Attached files
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) of the SECURITIES EXCHANGE ACT OF
1934
Date of Report (Date of earliest event reported): December 18,
2020
VistaGen Therapeutics, Inc.
(Exact name of registrant as specified in its charter)
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NEVADA
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000-54014
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20-5093315
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification Number)
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343 Allerton Ave.
South San Francisco, California 94090
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(Address of principal executive offices)
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(650) 577-3600
(Registrant’s telephone number, including area
code)
Not Applicable
(Former name or former address, if changed since last
report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
☐ Written communications
pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
☐ Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a
-12)
☐ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d -2(b))
☐ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e -4(c))
Securities registered pursuant to Section 12(b) of the
Act:
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Title
of each class
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Trading
Symbol(s)
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Name of
each exchange on which registered
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Common
Stock, par value $0.001 per share
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VTGN
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Nasdaq
Capital Market
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Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (17
CFR 230.405) or Rule 12b-2 of the Securities Exchange Act of 1934
(17 CFR 240.12b-2)
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 13(a) of the Exchange
Act ☐
Item 1.01 Entry into a Material Definitive
Agreement.
On December 18, 2020, VistaGen Therapeutics, Inc.
(the “Company”) entered into an underwriting agreement
(the “Underwriting
Agreement”) with
Jefferies LLC and William Blair & Company, L.L.C., as
representatives of the underwriters named therein (the
“Underwriters”),
pursuant to which the Company agreed to issue and sell to the
Underwriters, in an underwritten public offering (the
“Public
Offering”), 63,000,000
shares of the Company’s common stock, par value $0.001 per
share (“Common
Stock”) at a public
offering price of $0.92 per share and 2,000,000 shares of a
newly issued series of convertible preferred stock
(“Series D Preferred
Stock” and, together with the Common Stock, the
“Securities”)
at a public offering price of $21.16
per share, resulting in gross proceeds to the Company of $100
million. The Public Offering closed on December 22, 2020 at which
time the Securities were issued and sold to the
Underwriters.
The Company expects to use the net proceeds from
the Public Offering of approximately $93.5 million, after deducting
underwriting discounts and commissions and offering expenses
payable by the Company, for research, development and
manufacturing and regulatory expenses associated with continuing
development of PH94B, PH10, AV-101, and potential drug candidates
to expand its CNS pipeline, and for other working capital and
general corporate purposes.
The Securities were sold pursuant to the
Company’s effective
shelf registration statement filed with the
Securities and Exchange Commission (“SEC”) on September 30, 2019, and declared
effective on October 7, 2019 (File No. 333-234025).
A prospectus supplement relating to the Public Offering
was filed with the SEC on December 18, 2020.
The
Underwriting Agreement contains customary representations,
warranties and agreements by the Company, customary conditions to
closing, indemnification obligations of the Company and the
Underwriters, including for liabilities under the Securities Act of
1933, as amended (the “Securities Act”), other obligations of the
parties, and termination provisions. The representations,
warranties and covenants contained in the Underwriting Agreement
were made solely for the benefit of the parties thereto and may be
subject to limitations agreed upon by the contracting parties.
Accordingly, the Underwriting Agreement is incorporated herein by
reference only to provide investors with information regarding the
terms of the Underwriting Agreement and not to provide investors
with any other factual information regarding the Company or its
business, and should be read in conjunction with the disclosures in
the Company’s periodic reports and other filings with the
SEC.
A
copy of the Underwriting Agreement is attached hereto as Exhibit
1.1 and is incorporated herein by reference. The foregoing
description of the material terms of the Underwriting Agreement
does not purport to be complete and is qualified in its entirety by
reference to such exhibit.
A
copy of the legal opinion and consent of Woodburn and Wedge,
relating to the Securities is attached hereto as Exhibit
5.1.
Item 3.03 Material Modification to Rights of Security
Holders.
The
information contained in Item 5.03 with respect to the Certificate
of Designation (as defined below) is incorporated by reference into
this Item 3.03.
Item 5.03 Amendments to Articles of Incorporation; Change in
Fiscal Year.
In connection with the Public Offering, on
December 21, 2020, the Company filed the Certificate of
Designation of the Relative Rights and Preferences of the Series D
Convertible Preferred Stock (the
“Certificate of
Designation”) with
the Secretary of State of the State of Nevada to establish the terms, rights, obligations and
preferences of the Series D Preferred Stock. The Certificate of
Designation became effective upon the filing with the
Secretary of State of the State of Nevada. The Certificate of Designation designates
2,000,000 shares as Series D Preferred Stock, par value $0.001 per
share.
Rank
The
shares of Series D Preferred Stock rank: (i) senior to all of the
Company’s Common Stock until the date of the Charter
Amendment (as defined below); (ii) senior to any class or series of
the Company’s capital stock hereafter created specifically
ranking by its terms junior to the Series D Preferred Stock; (iii)
on parity to all shares of the Company’s Series A Convertible
Preferred Stock, Series B 10% Convertible Preferred Stock and
Series C Convertible Preferred Stock; (iv) on parity to any class
or series of the Company’s capital stock hereafter created
specifically ranking by its terms on parity with the Series D
Preferred Stock; and (v) junior to any class or series of the
Company’s capital stock hereafter created specifically
ranking by its terms senior to the Series D Preferred Stock, in
each case, as to distributions of assets upon the Company’s
liquidation, dissolution or winding up whether voluntarily or
involuntarily and/or the right to receive dividends.
Conversion
Each
whole share of Series D Preferred Stock is initially convertible
into 23 shares of Common Stock at any time at the option of the
holder; provided, that the
Series D Preferred Stock will not be convertible prior to the date
on which the Company receives approval of its stockholders of an
amendment to the Company’s Restated and Amended Articles of
Incorporation (the “Articles
of Incorporation”) to increase the number of
authorized shares of Common Stock to a total of 325 million shares
(the “Charter
Amendment”) and such Charter Amendment is effective;
and provided further, that
the holders of Series D Preferred Stock will be prohibited, subject
to certain exceptions, from converting such shares of Series D
Preferred Stock into shares of Common Stock if, as a result of such
conversion, the holder, together with its affiliates, would own
more than 9.99% of the total number of shares of Common Stock then
issued and outstanding, which percentage may be changed at the
holder’s election to a lower percentage at any time or to a
higher percentage not to exceed 19.99% upon 61 days’ notice
to the Company.
Liquidation Preference
Prior
to approval and effectiveness of the Charter Amendment, each holder
of shares of Series D Preferred Stock is entitled to receive, in
preference to any distributions of any of the assets or surplus
funds of the Company to the holders of Common Stock and any of the
Company’s securities that by their terms are junior to the
Series D Preferred Stock and pari passu with any distribution to
the holders of any securities having (by their terms) parity with
the Series D Preferred Stock, an amount equal to $0.001 per share
of Series D Preferred Stock, plus an additional amount equal to any
dividends declared but unpaid on such shares, before any payments
shall be made or any assets distributed to holders of any class of
Common Stock or any of the Company’s securities that by their
terms are junior to the Series D Preferred Stock. If, upon any such
liquidation, dissolution or winding up of the Company, the assets
of the Company shall be insufficient to pay the holders of shares
of the Series D Preferred Stock the amount required under the
preceding sentence, then all remaining assets of the Company shall
be distributed ratably to holders of the shares of the Series D
Preferred Stock and any securities having (by their terms) parity
with the Series D Preferred Stock. After such preferential payment,
each holder of shares of Series D Preferred Stock shall be entitled
to participate pari passu with the holders of Common Stock (on an
as-converted basis, without regard to the 9.99% beneficial
ownership limitation) and any securities having (by their terms)
parity with the Series D Preferred Stock, including the Series A
Convertible Preferred Stock, the Series B 10% Convertible Preferred
Stock and the Series C Convertible Preferred Stock, in the
remaining distribution of the net assets of the Company available
for distribution.
On and
after the approval and effectiveness of the Charter Amendment, the
Series D Preferred Stock will have no liquidation
preference.
Voting Rights
Prior
to the date of the Charter Amendment, holders of shares of the
Series D Preferred Stock will have one vote per share of Series D
Preferred Stock and will vote as a single class with the shares of
Common Stock. On and after the date of the Charter Amendment, the
Series D Preferred Stock will generally have no voting rights.
However, so long as shares of Series D Preferred Stock remain
outstanding, the affirmative vote of holders of a majority of the
then-outstanding shares of Series D Preferred Stock will be
required before the Company can: (a) amend, alter, modify or repeal
(whether by merger, consolidation or otherwise) the Certificate of
Designation, the Articles of Incorporation or the Company’s
Second Amended and Restated Bylaws in any manner that adversely
affects the rights, preferences, privileges or the restrictions
provided for the benefit of, the Series D Preferred Stock; (b)
issue further shares of Series D Preferred Stock or increase or
decrease (other than by conversion) the number of authorized shares
of Series D Preferred Stock; or (c) enter into any agreement to do
any of the foregoing that is not expressly made conditional on
obtaining the affirmative vote or written consent of the requisite
holders.
Dividends
Shares
of the Series D Preferred Stock are entitled to receive any
dividends payable to holders of Common Stock on an
as-converted-to-common-stock basis.
Redemption
The
Company will not be obligated to redeem or repurchase any shares of
Series D Preferred Stock. Shares of Series D Preferred Stock will
not otherwise be entitled to any redemption rights or mandatory
sinking fund or analogous fund provisions.
Exchange Listing
The
Company does not intend to apply for listing of the Series D
Preferred Stock on any securities exchange or other trading
system.
The foregoing description of the
Certificate of Designation and the terms of the Series D Preferred
Stock does not purport to be complete and is subject to, and
qualified in its entirety by, the full text of the Certificate of
Designation, a copy of which is being filed as Exhibit 3.1 hereto
and is incorporated by reference herein.
Item 7.01
Regulation FD Disclosure.
On December 22, 2020, the Company
issued a press release announcing the closing of the Public
Offering. A copy of the press release is furnished as Exhibit 99.1
to this Current Report on Form 8-K and is incorporated herein by
reference into this Item 7.01.
The information in this Item 7.01
and Exhibit 99.1 hereto shall not be deemed “filed” for
purposes of Section 18 of the Securities Exchange Act of 1934, as
amended (the “Exchange
Act”), or otherwise subject to the liabilities of that
section and shall not be deemed incorporated by reference in any
filing made by the Company under the Securities Act or the Exchange
Act, except as set forth by specific reference in such
filing.
Item 8.01 Other Events.
On
December 18, 2020, the Company issued a press release announcing the pricing of the Public
Offering. A copy of the press release is attached to this Current
Report on Form 8-K as Exhibit 99.2, and is incorporated herein by
reference into this Item 8.01.
Item 9.01 Financial Statements and
Exhibits.
(d) Exhibits Index
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Exhibit No.
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Description
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Underwriting
Agreement, dated December 18, 2020, by and among VistaGen
Therapeutics, Inc., Jefferies LLC and William Blair & Company,
L.L.C.
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Certificate
of Designation of the Relative Rights and Preferences of the Series
D Convertible Preferred Stock.
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Opinion of Woodburn and Wedge.
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Consent of Woodburn and Wedge (included in Exhibit
5.1).
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Press Release issued by VistaGen Therapeutics, Inc. to announce
closing of the Public Offering, dated December 22,
2020.
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Press Release issued by VistaGen Therapeutics, Inc. to announce
pricing of the Public Offering, dated December 18,
2020.
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Signatures
Pursuant to the
requirements of the Securities Exchange Act of 1934, the registrant
has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
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VistaGen
Therapeutics, Inc.
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Date:
December 22, 2020
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By:
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/s/
Shawn K. Singh
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Shawn
K. Singh
Chief
Executive Officer
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