As filed with the Securities and Exchange Commission on September 30, 2019
Registration No. 333-223556
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VistaGen Therapeutics, Inc.
(Exact name of registrant as specified in its charter)
Nevada | 20-5093315 | |
(State or Other Jurisdiction of | (I.R.S. Employer | |
Incorporation or Organization) | Identification No.) |
343 Allerton Avenue
South San Francisco, California 94080
(Address of Principal Executive Offices)
VistaGen Therapeutics, Inc. 1999 Stock Incentive Plan
VistaGen Therapeutics, Inc. Amended and Restated 2016 Equity Incentive Plan
VistaGen Therapeutics, Inc. 2019 Omnibus 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
655 W. Broadway, Suite 870
San Diego, California 92101
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and "emerging growth company" in Rule 12b-2 of the Exchange Act.
Large Accelerated filer | [ ] | Accelerated filer | [ ] | ||
Non-accelerated filer | [ ] | Smaller reporting company | [X] | ||
Emerging growth company | [ ] |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. [ ]
EXPLANATORY NOTE
VistaGen Therapeutics, Inc. (the Registrant) previously registered shares of the Registrant’s common stock, $0.001 par value per share (Common Stock), to be issued under the VistaGen Therapeutics, Inc. Amended and Restated 2016 Equity Incentive Plan, formerly the 2008 Stock Incentive Plan (the 2016 Plan) and the VistaGen Therapeutics, Inc. 1999 Stock Incentive Plan (the 1999 Plan). In connection with the 2016 Plan and the 1999 Plan, the Registrant previously filed with the Securities and Exchange Commission (the Commission) a registration statement on Form S-8 on March 9, 2018 (File No. 333-223556) (the Prior Registration Statement). The Prior Registration Statement also covered any additional securities that may from time to time become issuable under the 2016 Plan and the 1999 Plan by reason of any stock dividend, stock split, recapitalization, or any other similar transaction that results in an increase in the number of outstanding shares of Common Stock of the Registrant.
Since the date of the Prior Registration Statement, the 1999 Plan has terminated in accordance with its terms, and no awards remain outstanding under the 1999 Plan. On September 5, 2019 (the Effective Date), at the 2019 Annual Meeting of Stockholders of the Registrant, the Registrant’s stockholders approved the VistaGen Therapeutics, Inc. 2019 Omnibus Equity Incentive Plan (the 2019 Plan), and, in connection therewith, no further awards will be made under the 2016 Plan. The shares of Common Stock initially reserved for issuance under the 2019 Plan consist of (i) 7,500,000 shares of Common Stock registered pursuant to a separate registration statement on Form S-8 being filed concurrently with this Post-Effective Amendment No. 1 to the Prior Registration Statement (the Post-Effective Amendment), plus (ii) 1,388,412 unallocated shares of Common Stock available for issuance under the 2016 Plan that are not subject to outstanding “Awards” (as defined in the 2016 Plan) as of the Effective Date (the Carryover Shares). The Prior Registration Statement will cover the issuance of the Carryover Shares of the 2016 Plan once they are available for issuance under the 2019 Plan.
Therefore, in addition to filing this Post-Effective Amendment, pursuant to undertaking in Item 512(a)(1)(iii) of Regulation S-K that the Registrant disclose a material change in the plan of distribution as it was originally disclosed in the Prior Registration Statement and Commission Compliance and Disclosure Interpretation 126.43, the Registrant is filing this Post-Effective Amendment to reflect that, as of the Effective Date, the Carryover Shares of the 2016 Plan may be issued under the 2019 Plan, and to file as an exhibit hereto a copy of the 2019 Plan and a new opinion as to the validity of the Carryover Shares of the 2016 Plan that may be issued under the 2019 Plan. All other items of the Prior Registration Statement are incorporated herein by reference without change.
The Registrant is concurrently filing a separate registration statement on Form S-8 to register to total of 7,500,000 shares of Common Stock for offer or sale pursuant to the 2019 Plan, excluding the Carryover Shares. No additional securities are being registered by this Post-Effective Amendment.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The information called for by Part I of Form S-8 is omitted from this Registration Statement in accordance with Rule 428 of the Securities Act of 1933, as amended (the Securities Act) and the instructions to Form S-8. In accordance with the rules and regulations of the Securities and Exchange Commission (the Commission) and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
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 Commission, are hereby incorporated by reference in this Registration Statement:
● | our Annual Report on Form 10-K for the year ended March 31, 2019, filed on June 25, 2019; |
● | our Quarterly Report on Form 10-Q for the year ended June 30, 2019, filed on August 13, 2019; |
● | our Current Report on Form 8-K, filed on April 4, 2019; |
● | our Current Report on Form 8-K, filed on May 2, 2019; |
● | our Current Report on Form 8-K, filed on June 21, 2019; |
● | our Current Report on Form 8-K, filed on July 23, 2019; |
● | our Current Report on Form 8-K, filed on August 16, 2019; |
● | our Current Report on Form 8-K, filed on August 23, 2019; |
● | our Current Report on Form 8-K, filed on September 6, 2019; |
● | our Current Report on Form 8-K, filed on September 25, 2019; 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 Commission 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.
Item 4. | Description of Securities |
Not applicable.
Item 5. | Interests of Named Experts and Counsel |
Not applicable.
Item 6. | Indemnification of Directors and Officers |
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.
Item 7. | Exemption from Registration Claimed |
Not applicable.
Item 8. | Exhibits |
Exhibit No. | Document Description | Incorporation by Reference | |||||
Opinion of Disclosure Law Group, a Professional Corporation. | Filed herewith. | ||||||
Consent of OUM & Co., LLP, independent registered public accounting firm. | Filed herewith. | ||||||
Consent of Disclosure Law Group, a Professional Corporation. | Included in Exhibit 5.1. | ||||||
VistaGen Therapeutics, Inc. 1999 Stock Incentive Plan, as amended. | Incorporated by reference to Exhibit 10.1 to the Registrant's Current Report on Form 8-K, filed with the Commission on May 16, 2011. | ||||||
VistaGen Therapeutics, Inc. Amended and Restated 2016 Equity Incentive Plan. | Incorporated by reference Appendix A to the Registrant's Definitive Proxy Statement, filed with the Commission on August 8, 2016. | ||||||
VistaGen Therapeutics, Inc. 2019 Omnibus Equity Incentive Plan. | Incorporated by reference to Appendix B from the Registrant’s Definitive Proxy Statement, filed with the Commission on July 23, 2019. |
Item 9. | 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; 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 Registrant 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 September 30, 2019.
VistaGen Therapeutics, Inc. | |
By: /s/ Shawn K. Singh | |
Name: Shawn K. Singh | |
Title: Chief Executive Officer |
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(s) | Date | ||
/s/ Shawn K. Singh Shawn K. Singh | Chief Executive Officer, and Director (Principal Executive Officer) | September 30, 2019 | ||
/s/ Jerrold D. Dotson Jerrold D. Dotson | Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) | September 30, 2019 | ||
/s/ H. Ralph Snodgrass H. Ralph Snodgrass, Ph. D. | President, Chief Scientific Officer and Director | September 30, 2019 | ||
/s/ Jon S. Saxe Jon S. Saxe | Chairman of the Board of Directors | September 30, 2019 | ||
/s/ Brian J. Underdown Brian J. Underdown, Ph. D. | Director | September 30, 2019 | ||
/s/ Jerry B. Gin Jerry B. Gin, Ph. D., MBA | Director | September 30, 2019 | ||
/s/ Ann M. Cunningham Ann M. Cunningham | Director | September 30, 2019 |