As filed with the Securities and Exchange Commission on December
11, 2017
Registration No. 333-221009
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Post-Effective Amendment No. 1
to
FORM S-1
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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3841
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20-5093315
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(State
or other jurisdiction of
incorporation
or organization)
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(Primary
Standard Industrial
Classification
Code Number)
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(I.R.S.
Employer
Identification
Number)
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VistaGen Therapeutics, Inc.
343 Allerton Avenue
South San Francisco, CA 94080
(650) 577-3600
(Address,
including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
Shawn K. Singh
Chief Executive Officer
VistaGen Therapeutics, Inc.
343 Allerton Avenue
South San Francisco, CA 94080
(650) 577-3600
(Name,
address, including zip code, and telephone number, including area
code, of agent for service)
Copies of all communications to:
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Daniel W. Rumsey, Esq.
Jessica R. Sudweeks, Esq.
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John D. Hogoboom, Esq.
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Disclosure Law Group,
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Lowenstein Sandler, LLP
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a Professional Corporation
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1251 Avenue of the Americas
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600 West Broadway, Suite 700
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New York, NY 10020
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San Diego, California 92101
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Tel: (212) 262-6700
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Tel: (619) 795-1134
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Fax: (212) 262-7402
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Fax: (619) 330-2101
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Approximate date of
commencement of proposed sale to the public:
As soon as practicable after this registration
statement becomes effective.
If
any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act, 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. [
]
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,” “smaller
reporting company” and “emerging growth company”
in Rule 12b-2 of the Exchange Act.
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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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Emerging
growth company
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[
]
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If an emerging
growth company, indicate by check mark if the registrant has
elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 13(a) of the Exchange 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, as amended, or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
EXPLANATORY NOTE
This post-effective Amendment No. 1 (the "
Amendment
") to the Registration
Statement on Form S-1 (File No. 333-221009) of VistaGen
Therapeutics, Inc. is being filed solely to revise the
Registrant’s undertakings, as required by Item 512 of
Regulation S-K.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and
Distribution
The
following table presents the costs and expenses in connection with
the issuance and distribution of the securities to be
registered. No underwriting discounts and commissions
shall be payable by us in connection with the resale of common
stock being registered. Except as otherwise noted, we will pay all
of these amounts. All amounts are estimates except the SEC
registration fee and the FINRA filing fee.
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SEC
Registration Fee
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$
3,735
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FINRA
Filing Fee
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5,000
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Legal
Fees and Expenses
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250,000
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Accounting
Fees and Expenses
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52,500
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Transfer
Agent and Registrar Fees and Expenses
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5,000
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Printing
Expenses
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2,500
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Miscellaneous
expenses
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21,265
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Total
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$
340,000
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Item 14. Indemnification of Directors and
Officers
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.
The
form of Underwriting Agreement, attached as Exhibit 1.1 hereto,
provides for indemnification by the underwriters of us and our
officers who sign this Registration Statement and directors for
specified liabilities, including matters arising under the
Securities Act.
Item 15. Recent Sales of Unregistered Securities.
We have issued the following securities in private
placement transactions which were not registered under the
Securities Act of 1933, as amended (
Securities
Act
) and that have not been
previously reported in a Quarterly Report on Form 10-Q or a Current
Report on Form 8-K:
Additional Issuances to Spring 2017 Private Placement
Investors
In September 2017, we reduced the exercise price
of all warrants issued in private placement transactions completed
between April 1 and June 27, 2017 (the
Spring 2017 Private
Placement
) from $4.00 to $2.00
per share. We also issued to each of the Spring 2017 Private
Placement investors, each of who were accredited investors,
additional warrants to purchase an aggregate total of 247,501
shares of common stock, with an exercise price of $2.00 per
share.
Issuance of Securities to Professional Service
Providers
In
September 2017, we issued an aggregate total of 477,500 shares of
unregistered common stock, having an aggregate fair value of
$744,100, to certain professional service providers, and an
aggregate total of 150,000 shares of unregistered common stock,
having an aggregate fair value of $234,000, pursuant to certain
financial advisory agreements, including a financial advisory
agreement with Oppenheimer & Co., Inc., to whom we issued
75,000 shares. In October 2017, we issued an aggregate total of
20,000 shares of unregistered shares of common stock with a fair
value of $32,800 to certain professional service
providers.
Issuance of Shares in Private Placement
In
November 2017, in a self-placed private placement transaction, we
sold to an accredited investor units consisting of (i) 150,000
shares of our unregistered common stock and (ii) warrants
exercisable through November 30, 2021 to purchase 150,000
unregistered shares of our common stock at an exercise price of
$2.00 per share. The warrants are not exercisable until six months
and one day following the date of issuance. We received cash
proceeds of $50,000 from this sale of our securities.
Proceeds from each of the offerings were used for general corporate
purposes. All of the above sales were made in reliance
on Section 4(a)(2) of the Securities Act as transactions by
and issuer not involving any public offering, Regulation D of the
Securities Act, and/or Section 3(a)(9) under the Securities Act. In
all such transactions, certain inquiries were made by the Company
to establish that such sales qualified for such exemption from the
registration requirements. In particular, the Company confirmed
that, with respect to the exemption claimed under Section 4(a)(2)
of the Securities Act, that (i) all offers of sales and sales were
made by personal contact from officers and directors of the Company
or other persons closely associated with the Company, (ii) each
investor made representations that he, she or it was an accredited
investor as defined in Rule 501 of Regulation D under the
Securities Act (and the Company had no reason to believe that such
representations were incorrect), (iii) each purchaser gave
assurance of investment intent, and (iv) offers and sales within
any offering were made only to a limited number of
persons.
Item 16. Exhibits and Financial Statement
Schedules
(a)
Exhibits
. The exhibits are incorporated by
reference to the Exhibit Index attached hereto and a part hereof by
reference.
(b)
Financial
Statements.
See page
110 for an index of the financial statements and financial
statement schedules included in the Registration
Statement.
Item 17. Undertakings
The
undersigned registrant hereby undertakes:
(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;
(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, 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.
(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
)
For purposes of determining any
liability under the Securities Act of 1933, the information omitted
from the form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b) (1) or
(4) or 497(h) under the Securities Act shall be deemed to be part
of this registration statement as of the time it was declared
effective.
(7
)
For the purpose of determining any
liability under the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus shall be deemed to be
a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial
bona
fide
offering thereof.
Insofar
as indemnification for liabilities arising under the Securities Act
of 1933 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 Securities and Exchange Commission such indemnification is
against public policy as expressed in the 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 Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of l933, the registrant
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 the 11th day of
December, 2017.
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VistaGen Therapeutics, Inc.
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By:
/s/ Shawn K. Singh,
JD
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Shawn
K. Singh, JD
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Chief
Executive Officer
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Pursuant
to the requirements of the Securities Act of l933, 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
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Date
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/s/
*
Shawn K. Singh, JD
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Chief
Executive Officer, and Director
(Principal Executive Officer)
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December 11, 2017
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/s/
*
Jerrold D. Dotson
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Vice
President and Chief Financial Officer
(Principal Financial and Accounting Officer)
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December 11, 2017
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/s/
*
H. Ralph Snodgrass, Ph.D.
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President,
Chief Scientific Officer and Director
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December 11, 2017
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/s/
*
Jon S. Saxe
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Chairman
of the Board of Directors
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December 11, 2017
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/s/ *
Brian J. Underdown, Ph.D.
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Director
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December 11, 2017
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/s/
*
Jerry B. Gin, Ph.D.
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Director
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December 11, 2017
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* By:
/s/ Shawn K.
Singh
Attorney-in-fact
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Exhibit
Index
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Exhibit No.
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Description
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Form
of Underwriting Agreement.
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Agreement
and Plan of Merger by and among Excaliber Enterprises, Ltd.,
VistaGen Therapeutics, Inc. and Excaliber Merger Subsidiary,
Inc.
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Articles
of Incorporation, dated October 6, 2005.
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Certificate
of Amendment filed with the Nevada Secretary of State on December
6, 2011, incorporated by reference from Exhibit 3.3 to the
Company’s Annual Report on Form 10-K, filed July 2,
2012.
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Amended
and Restated Bylaws as of February 5, 2014, incorporated by
reference from the Company’s Report on Form 8-K filed on
February 7, 2014.
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Articles
of Merger filed with the Nevada Secretary of State on May 24, 2011,
incorporated by reference from Exhibit 3.1 to the Company’s
Current Report on Form 8-K filed on May 31, 2011.
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Certificate
of Designations Series A Preferred, incorporated by reference from
Exhibit 3.1 to the Company’s Current Report on Form 8-K
filed on December 23, 2011.
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Certificate
of Change filed with the Nevada Secretary of State on August 11,
2014 incorporated by reference from Exhibit 3.1 to the
Company’s Current Report on Form 8-K filed on August 14,
2014.
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Certificate
of Designation of the Relative Rights and Preferences of the Series
B 10% Convertible Preferred Stock of VistaGen Therapeutics, Inc.,
filed with the Nevada Secretary of State on May 7, 2015,
incorporated by reference from Exhibit 3.1 to the
Company’s Current Report on Form 8-K filed on May 13,
2015.
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Certificate
of Amendment to the Articles of Incorporation of VistaGen
Therapeutics, Inc., dated August 24, 2015, incorporated by
reference from Exhibit 3.1 to the Company’s Current Report on
Form 8-K filed on August 25, 2015.
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Certificate
of Designation of the Relative Rights and Preferences of the Series
C Convertible Preferred Stock of VistaGen Therapeutics, Inc., dated
January 25, 2016, incorporated by reference from Exhibit 3.1 to the
Company’s Current Report on Form 8-K filed on January 29,
2016.
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Restated Articles of Incorporation of VistaGen
Therapeutics, Inc., dated August 16, 2016, incorporated by
reference from Exhibit 3.1 to the Company’s Current Report on
Form 8-K, filed on
August 17,
2016.
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Second
Amended and Restated Bylaws of VistaGen Therapeutics, Inc., dated
August 16, 2016, incorporated by reference from Exhibit 3.2 to the
Company’s Current Report on Form 8-K, filed on August 16,
2016.
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Certificate
of Amendment to the Restated and Amended Articles of Incorporation
of VistaGen Therapeutics, Inc., dated September 15, 2017;
incorporated by reference form Exhibit 3.1 to the Company’s
Current Report on Form 8-K, filed on September 20,
2017.
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Form of Warrant.
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Opinion of
Disclosure Law Group, a Professional Corporation
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VistaGen’s
1999 Stock Incentive Plan.
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VistaGen’s
2008 Stock Incentive Plan.
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Strategic
Development Services Agreement, dated February 26, 2007, by
and between VistaGen and Cato Research Ltd.
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License
Agreement by and between Mount Sinai School of Medicine of New York
University and the Company, dated October 1, 2004.
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Non-Exclusive
License Agreement, dated December 5, 2008, by and between
VistaGen and Wisconsin Alumni Research Foundation, as amended by
that certain Wisconsin Materials Addendum, dated February 2,
2009.
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Sponsored
Research Collaboration Agreement, dated September 18, 2007, between
VistaGen and University Health Network, as amended by that certain
Amendment No. 1 and Amendment No. 2, dated April 19, 2010
and December 15, 2010, respectively.
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License
Agreement, dated October 24, 2001, by and between the University of
Maryland, Baltimore, Cornell Research Foundation and Artemis
Neuroscience, Inc.
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Unsecured
Promissory Note dated April 28, 2011 issued by VistaGen to
Desjardins Securities.
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Unsecured
Promissory Note dated April 28, 2011 issued by VistaGen to McCarthy
Tetrault LLP.
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Promissory
Note dated February 25, 2010 issued by VistaGen to The Regents of
the University of California.
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Employment
Agreement, by and between, VistaGen and Shawn K. Singh, dated April
28, 2010, as amended May 9, 2011.
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Employment
Agreement, by and between, VistaGen and H. Ralph Snodgrass, PhD,
dated April 28, 2010, as amended May 9, 2011.
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Notice
of Award by National Institutes of Health, Small Business
Innovation Research Program, to VistaGen Therapeutics, Inc. for
project, Clinical Development of 4-CI-KYN to Treat Pain dated June
22, 2009, with revisions dated July 19, 2010 and August 9, 2011,
incorporated by reference from Exhibit 10.46 to the Company’s
Current Report on Form 8-K/A filed on December 20,
2011.
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Notice
of Grant Award by California Institute of Regenerative Medicine and
VistaGen Therapeutics, Inc. for
Project: Development of an hES Cell-Based Assay System
for Hepatocyte Differentiation Studies and Predictive Toxicology
Drug Screening, dated April 1, 2009, incorporated by reference from
Exhibit 10.47 to the Company’s Current Report on Form 8-K/A
filed on December 20, 2011.
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Amendment
No. 4, dated October 24, 2011, to Sponsored Research Collaboration
Agreement between VistaGen and University Health Network,
incorporated by reference from Exhibit 10.2 to the
Company’s Current Report on Form 8-K filed on November 30,
2011.
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License
Agreement No. 1, dated as of October 24, 2011 between University
Health Network and VistaGen Therapeutics, Inc., incorporated by
reference from Exhibit 10.1 to the Company’s Current Report
on Form 8-K filed on November 30, 2011.
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Strategic
Medicinal Chemistry Services Agreement, dated as of December 6,
2011, between Synterys, Inc. and VistaGen Therapeutics, Inc.,
incorporated by reference from Exhibit 10.1 to the Company’s
Current Report on Form 8-K filed on December 7, 2011.
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Common
Stock Exchange Agreement, dated as of December 22, 2011 between
Platinum Long Term Growth VII, LLC and VistaGen Therapeutics, Inc.,
incorporated by reference from Exhibit 10.1 to the Company’s
Current Report on Form 8-K filed on December 23, 2011.
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Note
and Warrant Exchange Agreement, dated as of December 28, 2011
between Platinum Long Term Growth VII, LLC and VistaGen
Therapeutics, Inc., incorporated by reference from Exhibit 10.1 to
the Current Report on Form 8-K filed on January 4,
2012.
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Form
of Warrant to Purchase Common Stock, dated as of February 28, 2012,
incorporated by reference from Exhibit 10.3 to the Company’s
Current Report on Form 8-K filed on March 2, 2012.
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License
Agreement No. 2, dated as of March 19, 2012 between University
Health Network and VistaGen Therapeutics, Inc., incorporated by
reference from Exhibit 10.57 to the Company’s Annual Report
on Form 10-K filed on July 2, 2012.
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Exchange
Agreement dated as of June 29, 2012 between Platinum Long Term
Growth VII, LLC and VistaGen Therapeutics. Inc., incorporated by
reference from Exhibit 10.58 to the Company’s Annual Report
on Form 10-K filed on July 2, 2012.
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Unsecured
Promissory Note in the face amount of $1,000,000 issued to Morrison
& Foerster LLP on August 31, 2012 (Replacement Note A),
incorporated by reference from Exhibit 10.3 to the Company’s
Current Report on Form 8-K filed on September 6, 2012.
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Unsecured
Promissory Note in the face amount of $1,379,376 issued to Morrison
& Foerster LLP on August 31, 2012 (Replacement Note B),
incorporated by reference from Exhibit 10.4 to the Company’s
Current Report on Form 8-K filed on September 6, 2012.
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Stock
Purchase Warrant issued to Morrison & Foerster LLP on August
31, 2012 to purchase 1,379,376 shares of the Company’s common
stock (New Morrison & Foerster Warrant), incorporated by
reference from Exhibit 10.5 to the Company’s Current Report
on Form 8-K filed on September 6, 2012.
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Warrant
to Purchase Common Stock issued to Morrison & Foerster LLP on
August 31, 2012 to purchase 425,000 shares of the Company’s
common stock (Amended Morrison & Foerster Warrant),
incorporated by reference from Exhibit 10.6 to the Company’s
Current Report on Form 8-K filed on September 6, 2012.
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Note
Exchange and Purchase Agreement dated as of October 11, 2012 by and
between VistaGen Therapeutics, Inc. and Platinum Long Term Growth
VII, LLP, incorporated by reference from Exhibit 10.1 to the
Company’s Current Report on Form 8-K filed on October 16,
2012.
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Form
of Senior Secured Convertible Promissory Note issued to Platinum
Long Term Growth VII, LLP under the Note Exchange and Purchase
Agreement, incorporated by reference from Exhibit 10.2 to the
Company’s Current Report on Form 8-K filed on October 16,
2012.
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Form
of Warrant to Purchase Shares of Common Stock issued to Platinum
Long Term Growth VII, LLP under the Note Exchange and Purchase
Agreement, incorporated by reference from Exhibit 10.3 to the
Company’s Current Report on Form 8-K filed on October 16,
2012.
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Amended
and Restated Security Agreement as of October 11, 2012 between
VistaGen Therapeutics, Inc. and Platinum Long Term Growth VII, LLP,
incorporated by reference from Exhibit 10.4 to the Company’s
Current Report on Form 8-K filed on October 16, 2012.
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Intellectual
Property Security and Stock Pledge Agreement as of October 11, 2012
between VistaGen California and Platinum Long Term Growth VII, LLP,
incorporated by reference from Exhibit 10.5 to the
Company’s Current Report on Form 8-K filed on October 16,
2012.
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Negative
Covenant Agreement dated October 11, 2012 between VistaGen
California, Artemis Neuroscience, Inc. and Platinum Long Term
Growth VII, LLP, incorporated by reference from Exhibit 10.6 to the
Company’s Current Report on Form 8-K filed on October 16,
2012.
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Amendment
to Note Exchange and Purchase Agreement as of November 14, 2012
between VistaGen Therapeutics Inc. and Platinum Long Term Growth
VII, LLP, incorporated by reference from Exhibit 10.1 to the
Company’s Current Report on Form 8-K filed on November 20,
2012.
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Amendment
No. 2 to Note Exchange and Purchase Agreement as of January 31,
2013 between VistaGen Therapeutics Inc. and Platinum Long Term
Growth VII, LLP, incorporated by reference from Exhibit 10.1
to the Company’s Quarterly Report on Form 10-Q filed on
February 14, 2013.
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Amendment
No. 3 to Note Exchange and Purchase Agreement as of February 22,
2013 between VistaGen Therapeutics Inc. and Platinum Long Term
Growth VII, LLP, incorporated by reference from Exhibit 10.1
to the Company’s Current Report on Form 8-K filed on
February 28, 2013.
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Form
of Warrant to Purchase Common Stock issued to independent members
of the Company’s Board of Directors and its executive
officers on March 3, 2013, incorporated by reference from Exhibit
10.1 to the Company’s Current Report on Form 8-K filed on
March 6, 2013.
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Note
Conversion Agreement as of April 4, 2013 between VistaGen
Therapeutics Inc. and Platinum Long Term Growth VII, LLP,
incorporated by reference from Exhibit 10.3 to the Company’s
Current Report on Form 8-K filed on April 10, 2013.
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Lease
between Bayside Area Development, LLC and VistaGen Therapeutics,
Inc. (California) dated April 24, 2013, incorporated by reference
from Exhibit 10.83 to the Company’s Annual Report on Form
10-K filed July 18, 2013.
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Indemnification
Agreement effective May 20, 2013 between the Company and Jon S.
Saxe, incorporated by reference from Exhibit 10.84 to the
Company’s Annual Report on Form 10-K filed on July 18,
2013.
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Indemnification
Agreement effective May 20, 2013 between the Company and Shawn K.
Singh, incorporated by reference from Exhibit 10.85 to the
Company’s Annual Report on Form 10-K filed on July 18,
2013.
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Indemnification
Agreement effective May 20, 2013 between the Company and H. Ralph
Snodgrass, incorporated by reference from Exhibit 10.86 to the
Company’s Annual Report on Form 10-K filed on July 18,
2013.
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Indemnification
Agreement effective May 20, 2013 between the Company and Brian J.
Underdown, incorporated by reference from Exhibit 10.87 to the
Company’s Annual Report on Form 10-K filed on July 18,
2013.
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Indemnification
Agreement effective May 20, 2013 between the Company and Jerrold D.
Dotson, incorporated by reference from Exhibit 10.88 to the
Company’s Annual Report on Form 10-K filed on July 18,
2013.
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Amendment
and Waiver effective May 24, 2013 between the Company and Platinum
Long Term Growth VII, LLC, incorporated by reference from Exhibit
10.1 to the Company’s Current Report on Form 8-K filed on
June 3, 2013.
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Amendment
No 2 to Securities Purchase Agreement dated June 27, 2013 between
the Company, Autilion AG and Bergamo Acquisition Corp. PTE LTD,
incorporated by reference from Exhibit 10.1 to the Company’s
Current Report on Form 8-K filed on June 28, 2013.
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Senior
Secured Convertible Promissory Note, dated July 26, 2013 issued to
Platinum Long Term Growth VII, LLP, incorporated by reference from
Exhibit 10.1 to the Company’s Current Report on Form 8-K
filed on August 2, 2013.
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Common
Stock Warrant, dated July 26, 2013 issued to Platinum Long Term
Growth VII, LLP, incorporated by reference from Exhibit 10.2 to the
Company’s Current Report on Form 8-K filed on August 2,
2013.
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Form of Subscription Agreement between the Company
and investors in the Fall 2013 Unit Private Placement, incorporated
by reference from Exhibit 10.93 to the Company’s Annual
Report on Form 10-K filed on
June
25, 2014.
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Form of Convertible Promissory Note between the
Company and investors in the Fall 2013 Unit Private Placement,
incorporated by reference from Exhibit 10.94 to the Company’s
Annual Report on Form 10-K filed on
June 25, 2014.
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Form of Common Stock Purchase Warrant between the
Company and investors in the Fall 2013 Unit Private Placement,
incorporated by reference from Exhibit 10.95 to the Company’s
Annual Report on Form 10-K filed on
June 25, 2014.
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Form
of Amendment to Convertible Promissory Note and Warrant between the
Company and investors in the Fall 2013 Unit Private Placement,
effective May 31, 2014, incorporated by reference from Exhibit
10.96 to the Company’s Annual Report on Form 10-K filed on
June 24, 2014.
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Form
of Unit Subscription Agreement between the Company and investors in
the Spring 2014 Unit Private Placement dated April 1, 2014,
incorporated by reference from Exhibit 10.1 to the Company’s
Current Report on Form 8-K filed on April 8, 2014.
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Form
of Subordinate Convertible Promissory Note between the Company and
investors in the Spring 2014 Unit Private Placement dated April 1,
2014, incorporated by reference from Exhibit 10.2 to the
Company’s Current Report on Form 8-K filed on April 8,
2014.
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Form
of Common Stock Purchase Warrant between the Company and investors
in the Spring 2014 Unit Private Placement dated April 1, 2014,
incorporated by reference from Exhibit 10.3 to the Company’s
Current Report on Form 8-K filed on April 8, 2014.
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Common
Stock Purchase Warrant between the Company and Platinum Long Term
Growth Fund VII dated May 14, 2014, incorporated by reference from
Exhibit 10.1 to the Company’s Current Report on Form 8-K
filed on May 19, 2014.
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Subordinate
Convertible Promissory Note between the Company and Platinum Long
Term Growth Fund VII dated May 14, 2014, incorporated by reference
from Exhibit 10.2 to the Company’s Current Report on Form 8-K
filed on May 19, 2014.
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Form of Promissory Note and Form of Warrant issued by
the Company to Icahn School of Business at Mount Sinai effective
April 10, 2014 in satisfaction of technology license maintenance
fees and reimbursable patent costs, incorporated by reference from
Exhibit 10.102 to the Company’s Annual Report on Form 10-K
filed on
June 25,
2014.
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Amendment No. 3 to Sponsored Research Collaboration
Agreement, dated April 25, 2011, by and between VistaGen and
University Health Network, incorporated by reference from Exhibit
10.103 to the Company’s Annual Report on Form 10-K filed
on
June 25,
2014.
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Amendment No. 5 to Sponsored Research Collaboration
Agreement, dated October 10, 2012, by and between VistaGen and
University Health Network, incorporated by reference from Exhibit
10.104 to the Company’s Annual Report on Form 10-K filed
on
June 25,
2014.
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Amended
and Restated Note Conversion Agreement and Warrant Amendment, by
and between VistaGen Therapeutics, Inc. and Platinum Long Term
Growth VII, LLC, dated July 18, 2014, incorporated by reference
from Exhibit 10.1 to the Company’s Current Report on Form 8-K
filed on July 22, 2014.
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Amendment
No. 1 to Amended and Restated Note Conversion Agreement and Warrant
Amendment, by and between VistaGen Therapeutics, Inc. and Platinum
Long Term Growth VII, LLC, dated September 2, 2014, incorporated by
reference from Exhibit 10.1 to the Company’s Current Report
on Form 8-K filed on September 4, 2014.
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Amendment
No. 2 to Amended and Restated Note Conversion Agreement and Warrant
Amendment, by and between VistaGen Therapeutics, Inc. and Platinum
Long Term Growth VII, LLC, dated September 30, 2014, incorporated
by reference from Exhibit 10.1 to the Company’s Current
Report on Form 8-K filed on October 3, 2014.
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Agreement,
by and between VistaGen Therapeutics, Inc. and Platinum Long Term
Growth VII, LLC, dated May 5, 2015, incorporated by reference from
Exhibit 10.1 to the Company’s Current Report on Form 8-K
filed on May 13, 2015.
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Acknowledgement
and Agreement, by and between VistaGen Therapeutics, Inc. and
Platinum Long Term Growth VII, LLC, dated May 12, 2015,
incorporated by reference from Exhibit 10.2 to the Company’s
Current Report on Form 8-K filed on May 13, 2015.
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Form
of Securities Purchase Agreement by and between VistaGen
Therapeutics, Inc. and Platinum Long Term Growth VII, LLC, dated
May 12, 2015, incorporated by reference from Exhibit 10.3 to the
Company’s Current Report on Form 8-K filed on May 13,
2015.
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Exchange
Agreement, by and between VistaGen Therapeutics, Inc., and Platinum
Long Term Growth VII, LLC and Montsant Partners, LLC, dated January
25, 2016, incorporated by reference from Exhibit 10.1 to the
Company’s Current Report on Form 8-K filed on January 29,
2016.
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Indemnification
Agreement effective April 8, 2016 between the Company and Jerry B.
Gin, incorporated by reference from Exhibit 10.112 to the
Company’s Annual Report on Form 10-K filed on June 24,
2016.
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Underwriting
Agreement, by and between Chardan Capital Markets, LLC and
WallachBeth Capital, LLC, as representatives of the several
underwriters, and VistaGen Therapeutics, Inc., dated May 10, 2016,
incorporated by reference from Exhibit 1.1 to the Company’s
Current Report on Form 8-K filed on May 16, 2016.
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Warrant
Agency Agreement, by and between Computershare, Inc. and VistaGen
Therapeutics, Inc., dated May 16, 2016, incorporated by reference
from Exhibit 4.1 to the Company’s Current Report on Form 8-K
filed on May 16, 2016.
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Form
of Warrant; incorporated by reference from Exhibit 4.2 to the
Company’s Current Report on Form 8-K filed on May 16,
2016.
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Second
Amendment to Employment Agreement by and between VistaGen
Therapeutics, Inc. and Shawn K. Singh, dated June 22, 2016,
incorporated by reference from Exhibit 10.116 to the
Company’s Annual Report on Form 10-K filed on June 24,
2016.
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Second
Amendment to Employment Agreement by and between VistaGen
Therapeutics, Inc. and H. Ralph Snodgrass, Ph.D., dated June 22,
2016, incorporated by reference from Exhibit 10.117 to the
Company’s Annual Report on Form 10-K filed on June 24,
2016.
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Second Amendment to
Lease between Bayside Area Development and the Company, effective
November 10, 2016, incorporated by reference from Exhibit 10.1 to
the Company’s Quarterly report on Form 10-Q filed on November
15, 2016.
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Indemnification
Agreement effective November 10, 2016 between the Company and Mark
A. Smith, incorporated by reference from Exhibit 10.2 to the
Company’s Quarterly report on Form 10-Q filed on November 15,
2016.
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Exclusive License
and Sublicense Agreement by and between VistaGen Therapeutics, Inc.
and Apollo Biologics LP, effective December 9, 2016, incorporated
by reference from Exhibit 10.1 to the Company’s Quarterly
Report on Form 10-Q filed on May 11, 2017.
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Patent License
Amendment Agreement between VistaGen Therapeutics Inc. and
University Health Network effective December 9, 2016, incorporated
by reference from Exhibit 10.2 to the Company’s Quarterly
Report on Form 10-Q/A filed on May 1, 2017.
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Amended and
Restated 2016 Stock Incentive Plan, incorporated by reference from
Exhibit 10.122 to the Company’s Annual Report on Form 10-K
filed on June 29, 2017.
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Underwriting
Agreement, dated as of August 31, 2017, by and between VistaGen
Therapeutics, Inc. and Oppenheimer & Co. Inc., incorporated by
reference from Exhibit 1.1 to the Company’s Current Report on
Form 8-K filed on August 31, 2017.
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Form of Series A1
Warrant,
incorporated by reference from
Exhibit 4.1 to the Company’s Current Report on Form 8-K filed
on August 31, 2017.
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Form
of Series A2 Warrant, incorporated by reference from Exhibit 4.2 to
the Company’s Current Report on Form 8-K filed on August 31,
2017.
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List
of Subsidiaries.
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Consent
of Disclosure Law Group.
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Consent
of OUM & Co., LLP, independent registered public accounting
firm (filed herewith).
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Power
of Attorney (included on signature page to the registration
statement on Form S-1, filed on October 18, 2017).
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_______________
* Incorporated
by reference from the like-numbered exhibit filed with our Current
Report on Form 8-K on May 16, 2011.
** Previously
filed.
+
Confidential treatment has been granted for certain confidential
portions of this agreement.
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