thereafter resell the
common stock from time to time in transactions, which may involve
block transactions and sales to and through other broker-dealers,
including transactions of the nature described above, in the
over-the-counter market or otherwise at prices and on terms then
prevailing at the time of sale, at prices then related to the
then-current market price or in negotiated transactions. In
connection with resales of the common stock, broker-dealers may pay
to or receive from the purchasers of shares commissions as
described above.
If
the Selling Stockholders enter into arrangements with brokers or
dealers, as described above, we are obligated to file a
post-effective amendment to this registration statement disclosing
such arrangements, including the names of any broker-dealers acting
as underwriters.
The
Selling Stockholders and any broker-dealers or agents that
participate with the Selling Stockholders in the sale of the common
stock may be deemed to be “underwriters” within the
meaning of the Securities Act. In that event, any commissions
received by broker-dealers or agents and any profit on the resale
of the common stock purchased by them may be deemed to be
underwriting commissions or discounts under the Securities
Act.
Sales by Affiliates and Sales of Restricted Securities
Selling
Stockholders who are considered “affiliates” of the
Company, as defined in Rule 405 under the Securities Act, or who
are selling “restricted securities”, as defined in Rule
144(a)(3) under the Securities Act, may not sell an amount of
shares pursuant to this reoffer prospectus which exceeds in any
three month period the amount specified in Rule 144(e) under the
Securities Act.
Sales Pursuant to Rule 144
Any
shares of common stock covered by this Reoffer Prospectus which
qualify for sale pursuant to Rule 144 under the Securities Act may
be sold under Rule 144 rather than pursuant to this Reoffer
Prospectus.
Accordingly,
during such times as a Selling Stockholder may be deemed to be
engaged in a distribution of the common stock, and therefore be
considered to be an underwriter, the selling stockholder must
comply with applicable law and, among other things:
|
1.
|
may
not engage in any stabilization activities in connection with our
common stock;
|
|
2.
|
may
not cover short sales by purchasing shares while the distribution
is taking place; and
|
|
3.
|
may
not bid for or purchase any of our securities or attempt to induce
any person to purchase any of our securities other than as
permitted under the Exchange Act.
|
In
addition, we will make copies of this Reoffer Prospectus available
to the selling stockholders for the purpose of satisfying the
prospectus delivery requirements of the Securities
Act.
State Securities Laws
Under the
securities laws of some states, the common stock may be sold in
such states only through registered or licensed brokers or dealers.
In addition, in some states the common stock may not be sold unless
the stock have been registered or qualified for sale in the state
or an exemption from registration or qualification is available and
is complied with.
Expenses of Registration
We are bearing all costs relating to the registration of the common
stock which may be sold from time-to-time in the future by the
Selling Stockholders. These expenses are estimated to include, but
are not limiteded to, legal, accounting, printing and mailing fees.
The Selling Stockholders, however, will pay any commissions or
other fees payable to brokers or dealers in connection with any
future sale of their common stock pursuant to this Reoffer
Prospectus.
The validity of the common stock offered by this Reoffer Prospectus
will be passed upon by Disclosure Law Group, a Professional
Corporation, of San Diego, California (DLG). Partners of DLG beneficially own
an aggregate of 84,487 registered and/or restricted shares of our
common stock.
EXPERTS
The financial statements as of and for the fiscal year ended March
31, 2017, incorporated by reference in this Reoffer Prospectus,
have been audited by OUM & Co. LLP, our independent registered
public accounting firm, as stated in their report and
are incorporated by reference in reliance upon the report
of such firm given upon their authority as experts in accounting
and auditing.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Securities and Exchange Commission (the SEC) allows us to "incorporate by
reference" into this Reoffer Prospectus the information that we
file with the SEC. This means that we can disclose important
information to you by referring you to those documents. Information
incorporated by reference is part of this Reoffer Prospectus.
Information that we file at a future date with the SEC will update
and supersede this information. For further information about the
Company and our common stock, please read the documents
incorporated by reference below.
●
Annual Report on
Form 10-K for the fiscal year ended March 31, 2017, filed on June
29, 2017;
●
Quarterly
Report on Form 10-Q for the quarter ended June 30, 2017, filed on
August 14, 2017;
●
Quarterly
Report on Form 10-Q for the quarter ended September 30, 2017, filed
on November 9, 2017;
●
Quarterly
Report on Form 10-Q for the quarter ended December 31, 2017, filed
on February 12, 2018;
●
Current
Report on Form 8-K, filed on April 28, 2017;
●
Current
Report on Form 8-K, filed on May 1, 2017;
●
Current
Report on Form 8-K filed on August 9, 2017;
●
Current
Report on Form 8-K, filed on August 31, 2017;
●
Current
Report on Form 8-K, filed on September 20, 2017;
●
Current
Report on Form 8-K, filed on October 2, 2017;
●
Current
Report on Form 8-K, filed on October 26, 2017;
●
Current
Report on Form 8-K, filed on November 7, 2017;
●
Current
Report on Form 8-K, filed on December 6, 2017;
●
Current
Report on Form 8-K, filed on December 8, 2017;
●
Current
Report on Form 8-K, filed on December 13, 2017;
●
Current
Report on Form 8-K, filed on January 8, 2018;
●
Current Report
on Form 8-K, filed on March 7, 2018; 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.
WHERE YOU CAN FIND ADDITIONAL
INFORMATION
This
Reoffer Prospectus is part of a registration statement on Form S-8
that we filed with the SEC. Certain information in the registration
statement has been omitted from this Reoffer Prospectus in
accordance with the rules of the SEC. We file annual, quarterly and
special reports, proxy statements and other information with the
SEC. You can inspect and copy the registration statement as well as
reports, proxy statements and other information we have filed with
the SEC at the public reference room maintained by the SEC at 100 F
Street N.E. Washington, D.C. 20549, You can obtain copies from the
public reference room of the SEC at 100 F Street N.E. Washington,
D.C. 20549, upon payment of certain fees. You can call the SEC at
1-800-732-0330 for further information about the public reference
room. We are also required to file electronic versions of these
documents with the SEC, which may be accessed through the SEC's
website at http://www.sec.gov. No dealer, salesperson or other
person is authorized to give any information or to make any
representations other than those contained in this Reoffer
Prospectus, and, if given or made, such information or
representations must not be relied upon as having been authorized
by us. This Reoffer Prospectus does not constitute an offer to buy
any security other than the securities offered by this Reoffer
Prospectus, or an offer to sell or a solicitation of an offer to
buy any securities by any person in any jurisdiction where such
offer or solicitation is not authorized or is unlawful. Neither
delivery of this Reoffer Prospectus nor any sale hereunder shall,
under any circumstances, create any implication that there has been
no change in the affairs of our company since the date
hereof.
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES
Insofar as
indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers or persons controlling
us pursuant to the foregoing provisions, we have been informed that
in the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act and is therefore
unenforceable. In addition, indemnification may be limited by state
securities laws.
VISTAGEN THERAPEUTICS, INC.
5,301,546
shares of common stock
Reoffer
Prospectus
Dated,
March 9, 2018
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
|
Item 3.
|
Incorporation of Documents by Reference
|
The following
documents, which have been previously filed by the Registrant with
the Securities and Exchange Commission (the SEC),
are hereby incorporated by reference in this Registration
Statement:
●
Annual Report on
Form 10-K for the fiscal year ended March 31, 2017, filed on June
29, 2017;
●
Quarterly Report on
Form 10-Q for the quarter ended June 30, 2017, filed on August 14,
2017;
●
Quarterly Report on
Form 10-Q for the quarter ended September 30, 2017, filed on
November 9, 2017;
●
Quarterly Report on
Form 10-Q for the quarter ended December 31, 2017, filed on
February 12, 2018;
●
Current Report on
Form 8-K, filed on April 28, 2017;
●
Current Report on
Form 8-K, filed on May 1, 2017;
●
Current Report on
Form 8-K filed on August 9, 2017;
●
Current Report on
Form 8-K, filed on August 31, 2017;
●
Current Report on
Form 8-K, filed on September 20, 2017;
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Current Report on
Form 8-K, filed on October 2, 2017;
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Current Report on
Form 8-K, filed on October 26, 2017;
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Current Report on
Form 8-K, filed on November 7, 2017;
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Current Report on
Form 8-K, filed on December 6, 2017;
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Current Report on
Form 8-K, filed on December 8, 2017;
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Current Report on
Form 8-K, filed on December 13, 2017;
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Current Report on
Form 8-K, filed on January 8, 2018;
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Current Report
on Form 8-K, filed on March 7, 2018; and
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The
description of our common stock contained in the Registration
Statement on Form 8-A filed pursuant to Section 12(b) of the
Exchange Act on May 3, 2016, including any amendment or report
filed with the SEC for the purpose of updating this
description.
Until
such time that a post-effective amendment to this Registration
Statement has been filed which indicates that all securities
offered hereby have been sold or which deregisters all securities
remaining unsold at the time of such amendment, all documents
subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of
filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which is
also deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration
Statement.
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Item 4.
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Description of Securities
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Not
applicable.
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Item 5.
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Interests of Named Experts and Counsel
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Not
applicable.
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Item 6.
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Indemnification of Directors and Officers
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Limitations of liability and indemnification
Our
amended and restated bylaws (bylaws) provide that we will indemnify
our directors, officers and employees to the fullest extent
permitted by the Nevada Revised Statutes (NRS).
If
the NRS are amended to authorize corporate action further
eliminating or limiting the personal liability of a director, then
the liability of our directors will be eliminated or limited to the
fullest extent permitted by the NRS, as so amended. Our Articles of
Incorporation do not eliminate a director’s duty of care and,
in appropriate circumstances, equitable remedies, such as
injunctive or other forms of non-monetary relief, will remain
available under the NRS. This provision also does not affect a
director’s responsibilities under any other laws, such as the
federal securities laws or other state or federal laws. Under our
bylaws, we are empowered to enter into indemnification agreements
with our directors, officers and employees to purchase insurance on
behalf of any person whom we are required or permitted to
indemnify.
In
addition to the indemnification required in our bylaws, we have
entered into indemnification agreements with each of the
individuals serving on our board of directors. These agreements
provide for the indemnification of our directors to the fullest
extent permitted by law. We believe that these bylaw provisions and
indemnification agreements are necessary to attract and retain
qualified persons as directors, officers and employees. We also
maintain directors’ and officers’ liability
insurance.
The
limitation of liability and indemnification provisions in our
bylaws may discourage stockholders from bringing a lawsuit against
our directors and officers for breach of their fiduciary duties.
They may also reduce the likelihood of derivative litigation
against our directors and officers, even though an action, if
successful, might benefit us and our stockholders. Further, a
stockholder’s investment may be adversely affected to the
extent that we pay the costs of settlement and damage awards
against our directors and officers pursuant to these
indemnification provisions.
Insofar as
indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers and certain employees
pursuant to the foregoing provisions, or otherwise, we have been
advised that, in the opinion of the SEC, such indemnification is
against public policy as expressed in the Securities Act, and is,
therefore, unenforceable.
There is
no pending litigation or proceeding naming us or any of our
directors or officers as to which indemnification is being sought,
nor are we aware of any pending or threatened litigation that may
result in claims for indemnification.
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Item 7.
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Exemption from Registration Claimed
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Not
applicable.
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Exhibit No.
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Document Description
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Incorporation by Reference
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Opinion
and Consent of Disclosure Law Group
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Filed
herewith.
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Consent
of OUM & Co., LLP, independent registered public accounting
firm
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Filed
herewith.
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1999
Stock Incentive Plan, as amended
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Incorporated
by reference from Exhibit 10.1 to the Company’s Current
Report on Form 8-K, filed with the SEC on May 16,
2011.
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Amended
and Restated 2016 Equity Incentive Plan
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Incorporated
by reference from the Company’s Definitive Proxy Statement,
filed with the SEC on August 8, 2016.
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(a) The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act; and
(ii) To
reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the Registration Statement; and
(iii) To include any material information
with respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement; and
(2) That,
for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof; and
(3) To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
Provided, however,
that paragraphs (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished
to the Commission by the Company pursuant to Section 13 or Section
15(d) of the Securities Exchange Act that are incorporated by
reference in the Registration Statement.
(b) The
undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of South San
Francisco, State of California, on March 9, 2018.
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VistaGen Therapeutics, Inc.
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By:
/s/ Shawn K.
Singh
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Name:
Shawn K. Singh
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Title:
Chief Executive Officer
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Pursuant to the
requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the
capacities and on the dates indicated.
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Signature
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Title(s)
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Date
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/s/ Shawn K.
Singh
Shawn K.
Singh
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Chief
Executive Officer, and Director
(Principal Executive Officer)
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March
9, 2018
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/s/ Jerrold D.
Dotson
Jerrold D.
Dotson
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Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
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March
9, 2018
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/s/ H. Ralph
Snodgrass
H.
Ralph Snodgrass, Ph. D.
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President, Chief Scientific Officer and Director
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March
9, 2018
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/s/ Jon S.
Saxe
Jon
S. Saxe
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Chairman of the Board of Directors
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March
9, 2018
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/s/ Brian J.
Underdown
Brian J.
Underdown, Ph. D.
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Director
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March
9, 2018
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/s/ Jerry B.
Gin
Jerry B. Gin,
Ph. D., MBA
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Director
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March
9, 2018
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