Attached files
Exhibit 5.1
December 22,
2020
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 offer and sale
by the Company of 63,000,000 shares of common stock of the Company,
$0.001 par value per share (the “Common
Shares”), and (ii)
2,000,000 shares of the Company’s Series D Convertible
Preferred Stock, $0.001 par value per share (the
“Preferred
Shares,” and together
with the Common Shares, the “Securities”).
The offer and sale of the Securities have been registered
pursuant to a
Registration Statement on Form S-3 (Registration No. 333-234025)
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
September 30, 2019 (the “Base
Prospectus”), as
supplemented by a Final Prospectus Supplement dated December 18,
2020 relating to the Securities (the “Prospectus
Supplement).
The Company has entered into an
Underwriting Agreement dated as of December 18, 2020, among the
Company and Jefferies LLC and William Blair & Company, L.L.C.,
as representatives of the Underwriters listed on Schedule A thereto
(the “Underwriting
Agreement”), relating to
the sale of the Securities. Capitalized terms not defined herein
shall have such meaning as set forth in the Underwriting
Agreement.
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;
VistaGen Therapeutics,
Inc.
December 22,
2020
Page 2
(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 22, 2020 (the
“Series D Certificate
of Designation”);
(viii)
Second Amended
and Restated Bylaws of the Company, adopted August 16, 2016, and
certified to us to be currently in effect;
(ix)
a Certificate
of Good Standing for the Company issued by the Nevada Secretary of
State on December 22, 2020;
(x)
the
Registration Statement;
(xi)
the Base
Prospectus;
(xii)
the Prospectus
Supplement;
(xiii)
an
unfiled Certificate of Amendment to the Company’s Articles of
Incorporation reflecting the Articles Amendment (as that term is
defined below) (the “Certificate of
Amendment”);
(xiv)
Resolutions adopted by the Board of Directors of
the Company (the “Board of
Directors”) dated
September 5, 2019, 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 December 16, 2020, authorizing and approving
the Prospectus Supplement, the issuance and sale of the securities
described in the Prospectus Supplement, the amendment of the
Company’s Articles of Incorporation to increase the number of
authorized Common Shares from One Hundred Seventy Five Million
(175,000,000) shares to Three Hundred Twenty Five Million
(325,000,000) shares (the “Articles
Amendment”), recommending
the Articles Amendment to the Company’s stockholders for
approval, and designating the Pricing
Committee;
(xvi)
Resolutions of
the Board of Directors of the Company, dated December 17, 2020,
approving certain pricing terms of the Securities, authorizing the
reservation of Common Shares into which the Preferred Shares will
be converted upon filing of the Certificate of Amendment with the
Nevada Secretary of State reflecting the Articles Amendment, and
matters related thereto; and
(xvii)
a
certificate, dated December 22, 2020, 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.
VistaGen Therapeutics,
Inc.
December 22,
2020
Page 3
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.
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
Securities have been duly authorized by all necessary corporate
action of the Company, and upon receipt of consideration therefor,
the Common Shares and the Preferred Shares will be validly issued,
fully paid and nonassessable.
2.
Upon
receipt by the Company of the requisite stockholder approval of the
Articles Amendment, which, with your consent, we have assumed the
Company will have taken all required corporate action necessary to
obtain, and the filing of the Certificate of Amendment with the
Nevada Secretary of State, the Common Shares initially issuable
upon conversion of the Preferred Shares (the
“Conversion
Shares”) will be duly
authorized by all necessary corporate action of the Company and
reserved for issuance upon conversion of the Preferred Shares and
would be validly issued, fully paid and nonassessable,
assuming the issuance of the
Conversion Shares upon the conversion of the Preferred Shares in
accordance with the terms of the Series D Certificate of
Designation on the date upon which the Certificate of Amendment is
filed with the Nevada Secretary of State. In rendering the
foregoing opinion, we have assumed that the Company will comply
with all applicable notice requirements regarding uncertificated
shares required by Nevada law.
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.
December 22,
2020
Page 4
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
By:
/s/
Shawn G. Pearson
Shawn G.
Pearson