Attached files
| file | filename |
|---|---|
| EX-1.1 - UNDERWRITING AGREEMENT - VistaGen Therapeutics, Inc. | ex1-1.htm |
| 8-K - CURRENT REPORT - VistaGen Therapeutics, Inc. | vtgn8k_may2021.htm |
Exhibit 5.1
May 14,
2021
VistaGen
Therapeutics, Inc.
343 Allerton
Avenue
South San
Francisco, California 94090
Ladies and
Gentlemen:
We
have acted as special Nevada counsel to VistaGen Therapeutics,
Inc., a Nevada corporation (the “Company”),
in connection with an Open Market Sale
AgreementSM,
dated the date hereof (the “Sales
Agreement”), by and
between the Company and Jefferies LLC (“Jefferies”),
relating to the offer and sale by the Company from time to time of
shares (the “ATM
Shares”) of common stock
of the Company, $0.001 par value per share (the
“Common
Stock”), having an
aggregate gross sales price of up to $75,000,000 to or through
Jefferies as sales agent. Any ATM Shares to be offered and sold
have been registered pursuant to a Registration Statement on Form S-3
(Registration No. 333-254299) filed by the Company with the
Securities and Exchange Commission (the “Commission”),
under the Securities Act of 1933, as amended (the
“Securities
Act”) (as so filed and as
amended, the “Registration
Statement”),
including a base prospectus dated
March 26, 2021 (the “Base
Prospectus”), as
supplemented by a Prospectus Supplement dated May 14, 2021,
relating to the ATM Shares (the “Prospectus
Supplement”). The Base
Prospectus and the Prospectus Supplement form a part of and are
included in the Registration Statement.
In connection
with this opinion, we have examined originals or copies, certified,
or otherwise identified to our satisfaction,
of:
(i)
Certificate of
Designation designating 500,000 shares of the Company’s
authorized preferred stock, par value $0.001 per share, as Series A
Convertible Preferred Stock, as filed with the Nevada Secretary of
State on December 22, 2011;
(ii)
Certificate of
Designation designating 4,000,000 shares of the Company’s
authorized preferred stock, par value $0.001 per share, as Series B
10% Convertible Preferred Stock, as filed with the Nevada Secretary
of State on May 7, 2015;
(iii)
Certificate of
Designation designating 3,000,000 shares of the Company’s
authorized preferred stock, par value $0.001 per share, as Series C
Convertible Preferred Stock, as filed with the Nevada Secretary of
State on January 22, 2016;
(iv)
the Restated
Articles of Incorporation of the Company, as filed with the Nevada
Secretary of State on August 11, 2016;
(v)
Certificate of
Amendment to Articles of Incorporation of the Company, as filed
with the Nevada Secretary of State on September 15,
2017;
VistaGen Therapeutics,
Inc.
May 14, 2021
Page 2
(vi)
Certificate of
Amendment to Articles of Incorporation of the Company, as filed
with the Nevada Secretary of State on September 6,
2019;
(vii)
Certificate of Designation designating 2,000,000
shares of the Company’s authorized preferred stock, par value
$0.001 per share, as Series D Convertible Preferred Stock, as filed
with the Nevada Secretary of State on December 21, 2020 (the
“Series D Certificate
of Designation”);
(viii)
Certificate of
Amendment to the Restated Articles of Incorporation of the Company,
as filed with the Nevada Secretary of State on March 5,
2021;
(ix)
Second Amended
and Restated Bylaws of the Company, adopted August 16, 2016, and
certified to us to be currently in effect;
(x)
a Certificate
of Good Standing for the Company issued by the Nevada Secretary of
State on May 13, 2021;
(xi)
the
Registration Statement;
(xii)
the Base
Prospectus;
(xiii)
the Prospectus
Supplement;
(xiv)
Resolutions adopted by the Board of Directors of
the Company (the “Board of
Directors”) dated March
12, 2021, authorizing and approving the Registration Statement, the
issuance and sale of the securities described in the Registration
Statement;
(xv)
Resolutions of
the board of directors of the Company adopted as of May 11, 2021,
authorizing and approving the Sales Agreement, the Prospectus
Supplement, and the issuance and sale of the ATM Shares described
in the Prospectus Supplement; and
(xvi)
a
certificate, dated May 14, 2021, from an Officer of the Company as
to certain factual matters, including, the incumbency of the
officers of the Company (the “Officer's
Certificate”).
In addition
to the foregoing, we have examined such other instruments,
documents and records that we deemed relevant and necessary for the
basis of our opinion hereinafter expressed. We have assumed
the authenticity of all records, documents and instruments
submitted to us as originals, the genuineness of all signatures,
the legal capacity of natural persons and the conformity to the
originals of all records, documents and instruments submitted to us
as copies.
In rendering
the opinions contained herein, we have, with your permission, made
the following assumptions: (i) all documents submitted to or
reviewed by us, including all amendments and supplements thereto,
are accurate and complete and, if not originals, are true, correct,
and complete copies of the originals; (ii) the signatures on
each of such documents by the parties thereto are genuine;
(iii) each individual who signed such documents had the legal
capacity to do so; (iv) all persons who signed such documents
on behalf of a business entity were duly authorized to do so; (v)
all statements in certificates of public officials and officers of
the Company that we reviewed were and are accurate, and (vi) all
representations made by the Company as to matters of fact in the
documents that we reviewed were and are accurate. We have assumed
that there are no amendments, modifications, or supplements to such
documents other than those amendments, modifications, and
supplements that are known to us.
This
opinion is limited to the Nevada Revised Statutes (the
“NRS”), and we disclaim any opinion as to the
laws of any other jurisdiction. We further disclaim any
opinion as to any other statute, rule, regulation, ordinance, order
or other promulgation of any other jurisdiction or any regional or
local governmental body or as to any related judicial or
administrative opinion.
VistaGen Therapeutics,
Inc.
May 14, 2021
Page 3
Based upon
the foregoing and our examination of such questions of law as we
have deemed necessary or appropriate for the purpose of this
opinion, it is our opinion that
1.
When (a) if
the ATM Shares are to be certificated, certificates in the form
required under the NRS representing the ATM Shares are duly
executed and countersigned, and (b) the ATM Shares are registered
in the Company’s share registry and delivered upon payment of
the agreed upon consideration therefor, the ATM Shares will be duly
authorized by all necessary corporate action of the Company, and
when issued and sold in accordance with the provisions of the Sales
Agreement, will be validly issued, fully paid and nonassessable,
provided that the consideration therefor is not less than $0.001
per share of Common Stock.
This
opinion is rendered to you in connection with the Registration
Statement and is not to be relied upon for any other purpose. We
disclaim any obligation to advise you of any change of law that
occurs, or any facts of which we may become aware, after the date
of this opinion.
This opinion
is based upon our knowledge of the law and facts relevant to the
transactions herein referenced as of the date hereof. We assume no
duty to update or supplement this opinion to reflect any facts or
circumstances that may hereafter come to our attention or to
reflect any changes in any law that may hereafter occur or become
effective.
VistaGen Therapeutics,
Inc.
May 14, 2021
Page 4
We
hereby consent to the filing of this opinion as an exhibit to the
Company’s Form 8-K dated May 14, 2021 and to the reference to
our firm in the Prospectus under the heading “Legal
Matters.” In giving this
consent, we do not thereby admit that we are included in the
category of persons whose consent is required under Section 7
of the Securities Act or the rules and regulations of the
Securities and Exchange Commission.
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Very truly
yours,
WOODBURN AND
WEDGE
By: /s/ Shawn G.
Pearson
Shawn G. Pearson
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