Registration Statement No.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GALECTIN THERAPEUTICS INC.
(Exact name of registrant as specified in its charter)
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Nevada
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04-3562325
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(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification No.)
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4960 Peachtree Industrial Blvd., Suite 240
Norcross, Georgia 30071
(678) 620-3186
(Address, including zip code, of registrant’s principal executive offices)
2019 Omnibus Equity Incentive Plan, as amended
Joel Lewis
Chief Executive Officer and President
Galectin Therapeutics Inc.
4960 Peachtree Industrial Blvd., Suite 240
Norcross, Georgia 30071
(678) 620-3186
(Name and address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
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Robert E. Tritt, Esq.
Dentons US LLP
303 Peachtree Street, NE
Suite 5300
Atlanta, GA 30308
(404) 527-8130
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Brian Lee, Esq.
Dentons US LLP
1221 Avenue of the Americas
New York, NY
New York, NY 10020
(212) 768-6926
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth 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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☒ (Do not check if a smaller reporting company)
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Smaller reporting company
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☒
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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 extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the
Securities Act. ☐
PART I
INFORMATION REQUIRED IN THIS PROSPECTUS
Galectin Therapeutics Inc., a Nevada corporation (the “Company” or the “Registrant”), hereby files this Registration Statement on Form S-8 (this “Registration Statement”) with the U.S. Securities and Exchange Commission
(the “SEC”) to register up to 3,000,000 shares of the Registrant’s common stock, par value $0.001 per share, to be issued under the Registrant’s 2019 Omnibus Equity Incentive Plan, as amended (the “Plan”), which Plan was approved by the
Registrant’s shareholders at the Registrant’s 2019 annual meeting held on December 4, 2019 and which amendment thereto was approved by the Registrant’s shareholders at the Registrant’s 2021 annual meeting held on December 3, 2021. The information
specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement on Form S-8 (this “Registration Statement”) in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the
“Securities Act”), and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the equity benefit plans covered by this Registration Statement
as specified by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. |
Incorporation of Certain Documents by Reference.
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The following documents are incorporated by reference in the Registration Statement:
(a) Our Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on March 30, 2023;
(b) Our Current Reports on Form 8-K filed with the SEC on March 2, 2023 and January 5, 2023; and
(c) The description of our common stock contained in our registration statement on Form 8-A filed with the SEC on September 9,
2003, pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendments or reports filed for the purpose of updating that description, including Amendment No 1 to Form 8-A filed with
the SEC on March 22, 2012.
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this Registration Statement which indicates that
all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
| Item 4. |
Description of Securities
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Not applicable.
| Item 5. |
Interests of Named Experts and Counsel.
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Not applicable.
| Item 6. |
Indemnification of Directors and Officers.
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The Registrant’s By-laws, as amended to date, provide for indemnification of officers and directors to the fullest extent permitted by Section 7502 of Chapter 78 of the Nevada Revised Statutes (“NRS”) (as from time to time amended), provided
such officer or director acts in good faith and in a manner which such person reasonably believes to be in or not opposed to the best interests of the Registrant, and with respect to any criminal matter, had no reasonable cause to believe such
person’s conduct was unlawful.
NRS 78.7502 states:
“1. A corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, except an action
by or in the right of the corporation, by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with the action,
suit or proceeding if the person:
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(a)
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Is not liable pursuant to NRS 78.138; or
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(b)
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Acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the conduct was unlawful.
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The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, does not, of itself, create a presumption that the person
is liable pursuant to NRS 78.138 or did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation, or that, with respect to any criminal action or proceeding, he or
she had reasonable cause to believe that the conduct was unlawful.
2. A corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the
fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses, including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by the person in connection with the defense or settlement of the action or suit if the person:
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(a)
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Is not liable pursuant to NRS 78.138; or
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(b)
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Acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation.
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Indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the corporation or for amounts paid in
settlement to the corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances of the case, the person
is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.
3. To the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections 1 and 2, or in defense of any claim, issue or
matter therein, the corporation shall indemnify him or her against expenses, including attorneys’ fees, actually and reasonably incurred by him or her in connection with the defense.”
The Registrant’s By-laws also provide that to the fullest extent permitted by NRS 78.751 (as from time to time amended), the Registrant shall pay the expenses of officers and directors of the Corporation incurred in defending a civil or criminal
action, suit or proceeding, as they are incurred and in advance of the final disposition of such matter, upon receipt of an undertaking in form and substance acceptable to the board of directors for the repayment of such advances if it is
ultimately determined by a court of competent jurisdiction that the officer or director is not entitled to be indemnified.
NRS 78.751 states:
“1. Any discretionary indemnification pursuant to NRS 78.7502, unless ordered by a court or advanced pursuant to subsection 2, may be made by the corporation only as authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances. The determination must be made:
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(a)
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By the stockholders;
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(b)
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By the board of directors by majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding;
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(c)
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If a majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding so orders, by independent legal counsel in a written opinion; or
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(d)
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If a quorum consisting of directors who were not parties to the action, suit or proceeding cannot be obtained, by independent legal counsel in a written opinion.
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2. The articles of incorporation, the bylaws or an agreement made by the corporation may provide that the expenses of officers and directors incurred in defending a civil or criminal action, suit or proceeding must be paid by the corporation as
they are incurred and in advance of the final disposition of the action, suit or proceeding, upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined by a court of competent
jurisdiction that the director or officer is not entitled to be indemnified by the corporation. The provisions of this subsection do not affect any rights to advancement of expenses to which corporate personnel other than directors or officers may
be entitled under any contract or otherwise by law.
3. The indemnification pursuant to NRS 78.7502 and advancement of expenses authorized in or ordered by a court pursuant to this section:
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(a)
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Does not exclude any other rights to which a person seeking indemnification or advancement of expenses may be entitled under the articles of incorporation or any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, for either an action in the person’s official capacity or an action in another capacity while holding office, except that indemnification, unless ordered by a court pursuant to NRS 78.7502 or for the
advancement of expenses made pursuant to subsection 2, may not be made to or on behalf of any director or officer if a final adjudication establishes that the director’s or officer’s acts or omissions involved intentional misconduct, fraud
or a knowing violation of the law and was material to the cause of action. A right to indemnification or to advancement of expenses arising under a provision of the articles of incorporation or any bylaw is not eliminated or impaired by an
amendment to such provision after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought,
unless the provision in effect at the time of such act or omission explicitly authorizes such elimination or impairment after such action or omission has occurred.
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(b)
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Continues for a person who has ceased to be a director, officer, employee or agent and inures to the benefit of the heirs, executors and administrators of such a person.”
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In addition, the Registrant maintains directors’ and officers’ liability insurance which insures against liabilities that its directors and officers may incur in such capacities.
Reference is made to “Undertakings,” below, for the Registrant’s undertakings in this registration statement with respect to indemnification of liabilities arising under the Securities Act.
| Item 7. |
Exemption from Registration Claimed.
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Not applicable.
| Item 8. |
Exhibits.
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*
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Filed herewith.
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| Item 9. |
Undertakings.
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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;
(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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(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;
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act, that are incorporated by reference in this registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
2. That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and this
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 this offering;
4. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement 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.
5. 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 provisions described in Item 6, 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 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City of Norcross, State of Georgia on March 30, 2023.
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GALECTIN THERAPEUTICS INC.
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By:
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/s/ Joel Lewis
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Joel Lewis
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Chief Executive Officer and President
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Joel Lewis and Jack W. Callicutt and each of them, his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file
the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises, as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
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Name
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Title
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Date
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/s/ Joel Lewis
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Chief Executive Officer (Principal Executive Officer)
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March 30, 2023
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Joel Lewis
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/s/ Jack W. Callicutt
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Chief Financial Officer (Principal Financial and Accounting Officer)
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March 30, 2023
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Jack W. Callicutt
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/s/ Richard E. Uihlein
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Chairman and Director
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March 30, 2023
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Richard E. Uihlein
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/s/ Gilbert F. Amelio, Ph.D
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Director
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March 30, 2023
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Gilbert F. Amelio, Ph.D.
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/s/ James C. Czirr
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Director
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March 30, 2023
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James C. Czirr
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/s/ Kary Eldred
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Director
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March 30, 2023
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Kary Eldred
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/s/ Kevin D. Freeman
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Director
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March 30, 2023
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Kevin D. Freeman, CFA
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/s/ Gilbert S. Omenn
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Director
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March 30, 2023
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Gilbert S. Omenn, M.D., Ph.D.
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/s/ Marc Rubin
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Director
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March 30, 2023
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Marc Rubin, M.D.
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/s/ Elissa J. Schwartz
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Director
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March 30, 2023
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Elissa J. Schwartz, Ph.D.
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/s/ Harold Shlevin
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Director
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March 30, 2023
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Harold Shlevin, Ph.D.
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/s/ Richard A. Zordani
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Director
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March 30, 2023
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Richard A. Zordani
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Exhibit 5.1
Dentons US LLP
303 Peachtree Street NE
Suite 5300
Atlanta, Georgia 30308
March 30, 2023
Board of Directors
Galectin Therapeutics Inc.
4960 Peachtree Industrial Blvd., Suite 240
Norcross, Georgia 30071
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Galectin Therapeutics Inc., a Nevada corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) under the
Securities Act of 1933, as amended (the “Securities Act”), of a registration statement on Form S-8 (the “Registration Statement”), relating to the proposed issue and sale of up to 3,000,000 additional shares of the Company’s common stock, $0.001
par value (the “Shares”), pursuant to stock awards, stock options, stock appreciation rights, restricted stock, deferred stock awards, dividend equivalents, performance awards and other stock-based awards under the Galectin Therapeutics Inc. 2019
Omnibus Equity Incentive Plan, as amended (the “Plan”). We have acted as counsel for the Company in connection with the issuance and sale of the Shares by the Company. This opinion letter is being rendered pursuant to Item 8 of Form S-8 and Item
601(b)(5)(i) of Regulation S-K.
In connection with this opinion, we have examined such documents and considered such legal matters deemed by us to be relevant to this opinion letter and the Registration Statement, including the applicable statutory
provisions and related rules and regulations of Chapter 78 of the Nevada Revised Statutes and the reported judicial decisions interpreting those laws, the Amended and Restated Articles of Incorporation of the Company, the Amended and Restated
Bylaws of the Company, the authorizing resolutions of the Company’s Board of Directors and the Plan. We also have made such further legal and factual examinations and investigations as we deemed necessary for purposes of expressing the opinion set
forth herein. With respect to such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as reproduced
or certified copies, and the authenticity of the originals of those latter documents. As to questions of fact material to this opinion, we have, to the extent deemed appropriate, relied upon information provided by officers of the Company. We have
not independently verified or investigated, nor do we assume any responsibility for, the factual accuracy or competency of such factual statements.
Our opinion is limited to applicable statutory provisions of Chapter 78 of the Nevada Revised Statutes and the reported judicial decisions interpreting those laws, and federal laws of the United States of America to the
extent referred to specifically herein. We do not express any opinion herein concerning any other laws. We are generally familiar with Chapter 78 of the Nevada Revised Statutes as currently in effect and the judicial decisions thereunder and have
made such inquiries and review of matters of fact and law as we determined necessary to render the opinion contained herein. We assume no obligation to revise or supplement this opinion in the event of future changes in such laws or the
interpretations thereof or such facts. We express no opinion regarding the Securities Act, or any other federal or state laws or regulations.
Based upon the foregoing, and in reliance thereon, it is our opinion that, as of the date hereof, the Shares have been duly and validly authorized and the Shares will be legally issued, fully paid and non-assessable (a)
when issued in the manner contemplated by the terms of the Plan and pursuant to a current prospectus in conformity with the Act and (b) upon receipt by the Company of payment therefor (assuming that such payment at all times exceeds the par value
thereof).
We consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name under the heading “Legal Matters” in the prospectus constituting a part thereof. In giving such
consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
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Very truly yours,
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/s/ Dentons US, LLP
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Dentons US, LLP
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Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of Galectin Therapeutics, Inc. (the “Company”) of
our report dated March 30, 2023, relating to the consolidated financial statements appearing in the Company’s Annual Report on Form 10-K for the year ended December 31, 2022.
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/s/ Cherry Bekaert LLP
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Atlanta, Georgia
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March 30, 2023
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Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
GALECTIN THERAPEUTICS INC.
(Exact name of registrant as specified in its charter)
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Table 1 – Newly Registered Securities
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Security Type
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Security Class Title
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Fee Calculation Rule
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Amount
Registered(1)(2)
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Proposed Maximum Offering Price Per Unit
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Maximum Aggregate Offering Price
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Fee Rate
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Amount of Registration Fee
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Equity
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Common Stock, $0.001 par value per share, reserved for issuance under the 2019 Omnibus Equity Incentive Plan, as amended
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Other
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3,000,000
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$1.95(3)
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$5,850,000
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$0.0001102
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$644.67
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Total Offering Amounts
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$5,850,000
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644.67
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Total Fee Offsets
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–
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Net Fee Due
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644.67
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(1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement this Registration Statement shall also cover
any additional shares of the Registrant’s common stock that become issuable under the 2019 Omnibus Equity Incentive Plan, as amended by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without
receipt of consideration that increases the number of the Registrant’s outstanding shares of common stock.
(2) Represents 3,000,000 shares of common stock reserved for issuance as a result of an increase to the 2019 Omnibus Equity Incentive Plan approved by the shareholders
at an annual meeting of shareholders.
(3) Estimated in accordance with Rules 457(c) and 457(h) of the Securities Act solely for purposes of calculating the registration fee on the basis of $1.95, the average
of the high and low prices of the common stock, as reported on the Nasdaq Capital Market on March 23, 2023.