Exhibit 5.1
March 15, 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 the preparation of
the Registration Statement on Form S-3 (the
“Registration
Statement”) to be filed
on the date hereof by the Company and the Company with the
Securities and Exchange Commission (the “Commission”).
The Registration Statement relates to, among other things, the
issuance and sale from time to time by the Company, pursuant to
Rule 415 of the General Rules and Regulations promulgated
under the Securities Act of 1933, as amended (the
“Securities
Act”), of up to
$250,000,000 of the following securities: (i) shares of common
stock of the Company, $0.001 par value per share (the
“Common
Stock”); (ii) shares
of preferred stock of the Company, $0.001 par value per share (the
“Preferred
Stock”), in one or more
series; (iii) warrants to purchase equity securities of the
Company (“Warrants”);
and (iv) units consisting of one or more Warrants, Preferred
Stock, Common Stock or any combination of such securities
(“Units”)
(items (i) through (iv) above are collectively referred to
herein as the “Securities”).
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;
(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, 2021;
(viii)
Certificate
of Amendment to Articles of Incorporation of the Company, as filed
with the Nevada Secretary of State on March 5, 2021;
VistaGen
Therapeutics, Inc.
March 15, 2021
Page 2
(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 March 14, 2021;
(xi)
the
Registration Statement;
(xii)
the
Base Prospectus;
(xiii)
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; and
(xiv)
a certificate, dated March 15, 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, 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.
In
rendering the opinions set forth below, we have assumed that (i) at
the time of offer, issuance and sale of any Securities, the
Registration Statement, and any other required post-effective
amendments thereto, will be effective under the Securities Act, any
required prospectus supplement with respect to such Securities will
have been delivered and filed with the Commission and no stop order
suspending its effectiveness will have been issued and remain in
effect; (ii) upon the issuance of Common Stock, including Common
Stock that may be issued upon conversion or exercise of any other
Securities convertible into or exercisable for Common Stock, the
total number of shares of Common Stock issued and outstanding will
not exceed the total number of shares of Common Stock that the
Company is then authorized to issue under the Restated Articles of
Incorporation, as amended; and (iii) upon the issuance of Preferred
Stock, including Preferred Stock that may be issued upon conversion
or exercise of any other Securities convertible into or exercisable
for Preferred Stock, the total number of shares of Preferred Stock
issued and outstanding, and the total number of issued and
outstanding shares of the applicable class or series of Preferred
Stock designated pursuant to the Restated Articles of
Incorporation, will not exceed the total number of shares of
Preferred Stock or the number of shares of such class or series of
Preferred Stock that the Company is then authorized to issue under
the Restated Articles of Incorporation,, as amended.
VistaGen
Therapeutics, Inc.
March 15, 2021
Page
2
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.
The
Company is validly existing as a corporation in good standing under
the laws of the State of Nevada.
2.
With respect to any offering of Common Stock (the
“Offered Common
Stock”), when
(i) the Registration Statement, as finally amended (including
all necessary post-effective amendments), has become effective
under the Securities Act; (ii) an appropriate prospectus
supplement (or term sheet) with respect to the Offered Common Stock
has been prepared, delivered, and filed in compliance with the
Securities Act and the applicable rules and regulations thereunder;
(iii) if the Offered Common Stock is to be sold pursuant to a
firm commitment underwritten offering, an underwriting agreement
with respect to the Offered Common Stock will have been duly
authorized, executed, and delivered by the Company and the other
parties thereto; (iv) the Board of Directors, including any
appropriate committee appointed thereby, and appropriate officers
of the Company have taken all necessary corporate action to approve
the issuance of the Offered Common Stock and related matters;
(v) the terms of the issuance and sale of the Offered Common
Stock have been duly established in conformity with the Restated
Articles of Incorporation and the Bylaws of the Company, each as
amended and then in effect, so as not to (A) violate any
applicable law, (B) violate the Restated Articles of
Incorporation or the Bylaws of the Company, each as amended and
then in effect, or (C) result in a default under or breach of
any agreement or instrument binding upon the Company and so as to
comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company; and
(vi) a certificate or certificates representing the Offered
Common Stock are duly executed, countersigned, registered and
delivered upon payment of the agreed upon consideration therefor,
the Offered Common Stock (including any Common Stock duly issued
upon conversion, exchange, or exercise of any Preferred Stock),
when issued and sold in accordance with the applicable underwriting
agreement, with respect to the Offered Common Stock, or any other
duly authorized, executed and delivered valid and binding purchase
or agency agreement, will be duly authorized, validly issued, fully
paid and nonassessable, provided that the consideration therefor is
not less than the par value thereof.
3.
With respect to any offering of a series of
Preferred Stock (the “Offered Preferred
Stock”), when
(i) the Registration Statement, as finally amended (including
all necessary post-effective amendments), has become effective
under the Securities Act; (ii) an appropriate prospectus
supplement (or term sheet) with respect to the Offered Preferred
Stock has been prepared, delivered, and filed in compliance with
the Securities Act and the applicable rules and regulations
thereunder; (iii) if the Offered Preferred Stock is to be sold
pursuant to a firm commitment underwritten offering, an
underwriting agreement with respect to the Offered Preferred Stock
will have been duly authorized, executed, and delivered by the
Company and the other parties thereto; (iv) the Board of
Directors, including any appropriate committee appointed thereby,
and appropriate officers of the Company have taken all necessary
corporate action to approve the issuance and terms of the Offered
Preferred Stock and related matters, including the adoption of a
Certificate of Designation for the Offered Preferred Stock in
accordance with the applicable provisions of Nevada law (the
“Certificate of
Designation”);
(v) the filing of the Certificate of Designation with the
Secretary of State of the State of Nevada has duly occurred;
(vi) the terms, as well as the terms of the issuance and sale,
of the Offered Preferred Stock have been duly established in
conformity with the Company’s Restated Articles of
Incorporation, including the Certificate of Designation relating to
the Offered Preferred Stock, and the Bylaws of the Company, each as
amended and then in effect, so as not to (A) violate any
applicable law, (B) violate the Restated Articles of
Incorporation or the Bylaws of the Company, each as amended and
then in effect, or (C) result in a default under or breach of
any agreement or instrument binding upon the Company and so as to
comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company; and
(vii) a certificate or certificates representing the Offered
Preferred Stock are duly executed, countersigned, registered and
delivered upon payment of the agreed upon consideration therefor,
the Offered Preferred Stock, when issued and sold in accordance
with the applicable underwriting agreement, with respect to the
Offered Preferred Stock, or any other duly authorized, executed,
and delivered valid and binding purchase or agency agreement, will
be duly authorized, validly issued, fully paid, and nonassessable,
provided that the consideration therefor is not less than the par
value thereof.
VistaGen
Therapeutics, Inc.
March 15, 2021
Page
3
4.
With respect to any offering of Warrants to be
issued under a Warrant Agreement (the “Offered
Warrants”), when
(i) the Registration Statement, as finally amended (including
all necessary post-effective amendments), has become effective
under the Securities Act; (ii) an appropriate prospectus
supplement (or term sheet) with respect to the Offered Warrants has
been prepared, delivered, and filed in compliance with the
Securities Act and the applicable rules and regulations thereunder;
(iii) the Board of Directors, including any appropriate
committee appointed thereby, and appropriate officers of the
Company have taken all necessary corporate action to approve the
issuance and terms of the Offered Warrants and related matters,
(iv) the Warrant Agreement has been duly authorized and
validly executed and delivered by the Company and the warrant agent
under the Warrant Agreement; (v) the terms of the issuance and
sale of the Offered Warrants have been duly established in
conformity with the Restated Articles of Incorporation and the
Bylaws of the Company, each as amended and then in effect, so as
not to (A) violate any applicable law, (B) violate the
Restated Articles of Incorporation or the Bylaws of the Company,
each as amended and then in effect, or (C) result in a default
under or breach of any agreement or instrument binding upon the
Company and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over
the Company; and (vi) the Offered Warrants are duly executed,
issued, and delivered in accordance with the terms of the Warrant
Agreement and the applicable definitive purchase, underwriting, or
similar agreement approved by the Board of Directors of the
Company, upon payment (or delivery) of the consideration therefor
provided for therein, the Offered Warrants will be valid and
binding obligations of the Company, to the extent that Nevada law
governs such issues.
5.
With respect to any offering of Units (the
“Offered
Units”), when
(i) the Registration Statement, as finally amended (including
all necessary post-effective amendments), has become effective
under the Securities Act; (ii) an appropriate prospectus
supplement (or term sheet) with respect to the Offered Units has
been prepared, delivered, and filed in compliance with the
Securities Act and the applicable rules and regulations thereunder;
(iii) the Board of Directors, including any appropriate
committee appointed thereby, and appropriate officers of the
Company have taken all necessary corporate action to authorize and
approve (A) the issuance and terms of the Offered Units,
(B) the issuance and terms of any Warrants which are a
component of the Units, the terms of the offering thereof and
related matters, and the execution and delivery of any related
Warrant Agreement, and (C) the issuance and terms of any
Preferred Stock or Common Stock which are a component of the Units,
the terms of the offering thereof and related matters,
(iv) the terms of the issuance and sale of the Offered Units
have been duly established in conformity with the Restated Articles
of Incorporation and the Bylaws of the Company, each as amended and
then in effect, so as not to (A) violate any applicable law,
(B) violate the Restated Articles of Incorporation or the Bylaws of
the Company, each as amended and then in effect, or (C) result
in a default under or breach of any agreement or instrument binding
upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having
jurisdiction over the Company; and (v) all of the parties duly
execute and deliver (A) the applicable Offered Units,
(B) such Warrants and Warrant Agreement, and (C) such
Preferred Stock and Common Stock, and each such Security is issued,
in each case upon payment of the consideration therefor provided
for in the applicable definitive purchase, underwriting, or similar
agreement approved by the Board of Directors of the Company and
otherwise in accordance with the provisions of the applicable
Warrant Agreement, in the case of the Warrants, or the
Company’s Restated Articles of Incorporation and Bylaws (as
amended to such date and then in effect), in the case of such
Preferred Stock and Common Stock, such Offered Units will be valid
and binding obligations of the Company, to the extent Nevada law
governs such issues.
VistaGen
Therapeutics, Inc.
March 15,
2021
Page
4
In
rendering the opinions expressed above, we have assumed that, at or
prior to the time of the delivery of any such Security, there shall
not have occurred any change in law affecting the validity or
enforceability of such Security.
With
respect to any agreement or instrument reviewed by us, that by its
terms or otherwise is governed by the law of any jurisdiction other
than the laws of the State of Nevada, our opinion herein is based
solely on our understanding of the plain language of such agreement
or instrument and we do not express our opinion with respect to the
interpretation, validity, binding nature, or enforceability of any
such agreement or instrument, and we do not assume any
responsibility with respect to the effect on the opinions or
statements set forth herein of any interpretation thereof
inconsistent with such understanding.
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.
We hereby consent to the filing of this opinion as
an exhibit to the Registration Statement. 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.
|
|
Very truly
yours,
WOODBURN AND
WEDGE
|
