UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
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Annual report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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For the fiscal year ended December 31, 2023
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Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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For the transition period from to
Commission File No. 001-31791
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(State or other jurisdiction of incorporation)
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(I.R.S. Employer Identification No.)
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(Address of Principal Executive Offices)
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(Zip Code)
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(678 ) 620-3186
(Registrant’s Telephone Number, Including Area Code)
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading
Symbol
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Name of each exchange
on which registered
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Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐ No ☒
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ☐ No ☒
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically, every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T
(§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes
☒ No ☐
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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Accelerated filer
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Smaller reporting company
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Emerging growth company
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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. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over
financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. Yes ☐ No ☒
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to
previously issued financial statements. ☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers
during the relevant recovery period pursuant to §240.10D-1(b). ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
The aggregate market value of the voting and non-voting common equity held by non-affiliates computed by reference to the price at which the common equity was sold, or
the average bid and asked price of such common equity, as of June 30, 2023 was $63 million.
The number of shares outstanding of the registrant’s common stock as of February 29, 2024 was
61,903,672 .
FOR THE YEAR ENDED DECEMBER 31, 2022
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PART 1
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PART I
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Business
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Overview
We are a clinical stage biopharmaceutical company engaged in drug research and development to create new therapies for
fibrotic disease, cancer and selected other diseases. Our drug candidates are based on our method of targeting galectin proteins, which are key mediators of biologic and pathologic functions. We use naturally occurring, readily-available plant
products as starting material in manufacturing processes to create proprietary, patented complex carbohydrates with specific molecular weights and other pharmaceutical properties. These complex carbohydrate molecules are appropriately
formulated into acceptable pharmaceutical formulations. Using these unique carbohydrate-based candidate compounds that largely bind and inhibit galectin proteins, particularly galectin-3, we are undertaking the focused pursuit of therapies for
indications where galectin proteins have a demonstrated role in the pathogenesis of a given disease. We focus on diseases with serious, life-threatening consequences and those where current treatment options are limited specifically in NASH
(non-alcoholic steatohepatitis) with cirrhosis and certain cancer indications. Our strategy is to establish and implement clinical development programs that add value to our business in the shortest period of time possible and to seek strategic
partners when one of our programs becomes advanced and requires significant additional resources.
Our lead galectin-3 inhibitor is belapectin (GR-MD-02), which has been demonstrated in preclinical models to reverse liver
fibrosis and cirrhosis and in clinical studies to decrease portal hypertension and prevent its complication: the development of esophageal varices. Belapectin has the potential to treat many diseases due to galectin-3’s involvement in multiple
key biological pathways such as fibrosis, immune cell function and immunity, cell differentiation, cell growth, and apoptosis (cell death). The importance of galectin-3 in the fibrotic process is supported by experimental evidence. Animals with
the galectin-3 gene “knocked-out” can no longer develop fibrosis in response to experimental stimuli compared to animals with an intact galectin-3 gene. We are using our galectin-3 inhibitor to treat advanced liver fibrosis and liver cirrhosis
in NASH patients. We have completed two Phase 1 clinical studies, a Phase 2 clinical study in NASH patients with advanced fibrosis (NASH-FX) and a second Phase 2b clinical trial in NASH patients with compensated cirrhosis and portal
hypertension (NASH-CX).
In February 2023, we completed randomizations totaling 357 patients in a large, global Phase 2b/3 clinical trial, the NAVIGATE
trial. Our study protocol was filed with the FDA on April 30, 2020, for a seamless adaptively-designed Phase 2b/3 clinical study evaluating the safety and efficacy of our galectin-3 inhibitor, belapectin, for the prevention of esophageal
varices in patients with non-alcoholic steatohepatitis (NASH) cirrhosis (Further details are available at www.clinicaltrials.gov under study NCT04365868. In September 2020, the
Company received a letter from the FDA providing comments, asking questions and providing guidance on various aspects of the ongoing NAVIGATE trial. These comments were addressed, and the study proceeded accordingly. An interim analysis of
NAVIGATE is expected in the fourth quarter of 2024.
Additionally, a study protocol entitled “A Single-dose, Open-label, Pharmacokinetic Study of Belapectin (GR-MD-02) in
Subjects With Normal Hepatic Function and Subjects With Varying Degrees of Hepatic Impairment” has been filed with the FDA to examine the effects of the drug in subjects with normal hepatic function and subjects with varying degrees of hepatic
impairment (study details are listed under study NCT04332432 on www.clinicaltrials.gov); this study became fully enrolled in February 2022 and favorable results were reported in 2023.
We endeavor to leverage our scientific and product development expertise as well as established relationships with outside
sources to achieve cost-effective and efficient drug development. These outside sources, amongst others, provide us with expertise in preclinical models, pharmaceutical development, toxicology, clinical trial operations, pharmaceutical
manufacturing, including physical and chemical drug characterization, and commercial development. We also have established through our majority-owned joint venture subsidiary, Galectin Sciences LLC, a discovery program developing small
molecules that inhibit galectin-3 and may afford alternative drug delivery (e.g., oral) and as a result expand the potential uses of galectin-3 inhibitor beyond belapectin. Three chemical series of composition of matter patents have been filed.
We are also pursuing a development pathway to clinical enhancement and commercialization for our lead compounds in immuno-oncology following our
previous successful collaboration with Providence Portland Cancer Center. In 2022, we filed a new IND with FDA for advanced or metastatic head and neck cancer using belapectin in combination with a checkpoint (PD-1) inhibitor and received a
Study May Proceed letter. The proposed phase 2 trial commencement is dependent on timing of financing.
All of our proposed products are presently in development, including pre-clinical and clinical trials.
We were founded in July 2000 as Pro-Pharmaceuticals, Inc., a Massachusetts corporation. On April 25, 2001, DTR-Med Pharma
Corp. (“DTR”), which was incorporated in Nevada on January 26, 2001, entered into a stock exchange agreement with Pro-Pharmaceuticals, Inc., whereby DTR acquired all of the outstanding shares of common stock of Pro-Pharmaceuticals, Inc. On May
10, 2001, DTR changed its name to “Pro-Pharmaceuticals, Inc.” and on June 7, 2001, the Massachusetts corporation was merged into the Nevada corporation. On May 26, 2011, Pro-Pharmaceuticals, Inc. changed its name to “Galectin Therapeutics Inc.”
In October 2012, we moved our headquarters to a suburb of Atlanta, GA to be closer to a center of discovery collaboration while maintaining a laboratory operation in the Boston area.
Our Drug Development Programs
Galectins are a class of proteins that are made by many cells in the body, but predominantly in cells of the immune system. As
a group, these proteins are able to bind to sugar molecules that are attached to other proteins, called glycoproteins that are responsible for various functions within the body, most notably inflammation and fibrosis. Galectins, in particular
galectin-3, act as a molecular glue, bringing together molecules that have sugars on them. Galectin-3, is known to be markedly increased in a number of significant diseases including inflammatory diseases leading to organs scarring (e.g. liver,
lung, kidney, and heart) and cancers. The increase in galectin-3, by creating the so-called galectin-3 fibrosome, promotes the progression of multiple diseases. Published data substantiating the importance of galectin-3 in the fibrotic process
arises from gene knockout experiments in animal studies. For instance, mice genetically altered to eliminate the galectin-3 gene, and thus unable to produce galectin-3, do not develop liver fibrosis in response to toxic insult to the liver.
We have one new proprietary chemical entity (NCE) in development, belapectin, which has shown promise in preclinical and
clinical studies for the treatment of liver fibrosis, severe skin disease, and cancer (melanoma and head and neck squamous cell carcinoma). Currently, we are focusing on development of belapectin for the treatment of NASH cirrhosis and head and
neck cancer. Belapectin is a proprietary, patented compound derived from natural, plant-based, starting materials, which following chemical processing, exhibits the properties of binding to and inhibiting galectin-3.
Our product pipeline is shown below:
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Indication
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Drug
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Status
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Prevention of esophageal varices in
NASH cirrhosis
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Phase 1 interaction trial:
NASH-CX trial and
NASH-FX trial
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belapectin
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IND submitted January 2013. Results from the Phase 1 interaction trial were reported in 2014, with final results reported in January 2015.
The Phase 2 NASH FX trial was conducted in patients with advanced fibrosis but not cirrhosis. Its principal purpose was to evaluate various imaging
modalities. The NASH FX trial top line data was reported in September 2016 and published in Alimentary Pharmacology and Therapeutics in 2016.
The Phase 2 NASH CX trial was conducted in patients with compensated cirrhosis and portal hypertension. The NASH CX trial top line data was reported in
December 2017 and was published in Gastroenterology in 2020.
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NASH NAVIGATE
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Following FDA feedback, the NAVIGATE trial is an adaptive Phase 2b/3 trial for the prevention of esophageal varices in NASH patients with compensated cirrhosis and clinical
signs of portal hypertension. A Phase 2b interim efficacy analysis will be incorporated to confirm previous Phase 2 data, select an optimal dose and reaffirm the risk/benefit of belapectin. If required, the Phase 3 end of study analysis
will evaluate the development of esophageal varices as the same primary outcome of efficacy and a composite clinical endpoint including progression to varices requiring treatment as a key secondary outcome of efficacy
(www.clinicaltrials.gov NCT04365868). The final patient was randomized in February 2023 and an interim analysis is expected in the fourth quarter of 2024.
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Phase 1 study: hepatic insufficiency
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A hepatic impairment study is being conducted in subjects with normal hepatic function and subjects with varying degrees of hepatic impairment (www.clinicaltrials.gov
NCT04332432) and began enrolling patients in the second quarter of 2020. The study completed enrollment in February 2022 and favorable results were presented in 2023.
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Cancer Immunotherapy
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Melanoma, Head, Neck Squamous Cell belapectin Carcinoma (HNSCC)
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Investigator IND study was completed. A Phase 1B study began in Q-1 2016. Early data was reported in February 2017 and additional data were reported in
September 2018. Data from an extension trial was reported in July 2021 for additional melanoma and HNSCC patients which provided a rational basis for additional trials which the Company is exploring. In the third quarter of 2022, the
Company announced its IND application for belapectin in combination with a checkpoint inhibitor for the treatment of HNSCC was filed and a Study May Proceed letter was received from FDA. The Company is reviewing options for financing
this trial which will determine when such trial could commence.
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Liver cirrhosis. Belapectin is our
lead product candidate for treatment of compensated NASH cirrhosis in patients with portal hypertension. Our preclinical data show that belapectin has a significant therapeutic effect on liver fibrosis as shown in several relevant animal
models. In addition, in NASH animal models, belapectin has been shown to reduce liver fat, inflammation, portal pressure, and ballooning degeneration (death of liver cells). Therefore, we chose belapectin as the lead candidate in a development
program targeted initially at fibrotic liver disease associated with non-alcoholic steatohepatitis (NASH). In January 2013, an Investigational New Drug (“IND”) was submitted to the FDA with the goal of initiating a Phase 1 study in patients
with NASH and advanced liver fibrosis to evaluate the safety of belapectin and pharmacodynamics biomarkers of disease. On March 1, 2013, the FDA indicated we could proceed with a US Phase 1 clinical trial for belapectin with a development
program aimed at obtaining support for a proposed indication of belapectin for treatment of NASH with advanced fibrosis. The Phase 1 trial was completed and demonstrated that belapectin up to 8 mg/kg Lean Body Mass (LBM), i.v. was safe and well
tolerated.
Additionally, an open label drug-drug phase 1 interaction study was completed in healthy volunteers during the second quarter
of 2015 with belapectin and it showed that with 8 mg/kg LBM dose of belapectin and 2 mg/kg LBM dose of midazolam there was no drug-drug interaction, and no serious adverse events or drug-related adverse events were observed. The secondary
objective was to assess the safety and tolerability of belapectin when administered concomitantly with midazolam.
Our Phase 2 program in fibrotic disease consisted of two separate human clinical trials. The main clinical trial was the Phase 2b NASH-CX study
for one year for patients with NASH with compensated cirrhosis and portal hypertension, which began enrolling patients in June 2015. This study was a randomized, placebo-controlled, double-blind, parallel-group Phase 2b trial to evaluate the
safety and efficacy of belapectin for treatment of liver fibrosis and resultant portal hypertension in NASH patients with compensated cirrhosis. A smaller, exploratory NASH-FX trial was conducted to explore potential use of various non-invasive
imaging techniques in NASH patients with advanced fibrosis but not cirrhosis.
NASH-FX Trial: The NASH-FX trial was a Phase 2a pilot trial for patients with NASH and advanced fibrosis that explored use of three non-invasive imaging technologies. It was a short, single site,
four-month trial in 30 NASH patients with advanced fibrosis (F3) randomized 1:1 to either 9 bi-weekly doses of 8 mg/kg LBM of belapectin or placebo. The trial did not meet its primary endpoint as measured using multi-parametric magnetic
resonance imaging (LiverMultiScan(R), Perspectum Diagnostics). The trial also did not meet secondary endpoints that measure liver stiffness as a surrogate for
fibrosis using, magnetic resonance-elastography and FibroScan® score. With a four-month treatment period and a small number of patients per arm the study was not
powered to demonstrate efficacy results in established advanced liver fibrosis. In the trial however, belapectin was found to be safe and well tolerated with no serious adverse events and showing evidence of a pharmacodynamic effect. These
results provided support for further development in NASH.
NASH-CX Trial: The NASH-CX trial was a larger
multi-center clinical trial that explored the use of belapectin for the treatment of patients with well-compensated NASH cirrhosis and portal hypertension. Enrollment was completed
in September 2016, and a total of 162 patients at 36 sites in the United States were randomized to receive either 2 mg/kg LBM of belapectin, 8 mg/kg LBM of belapectin or placebo. Approximately 50% of patients at baseline had esophageal
varices (a complication of portal hypertension). The primary endpoint was a reduction in hepatic venous pressure gradient (HVPG), a hemodynamic measure that estimates portal hypertension. Patients received an infusion of belapectin or placebo
every other week for one year and were evaluated to determine the change in HVPG as compared with placebo. Secondary or exploratory endpoints included evaluation of fibrosis on liver biopsy, measurement of liver stiffness (FibroScan) and
assessment of liver metabolism (13C-methacetin breath test). Top line data readout was reported in December 2017. The study demonstrated a favorable safety
profile and clinically meaningful efficacy results in patients without esophageal varices at baseline as demonstrated by a decrease in portal pressure associated with the prevention of development of varices when compared to placebo.
In the total patient population, the primary endpoint HVPG showed a trend toward benefit with belapectin treatment, but the
difference from placebo was not statistically significant. The mean change in HVPG of placebo from baseline to week 54 was 0.3 mm Hg. The mean change in HVPG from baseline was -0.37 and -0.42 for the 2 mg/kg LBM dose and 8 mg/kg LBM dose of
belapectin, respectively.
In those NASH cirrhosis patients with portal hypertension who have not yet developed esophageal varices at baseline (about
50% of the total population), there was a statistically significant effect of the 2 mg/kg LBM dose of belapectin on the absolute change in HVPG (-1.08 mm Hg, p<0.01). The effect of the 8 mg/Kg LBM dose of belapectin on absolute or percent
change in HVPG from baseline to week 54 was not significant.
Also because of the clinical relevance of this population, a responder analysis was performed on those patients without
esophageal varices at baseline. Analysis was performed looking at two groups: those with an equal to or greater than 2 mm Hg decrease in HVPG from baseline or those with an equal to or greater than 2 mm Hg and a greater than or equal to 20%
decrease in HVPG from baseline. In both cases, the change observed in the belapectin 2 mg/kg LBM group was statistically significant (p<0.01) while that of the 8 mg/kg LBM group was not.
Over the 54-week treatment period, in patients without varices at baseline there were also a statistically significantly fewer
new varices that developed in the belapectin treatment groups (0% and 4% in the 2 mg/kg LBM and the 8 mg/kg LBM, respectively) vs placebo (18%). This meant that the decrease seen in portal pressure was associated with a decreased incidence of
esophageal varices. The results were noticeable in the belapectin 2 mg/Kg LBM group as statistical significance against placebo was achieved for both parameters. As esophageal varices can lead to hemorrhagic complication, which can be fatal,
and are a severe complication of liver cirrhosis, we believe the prevention of esophageal varices may represent a clinically relevant measure of clinical efficacy in patients with NASH cirrhosis.
The major conclusions from the NASH-CX trial results were that: (i) belapectin had a statistically significant and clinically
meaningful effect in improving HVPG vs placebo in patients with NASH cirrhosis who did not have esophageal varices at baseline, (ii) Belapectin in the total patient population was associated with a statistically significant improvement in
hepatocyte ballooning (i.e. cell death), (iii) There was a statistically significant reduction (p=0.02) in the development of new esophageal varices in drug-treated patients compared to placebo. We believe that the prevention of esophageal
varices is a clinically relevant endpoint related to patient outcomes, (iv) While there was a drug effect in both the 2 mg/kg LBM and 8 mg/kg LBM groups on the development of varices and liver biopsy there was a consistently greater and
statistically significant effect of the 2 mg/kg LBM dose of belapectin, (v) belapectin appears to be safe and well tolerated in this one year clinical trial, a feature that is of prime importance for a cirrhotic population and (vi) This is the
first large, randomized clinical trial to demonstrate a clinically meaningful improvement in portal hypertension in patients with compensated NASH cirrhosis who have not yet developed esophageal varices.
Further information and details on the NASH-CX results is available in public presentations posted to our website and filed
with the SEC and in a peer reviewed publication in Gastroenterology 2020;158:1334–1345.
NASH NAVIGATE Trial: Building on the experience of the NASH-CX trial, the NAVIGATE Trial is a seamless adaptively-designed Phase 2b/3 clinical study evaluating the
safety and efficacy of our galectin-3 inhibitor, belapectin, for the prevention of esophageal varices in patient with non-alcoholic steatohepatitis (NASH) cirrhosis. The major features of this innovative Phase 2b/3 study design are: i) In
patients with NASH cirrhosis and clinical signs of portal hypertension but without esophageal varices at baseline, evaluated by an esophago-gastro-duodeno endoscopy, this trial will assess the effect of belapectin on the incidence of new
varices (the primary endpoint) – as well as assessing the effect of belapectin on the incidence of additional clinically significant cirrhosis-related outcomes (a key secondary efficacy endpoint), (ii) The study targets NASH patients with a
clearly identified unmet medical need: patients with compensated cirrhosis who have clinical signs of portal hypertension and, thus, are at risk of developing esophageal varices, a potentially life-threatening complication of cirrhosis
(bleeding varices are a cause of death in about one-third of cirrhotic patients). There is currently no approved treatment for preventing varices in these patients. In addition, the development of esophageal varices reflects the progression
of hepatic cirrhosis and thus portends the development of other cirrhosis complications such as ascites, hepatic encephalopathy, and liver failure, and (iii) During the first 18 months, two belapectin dose levels (2 mg/kg LBM and 4 mg/kg LBM)
will be compared to placebo (phase 2b). Then, at the interim analysis (IA), assuming the study continues to the next stage, the best belapectin dose will be selected, based on efficacy and safety, for continued evaluation (Phase 3). The
belapectin doses selected for the phase 2b/3 were based on the analysis of the NASH-CX trial. Prior belapectin clinical studies have also indicated the good tolerance and safety profile of belapectin with doses of up to 8 mg/kg LBM for up to
52 weeks, an important feature to inform the future risk benefit analysis in patients with NASH cirrhosis.
An interim analysis (IA) of efficacy and safety data will be conducted after all planned subjects in Phase 2b component have
completed at least 78 weeks (18 months) of treatment and a second esophago-gastro-duodeno endoscopic assessment has been performed. The purpose of the IA is to allow potential seamless adaptive modifications of the phase 3 stage of the study,
including: (1) the selection of the optimal dose of belapectin for Phase 3, (2) the re-estimation of the study sample size, (3) the modification of the randomization ratio in favor of the active treatment, (4) and/or termination of the study
for overwhelming efficacy or for futility. The IA results are expected in the fourth quarter of 2024.
The trial design also included a blinded sample size re-estimation (“SSR”) during the Phase 2b, prior to the IA, to allow for
potential sample size readjustment. The SSR was conducted when 50% of the patients completed 18 months of therapy. The study design also minimizes invasive testing requirements, such as the measurement of HVPG or repeated liver biopsies, which
we believe are particularly risky in patients with portal hypertension and facilitated enrollment of patients and should facilitate their retention. It also provides for a seamless transition of patients from the Phase 2b stage into the phase 3
stage, including the potential addition of new patients. The trial design introduces the notion of esophageal varices prevention as a primary pivotal outcome previously discussed with FDA.
We believe that these adaptations taken together are innovative and optimize conduct of the NAVIGATE trial with a clinically
relevant primary outcome giving belapectin the best opportunity to show a positive therapeutic effect to address an unmet medical need. As a testimony of this innovation, the NAVIGATE trial design was presented to the hepatology community and
featured during the meeting of the American Association for the Study of Liver Diseases, in November 2021. If the IA results of the NAVIGATE trial are compelling, there could be the potential for accelerated FDA approval pathway and/or
partnership opportunity with a pharmaceutical company.
In this trial, as proposed in the protocol, secondary endpoints include a composite clinical outcomes endpoint, including
varices requiring treatment (development of large varices or varices with a red wale), decompensating events, all-cause mortality, MELD score increase, liver transplant. Also, NASH non-invasive biomarkers will be evaluated. To target a
population at risk of developing esophageal varices, patient selection was based on clinical signs of portal hypertension, including, but not limited to, a low platelet count, an increased spleen size, an increased liver stiffness, and/or
evidence of abdominal collaterals circulation.
The focus and goal of the therapeutic program is to stop the progression of and/or reverse portal hypertension and thereby
prevent the development of varices, potentially one of the most life-threatening complications of cirrhosis. Based on the results of the NASH-CX trial and subject to confirmation in later stage clinical trials, we believe that this goal is
achievable in a significant portion of the NASH cirrhosis patient population i.e. those NASH cirrhosis patients with clinical signs of portal hypertension for whom, currently, apart from a liver transplantation, no specific liver targeted,
treatments are available.
We activated more than 150 clinical trial sites in 14 countries for the NAVIGATE trial.
The COVID-19 pandemic delayed our regulatory and ethics approvals, recruitment of sites, and enrollment of patients for our NAVIGATE trial. For
several reasons, the pandemic made enrolling patients for the NAVIGATE trial more challenging, notably because patients eligible for the NAVIGATE trial have liver cirrhosis and, as such, were at a greater health risk of complications from
COVID-19 and needed to be vaccinated before taking the risk of infection associated with a visit to a healthcare facility. As we emerged from the COVID-19 pandemic, site recruitment and patient enrollment accelerated and we experienced
increases in the speed of enrollment, particularly in the United States. However, we did not see the enrollment in Europe that we anticipated. Consequently, we activated multiple sites in Latin America. A resurgence of the COVID pandemic could
again delay the regulatory, ethical and clinical milestones that we need to meet to conduct our NAVIGATE trial. The last patient from the phase 2b stage was randomized in February 2023, and consequently we expect topline results from the IA in
Fall of 2024.
Further details on the NAVIGATE trial can be found on www.clinicaltrials.gov
under study NCT04365868 and on our NAVIGATE website (navigatenash.com).
The Company also has completed a Hepatic Impairment Study, which ran in parallel with the phase 2b/3 trial as part of the development program.
The Hepatic Impairment Study was conducted at three sites and involved approximately 40 patients (divided amongst normal healthy volunteers, and patients with hepatic impairment categorized as Child-Turcotte-Pugh (CTP) classes A (mild), B
(moderate), and C (severe). Each subject received a single infusion of belapectin (4 mg/kg LBM) and their serum belapectin levels were monitored for up to approximately two weeks to define the effects of various stages of cirrhosis on serum
belapectin levels. The tolerance and safety of belapectin was evaluated. Enrollment in this study was completed in February 2022, and the final results were presented the The Liver Meeting™ 2023, hosted by the American Association for the Study of Liver Diseases. The data indicated that belapectin exposure did not increase with the degree of hepatic insufficiency, a property that is consistent with
the observed distribution of the drug into activated macrophages.Further details on this hepatic impairment study can be found on www.clinicaltrials.gov
study NCT04332432.
Cancer Immunotherapy. We believe there is potential for galectin inhibition to play a key role in the innovative area of cancer immunotherapy. For example, there have been several recent approvals of drugs that enhance a patient’s immune system to fight cancer. It is our goal to use
ourgalectin-3 inhibitor to further enhance the immune system function to help the body to fight cancer in a way that complements other approaches to this type of therapy. This hypothesis is supported by the fact that galectin-3 is expressed
at high levels in multiple types of tumors and their micro-environment, where it fosters the malignant nature of the tumors, and protects the tumors from immune attack by the patient’s own defense mechanism. Our drug candidates provide a
promising new therapeutic approach to enhance the activity of the immune system against cancer cells. Preclinical studies have indicated that belapectin enhances the immune response to cancer cells, increased tumor shrinkage and enhanced
survival in immune competent mice with prostate, breast, melanoma and sarcoma cancers when combined with one of the immune checkpoint inhibitors, anti-CTLA-4 or anti-PD-1, or with the immune cell activator anti-OX40. These preclinical data
led to the filing of two Investigator-sponsored INDs and the initiation of Phase 1B studies of belapectin in combination with Yervoy® (ipilimumab) in
metastatic melanoma and another phase 1B study in combination with KEYTRUDA (pembrolizumab) in patients with metastatic melanoma and head and neck squamous cell carcinoma. These studies were conducted under the sponsorship of Providence
Portland Medical Center’s Earle A. Chiles Research Institute (EACRI).
The phase IB study in combination with Yervoy was rapidly discontinued after the first patients were recruited because of
the availability of new treatment in the selected population.
Promising results were reported in the Phase 1b trial
combining belapectin with pembrolizumab (KEYTRUDA®). When aggregated cohorts are combined, in advanced melanoma, a 50% objective response rate with belapectin
in combination with KEYTRUDA, was documented. In addition, a 33% response rate was documented in patients with head and neck cancer. The results have been published in 2021 in a highly rated peer reviewed journal (Curti et al. Journal of
Immunotherapy of cancer 2021;9:e002371). There was also a suggestion that the combination of belapectin with pembrolizumab could decrease the auto-immune side-effect induced by pembrolizumab. These side-effects, which are directly linked to
the mechanism of action of pembrolizumab, can be poorly tolerated and even severe enough to lead to treatment interruption, even if the effect on the cancer was encouraging. This is, a very frustrating situation for patients who have to
discontinue an active treatment but have no other options available to them. We believe these data, taken together with the observed favorable safety and tolerability of the combination, provide a rationale to move the belapectin program in
oncology forward.
Late in 2021, we engaged three noted physicians – Dr. Chetan Bettegowda, from Johns Hopkins, and Dr. Nishant Agrawal and
Dr. Ari Rosenberg, both from University of Chicago Medical Center – as consultants to help define the path forward in oncology. In consultation with our oncology experts, we have now selected the treatment of recurrent or metastatic head and
neck cancer as the lead indication to pursue for belapectin in combination with an immune checkpoint inhibitor. The decision is notably based on the lack of available treatments for these patients, the limited number of therapies in
development, and the resulting very high medical need. We filed an IND with FDA and are planning a phase 2 trial to be filed with the FDA oncology division.
Patents and Proprietary Rights
Our development and commercial viability, and ultimately our competitiveness, depend on our ability to develop and maintain the proprietary aspects of our technology and operate without infringing on the
proprietary rights of others. We rely on a combination of patent, trademark, trade secret and copyright law and contract restrictions to protect the proprietary aspects of our technologies. We seek to protect our intellectual property by
requiring employees, consultants, and any third parties with access to our proprietary information to execute confidentiality agreements and by restricting access to that information.
In August 2015, we received a notice of allowance from the U.S. Patent and Trademark Office for patent application number 13/726,900, titled “Galactose-pronged polysaccharides in a formulation for antifibrotic
therapies.” This patent extends coverage of the Company’s pectin-derived compounds (including broad molecular weight ranges and other sources of pectin) to include treatment of chronic kidney disease associated with the development of fibrosis,
established kidney fibrosis, chronic lung disease associated with the development of fibrosis and established lung fibrosis. Claims in this patent include administering pectin-derived compound parenterally to a patient having at least one of
the four aforementioned diseases where the established fibrosis or progression of the fibrosis or cirrhosis is inhibited or slowed down. Additional specific claims encompass deriving the compound from citrus pectin, apple pectin, soybean hull
pectin or sugar beet pectin with a molecular weight between 2 kDa and 400kDa. Also covered is the step of administering the modified galacto-rhamnogalacturonan compound in an admixture with a therapeutic agent, where the agent is an
antifibrotic compound.
In August 2014, we received a notice of allowance from the U.S. Patent and Trademark Office for patent application number 13/573,442 titled “Composition of Novel Carbohydrate Drug for Treatment of Human
Diseases.” The patent covers composition and chemical structural claims for compounds that includes the Company’s lead galectin inhibitor compound belapectin and will expire in December 2031. Claims include multiple routes of administration,
including intravenous, subcutaneous and oral. The application also covers therapeutic formulations for use in the treatment of NASH (fatty liver disease), cancer and fibrotic, inflammatory and autoimmune disorders in which galectin proteins are
involved, at least in part, in the pathogenesis. Additional specific claims encompass liver fibrosis, kidney fibrosis, lung fibrosis or heart fibrosis. The patent, assigned U.S. Patent No. 8,871,925, was issued October 28, 2014.
In May 2014, we received notice of allowance from the U.S. Patent and Trademark Office for patent application number 13/998,197 titled “Galactose-Pronged Carbohydrate Compounds for the Treatment of Diabetic
Nephropathy and Associated Disorders.” The patent covers both composition claim for and uses of the Company’s carbohydrate-based galectin inhibitor compound belapectin in patients with diabetic nephropathy, a type of progressive kidney disease
that occurs in individuals with diabetes. Diabetic nephropathy is the major cause for chronic renal failure in the United States. The patent, assigned U.S. Patent No. 8,828,971, was issued September 9, 2014.
In February 2014, we received notice of issuance that the U.S. Patent and Trademark Office issued patent number 8,658,787 to the Company for its application titled “Galacto-rhamnogalacturonate compositions for
the treatment of non-alcoholic steatohepatitis and non-alcoholic fatty liver disease.” The patent covers the Company’s carbohydrate-based galectin inhibitor compound belapectin for use in patients with fatty liver disease with or without
fibrosis or cirrhosis, providing patent protection through 2031. The major claims are for methods of obtaining galectin inhibitor compounds, obtaining a composition for parenteral or enteral administration in an acceptable pharmaceutical
carrier and administering to a subject having at least one of the following: fatty liver, non-alcoholic fatty liver disease, non-alcoholic steatohepatitis, non-alcoholic hepatitis with liver fibrosis, non-alcoholic steatohepatitis with
cirrhosis, or non-alcoholic steatohepatitis with cirrhosis and hepatocellular carcinoma. The use covers reversing or slowing the progression of disease activity or medical consequences of the disease. Applications are pending in multiple
countries to extend patent protection globally.
In January 2014, we received a notice of allowance from the U.S. Patent and Trademark Office for Patent Application Number 13/550,962 titled “Galactose-Pronged Polysaccharides in a Formulation for Anti-fibrotic
Therapies.” The patent covers both composition claim for and uses of the Company’s carbohydrate-based galectin inhibitor compound belapectin for use in patients with liver fibrosis in combination with other potential therapeutic agents. The
patent covers use of belapectin with agents directed at multiple targets, some of which are currently in clinical development for fibrotic disorders including monoclonal antibodies to connective tissue growth factor, integrins, and TGF-ß1. The
patent, assigned U.S. Patent No. 8,722,645, was issued May 13, 2014.
In July 2012, we received a notice of issuance from the U.S. Patent and Trademark Office for the U.S. Patent number 8,236,780 issued on August 7, 2013 titled “Galactose-prolonged polysaccharides in a formulation
for antifibrotic therapies”. This methods patent covers key methods of derivation and use for our carbohydrate-based galectin inhibitor compound for use in patients with chronic liver disease associated with the development of fibrosis,
established liver fibrosis or end-stage scarring, or cirrhosis. The major claim is for a method of obtaining a galacto-rhamnogalacturan compound from an apple pectin, obtaining a composition for parenteral administration the
galacto-rhamnogalacturonan compound in an acceptable pharmaceutical carrier and administering to a subject having at least one of the following: chronic liver disease associated with the development of fibrosis, established liver fibrosis or
cirrhosis. The use covers inhibiting or slowing the progression of fibrosis. belapectin is covered by this patent and it provides opportunities for development of additional compounds in the class.
As of December 31, 2023, Galectin Therapeutics Inc. held 19 granted U.S. patents, 86 foreign granted, and 1 U.S. patent applications pending. Many of our patents and patent applications cover composition of
matter for complex carbohydrate drugs and/or methods of use for reducing toxicity and enhancing chemotherapeutic drugs by co-administering a polysaccharide with a chemotherapeutic agent or for use in treatment of fibrosis. The scheduled
expiration dates of our many of our United States patents span out to 2034 before considering any potential extensions. We have corresponding patent applications pending in various territories where we see potential for commercial interest.
Additionally, we have patent applications in other areas to utilize our carbohydrate-based compounds to treat disease other than cancer. See “Risk Factors — Risks Related to Our Intellectual Property”. Our competitive position, in part, is
contingent upon protection of our intellectual property. Galectin Sciences LLC has 2 granted U.S. patents, 16 granted international patents, 3 US patent application pending, and 13 foreign applications pending.
Research
Our primary focus is on the design and testing of agents that target galectins in various in vitro and in vivo systems and that
demonstrate efficacy in treatment of experimentally induced fibrosis or enhance immune system responsiveness in various tissues and in live animal models. We contract with independent laboratories and other facilities to conduct our research,
which is designed, evaluated and managed by our scientists. We do not anticipate building additional in-house research or development facilities or hiring significantly additional staff other than for purposes of designing and managing our
out-sourced research and development activities.
As we develop products eligible for clinical trials, we contract with independent parties to assist in the design of the clinical trial protocols, arrange for and monitor the clinical trials, collect data and
analyze data. In addition, certain clinical trials for our products may be conducted by government-sponsored agencies and will be dependent on governmental participation and funding. Our dependence on independent parties and clinical sites
involves risks including reduced control over the timing and other aspects of our clinical trials.
During the years ended December 31, 2023 and 2022, our expenditures for research and development were $32.1 million and $31.7 million, respectively. We expense all research and development costs as they are
incurred.
In January 2014 we created, with SBH Sciences, Inc. (Natick, Ma), Galectin Sciences, LLC, a collaborative joint venture to research and develop small organic molecule inhibitors of galectin-3 for oral
administration.
Using computer molecular modeling techniques coupled with in vitro screening of a variety of compound libraries, SBH Sciences had identified several small organic
molecules with promising galectin-3 inhibitory activity in vitro. Galectin Sciences LLC will further develop these unique organic molecule inhibitors of galectin-3 as drug candidates as well as develop
additional candidates. Subject to availability of funding, Galectin Sciences LLC will build on the scientific body of knowledge amassed by SBH Sciences, coupled with Galectin Therapeutics’ knowledge and expertise of galectins’ pathological role
and mechanism of action in inflammation, fibrosis and many cancers. The long-term goal of this effort is to identify and develop drug candidates that are highly specific galectin inhibitors which may be formulated for oral administration. The
intermediate term goal is the development of small molecule inhibitors of galectin-3 which exhibit activity in in vivo preclinical disease models of fibrosis and cancer in which galectins play a key
role. Several patent applications have been filed to protect the various series of compounds discovered by these efforts.
Because increased levels of galectin proteins have been implicated in a very large number of inflammatory, fibrotic and neoplastic diseases; the discovery and development of orally active galectin inhibitors
would be a major step towards expanded treatment approaches for these disorders. This early drug discovery effort may lead to drugs that would expand our pipeline as follow-on compounds to our first in class galectin inhibitors, belapectin and
GM-CT-01. These efforts have identified several potential compounds which are continuing to be explored to identify lead molecules that may be identified for clinical development.
Manufacturing and Marketing
We are a development stage Company at this time and do not intend to establish internal facilities for the manufacture of our products for clinical or commercial production. To have our products manufactured, we
have developed and will continue to develop relationships with third-parties that have established pharmaceutical manufacturing capabilities and expertise. We are not a party to any long-term agreement with any of our suppliers and,
accordingly, we have our products manufactured on a purchase-order basis from one of two primary well-known and established pharmaceutical suppliers that meet FDA requirements. Additionally, belapectin is manufactured as a sterile liquid
formulation. We have experienced, and may experience in the future, certain delays related to global supply chain issues with certain components necessary to manufacture belapectin.
Because our products are in the development stage, we have not created a sales and marketing staff to commercialize pharmaceutical products. If we develop products eligible for commercial sale, we will need to
develop a sales and marketing capability or rely on third parties such as licensees, collaborators, joint venture partners or independent distributors to market and sell those products. Our dependence on third-party manufacturers, analytical
testing and other laboratories and marketers will involve risks relating to our reduced control, and other risks including those discussed in “Risk Factors — Risks Related to our Company — There are risks associated with reliance on our third
parties for manufacturing, marketing, sales, managed care and distribution infrastructure channels.”
Competition
Many biotechnology and pharmaceutical companies are developing new technologies for the treatment of cancer, fibrotic diseases and other diseases. Technologies such as monoclonal antibodies could be competitive
with our galectin therapeutic platforms. Other companies are trying to improve the therapeutic profile of widely used protein-based drugs. While these companies may broaden the market for our products they may also provide competitive
alternatives to our products. We expect increased competition in the area of galectins will be fueled by a nearly exponential increase in the publication rate of research papers on galectins.
See “Risk Factors — Risks Related to Our Company — We face intense competition in the biotechnology and pharmaceutical industries” for additional discussion related to our current and potential competition.
Government Regulation
The research, development, testing, manufacture, labeling, promotion, advertising, distribution, and marketing, among other things, of our products are extensively regulated by governmental authorities in the
United States and other countries. The FDA regulates drugs under the federal Food, Drug, and Cosmetic Act and its implementing regulations. Failure to comply with the applicable U.S. requirements may subject us to administrative or judicial
sanctions, such as FDA refusal to approve pending New Drug Applications (“NDAs”), warning letters, product recalls, product seizures, total or partial suspension of production or distribution, injunctions, and/or criminal prosecution.
Drug Approval Process
Drugs may not be marketed in the U.S. until the FDA has approved them. The steps required before a drug may be marketed in the U.S. include:
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Pre-clinical laboratory tests, animal studies, and formulation studies,
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Submission to the FDA of an IND for human clinical testing, which must become effective before human clinical trials may begin,
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Adequate and well-controlled human clinical trials to establish the safety and efficacy of the drug for each indication,
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Submission to the FDA of a NDA,
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Satisfactory completion of an FDA inspection of the manufacturing facility or facilities, at which the drug is produced to assess compliance with current good manufacturing procedures (“cGMP”) established by the FDA,
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FDA review and approval of the NDA, and
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FDA review and approval of a trademark used in connection with a pharmaceutical.
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Pre-clinical tests include laboratory evaluation of product chemistry, toxicity, and formulation, as well as numerous in vitro and in vivo animal studies. The results of the pre-clinical tests, together with
manufacturing information and analytical data, are submitted to the FDA as part of an IND, which must become effective before human clinical trials may begin and the Company must resolve any outstanding FDA concerns or questions before clinical
trials can proceed. There is no certainty that submission of an IND will result in the FDA allowing clinical trials to begin.
Clinical trials involve the administration of the investigational drug to human subjects under the supervision of qualified investigators and constant oversight by the FDA or foreign regulatory authorities.
Clinical trials are conducted under protocols detailing the objectives of the study, the parameters to be used in monitoring safety, and the effectiveness criteria to be evaluated. Each protocol must be submitted to the FDA as part of the IND.
Clinical trials typically are conducted in three sequential phases, but the phases may overlap or be combined. Each trial must be reviewed and approved by an independent Institutional Review Board (“IRB”), before
it can begin. Study subjects must sign an informed consent form before participating in a clinical trial. Phase 1 usually involves the initial introduction of the investigational drug into patients to evaluate its safety, dosage tolerance,
pharmacodynamics, and, if possible, to gain an early indication of its effectiveness. Phase 2 usually involves trials in a limited patient population to (i) evaluate dosage tolerance and appropriate dosage; (ii) identify possible adverse
effects and safety risks; and (iii) evaluate preliminarily the efficacy of the drug for specific indications. Phase 3 trials usually further evaluate clinical efficacy and test further for safety by using the drug in its final form in an
expanded patient population. There is no assurance that these trials will be completed within a specified period of time, if at all.
Assuming successful completion of the required clinical testing, the results of the pre-clinical studies and of the clinical studies, together with other detailed information, including information on the
manufacture and composition of the drug, are submitted to the FDA in an NDA requesting approval to market the product for one or more indications. Before approving an NDA, the FDA usually will inspect the facilities at which the drug is
manufactured and will not approve the product unless compliance with cGMP is satisfactory. If the FDA evaluates the NDA and the manufacturing facilities as acceptable, the FDA will generally issue an approval letter. If the FDA evaluates the
NDA submission or the manufacturing facilities as not acceptable, the FDA will generally outline the deficiencies in the submission and often will request additional testing or information. Even if an applicant submits the requested additional
information, the FDA ultimately may decide that the NDA does not satisfy the regulatory criteria for approval. The testing and approval process require substantial time, effort, and financial resources, and there is no assurance that any
approval will be granted on a timely basis, if at all. After approval, certain changes to the approved product, such as adding new indications, manufacturing changes, or additional labeling claims are subject to further FDA review and approval.
See “Risk Factors — Risks Related to the Regulation of Our Products — We will need regulatory approvals to commercialize our products” for additional discussion of regulatory risks related to our drug development
program.
FDA Priority Review
FDA procedures provide for priority review of an NDA submitted for drugs that, compared to currently marketed products, offer a significant improvement in the treatment, diagnosis, or prevention of a disease.
NDAs that are granted priority review are acted upon more quickly than NDAs given standard review. If we were to seek priority review, there can be no guarantee that the FDA will grant priority review status, that priority review status will
affect the time of review, or that the FDA will approve the NDA submitted for any of our product candidates, whether or not priority review status is granted.
Post-Approval Requirements
If FDA approval of one or more of our products is obtained, we will be required to comply with a number of post-approval requirements. For example, holders of an approved NDA are required to report certain
adverse reactions to the FDA and to comply with certain requirements concerning advertising and promotional labeling for their products. Also, quality control and manufacturing procedures must continue to conform to current Good Manufacturing
Practices (“cGMP”) after approval, and the FDA periodically inspects manufacturing facilities to assess compliance with cGMP. Accordingly, manufacturers must continue to expend time, money, and effort in the area of production and quality
control to maintain cGMP compliance. In addition, discovery of problems with a product after approval may result in restrictions on a product, manufacturer, or holder of an approved NDA, including withdrawal of the product from the market.
Also, new government requirements may be established that could delay or prevent regulatory approval of our products under development.
Regulation Outside the United States
Before our products can be marketed outside of the United States, they are subject to regulatory approval similar to that required in the United States, although the requirements governing the conduct of clinical
trials, product licensing, pricing and reimbursement vary widely from country to country. No action can be taken to market any product in a country until an appropriate application has been approved by the regulatory authorities in that
country. The current approval process varies from country to country, and the time spent in gaining approval varies from that required for FDA approval. In certain countries, the sales price of a product must also be approved. The pricing
review period often begins after market approval is granted. No assurance can be given that even if a product is approved by a regulatory authority, satisfactory prices will be approved for such product.
Environmental Regulation
Pharmaceutical research and development involves the controlled use of hazardous materials. Biotechnology and pharmaceutical companies must comply with laws and regulations governing the use, generation,
manufacture, storage, air emission, effluent discharge, handling and disposal of certain materials, biological specimens and wastes. We do not anticipate building in-house research, development or manufacturing facilities, and, accordingly, do
not expect to have to comply directly with environmental regulation. However, our contractors and others conducting research, development or manufacturing activities for us may be required to incur significant compliance cost, and this could in
turn could increase our expense or delay our completion of research or manufacturing programs.
Human Capital Resources
As of February 29, 2024, we had fourteen full-time employees, eleven of whom are involved primarily in management of our pre-clinical research and development and clinical trials and three who were involved
primarily in management and administration of our Company. We also utilize several contractors and consultants who provide product development, manufacture, analytical testing, clinical trial expertise, and clinical trial support.
Available Information
The Company is required to file annual, quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission (“SEC”), including Annual Reports on Form 10-K, Quarterly
Reports on Form 10-Q, Current Reports on Form 8-K and amendments to reports filed pursuant to Sections 13(a) and 15(d) of the Securities Exchange Act of 1934. The SEC maintains an Internet site that contains reports, proxy and information
statements, and other information regarding issuers that file electronically with the SEC at http://www.sec.gov. The Company’s website is www.galectintherapeutics.com. The information contained on, or hyperlinked from, our website or any other
websites is not a part of, nor is it incorporated by reference into, this Annual Report on Form 10-K.
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Risk Factors
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An investment in our common stock involves a high degree of risk. You should carefully consider the risks described below and the other information before deciding to invest in our common stock. The risks described below are not the only
ones facing our Company. Additional risks not presently known to us or that we currently consider immaterial may also adversely affect our business. We have attempted to identify below the major factors that could cause differences between
actual and planned or expected results, but we cannot assure you that we have identified all of those factors.
If any of the following risks actually happen, our business, financial condition and operating results could be materially adversely affected. In this case, the trading price of our common stock could decline, and
you could lose all or part of your investment.
Risks Related to Our Company
We have incurred net losses to date and must raise additional capital in order to continue to operate.
We have incurred net losses in each year of operation since our inception in July 2000 and have no revenues. Our accumulated deficit as of December 31, 2023 was $354 million. We had $25.7 million of unrestricted cash as of December 31, 2023,
$20 million remaining available under a line of credit provided by our chairman, Richard E. Uihlein, and an additional $10 million supplemental line of credit provided also by our chairman. The Company believes there is sufficient cash to fund
currently planned operations at least through March 31, 2025. We will require more cash to fund our operations after December 31, 2024 and believe we will be able to obtain additional financing. However, there can be no assurance that we will
be successful in obtaining such new financing or, if available, that such financing will be on terms favorable to us.
We may raise capital through public or private equity financings, partnerships, debt financings, bank borrowings, or other sources. Additional funding may not be available on favorable terms or at all. Though his investments in the Company,
Mr. Uihlein has been a critical source of funding via equity and debt financings. There is no assurance as to the level of future investments to be made in the Company by Mr. Uihlein. If adequate funds are not otherwise available, we may need
to significantly curtail operations. To obtain additional funding, we may need to enter into arrangements that require us to relinquish rights to certain technologies, products and/or potential markets. To the extent that additional capital is
raised through the sale of equity, or securities convertible into equity, our equity holders may experience dilution of their proportionate ownership of the Company.
We are a development stage company and have not yet generated any revenue.
We are a development stage company and have not generated any revenues to date. There is no assurance that we will obtain FDA approval of belapectin or other products that we may develop, and, even if we do so, that we will generate revenue
sufficient to become profitable. Our failure to generate revenue and profit would likely lead to loss of your investment.
Our ability to generate revenue from product sales and achieve profitability will depend upon our ability to successfully commercialize products, including our lead product candidate, or other product candidates that we may in-license or
acquire in the future. Even if we are able to successfully achieve regulatory approval for these product candidates, we do not know when any of these products will generate revenue from product sales for us, if at all. Our ability to generate
revenue from product sales from our current or future product candidates also depends on a number of additional factors, including our ability to:
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successfully complete development activities, including the necessary clinical trials;
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complete and submit new drug applications, or NDAs, to the U.S. Food and Drug Administration, or FDA, and obtain regulatory approval for indications for which there is a commercial market;
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complete and submit applications to, and obtain regulatory approval from, foreign regulatory authorities;
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successfully complete all required regulatory agency inspections;
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set a commercially viable price for our products;
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obtain commercial quantities of our products at acceptable cost levels;
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find suitable distribution partners to help us market, sell and distribute our approved products in other markets; and
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obtain coverage and adequate reimbursement from third parties, including government and private payers.
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In addition, because of the numerous risks and uncertainties associated with product development, including that our product candidates may not advance through development or achieve the endpoints of applicable
clinical trials, we are unable to predict the timing or amount of increased expenses, or when or if we will be able to achieve or maintain profitability. Even if we are able to complete the development and regulatory process for any product
candidates, we anticipate incurring significant costs associated with commercializing these products.
If we are unable to generate revenues from the sale of our products, we may not become profitable and may need to obtain additional funding to continue operations. If we fail to become profitable or are unable to sustain profitability on a
continuing basis, then we may be unable to continue our operations at planned levels and be forced to reduce our operations.
We are dependent on the success of our lead product candidate, belapectin, and we cannot be certain that our product candidates will receive regulatory approval or be successfully
commercialized.
We currently have no products for sale, and we cannot guarantee that we will ever have any drug products approved for sale. We and our product candidates are subject to extensive regulation by the FDA and comparable regulatory authorities in
other countries governing, among other things, research, testing, clinical trials, manufacturing, labeling, promotion, selling, adverse event reporting and recordkeeping. We are not permitted to market any of our product candidates in or
outside the United States until we receive approval of a new drug application for a product candidate from the FDA or the equivalent approval from a foreign regulatory authority. Obtaining FDA approval is a lengthy, expensive and uncertain
process.
Before obtaining regulatory approval for the sale of any drug candidate, we must conduct extensive pre-clinical studies and clinical trials to demonstrate the safety and efficacy of our product candidates in humans.
To obtain FDA approval, we will need to conduct one or more Phase 3 clinical trial for belapectin; however, we cannot assure you that we will be able to finance Phase 3 trials. Additionally, we cannot assure you that our future trials will
yield successful results, that they will lead to the generation of revenue, or that we will obtain regulatory approval in other countries.
Pre-clinical studies and clinical trials are expensive, time-consuming and ultimately may not be successful. The results of pre-clinical and initial clinical testing of these products may not necessarily indicate the results that will be
obtained from later or more extensive testing. Also, it is possible to suffer significant setbacks in advanced clinical trials, even after obtaining promising results in earlier trials. For example, although there was positive data from our
NASH-CX Phase 2 trial for belapectin, it did not meet its primary endpoint. Similarly, our Phase 2a pilot trial NASH-FX for patients with advanced fibrosis, which explored three non-invasive imaging technologies, did not meet its primary
endpoint. An interim analysis for our Phase 2b/3 clinical study, the NAVIGATE trial, is expected in the fourth quarter of 2024. We may engage others to conduct our clinical trials, including clinical research organizations and, possibly,
government-sponsored agencies. Additional clinical trials may not start or be completed as we forecast and may not achieve the desired results. The time required to obtain FDA and other approvals is unpredictable but often can take years
following the commencement of clinical trials, depending upon the complexity of the drug candidate.
Even if we receive regulatory approval, we may be unable to commercialize our product candidates.
Even if belapectin and other future product candidates achieve positive results in clinical trials, we may be unable to commercialize them. The availability of government and third-party payer reimbursement, and pricing, especially compared
to competitor products, could affect our ability to commercialize our product candidates. Our general inability to obtain necessary regulatory approvals and, if obtained, to commercialize our products would substantially impair our viability.
There are risks associated with our reliance on third parties to design trial protocols, arrange for and monitor the clinical trials, and collect and analyze data.
As we develop products eligible for clinical trials, we will contract with independent parties to assist us in the design of the trial protocols, arrange for and monitor the clinical trials, provide lab kits, collect data and analyze data
and samples. In addition, certain clinical trials for our products may be conducted by government-sponsored agencies and will be dependent on governmental participation and funding. We have contracted with a third party, Covance (now known as
Fortrea), for assistance with the design and conduct of our NAVIGATE trial.
Our dependence on independent parties and clinical sites involves risks including reduced control over the timing and other aspects of our clinical trials.
There are risks associated with our reliance on third parties for manufacturing belapectin.
We do not have, and do not now intend to develop, facilities for the manufacture of any of our products, including belapectin, for clinical or commercial production. At this time, we are not a party to any long-term agreement with any of our
suppliers, and accordingly, we have our products manufactured on a purchase-order basis from one of two primary suppliers. We are developing relationships with manufacturers and will enter into collaborative arrangements with licensees or have
others manufacture our products on a contract basis. We expect to depend on such collaborators to supply us with products manufactured in compliance with standards imposed by the FDA and foreign regulators.
We are exposed to pre-clinical and clinical liability risks which could place a financial burden upon us, should we be sued, because we do not currently have product liability insurance beyond
our general insurance coverage.
Our business exposes us to potential pre-clinical, clinical liability and other liability risks that are inherent in the testing pharmaceutical formulations and products; accordingly, claims may be asserted against us. In addition, the use
in our clinical trials of pharmaceutical formulations and products that our potential collaborators may develop and the subsequent sale of such formulations or products by us or our potential collaborators may cause us to assume a portion of or
all of the product liability risks. A successful liability claim or series of claims brought against us could have a material adverse effect on our business, financial condition and results of operations. Because we do not currently have any
FDA-approved products or formulations, we do not currently have any product liability insurance covering commercialized products. Our current and potential partners with whom we have collaborative agreements or our future licensees may not be
willing to indemnify us against these types of liabilities and may not, themselves, be sufficiently insured or have sufficient liquidity to satisfy any product liability claims. Claims or losses in excess of any insurance coverage that may be
obtained by us could have a material adverse effect on our business, financial condition and results of operations.
We face intense competition in the biotechnology and pharmaceutical industries.
The biotechnology and pharmaceutical industries are intensely competitive. We face direct competition from U.S. and foreign companies focusing on pharmaceutical products, which are rapidly evolving. Our competitors include major
multinational pharmaceutical and chemical companies, specialized biotechnology firms and universities and other research institutions. Many of these competitors possess greater financial and other resources, larger research and development
staffs and more effective marketing and manufacturing organizations than we possess. In addition, academic and government institutions are increasingly likely to enter into exclusive licensing agreements with commercial enterprises, including
our competitors, to market commercial products based on technology developed at such institutions. Our competitors may succeed in developing or licensing technologies and products that are more effective or succeed in obtaining FDA or other
regulatory approvals for product candidates before we do. Acquisitions of, or investments in, competing pharmaceutical or biotechnology companies by large corporations could increase such competitors’ financial, marketing, manufacturing and
other resources.
The market for our proposed products is rapidly changing and competitive, and new drugs and new treatments that may be developed by others could impair our ability to maintain and grow our
business and remain competitive.
The pharmaceutical and biotechnology industries are subject to rapid and substantial technological change. Developments by others may render our proposed products noncompetitive or obsolete, or we may be unable to keep pace with
technological developments or other market factors. Technological competition from pharmaceutical and biotechnology companies, universities, governmental entities and others diversifying into the field is intense and is expected to increase.
Our resources are limited and we may experience technical challenges inherent in such technologies. Our competitors may develop drugs that are safer, more effective and less costly than our proposed products and, therefore, present a serious
competitive threat to us.
The potential widespread acceptance of therapies that are alternatives to ours may limit market acceptance of our proposed products, even if commercialized. Some of our targeted diseases and conditions may also be treated by other
medications. These treatments may be widely accepted in medical communities and have a longer history of use. The established use of these competitive drugs may limit the potential for our technologies, formulations and products to receive
widespread acceptance even if commercialized.
Our lack of operating experience may cause us difficulty in managing our growth.
We have limited experience in manufacturing or procuring products in commercial quantities, conducting other later-stage phases of the regulatory approval process, selling pharmaceutical products, and negotiating, establishing and
maintaining strategic relationships. Although we may engage consultants to assist us, any additional growth may require us to expand our management, operational and financial systems and controls. If we are unable to do so, our business and
financial condition would be materially harmed. If rapid growth occurs, it may strain our managerial, operational and financial resources.
We depend on key individuals to develop our products and core technologies and pursue collaborative relationships.
We are highly dependent on our current base of a few employees and external consultants. These individuals, among other things, design and lead our pre-clinical and clinical studies, as well as our U.S. and European regulatory processes.
With little or no redundancy in our personnel, the loss of any personnel or failure to attract or retain other key personnel and consultants could result in a loss of experience and accumulated knowledge and prevent us from developing our
products and core technologies and pursuing collaborative relationships.
We may fail to comply with our reporting and other requirements under federal securities laws.
As a publicly traded company, we are subject to the reporting requirements of the Exchange Act. The Exchange Act requires that we file annual, quarterly and current reports. Our failure to prepare and disclose this information in a timely
manner could subject us to penalties under federal securities laws, expose us to lawsuits and restrict our ability to access financing. We may be required to implement additional and expensive finance and accounting systems, procedures and
controls as we grow our business and organization to satisfy new reporting requirements, which will increase our costs and require additional management resources.
Our long-term success is dependent not only upon the success of our trials but also upon us being able to capitalize upon potential positive results of our trials, which is not assured.
To conduct Phase 3 clinical trials or other clinical trials we will need sufficient cash resources to conduct those undertakings. We will also need to obtain sufficient dosages of belapectin for such trials. Manufacturing of belapectin is
performed by third parties on a contract basis and production is ongoing to generate what we believe are sufficient quantities of belapectin for our NAVIGATE or other clinical trials. Manufacturing could become delayed due to circumstances
beyond our control which could delay any clinical trials. Further because of limited resources, we have curtailed most of our expenditures in research focused on the development of an oral galectin inhibitor to replace our current drug
candidate that is delivered via infusion.
We have previously been a defendant in a shareholder derivative action, and any possible future such lawsuits may adversely affect our business, financial condition, results of operations and
cash flows.
We and certain of our officers and directors have previously been defendants in a state court shareholder derivative action that concluded in our favor. In addition, there is the potential for other future shareholder litigation and for
governmental investigations and/or enforcement actions. Similar lawsuits in the future may divert our attention from our ordinary business operations, and we may incur significant expenses associated with their defense (including, without
limitation, substantial attorneys’ fees and other fees of professional advisors and potential obligations to indemnify current and former officers and directors who are or may become parties to such actions). If similar lawsuits do arise in the
future, we may be required to pay material damages and fines, consent to injunctions on future conduct and/or suffer other penalties, remedies or sanctions. Accordingly, the ultimate resolution of these matters could have a material adverse
effect on our business, results of operations, financial condition, liquidity and ability to meet any debt obligations and, consequently, could negatively impact the trading price of our common stock. Any existing or future shareholder lawsuits
and any future governmental investigations and/or enforcement actions could adversely impact our reputation, our relationships with our customers and our ability to generate revenue.
Risks Related to the Regulation of our Products
We will need regulatory approvals to commercialize our products.
We are required to obtain approval (i) from the FDA in order to sell our products in the U.S. and (ii) from foreign regulatory authorities in order to sell our products in other countries. The FDA’s review and approval process is lengthy,
expensive and uncertain. Extensive pre-clinical and clinical data and supporting information must be submitted to the FDA for each indication for each product candidate in order to secure FDA approval. Before receiving FDA clearance to market
our proposed products, we will have to demonstrate that our products are safe on the patient population and effective for the diseases that are to be treated. Clinical trials, manufacturing and marketing of drugs are subject to the rigorous
testing and approval process of the FDA and equivalent foreign regulatory authorities. FDA may change, at any time, its requirements for approval of new drugs based on information and data received from others and ourselves potentially
resulting in product approval delays or non-approvals. The Federal Food, Drug and Cosmetic Act and other federal, state and foreign statutes and regulations govern and influence the testing, manufacture, labeling, advertising, distribution and
promotion of drugs and medical devices. As a result, regulatory approvals can take several years to acquire and may further require the expenditure of substantial financial, managerial and other resources. The FDA could reject an application
or, in the alternative, require us to conduct additional clinical or other studies as part of the regulatory review process. Delays in obtaining or failure to obtain FDA approvals would delay or prevent the commercialization of our product
candidates, which would prevent, defer or decrease our receipt of revenues. In addition, should we receive initial regulatory approval, our product candidates will be subject to extensive and rigorous ongoing domestic and foreign government
regulation.
Even if we obtain regulatory approvals, our marketed drugs will be subject to ongoing regulatory review. If we fail to comply with ongoing regulatory requirements, we could lose our approvals to
market drugs, in which case our business would be materially adversely affected.
Following regulatory approval in the United States of any drugs we may develop, we will remain subject to continuing regulatory review, including the review of adverse drug experiences and clinical results that are reported after our drug
products are made available to patients. This would include results from any post marketing tests or vigilance required as a condition of approval. The manufacturer and manufacturing facilities we use to make any of our drug products will also
be subject to periodic review and inspection by the FDA. The discovery of any new or previously unknown problems with the product, manufacturer or facility may result in restrictions on the drug, manufacturer or facility, including withdrawal
of the drug from the market. We would continue to be subject to the FDA requirements governing the labeling, packaging, storage, advertising, promotion, recordkeeping, and submission of safety and other post-market information for all of our
product candidates, even those that the FDA had approved. If we fail to comply with applicable continuing regulatory requirements, we may be subject to fines, suspension or withdrawal of regulatory approval, product recalls and seizures,
operating restrictions and other adverse consequences.
The drug development process to obtain FDA approval is very costly and time consuming, and if we cannot complete our clinical trials in a cost-effective manner, our results of operations may be
adversely affected.
Costs and timing of clinical trials may vary significantly over the life of a project owing to the following non-exclusive reasons:
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the duration of the clinical trials;
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the number of sites included in the trials;
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the countries in which the trial is conducted;
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the length of time required and ability to enroll eligible patients;
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the number of patients that participate in the trials;
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the number of doses that patients receive;
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the drop-out or discontinuation rates of patients;
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per patient trial costs;
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third party contractors failing to comply with regulatory requirements or meet their contractual obligations to us in a timely manner;
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our drug product candidates having different chemical and pharmacological properties in humans than in lab testing;
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the need to suspend or terminate our clinical trials;
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insufficient or inadequate supply or quality of drug product candidates or other necessary materials to conduct our trials;
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potential additional safety monitoring, or other conditions required by FDA or comparable foreign regulatory authorities regarding the scope or design of our clinical trials, or other studies requested by regulatory agencies;
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problems engaging IRBs to oversee trials or in obtaining and maintaining IRB approval of studies;
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the duration of patient follow-up;
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the efficacy and safety profile of the product candidate;
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the costs and timing of obtaining regulatory approvals; and
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the costs involved in enforcing or defending patent claims or other intellectual property rights.
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Each of the above factors and other unanticipated factors beyond our control could prevent us from gaining approval for our drugs in a cost-effective and timely manner, which could have a material adverse impact on our business.
Data obtained from clinical trials are not necessarily predictive of future results, may be negative or inconclusive, and are susceptible to varying interpretations, which could delay, limit or
prevent regulatory clearances.
Data already obtained, or in the future obtained, from pre-clinical studies and clinical trials do not necessarily predict the results that will be obtained from later pre-clinical studies and clinical trials. Moreover, pre-clinical and
clinical data may be negative or inconclusive. In addition, data is susceptible to varying interpretations. Negative or inconclusive data, or data interpreted in various ways, could delay, limit or prevent regulatory approval. A number of
companies in the pharmaceutical industry have suffered significant setbacks in advanced clinical trials, even after they obtained promising results in earlier trials. Despite the results reported in some of our earlier clinical trials for
belapectin, our clinical trials may not demonstrate sufficient levels of safety and efficacy necessary to obtain the requisite regulatory approvals for our drugs, and thus, our proposed drugs may not be approved for marketing. If later-stage
clinical trials do not produce favorable results, our ability to achieve regulatory approval for any of our product candidates may be adversely impacted. The failure to adequately demonstrate the safety and effectiveness of a proposed
formulation or product under development could delay or prevent regulatory clearance of the potential drug. The resulting delays in commercialization could materially harm our business.
Our product candidates may cause undesirable side effects or have other properties that could delay or prevent their regulatory approval, limit the commercial profile of an approved label, or
result in significant negative consequences following any marketing approval.
Undesirable side effects caused by our product candidates could cause us or regulatory authorities to interrupt, delay or halt clinical trials and could result in a more restrictive label or the delay or denial of regulatory approval by the
FDA or other comparable foreign regulatory authority. Although we are not currently aware of any undesirable side effects caused by our product candidates, it is possible that they may be identified in the clinical trial process.
As a result of undesirable side effects or safety or toxicity issues that we may experience in our clinical trials, we may not receive approval to market any product candidates, which could prevent us from ever generating revenues or
achieving profitability. Results of our trials could reveal an unacceptably high severity and prevalence of side effects. In such an event, our trials could be suspended or terminated, and the FDA or comparable foreign regulatory authorities
could order us to cease further development or deny approval of our product candidates for any or all targeted indications. These side effects could affect patient recruitment or the ability of enrolled subjects to complete the trial or result
in potential product liability claims.
Additionally, if any of our product candidates receives marketing approval, and we or others later identify undesirable side effects caused by such product, a number of potentially significant negative consequences could result, including:
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we may be forced to suspend marketing of such product;
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regulatory authorities may withdraw their approvals of such product;
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regulatory authorities may require additional warnings on the label that could diminish the usage or otherwise limit the commercial success of such products;
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we may be required to conduct post-market studies;
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we could be sued and held liable for harm caused to subjects or patients; and
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our reputation may suffer.
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Any of these events could prevent us from achieving or maintaining market acceptance of the particular product candidate, if approved.
Failure to obtain regulatory approval in international jurisdictions would prevent our product candidates from being marketed abroad.
In order to market and sell our products in the European Union and many other jurisdictions, we must obtain separate marketing approvals and comply with numerous and varying regulatory requirements. The approval procedure varies among
countries and can involve additional testing. The time required to obtain approval may differ substantially from that required to obtain FDA approval. The regulatory approval process outside the United States generally includes all of the risks
associated with obtaining FDA approval. In addition, in many countries outside the United States, it is required that the product be approved for reimbursement before the product can be approved for sale in that country. We may not obtain
approvals from regulatory authorities outside the United States on a timely basis, if at all. Approval by the FDA does not ensure approval by regulatory authorities in other countries or jurisdictions, and approval by one regulatory authority
outside the United States does not ensure approval by regulatory authorities in other countries or jurisdictions or by the FDA. We may not be able to file for marketing approvals and may not receive necessary approvals to commercialize our
products in any market. If we are unable to obtain approval of any of our product candidates by regulatory authorities in the European Union or other countries, the commercial prospects of that product candidate may be significantly diminished,
and our business prospects could decline.
Risks Related to Our Intellectual Property
Our competitive position is contingent upon the protection of our intellectual property.
Development and protection of our intellectual property are critical to our business. All of our intellectual property, patented or otherwise, has been invented and/or developed by employees or former employees of the Company. Our success
depends, in part, on our ability to obtain patent protection for our products or processes in the U.S. and other countries, protect trade secrets and prevent others from infringing on our proprietary rights. We will only be able to protect our
product candidates from unauthorized making, using, selling, offering to sell or importation by third parties to the extent that we have rights under valid and enforceable patents or trade secrets that cover these activities. If we do not
adequately protect our intellectual property, competitors may be able to practice our technologies.
The patent positions of pharmaceutical and biotechnology companies can be highly uncertain and involve complex legal and factual questions for which important legal principles remain unresolved. No consistent policy regarding the breadth of
claims allowed in biotechnology patents has emerged to date in the United States. The biotechnology patent situation outside the United States is even more uncertain. Changes in either the patent laws or in interpretations of patent laws in the
United States and other countries may diminish the value of our intellectual property. Accordingly, we cannot predict the breadth of claims that may be allowed in our pending patent applications or enforced in our issued patents or in
third-party patents.
The degree of future protection for our proprietary rights is uncertain because legal means afford only limited protection and may not adequately protect our rights or permit us to gain or keep our competitive advantage. For example:
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others may be able to make compounds that are competitive with our product candidates but are not covered by the claims of our patents;
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we might not have been the first to make the inventions covered by our pending patent applications;
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we might not have been the first to file patent applications for these inventions;
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it is possible that our pending patent applications will not result in issued patents;
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we may not develop additional proprietary technologies that are patentable; or
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the patents of others may have an adverse effect on our business.
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We also may rely on trade secrets to protect our technology, especially where we do not believe patent protection is appropriate or obtainable. However, trade secrets are difficult to protect. Although we require our scientific and technical
employees and consultants to enter into broad assignment of inventions agreements, and all of our employees, consultants and corporate partners with access to proprietary information to enter into confidentiality agreements, these agreements
may not be honored. Enforcing a claim that a third party illegally obtained, and is using, our trade secrets is expensive and time consuming, and the outcome is unpredictable. In addition, courts outside the United States are sometimes less
willing to protect trade secrets. Moreover, our competitors may independently develop equivalent knowledge, methods and know-how.
We may incur substantial costs as a result of litigation or other proceedings relating to patent and other intellectual property rights, and we may be unable to protect our rights to, or use of,
our technology.
Some or all of our patent applications may not issue as patents, or the claims of any issued patents may not afford meaningful protection for our technologies or products. In addition, patents issued to us or our licensors, if any, may be
challenged and subsequently narrowed, invalidated or circumvented. Patent litigation is widespread in the biotechnology industry and could harm our business. Litigation might be necessary to protect our patent position or to determine the scope
and validity of third-party proprietary rights.
If we choose to go to court to stop someone else from using the inventions claimed in our patents, that individual or company would have the right to ask the court to rule that such patents are invalid and/or should not be enforced against
that third party. These lawsuits are expensive, and we may not have the required resources to pursue such litigation or to protect our patent rights. In addition, there is a risk that the court will decide that these patents are not valid and
that we do not have the right to stop the other party from using the inventions. There is also the risk that, even if the validity of these patents is upheld, the court will refuse to stop the other party on the ground that such other party’s
activities do not infringe our rights in these patents.
Furthermore, a third party may claim that we are using inventions covered by the third party’s patent rights and may go to court to stop us from engaging in our normal operations and activities, including making or selling our product
candidates. These lawsuits are costly and could affect our results of operations and divert the attention of managerial and technical personnel. There is a risk that a court would decide that we are infringing the third party’s patents and
would order us to stop the activities covered by the patents. In addition, there is a risk that a court will order us to pay the other party treble damages for having violated the other party’s patents. The biotechnology industry has produced a
proliferation of patents, and it is not always clear to industry participants, including us, which patents cover various types of products or methods of use. The coverage of patents is subject to interpretation by the courts, and the
interpretation is not always uniform. If we are sued for patent infringement, we would need to demonstrate that our products or methods of use either do not infringe the claims of the relevant patent and/or that the patent claims are invalid,
and we may not be able to do this. Proving invalidity in the U.S., in particular, is difficult since it requires a showing of clear and convincing evidence to overcome the presumption of validity enjoyed by issued patents.
Because some patent applications in the United States may be maintained in secrecy until the patents are issued, patent applications in the United States and many foreign jurisdictions are typically not published until eighteen months after
filing, and publications in the scientific literature often lag behind actual discoveries, we cannot be certain that others have not filed patent applications for technology covered by our issued patents or our pending applications or that we
were the first to invent the technology. Our competitors may have filed, and may in the future file, patent applications covering technology similar to ours. Any such patent application may have priority over our patent applications and could
further require us to obtain rights to issued patents covering such technologies. If another party has filed a United States patent application on inventions similar to ours, we may have to participate in an interference or other proceeding in
the PTO or a court to determine priority of invention in the United States. The costs of these proceedings could be substantial, and it is possible that such efforts would be unsuccessful, resulting in a loss of our United States patent
position with respect to such inventions.
Some of our competitors may be able to sustain the costs of complex patent litigation more effectively than we can because they have substantially greater resources. In addition, any uncertainties resulting from
the initiation and continuation of any litigation could have a material adverse effect on our ability to raise the funds necessary to continue our operations.
Obtaining and maintaining our patent protection depends upon compliance with various procedural, document submission, fee payment and other requirements imposed by governmental patent agencies,
and our patent protection could be reduced or eliminated for non-compliance with these requirements.
The PTO and various foreign governmental patent agencies require compliance with a number of procedural, documentary, fee payment and other provisions during the patent process. There are situations in which noncompliance can result in
abandonment or lapse of a patent or patent application, resulting in partial or complete loss of patent rights in the relevant jurisdiction. In such an event, competitors might be able to enter the market earlier than would otherwise have been
the case.
Our failure to secure trademark registration could adversely affect our ability to market our product candidates and our business.
Our trademark applications in the United States, when filed, and any other jurisdictions where we may file may not be allowed for registration, and our registered trademarks may not be maintained or enforced. During trademark registration
proceedings, we may receive rejections. Although we are given an opportunity to respond to those rejections, we may be unable to overcome such rejections. In addition, in the PTO and in comparable agencies in many foreign jurisdictions, third
parties are given an opportunity to oppose pending trademark applications and to seek to cancel registered trademarks. Opposition or cancellation proceedings may be filed against our applications and/or registrations, and our applications
and/or registrations may not survive such proceedings. Failure to secure such trademark registrations in the United States and in foreign jurisdictions could adversely affect our ability to market our product candidates and our business.
Confidentiality agreements with employees and others may not adequately prevent disclosure of our trade secrets and other proprietary information and may not adequately protect our intellectual
property, which could impede our ability to compete.
Because we operate in the highly technical field of biotechnology and pharmaceutical development, we rely in part on trade secret protection in order to protect our proprietary trade secrets and unpatented know-how. However, trade secrets
are difficult to protect, and we cannot be certain that others will not develop the same or similar technologies on their own. We have taken steps, including entering into confidentiality agreements with all of our employees, consultants and
corporate partners to protect our trade secrets and unpatented know-how. These agreements generally require that the other party keep confidential and not disclose to third parties all confidential information developed by the party or made
known to the party by us during the course of the party’s relationship with us. We also typically obtain agreements from these parties that provide that inventions conceived by the party in the course of rendering services to us will be our
exclusive property. However, these agreements may not be honored and may not effectively assign intellectual property rights to us. Enforcing a claim that a party illegally obtained and is using our trade secrets or know-how is difficult,
expensive and time consuming, and the outcome is unpredictable. In addition, courts outside the United States may be less willing to protect trade secrets or know-how. The failure to obtain or maintain trade secret protection could adversely
affect our competitive position.
We may be subject to claims that our employees have wrongfully used or disclosed alleged trade secrets of their former employers.
As is common in the biotechnology and pharmaceutical industry, we employ individuals who were previously employed at other biotechnology or pharmaceutical companies, including our competitors or potential competitors. Although no claims
against us are currently pending, we may be subject to claims that these employees or we have inadvertently or otherwise used or disclosed trade secrets or other proprietary information of their former employers. Litigation may be necessary to
defend against these claims. Even if we are successful in defending against these claims, litigation could result in substantial costs and be a distraction to management.
Risks Related to Information Technology and Cybersecurity
We are dependent on information technology and our systems and infrastructure face certain risks, including from cybersecurity breaches and data leakage.
We rely extensively on information technology systems, networks and services that are managed and hosted provided by third-parties or their vendors, to assist in conducting our business. A significant breakdown, invasion, corruption,
destruction or interruption of critical information technology systems or infrastructure, by our personnel or others with authorized access to our systems or unauthorized persons could negatively impact our operations. The ever-increasing use
and evolution of technology, including cloud-based computing, creates opportunities for the unintentional dissemination or intentional destruction or modification of confidential information stored in our, or our third-party providers’ systems,
portable media or storage devices. We could also experience a business interruption, theft of confidential information or reputational damage from malicious cyber-attacks, which may compromise our system infrastructure or lead to data leakage,
either internally or at our third-party providers. We have observed an increase in cybersecurity incidents across the industry, predominantly ransomware and social engineering attacks. As the cyber-threat landscape evolves, these attacks are
growing in frequency, sophistication and intensity, and due to the nature of some of these attacks, there is also a risk that they may remain undetected for a period of time. There can be no assurance that we will be able to prevent breakdowns
or breaches to our or our third-party providers’ databases or systems that could adversely affect our business.
Risks Related to Our Common Stock
The market price of our common stock may be volatile and adversely affected by several factors. This could subject us to securities class action litigation, and our stockholders could incur
substantial losses.
The market price of our common stock could fluctuate significantly in response to various factors and events, including but not limited to:
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the results of our pre-clinical studies and clinical trials, including interim results, as well as those of our competitors;
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regulatory actions with respect to our products or our competitors’ products;
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our ability to integrate operations, technology, products and services;
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our ability to execute our business plan;
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operating results below expectations;
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our issuance of additional securities, including debt or equity or a combination thereof, which may be necessary to fund our operating expenses and the cost of our clinical trials;
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announcements of technological innovations or new products by us or our competitors;
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the success of competitive products;
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loss of any strategic relationship;
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industry developments, including, without limitation, changes in healthcare policies or practices or third-party reimbursement policies;
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regulatory or legal developments in the United States and other countries;
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the level of expenses related to any of our product candidates or clinical development programs;
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disputes or other developments related to proprietary rights, including patents, litigation matters, and our ability to obtain patent protection for our technologies;
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economic and other external factors;
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period-to-period fluctuations in our financial results;
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sales of our common stock by us, our insiders or our other stockholders;
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whether an active trading market in our common stock develops and is maintained;
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engagement and retention of senior management needed for our clinical trials; and
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novel and unforeseen market forces and trading strategies, such as the massive short squeeze rally caused by retail investors on companies such as Gamestop.
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In addition, the market price for securities of pharmaceutical and biotechnology companies historically has been highly volatile, and the securities markets have from time-to-time experienced significant price and volume fluctuations that
are unrelated to the operating performance of particular companies. These broad market fluctuations may cause the market price of our common stock to decline substantially.
In the past, securities class action litigation has often been brought against a company, including us, following a decline in the market price of its securities. This risk is especially relevant for us because biotechnology and
biopharmaceutical companies have experienced significant stock price volatility in recent years. As described above, we have recently defended a consolidated federal securities class action lawsuit and a consolidated shareholder derivative
actions, and we may become involved in additional instances of this type of litigation in the future. Litigation often is expensive and diverts management’s attention and resources, which could materially and adversely affect our business.
Additionally, fluctuations in the trading price or liquidity of our common stock may materially and adversely affect, among other things, the interest of investors to purchase our common stock on the open market and, generally, our ability
to raise capital.
Our board of directors has the power to designate, without stockholder approval, additional series of preferred capital, the shares of which could be senior to our common stock and be entitled
to conversion or voting rights that adversely affect the holders of our common stock.
Our articles of incorporation authorize the issuance of capital stock including 20,000,000 authorized undesignated shares (all have been designated as of December 31, 2022), and empowers our board of directors to prescribe, by resolution and
without stockholder approval, a class or series of undesignated shares, including the number of shares in the class or series and the voting powers, designations, rights, preferences, restrictions and the relative rights in each such class or
series. Accordingly, in the event that additional undesignated shares are authorized under our charter documents, our board of directors may designate and issue additional shares or series of preferred stock that would rank senior to the shares
of common stock as to dividend rights or rights upon our liquidation, winding-up, or dissolution
Nevada law and our charter documents could make it more difficult for a third party to acquire us and discourage a takeover, which could depress the trading price of our common stock.
Nevada corporate law and our articles of incorporation and bylaws contain provisions that could discourage, delay, or prevent a change in control of our Company or changes in our management that our stockholders may deem advantageous. For
example, holders of our common stock do not have cumulative voting rights in the election of directors, meaning that stockholders owning a majority of our outstanding shares of common stock will be able to elect all of our directors. In
addition, because if and when we have 200 or more stockholders of record, we are subject to the “business combinations” provisions of the Nevada Revised Statutes, or NRS. These provisions could prohibit or delay a merger or other takeover or
change in control attempt and, accordingly, may discourage attempts to acquire our Company even though such a transaction may be in our stockholders’ best interest and offer our stockholders the opportunity to sell their stock at a price above
the prevailing market price.
We may issue additional common stock, which might dilute the net tangible book value per share of our common stock.
Our board of directors has the authority, without action or vote of our stockholders, to issue all or a part of our authorized but unissued shares. Such stock issuances could be made at a price that reflects a discount to, or a premium from,
the then-current market price of our common stock. In addition, in order to raise capital, we may need to issue securities that are convertible into or exchangeable for a significant amount of our common stock. We may engage in additional
capital raising transactions within the next twelve months, which would likely result in issuances of additional shares which would be dilutive to current shareholders. These issuances would dilute the percentage ownership interest, which would
have the effect of reducing your influence on matters on which our stockholders vote, and might dilute the net tangible book value per share of our common stock. You may incur additional dilution if holders of stock options, whether currently
outstanding or subsequently granted, exercise their options, or if the holders of warrants, whether currently outstanding or subsequently granted, exercise their warrants to purchase shares of our common stock.
A sale of a substantial number of shares of the common stock may cause the price of our common stock to decline.
Finance transactions resulting in a large amount of newly issued shares that become readily tradable, or other events that cause current stockholders to sell shares, could place downward pressure on the trading price of our stock. Some of
our shareholders have registration rights to facilitate sales of large blocks of our common stock. We have filed a shelf registration statement to allow registered sales by us of up to $100 million, which includes the offer and sell shares of
our common stock having an aggregate offering price of up to $35,967,000 from time to time pursuant to our At The Market Issuance Sales Agreement with H.C. Wainwright & Co., LLC. We may consider additional or other capital raising
transactions within the next twelve months, which would likely result in issuances of additional shares that would be dilutive to current shareholders. In addition, the lack of a robust resale market may require a stockholder who desires to
sell a large number of shares of common stock to sell the shares in increments over time to mitigate any adverse impact of the sales on the market price of our stock.
If our stockholders sell, or the market perceives that our stockholders intend to sell for various reasons substantial amounts of our common stock in the public market, including shares issued upon the exercise of outstanding options or
warrants, the market price of our common stock could fall. Sales of a substantial number of shares of our common stock may make it more difficult for us to sell equity or equity-related securities in the future at a time and price that we deem
reasonable or appropriate. We may become involved in securities class action litigation that could divert management’s attention and harm our business.
We have not paid cash dividends on our common stock in the past and do not expect to pay cash dividends in the foreseeable future.
We have never paid cash dividends on our common stock and do not anticipate paying cash dividends on our common stock in the foreseeable future. The payment of dividends on our common stock will depend on our earnings, financial condition
and other business and economic factors affecting us at such time as the board of directors may consider relevant. If we do not pay dividends, our common stock may be less valuable because a return on your investment will only occur if the
market price of our common stock price appreciates.
Our shares of common stock have been thinly traded, so you may be unable to sell at or near ask prices or even at all if you need to sell your shares to raise money or otherwise desire to
liquidate your shares.
We cannot predict the extent to which an active public market for our common stock will develop or be sustained. Our common stock is currently traded on The NASDAQ Capital Market and experiences periods when it is considered “thinly-traded.”
This situation may be attributable to several factors, including the fact that we are a small company that is relatively unknown to stock analysts, stockbrokers, institutional investors and others in the investment community that generate or
influence sales volume. Furthermore, even if our stock came to the attention of such persons, they may be reluctant to follow us or purchase or recommend the purchase of our shares. Therefore, there may be periods of several days, weeks or
months when trading activity in our shares is minimal, as compared to a seasoned issuer that has a large and steady volume of trading activity that will generally support continuous sales without an adverse effect on share price. We cannot give
you any assurance that a broader or more active public trading market for our common stock will be sustained, or that current trading levels will be sustained or not diminish.
Concentration of ownership by our principal stockholders may limit your ability to influence the outcome of director elections and other transactions requiring stockholder approval.
A significant percentage of our outstanding stock is held by a limited number of investors, including Richard E. Uihlein. Mr. Uihlein, the chairman of our board of directors, who beneficially owns approximately 16.6% of our outstanding
common stock as of February 29, 2024 (which does not include any shares issuable upon exercise of options and warrants) and the 10X Fund, LP , which now owns 9.6% of the issued and outstanding shares of common stock of the Company as of
February 29, 2024 (which does not include any shares issuable upon exercise of options and warrants). Mr. Uihlein is also an investor in the 10X Fund as a limited partner but is not deemed to be a beneficial owner of, or have a reportable
interest in, any shares owned by 10X Fund. As a result of their ownership of shares of common stock, Mr. Uihlein and 10X Fund have and will have significant influence over corporate actions requiring stockholder approval, including the
following actions:
| • |
to elect or defeat the election of our directors;
|
| • |
to amend or prevent amendment of our certificate of incorporation or bylaws;
|
| • |
to effect or prevent a merger, sale of assets or other corporate transaction; and
|
| • |
to control the outcome of any other matter submitted to our stockholders for vote.
|
Such persons’ stock ownership may discourage a potential acquirer from making a tender offer or otherwise attempting to obtain control of our company, which in turn could reduce our stock price or prevent our
stockholders from realizing a premium over our stock price.
Richard E. Uihlein’s and 10X Fund’s significant ownership positions may deter or prevent efforts by other companies to acquire us, which could prevent our stockholders from realizing a control
premium.
As a result of Mr. Uihlein’s and 10X Fund’s significant ownership and Mr. Uihlein’s position as chairman of the board of directors, other companies may be less inclined to pursue an acquisition of us or we may
not have the opportunity to be acquired in a transaction that stockholders might otherwise deem favorable, including transactions in which our stockholders might realize a substantial premium for their shares.
Richard E. Uilhlein and/or 10X Fund could sell or transfer a substantial number of shares of our common stock, which could depress the price of our securities or result in a change in control of
our company.
Although Mr. Uihlein has held common stock of the Company since 2012 and has not sold any of the shares of common stock that he has acquired during this time period, and although 10X Fund has been a long-time investor in the Company, neither
Mr. Uihlein nor 10X Fund are subject to any contractual restrictions with us on their ability to sell or transfer our common stock on the open market, in privately negotiated transactions or otherwise, and these sales or transfers could create
substantial declines in the price of our securities or, if these sales or transfers were made to a single buyer or group of buyers, could contribute to a transfer of control of our company to a third party. Sales by Mr. Uihlein or 10X Fund of a
substantial number of shares, or the expectation of such sales, could cause a significant reduction in the market price of our common stock.
A pandemic similar to the COVID-19 pandemic, or the reemergence of the COVID-19 pandemic could adversely impact our business, including our preclinical studies and clinical trials.
The occurrence of a pandemic similar to the COVID-19 pandemic, or the reemergence of the COVID-19 pandemic could cause disruptions that could severely impact our business and our clinical trials including:
| • |
delays or difficulties in enrolling patients in our clinical trials;
|
| • |
delays or disruptions in non-clinical experiments due to unforeseen circumstances at contract research organizations and vendors along their supply chain;
|
| • |
increased rates of patients withdrawing from our clinical trials following enrollment as a result of contracting a contagious illness, being forced to quarantine, or not accepting in office or home health visits;
|
| • |
diversion of healthcare resources away from the conduct of clinical trials, including the diversion of hospitals serving as sites for our NAVIGATE trial and hospital staff supporting the conduct of such trials;
|
| • |
interruption of key clinical trial activities, such as clinical trial site data monitoring, due to limitations on travel imposed or recommended by federal or state governments, employers and others or interruption of clinical trial
subject visits and study procedures (particularly any procedures that may be deemed non-essential), which may impact the integrity of subject data and clinical study endpoints;
|
| • |
interruption or delays in the operations of the FDA and comparable foreign regulatory agencies, which may impact review and approval timelines;
|
| • |
interruption of, or delays in receiving, supplies of our product candidates from our contract manufacturing organizations due to staffing shortages, production slowdowns or stoppages and disruptions in delivery systems; and
|
| • |
limitations on employee resources that would otherwise be focused on the conduct of our preclinical studies and clinical trials, including because of sickness of employees or their families, the desire of employees to avoid contact
with large groups of people, an increased reliance on working from home or mass transit disruptions.
|
In addition, the trading prices for our common stock and other biopharmaceutical companies could experience extreme volatility during a pandemic. The extent to which a pandemic may impact our business, preclinical studies and clinical
trials will depend factors that we cannot predict or control, such as the ultimate geographic spread of the disease, the duration of the outbreak, travel restrictions and actions to contain the outbreak or treat its impact, such as social
distancing and quarantines or lock-downs in the United States and other countries, business closures or business disruptions and the effectiveness of actions taken in the United States and other countries to contain and treat the disease.
| Item 1B. |
Unresolved Staff Comments
|
None.
| Item 1C. |
Cybersecurity
|
Risk management and strategy
We have policies and processes designed to protect our information technology systems, which are managed by outside consultants. Our cybersecurity consultants resolve issues in a timely manner in the event of a
cybersecurity threat or incident.
As part of our broader risk management framework, from time to time, we seek to identify potential cybersecurity risks to our business and improve our policies and processes to address such risks. We have
designed our business applications to minimize the impact that cybersecurity incidents could have on our business and have identified back-up systems where appropriate. We seek to further mitigate cybersecurity risks through a combination of
monitoring and detection activities, use of anti-malware applications, employee training, quality reviews and communication and reporting structures, among other processes. We have an incident response plan in place that outlines containment,
eradication and recovery plans in the event of a cybersecurity threat or incident.
We engage a third-party consultant to assist us with designing controls and our cybersecurity risk management framework. We are also engaging with a third party to perform penetration testing. We also retain
third parties to assist with the monitoring and detection of cybersecurity threats and responding to any cybersecurity threats or incidents.
With respect to third parties that manage or use our information technology or data, we obtain reports to assess the security of their systems and processes. We engage in ongoing monitoring of third-party
providers to ensure compliance with our cybersecurity standards.
We have not encountered cybersecurity threats or incidents that have had a material impact on our business.
Cybersecurity Governance
Our Nomination and Corporate Governance Committee has specific oversight responsibility for cybersecurity The Nomination and Corporate Governance Committee reviews and discusses with management our policies,
practices and risks related to information security and cybersecurity.
Our chief financial officer has primary responsibility for assessing, monitoring and managing cybersecurity risks. We utilize cybersecurity consultants to monitor and report cybersecurity threats or incidents to
our chief financial officer and to resolve issues arising from such threats or incidents.
Our chief financial officer updates the Nomination and Corporate Governance Committee on any risks related to cybersecurity as needed.
| Item 2. |
Properties
|
We lease 3,610 square feet for our executive offices located at 4960 Peachtree Industrial Blvd., Norcross, GA. We also lease on a month-to-month basis approximately 300 square feet in Natick, MA, for use by
research and development employees and which is collocated with one of our research and development service vendors. We believe these spaces are suitable for our present operations.
| Item 3. |
Legal Proceedings
|
From time to time, the Company is exposed to litigation relating to its operations. The Company is not currently engaged in any legal proceedings that are expected, individually or in the aggregate, to have a
material, adverse effect on its financial condition or results of operations.
| Item 4. |
Mine Safety Disclosures
|
Not applicable.
PART II
| Item 5. |
Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
|
Our common stock began trading on The NASDAQ Capital Market under the symbol GALT effective March 23, 2012.
Holders of Common Stock
As of February 29, 2024, there were 138 shareholders of record of our common stock. Because shares of our common stock are held by depositaries, brokers and other nominees, the number of beneficial holders of our
shares is substantially larger than the number of record holders.
Dividends
We have never paid cash dividends on our common stock and do not anticipate paying cash dividends on our common stock in the foreseeable future. The payment of dividends on our common stock will depend on our
earnings, financial condition and other business and economic factors affecting us at such time as the board of directors may consider relevant.
| Item 6. |
[Reserved]
|
| Item 7. |
Management’s Discussion and Analysis of Financial Condition and Results of Operations
|
Forward-Looking Statements
In addition to historical information, the following Management’s Discussion and Analysis of Financial Condition and Results of Operations contains forward-looking statements as defined under Section 21E of the
Securities Exchange Act of 1934, as amended, and is subject to the safe harbor created therein for forward-looking statements. Such statements include, but are not limited to, statements concerning our anticipated operating results, research
and development, clinical trials, regulatory proceedings, and financial resources, and can be identified by use of words such as, for example, “anticipate,” “estimate,” “expect,” “project,” “intend,” “plan,” “believe” and “would,” “should,”
“could” or “may.” All statements, other than statements of historical facts, included herein that address activities, events, or developments that the Company expects or anticipates will or may occur in the future, are forward-looking
statements, including statements regarding: plans and expectations regarding clinical trials; plans and expectations regarding regulatory approvals; our strategy and expectations for clinical development and commercialization of our products;
potential strategic partnerships; expectations regarding the effectiveness of our products; plans for research and development and related costs; statements about accounting assumptions and estimates; expectations regarding liquidity and the
sufficiency of cash to fund currently planned operations through at least December 31, 2024; our commitments and contingencies; and our market risk exposure. Forward-looking statements are based on current expectations, estimates and
projections about the industry and markets in which Galectin Therapeutics operates, and management’s beliefs and assumptions. These statements are not guarantees of future performance and involve certain known and unknown risks and
uncertainties that could cause actual results to differ materially from those expressed or implied by such statements. Such risks and uncertainties are related to and include, without limitation,
| • |
our early stage of development,
|
| • |
we have incurred significant operating losses since our inception and cannot assure you that we will generate revenue or profit,
|
| • |
our dependence on additional outside capital,
|
| • |
we may be unable to enter into strategic partnerships for the development, commercialization, manufacturing and distribution of our proposed product candidates,
|
| • |
uncertainties related to any litigation,
|
| • |
uncertainties related to our technology and clinical trials, including expected dates of availability of clinical data,
|
| • |
we may be unable to demonstrate the efficacy and safety of our developmental product candidates in human trials,
|
| • |
we may be unable to improve upon, protect and/or enforce our intellectual property,
|
| • |
we are subject to extensive and costly regulation by the U.S. Food and Drug Administration (FDA) and by foreign regulatory authorities, which must approve our product candidates in development and could restrict the sales and
marketing and pricing of such products,
|
| • |
competition and stock price volatility in the biotechnology industry,
|
| • |
limited trading volume for our stock, concentration of ownership of our stock, and other risks detailed herein and from time to time in our SEC reports, and
|
| • |
the impact resulting from a pandemic or the reemergence of COVID-19, which delayed our clinical trial and development efforts, as well as the impact that such a pandemic has on the volatility of the capital market and our ability to
access the capital market.
|
We caution investors that actual results or business conditions may differ materially from those projected or suggested in forward-looking statements as a result of various factors including, but not limited to,
those described above and in the Risk Factors section of this annual report on Form 10-K. We cannot assure you that we have identified all the factors that create uncertainties. Moreover, new risks emerge from time to time and it is not
possible for our management to predict all risks, nor can we assess the impact of all risks on our business or the extent to which any risk, or combination of risks, may cause actual results to differ from those contained in any forward-looking
statements. Readers should not place undue reliance on forward-looking statements. We undertake no obligation to publicly release the result of any revision of these forward-looking statements to reflect events or circumstances after the date
they are made or to reflect the occurrence of unanticipated events.
Overview
We are a clinical stage biopharmaceutical company engaged in drug research and development to create new therapies for fibrotic disease, cancer and selected other diseases. Our drug candidates are based on our
method of targeting galectin proteins, which are key mediators of biologic and pathologic functions. We use naturally occurring, readily-available plant products as starting material in manufacturing processes to create proprietary, patented
complex carbohydrates with specific molecular weights and other pharmaceutical properties. These complex carbohydrate molecules are appropriately formulated into acceptable pharmaceutical formulations. Using these unique carbohydrate-based
candidate compounds that largely bind and inhibit galectin proteins, particularly galectin-3, we are undertaking the focused pursuit of therapies for indications where galectin proteins have a demonstrated role in the pathogenesis of a given
disease. We focus on diseases with serious, life-threatening consequences and those where current treatment options are limited specifically in NASH (non-alcoholic steatohepatitis) with cirrhosis and certain cancer indications. Our strategy is
to establish and implement clinical development programs that add value to our business in the shortest period of time possible and to seek strategic partners when one of our programs becomes advanced and requires significant additional
resources.
Our lead galectin-3 inhibitor is belapectin (GR-MD-02), which has been demonstrated in preclinical models to reverse liver fibrosis and cirrhosis and in clinical studies to decrease portal hypertension and
prevent its complication: the development of esophageal varices. Belapectin has the potential to treat many diseases due to galectin-3’s involvement in multiple key biological pathways such as fibrosis, immune cell function and immunity, cell
differentiation, cell growth, and apoptosis (cell death). The importance of galectin-3 in the fibrotic process is supported by experimental evidence. Animals with the galectin-3 gene “knocked-out” can no longer develop fibrosis in response to
experimental stimuli compared to animals with an intact galectin-3 gene. We are using our galectin-3 inhibitor to treat advanced liver fibrosis and liver cirrhosis in NASH patients. We have completed two Phase 1 clinical studies, a Phase 2
clinical study in NASH patients with advanced fibrosis (NASH-FX) and a second Phase 2b clinical trial in NASH patients with compensated cirrhosis and portal hypertension (NASH-CX).
Results of Operations from the Years Ended December 31, 2023 and 2022
Research and Development Expense
|
Year ended
December 31,
|
2023 as Compared to 2022
|
|||||||||||||||
|
2023
|
2022
|
$Change
|
% Change
|
|||||||||||||
|
(in thousands, except %)
|
||||||||||||||||
|
Research and development
|
$
|
32,130
|
$
|
31,737
|
$
|
393
|
1
|
%
|
||||||||
We generally categorize research and development expenses as either direct external expenses, comprised of amounts paid to third party vendors for services, or all other research and development expenses,
comprised of employee payroll and general overhead allocable to research and development. We consider a clinical program to have begun upon acceptance by the FDA, or similar agency outside of the United States, to commence a clinical trial in
humans, at which time we begin tracking expenditures by the product candidate. Clinical program expenses comprise payments to vendors related to preparation for, and conduct of, all phases of the clinical trial, including costs for drug
manufacture, patient dosing and monitoring, data collection and management, oversight of the trials and reports of results. Pre-clinical expenses comprise all research and development amounts incurred before human trials begin and for
additional toxicology studies to support advanced development, including payments to vendors for services related to product experiments and discovery, toxicology, pharmacology, metabolism and efficacy studies, as well as manufacturing process
development for a drug candidate. We have two product candidates, belapectin and GM-CT-01; however only belapectin is in active development.
Our research and development expenses were as follows:
|
Year Ended
December 31,
|
||||||||
|
2023
|
2022
|
|||||||
|
Direct external expenses:
|
(in thousands)
|
|||||||
|
Clinical programs
|
$
|
23,942
|
$
|
26,746
|
||||
|
Pre-clinical activities
|
3,021
|
1,262
|
||||||
|
Other research and development expenses:
|
||||||||
|
Payroll and other including stock-based compensation
|
5,167
|
3,727
|
||||||
|
$
|
32,130
|
$
|
31,737
|
|||||
Clinical programs expenses decreased in the year ended December 31, 2023 over the year ended December 31, 2022 primarily due to costs related to our the NAVIGATE clinical trial activities and a decrease in costs
related to contract manufacturing of belapectin. Pre-clinical activities increased due to activities incurred in support of the clinical program such as development and reproductive toxicity studies, clinical supplies and other supportive
activities. Payroll and other costs increased primarily due to additional employees being hired in research and development.
General and Administrative Expense
|
Year ended
December 31,
|
2023 as Compared to 2022
|
|||||||||||||||
|
2023
|
2022
|
$ Change
|
% Change
|
|||||||||||||
|
(in thousands, except %)
|
||||||||||||||||
|
General and administrative
|
$
|
5,942
|
$
|
6,615
|
$
|
(673
|
)
|
(10
|
%)
|
|||||||
General and administrative expenses consist primarily of salaries including stock-based compensation, legal and accounting fees, insurance, investor relations, business development and other office related
expenses. The primary reasons for the decrease for the year ended December 31, 2023, as compared to the same period for 2022 are due to a decrease in non-cash stock-based compensation of $624,000.
Other Income and Expense
During the year ended December 31, 2023, other income and expense consisted of $230,000 of interest income offset by interest expense and amortization of debt discounts on convertible notes payable and
convertible line of credit of $2,792,000 and change in fair value of derivatives of $432,000.
During the year ended December 31, 2022, other income and expense consisted of $52,000 of interest income and change in fair value of derivatives of $557,000 offset by interest expense and amortization of debt
discounts on convertible notes payable and convertible line of credit of $1,033,000.
Results of Operations from the Years Ended December 31, 2022 and 2021
Research and Development Expense
|
Year ended
December 31,
|
2022 as Compared to 2021
|
|||||||||||||||
|
2022
|
2021
|
$Change
|
% Change
|
|||||||||||||
|
(in thousands, except %)
|
||||||||||||||||
|
Research and development
|
$
|
31,737
|
$
|
23,818
|
$
|
7,919
|
33
|
%
|
||||||||
We generally categorize research and development expenses as either direct external expenses, comprised of amounts paid to third party vendors for services, or all other research and development expenses,
comprised of employee payroll and general overhead allocable to research and development. We consider a clinical program to have begun upon acceptance by the FDA, or similar agency outside of the United States, to commence a clinical trial in
humans, at which time we begin tracking expenditures by the product candidate. Clinical program expenses comprise payments to vendors related to preparation for, and conduct of, all phases of the clinical trial, including costs for drug
manufacture, patient dosing and monitoring, data collection and management, oversight of the trials and reports of results. Pre-clinical expenses comprise all research and development amounts incurred before human trials begin and for
additional toxicology studies to support advanced development, including payments to vendors for services related to product experiments and discovery, toxicology, pharmacology, metabolism and efficacy studies, as well as manufacturing process
development for a drug candidate. We have two product candidates, belapectin and GM-CT-01; however only belapectin is in active development.
Our research and development expenses were as follows:
|
Year Ended
December 31,
|
||||||||
|
2022
|
2021
|
|||||||
|
Direct external expenses:
|
(in thousands)
|
|||||||
|
Clinical programs
|
$
|
26,748
|
$
|
20,830
|
||||
|
Pre-clinical activities
|
1,262
|
562
|
||||||
|
Other research and development expenses:
|
||||||||
|
Payroll and other including stock-based compensation
|
3,727
|
2,426
|
||||||
|
$
|
31,737
|
$
|
23,818
|
|||||
Clinical programs expenses increased in the year ended December 31, 2022 over the year ended December 31, 2021 primarily due to costs related to our the NAVIGATE clinical trial activities and preparations and
some preclinical activities incurred in support of the planned clinical program such as development and reproductive toxicity studies, clinical supplies and other supportive activities. Payroll and other costs increased primarily due to
additional employees being hired in research and development.
General and Administrative Expense
|
Year ended
December 31,
|
2022 as Compared to 2021
|
|||||||||||||||
|
2022
|
2021
|
$ Change
|
% Change
|
|||||||||||||
|
(in thousands, except %)
|
||||||||||||||||
|
General and administrative
|
$
|
6,615
|
$
|
6,361
|
$
|
254
|
4
|
%
|
||||||||
General and administrative expenses consist primarily of salaries including stock-based compensation, legal and accounting fees, insurance, investor relations, business development and other office related
expenses. The primary reasons for the increase for the year ended December 31, 2022, as compared to the same period for 2021 are due to an increase in non-cash stock-based compensation of $399,000 partially offset by decreases in legal fees and
insurance expense of $146,000 and $131,000, respectively.
Other Income and Expense
During the year ended December 31, 2022, other income and expense consisted of $52,000 of interest income offset by interest expense and amortization of debt discounts on convertible notes payable and convertible
line of credit of $1,033,000.
During the year ended December 31, 2021, other income and expense consisted of $4,000 of interest income offset by amortization of the debt discount associated with warrants issued with a line of credit entered
into in December 2017 of $174,000 which is classified as interest expense, and interest expense and amortization of debt discounts on convertible notes payable of $315,000.
Liquidity and Capital Resources
As described above in the Overview and elsewhere in this Annual Report on Form 10-K, we are in the development stage and have not generated any revenues to date. Since our inception on July 10, 2000, we have
financed our operations from proceeds of public and private offerings of debt and equity. As of December 31, 2023, we raised a net total of $284.5 million from these offerings. At December 31, 2023, the Company had $25.7 million of unrestricted
cash and cash equivalents in addition to $30 million available under two lines of credit provided by our chairman available to fund future operations. The Company believes there is sufficient cash to fund currently planned operations through
March 31, 2025. We will require more cash to fund our operations after March 31, 2025 and believe we will be able to obtain additional financing. The currently planned operations include costs related to our adaptively designed NAVIGATE Phase
2b/3 clinical trial. However, there can be no assurance that we will be successful in obtaining such new financing or, if available, that such financing will be on terms favorable to us.
2023 compared to 2022
Net cash used in operations increased by $1,909,000 to $32,965,000 for 2023, as compared to $31,056,000 for 2022. Cash operating expenses increased principally due to increased research and development activities
primarily related to our NAVIGATE clinical trial and associated activities.
There were no equipment purchases or other investing activities in 2023 or 2022.
Net cash provided by financing activities was $40,033,000 during 2023 as compared to $10,000,000 during 2022, due primarily to the transactions described below.
In 2023, we received $30,000,000 in proceeds under a convertible line of credit provided by our chairman in addition to $10 million in proceeds from stock purchase warrants exercised by our chairman. In 2022, we
received proceeds of $10,000,000 under a convertible line of credit provided by our chairman.
2022 compared to 2021
Net cash used in operations increased by $6,748,000 to $31,056,000 for 2022, as compared to $24,308,000 for 2021. Cash operating expenses increased principally due to increased research and development activities
primarily related to our NAVIGATE clinical trial and associated activities.
There were no equipment purchases or other investing activities in 2022 or 2021.
Net cash provided by financing activities was $10,000,000 during 2022 as compared to $36,814,000 during 2021, due primarily to the transactions described below.
In 2022, we received $10,000,000 in proceeds under a convertible line of credit provided by our chairman. In 2021, we received proceeds of $30,000,000 from three related-party convertible notes payable,
$2,950,000 from the exercise of common stock warrants and $3,864,000 in net proceeds from issuance of common shares under our ATM.
Operating leases
Effective February 28, 2022, the Company entered into an amendment to its operating lease for office space in Norcross, GA for a term of thirty-eight months, beginning on March 1, 2022 and ending April 30, 2025
at an average rate of approximately $4,250 per month. The amended lease provided for free rent for the first six months of the lease and continues the security deposit of $6,000. In addition to base rental payments included in the contractual
obligations table above, the Company is responsible for our pro-rata share of the operating expenses for the building.
In October 2012, the Company entered into an operating lease for office and lab space for research and development activities in Natick, MA. The lease is for a period of one year, beginning on October 1, 2012,
for a rate of $15,000 for the term, payable in equal monthly increments. This lease was continued on a month-to-month basis from October 1, 2013.
Other. We have engaged outside vendors for certain
services associated with our clinical trials. These services are generally available from several providers and, accordingly, our arrangements are typically cancellable on 30 days
notice.
Off-Balance Sheet Arrangements
We have not created, and are not a party to, any special-purpose or off-balance sheet entities for the purpose of raising capital, incurring debt or operating parts of our business that are not consolidated into
our financial statements. We do not have any arrangements or relationships with entities that are not consolidated into our financial statements that are reasonably likely to materially affect our liquidity or the availability of capital
resources.
Critical Accounting Policies and Estimates
Our significant accounting policies are more fully described in Note 2 to our consolidated financial statements included elsewhere in this annual report on Form 10-K. Certain of our accounting policies, however,
are critical to the portrayal of our financial position and results of operations and require the application of significant judgment by our management, which subjects them to an inherent degree of uncertainty. In applying our accounting
policies, our management uses its best judgment to determine the appropriate assumptions to be used in the determination of certain estimates. Our more significant estimates include stock option valuations and performance vesting features of
certain of these instruments, accrued liabilities, deferred income taxes and cash flows. These estimates are based on our historical experience, terms of existing contracts, our observance of trends in the industry, information available from
other outside sources, and on various other factors that we believe to be appropriate under the circumstances. We believe that the critical accounting policies discussed below involve more complex management judgment due to the sensitivity of
the methods, assumptions and estimates necessary in determining the related asset, liability, revenue and expense amounts.
Accrued Expenses. As part of the process of preparing our consolidated financial statements, we are required to estimate accrued expenses. This process involves
identifying services that third parties have performed on our behalf and estimating the level of service performed and the associated cost incurred on these services as of each balance sheet date in our consolidated financial statements.
Examples of estimated accrued expenses include professional service fees, such as those arising from the services of attorneys and accountants and accrued payroll expenses. In connection with these service fees, our estimates are most affected
by our understanding of the status and timing of services provided relative to the actual services incurred by the service providers. In the event that we do not identify certain costs that have been incurred or we under- or over-estimate the
level of services or costs of such services, our reported expenses for a reporting period could be understated or overstated. The date on which certain services commence, the level of services performed on or before a given date, and the cost
of services are often subject to our judgment. We make these judgments based upon the facts and circumstances known to us in accordance with accounting principles generally accepted in the U.S.
Research and Development Expenses. Research and development expenses, including personnel costs, allocated facility costs, lab supplies, outside
services, contract laboratory costs related to manufacturing drug product, clinical trials and preclinical studies are charged to research and development expense as incurred. The Company accounts for nonrefundable advance payments for goods
and services that will be used in future research and development activities as expense when the service has been performed or when the goods have been received. Our current NAVIGATE clinical trial is being supported by third-party contract
research organizations, or CROs, and other vendors. We accrue expenses for clinical trial activities performed by CROs based upon the estimated amount of work completed on each trial. For clinical trial expenses and related expenses associated
with the conduct of clinical trials, the significant factors used in estimating accruals include the number of patients enrolled, the number of active clinical sites, and the duration for which the patients have been enrolled in the trial. We
monitor patient enrollment levels and related activities to the extent possible through internal reviews, review of contractual terms and correspondence with CROs. We base our estimates on the best information available at the time. We monitor
patient enrollment levels and related activities to the extent possible through discussions with CRO personnel and based our estimates of clinical trial costs on the best information available at the time. However, additional information may
become available to us which will allow us to make a more accurate estimate in future periods. In that event, we may be required to record adjustments to research and development expenses in future periods when the actual level of activity
becomes more certain.
Stock-Based Compensation. Stock-based compensation cost is measured at the grant date based on the fair value of the award and is recognized as expense over the service
period, which generally represents the vesting period. For awards that have performance-based vesting conditions the Company recognizes the expense over the estimated period that the awards are expected to be earned. The Company generally uses
the Black-Scholes option-pricing model to calculate the grant date fair value of stock options. The expense recognized over the service period is required to include an estimate of the awards that will be forfeited.
| Item 7A. |
Quantitative and Qualitative Disclosures About Market Risk
|
Due to the nature of our operations, assets and debt, we are not exposed to any significant market risks at December 31, 2023 and 2022.
| Item 8. |
Financial Statements and Supplementary Data
|
The financial statements required by this item are attached to this Annual Report on Form 10-K beginning on Page F-1.
| Item 9. |
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
|
None.
| Item 9A. |
Controls and Procedures
|
(a) Evaluation of Disclosure Controls and Procedures
As required by Rule 13a-15 under the Securities Exchange Act of 1934, (the “Exchange Act”) as of the end of the period covered by this Annual Report, we carried out an evaluation, under the supervision and with
the participation of our Chief Executive Officer and our Chief Financial Officer, of the effectiveness of our disclosure controls and procedures as of December 31, 2023. Our management has concluded, based on their evaluation, that our
disclosure controls and procedures were effective as of December 31, 2023 to ensure that information required to be disclosed by us in the reports we file or submit under the Exchange Act is recorded, processed, summarized and reported within
the time periods specified in the Securities and Exchange Commission’s rules and forms.
(b) Management’s Annual Report on Internal Control Over Financial Reporting
Management of the Company is responsible for establishing and maintaining adequate internal control over financial reporting. As defined in Rule 13a-15(f) under the Exchange Act, internal control over financial
reporting is a process designed by, or under the supervision of, a company’s principal executive and principal financial officers and effected by a company’s board of directors, management and other personnel, to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. It includes those policies and procedures that:
a) Pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company;
b) Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and
expenditures of a company are being made only in accordance with authorizations of management and the board of directors of the Company; and
c) Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on its financial
statements.
Because of the inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the
risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
The Company’s management has used the criteria established in “Internal Control-Integrated Framework” issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework), or COSO, to
evaluate the effectiveness of the Company’s internal control over financial reporting. Management has selected the COSO 2013 framework for its evaluation as it is a control framework recognized by the SEC and the Public Company Accounting
Oversight Board, that is free from bias, permits reasonably consistent qualitative and quantitative measurement of the Company’s internal controls, is sufficiently complete so that relevant controls are not omitted, and is relevant to an
evaluation of internal controls over financial reporting. Management conducted an evaluation of internal controls based on the COSO 2013 framework. The evaluation included a full scale, documented risk assessment, based on the principles
described in the framework, and included identification of key controls. Management completed documentation of its testing to verify the effectiveness of the key controls. Based on the evaluation, management concluded that our internal control
over financial reporting was effective as of December 31, 2023.
(c) Changes in Internal Control Over Financial Reporting
There was no change in our internal control over financial reporting that occurred during the fourth quarter of 2023 that has materially affected, or is reasonably likely to materially affect, our internal
control over financial reporting.
| Item 9B. |
Other Information
|
Supplemental Line of Credit
On March 29, 2024, the Company and Richard E. Uihlein (the “Lender”) entered into a Supplemental Line of Credit Letter Agreement (the “Supplemental Credit
Agreement”), pursuant to which the Lender shall provide the Company a line of credit of up to $10.0 million (the “Supplemental Line of Credit”) to finance the Company’s working capital needs. The Company may draw upon the Supplemental Line of
Credit through March 31, 2025.
Each advance made pursuant to the Supplemental Credit Agreement shall be evidenced by an unsecured, convertible promissory note (individually, a “Promissory Note,”
and collectively, the “Promissory Notes”), and bear interest at the Applicable Federal Rate for short term loans, plus two (2%) percent. Principal and interest on the Promissory Notes are due on or before March 31, 2026.
Only with the consent of the Lender, may the Promissory Notes be prepaid, in whole or in part, at any time without premium or penalty, but with interest on the
amount or amounts prepaid. At the election of Lender, the principal and accrued interest on Promissory Note(s) may be converted into the number of shares of the Company’s Common Stock equal to the amount of principal and accrued interest on
such Promissory Note divided by the price equal to the closing price of the Common Stock on the date of such Promissory Note, but in no event less than $3.00 per share.
In connection with the Supplemental Credit Agreement, the Company agreed to issue the Lender warrants to purchase up to an aggregate of 200,000 shares of the
Company’s common stock, par value $0.001 per share (collectively, the “Warrants”). The Company shall issue to the Lender Warrants ratably, upon borrowings under the Supplemental Line of Credit, with exercise prices equal to 150% of the
closing price of the Company’s common Stock on the date of the Promissory Note evidencing such draw, but in no event more than $10.00 per share nor less than $3.00 per share. The Warrants expire on July 31, 2029.
The securities referred to in this Item 9B are being issued by the Company to the Lender in reliance upon the exemption from the registration requirements of the
Securities Act of 1933, as amended (the “Securities Act”), pursuant to Section 4(a)(2) thereof and Regulation D thereunder. The Company relied, in part, upon representations from the Lender that the Lender is an accredited investor as defined
in Regulation D under the Securities Act.
Securities Trading Plans of Directors and Executive Officers
No officers or directors, as defined in Rule 16a-1(f), adopted or terminated a “Rule 10b5-1 10b5-1
| Item 9C. |
Disclosure Regarding Foreign Jurisdictions that Prevent Inspections
|
Not applicable.
PART III
| Item 10. |
Directors, Executive Officers and Corporate Governance
|
Each of our directors is elected annually and holds office until his or her successor has been elected and qualified or until the earlier of his or her death, resignation or removal. Our board of directors
currently consists of eleven members, all of whom were elected at our 2023 Annual Meeting of Stockholders.
The following table sets for the certain biographical information about our directors as of February 28, 2024, and the qualifications, experiences and skills considered in determining that each such person should
serve as a director.
|
Name
|
Age
|
Director Since
|
|||
|
Gilbert F. Amelio, Ph.D. (2)(3)
|
80
|
2009
|
|||
|
Benjamin S. Carson, Sr., M.D.
|
72
|
2023
|
|||
|
Kary Eldred (1)
|
50
|
2018
|
|||
|
Kevin D. Freeman (1)(2)(3)
|
62
|
2011
|
|||
|
Joel Lewis
|
54
|
2017
|
|||
|
Gilbert S. Omenn, M.D., Ph.D. (2)
|
82
|
2014
|
|||
|
Marc Rubin, M.D. (3)
|
69
|
2011
|
|||
|
Elissa J. Schwartz, Ph.D. (3)
|
53
|
2020
|
|||
|
Harold H. Shlevin, Ph.D.
|
74
|
2019
|
|||
|
Richard E. Uihlein, Chairman
|
78
|
2017
|
|||
|
Richard A. Zordani (1)
|
51
|
2020
|
| (1) |
Member of audit committee
|
| (2) |
Member of compensation committee
|
| (3) |
Member of nominating and governance committee
|
Gilbert F. Amelio, Ph.D., a director since February 2009, began his career at Bell Labs in Murray Hill, New Jersey. Since January 1, 2012, Dr. Amelio has provided
consulting and advisory services through GFA, LLC, a California limited liability company. He was a Senior Partner of Sienna Ventures (a privately held venture capital firm in Sausalito, California) from April 2001 until the fund closed per
plan on December 31, 2011. Dr. Amelio was Chairman and Chief Executive Officer of Jazz Technologies, Inc. (now a wholly owned subsidiary of Tower Semiconductor Ltd., an independent specialty wafer foundry) from August 2005 until his retirement
in September 2008 (when he was named Chairman Emeritus). Dr. Amelio was Chairman and Chief Executive Officer of Beneventure Capital, LLC (a full-service venture capital firm in San Francisco, California) from 1999 to 2005 and was Principal of
Aircraft Ventures, LLC (a consulting firm in Newport Beach, California) from April 1997 to December 2004. Dr. Amelio was elected a Director of AT&T in February 2001 and had previously served as an Advisory Director of AT&T (then known
as SBC Communications Inc.) from April 1997 to February 2001. He served as a Director of Pacific Telesis Group from 1995 until the company was acquired by AT&T in 1997. Prior to 1997, he served as Chairman, President and CEO of National
Semiconductor (1991-1996) and Apple Computer (1996-1997). We believe Dr. Amelio’s qualifications to sit on our Board of Directors include his executive leadership and management experience, as well as his extensive experience with global
companies, his financial expertise and his years of experience providing strategic advisory services to organizations.
Dr. Benjamin S. Carson, Sr., a director since 2023, served as the 17th Secretary of the U.S. Department of Housing and Urban Development (“HUD”) from 2017 to 2021. Dr.
Carson is a world-renowned neurosurgeon who prior to serving as HUD Secretary was involved with more than 15,000 surgical procedures and was the recipient of numerous awards, including the Presidential Medal of Freedom, more than 70 honorary
doctorate degrees and the Spingarn Medal, the NAACP’s highest honor. Dr. Carson serves on the Board of Directors for D.R. Horton, Inc. (NYSE: DHI), Covenant Logistics Group, Inc. (NASDAQ: CVLG), and Sinclair Broadcast Group, Inc. (NASDAQ:
SBGI). In addition, Dr. Carson previously served on the Board of Directors of both The Kellogg Company (NYSE: K) and Costco Wholesale Corporation (NASDAQ: COST). Dr. Carson is the founder and current Chairman of the American Cornerstone
Institute. Dr. Carson is on the Board of Directors of the Carson Scholars Fund, an organization he and his wife, Mrs. Candy Carson, founded in 1994. Throughout his distinguished career, Dr. Carson contributed to the field of medicine through
the thousands of surgeries he performed and the many leadership positions he held, including serving as Director of the Division of Pediatric Neurosurgery at The Johns Hopkins Medical Institutions from 1984 to 2013 as well a Professor of
Neurological Surgery, Oncology, Plastic Surgery, and Pediatrics at The Johns Hopkins Medical Institutions from 1999 to 2013. The Board believes that Dr. Carson’s extensive medical, management, director, leadership, financial, and information
security experience make him highly qualified to serve as a member of our Board.
Kary Eldred, is a director since 2018 and Chief Investment Officer for the Living Stones Foundation since July 2015 and has been an active private equity investor for many years. In these capacities, he serves and has served on a number of corporate boards of companies with potential for and driving toward initial public offerings and is currently serving as a
board member in Buy It Installed (since 2017), Babywise and Wise King Media (since 2015). Kary Eldred also served on the board and audit committee of GCT Semiconductor. From January 2011 through October 2014, Mr. Eldred was CEO & Chairman
of Altadona, S.A. a software integration company based in Europe and prior to that was a principal in Parakletos Ventures, an institutional venture capital firm with several investments in companies that went on to be acquired or become
publicly listed on different exchanges around the world including the NASDAQ, KOSDAQ and the GEM market. Mr. Eldred has an Executive MBA from IE Business School and a BA in Foreign Service from Baylor University. We believe that Mr. Eldred’s
qualifications to sit on our board include his experience serving on boards of several companies and experience in venture capital and private equity investing.
Kevin D. Freeman, a director since May 2011, holds the Chartered Financial Analyst designation and is Chief Executive Officer of Cross Consulting
and Services, LLC, an investment advisory and consulting firm founded in 2004. He is also author of a New York Times best-selling book about the stock market and economy and the host of a television program (Economic War Room with Kevin
Freeman) that airs on BlazeTV. Formerly he was Chairman of Separate Account Solutions, Inc. and held several offices at Franklin Templeton Investment Services from 1991 to 2000. He holds a B.S. in business administration from University of
Tulsa, Tulsa, Oklahoma. We believe Mr. Freeman’s qualifications to sit on our Board of Directors includes his extensive financial expertise and his years of experience providing financial advisory services.
Joel Lewis, a director since 2017, became our President and Chief Executive Officer on September 2, 2020. Previously, he was the Managing
Director of Shareholder Services at Uline, Inc. (a distributor of shipping, packaging and industrial supplies), a position he held from 2007 through 2019. Mr. Lewis is a financial executive with over 26 years of experience started his career in
public accounting in 1992. Prior to his employment with Uline Inc., Mr. Lewis served as a Tax and Accounting Manager for Century America LLC from 2001 to 2006 and a Tax Manager for Deloitte & Touche from 1998 to 2001. After spending a
decade in public accounting where he specialized in both financial reporting and taxation, Mr. Lewis migrated to privately held companies focusing on high-net-worth family businesses. Mr. Lewis has a wide range of expertise including working in
a variety of industries and disciplines including taxation, restructuring, acquisition and private equity ventures. Mr. Lewis is a registered CPA in the state of Illinois. He holds a B.S. in Accountancy from the University of Illinois and a
Masters in Taxation from DePaul University. We believe that Mr. Lewis’ qualifications to sit on our Board include his business and financial expertise and his service as a board observer on our Board during 2017.
Gilbert S. Omenn, M.D., Ph.D., a director since September 2014, served on the board of directors of Amgen Inc. for 27 years and of Rohm & Haas Company for 22 years. He currently serves on the boards of Oncofusion Therapeutics and MedsynBio LLC of Ann Arbor, MI. Dr. Omenn is the Harold T. Shapiro Distinguished University Professor of Computational Medicine &
Bioinformatics, Internal Medicine, Human Genetics, and Public Health and Director of the university-wide Center for Computational Medicine and Bioinformatics at the University of Michigan. Dr. Omenn served as executive vice president for
medical affairs and as chief executive officer of the University of Michigan Health System from 1997 to 2002. Prior, he was dean of the School of Public Health and Community Medicine and professor of medicine and a Howard Hughes Medical
Institute investigator at the University of Washington and Member of the Fred Hutchinson Cancer Research Center. Earlier he was Associate Director of the White House Office of Science and Technology Policy and of the Office of Management and
Budget. He is the author of 600 research papers and scientific reviews and author/editor of 18 books. Dr. Omenn received his B.A. summa cum laude from Princeton University, M.D. magna cum laude from Harvard Medical School, and Ph.D. in genetics
from the University of Washington. We believe Dr. Omenn’s qualifications to sit on our Board of Directors include his extensive executive leadership and management experience in the medical industry and his continuing cutting-edge research.
Marc Rubin, M.D, a director since October 2011 and Chairman of the Board from January 2016 through May 2018, is Executive Chairman of the
Board of Directors of Titan Pharmaceuticals, Inc. (TTNP: OTC BB) and served as its President and Chief Executive Officer from October 2007 to January 2009. Until February 2007, Dr. Rubin served as Head of Global Research and Development for
Bayer Schering Pharma, as well as a member of the Executive Committee of Bayer Healthcare and the Board of Management of Bayer Schering Pharma. Prior to the merger of Bayer Pharmaceuticals and Schering AG in June 2006, Dr. Rubin was a member of
the Executive Board of Schering AG since joining the company in October 2003, as well as Chairman of Schering Berlin Inc. and President of Berlex Pharmaceuticals, a division of Schering AG. From 1990 until August 2003, Dr. Rubin was employed by
GlaxoSmithKline where he held positions of responsibility in global clinical and commercial development overseeing programs in the United States, Europe, Asia and Latin America. From 2001 through 2003 at GlaxoSmithKline, he was Senior Vice
President of Global Clinical Pharmacology & Discovery Medicine. Dr. Rubin holds an M.D. from Cornell University Medical College and is board certified in internal medicine with subspecialties in medical oncology and infectious diseases. Dr.
Rubin is a member of the Board of Directors of Curis Inc. (Nasdaq: CRIS) and formerly served on the Board of Directors of Medarex, Inc., now a subsidiary of Bristol-Myers Squibb Company. We believe Dr. Rubin’s qualifications to sit on our Board
of Directors include his extensive executive leadership and management experience in the pharmaceutical industry.
Elissa J. Schwartz, Ph.D., a director appointed by the board in September 2020, is a disease modeler who is currently a professor of biological sciences and mathematics
at Washington State University (WSU). She received a PhD in Biomedical Sciences from Mount Sinai–NYU, a BA in Mathematics from UC Berkeley, and interdisciplinary postdoctoral training in Biomathematics and Biostatistics from UCLA. She is also
affiliated with the WSU College of Veterinary Medicine in microbiology and pathology, and she is currently on the WSU COVID-19 modeling task force. Dr. Schwartz is the author of over 30 scientific publications on infectious disease, the immune
response, and biological modeling. She serves on the Board of Directors for the Society for Mathematical Biology, and she previously served as a consultant for Pharmerit International, LP, a pharmaceutical economics company. Dr. Schwartz has
held fellowships with the Mathematical Biosciences Institute (Ohio State University) and the African Institute for Mathematical Sciences (Cape Town, South Africa), and she served on the teaching faculty for courses in British Columbia, India,
and Nepal. We believe Dr. Schwartz’ qualifications to sit on our Board of Directors include her extensive expertise in biomathematics and biostatistics in the pharmaceutical industry.
Harold Shlevin, Ph.D., retired from being our President and Chief Executive Officer on September 2, 2020, a position he had held since June 14, 2018; however, Dr. Shlevin
has entered into a consulting agreement with the Company which ran through December 31, 2021. Dr. Shlevin previously served as our Chief Operating Officer and Secretary from October 1, 2012. Dr. Shlevin previously had been employed at the
Georgia Institute of Technology’s Advanced Technology Development Center as Principle and Manager of bioscience commercialization efforts since November 2009, where he has assisted faculty in identifying technology worthy of commercialization,
catalyzed formation of new start-up bioscience companies, and mentored new company management. From October 2008 to November 2009, he served as Head of Operations and Commercial Development for Altea Therapeutics Corporation, an advanced drug
delivery company focused on the delivery of therapeutic levels of water-soluble biotherapeutics and small drugs through the skin. At Altea, he was responsible for pharmaceutical research and development, clinical research, regulatory affairs,
engineering, clinical and commercial manufacturing, quality assurance, information technology, facility operations and finance. From July 2006 to September 2008, Dr. Shlevin served as the President and Chief Executive Officer of Tikvah
Therapeutics, Inc., a start-up pharmaceutical enterprise focused on later-stage development of neuroscience therapeutics. From May 2000 to January 2006, he served as President and CEO of Solvay Pharmaceuticals, Inc. (US). In January 2006, he
was promoted to a global senior Vice President role within Solvay Pharmaceuticals, SA and member of the Board of Solvay Pharmaceuticals, SA. Previously, Dr. Shlevin served on the Board of Directors of Cardiome Pharma Corporation (NASDAQ: CRME),
now known as Correvio Pharma Corp. (NASDAQ: CORV) from 2004 to June 2016. He was Chair of the Compensation Committee and member of the Corporate Governance Committee and Audit Committees. We believe Dr. Shlevin’s qualifications to sit on our
Board of Directors include his extensive executive leadership and management experience in the pharmaceutical industry.
Richard E. Uihlein, a director since 2017 and Chairman since May 2018, co-founded Uline, Inc. (a leading distributor of shipping, packaging and industrial supplies) in 1980, and has served as its Chief Executive Officer and Chairman since its founding. Prior to founding Uline Inc., Mr. Uihlein was employed at General Bindings Corp., Northbrook, IL from 1967 to
1980. Mr. Uihlein graduated from Stanford University, Palo Alto, CA. with a BA degree in history in 1967. We believe Mr. Uihlein’s qualifications to sit on our Board includes his extensive executive leadership and management experience.
Richard A. Zordani, a director appointed by the board in September 2020, has been the Director of Shareholder Services at Uline, Inc. (a distributor
of shipping, packaging and industrial supplies) since 2013. Prior to joining Uline, Mr. Zordani served as a Director and Vice President for Diversified Financial Management Corp. (Pritzker family office) where he advised on complex legal and
tax structures for domestic and foreign entities and trusts from 2003 through 2013 and an Audit Manager for Altschuler, Melvoin & Glasser LLP (now RSM McGladrey) from 1996 through 2003. Mr. Zordani received his undergraduate degree from the
University of Illinois at Urbana/Champaign and is a Registered CPA in the state of Illinois. We believe that Mr. Zordani’s qualifications to sit on our Board include his business and financial expertise.
Code of Ethics
We have adopted a Code of Ethics that applies to all our directors, officers and employees. The Code of Ethics is publicly available on our website at www.galectintherapeutics.com. Amendments to the Code of
Ethics and any grant of a waiver from a provision of the Code of Ethics requiring disclosure under applicable SEC rules will be disclosed on our website.
Hedging Policy
At this time, the Company has not adopted a policy regarding the ability of officers, directors and employees to purchase financial instruments (including prepaid variable forward contracts, equity swaps,
collars, and exchange funds) or otherwise engage in transactions, that hedge or offset, or are designed to hedge or offset, any decrease in the market value of the Company’s equity securities.
Clawback Policy
The SEC adopted final rules implementing the incentive-based compensation recovery provisions of the Dodd-Frank Act, and Nasdaq has adopted listing standards consistent with the SEC rules. In compliance with
those standards, we have adopted an incentive compensation recoupment policy, or “clawback” policy, which applies to our executive officers, within the meaning of Section 10D of the Exchange Act and Rule 10D-1 promulgated thereunder, who were
employed by the Company during the applicable recovery period. Under the policy, in the event that the financial results upon which a cash or equity-based incentive award was predicated become the subject of a financial restatement that is
required because of material non-compliance with financial reporting requirements, the Compensation Committee will conduct a review of awards covered by the policy and recoup any erroneously awarded incentive-based compensation to ensure that
the ultimate payout gives retroactive effect to the financial results as restated. The Company may not indemnify any such covered officer against the loss of such recovered compensation.
Director Nominations
No material changes have been made to the procedures by which security holders may recommend nominees to our board of directors.
Audit Committee
The members of this committee are Richard A. Zordani (chair), Kary Eldred and Kevin D. Freeman. The Audit Committee is responsible for oversight of the quality and integrity of the accounting, auditing and
reporting practices of Galectin Therapeutics. More specifically, it assists the Board of Directors in fulfilling its oversight responsibilities relating to (i) the quality and integrity of our financial statements, reports and related
information provided to stockholders, regulators and others, (ii) our compliance with legal and regulatory requirements, (iii) the qualifications, independence and performance of our independent registered public accounting firm, (iv) the
internal control over financial reporting that management and the Board have established, and (v) the audit, accounting and financial reporting processes generally. The Committee is also responsible for review and approval of related-party
transactions. The Board has determined that Mr. Zordani is an “audit committee financial expert” within the meaning of SEC rules. The Audit Committee has the authority to obtain advice and assistance from, and receive appropriate funding from
the Company for, outside legal, accounting or other advisors as it deems necessary to carry out its duties.
Risk Management
The Board has an active role, as a whole and also at the committee level, in overseeing management of our risks. The Board regularly reviews information regarding our credit, liquidity and operations, as well as
the risks associated with each. The Compensation Committee of our Board is responsible for overseeing the management of risks relating to our executive compensation plans and arrangements. The Audit Committee of our Board oversees management of
financial risks. The Nominating and Corporate Governance Committee of our Board manages risks associated with the independence of the Board members and potential conflicts of interest. While each committee is responsible for evaluating certain
risks and overseeing the management of such risks, the entire Board of Directors is regularly informed through committee reports about such risks.
We believe that any risks arising from our policies and programs are not reasonably likely to have a material adverse effect on the Company. Our programs reflect sound risk management practices including:
| • |
Use of multiple compensation vehicles that provide a balance of long- and short-term incentives with fixed and variable components; and
|
| • |
Equity incentive awards that generally vest over several years, so while the potential compensation payable for equity incentive awards is tied directly to appreciation of our stock price, taking excessive risk for a short term gain
is discouraged because it would not maximize the value of equity incentive awards over the long-term.
|
EXECUTIVE OFFICERS
Joel Lewis, see above under directors.
Pol F. Boudes, M.D., age 66, became the Company’s Chief Medical Officer on March 2, 2020. Prior to joining the Company, Dr. Boudes served as
the Chief Medical Officer of CymaBay Therapeutics from March 2014 through October 2019, where he worked on CymaBay’s proprietary NASH compound and was instrumental in inventing and launching programs in rare liver diseases. Prior to his time at
CymaBay, Dr. Boudes served as the Chief Medical Officer of Amicus Therapeutics, a company focusing on rare lysosomal storage disorders. Following this experience, Dr. Boudes became a Board member of Protalix BioTherapeutics, a company
developing plant cell expressed recombinant proteins with improved therapeutic profiles, notably for lysosomal disorders. Before his time working as a Chief Medical Officer, Dr. Boudes held positions of increased responsibilities in clinical
development at Bayer HealthCare Pharmaceuticals, Wyeth Research, Hoffman-La Roche and Pasteur Merieux.
Jack W. Callicutt, age 56, became our Chief Financial Officer on July 1, 2013. From August 2011 through June 2012, Mr. Callicutt was the Chief
Financial Officer of REACH Health, Inc., a telemedicine technology company headquartered in Alpharetta, GA. From April 2010 through August 2012, Mr. Callicutt was the Chief Financial Officer of Vystar Corporation, a publicly traded company that
holds proprietary technology to remove antigenic proteins from natural rubber latex. Prior to that Mr. Callicutt was Chief Financial Officer of IVOX, Inc., Tikvah Therapeutics and Corautus Genetics, a publicly traded biotechnology company which
was developing gene therapy for treatment of cardiovascular disease. Mr. Callicutt previously spent more than fourteen years in public accounting, most recently as a senior manager at Deloitte, where he specialized in technology companies from
1989 to 2003. Mr. Callicutt is a Certified Public Accountant and graduated with honors from Delta State University with a B.B.A. in accounting and computer information systems.
None of the directors, executive officers and significant employees share any familial relationship.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Exchange Act requires our officers and directors, and persons who beneficially own more than ten percent of our common stock, to file reports of ownership and changes of ownership of such
securities with the SEC. All reports were timely filed during the fiscal year ended December 31, 2023, except as set forth below.
Delinquent Section 16(a) Reports
One of our directors, Dr. Benjamin S. Carson, Sr. did not timely file one initial ownership report on Form 3.
| Item 11. |
Executive Compensation
|
COMPENSATION PHILOSOPHY DISCUSSION
The Compensation Committee is responsible for creating and reviewing the compensation of the Company’s executive officers, as well as overseeing the Company’s compensation and benefit plans and policies and
administering the Company’s equity incentive plans. The following Compensation Philosophy Discussion (“Compensation Discussion”) describes our 2023 executive compensation program and explains the Company’s compensation philosophy, policies, and
practices, focusing primarily on the compensation of our named executive officers, or NEOs. This Compensation Discussion is intended to be read in conjunction with the tables that follow, which provide detailed historical compensation
information for our following NEOs:
|
Name
|
Title
|
|
|
Joel Lewis
|
Chief Executive Officer and President
|
|
|
Pol F. Boudes, M.D.
|
Chief Medical Officer
|
|
|
Jack W. Callicutt
|
Chief Financial Officer
|
|
Compensation Philosophy
The Company believes in providing a competitive total compensation package to its executives through a combination of base salary, annual performance bonuses, and long-term equity awards. The executive
compensation program is designed to achieve the following objectives:
| • |
provide competitive compensation that will help attract, retain and reward qualified executives;
|
| • |
align executives’ interests with our success by making a portion of the executive’s compensation dependent upon corporate performance; and
|
| • |
align executives’ interests with the interests of stockholders by including long-term equity incentives.
|
The Compensation Committee believes that the Company’s executive compensation program should include annual and long-term components, including cash and equity-based compensation, and should reward consistent
performance that meets or exceeds expectations. The Compensation Committee evaluates both performance and compensation to make sure that the compensation provided to executives remains competitive relative to compensation paid by companies of
similar size and stage of development operating in the life sciences industry and taking into account the Company’s relative performance and its own strategic objectives.
Executive Compensation Review and Design
The Company has historically conducted a review of the a level of its executive compensation, as well as the mix of elements used to compensate its NEOs. The Company has based this review primarily on the
experience of the members of the Compensation Committee and our Board, many of whom sit on the boards of directors of, or have previously advised, numerous companies, including companies in the life sciences industry.
At our last “Say-on-Pay vote” held at our 2022 annual meeting of stockholders approximately 90% of votes cast were in favor of the compensation of our NEOs, as disclosed in the proxy materials for the 2022 annual
meeting. At our 2019 annual meeting, the holders of approximately 78% of our outstanding common stock voting on the matter voted in favor of holding the stockholder advisory vote every three years. As a result of such vote, our Board decided to
hold the “Say-on-Pay” advisory vote every three years. Accordingly, the Company’s next “Say-on-Pay” advisory vote on the compensation of our NEOs will be held at our 2025 annual meeting of stockholders.
Several years ago, the Compensation Committee undertook a review of our compensation policies and practices and retained the compensation consulting firm of Barney & Barney LLC to provide compensation
information and analysis with respect to the life science and healthcare industry and with respect to our peer companies within the industry. Barney & Barney LLC reviewed information from industry and other sources, surveys and databases,
including publicly-available compensation information of other companies with which we compete, to gauge the competitiveness of our compensation programs. Barney & Barney LLC then reported its findings to the Compensation Committee, with
recommendations to bring the Company’s executive compensation closer to the 50th percentile of the total compensation of our competitor companies. These findings
continued to inform the Compensation Committee’s decisions on compensation in subsequent years, including 2023.
The Compensation Committee may use a compensation consultant in the future and will take into account publicly-available data relating to the compensation practices and policies of other companies within and
outside our industry. The Compensation Committee intends to benchmark its executive compensation program to target at least the 50th percentile of the total
compensation programs of our competitor companies; however, adjusted as deemed to be in the best interest of the Company to assure retention of key employees during the NAVIGATE trial.
Elements of Executive Compensation
The compensation program for the Company’s NEOs consists principally of three components:
| • |
base salary;
|
| • |
performance and retention bonuses;
|
| • |
long-term compensation in the form of equity-based awards.
|
Base Salary
Base salary is the only fixed-pay component in our executive compensation program. Base salaries for the NEOs are initially established through arm’s-length negotiation at the time the NEO is hired, taking into
account such NEO’s qualifications, experience, prior salary, the scope of his or her responsibilities, and known competitive market compensation paid by other companies for similar positions within the industry. Base salaries are reviewed
annually and adjusted from time to time to realign salaries with market levels after taking into account individual responsibilities, performance, and experience. In making decisions regarding salary increases, the Company may also draw upon
the experience of members of the Compensation Committee and the Board of Directors, many of whom sit on the boards of directors of, or have previously advised, numerous companies, including companies in the life sciences industry. The
Compensation Committee has not previously applied specific formulas to determine increases. This strategy is consistent with the Company’s intent of offering base salaries that are cost-effective while remaining competitive.
|
Name
|
2023 Base Salary
|
2022 Base Salary
|
||||||
|
Joel Lewis
|
$
|
578,000
|
(1)
|
$
|
525,000
|
(1)
|
||
|
Pol F. Boudes, M.D.
|
$
|
535,000
|
$
|
475,000
|
||||
|
Jack W. Callicutt
|
$
|
368,000
|
$
|
320,000
|
||||
| (1) |
Pursuant to Mr. Lewis’s Employment Agreement and Deferred Stock Unit Agreement, 20% of Mr. Lewis’ base salary will be paid in cash and 80% will be paid in the form of deferred-stock units in accordance with the terms and subject to
the provisions of the DSU Agreement.
|
Performance Bonuses
In addition to the payment of base salaries, the Company believes that annual performance bonuses can play an important role in providing appropriate incentives to its NEOs to achieve the Company’s strategic
objectives.
In prior years, performance bonuses were awarded based on the Company’s Employee Short-Term and Long-Term Incentive Program (the “Program”), which was adopted for executives and employees of the Company. The
Program is a performance-based program and was adopted in recognition of the importance of aligning executive and employee interests with that of our stockholders. Our Program is designed to reward the efforts of our executives and employees
and to be competitive in attracting and retaining them. There are two elements of the Program: (1) a short-term incentive in the form of cash bonuses and (2) a long-term incentive in the form of stock option grants. The cash bonus incentive is
targeted to be up to 30% to 50% of the NEO’s base salary as of the end of the applicable year. Half of each NEO’s annual performance bonus is based upon achievement of the Company’s documented performance objectives for the year and the other
half is based upon achievement of individual performance objectives set for the year. The 2023 performance bonuses were paid in February 2024.
|
Name
|
Performance
Bonus
Amount
|
Awarded Amount
As % of Base Salary
|
||||||
|
Joel Lewis
|
$
|
289,000
|
50
|
%
|
||||
|
Pol F. Boudes, M.D.
|
$
|
160,500
|
30
|
%
|
||||
|
Jack W. Callicutt
|
$
|
110,400
|
30
|
%
|
||||
Long-Term Incentive Compensation
The Company believes that by providing its NEOs the opportunity to increase their ownership of Company stock, the interests of its NEOs will be more closely-aligned with the best interests of the Company’s
stockholders and it will encourage long-term performance. The stock awards enable the NEOs to participate in the appreciation in the value of the Company’s stock, while personally participating in the risks of business setbacks.
Under the long-term incentive portion of the Program, the NEOs are granted options based upon achievement of the Company performance and individual performance objectives and rank in the Company. All option
grants under the Program through December 2019 were made under the 2009 Incentive Compensation Plan. Grants made after January 1, 2020, were made pursuant to the 2019 Omnibus Equity Incentive Plan.
On January 26, 2023, the NEOs were awarded the options noted below based on 2022 performance. For the performance options, 25% vest on each of June 30, 2023, December 31, 2023, June 30, 2024, and December 31,
2024. The exercise price of the options is set at the closing price of our stock as of the grant date.
|
Name
|
Grant Date
|
Number of Securities
Underlying Options
|
Exercise Price
|
|||||||
|
Joel Lewis
|
1/26/2023
|
70,000
|
$
|
1.11
|
||||||
|
Pol Boudes, M.D.
|
1/26/2023
|
50,000
|
$
|
1.11
|
||||||
|
Jack W. Callicutt
|
1/26/2023
|
50,000
|
$
|
1.11
|
||||||
Material Terms of Employment Contracts of Named Executive Officers
Set forth below are descriptions of the principal terms of the employment agreements for each of our NEOs. Each employment agreement provides for post-termination restrictive covenants and payments due upon
termination of employment or change in control of the Company, which is provided in further detail under the section entitled “Potential Payments Upon Termination or Change in Control.”
Joel Lewis, Chief Executive Officer
In connection with the appointment of Mr. Lewis, the Company and Mr. Lewis entered into an employment agreement, dated August 31, 2020 (the “Employment Agreement”), and a Deferred Stock Unit Agreement,
dated August 31, 2020 (the “DSU Agreement”). The Employment Agreement has an initial term of two years and automatically renews for additional one-year terms thereafter, unless either Mr. Lewis or the Company elects not to renew. Mr.
Lewis will serve as Chief Executive Officer of the Company effective as of September 2, 2020 (the “Start Date”), and will be paid an annual base salary of $500,000. Under the terms of the Employment Agreement, 20% of his base salary will
be paid in cash, and 80% will be paid in the form of deferred-stock-units (“DSUs”) in accordance with the terms and subject to the provisions set forth in the DSU Agreement. In addition, Mr. Lewis is entitled to participate in the
Company’s performance bonus plan with a potential of up to 50% of his annual base salary, which will also be paid 20% in cash and 80% in DSU’s. Further, Mr. Lewis received on the date of the agreement an initial grant of options to purchase
250,000 shares of the Company’s common stock, par value $0.001 per share, which options shall vest one-twelfth on a quarterly basis for twelve consecutive quarters, such that the options shall be fully vested twelve quarters following the date
of grant (the “Award”). The options under the Award shall be issued pursuant to the Company’s 2019 Omnibus Equity Incentive Plan (the “Plan”). Pursuant to the Employment Agreement, Mr. Lewis is also eligible to receive healthcare
benefits as may be provided from time to time by the Company to its employees generally, to participate in the Company’s 401(k) plan and to receive paid time off annually in accordance with the Company’s policies in effect from time to time.
Finally, pursuant to the Employment Agreement, the Company will be required to furnish a lump sum cash payment to Mr. Lewis upon a termination of Mr. Lewis without “Cause” or upon Mr. Lewis’ resignation for “Good Reason” as such terms are
defined in the Employment Agreement or in the event the Company gives notice of non-renewal on or before September 30, 2023. The Employment Agreement includes customary intellectual property, assignment, and other representations by Mr. Lewis.
On July 25, 2022, we entered into amendments to the Employment Agreement and DSU Agreement with Mr. Lewis. Pursuant to the amendments, Mr. Lewis’ base salary earned in 2023 will be paid 20% in cash and 80% in
DSUs. Additionally, the term of the Employment Agreement was extended until December 31, 2024. Unless either party gives written notice of non-renewal at least 60 days prior to December 31, 2024, the amended employment agreement will
automatically renew for an additional twelve months. Also, if either Mr. Lewis terminates his employment for Good Reason (ii) the Company terminates Mr. Lewis’s employment without Cause, or if this Employment Agreement expires as a result of
the Company giving written notice of non-renewal, then the Company shall pay to Mr. Lewis (1) any accrued benefits, (2) a lump sum amount equal to twelve (12) months of Mr. Lewis’s base salary payable within thirty (30) days after the date of
such termination, and (3) the performance bonus, if any, for the year in which termination occurs, based on actual individual and Company performance results and multiplied by a fraction, (A) the numerator of which shall be the number of days
elapsed from the beginning of the fiscal year in which such termination occurs and (B) the denominator of which shall be 365; provided, however, that the portion of the performance bonus payable in the form of DSUs, will be paid in accordance
with the terms of the DSU Award Agreements. Notwithstanding the foregoing, the payments described in clauses above are expressly conditioned upon Mr. Lewis executing returning a full release of the Company and its affiliates and from all
obligations and any usual and customary indemnification obligations of the Company to Mr. Lewis as an officer thereof.
The Deferred Stock Unit Agreement with Mr. Lewis specifies that 20% of his base salary and performance bonuses will be paid in cash, and 80% will be paid in the form of deferred stock units (“DSUs”) through
December 31, 2022 in accordance with the terms and subject to the provisions set forth in the DSU Agreement. DSUs credited to Mr. Lewis as of any date shall be fully vested and nonforfeitable at all times. Pursuant to an amendment to the DSU
Agreement in July 2022, the Company shall issue the shares earned through December 31, 2022 underlying the outstanding whole number of DSUs credited to Mr. Lewis as follows: twenty five percent shall be issued on March 1, 2023, fifty percent
shall be issued on March 1, 2024 and twenty five percent shall be issued on September 1, 2028. On March 1, 2023, twenty five percent of the DSU’s were issued to Mr. Lewis in accordance with the DSU Agreement. A total of 183,900 shares were due
to be issued; however, 75,529 shares were withheld to cover income tax withholding of $156,345 resulting in 108,371 shares actually issued. Additionally, a 2023 DSU Agreement was executed in July 2022, whereby Mr. Lewis would continue to
receive 20% of salary in cash and 80% in DSUs for 2023. The shares under the 2023 DSU Agreement are to be issued fifty percent on March 1, 2025 and fifty percent on January 5, 2026.
Pol F. Boudes, M.D., Chief Medical Officer
On February 19, 2020, the Company entered into an Employment Agreement with Dr. Boudes (the “Agreement”), which governs the terms of Dr. Boudes’ employment in his position as the Company’s Chief Medical
Officer. Dr. Boudes will serve as the Chief Medical Officer of the Company during an initial term that commences on March 2, 2020 (the “Commencement Date”) and expires on February 28, 2021 (the “Initial Term”). Following the
Initial Term, the term of the Agreement automatically renews for successive twelve (12) month terms unless either party provides the other party with notice of non-renewal at least sixty (60) days prior to the expiration of the then-current
term. Under the Agreement, the Company has agreed to pay Dr. Boudes a base salary of $444,500 per year (the “Base Salary”). Provided that certain performance objectives are met, Dr. Boudes will also be entitled to receive an annual
performance bonus equal to thirty percent (30%) of the Base Salary (the “Performance Bonus”). Subject to certain restrictions described in the Agreement, Dr. Boudes will receive a $100,000 signing bonus pursuant to the Agreement. Dr.
Boudes will also be granted options to purchase 300,000 shares (the “Options”) of the Company’s common stock pursuant to the Company’s 2019 Omnibus Equity Incentive Plan. The Options vest as follows: twenty percent (20%) of the Options
shall vest upon one (1) year of employment, twenty percent (20%) of the Options shall vest upon two (2) years of employment, twenty percent (20%) of the Options shall vest upon three (3) years of employment, and the remaining forty percent
(40%) of the Options shall vest upon four (4) years of employment.
Jack W. Callicutt, Chief Financial Officer
We entered into an employment agreement with Mr. Callicutt dated July 1, 2013 (the “Callicutt Employment Agreement”), in conjunction with Mr. Callicutt’s appointment as our Chief Financial Officer. Pursuant to
the terms of the Callicutt Employment Agreement, Mr. Callicutt received an initial base salary of $175,000 and was eligible to receive a performance bonus equal to 20% of his base salary. Effective March 31, 2015, Mr. Callicutt’s annual base
salary was increased to $240,000, and his annual base salary was increased again to $260,000 in February 2016. In June 2018, Mr. Callicutt’s annual base salary increased to $285,000. He also received a signing bonus of $10,000. In addition to
his cash compensation, the Company awarded Mr. Callicutt a grant of options to purchase 200,000 shares of the Company’s Common Stock at an exercise price equal to the closing price of the Company’s Common Stock on July 1, 2013, with 25,000
shares vesting on December 31, 2013, 50,000 shares vesting on December 31, 2014, 50,000 shares vesting on December 31, 2015 and 75,000 shares vesting on December 31, 2016. The options were granted pursuant to the 2009 Incentive Compensation
Plan and expire ten years after the date of grant.
On August 11, 2017, we entered into an amendment to the Callicutt Employment Agreement with Mr. Callicutt (the “Amendment”). Pursuant to the Amendment, (i) Mr. Callicutt’s target bonus opportunity was increased
to 30% of his base salary and (ii) an error in the severance provision of the Callicutt Employment Agreement was corrected. Prior to the Amendment, the Callicutt Employment Agreement did not provide for any severance if Mr. Callicutt’s
employment was terminated by the Company “without cause,” or by Mr. Callicutt for “good reason” after the date that was 24 months after the Commencement Date.
Employee Benefits & Perquisites
From time to time, the Company has provided the NEOs with employee benefits and perquisites that our Board believes are reasonable. Our NEOs are eligible to participate in the same broad-based employee benefit
plans that are offered to our other employees, such as health insurance, disability insurance, life insurance and a 401(k) plan. These benefits are provided as part of the basic conditions of employment for all of our employees, and therefore
providing them to our NEOs does not represent a significant incremental cost to us. The Company does not view employee benefits and perquisites as a significant element of its comprehensive compensation structure, but does believe they can be
useful in attracting, motivating, and retaining the executive talent for which the Company competes. The Company believes that these additional benefits may assist the NEOs in performing their duties and provide time efficiencies for the NEOs
in appropriate circumstances, and the Company may consider providing additional employee benefits and perquisites in the future. All future practices regarding employee benefits and perquisites will be approved and subject to periodic review by
the Compensation Committee.
SUMMARY COMPENSATION TABLE
The following table summarizes the compensation paid to our NEOs for the fiscal years ended December 31, 2023 and 2022.
|
Name and Principal Position
|
Year
|
Salary
($)
|
Bonus
($)
|
Option
Awards
($) (1)
|
All Other
Compensation
($)
|
Total
($)
|
||||||||||||||||
|
Joel Lewis, Chief Executive Officer & President
|
2023(2)
|
573,583
|
289,000
|
55,924
|
45,140(3
|
)
|
963,647
|
|||||||||||||||
|
2022(2)
|
522,917
|
262,500
|
103,517
|
85,247(4
|
) |
974,181
|
||||||||||||||||
|
Pol F. Boudes, M.D., Chief Medical Officer
|
2023(5)
|
530,000
|
160,500
|
39,946
|
39,834(6
|
)
|
770,280
|
|||||||||||||||
|
2022(5)
|
473,333
|
142,500
|
73,940
|
104,804(7
|
) |
794,577
|
||||||||||||||||
|
Jack W. Callicutt, Chief Financial Officer
|
2023(8)
|
364,000
|
110,400
|
39,946
|
47,073(9
|
)
|
561,419
|
|||||||||||||||
|
2022(8)
|
318,508
|
96,000
|
73,940
|
78,116(10
|
)
|
566,564
|
||||||||||||||||
| (1) |
Represents the aggregate grant date fair value of option awards made during 2023 and 2022 computed in accordance with the Stock Compensation Topic of the FASB ASC, as modified of supplemented. Fair value was calculated using the
Black-Scholes options pricing model. For a description of the assumptions used to determine these amounts, see Note 9 of the Notes to the Consolidated Financial Statements in our Annual Reports on Form 10-K for the fiscal years ended
December 31, 2023 and 2022.
|
| (2) |
Mr. Lewis’s performance bonuses for 2023 and 2022 were approved in January 2023 and January 2024, respectively. Pursuant to his employment agreement 20% of his salary and bonus were paid in cash and 80% were awarded in deferred stock
units through December 31, 2023.
|
| (3) |
Includes $33,244 for health and other insurance and $11,896 for 401(k) plan contributions.
|
| (4) |
Includes $73,047 for health and other insurance and $12,200 for 401(k) plan contributions.
|
| (5) |
Dr. Boudes’ performance bonuses for 2023 and 2022 were approved in January 2023 and January 2022, respectively.
|
| (6) |
Includes $26,634 for health and other insurance and $13,200 for 401(k) plan contributions.
|
| (7) |
Includes $92,604 for health and other insurance and $11,200 for 401(k) plan contributions.
|
| (8) |
Mr. Callicutt’s performance bonuses for 2023 and 2022 were approved in January 2023 and January 2022, respectively.
|
| (9) |
Includes $33,873 for health and other insurance and $12,200 for 401(k) plan contributions.
|
| (10) |
Includes $65,916 for health and other insurance and $12,200 for 401(k) plan contributions.
|
OUTSTANDING EQUITY AWARDS AT FISCAL YEAR-END 2023
The following table sets forth information regarding all outstanding equity awards held by the NEOs at December 31, 2023. The exercise price of the options is set at the closing price of our stock at the date
prior to or as of the date of grant. Outstanding options have been approved by our Compensation Committee and our Board.
|
Option Awards
|
Stock Awards
|
||||||||||||||||||||||||||||||||
|
Name
|
Number of
Securities
Underlying
Unexercised
Options
(#)
Exercisable
|
Number of
Securities
Underlying
Unexercised
Options
(#)
Unexercisable
|
Equity
Incentive
Plan
Awards:
Number of
Securities
Underlying
Unexercised
Unearned
Options
(#)
|
Option
Exercise
Price
($)
|
Option
Expiration
Date
|
Number
of Shares
or Units
of Stock
That
Have Not
Vested
(#)
|
Market
Value of
Shares
or Units
of Stock
That
Have Not
Vested
($)
|
Equity
Incentive
Plan
Awards:
Number of
Unearned
Shares,
Units or
Other
Rights
That
Have
Not
Vested
(#)
|
Equity
Incentive
Plan
Awards:
Market
or Payout
Value of
Unearned
Shares,
Units or
Other
Rights
That
Have Not
Vested
($)
|
||||||||||||||||||||||||
|
Joel Lewis
|
54,250(1
|
)
|
—
|
2.39
|
12/14/2027
|
—
|
—
|
—
|
—
|
||||||||||||||||||||||||
|
35,000(2
|
)
|
—
|
4.72
|
01/16/2029
|
|||||||||||||||||||||||||||||
|
40,000(3
|
)
|
—
|
2.86
|
01/09/2030
|
|||||||||||||||||||||||||||||
|
250,000(4
|
)
|
—
|
2.65
|
08/31/2030
|
|||||||||||||||||||||||||||||
|
70,000(5
|
)
|
—
|
2.11
|
03/25/2031
|
|||||||||||||||||||||||||||||
|
—
|
140,000(6
|
)
|
2.11
|
03/25/2031
|
|||||||||||||||||||||||||||||
|
70,000(7
|
)
|
—
|
1.98
|
01/24/2032
|
|||||||||||||||||||||||||||||
|
35,000(8
|
)
|
35,000(8
|
)
|
1.11
|
01/26/2033
|
||||||||||||||||||||||||||||
|
Pol F. Boudes, M.D.
|
180,000(9
|
)
|
120,000(9
|
)
|
1.75
|
03/12/2030
|
—
|
—
|
—
|
—
|
|||||||||||||||||||||||
|
50,000(5
|
)
|
—
|
2.11
|
03/25/2031
|
|||||||||||||||||||||||||||||
|
—
|
100,000(6
|
)
|
2.11
|
03/25/2031
|
|||||||||||||||||||||||||||||
|
50,000(7
|
)
|
—
|
1.98
|
01/24/2032
|
|||||||||||||||||||||||||||||
|
25,000(8
|
)
|
25,000(8
|
)
|
1.11
|
01/26/2033
|
||||||||||||||||||||||||||||
|
Jack W. Callicutt
|
26,000(10
|
)
|
—
|
13.38
|
01/21/2024
|
—
|
—
|
—
|
—
|
||||||||||||||||||||||||
|
8,706(11
|
)
|
—
|
1.37
|
01/20/2026
|
|||||||||||||||||||||||||||||
|
90,000(12
|
)
|
—
|
5.87
|
01/15/2028
|
|||||||||||||||||||||||||||||
|
90,000(13
|
)
|
—
|
4.16
|
05/22/2028
|
|||||||||||||||||||||||||||||
|
50,000(14
|
)
|
—
|
4.72
|
01/16/2029
|
|||||||||||||||||||||||||||||
|
50,000(15
|
)
|
—
|
2.86
|
01/09/2030
|
|||||||||||||||||||||||||||||
|
50,500(5
|
)
|
—
|
2.11
|
03/25/2031
|
|||||||||||||||||||||||||||||
|
—
|
100,000(6
|
)
|
2.11
|
03/25/2031
|
|||||||||||||||||||||||||||||
|
50,000(7
|
)
|
—
|
1.98
|
01/24/2032
|
|||||||||||||||||||||||||||||
|
25,000(8
|
)
|
25,000(8
|
)
|
1.11
|
01/26/2033
|
||||||||||||||||||||||||||||
| (1) |
100% of the options vested in full on December 14, 2018.
|
| (2) |
100% of the options vested in full on January 16, 2020.
|
| (3) |
100% of the options vested in full on December 31, 2020.
|
| (4) |
One-twelfth of the total options vest quarterly from August 31, 2020, which was the grant date.
|
| (5) |
25% of the options vested on September 30, 2021, 25% vested on March 31, 2022, 25% vested on September 30, 2022, 25% vest on March 31, 2023.
|
| (6) |
100% of the options vest when the Company has received the interim results of the NAVIGATE clinical trial and makes a public announcement that it has received the interim results.
|
| (7) |
25% of the options vested on June 30, 2022, 25% vested on December 31, 2022, 25% vest on June 30, 2023, 25% vest on December 31, 2023.
|
| (8) |
25% of the options vested on June 30, 2023, 25% vested on December 31, 2023, 25% vest on June 30, 2024, 25% vest on December 31, 2024.
|
| (9) |
20% of the options vest on each of March 2, 2021, March 2, 2022, and March 2023 and 40% of the options vest on March 2, 2024.
|
| (10) |
25% of the options vested on January 21, 2014, the grant date with the remainder vested ratably on a monthly basis over a three-year period.
|
| (11) |
25% of the options vested on January 29, 2015, the grant date with the remainder vested ratably on a monthly basis over a three-year period.
|
| (12) |
25% of the options vested on January 15, 2018 (grant date), 25% vested on June 30, 2018, and 50% vested on December 31, 2018.
|
| (13) |
25% of the options vested on June 30, 2018, 25% vested on September 30, 2018, and 50% vested on December 31, 2018.
|
| (14) |
25% of the options vested on June 30, 2019, 25% vested on December 31, 2019, 25% vested on June 30, 2020, and 25% vested on December 31, 2020.
|
| (15) |
25% of the options vested on June 30, 2020, 25% vested on December 31, 2020, 25% vested on June 30, 2021, and 25% vested on December 31, 2021.
|
2019 Omnibus Equity Incentive Plan
Under the 2019 Omnibus Equity Incentive Plan, if there is a merger or consolidation of the Company with or into another corporation or a sale of substantially all of the Company’s stock (a “Corporate
Transaction”), and the outstanding awards are not assumed by surviving company (or its parent company) or replaced with economically equivalent awards granted by the surviving company (or its parent company), the Company will cancel any
outstanding awards that are not vested and nonforfeitable as of the consummation of such Corporate Transaction (unless the Company accelerates the vesting of any such awards) and with respect to any vested and nonforfeitable awards, the Company
may either (i) allow all grantees to exercise options and SARs within a reasonable period prior to the consummation of the Corporate Transaction and cancel any outstanding options or SARs that remain unexercised upon consummation of the
Corporate Transaction, or (ii) cancel any or all of such outstanding awards (including options and SARs) in exchange for a payment (in cash, or in securities or other property) in an amount equal to the amount that the grantee would have
received (net of the exercise price with respect to any options or SARs) if the vested awards were settled or distributed or such vested options and SARs were exercised immediately prior to the consummation of the Corporate Transaction. If an
exercise price of the option or SAR exceeds the fair market value of our Common Stock and the option or SAR is not assumed or replaced by the surviving company (or its parent company), such options and SARs will be cancelled without any payment
to the grantee.
Potential Payments Upon Termination or Change-in-Control
Joel Lewis:
If either Mr. Lewis terminates his employment for Good Reason (ii) the Company terminates Mr. Lewis’s employment without Cause, or if this Employment Agreement expires as a result of the Company giving written
notice of non-renewal, then the Company shall pay to Mr. Lewis (1) any accrued benefits, (2) a lump sum amount equal to twelve (12) months of Mr. Lewis’s base salary payable within thirty (30) days after the date of such termination, and (3)
the performance bonus, if any, for the year in which termination occurs, based on actual individual and Company performance results and multiplied by a fraction, (A) the numerator of which shall be the number of days elapsed from the beginning
of the fiscal year in which such termination occurs and (B) the denominator of which shall be 365; provided, however, that the portion of the performance bonus payable in the form of DSUs, will be paid in accordance with the terms of the DSU
Award Agreements. Notwithstanding the foregoing, the payments described in clauses above are expressly conditioned upon Mr. Lewis executing returning a full release of the Company and its affiliates and from all obligations and any usual and
customary indemnification obligations of the Company to Mr. Lewis as an officer thereof.
Under the Deferred Stock Unit Agreement, if a Change in Control of the Company occurs prior to the date on which Mr. Lewis is scheduled to receive shares and cash in an installment payment or in a lump sum (a
“Settlement Date”), Mr. Lewis’ account will be credited with the consideration payable in such Change in Control with respect to the shares subject to the DSUs then credited to Mr. Lewis’ Account immediately prior to such Change in Control. If
Mr. Lewis’ employment with the Company continues after a Change in Control, Mr. Lewis’ account will be credited with the cash value of the portion of his base salary and annual performance bonus that would have been credited in the form of DSUs
but for the Change in Control. The portion of Mr. Lewis’ Account denominated in cash pursuant to the preceding sentence (i.e., the amount attributable to base salary and annual performance bonuses credited to Mr. Lewis’ Account after the Change
in Control) shall be credited with interest at three (3%) percent compounded annually. For avoidance of doubt, a Change in Control shall not result in acceleration of the settlement of Mr. Lewis’ Account and the payment of all amounts or other
property credited to Mr. Lewis’ Account in connection with the Change in Control shall be paid or delivered to Mr. Lewis on as soon as reasonably practicable after the Settlement Date.
Pol Boudes:
Under the Employment Agreement with Dr. Boudes, if (i) Dr. Boudes terminates the Agreement for Good Reason (as defined in the Agreement) or (ii) the Company terminates the Agreement without Cause (as defined in
the Agreement), then the Company shall pay to Dr. Boudes: (1) the Base Salary accrued through the date of termination, (2)(A) if termination occurs within twelve (12) months of the Commencement Date, an amount equal to three (3) months of the
Base Salary, or (B) if such termination occurs after the twelve-month anniversary of the Commencement Date, but prior to the eighteen-month anniversary of the Commencement Date, an amount equal to six (6) months of the Base Salary or (C) if
termination occurs after the eighteen-month anniversary of the Commencement Date, but prior to the twenty four-month anniversary of the Commencement Date, an amount equal to nine (9) months of Base Salary or (D) if termination occurs after the
twenty four-month anniversary of the Commencement Date, an amount equal to twelve (12) months of the Base Salary, (3) reimbursement of unreimbursed expenses and (4) payment of a portion of the Performance Bonus.
If, within the period ending twelve (12) months after the date of a Change of Control, Dr. Boudes’ employment with the Company is (i) terminated without Cause or (ii) terminated for Good Reason by Dr. Boudes, the
Company shall pay to Dr. Boudes (A) the Base Salary accrued through the date of termination, to the extent not theretofore paid, (B) reimbursement of any unreimbursed expenses, (C) a pro-rated amount of the Performance Bonus assuming payout at
maximum performance and (D) an amount equal to twelve (12) months of Base Salary, payable in a lump sum no later than thirty (30) days following such termination. Upon any such Change of Control, Dr. Boudes’ unvested Options shall be one
hundred percent (100%) vested, but shall otherwise continue to be governed by the terms and conditions of the Plan and the applicable stock option agreement.
Jack Callicutt:
Mr. Callicutt’s Employment Agreement provides that if, within the period ending twelve (12) months after the date of a Change of Control, Mr. Callicutt’s employment with the Company is (i) without Cause by the
Company (or by the acquiring or successor business entity following a Change of Control), or (ii) terminated for Good Reason by Mr. Callicutt, the Company shall pay to Mr. Callicutt (A) the Base Salary accrued through the date of termination,
to the extent not theretofore paid, (B) reimbursement of any unreimbursed expenses, (C) a portion of the amount of the Performance Bonus (as defined in the Employment Agreement) equal to the maximum amount of the Performance Bonus multiplied by
a fraction, (X) the numerator of which shall be the number of days elapsed from the beginning of the calendar year in which such termination occurs and (Y) the denominator of which shall be the total number of days in the calendar year in which
such termination occurs (being 365 in a full year and 184 in 2013) and (D) an amount equal to twelve (12) months of Mr. Callicutt’s Base Salary, payable in a lump sum no later than thirty (30) days following such termination. Upon any such
Change of Control, Mr. Callicutt’s unvested options to purchase shares of the Company’s common stock shall be one hundred percent (100%) vested, but shall otherwise continue to be governed by the terms and conditions of the Stock Option
Agreement. However, if, in connection with a transaction that technically meets, or may meet, the definition of Change of Control (as defined in the Employment Agreement), Mr. Callicutt’s employment by the Company or a successor to the Company
is terminated, but Mr. Callicutt is immediately re-hired as an employee of a successor to the Company or surviving company in such a transaction in a comparable position, with the same or greater total annual cash compensation, including bonus
potential, and with an employment agreement containing substantially equivalent provisions as this Agreement with respect to termination of the Mr. Callicutt and severance, no benefits shall be payable under the Change of Control provision of
the Employment Agreement.
DIRECTOR COMPENSATION
The following table details the total compensation earned by our non-employee directors during the year ended December 31, 2023.
Name
|
Fees Earned
or Paid in
Cash ($)
|
Restricted
Stock
Awards
($) (1)
|
Option
Awards
($) (2)
|
Non-Equity
Incentive Plan
Compensation
($)
|
All Other
Compensation
($) (3)
|
Total
($)
|
||||||||||||||||||
|
Gilbert F. Amelio, Ph.D.
|
55,500
|
—
|
31,735
|
—
|
—
|
87,235
|
||||||||||||||||||
|
Benjamin S. Carson, Sr., M.D.
|
2,717
|
—
|
—
|
—
|
—
|
2,717
|
||||||||||||||||||
|
James C. Czirr (5)
|
40,000
|
—
|
31,735
|
—
|
—
|
71,735
|
||||||||||||||||||
|
Kary Eldred
|
47,500
|
—
|
31,735
|
—
|
—
|
79,235
|
||||||||||||||||||
|
Kevin D. Freeman
|
56,000
|
—
|
31,735
|
—
|
—
|
87,735
|
||||||||||||||||||
|
Gilbert S. Omenn, M.D., Ph.D.
|
50,000
|
—
|
31,735
|
—
|
—
|
81,735
|
||||||||||||||||||
|
Marc Rubin, M.D.
|
43,500
|
—
|
31,735
|
—
|
—
|
75,235
|
||||||||||||||||||
|
Elissa J. Schwartz, Ph.D.
|
43,500
|
—
|
31,735
|
—
|
—
|
75,235
|
||||||||||||||||||
|
Harold H. Shlevin, Ph.D.
|
40,000
|
—
|
31,735
|
—
|
—
|
71,735
|
||||||||||||||||||
|
Richard Uihlein
|
—
|
40,000
|
31,735
|
—
|
—
|
71,735
|
||||||||||||||||||
|
Richard A. Zordani
|
55,000
|
—
|
31,735
|
—
|
—
|
86,735
|
||||||||||||||||||
| (1) |
Mr. Uihlein elected to receive restricted stock in lieu of cash retainer for their service. The restricted shares vested in full on December 31, 2023.
|
| (2) |
Represents the grant date fair value of option awards based upon the Black Scholes valuation model made in 2023. The option grants were made on January 26, 2023. Each non-employee director received one grant of 40,000 options which
will vest in full on December 31, 2023. For a description of the assumptions used to determine these amounts, see Note 9 to the Notes to the Consolidated Financial Statements herein our Annual Report on Form 10-K for the fiscal year
ended December 31, 2023.
|
| (3) |
Excludes travel expense reimbursements.
|
| (4) |
Dr. Carson joined the Board of Directors in December 2023.
|
| (5) |
Mr. Czirr retired from the Board of Directors in December 2023.
|
Name
|
Number of
Shares
Subject
to Option
Awards Held
as of
December 31,
2023
|
|||
|
Gilbert F. Amelio, Ph.D.
|
255,000
|
|||
|
Benjamin S. Carson, Sr., M.D.
|
100,000
|
|||
|
James C. Czirr
|
455,125
|
|||
|
Kary Eldred
|
291,875
|
|||
|
Kevin D. Freeman
|
353,125
|
|||
|
Gilbert S. Omenn, M.D., Ph.D.
|
368,750
|
|||
|
Marc Rubin, M.D.
|
294,565
|
|||
|
Elissa J. Schwartz, Ph.D.
|
190,000
|
|||
|
Harold H. Shlevin, Ph.D.
|
583,000
|
|||
|
Richard Uihlein
|
256,362
|
|||
|
Richard A. Zordani
|
190,000
|
|||
|
TOTAL
|
3,337,802
|
|||
For a more detailed description of the assumptions used for purposes of determining grant date fair value, see Note 9 to the Consolidated Financial Statements and “Management’s Discussion and Analysis of
Financial Condition and Results of Operations — Critical Accounting Policies and Estimates — Stock-Based Compensation” included herein the Form 10-K for the 2023 fiscal year.
We also reimburse our directors for reasonable travel and other related expenses.
Pursuant to the Company’s cash compensation program for directors, non-employee directors of the Company will receive an annual cash retainer of $40,000. Each Nominating and Corporate Governance Committee member
will receive an additional cash retainer of $3,500; each Compensation Committee member will receive an additional cash retainer of $5,000; and each Audit Committee member will receive an additional cash retainer of $7,500. In addition to the
annual fee and committee membership retainers, the Nominating and Corporate Governance Committee Chairman will receive an annual cash retainer of $3,500; the Compensation Committee Chairman will receive an annual cash retainer of $5,000; and
the Audit Committee Chairman will receive an annual cash retainer of $7,500.
| Item 12. |
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
|
The following table sets forth, as of February 29, 2024, certain information concerning the beneficial ownership of our common stock and Series A Preferred Stock by (i) each person known by us to own beneficially
five percent (5%) or more of the outstanding shares of each class, (ii) each of our directors and named executive officers, and (iii) all of our executive officers and directors as a group. The table also sets forth, in its final column, the
combined voting power of the voting securities on all matters presented to the stockholders for their approval at the Annual Meeting, except for such separate class votes as are required by law.
The number of shares beneficially owned by each 5% stockholder, director or executive officer is determined under the rules of the Securities and Exchange Commission, or SEC, and the information is not
necessarily indicative of beneficial ownership for any other purpose. Under those rules, beneficial ownership includes any shares as to which the individual or entity has sole or shared voting power or investment power and also any shares that
the individual or entity has the right to acquire within 60 days after February 29, 2024 through the exercise of any stock option, warrant or other right, or the conversion of any security. Unless otherwise indicated, each person or entity has
sole voting and investment power (or shares such power with his or her spouse) with respect to the shares set forth in the following table. The inclusion in the table below of any shares deemed beneficially owned does not constitute an
admission of beneficial ownership of those shares.
Name and Address (1)
|
Shares of
Common
Stock
Beneficially
Owned (2)
|
Percent of
Common
Stock (3)
|
Shares of
Series A
Preferred
Stock
Beneficially
Owned
|
Percent of
Series A
Preferred
Stock (4)
|
|
|||||||||||
|
5% Stockholders
|
||||||||||||||||
|
James C. Czirr
|
12,839,201(5
|
)
|
18.9
|
%
|
100,000
|
7.9
|
%
|
|||||||||
|
10X Fund, L.P. (8)
|
11,679,460(6
|
)
|
17.3
|
%
|
—
|
—
|
||||||||||
|
David Smith (9)
|
—
|
—
|
175,000
|
13.9
|
%
|
|||||||||||
|
Early Equities LLC (9)
|
—
|
—
|
100,000(7
|
)
|
7.9
|
%
|
||||||||||
|
Richard E. Uihlein (11)
|
32,771,532(12
|
)
|
28.7
|
%
|
—
|
—
|
||||||||||
|
Directors and Named Executive Officers
|
||||||||||||||||
|
Benjamin S. Carson, Sr., M.D.
|
100,000
|
*
|
—
|
—
|
||||||||||||
|
Gilbert F. Amelio, Ph.D.
|
215,614
|
*
|
—
|
—
|
||||||||||||
|
Kevin Freeman
|
984,184(10
|
)
|
1.6
|
%
|
—
|
—
|
||||||||||
|
Joel Lewis
|
1,600,762
|
2.5
|
%
|
—
|
—
|
|||||||||||
|
Gilbert S. Omenn, M.D., Ph.D.
|
380,990
|
*
|
50,000
|
3.8
|
%
|
|||||||||||
|
Marc Rubin, M.D.
|
238,146
|
*
|
—
|
—
|
||||||||||||
|
Richard E. Uihlein
|
32,771,532(12
|
)
|
28.7
|
%
|
—
|
—
|
||||||||||
|
Richard A. Zordani
|
150,353
|
*
|
—
|
—
|
||||||||||||
|
Elissa J. Schwartz, Ph.D.
|
121,000
|
*
|
—
|
—
|
||||||||||||
|
Kary Eldred
|
713,739(13
|
)
|
1.1
|
%
|
—
|
—
|
||||||||||
|
Harold H. Shlevin, Ph.D.
|
483,706
|
*
|
—
|
—
|
||||||||||||
|
Pol F. Boudes
|
305,000
|
*
|
—
|
—
|
||||||||||||
|
Jack W. Callicutt
|
421,905
|
*
|
—
|
—
|
||||||||||||
|
All executive officers and directors as a group (13 persons)
|
38,526,931(14
|
)
|
43.9
|
%
|
50,000
|
3.8
|
%
|
|||||||||
* Less than 1%.
| (1) |
Except as otherwise indicated, the address for each named person is c/o Galectin Therapeutics Inc., 4960 Peachtree Industrial Blvd., Suite 240, Norcross, GA 30071.
|
| (2) |
Includes the following number of shares of our common stock issuable upon exercise of outstanding stock options granted to our named executive officers and directors that are exercisable within 60 days after February 29, 2024.
|
|
Directors, Nominees and Named Executive Officers
|
Options Exercisable
Within 60 Days
|
|||
|
Benjamin S. Carson, Sr., M.D.
|
100,000
|
|||
|
Gilbert F. Amelio, Ph.D.
|
195,000
|
|||
|
Marc Rubin, M.D.
|
224,565
|
|||
|
Gilbert S. Omenn, M.D., Ph.D
|
298,750
|
|||
|
Kevin Freeman
|
283,125
|
|||
|
Kary Eldred
|
221,875
|
|||
|
Joel Lewis
|
554,250
|
|||
|
Richard E. Uihlein.
|
186,362
|
|||
|
Harold Shlevin, Ph.D.
|
475,000
|
|||
|
Richard A. Zordani
|
120,000
|
|||
|
Elissa J. Schwartz, Ph.D.
|
120,000
|
|||
|
Pol F. Boudes, M.D.
|
305,000
|
|||
|
Jack Callicutt
|
413,706
|
|||
|
All executive officers and directors as a group
|
3,497,633
|
|||
| (3) |
For each named person and group included in this table, percentage ownership of our common stock is calculated by dividing the number of shares of our common stock beneficially owned by such person or group by the sum of (i)
61,903,672 shares of our common stock outstanding as of February 29, 2024 and (ii) the number of shares of our common stock that such person has the right to acquire within 60 days after February 29, 2024.
|
| (4) |
Based on 1,235,000 shares of Series A preferred stock outstanding as of February 29, 2024.
|
| (5) |
Includes (i) 5,947,207 shares of common shares, and (ii) 5,732,253 common shares issuable upon exercise of warrants as to which Mr. Czirr, in his capacity as a managing member of 10X Capital Management Fund, LLC, a Florida limited
liability company and general partner of 10X Fund (referred to herein as 10X Management) has shared voting and investment power, and disclaims beneficial ownership, also includes 775,616 shares of common stock owned directly by Mr.
Czirr, 384,125 shares issuable upon the exercise of vested stock options owned by Mr. Czirr, and 16,667 shares of our common stock issuable upon conversion of Series A preferred stock owned by Mr. Czirr.
|
| (6) |
Includes (i) 5,947,207 shares of common shares, and (ii) 5,732,253 common shares issuable upon exercise of warrants.
|
| (7) |
Mr. Smith is the manager of Early Equities LLC, a Connecticut limited liability company, and may be deemed to have voting and investment control over, but disclaims beneficial ownership of, the shares of Series A preferred stock.
|
| (8) |
Contact: c/o 10X Capital Management, LLC at Investment Law Group attn: Bob Mottern 545 Dutch Valley Road NE, Suite A, Atlanta, GA 30324.
|
| (9) |
Contact: c/o David Smith 34 Shorehaven Road E., Norwalk, CT 06855.
|
| (10) |
Includes 511,158 shares of the Company’s common stock managed by Cross Consulting and Services, LLC, a Texas limited liability company, d/b/a Freeman Global Investment Counsel. Mr. Freeman, in his capacity as CEO of Freeman Global
Investment Counsel, has voting and investment control over, but disclaims beneficial ownership of, these shares.
|
| (11) |
Contact: c/o Uline Corporation, 12575 Uline Drive, Pleasant Prairie, WI 53158
|
| (12) |
Includes (i) 10,296,461 shares of common stock, (ii) 1,700,180 common shares issuable upon the exercise of common stock purchase warrants, (iii) 186,362 common shares issuable upon the exercise of common stock options, (iv) 83,334
common shares issuable upon conversion of Series C preferred non-voting stock, (iv) 6,519,821 common shares issuable upon conversion of convertible notes payable and (v) 13,985,374 common shares issuable upon conversion of convertible
line of credit.
|
| (13) |
Includes 49,313 shares of common stock, 6,599 common stock purchase warrants, and 221,875 common stock options personally owned by Mr. Eldred and 431,527 shares of common, and 4,425 shares of Common Stock held in a trust for a minor
child; however, Mr. Eldred disclaims beneficial ownership of the shares and warrants owned by such private foundations and trust.
|
EQUITY COMPENSATION PLAN INFORMATION
The following table provides information as of December 31, 2023, about the securities issued, or authorized for future issuance, under our equity compensation plans, consisting of our 2001 Stock Incentive Plan,
our 2003 Non-Employee Director Stock Incentive Plan, our 2009 Incentive Compensation Plan and our 2019 Omnibus Equity Incentive Plan at December 31, 2023.
Plan Category
|
Number of Securities
to be issued upon
exercise of
outstanding options
|
Weighted-
average
exercise
price of
outstanding
options
|
Number of
securities
remaining
available for
future
issuance
under
equity
compensation
plans
(excluding
securities
reflected in
column (a))
|
|||||||||
|
Equity compensation plans approved by security holders
|
6,333,841
|
$
|
2.66
|
3.954.727
|
||||||||
| Item 13. |
Certain Relationships, Related Transactions and Director Independence
|
Certain Relationships and Related Transactions
Except as set forth below, since the beginning of fiscal year 2023, we did not participate in any transactions in which any of the Company’s executive officers, any beneficial owner of more than 5% of our common
stock, nor any of their immediate family members, had a direct or indirect material interest.
Our Audit Committee Charter requires that members of the Audit Committee, all of whom are independent directors, conduct an appropriate review of, and be responsible for the oversight of, all related party
transactions on an ongoing basis. Except as set forth below, there were no related party transactions during the fiscal year ended December 31, 2023.
The Company entered into an unsecured convertible line of credit totaling $60 million convertible notes payable with Richard E. Uihlein, a director and shareholder, pursuant to an agreement in July 2022 under
which the Company made borrowings in 2023. Additional details of the convertible line of credit are included in Footnote 10 to the financial statements in this Form 10-K.
Compensation Committee Interlocks and Insider Participation
None of our executive officers or directors serves as a member of the board of directors or compensation committee of any entity that has one or more of its executive officers serving as a member of our Board of
Directors or Compensation Committee.
Board Determination of Director Independence
Our board of directors has reviewed the materiality of any relationship that each of our directors has with the Company, either directly or indirectly. Based upon this review, our board has determined that all of
our directors other than Mr. Lewis and Dr. Shlevin are “independent directors” as defined by The NASDAQ Stock Market. Our board of directors also determined that Drs. Amelio, Rubin, and Mr. Freeman, who comprise our nominating and governance
committee, all satisfy the independence standards for such committees established by the SEC and the NASDAQ Marketplace Rules, as applicable. With respect to our audit committee, our board of directors has determined that Messrs. Zordani,
Freeman and Eldred satisfy the independence standards for such committee established by Rule 10A-3 under the Exchange Act, the SEC and the NASDAQ Marketplace Rules, as applicable. Furthermore, the Nominating and Corporate Governance Committee,
with concurrence by the Board, has determined that Mr. Zordani is an “audit committee financial expert” within the meaning of SEC rules. With respect to our compensation committee, our board of directors has determined that Drs. Omenn, Amelio
and Mr. Freeman satisfy the independence standards for such committee established by Rule 10C-1 under the Exchange Act, the SEC and the NASDAQ Marketplace Rules, as applicable.
In making such determinations, the board of directors considered the relationships that each such non-employee director or director nominee has with our company and all other facts and circumstances the board of
directors deemed relevant in determining their independence, including the beneficial ownership of our capital stock by each non-employee director. In considering the independence of our directors, our board of directors considered the
association of each such non-employee director has with us and all other facts and circumstances our board of directors deemed relevant in determining independence.
| Item 14. |
Principal Accountant Fees and Services
|
The Board of Directors has appointed Cherry Bekaert LLP as our independent auditors for the fiscal year ending December 31, 2023.
FEES PAID TO CHERRY BEKAERT LLP
|
Fiscal Year
2023
|
Fiscal Year
2022
|
|||||||
|
Audit Fees (1)
|
$
|
177,000
|
$
|
155,000
|
||||
|
Audit-Related Fees (2)
|
8,000
|
15,000
|
||||||
|
Tax Fees
|
48,812
|
35,750
|
||||||
|
All Other Fees
|
—
|
—
|
||||||
|
Total Fees
|
$
|
233,812
|
$
|
205,750
|
||||
| (1) |
Audit Fees. These are fees for professional services for the audit of our annual financial statements dated December 31, 2023 and 2022 included in our Annual
Reports on Form 10-K for fiscal years then ended, and review of financial statements included in our Quarterly Reports on Form 10-Q for each fiscal quarter during the 2023 and 2022 fiscal years.
|
| (2) |
Audit-Related Fees. These are fees for assurance and related services that are reasonably related to the performance of the audit or review of our financial statements, including financial
disclosures made in our equity finance documentation and registration statements filed with the SEC that incorporate financial statements and the auditors’ report thereon and reviewed with our Audit Committee on financial
accounting/reporting standards.
|
The Audit Committee has considered whether the provision of non-core audit services to Galectin Therapeutics by Cherry Bekaert LLP is compatible with maintaining independence.
Pre-Approval Policy and Procedures
The Audit Committee of our Board of Directors has adopted policies and procedures which set forth the manner in which the Committee will review and approve all services to be provided by the independent auditor
before the auditor is retained to provide such services. The policy requires Audit Committee pre-approval of the terms and fees of the annual audit services engagement, as well as any changes in terms and fees resulting from changes in audit
scope or other items. The Audit Committee also pre-approves, on an annual basis, other audit services, and audit-related and tax services set forth in the policy, subject to estimated fee levels, on a project basis and aggregate annual basis,
which have been pre-approved by the Committee.
All other services performed by the auditor that are not prohibited non-audit services under SEC or other regulatory authority rules must be separately pre-approved by the Audit Committee. Amounts in excess of
pre-approved limits for audit services, audit-related services and tax services require separate pre-approval of the Audit Committee.
Our Chief Financial Officer reports quarterly to the Audit Committee on the status of pre-approved services, including projected fees. All of the services reflected in the above table were approved by the Audit
Committee.
PART IV
| Item 15. |
Exhibits and Financial Statement Schedules
|
(a) 1. Consolidated Financial Statement Schedules
The Consolidated Financial Statements are filed as part of this report.
2. Consolidated Financial Statement Schedules
All schedules are omitted because of the absence of conditions under which they are required or because the required information is included in the Consolidated Financial Statements or notes thereto.
3. Exhibits
|
Exhibit
Number
|
Description of Document
|
|
3.1
|
|
|
3.2
|
|
|
3.3
|
|
|
3.4
|
|
|
3.5
|
|
|
3.6
|
|
|
3.7
|
|
|
4.1
|
|
|
4.2
|
|
|
4.3
|
|
|
4.4
|
|
|
4.5
|
|
Exhibit
Number
|
Description of Document
|
|
4.6
|
|
|
4.7
|
|
|
4.8
|
|
|
4.09
|
|
|
4.10
|
|
|
4.11*
|
|
| 4.12* | Form of
Common Stock Purchase Warrant |
|
10.1†
|
|
|
10.2*
|
|
|
10.3*
|
|
Exhibit
Number
|
Description of Document
|
|
10.4†
|
|
|
10.5†
|
|
|
10.6†
|
|
|
10.7***
|
|
|
10.8***
|
|
|
10.9***
|
|
|
10.10
|
|
|
10.11
|
|
|
10.12
|
|
|
10.13
|
|
|
10.14
|
|
|
10.15
|
|
|
10.16
|
|
|
10.17
|
|
|
10.18
|
|
|
10.19*
|
Supplemental Line of Credit Agreement, dated as of March 29, 2024, by and between Richard E. Uihlein and the Company. |
|
10.20*
|
Form of Convertible Promissory Note issued to Richard E. Uihlein |
|
Exhibit
Number
|
Description of Document
|
|
21.1*
|
|
|
23.1*
|
|
|
31.1*
|
|
|
31.2*
|
|
|
32.1#
|
|
|
32.2#
|
|
|
97*
|
|
|
101.INS
|
Inline XBRL Instance Document – the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document.
|
|
101.SCH
|
Inline XBRL Taxonomy Extension Schema Document
|
|
101.CAL
|
Inline XBRL Taxonomy Extension Calculation Linkbase Document
|
|
101.DEF
|
Inline XBRL Taxonomy Extension Definition Linkbase Document
|
|
101.LAB
|
Inline XBRL Taxonomy Extension Label Linkbase Document
|
|
101.PRE
|
Inline XBRL Taxonomy Extension Presentation Linkbase Document
|
| 104 |
The cover page for the Company’s Annual Report on Form 10-K for the year ended December 31, 2021, has been formatted in Inline XBRL and contained in Exhibit 101
|
| * |
Filed herewith.
|
| # |
Furnished herewith and not “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended.
|
| *** |
Galectin Therapeutics, Inc. has requested confidential treatment with respect to portions of this exhibit. Those portions have been omitted from the exhibit and filed separately with the U.S. Securities and Exchange Commission.
|
| † |
Executive Compensation Arrangement pursuant to 601(b)(10)(iii)(A) of Regulation S-K
|
| Item 16. |
Form 10–K Summary
|
None
Pursuant to the requirements of Section 13 or 15(d) 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, on March 29, 2024.
|
GALECTIN THERAPEUTICS INC.
|
||
| By: | /S/ JOEL LEWIS | |
| Name: JOEL LEWIS. | ||
| Title: Chief Executive Officer and President | ||
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| Signature |
Title
|
Date
|
||
|
/S/ JOEL LEWIS
|
Chief Executive Officer, President and Director
|
March 29, 2024
|
||
|
Joel Lewis
|
(principal executive officer)
|
|||
|
/S/ JACK W. CALLICUTT
|
Chief Financial Officer
|
March 29, 2024
|
||
|
Jack W. Callicutt
|
(principal financial and accounting officer)
|
|||
|
/S/ RICHARD E. UIHLEIN
|
Director and Chairman of the Board
|
March 29, 2024
|
||
|
Richard E. Uihlein
|
||||
|
/S/ GILBERT F. AMELIO, Ph.D.
|
Director
|
March 29, 2024
|
||
|
Gilbert F. Amelio, Ph.D.
|
||||
|
/S/ BENJAMIN S. CARSON, SR., M.D.
|
Director
|
March 29, 2024
|
||
| Benjamin S. Carson, Sr., M.D. | ||||
|
/S/ KARY ELDRED
|
Director
|
March 29, 2024
|
||
|
Kary Eldred
|
||||
|
/S/ KEVIN D. FREEMAN
|
Director
|
March 29, 2024
|
||
|
Kevin D. Freeman
|
||||
|
/S/ GILBERT S. OMENN, M.D., Ph.D.
|
Director
|
March 29, 2024
|
||
|
Gilbert S. Omenn, M.D., Ph.D.
|
||||
|
/S/ MARC RUBIN, M.D.
|
Director
|
March 29, 2024
|
||
|
Marc Rubin, M.D.
|
||||
|
/S/ ELISSA J. SCHWARTZ, Ph.D.
|
Director
|
March 29, 2024
|
||
|
Elissa J. Schwartz, Ph.D.
|
||||
|
/S/ HAROLD H. SHLEVIN, Ph.D.
|
Director
|
March 29, 2024
|
||
|
Harold H. Shlevin, Ph.D.
|
||||
|
/S/ RICHARD A. ZORDANI
|
Director
|
March 29, 2024
|
||
| Richard A. Zordani |
Galectin Therapeutics Inc. and subsidiaries
Table of Contents
| 1. |
F-1
|
|
| 2. |
F-3
|
|
| 3. |
F-4
|
|
| 4. |
F-5
|
|
| 5. |
F-7
|
|
| 6. |
F-8
|
To the Board of Directors and Stockholders
Galectin Therapeutics Inc. and Subsidiaries
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated balance sheets of Galectin Therapeutics Inc. and Subsidiaries (the “Company”) as of December 31, 2023 and 2022, and the
related consolidated statements of operations, changes in redeemable convertible preferred stock and stockholders’ equity (deficit), and cash flows for each of the years then ended, and the related notes (collectively referred to as the “consolidated
financial statements”).
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of the Company as of December
31, 2023 and 2022, and the results of its operations and its cash flows for each of the years then ended, in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated
financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the
U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about
whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of
our audits, we are required to obtain an understanding of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we
express no such opinion.
Our audits of the consolidated financial statements included performing procedures to assess the risks of material misstatement of the consolidated financial statements,
whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also
included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe our audits provide a reasonable basis for our
opinions.
Critical Audit Matters
The critical audit matters communicated below are matters arising from the current period audit of the consolidated financial statements that were communicated or
required to be communicated to the audit committee and that:
(1) relate to accounts or disclosures that are material to the consolidated financial statements and (2) involved our especially challenging, subjective, or complex
judgments. The communication of critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matters below, providing separate opinions on
the critical audit matters or on the accounts or disclosures to which they relate.
|
Description of Matter
|
Going Concern
|
||
|
As described further in Note 1 to the consolidated financial statements, the Company has incurred losses each year from inception through December 31, 2023,
and expects to incur additional losses in the foreseeable future. Currently, management’s forecasts and related assumptions illustrate the Company’s ability to sufficiently fund operations and satisfy the Company’s obligations as they come
due for at least one year from the financial statement issuance date.
Management made judgments to conclude that it is probable the Company’s plans will be effectively implemented and will provide the necessary cash flows to fund
the Company’s obligations as they become due. The judgments with the highest degree of impact and subjectivity in reaching this conclusion included management’s estimates of research and development clinical trial costs and other general
and administrative costs. As a result, a high degree of auditor judgment and increased audit effort was required in performing audit procedures to evaluate the reasonableness of management’s estimates.
|
|||
|
How We Addressed the Matter in Our Audit
|
Our audit procedures included the following:
|
||
| • | Obtained an understanding of the internal controls and processes in place over the Company’s preparation of forecasted information and considerations of the Company’s obligations. | ||
| • |
Tested the reasonableness of the forecasted research and development expenses, operating expenses, and uses and sources of cash used in
management’s assessment of whether the Company has sufficient liquidity to fund operations for at least one year from the consolidated financial statement issuance date. This testing included inquiries with management, comparison of prior
period forecasts to actual results, consideration of positive and negative evidence impacting management’s forecasts, the Company’s financing arrangements in place as of the report date, consideration of the Company’s relationships with
its financing partners, performance of a sensitivity analysis of accelerated uses of cash, and creation of an independent estimate of expected future cash flows.
|
||
|
Description of Matter
|
Valuation of Derivative Liabilities and Warrant Modification
|
||
|
As discussed in Note 5 to the consolidated financial statements, during the year ended December 31, 2021, the Company and a related party entered into three
debt financing arrangements for a total of $30 million loaned to the Company. These arrangements include various conversion and other features, including a contingent interest component that has been bifurcated and recognized as a
derivative liability. At December 31, 2023, the Company’s derivative liabilities related to the related party convertible notes payable totaled $1,004 thousand. Additionally, as discussed in Note 8, the Company modified common stock
purchase warrants held by a related party on September 22, 2023, which led to the recognition of a deemed dividend for the change in fair value of the warrants of $3,319 thousand. As more fully described in Note 6 and Note 8 to the
consolidated financial statements, the Company utilized a Monte Carlo Geometric Brownian Stock Path Model and Black-Scholes option pricing model in measuring the fair value of these instruments, which requires the use of estimates and
assumptions.
Auditing management’s valuations of the derivative liabilities and warrant modification was challenging due to the complexity of the valuation models and the
inputs that are highly sensitive to changes such as the common stock market price, volatility, risk free rates, and yields.
|
|||
|
How We Addressed the Matter in Our Audit
|
Our audit procedures included, among others, the following:
|
||
| • | Obtained an understanding of the internal controls and processes in place over the Company’s process used in determining the valuation of the derivative liabilities and warrant modification. | ||
| • | Evaluated the Company’s use of the models used and tested the significant assumptions used in the models, as described above. | ||
| • | Evaluated the completeness and accuracy of underlying data used in supporting the assumptions and estimates. | ||
| • | In addition, we involved valuation specialists to assist in assessing the significant assumptions and methodologies used by the Company. | ||
|
Description of Matter
|
Accrued and Prepaid Clinical Trial Expenses
|
||
|
The Company’s accrued expenses total approximately $9.2 million at December 31, 2023, which included the estimated obligation for clinical trial expenses
incurred as of December 31, 2023, but not paid as of that date in the amount of approximately $8.0 million. In addition, the Company’s total prepaid expenses and other current assets totaled $2.1 million, which included amounts that were
paid in advance of services incurred pursuant to clinical trials in the amount of approximately $1.1 million.
|
|||
|
Our audit procedures included, among others, the following:
|
|||
| • |
Obtained an understanding of the internal controls and processes in place over the Company’s process used in determining the completeness and existence of
accrued and prepaid clinical trial expenses.
|
||
| • |
Tested the accuracy and completeness of the underlying data used in determining the accrued and prepaid clinical trial expenses and evaluating the assumptions
and estimates used by management to adjust the actual information received. We corroborated the schedules of the underlying data used in the accrual calculation with the Company’s third party contract research organization who oversees the
clinical trials. To evaluate the completeness of the accrual, we also tested subsequent invoices received to assess the impact to the accrual.
|
||
We have served as the Company’s auditor since 2015.
GALECTIN THERAPEUTICS INC. AND SUBSIDIARIES
|
December 31,
|
||||||||
|
2023
|
2022
|
|||||||
|
(in thousands, except per share
amounts)
|
||||||||
|
ASSETS
|
||||||||
|
Current assets:
|
||||||||
|
Cash and cash equivalents
|
$
|
|
$
|
|
||||
|
Prepaid expenses and other current assets
|
|
|
||||||
|
Total current assets
|
|
|
||||||
|
Property and equipment, net
|
|
|
||||||
|
Other
|
|
|
||||||
|
Total assets
|
$
|
|
$
|
|
||||
|
LIABILITIES, REDEEMABLE CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS’ EQUITY (DEFICIT)
|
||||||||
|
Current liabilities:
|
||||||||
|
Accounts payable
|
$
|
|
$
|
|
||||
|
Accrued expenses
|
|
|
||||||
|
Accrued dividends payable
|
|
|
||||||
|
Total current liabilities
|
|
|
||||||
|
Convertible notes payable and accrued interest, net of debt discounts – related party (Note 5)
|
|
|
||||||
|
Derivative liabilities (Note 6)
|
|
|
||||||
|
Borrowing and accrued interest under convertible line of credit, net of debt discount – related party (Note 10)
|
||||||||
|
Other liabilities
|
|
|
||||||
|
Total liabilities
|
|
|
||||||
|
Commitments and contingencies (Note 12)
|
||||||||
|
Series C 6% super dividend redeemable convertible preferred stock;
|
|
|
||||||
|
Stockholders’ equity (deficit):
|
||||||||
|
Undesignated stock, $
|
|
|
||||||
|
Series A 12% convertible preferred stock;
|
|
|
||||||
|
Common stock, $
|
|
|
||||||
|
Additional paid-in capital
|
|
|
||||||
|
Accumulated deficit
|
(
|
)
|
(
|
)
|
||||
|
Total stockholders’ deficit
|
(
|
)
|
(
|
)
|
||||
|
Total liabilities, redeemable convertible preferred stock and stockholders’ deficit
|
$
|
|
$
|
|
||||
See notes to consolidated financial statements.
GALECTIN THERAPEUTICS INC. AND SUBSIDIARIES
|
Year Ended
December 31,
|
||||||||
|
2023
|
2022
|
|||||||
|
(in thousands, except
per share amounts)
|
||||||||
|
Operating expenses:
|
||||||||
|
Research and development
|
$
|
|
$
|
|
||||
|
General and administrative
|
|
|
||||||
|
Total operating expenses
|
|
|
||||||
|
Total operating loss
|
(
|
)
|
(
|
)
|
||||
|
Other income (expense):
|
||||||||
|
Interest income
|
|
|
||||||
|
Interest expense
|
(
|
)
|
(
|
)
|
||||
|
Change in fair value of derivatives
|
(
|
)
|
|
|||||
|
Total other expense
|
(
|
)
|
(
|
)
|
||||
|
Net loss
|
$
|
(
|
)
|
$
|
(
|
)
|
||
|
Preferred stock dividends
|
(
|
)
|
(
|
)
|
||||
| Warrant modification | ( |
) | ||||||
|
Net loss applicable to common stockholders
|
$
|
(
|
)
|
$
|
(
|
)
|
||
|
Basic and diluted net loss per share
|
$
|
(
|
)
|
$
|
(
|
)
|
||
|
Weighted average common and potential common shares outstanding basic and diluted
|
||||||||
See notes to consolidated financial statements.
GALECTIN THERAPEUTICS INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN REDEEMABLE CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS’ EQUITY (DEFICIT)
For the Years Ended December 31, 2023 and 2022
(amounts in thousands except share data)
|
Series C Super
Dividend Redeemable
Convertible
Preferred Stock
|
||||||||
|
Number of
Shares
|
Amount
|
|||||||
|
Balance at January 1, 2022
|
|
$
|
|
|||||
|
Balance at December 31, 2022
|
|
$
|
|
|||||
|
Balance at December 31, 2023
|
|
$
|
|
|||||
See notes to consolidated financial statements.
GALECTIN THERAPEUTICS INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN REDEEMABLE CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS’ EQUITY (DEFICIT) — (Continued)
For the Years Ended December 31, 2023 and 2022
(amounts in thousands except share data)
|
Series A 12%
Convertible
Preferred Stock
|
Common Stock
|
|||||||||||||||||||||||||||
|
Number of
Shares
|
Amount
|
Number of
Shares
|
Amount
|
Additional
Paid-In
Capital
|
Retained
Deficit
|
Total
Stockholders’
Equity
(Deficit)
|
||||||||||||||||||||||
|
Balance at January 1, 2022
|
|
$
|
|
|
$ |
$
|
|
$
|
(
|
)
|
$
|
|
||||||||||||||||
|
Series A 12% convertible preferred stock dividend
|
|
|
(
|
)
|
||||||||||||||||||||||||
|
Series C super dividend redeemable convertible preferred stock dividend
|
|
(
|
)
|
|||||||||||||||||||||||||
| Conversion of Series A Convertible Preferred to common |
( |
) | ( |
) | ||||||||||||||||||||||||
| Issuance of common stock purchase warrants in connection with related party line of credit |
||||||||||||||||||||||||||||
|
Stock-based compensation expense
|
|
|
|
|||||||||||||||||||||||||
|
Net loss
|
(
|
)
|
(
|
)
|
||||||||||||||||||||||||
|
Balance at December 31, 2022
|
|
$
|
|
|
$
|
|
$
|
|
$
|
(
|
)
|
$
|
(
|
)
|
||||||||||||||
|
Series A 12% convertible preferred stock dividend
|
|
|
(
|
)
|
||||||||||||||||||||||||
|
Series C super dividend redeemable convertible preferred stock dividend
|
|
|
(
|
)
|
||||||||||||||||||||||||
|
Conversion of Series A Convertible Preferred to common
|
( |
) | ( |
) | ||||||||||||||||||||||||
| Issuance of common stock from exercise of warrants |
||||||||||||||||||||||||||||
|
Issuance of common stock purchase warrants in connection with related party line of credit
|
||||||||||||||||||||||||||||
| Warrant modification |
( |
|||||||||||||||||||||||||||
|
Stock-based compensation expense
|
|
|
|
|||||||||||||||||||||||||
|
Net loss
|
(
|
)
|
(
|
)
|
||||||||||||||||||||||||
|
Balance at December 31, 2023
|
|
$
|
|
|
$
|
|
$
|
|
$
|
(
|
)
|
$
|
(
|
)
|
||||||||||||||
See notes to consolidated financial statements.
GALECTIN THERAPEUTICS INC. AND SUBSIDIARIES
|
Year Ended
December 31,
|
||||||||
|
2023
|
2022
|
|||||||
|
(in thousands)
|
||||||||
|
CASH FLOWS FROM OPERATING ACTIVITIES:
|
||||||||
|
Net loss
|
$
|
(
|
)
|
$
|
(
|
)
|
||
|
Adjustments to reconcile net loss to net cash from operating activities:
|
||||||||
|
Amortization of right to use asset
|
|
|
||||||
|
Stock-based compensation expense
|
|
|
||||||
|
Non-cash interest expense
|
|
|
||||||
|
Change in fair value of derivatives
|
|
(
|
)
|
|||||
|
Changes in operating assets and liabilities:
|
||||||||
|
Prepaid expenses and other assets
|
(
|
)
|
|
|||||
| Accrued interest on convertible notes payable and convertible line of credit – related party | ||||||||
|
Accounts payable, accrued expenses and other liabilities
|
|
|
||||||
|
Net cash from operating activities
|
(
|
)
|
(
|
)
|
||||
|
CASH FLOWS FROM INVESTING ACTIVITIES:
|
||||||||
|
Net cash from investing activities
|
|
|
||||||
|
CASH FLOWS FROM FINANCING ACTIVITIES:
|
||||||||
|
Net proceeds from convertible line of credit – related party
|
||||||||
|
Net proceeds from exercise of common stock purchase warrants
|
||||||||
|
Net cash from financing activities
|
|
|
||||||
|
NET (DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS
|
|
(
|
)
|
|||||
|
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD
|
|
|
||||||
|
CASH AND CASH EQUIVALENTS, END OF PERIOD
|
$
|
|
$
|
|
||||
|
NONCASH FINANCING ACTIVITIES:
|
||||||||
|
Payment of preferred stock dividends in common stock
|
$
|
|
$
|
|
||||
|
Reclassification of accrued bonus to additional paid in capital
|
||||||||
| Noncash right to use lease asset |
||||||||
| Common stock purchase warrants issued in connection with related party line of credit | ||||||||
See notes to consolidated financial statements.
GALECTIN THERAPEUTICS INC. AND SUBSIDIARIES
| 1. |
Nature of Business, Basis of Presentation and Liquidity
|
Galectin Therapeutics Inc. and subsidiaries (the “Company”) is a clinical stage biopharmaceutical company that is applying its leadership in galectin science and drug
development to create new therapies for fibrotic disease and cancer. These candidates are based on the Company’s targeting of galectin proteins which are key mediators of biologic and pathologic function. These compounds also may have application for
drugs to treat other diseases and chronic health conditions.
The Company was founded in July 2000, was incorporated in the State of Nevada in January 2001 under the name “Pro-Pharmaceuticals, Inc.,” and changed its name to
“Galectin Therapeutics Inc.” on May 26, 2011.
The Company has operated at a loss since its inception and has had no revenues. The Company anticipates that losses will continue for the foreseeable future. At December 31, 2023, the company had $25,660 ,000 of unrestricted cash and cash equivalents available to fund future operations. In July 2022, the Company entered into a $60 million unsecured line of credit financing, of which $20
million remains available at December 31, 2023, with its chairman, Richard E. Uihlein (See Note 10). Additionally, on March 29, 2024, the Company entered into a supplemental unsecured $10 million line of credit financing also provided by our chairman (See Note 15). The Company believes there is sufficient cash, including availability of the line of credit, to fund
currently planned operations at least through March 31, 2025. To meet its future capital needs, the Company intends to raise additional capital through debt or equity financings, collaborations, partnerships or other strategic transactions.
However, there can be no assurance that the Company will be able to complete any such transactions on acceptable terms or otherwise. The inability of the Company to obtain sufficient funds on acceptable terms when needed could have a material
adverse effect on the Company’s business, results of operations and financial condition. The Company has the ability to delay certain research activities and related clinical expenses if necessary due to liquidity concerns until a date when those
concerns are relieved.
The Company is subject to a number of risks similar to those of clinical stage companies, including dependence on key individuals, uncertainty of product development
and generation of revenues, dependence on outside sources of capital, risks associated with clinical trials of products, dependence on third-party collaborators for research operations, need for regulatory approval of products, risks associated with
protection of intellectual property, and competition with larger, better-capitalized companies. Successful completion of the Company’s development program and, ultimately, the attainment of profitable operations is dependent upon future events,
including obtaining adequate financing to fulfill its development activities and achieving a level of revenues adequate to support the Company’s cost structure. There are no assurances that the Company will be able to obtain additional financing on
favorable terms, or at all, or successfully market its products.
| 2. |
Summary of Significant Accounting Policies
|
The accompanying consolidated financial statements have been prepared in conformity with accounting principles generally accepted in the United States (“GAAP”).
Basis of Consolidation. The consolidated
financial statements include the accounts of the Company and Galectin Therapeutics Security Corp., its wholly-owned subsidiary, which was incorporated in Delaware on December 23, 2003 and Galectin Sciences LLC (see Note 13). All intercompany
transactions have been eliminated.
Use of Estimates. The preparation of financial
statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and judgments that may affect the reported amounts of assets, liabilities, equity, revenue, expenses and
related disclosure of contingent assets and liabilities. Management’s estimates and judgments include assumptions used in stock option valuations, useful lives of property and equipment and intangible assets, accrued liabilities, derivative
valuations, deferred income taxes and various other assumptions that are believed to be reasonable under the circumstances. Actual results may differ from those estimates under different assumptions or conditions.
Fair Value Measurements. The Company has
certain financial assets and liabilities recorded at fair value. Fair values determined by Level 1 inputs utilize observable data such as quoted prices in active markets. Fair values determined by Level 2 inputs utilize data points other than
quoted prices in active markets that are observable either directly or indirectly. Fair values determined by Level 3 inputs utilize unobservable data points in which there is little or no market data, which require the reporting entity to develop
its own assumptions. The estimated value of accounts payable and accrued expenses approximates their carrying value due to their short-term nature. See Footnote 6 for Fair Value of Derivatives related to Convertible Notes Payable at
December 31, 2023 and 2022, which are level 3 liabilities.
Cash and Cash Equivalents. The Company
considers all highly-liquid investments with original maturities of 90 days or less at the time of acquisition to be cash equivalents. The Company had no
Prepaid Expenses and Other Current Assets.
Prepaid expenses and other assets consist principally of prepaid insurance, deposits related to the NAVIGATE trial and deferred financing costs (see Note 10).
Property and Equipment. Property and equipment,
including leasehold improvements, are stated at cost, net of accumulated depreciation and amortization, and are depreciated or amortized using the straight-line method over the estimated useful lives of the related assets of generally three years for computers and office equipment, five years for furniture and fixtures and the shorter of the useful life or life of the lease for leasehold improvements.
Security Deposit. At December 31, 2023 and
2022, the Company had a security deposit of $6,000
Long-Lived Assets. The Company reviews all
long-lived assets for impairment whenever events or circumstances indicate the carrying amount of such assets may not be recoverable. Recoverability of assets to be held or used is measured by comparison of the carrying value of the asset to the
future undiscounted net cash flows expected to be generated by the asset. If such asset is considered to be impaired, the impairment recognized is measured by the amount by which the carrying value of the asset exceeds the discounted future cash
flows expected to be generated by the asset. There were no
Accrued Expenses. As part of the process of
preparing our consolidated financial statements, we are required to estimate accrued expenses. This process involves identifying services that third parties have performed on our behalf and estimating the level of service performed and the
associated cost incurred on these services as of each balance sheet date in our consolidated financial statements. Examples of estimated accrued expenses include professional service fees, such as those arising from the services of attorneys and
accountants and accrued payroll expenses. In connection with these service fees, our estimates are most affected by our understanding of the status and timing of services provided relative to the actual services incurred by the service providers.
In the event that we do not identify certain costs that have been incurred or we under- or over-estimate the level of services or costs of such services, our reported expenses for a reporting period could be understated or overstated. The date on
which certain services commence, the level of services performed on or before a given date, and the cost of services are often subject to our judgment. We make these judgments based upon the facts and circumstances known to us in accordance with
accounting principles generally accepted in the U.S.
Warrants. The Company has issued common stock
warrants in connection with the execution of certain equity and debt financings. The fair value of warrants is determined using the Black-Scholes option-pricing model using assumptions regarding volatility of our common share price, remaining
life of the warrant, and risk-free interest rates at each period end. There were no
Research and Development Expenses. Research and
development expenses, including personnel costs, allocated facility costs, lab supplies, outside services, contract laboratory costs related to manufacturing drug product, clinical trials and preclinical studies are charged to research and
development expense as incurred. The Company accounts for nonrefundable advance payments for goods and services that will be used in future research and development activities as expense when the service has been performed or when the goods have
been received. Our current NAVIGATE clinical trial is being supported by third-party contract research organizations, or CROs, and other vendors. We accrue expenses for clinical trial activities performed by CROs based upon the estimated amount
of work completed on each trial. For clinical trial expenses and related expenses associated with the conduct of clinical trials, the significant factors used in estimating accruals include the number of patients enrolled, the number of active
clinical sites, and the duration for which the patients have been enrolled in the trial. We monitor patient enrollment levels and related activities to the extent possible through internal reviews, review of contractual terms and correspondence
with CROs. We base our estimates on the best information available at the time. We monitor patient enrollment levels and related activities to the extent possible through discussions with CRO personnel and based our estimates of clinical trial
costs on the best information available at the time. However, additional information may become available to us which will allow us to make a more accurate estimate in future periods. In that event, we may be required to record adjustments to
research and development expenses in future periods when the actual level of activity becomes more certain.
Income Taxes. The Company accounts for income
taxes in accordance with the accounting rules that requires an asset and liability approach to accounting for income taxes based upon the future expected values of the related assets and liabilities. Deferred income tax assets and liabilities are
determined based on the differences between the financial reporting and tax bases of assets and liabilities and for tax loss and credit carry forwards and are measured using the expected tax rates estimated to be in effect when such basis
differences reverse. Valuation allowances are established, if necessary, to reduce the deferred tax asset to the amount that will, more likely than not, be realized.
Concentration of Credit Risk. Financial
instruments that subject the Company to credit risk consist of cash and cash equivalents. The Company maintains cash and cash equivalents and certificates of deposit with well-capitalized financial institutions. At times, those amounts may exceed
federally insured limits. The Company has not experienced any losses in such accounts and believes it is not exposed to significant credit risk beyond the normal credit risk associated with commercial banking relationships. The Company has no
other significant concentrations of credit risk.
Stock-Based Compensation. Stock-based
compensation cost is measured at the grant date based on the fair value of the award and is recognized as expense over the service period, which generally represents the vesting period. For awards that have performance-based vesting conditions
the Company recognizes the expense over the estimated period that the awards are expected to be earned. The Company generally uses the Black-Scholes option-pricing model to calculate the grant date fair value of stock options. The expense
recognized over the service period is required to include an estimate of the awards that will be forfeited.
Recent Accounting Standards. In August 2020, the Financial Accounting
Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) 2020-06, Debt — Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging — Contracts in Entity’s Own Equity (Subtopic 815-40) (“ASU 2020-06”) to
simplify accounting for certain financial instruments. ASU 2020-06 eliminates the current models that require separation of beneficial conversion and cash conversion features from convertible instruments and simplifies the derivative scope
exception guidance pertaining to equity classification of contracts in an entity’s own equity. The new standard also introduces additional disclosures for convertible debt and freestanding instruments that are indexed to and settled in an entity’s
own equity. ASU 2020-06 amends the diluted earnings per share guidance, including the requirement to use the if-converted method for all convertible instruments. ASU 2020-06 is effective January 1, 2022 and should be applied on a full or modified
retrospective basis, with early adoption permitted beginning on January 1, 2021. The Company adopted ASU 2020-06 effective January 1, 2022. The adoption of ASU 2020-06 did not have an impact on the Company’s financial statements. See Notes 5 and 10
for disclosures related to convertible borrowings.
| 3. |
Property and Equipment
|
Property and equipment consist of the following at December 31:
|
2023
|
2022
|
|||||||
|
(in thousands)
|
||||||||
|
Leasehold improvements
|
$
|
|
$
|
|
||||
|
Computer and office equipment
|
|
|
||||||
|
Furniture and fixtures
|
|
|
||||||
|
Total
|
|
|
||||||
|
Less accumulated depreciation and amortization
|
(
|
)
|
(
|
)
|
||||
|
Property and equipment — net
|
$
|
|
$
|
|
||||
Depreciation and amortization expense for the years ended December 31, 2023 and 2022 was $0 and $0 , respectively.
| 4. |
Accrued Expenses
|
Accrued expenses consist of the following at December 31:
|
2023
|
2022
|
|||||||
|
(in thousands)
|
||||||||
|
Legal and accounting fees
|
$
|
|
$
|
|
||||
|
Accrued compensation
|
|
|
||||||
|
Lease liability
|
|
|
||||||
|
Accrued research and development costs and other
|
|
|
||||||
|
|
$
|
|
$
|
|
||||
| 5. |
Convertible Notes Payable – Related Party
|
On April 16, 2021, the Company and Richard E. Uihlein entered into a debt financing arrangement whereby Mr. Uihlein loaned $10,000,000 to Company. In consideration for the loan, the Company issued a convertible promissory note (the “April 2021 Note”) in the principal amount of ten million dollars.
The April 2021 Note has a maturity date of April 16, 2025 ,
is prepayable at the option of the Company in whole or in part at any time and is convertible into the Company’s common stock at a conversion price equal to $5.00 per share at the option of the noteholder. The April 2021 Note bears interest at the rate of two percent (2 %)
per annum, compounded annually with an effective interest rate of approximately 3 %. For the years ended December 31, 2023 and 2022,
approximately $207,000 and $200,000 ,
respectively, of interest expense was accrued and included with the principal in the financial statements.
The April 2021 Note also includes a contingent interest component that requires the Company to pay additional interest at a rate of two and one-half percent (2.5 %) per quarter (10 % per annum) (the
“Additional Interest”) beginning on the date of issuance of this Note and ending on the maturity date, provided however, that such payment is only required if and only if the noteholder elects to convert the entire balance of the April 2021 Note
into the Company’s common stock on or prior to maturity. As the contingent event is not based on creditworthiness, such feature is not clearly and closely related to the host instrument and accordingly must be bifurcated and recognized as a
derivative liability and a debt discount on the April 2021 Note at its inception. The fair value of the contingent interest derivative liability was $420,000
at note inception (April 16, 2021). The fair value of the contingent interest derivative liability was $431,000 and $249,000 and December 31, 2023 and 2022, respectively, and is recognized as a derivative liability in the consolidated balance sheet. The change in the
fair value of the derivative liability for the years ended December 31, 2023 and 2022 of $182,000 and ($246,000 ), respectively, was charged to other expense/(income) for the years ended December 31, 2023 and 2022. The amortization of the original $420,000 debt discount of $105,000 and $105,000 was recorded as additional interest expense for the years ended December 31, 2023 and 2022, respectively.
On September 17, 2021, the Company and Mr. Uihlein entered into a loan agreement in the aggregate of $20,000,000 (the “Loan Agreement”) to be funded in two closings
and evidenced by two separate unsecured convertible promissory notes. The first of the two promissory notes was also executed and delivered on September 17, 2021, (the “September 2021 Note”) to evidence the first loan in the principal amount of $10,000,000 . The second closing under the Loan Agreement for the remaining $10,000,000 occurred on December 20, 2021.
The September 2021 Note has a maturity date of September 17, 2025 ,
is prepayable at the option of the Company in whole or in part at any time and is convertible into the Company’s common stock at a conversion price equal to $8.64 per share at the option of the noteholder. The September 2021 Note bears interest at the rate of two percent (2 %)
per annum, compounded annually with an effective interest rate of approximately 3 %. For the years ended December 31, 2023 and 2022,
approximately $206,000 and $200,000 ,
respectively, of interest expense was accrued and included with the principal in the financial statements.
The September 2021 Note also includes a contingent interest component that requires the Company to pay additional interest at a rate of two and one-half percent (2.5 %) per quarter (10 % per annum) (the
“Additional Interest”) beginning on the date of issuance of this Note and ending on the maturity date, provided however, that such payment is only required if and only if the noteholder elects to convert the entire balance of the September 2021
Note into the Company’s common stock on or prior to maturity. As the contingent event is not based on creditworthiness, such feature is not clearly and closely related to the host instrument and accordingly must be bifurcated and recognized as a
derivative liability and a debt discount on the September Note at its inception. The fair value of the contingent interest derivative liability was $433,000
at note inception (September 17, 2021). The fair value of the contingent interest derivative liability was $169,000 and $109,000 and December 31, 2023 and 2022, respectively, and is recognized as a derivative liability in the consolidated balance sheet. The change in the
fair value of the derivative liability for the years ended December 31, 2023 and 2022 of $60,000 and ($141,000 ), respectively, was recorded to other expense/(income) for the years ended December 31, 2023 and 2022. The amortization of the original $433,000 debt discount of $108,000 and $108,000 was recorded as additional interest expense for the years ended December 31, 2023 and 2022, respectively.
On December 20, 2021, the second of the two promissory
notes under the Loan Agreement was executed and delivered, (the “December 2021 Note”) to evidence the second loan in the principal amount of $10,000,000 .
The December 2021 Note has a maturity date of December 20, 2025 , is prepayable at the option of the Company in whole or in part at any
time and is convertible into the Company’s common stock at a conversion price equal to $5.43 per share at the option of the noteholder.
The December Note bears interest at the rate of two percent (2 %) per annum, compounded annually with an effective interest rate of
approximately 3 %. For the years ended December 31, 2023 and 2022, approximately $204,000 and $200,000 , respectively, of interest expense was accrued and
included with the principal in the financial statements.
The December 2021 Note also includes a contingent interest component that requires the Company to pay additional interest at a rate of two and one-half percent (2.5 %) per quarter (10 % per annum) (the
“Additional Interest”) beginning on the date of issuance of this Note and ending on the maturity date, provided however, that such payment is only required if and only if the noteholder elects to convert the entire balance of the December 2021 Note
into the Company’s common stock on or prior to maturity. As the contingent event is not based on creditworthiness, such feature is not clearly and closely related to the host instrument and accordingly must be bifurcated and recognized as a
derivative liability and a debt discount on the December Note at its inception. The fair value of the contingent interest derivative liability was $415,000
at note inception (December 20, 2021). The fair value of the contingent interest derivative liability was $404,000 and $214,000 at December 31, 2023 and 2022, respectively, and is recognized as a derivative liability in the consolidated balance sheet. The change in the
fair value of the derivative liability for the years ended December 31, 2023 and 2022 of $190,000 and ($170,000 ), respectively was recorded to other expense/(income) for the years ended December 31, 2023 and 2022. The amortization of the original $415,000 debt discount of $104,000 and $104,000 was recorded as additional interest expense for the years ended December 31, 2023 and 2022, respectively.
The Company’s contractual cash obligations related to the outstanding convertible notes payable is a repayment of the April 2021 Note of the $10,000,000 plus accrued interest on April 16, 2025 and a repayment of the September 2021 Note of the $10,000,000 plus accrued interest on September 17, 2025 and a repayment of the December 2021 Note of the $10,000,000 plus accrued interest on December 30, 2025, unless converted at the option of the noteholder.
| 6. |
Fair Value of Financial Instruments
|
There were no
Level 3 assets and liabilities measured and recorded at fair value on a recurring basis at December 31, 2023 and 2022 were as follows:
|
|
December 31, 2023
|
December 31, 2022
|
||||||
|
Derivative Liability – Contingent Interest April Note
|
$
|
|
$
|
|
||||
|
Derivative Liability – Contingent Interest September Note
|
$
|
|
$
|
|
||||
|
Derivative Liability – Contingent Interest December Note
|
$
|
|
$
|
|
||||
The April 2021 Note derivative liability – contingent interest was valued using a Monte Carlo Geometric Brownian Stock Path Model. The key assumptions used in the model
at December 31, 2023 and 2022 are as follows:
|
December 31, 2023
|
December 31, 2022
|
|||||||
|
Stock Price
|
$
|
|
$
|
|
||||
|
Conversion Price of conversion feature
|
$
|
|
$
|
|
||||
|
Term
|
|
|
||||||
|
Risk Free Interest Rate
|
|
%
|
|
%
|
||||
|
Credit Adjusted Discount Rate
|
|
%
|
|
%
|
||||
|
Volatility
|
|
%
|
|
%
|
||||
|
Dividend Rate
|
|
%
|
|
%
|
||||
The roll forward of the April 2021 Note derivative liability – contingent interest is as follows:
|
Balance – December 31, 2021
|
$
|
|
||
|
Fair Value Adjustment
|
(
|
)
|
||
|
Balance – December 31, 2022
|
|
|||
| Fair Value Adjustment | ||||
| Balance – December 31, 2023 | $ |
The September 2021 Note derivative liability – contingent interest was valued using a Monte Carlo Geometric Brownian Stock Path Model. The key assumptions used in the
model at inception, and at December 31, 2023 and 2022 are as follows:
|
December 31, 2023
|
December 31, 2022
|
|||||||
|
Stock Price
|
$
|
|
$
|
|
||||
|
Conversion Price of conversion feature
|
$
|
|
$
|
|
||||
|
Term
|
||||||||
|
Risk Free Interest Rate
|
|
%
|
|
%
|
||||
|
Credit Adjusted Discount Rate
|
|
%
|
|
%
|
||||
|
Volatility
|
|
%
|
|
%
|
||||
|
Dividend Rate
|
|
%
|
|
%
|
||||
The roll forward of the September 2021 Note derivative liability – contingent interest is as follows:
|
Balance – December 31, 2021
|
$
|
|
||
|
Fair Value Adjustment
|
(
|
)
|
||
|
Balance – December 31, 2022
|
|
|||
| Fair Value Adjustment | ||||
| Balance – December 31, 2023 | $ |
The December 2021 Note derivative liability – contingent interest was valued using a Monte Carlo Geometric Brownian Stock Path Model. The key assumptions used in the
model at inception, and at December 31, 2023 and 2022 are as follows:
|
December 31, 2023
|
December 31, 2022
|
|||||||
|
Stock Price
|
$
|
|
$
|
|
||||
|
Conversion Price of conversion feature
|
$
|
|
$
|
|
||||
|
Term
|
|
|
||||||
|
Risk Free Interest Rate
|
|
%
|
|
%
|
||||
|
Credit Adjusted Discount Rate
|
|
%
|
|
%
|
||||
|
Volatility
|
|
%
|
|
%
|
||||
|
Dividend Rate
|
|
%
|
|
%
|
||||
The roll forward of the December 2021 Note derivative liability – contingent interest is as follows:
|
Balance – December 31, 2021
|
$
|
|
||
|
Fair Value Adjustment
|
(
|
)
|
||
|
Balance – December 31, 2022
|
|
|||
| Fair Value Adjustment | ( |
) | ||
| Balance – December 31, 2023 | $ |
| 7. |
Stockholders’ Equity
|
At December 31, 2022, the Company had 150,000,000
shares of common stock and 20,000,000 undesignated shares authorized. As of December 31, 2023, 1,742,500 shares have been designated for Series A 12% Convertible Preferred Stock, 900,000 shares have been designated for Series B-1 Convertible Preferred Stock, 2,100,000 shares have
been designated for Series B-2 Convertible Preferred Stock, 1,000 shares have been designated for Series C Super Dividend Convertible
Preferred Stock, 2,508,000 shares have been designated for Series B-3 Convertible Preferred Stock, 12,748,500 have been designated as common stock and no shares remain undesignated. All issued and outstanding shares of Series B-1, Series B-2 and
Series B-3 Preferred Stock were converted into Common Stock on January 19, 2019.
2020 At Market Issuance of Common Stock
On May 11, 2020, the Company entered into an At Market Issuance Sales Agreement (the “2020 At Market Agreement”) with a sales agent under which the Company may issue
and sell shares of its common stock having an aggregate offering price of up to $40.0 million from time to time through the sales agent.
Sales of the Company’s common stock through the sales agent, if any, will be made by any method that is deemed an “at the market” offering as defined by the U.S. Securities and Exchange Commission. The Company will pay to the sales agent a
commission rate equal to 3.0 % of the gross proceeds from the sale of any shares of common stock sold through the sales agent under the
2020 At Market Agreement. There were no
Series A 12 % Convertible Preferred
Stock — February 4, 2008 Private Placement
On February 4, 2008, the Company closed a private placement begun in October 2007 of its Series A 12 % Convertible Preferred Stock (“Series A”) and related warrants. In this transaction, the Company sold units of securities at $6.00 per unit, each unit comprised of (i) one share of Series A
Preferred, (ii) a warrant to purchase one share of common stock for $9.00 , and (iii) a warrant to purchase one share of common stock for
$12.00 . Each share of the Series A is entitled to dividends at the rate of 12 % per annum payable at the Company’s option in cash or shares of common stock valued at the higher of $6.00 per share or 100 % of the value weighted average price of
the Company’s share price for the 20 consecutive trading days prior to the applicable dividend payment date. Dividends are payable
semi-annually on March 30 and September 30. The dividend paid on the initial dividend payment date is calculated from the date the Company deposited each subscription advance.
The shares of Series A are entitled to vote as a class with the Company’s common stock and each share of Series A is convertible at any time to one-sixth of a share
of common stock, subject to adjustment in the event of a stock dividend, stock split or combination, reclassification or similar event. The Company has the right to require conversion if the closing price of the common stock exceeds $18.00 for 15 consecutive trading days
and a registration statement covering the resale of the shares of common stock issuable upon conversion of the Series A is then in effect. Each warrant is exercisable solely for cash beginning August 3, 2008 and expired on February 4, 2012. The
exercise price of each warrant is adjustable in the event of a stock split or stock combination, capital reorganization, merger or similar event.
In 2023, 25,000 shares of Series A were converted into
4,257 shares of common stock. In 2022, 42,500
shares of Series A were converted into 7,287 shares of common stock. Prior to 2021, a total of 465,000 shares of Series A had been converted into 73,865 shares
of common stock.
Series C 6 % Super Dividend Redeemable
Convertible Preferred Stock
On December 29, 2010, the Company designated and authorized the sale and issuance of up to 1,000 shares of Series C Super Dividend Redeemable Convertible Preferred Stock (“Series C”) with a par value of $0.01 and a stated value equal to $10,000 (the “Stated Value”).
On December 30, 2010, the Company sold and issued 212
shares of Series C at a price of $10,000 per share for gross proceeds of $2,120,000 . The Company incurred $47,000 of cash transaction costs
resulting in net cash proceeds of $2,073,000 . In addition, the Company issued 500 warrants exercisable at $7.20 to a placement agent which had
a de minimis value. Additionally, in January 2011, the Company sold and issued 13 shares of Series C at a price of $10,000 per share for gross proceeds of $130,000 .
The terms of the Series C are as follows:
Conversion Rights. Each holder of Series C may
convert all, but not less than all, of his Series C shares plus accrued and unpaid dividends into Common Stock at the price of $6.00
per share of Common Stock (“Conversion Price”), such that approximately 1,667 shares of Common Stock will be issued per each converted
share of Series C (accrued and unpaid dividends will be issued as additional shares). At December 31, 2018 and 2017, the 176 293,340 shares of Common Stock.
Subject to the continuing obligation to pay post conversion dividends, the Company may convert all, but not less than all, of the Series C (plus all accrued and
unpaid dividends) into Common Stock, at the Conversion Price, upon such time that the closing price of the Common Stock is no less than $18.00
per share for 15 consecutive trading days.
Dividends. Holders of Series C shall be
entitled to receive cumulative non-compounding dividends at the rate per share of Series C equal to the greater of (i) 6 % per annum of
the Stated Value (also defined as the “Floor”) or (ii) 2.5 % of net sales until the total dividends paid is equal to the initial
investment and 1.25 % of net sales thereafter. The maximum amount each Series C shareholder will receive in dividend payments is equal
to $100,000 (the “Maximum Payout”). For purposes of this dividend calculation, net sales shall mean gross revenues actually received by
the Company, from the sale or licensing of the product DAVANAT® (GM-CT-01), less chargebacks, returns, expenses attributable to product recalls, duties, customs,
sales tax, freight, insurance, shipping expenses, allowances and other customary deductions.
The dividend shall be payable in arrears semiannually on March 31 and September 30, beginning with the first such date after the original issue date; provided,
however, that all dividends and all other distributions shall cease, and no further dividends or other distributions shall be paid, in respect of each share of Series C from and after such time that the Maximum Payout has been paid in respect of
such share of Series C. Such dividends shall be payable at the Company’s option either in cash or in duly authorized, fully paid and non-assessable shares of Common Stock valued at the higher of (i) $3.00 per share or (ii) the average of the Common Stock trading price for the ten (10 )
consecutive trading days ending on the trading day that is immediately prior to the dividend payment date.
Series C Post Conversion Dividend Right. In the
event that any share of Series C is converted into Common Stock before the Maximum Payout is paid in respect of such converted share of Series C, then the holder shall have the right to continue to receive dividends in respect of such converted
share of Series C equal to the remaining payout (the “Series C Preferred Stock Post Conversion Dividend Right”) which shall be equal to the Maximum Payout less the cumulative dividends received through the conversion date. One share of Series C
Preferred Stock Post Conversion Dividend Right shall be issued for each such converted share of Series C. The holder of each Series C Preferred Stock Post Conversion Dividend Right shall receive the remaining payout on an equal basis and in
conjunction with the then outstanding shares of Series C and all the other then outstanding Series C Post Conversion Dividend Rights, in the same manner and subject to the same terms and conditions as applicable to the payment of dividends on
each share of Series C, except that for purposes of calculating the dividend the Floor shall not apply. The Series C Preferred Stock Post Conversion Dividend Right shall have no stated value, liquidation preference or right to any dividends or
distributions other than the remaining payout. The Series C Preferred Stock Post Conversion Right is subject to redemption in the same manner as outstanding Series C shares.
At the date of issuance, the Series C have an embedded dividend right to continue to receive dividend payments after conversion to common stock (the Series C Post
Conversion Dividend Right) which requires bifurcation. The value of this post conversion dividend right on the date of issuance was determined to be de minimis due to the fact that the payment of a dividend stream other than the 6 % dividend and conversion of Series C prior to the Company achieving sales of GM-CT-01 was deemed improbable at that time. Upon a conversion of the
Series C, the Company will be required to record a liability and the related expense during the period of conversion.
In July 2011, 5 shares of Series C were converted into 8,334
shares of common stock and 5 Series C Post Conversion Dividend Rights (Dividend Rights) were issued. In 2013, 24 shares of Series C were
converted into 40,193 shares of common stock and 24 Dividend Rights were issued. In 2014, 20 shares of Series C were converted into 33,756 shares of
common stock and 20 Dividend Rights were issued. Per the terms of the Series C, these Dividend Rights shall continue to participate in
dividends, however the Floor shall not apply. At December 31, 2016 and 2015, these Dividend Rights were determined to have a de minimis value, as the payment of a dividend is considered improbable at this time. The Company will continue to evaluate
and assess the Series C Post Conversion Dividend Right for each reporting period.
Liquidation Rights. In the event of any
liquidation, dissolution or winding up of the Company, either voluntarily or involuntarily, the holders of Series C will receive $10,000
per share plus accrued and unpaid dividends, payable prior and in preference to any distributions to the holders of Common Stock but after and subordinate to the Series A 12 % Convertible Preferred Stock (“Series A”), Series B-1 and Series B-2, subject to the Maximum Payout.
Redemption. Upon a sale of the Company, the
Company shall redeem all of the then outstanding shares of Series C and Series C Preferred Stock Post Conversion Rights within thirty (30 )
days after the transaction constituting the sale of the Company is closed and such closing is fully funded. The price to redeem a share of Series C and each redeemed Series C Preferred Stock Post Conversion Redemption Right shall be equal to (i)
(A) the applicable return on investment (“ROI”) percentage, multiplied by (B) $10,000 , minus (ii) the cumulative dividends received
through the redemption date. The redemption price shall be payable at the Company’s option either in cash or in shares of common stock valued at the higher of (i) $3.00 per share or (ii) the average market price for the consecutive trading days ending
immediately prior to the date of redemption. The ROI Percentage shall mean the percentage that applies as of the redemption date, as follows:
ROI Percentage
|
|
before the second anniversary of the date of issuance;
|
|
|
on or after the second anniversary of the date of issuance, but before the third anniversary of the date of issuance;
|
|
|
on or after the third anniversary of the date of issuance, but before the fourth anniversary of the date of issuance;
|
|
|
on or after the fourth anniversary of the date of issuance, but before the fifth anniversary of the date of issuance;
|
|
|
on or after the fifth anniversary of the date of issuance, but before the sixth anniversary of the date of issuance;
|
|
|
on or after the sixth anniversary of the date of issuance, but before the seventh anniversary of the date of issuance;
|
|
|
on or after the seventh anniversary of the date of issuance, but before the eighth anniversary of the date of issuance; and
|
|
|
on or after the eighth anniversary of the date of issuance, but before the ninth anniversary of the date of issuance.
|
Due to the redemption feature, the Company has presented the Series C outside of permanent equity, in the mezzanine of the consolidated balance sheets at December 31,
2023 and 2022. At December 31, 2023, the Series C redemption value was $8,177,000 .
Voting Rights. The Series C shares have no voting rights.
| 8. |
Warrants
|
Warrant activity is summarized as follows:
|
Warrants
|
Weighted average
exercise price
|
|||||||
|
Outstanding at December 31, 2021
|
|
$
|
|
|||||
|
Issued
|
|
|||||||
|
Exercised
|
|
|||||||
|
Canceled/Expired
|
|
|||||||
|
Outstanding at December 31, 2022
|
|
$
|
|
|||||
|
Issued
|
|
|||||||
|
Exercised
|
(
|
)
|
||||||
|
Canceled/Expired
|
(
|
)
|
||||||
|
Outstanding at December 31, 2023
|
|
$
|
|
|||||
The weighted average expiration of the warrants outstanding as of December 31, 2023 is 4.2 years.
On September 22, 2023, the Company executed an agreement with 10X Fund L.P., and 10X Capital Management LLC (which had been a related party due to having nominated a
board member) whereby the Company extended the exercise date for a total of 5,732,253 common stock purchase warrants to the earliest of
(a) September 30, 2026, (b) thirty days after 10X fails to vote all of the shares of common stock in the Company then owned by it in the
manner recommended by the board of directors of the Company in any vote of the stockholders of the Company; or (c) thirty days after the
shares of common stock of the Company have a closing price of $6.00 or greater for 10 consecutive trading days. Previously, the common stock purchase warrants exercise dates would have expired at various dates from September 22, 2023 through May 10, 2025.
Also pursuant to the terms of the agreement, the right of the 10X Fund L.P. to nominate a member of the board of directors was eliminated, and the cashless exercise
option in certain of the common stock purchase warrants was deleted. Finally, a beneficial ownership limitation provision was added in the Series B Warrants, which would have the effect of decreasing 10X Fund’s beneficial ownership to 9.99 % and would bar the voluntary exercise of any warrants that would result in 10X Fund’s ownership beyond 9.99 % without at least 61 days’ prior notice from 10X Fund.
The Company has accounted for the modified terms of the warrants pursuant to ASC 815, Derivatives and Hedging, whereby the Company has recognized a deemed dividend for
the change in fair value of the warrants immediately before and immediately after the modification. In September 2023, the Company recognized a non cash deemed dividend of $3,619,000 related to the extension of the 5,732,253 warrants. The following
assumptions were used to value the extension of the warrants immediately before and immediately after the modification: a) immediately before the modification — an expected life range of 0 to 1.63 years, volatility range of 71 % to 77 %%, risk free interest rate range of 5.37 % and zero dividends and; b)
immediately following the modification — an expected life of 3 years, volatility of 79 %, risk free interest rate range of 4.59 % and zero dividends.
The following table summarizes information with regard to outstanding warrants issued in connection with equity and debt financings and consultants as of December 31,
2023.
| Issued in Connection With |
Number
Outstanding
|
Exercise
Price
|
Exercisable Date | Expiration Date | ||||||
|
|
|
$ | ||||||||
|
|
$ |
|||||||||
|
|
|
$ | |
|
||||||
|
|
$ |
|||||||||
|
|
|
$ | |
|||||||
|
|
$ |
|||||||||
|
|
|
$ |
|
|||||||
|
|
$ |
|||||||||
|
|
|
$ |
|
|
||||||
|
|
$ |
|||||||||
|
|
|
$
|
|
|
|
|||||
|
|
$ |
|||||||||
|
|
|
$
|
|
|
|
|||||
|
|
$ |
|||||||||
|
|
|
$
|
|
|
|
|||||
|
|
$ |
|||||||||
|
|
|
$
|
|
|
|
|||||
|
|
$ |
|||||||||
|
|
|
$
|
|
|
|
|||||
|
|
$ |
|||||||||
|
|
|
$
|
|
|
|
|||||
|
|
|
$
|
|
|
|
|||||
|
|
|
$
|
|
|
|
|||||
|
|
|
$
|
|
|
|
|||||
|
|
|
$
|
|
|
|
|||||
|
2018 and 2017 Warrants issued for services
|
|
$
|
|
Various dates in 2017
and 2018
|
Various dates in 2024
and 2025
|
|||||
|
|
|
$
|
|
|
|
|||||
|
|
$ |
|||||||||
|
|
$ |
|||||||||
|
Total Outstanding Warrants
|
|
|||||||||
| 9. |
Stock-Based Compensation
|
Summary of Stock-Based Compensation Plans
At December 31, 2023, the Company has a stock-based compensation plan where the Company’s common stock has been made available for equity-based incentive grants as part
of the Company’s compensation programs. In December 2019, the Company adopted the 2019 Omnibus Equity Incentive Plan (the “2019 Plan”) which provided originally for the issuance of up to 4,000,000 shares of the Company’s common stock, subsequently increased to 7,000,000
in December 2021, and increased to 10,000,000 in December 2023 in the form of options, stock appreciation rights, restricted stock and
other stock-based awards to employees, officers, directors, consultants and other eligible persons. At December 31, 2023, 3,954,727 shares
were available for future grant under the 2019 Plan. Also, the Company previously had the 2009 Incentive Compensation Plan (the “2009 Plan”) which, after amendments, provided for issuance of up to 6,733,334 shares of the Company’s common stock in the form of options, stock appreciation rights, restricted stock and other stock-based awards to employees, officers, directors,
consultants and other eligible persons. Provisions of the 2009 Plan stipulated that no grants could be made after February 2019; however, grants made prior to that date remain outstanding for their legal term.
Stock-Based Compensation
Following is the stock-based compensation expense related to common stock options, restricted common stock, common stock warrants and deferred stock units:
|
Year Ended
December 31,
|
||||||||
|
2023
|
2022
|
|||||||
|
Research and development
|
$
|
|
$
|
|
||||
|
General and administrative
|
|
|
||||||
|
Total stock-based compensation expense
|
$
|
|
$
|
|
||||
The fair value of the options granted is determined using the Black-Scholes option-pricing model. The following weighted average assumptions were used:
|
2023
|
2022
|
|||||||
|
Risk-free interest rate
|
|
%
|
|
%
|
||||
|
Expected life of the options
|
|
|
||||||
|
Expected volatility of the underlying stock
|
|
%
|
|
%
|
||||
|
Expected dividend rate
|
|
%
|
|
%
|
||||
As noted above, the fair value of stock options is determined by using the Black-Scholes option pricing model. For all options granted since January 1, 2006 the Company
has generally used option terms of between 5 to 10 years, generally with 5 to 6 years representing the estimated life of options granted to employees. The volatility of the common stock is estimated using historical volatility over a period equal to the
expected life at the date of grant. The risk-free interest rate used in the Black-Scholes option pricing model is determined by reference to historical U.S. Treasury constant maturity rates with terms equal to the expected terms of the awards. An
expected dividend yield of zero is used in the option valuation model, because the Company does not expect to pay any cash dividends on
common stock in the foreseeable future. At December 31, 2023, the Company does not anticipate any option awards will be forfeited in the calculation of compensation expense due to the limited number of employees that receive stock option grants and
the Company’s historical employee turnover; however, any forfeitures will be accounted for as incurred.
The following table summarizes the stock option activity in the stock-based compensation plans:
|
Number of
Shares
|
Weighted
Average
Exercise
Price
|
Weighted
Average
Remaining
Contractual
Life
(in years)
|
Aggregate
Intrinsic Value
(in thousands)
|
|||||||||||||
|
Outstanding, December 31, 2021
|
|
$
|
|
|||||||||||||
|
Granted
|
|
|
||||||||||||||
|
Forfeited/Cancelled
|
(
|
)
|
|
|||||||||||||
|
Exercised
|
|
|
||||||||||||||
|
Outstanding, December 31, 2022
|
|
$
|
|
|||||||||||||
|
Granted
|
|
|
||||||||||||||
|
Forfeited/Cancelled
|
(
|
)
|
|
|||||||||||||
|
Exercised
|
|
|
||||||||||||||
|
Outstanding, December 31, 2023
|
|
$
|
|
|
$ |
|
||||||||||
|
Exercisable, December 31, 2023
|
|
$ |
|
$ |
|
|||||||||||
The aggregate intrinsic value in the table above represents the total pre-tax amount, net of exercise price, which would have been received by option holders if all
option holders had exercised all options with an exercise price lower than the market price on December 31, 2023, based on the closing price of the Company’s common stock of $1.66 on that date.
The weighted-average grant-date fair values of options granted during 2023 and 2022 were $0.85 and $1.31 , respectively. As of December 31, 2023 and 2022, there were
unvested options to purchase 1,792,080 and 2,194,166
shares of common stock, respectively. Total expected unrecognized compensation cost related to such unvested options is $684,000 at
December 31, 2023, which is expected to be recognized over a weighted-average period of 1.45 years.
During the years ended December 31, 2023 and 2022, 1,119,168
and 1,452,918 options became vested, respectively. The total grant date fair value of options vested during the years ended December 31,
2023 and 2022 was $1,384,284 and $2,382,842 ,
respectively.
The following table summarizes additional information regarding outstanding and exercisable options under our stock-based compensation plans at December 31, 2023:
|
Options Outstanding
|
Options Exercisable
|
||||||||||||||||||||
|
Exercise
Price (Range)
|
Number of
Shares
|
Weighted
Average
Remaining
Contractual
Life
|
Weighted
Average
Exercise
Price
|
Number of
Shares
|
Weighted
Average
Exercise
Price
|
||||||||||||||||
|
(in years)
|
|||||||||||||||||||||
|
$
|
|
|
$
|
|
|
$
|
|
||||||||||||||
|
$
|
|
|
|
|
|
||||||||||||||||
|
$
|
|
|
|
|
|
||||||||||||||||
|
$
|
|
|
|
|
|
||||||||||||||||
|
$
|
|
|
|
|
|
||||||||||||||||
|
|
|
$
|
|
|
$
|
|
|||||||||||||||
Restricted Stock Issuances
In January 2022, one director elected to take a restricted stock grant in lieu of cash retainers for 2022. A total of 17,677 shares of restricted stock valued at approximately $35,000
was amortized to expense on a straight-line basis until December 31, 2022 when the stock vested in full.
In January 2023, one director elected to take a restricted stock grant in lieu of cash retainers for 2022. A total of 36,036 shares of restricted stock valued at approximately $40,000
was amortized to expense on a straight-line basis until December 31, 2023 when the stock vested in full.
Deferred Stock Units
In September 2020, the Company entered into an employment agreement with its new Chief Executive Officer whereby 20 % of his base salary and performance bonuses will be paid in cash, and 80 %
will be paid in the form of deferred stock units (“DSUs”) through December 31, 2022 in accordance with the terms and subject to the provisions set forth in the DSU Agreement. DSUs credited to Mr. Lewis as of any date shall be fully vested and
nonforfeitable at all times. Pursuant to an amendment to the DSU Agreement in July
2022, the Company shall issue the
shares earned through December 31, 2022 underlying the outstanding whole number of DSUs credited to Mr. Lewis as follows: twenty five percent
shall be issued on March 1, 2023, fifty percent shall be issued on March 1, 2024 and twenty five percent shall be issued on September 1, 2028. On March 1, 2023, twenty five percent of the DSU’s were issued to Mr. Lewis in accordance with the DSU Agreement. A total of 183,900 shares were
due to be issued; however, 75,529 shares were withheld to cover income tax withholding of $156,345 resulting in 108,371 shares actually issued.
Additionally, a 2023 DSU Agreement was executed in July 2022, whereby Mr. Lewis would continue to receive 20 % of salary in cash and 80 % in DSUs for 2023. The shares under the 2023 DSU Agreement are to be issued fifty percent on March 1, 2025 and fifty percent on January 5,
2026.
For the year ended December 31, 2023, approximately $459,000 of his compensation was recorded as stock compensation expense
representing 275,126 shares of common stock to be issued under the DSU agreement with a weighted average grant date fair value of $1.71 per share. For the year ended December 31, 2022, approximately $418,000 of his compensation was recorded as stock compensation expense representing 268,596 shares
of common stock to be issued under the DSU agreement with a weighted average grant date fair value of $1.56 per share.
Also, Mr. Lewis’ bonus for the year ended December 31, 2022 of $210,000 (which was included in accrued compensation at December
31, 2022) was approved in January 2023 and represents 143,836 shares of common stock to be issued under the DSU agreement with a grant
date fair value of $1.46 per share. The $210,000
was reclassified from accrued compensation to additional paid in capital in January 2023. Mr. Lewis’ bonus for the year ended December 31, 2021 of $200,000
(which was included in accrued compensation at December 31, 2021) was approved in January 2022, and represents 103,627 shares of
common stock to be issued under the DSU agreement with a grant date fair value of $1.93 per share. The $200,000 was reclassified from accrued compensation to additional paid in capital in January 2022.
There is no unrecognized compensation expense related to the DSUs.
| 10. |
Convertible Line of Credit – Related Party
|
On July 25, 2022, the Company and Richard E. Uihlein (the “Lender”) entered into a Line of Credit Letter Agreement (the “Credit Agreement”), pursuant
to which the Lender shall provide the Company a line of credit of up to $60.0 million (the “Line of Credit”) to finance the Company’s
working capital needs. The Company may draw upon the Line of Credit through July 31, 2024.
Each advance made pursuant to the Credit Agreement shall be evidenced by an unsecured, convertible promissory note (individually, a “Promissory
Note,” and collectively, the “Promissory Notes”), and bear interest at the Applicable Federal Rate for short term loans, plus two (2 %)
percent. Principal and interest on the Promissory Notes are due on or before January 31, 2026 . Only with the consent of the Lender,
may the Promissory Notes be prepaid, in whole or in part, at any time without premium or penalty, but with interest on the amount or amounts prepaid.
At the election of Lender, the principal and accrued interest on Promissory Note(s) may be converted into the number of shares of the Company’s
Common Stock equal to the amount of principal and accrued interest on such Promissory Note divided by the price equal to the closing price of the Common Stock on the date of such Promissory Note, but in no event less than $3.00 per share.
In connection with the Credit Agreement, the Company agreed to issue the Lender warrants to purchase up to an aggregate of 1,700,000 shares of the Company’s common stock, par value $0.001 per share (collectively, the “Warrants”). Upon execution of the Credit Agreement, the Company issued the Lender a Warrant to purchase up to 500,000 shares of Company’s Common Stock at an exercise price of $5.00
per share, which Warrant is exercisable upon issuance. Further, pursuant to the Credit Agreement, the Company shall issue to the Lender additional Warrants to purchase up to the remaining 1,200,000 shares of the Company’s common stock, ratably, upon borrowings under the Credit Agreement, with exercise prices equal to 150 % of the closing price of the Company’s common Stock on the date of the Promissory Note evidencing such draw, but in no event more than $10.00 per share nor less than $3.00 per
share. The Warrants expire on July 31, 2029 .
The fair value of the 500,000
warrants vested at closing on July 25, 2022 was $738,000 at the date of issuance based on the following assumptions: an expected life
of 7 years, volatility of 92 %,
risk free interest rate of 3.19 % and zero
dividends. The fair value of the vested warrants was recorded in other assets (non-current) as a deferred financing cost and will be amortized on a straight-line basis from July 25, 2022 through January 31, 2026. Amortization for the years ended
December 31, 2023 and 2022 of $209,000 and $92,000 , respectively, was recorded as interest expense.
On December 19, 2022, the Company executed a $10
million Promissory Note under the Line of Credit. The interest rate on this draw is 6.46 % (Applicable Federal Rate for short term
loans on date of draw of 4.46 % plus 2 %).
The effective interest rate is approximately 7.1 %. Accrued interest on this draw was approximately $688,000 and $23,000 at December 31,
2023 and 2022, respectively. The principal and accrued interest is convertible at the option of the Lender at $3.00 per share. In
accordance with the Credit Agreement, the Company issued the Lender a Warrant to purchase up to 200,000 shares of Company’s Common
Stock at an exercise price of $3.00 per share, which Warrant is exercisable upon issuance.
The fair value of the 200,000
warrants vested at closing on December 19, 2022 was $160,780 at the date of issuance based on the following assumptions: an expected
life of 7 years , volatility of 91 %,
risk free interest rate of 4.06 % and zero
dividends. The proceeds were allocated between the Promissory Note and the warrants issued, and the amount allocated to the warrants was recorded as a debt discount netted against principal to be amortized on a straight-line basis, which is not
materially different than the effective interest method, from December 19, 2022 through January 31, 2026. Amortization for the years ended December 31, 2023 and 2022 of $51,000 and $2,000 , respectively, was recorded as interest expense.
On March 31, 2023, the Company executed an additional $10
million Promissory Note under the Line of Credit. The interest rate on this draw is 6.41 % (Applicable Federal Rate for short term
loans on date of draw of 4.41 % plus 2 %).
The effective interest rate is approximately 7.1 %. Accrued interest on this draw was approximately $491,000 at December 31, 2023. The principal and accrued interest is convertible at the option of the Lender at $3.00 per share. In accordance with the Credit Agreement, the Company issued the Lender a Warrant to purchase up to 200,000 shares of Company’s Common Stock at an exercise price of $3.26 per share, which Warrant is exercisable upon issuance.
The fair value of the 200,000
warrants vested at closing on March 31, 2023 was $296,680 at the date of issuance based on the following assumptions: an expected life
of 6.33 years, volatility of 88 %,
risk free interest rate of 3.94 % and zero
dividends. The proceeds were allocated between the Promissory Note and the warrants issued, and the amount allocated to the warrants was recorded as a debt discount netted against principal amortized on a straight-line basis, which is not
materially different than the effective interest method, from March 31, 2023 through January 31, 2026. Amortization for the year ended December 31, 2023 of $79,000 was recorded as interest expense.
On June 30, 2023, the Company executed an additional $10
million Promissory Note under the Line of Credit. The interest rate on this draw is 6.34 % (Applicable Federal Rate for short term
loans on date of draw of 4.34 % plus 2 %).
The effective interest rate is approximately 7.1 %. Accrued interest on this draw was approximately $321,000 at December 31, 2023. The principal and accrued interest is convertible at the option of the Lender at $3.00 per share. In accordance with the Credit Agreement, the Company issued the Lender a Warrant to purchase up to 200,000 shares of Company’s Common Stock at an exercise price of $3.00 per share, which Warrant is exercisable upon issuance.
The fair value of the 200,000
warrants vested at closing on June 30, 2023 was $179,920 at the date of issuance based on the following assumptions: an expected life
of 6.08 years, volatility of 85 %,
risk free interest rate of 3.59 % and zero
dividends. The proceeds were allocated between the Promissory Note and the warrants issued, and the amount allocated to the warrants was recorded as a debt discount netted against principal amortized on a straight-line basis, which is not
materially different than the effective interest method, from June 30, 2023 through January 31, 2026. Amortization for the year ended December 31, 2023 of $35,000 was recorded as interest expense.
On December 29, 2023, the Company executed an additional $10 million Promissory Note under the Line of Credit. The interest rate on this draw is 7.13 %
(Applicable Federal Rate for short term loans on date of draw of 5.13 % plus 2 %). The effective interest rate is approximately 7.5 %. The principal and
accrued interest is convertible at the option of the Lender at $3.00 per share. In accordance with the Credit Agreement, the Company
issued the Lender a Warrant to purchase up to 200,000 shares of Company’s Common Stock at an exercise price of $3.00 per share, which Warrant is exercisable upon issuance.
The fair value of the 200,000 warrants vested at closing on December 31, 2023 was $193,745 at the date of issuance based on the following assumptions: an expected life of 5.7
years, volatility of 79 %, risk free interest rate of 4.49 % and zero dividends. The proceeds were allocated between the
Promissory Note and the warrants issued, and the amount allocated to the warrants was recorded as a debt discount netted against principal amortized on a straight-line basis, which is not materially different than the effective interest method,
from December 29, 2023 through January 31, 2026.
The fair value
of warrants that vest in the future based on borrowings will be computed when those borrowings occur and amortized over the remaining period through January 31, 2026.
| 11. |
Loss Per Share
|
Basic net loss per common share is computed by dividing the net loss available to common stockholders by the weighted average number of common shares outstanding
during the period. For the years ended December 31, 2023 and 2022, as the Company was in a net loss position, the diluted loss per share computations for such periods did not assume the exercise of warrants and stock options or the conversion of
Convertible Notes, or the conversion of convertible preferred stock as they would have had an anti-dilutive effect on loss per share.
The following potentially dilutive securities have been excluded from the computations of diluted weighted average shares outstanding as of December 31, 2023 and 2022
as the inclusion thereof would have been anti-dilutive:
|
Year Ended
December 31,
|
||||||||
|
2023
(Shares)
|
2022
(Shares)
|
|||||||
|
Warrants to purchase shares of common stock
|
|
|||||||
|
Options to purchase shares of common stock
|
|
|||||||
|
Shares of common stock issuable upon conversion of convertible notes payable – related party
|
|
|||||||
|
Shares of common stock issuable upon conversion of convertible line of credit – related party
|
||||||||
|
Shares of common stock issuable upon conversion preferred stock
|
|
|||||||
|
|
||||||||
| 12. |
Commitments and Contingencies
|
Lease Commitments
The Company has one operating lease for its office
space which was amended effective March 1, 2022 for a term of 38 months with no residual value guarantees or material restrictive
covenants. The amended lease provided for free rent for the first of the lease and continues the security
deposit of $6,000 . In addition to base rental payments included in the contractual obligations table below, the Company is responsible
for our pro-rata share of the operating expenses for the building. Our lease cost for the years ended December 31, 2023 and 2022 was $44,000
and $44,000 , respectively, and is included in general and administrative expenses. As of December 31, 2023, the right to use lease asset
consisted of $53,000 and is included in . Also, at December 31, 2023, current lease liability of $46,000 is included in and the noncurrent lease liability of $20,000
is included in . As of December 31, 2022, the right to use lease asset
consisted of $86,000 and is included in . Also, at December 31, 2022, current lease liability of $40,000 is included in and the noncurrent lease liability of $66,000
is included in . The Company renewed its existing office space lease effective in February 2022
for 38 months at substantially the same terms.
Maturity of operating lease as of December 31, 2023 in thousands:
|
2024
|
$
|
|
||
| 2025 | ||||
|
Total
|
|
|||
|
Less imputed interest
|
|
|||
|
Present value of lease liability
|
$
|
|
The discount rate used in calculating the present value of the lease payments was 11 %.
Legal Proceedings
The Company records accruals for such contingencies to the extent that the Company concludes that their occurrence is probable and the related damages are estimable.
There are no pending legal proceedings.
Clinical Trial and Research Contingencies
The Company has entered into agreements with contractors for research and development activities to further its product candidates. The contracts generally may be
canceled at any time by providing thirty days ’ notice.
| 13. |
Galectin Sciences LLC
|
In January 2014, we created Galectin Sciences, LLC (the “LLC” or “Investee”), a collaborative joint venture co-owned by SBH Sciences, Inc. (“SBH”), to research and
develop small organic molecule inhibitors of galectin-3 for oral administration. The LLC was initially capitalized with a $400,000 cash
investment to fund future research and development activities, which was provided by the Company, and specific in-process research and development (“IPR&D”) contributed by SBH. The estimated fair value of the IPR&D contributed by SBH, on
the date of contribution, was $400,000 . Initially, the Company and SBH have a 50 % equity ownership interest in the LLC, with neither party having control over the LLC. Accordingly, from inception through the fourth quarter of 2014, the Company accounted for its
investment in the LLC using the equity method of accounting. Under the equity method of accounting, the Company’s investment was initially recorded at cost with subsequent adjustments to the carrying value to recognize additional investments in or
distributions from the Investee, as well as the Company’s share of the Investee’s earnings, losses and/or changes in capital. The estimated fair value of the IPR&D contributed to the LLC was immediately expensed upon contribution as there was
no alternative future use available at the point of contribution. The operating agreement provides that if either party does not desire to contribute its equal share of funding required after the initial capitalization, then the other party,
providing all of the funding, will have its ownership share increased in proportion to the total amount contributed from inception. In the fourth quarter of 2014, after the LLC had expended the $400,000 in cash, SBH decided not to contribute its share of the funding required. As a result, the Company contributed the $73,000 needed for the fourth quarter of 2014 expenses of the LLC and an additional $2,552,000
in total from 2015 through 2021. The Company contributed $561,000 and $213,000 for the LLC expenses (recorded in research and development expenses) in 2023 and 2022, and SBH has contributed a total of $711,000 since 2014. As of December 31, 2023, the Company’s ownership percentage in the LLC was 84.2 %. The Company accounts for the interest in the LLC as a consolidated, less than wholly owned subsidiary. Because the LLC’s equity is immaterial, the value of the non-controlling
interest is also deemed to be immaterial. The Company’s portion of the LLC’s net loss for 2014, prior to the change in accounting discussed previously, was $400,000 , which includes the Company’s proportionate share of the non-cash charge associated with the contributed IPR&D of $200,000 .
| 14. |
Income Taxes
|
The components of the net deferred tax assets are as follows at December 31:
|
2023
|
2022
|
|||||||
|
(in thousands)
|
||||||||
|
Operating loss carryforwards
|
$ |
$
|
|
|||||
|
Tax credit carryforwards
|
|
|||||||
|
Other temporary differences
|
|
|||||||
|
|
||||||||
|
Less valuation allowance
|
( |
) |
(
|
)
|
||||
|
Net deferred tax asset
|
$ |
$
|
|
|||||
The primary factors affecting the Company’s income tax rates were as follows:
|
2023
|
2022
|
|||||||
|
Tax benefit at U.S. statutory rates
|
(
|
%)
|
(
|
%)
|
||||
|
State tax benefit
|
(
|
%)
|
|
%
|
||||
|
Permanent differences
|
|
%
|
|
%
|
||||
|
Other
|
|
%
|
(
|
%)
|
||||
|
Changes in valuation allowance
|
|
%
|
|
%
|
||||
|
|
%
|
|
%
|
|||||
As of December 31, 2023, the Company has federal and state net operating loss carryforwards totaling $116,781,000 and $123,081,000 ,
respectively, which will never expire as a result of the 2017 Tax Act. As of December 31, 2023, the Company has federal and state net operating loss carryforwards totaling $127,039,000 and $102,003,000 respectively, which expire through . In addition, the Company has federal and state research and development credits of $5,214,000 and $1,262,000 , respectively, which expire through . Ownership changes, as defined by Section 382 of the Internal Revenue Code, may have limited the amount of net operating loss carryforwards that can
be utilized annually to offset future taxable income. Past and subsequent ownership changes could further affect the limitation in future years. Because of the Company’s limited operating history and its recorded losses, management has provided, in
each of the last two years, a 100 % valuation allowance against the Company’s net deferred tax assets.
The Company is subject to taxation in the U.S. and various states. Based on the history of net operating losses all jurisdictions and tax years are open for examination
until the operating losses are utilized or the statute of limitations expires. As of December 31, 2023 and 2022, the Company does not have any significant uncertain tax positions.
|
15.
|
Subsequent
Event
|
On March 29, 2024, the Company and Richard E. Uihlein (the “Lender”) entered into a Supplemental Line of Credit Letter
Agreement (the “Supplemental Credit Agreement”), pursuant to which the Lender shall provide the Company a line of credit of up to $10.0
million (the “Supplemental Line of Credit”) to finance the Company’s working capital needs. The Company may draw upon the Supplemental Line of Credit through March 31, 2025.
Each advance made pursuant to the Supplemental Credit Agreement shall be evidenced by an unsecured, convertible promissory
note (individually, a “Promissory Note,” and collectively, the “Promissory Notes”), and bear interest at the Applicable Federal Rate for short term loans, plus two (2 %) percent. Principal and interest on the Promissory Notes are due on or before March 31, 2026 .
Only with the consent of the Lender, may the Promissory Notes be prepaid, in whole or in part, at any time without premium or penalty, but with interest on the amount or amounts prepaid.
At the election of Lender, the principal and accrued interest on Promissory Note(s) may be converted into the number of shares
of the Company’s Common Stock equal to the amount of principal and accrued interest on such Promissory Note divided by the price equal to the closing price of the Common Stock on the date of such Promissory Note, but in no event less than $3.00 per share.
In connection with the Supplemental Credit Agreement, the Company agreed to issue the Lender warrants to purchase up to an
aggregate of 200,000 shares of the Company’s common stock, par value $0.001 per share (collectively, the “Warrants”). The Company shall issue to the Lender Warrants ratably, upon borrowings under the Supplemental Line of Credit, with exercise prices equal to 150 % of the closing price of the Company’s common Stock on the date of the Promissory Note evidencing such draw, but in no event more than $10.00 per share nor less than $3.00 per
share. The Warrants expire on July 31, 2029 .
F-22
Exhibit 4.11
September 22, 2023
10X Fund L.P.
545 Dutch Valley Road, N.E., Suite A
Atlanta, Georgia 30324
Attn: Jim Czirr
|
Re:
|
Amendment and Restatement of 5,732,253 Common Stock Purchase Warrants held by 10X Fund L.P. or 10X Capital Management LLC
|
Dear Jim:
This letter agreement (this “Letter Agreement”) confirms the agreement between Galectin Therapeutics, Inc. (the “Company”) and 10X Fund L.P. and 10X Capital Management LLC (collectively referred to as “10X”)
regarding certain amendments with respect to an aggregate of 5,732,253 Common Stock Purchase Warrants (the “Series B Warrants”) held by 10X, which are listed on Schedule A.
The Company has agreed to extend the maturity date of the Series B Warrants upon certain terms and conditions. Without giving effect to the extensions, the expiration date of each of the Warrants is set forth on Schedule
A. The extensions and the other terms and conditions that have been agreed to are set forth in amended and restated warrant agreements, executed contemporaneously herewith and which are listed on Schedule B (collectively, the
“Amended and Restated Warrants”).
1. Amendment and Restatement of Series B Warrants. The following summarizes the amendments to the Series B Warrants contained in the Amended
and Restated Warrants:
| i. |
Revise the exercise period of the Series B Warrants until the earliest of (a) September 30, 2026, (b) thirty days after 10X fails to vote all of the shares of common stock in the Company then owned by it in the manner recommended by the
board of directors of the Company in any vote of the stockholders of the Company; or (c) thirty days after the shares of common stock of the Company have a closing price of $6.00 or greater for 10 consecutive trading days;
|
| ii. |
Delete the cashless exercise option that is in certain of the Series B Warrants;
|
| iii. |
Add a Beneficial Ownership Limitation provision in the Series B Warrants, which would have the effect of decreasing 10X Fund’s beneficial ownership to 9.99% and would bar the voluntary exercise of any warrants that would result in 10X
Fund’s ownership beyond 9.99% without at least 61 days’ prior notice from 10X Fund; and
|
| iv. |
Delete the Board Nomination right in section 6.1 of certain of the Series B Warrants.
|
10X and the Company have executed and delivered the Amended and Restated Warrants. To the extent of a conflict between this paragraph 1 and the terms of the Amended and Restated Series B Warrants, the terms of the
Amended and Restated Series B Warrants shall control.
2. Beneficial Ownership. In conjunction with the addition of the Beneficial Ownership Limitation provision to the Series B Warrants, the Company shall also use commercially
reasonable efforts to cause Richard E. Uihlein to exercise an aggregate of 2,231,204 common stock purchase warrants, which would result in the Company’s aggregate number of issued and outstanding shares of common stock to be 61,813,457 immediately
following the exercise of such warrants.
3. Registration Rights. Nothing in this Letter Agreement shall limit, modify or terminate any obligation of the Company to register the resell of the common shares issuable upon
exercise of the Series B Warrants, including under that Registration Rights Agreement dated February 12, 2009 and that Registration Rights Agreement dated September 22, 2016.
4. Successors and Assigns; Third Party Rights. This Letter Agreement may not be assigned by any party hereto without the prior written consent of the other parties hereto, and any
purported assignment in violation of this section shall be void ab initio. Except as otherwise provided herein, the terms and conditions of this Letter Agreement shall inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties hereto.
5. Acknowledgment. 10X agrees and acknowledges that following the execution of the Amended and Restated Warrants, 10X does not have any right to nominate, designate or appoint any
person to serve on the Company’s board of directors.
6. Severability. The invalidity or unenforceability of any particular provision of this Letter Agreement shall be construed in all respects as if such invalid or unenforceable
provision were omitted.
7. Counterparts. This Letter Agreement may be executed in counterparts, all of which shall be deemed to be one and the same instrument, and it shall be sufficient for each party to
have executed at least one, but not necessarily the same counterpart. Executed counterpart signature pages hereto may be delivered by facsimile, pdf or other form of electronic transmission and shall have the same force and effect as originals.
8. Governing Law. This Letter Agreement is governed by and shall be construed in accordance with the law of the State of Delaware, excluding any conflict of laws rule or principle
that might refer the governance or the construction of this Letter Agreement to the law of another jurisdiction.
|
Very truly yours,
|
|||
|
Galectin Therapeutics, Inc
|
|||
|
/s/ Joel Lewis
|
|||
|
By:
|
Joel Lewis | |
|
Its:
|
president and CEO |
|
ACCEPTED AND AGREED TO:
|
||
|
10X CAPITAL MANAGEMENT, LLC, a Florida limited liability company
|
||
|
/s/ James C. Czirr
|
||
|
By:
|
James C. Czirr | |
| Its: |
Managing Member | |
|
10X FUND, L.P., a Delaware limited partnership
|
||
|
By: 10X CAPITAL MANAGEMENT, LLC, a Florida limited liability company
|
||
|
/s/ James C. Czirr
|
||
|
By:
|
James C. Czirr | |
| Its: |
General Partner Managing Member | |
Schedule A – Series B Warrants to be Amended and Restated
|
Warrant No.
|
Holder
|
Number of warrants
|
Expiration date
|
|
Series B 1 & 2
|
|||
|
W-2009-B-02H
|
10X Capital Management LLC
|
108,452
|
5/13/2024
|
|
W-2009-B-03F
|
10X Capital Management LLC
|
56,547
|
6/30/2024
|
|
W-2009-B-04F
|
10X Capital Management LLC
|
33,928
|
8/12/2024
|
|
W-2009-B-05H
|
10X Capital Management LLC
|
69,256
|
9/30/2024
|
|
W-2009-B-06I
|
10X Capital Management LLC
|
2,871
|
11/3/2024
|
|
W-2009-B-07L
|
10X Capital Management LLC
|
1,204
|
12/8/2024
|
|
W-2009-B-08H
|
10X Capital Management LLC
|
25,138
|
1/29/2025
|
|
W-2009-B-09H
|
10X Capital Management LLC
|
41,798
|
3/8/2025
|
|
W-2009-B-010H
|
10X Capital Management LLC
|
118,689
|
4/30/2025
|
|
W-2009-B-011J
|
10X Capital Management LLC
|
32,298
|
5/10/2025
|
|
W-2009-B-01B
|
10X Fund LP
|
1,200,000
|
2/10/2024
|
|
W-2009-B-02I
|
10X Fund LP
|
416,667
|
5/13/2024
|
|
W-2009-B-03D
|
10X Fund LP
|
250,000
|
6/30/2024
|
|
W-2009-B-04D
|
10X Fund LP
|
150,000
|
8/12/2024
|
|
W-2009-B-05I
|
10X Fund LP
|
126,666
|
9/30/2024
|
|
W-2009-B-06J
|
10X Fund LP
|
82,592
|
11/3/2024
|
|
W-2009-B-07J
|
10X Fund LP
|
109,715
|
12/8/2024
|
|
W-2009-B-08I
|
10X Fund LP
|
173,526
|
1/29/2025
|
|
W-2009-B-09I
|
10X Fund LP
|
142,334
|
3/8/2025
|
|
W-2009-B-010I
|
10X Fund LP
|
62,000
|
4/30/2025
|
|
W-2009-B-011K
|
10X Fund LP
|
80,333
|
5/10/2025
|
|
Series B 3 warrants
|
|||
|
W-2016-B-3-1
|
10X Fund LP
|
104,408
|
9/22/2023
|
|
W-2016-B-3-2
|
10X Fund LP
|
564,850
|
9/29/2023
|
|
W-2016-B-3-3
|
10X Fund LP
|
672,747
|
12/23/2023
|
|
Series B 3 lockup warrants
|
|||
|
W-2016-B-3/LU-1
|
10X Fund LP
|
500,000
|
9/22/2023
|
|
W-2016-B-3/LU-2A
|
10X Fund LP
|
13,165
|
9/22/2023
|
|
W-2016-B-3/LU-2B
|
10X Capital Management LLC
|
2,499
|
9/22/2023
|
|
W-2016-B-3/LU-3
|
10X Fund LP
|
62,500
|
9/22/2023
|
|
W-2016-B-3/LU-5A
|
10X Fund LP
|
90,559
|
9/29/2023
|
|
W-2016-B-3/LU-5B
|
10X Capital Management LLC
|
442
|
9/29/2023
|
|
W-2016-B-3/LU-4
|
10X Fund LP
|
187,500
|
9/29/2023
|
|
W-2016-B-3/LU-7A
|
10X Fund LP
|
81,141
|
12/23/2023
|
|
W-2016-B-3/LU-7B
|
10X Capital Management LLC
|
395
|
12/23/2023
|
|
W-2016-B-3/LU-6
|
10X Fund LP
|
168,033
|
12/23/2023
|
|
TOTAL
|
5,732,253
|
||
Schedule B – Series B Warrants as Amended and Restated
|
Warrant No.
|
Holder
|
Number of warrants
|
Expiration date
|
|
Series B 1 & 2
|
|||
|
W-2009-B-02HH
|
10X Capital Management LLC
|
108,452
|
9/30/2026
|
|
W-2009-B-03FF
|
10X Capital Management LLC
|
56,547
|
9/30/2026
|
|
W-2009-B-04FF
|
10X Capital Management LLC
|
33,928
|
9/30/2026
|
|
W-2009-B-05HH
|
10X Capital Management LLC
|
69,256
|
9/30/2026
|
|
W-2009-B-06II
|
10X Capital Management LLC
|
2,871
|
9/30/2026
|
|
W-2009-B-07LL
|
10X Capital Management LLC
|
1,204
|
9/30/2026
|
|
W-2009-B-08HH
|
10X Capital Management LLC
|
25,138
|
9/30/2026
|
|
W-2009-B-09HH
|
10X Capital Management LLC
|
41,798
|
9/30/2026
|
|
W-2009-B-010HH
|
10X Capital Management LLC
|
118,689
|
9/30/2026
|
|
W-2009-B-011JJ
|
10X Capital Management LLC
|
32,298
|
9/30/2026
|
|
W-2009-B-01BB
|
10X Fund LP
|
1,200,000
|
9/30/2026
|
|
W-2009-B-02II
|
10X Fund LP
|
416,667
|
9/30/2026
|
|
W-2009-B-03DD
|
10X Fund LP
|
250,000
|
9/30/2026
|
|
W-2009-B-04DD
|
10X Fund LP
|
150,000
|
9/30/2026
|
|
W-2009-B-05II
|
10X Fund LP
|
126,666
|
9/30/2026
|
|
W-2009-B-06JJ
|
10X Fund LP
|
82,592
|
9/30/2026
|
|
W-2009-B-07JJ
|
10X Fund LP
|
109,715
|
9/30/2026
|
|
W-2009-B-08II
|
10X Fund LP
|
173,526
|
9/30/2026
|
|
W-2009-B-09II
|
10X Fund LP
|
142,334
|
9/30/2026
|
|
W-2009-B-010II
|
10X Fund LP
|
62,000
|
9/30/2026
|
|
W-2009-B-011KK
|
10X Fund LP
|
80,333
|
9/30/2026
|
|
Series B 3 warrants
|
|||
|
W-2016-B-3-1A
|
10X Fund LP
|
104,408
|
9/30/2026
|
|
W-2016-B-3-2A
|
10X Fund LP
|
564,850
|
9/30/2026
|
|
W-2016-B-3-3A
|
10X Fund LP
|
672,747
|
9/30/2026
|
|
Series B 3 lockup warrants
|
|||
|
W-2016-B-3/LU-1A
|
10X Fund LP
|
500,000
|
9/30/2026
|
|
W-2016-B-3/LU-2AA
|
10X Fund LP
|
13,165
|
9/30/2026
|
|
W-2016-B-3/LU-2BB
|
10X Capital Management LLC
|
2,499
|
9/30/2026
|
|
W-2016-B-3/LU-3A
|
10X Fund LP
|
62,500
|
9/30/2026
|
|
W-2016-B-3/LU-5AA
|
10X Fund LP
|
90,559
|
9/30/2026
|
|
W-2016-B-3/LU-5BB
|
10X Capital Management LLC
|
442
|
9/30/2026
|
|
W-2016-B-3/LU-4A
|
10X Fund LP
|
187,500
|
9/30/2026
|
|
W-2016-B-3/LU-7AA
|
10X Fund LP
|
81,141
|
9/30/2026
|
|
W-2016-B-3/LU-7BB
|
10X Capital Management LLC
|
395
|
9/30/2026
|
|
W-2016-B-3/LU-6A
|
10X Fund LP
|
168,033
|
9/30/2026
|
|
TOTAL
|
5,732,253
|
||
Exhibit 4.12
NEITHER THIS WARRANT CERTIFICATE NOR THE WARRANTS REPRESENTED HEREBY NOR ANY SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF SUCH WARRANTS, NOR ANY INTEREST IN OR
RIGHTS UNDER SAME, HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE LAWS OF ANY STATE, AND NEITHER THIS WARRANT CERTIFICATE NOR THE WARRANTS REPRESENTED HEREBY NOR ANY SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF SUCH WARRANTS,
NOR ANY INTEREST IN OR RIGHTS UNDER SAME, MAY BE SOLD OR OTHERWISE TRANSFERRED UNLESS REGISTERED UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
Warrant No. 2024-1
GALECTIN THERAPEUTICS, INC.
COMMON STOCK PURCHASE WARRANT
Galectin Therapeutics, Inc., a Nevada corporation (the “Company”), for value received and subject to the terms set forth below hereby grants to
Richard E. Uihlein, or its registered successors and assigns (the “Holder”), the right to purchase from the Company at any time or from time to time until the date and time permitted under Section 2.1 below, ___________ (__________) fully paid and
non-assessable shares of the Common Stock, at the purchase price of $_____ per share (the “Exercise Price”). This Warrant is issued pursuant to that certain Supplemental Line of Credit Letter Agreement, dated as of March 20, 2024, by and between
the Company and the Holder (the “Supplemental Line of Credit Letter Agreement”). The Exercise Price and the number and character of such shares of Common Stock purchasable pursuant to the rights granted under this Warrant are subject to adjustment
as provided herein.
1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Line of Credit Letter Agreement. As used herein the
following terms, unless the context otherwise requires, have the following respective meanings:
“Common Stock” means the Company’s
common stock and stock of any other class of securities into which such securities may hereafter have been reclassified or changed into, including any stock (other than Common Stock) and other securities of the Company or any other Person
(corporate or other) which the Holder of this Warrant at any time shall be entitled to receive, or shall have received, upon the exercise of this Warrant, in lieu of or in addition to Common Stock, or which at any time shall be issuable or shall
have been issued in exchange for or in replacement of Common Stock pursuant to Section 3.2 hereof or otherwise.
“Common Stock Equivalents” means any
securities of the Company or its subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time
convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Issue Date” means __________.
"Market Value" means, for any date, the
price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market (other than the OTC Bulletin Board), the daily volume weighted average price of the Common Stock for such
date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg Financial L.P. (based on a Trading Day from 9:30 a.m. Eastern Time to 4:00 p.m. Eastern Time); (b) if the Common
Stock is then listed or quoted on the OTC Bulletin Board, the average of the high and low price of the Common Stock for such date (or the nearest preceding date) on the OTC Bulletin Board; or (c) if the Common Stock is not then listed or quoted on
a Trading Market and if prices for the Common Stock are then reported in the "Pink Sheets" published by the Pink Sheets, LLC (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share
of the Common Stock so reported.
“This Warrant” means, collectively,
this Warrant and all other stock purchase warrants issued in exchange therefor or replacement thereof.
"Trading Day" means a day on which the
common Stock is traded on a Trading Market.
"Trading Market" means any of the
following markets or exchanges on which the common Stock is listed or quoted for trading on the date in question: the Nasdaq Stock Market, the New York Stock Exchange, the OTC Bulletin Board or the "Pink Sheets".
2. Exercise.
2.1 Exercise Period. The Holder may exercise this Warrant at any time after the Issue Date and before the close of business in Norcross, Georgia
on July 31, 2029 (the “Exercise Period”), unless earlier terminated pursuant to Section 3.2 herein.
2.2 Exercise Procedure.
(a) This Warrant will be deemed to have been exercised at such time as the Company has received all of the following items (the “Exercise Date”):
(i) a completed Exercise Notice as described in Section 2.4 hereof, executed by the Person exercising all or part of the
purchase rights represented by this Warrant (the “Purchaser”);
(ii) this Warrant;
(iii) if this Warrant is not registered in the name of the Purchaser, an Assignment or Assignments in the form set forth in
Exhibit B hereto, evidencing the assignment of this Warrant to the Purchaser together with any documentation required pursuant to Section 8(a) hereof; and
(iv) a check payable to the order of the Company in an amount equal to the product of the
Exercise Price multiplied by the number of shares of Common Stock being purchased upon such exercise.
(b) As soon as practicable after the exercise of this Warrant in full or in part, and in any event within ten (10) days after the Exercise Date,
the Company at its expense will cause to be issued in the name of and delivered to the Purchaser, or as the Purchaser (upon payment by the Purchaser of any applicable transfer taxes) may direct, a certificate or certificates for the number of fully
paid and non-assessable shares of Common Stock to which the Purchaser shall be entitled upon such exercise, together with any other stock or other securities and property (including cash, where applicable) to which the Purchaser is entitled upon
exercise.
(c) Unless this Warrant has expired or all of the purchase rights represented hereby have been exercised, the Company at its expense will, within
ten (10) days after the Exercise Date, issue and deliver to or upon the order of the Purchaser a new Warrant or Warrants of like tenor, in the name of the Purchaser or as the Purchaser (upon payment by the Purchaser of any applicable transfer
taxes) may request, calling in the aggregate on the face or faces thereof for the number of shares of Common Stock remaining issuable under this Warrant.
(d) The Common Stock issuable upon the exercise of this Warrant will be deemed to have been issued to the Purchaser on the Exercise Date, and the
Purchaser will be deemed for all purposes to have become the record holder of such Common Stock on the Exercise Date.
(e) The issuance of certificates for shares of Common Stock upon exercise of this Warrant will be made without charge to the Holder or the
Purchaser for any issuance tax in respect thereof or any other cost incurred by the Company in connection with such exercise and the related issuance of shares of Common Stock.
(f) The holder represents and warrants that at the time of any exercise of this warrant the holder is an “accredited investor,” as such term is
defined in Rule 501 promulgated under the Securities Act and acknowledges and agrees that the Company may, in its sole discretion, (i) require, as a condition to the exercise of this Warrant, that the holder provide such written evidence that such
holder is an accredited investor as the time of exercise, and (ii) decline to issue the shares of Common Stock issuable upon such exercise if the Company is not satisfied that this warrant may be exercised by the holder pursuant to a valid
registration exemption from the Securities Act and any applicable state securities law.
2.3 Acknowledgement of Continuing Obligations. The Company will, at the time of the exercise of this Warrant, upon the request of the Purchaser,
acknowledge in writing its continuing obligation to afford to the Purchaser any rights to which the Purchaser shall continue to be entitled after such exercise in accordance with the provisions of this Warrant, provided that if the Purchaser shall
fail to make any such request, such failure shall not affect the continuing obligation of the Company to afford to the Purchaser any such rights.
2.4 Exercise Notice. The Exercise Notice will be substantially in the form set forth in Exhibit A hereto, except that if the shares of Common
Stock issuable upon exercise of this Warrant are not to be issued in the name of the Purchaser, the Exercise Notice will also state the name of the Person to whom the certificates for the shares of Common Stock are to be issued, and if the number
of shares of Common Stock to be issued does not include all the shares of Common Stock issuable hereunder, it will also state the name of the Person to whom a new Warrant for the unexercised portion of the rights hereunder is to be delivered.
2.5 Fractional Shares. If a fractional share of Common Stock would, but for the provisions of Section 2.1 hereof, be issuable upon exercise of the
rights represented by this Warrant, the Company will, within ten (10) days after the Exercise Date, deliver to the Purchaser a check payable to the Purchaser in lieu of such fractional share, in an amount equal to the Market Value of such
fractional share as of the close of business on the Exercise Date.
3. Adjustments.
3.1 Adjustments for Stock Splits, Etc. If the Company shall at any time after the Issue Date subdivide its outstanding Common Stock, by split-up
or otherwise, or combine its outstanding Common Stock, or issue additional shares of its capital stock in payment of a stock dividend in respect of its Common Stock, the number of shares issuable on the exercise of the unexercised portion of this
Warrant shall forthwith be proportionately increased in the case of a subdivision or stock dividend, or proportionately decreased in the case of a combination, and the Exercise Price then applicable to shares covered by the unexercised portion of
this Warrant shall forthwith be proportionately decreased in the case of a subdivision or stock dividend, or proportionately increased in the case of combination.
3.2 Adjustment for Reclassification, Reorganization, Etc. In case of any reclassification, capital reorganization, or change of the outstanding
Common Stock (other than as a result of a subdivision, combination or stock dividend), or in the case of any consolidation of the Company with, or merger of the Company into, another Person (other than a consolidation or merger in which the Company
is the continuing corporation and which does not result in any reclassification or change of the outstanding Common Stock of the Company), or in case of any sale or conveyance to one or more Persons of the property of the Company as an entirety or
substantially as an entirety at any time prior to the expiration of this Warrant, then, as a condition of such reclassification, reorganization, change, consolidation, merger, sale or conveyance, lawful provision shall be made, and duly executed
documents evidencing the same from the Company or its successor shall be delivered to the Holder of this Warrant, so that the Holder of this Warrant shall have the right at any time prior to the expiration of this Warrant to purchase, at a total
price not to exceed that payable upon the exercise of the unexercised portion of this Warrant, the kind and amount of shares of stock and other securities and property receivable upon such reclassification, reorganization, change, consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock of the Company as to which this Warrant was exercisable immediately prior to such reclassification, reorganization, change, consolidation, merger, sale or conveyance,
and in any such case appropriate provision shall be made with respect to the rights and interests of the Holder of this Warrant to the end that the provisions hereof (including, without limitation, provisions for the adjustment of the Exercise
Price and of the number of shares purchasable upon exercise of this Warrant) shall thereafter be applicable in relation to any shares of stock, and other securities and property, thereafter deliverable upon exercise hereof. If, as a consequence of
any such transaction, solely cash, and no securities or other property of any kind, is deliverable upon exercise of this Warrant, then, in such event, the Company may terminate this Warrant by giving the Holder hereof written notice thereof. Such
notice shall specify the date (at least thirty (30) days subsequent to the date on which notice is given) on which, at 3:00 P.M., Norcross, Georgia time, this Warrant shall terminate. Notwithstanding any such notice, this Warrant shall remain
exercisable, and otherwise in full force and effect, until such time of termination.
3.3 Certificate of Adjustment. Whenever the Exercise Price or the number of shares issuable hereunder is adjusted, as herein provided, the Company
shall promptly deliver to the registered Holder of this Warrant a certificate of the Treasurer of the Company, which certificate shall state (i) the Exercise Price and the number of shares of Common Stock issuable hereunder after such adjustment,
(ii) the facts requiring such adjustment, and (iii) the method of calculation for such adjustment and increase or decrease.
3.4 Small Adjustments. No adjustment in the Exercise
Price shall be required unless such adjustment would require an increase or decrease in the Exercise Price of at least one percent; provided, however, that any adjustments which by reason of this Section 3.4 are not required to be made immediately
shall be carried forward and taken into account at the time of exercise of this Warrant or any subsequent adjustment in the Exercise Price which, singly or in combination with any adjustment carried forward, is required to be made under Sections
3.1 or 3.2.
4. Reservation of Stock, etc., Issuable on Exercise of Warrant. The Company
will at all times reserve and keep available, solely for issuance and delivery upon the exercise of this Warrant, all shares of Common Stock from time to time issuable upon the exercise of this Warrant.
5. Disposition of This Warrant, Common Stock, Etc.
(a) The Holder of this Warrant and any transferee hereof or of the Common Stock with respect to which this Warrant may be exercisable, by their
acceptance hereof, hereby understand and agree that this Warrant and the Common Stock with respect to which this Warrant may be exercisable have not been registered under the Securities Act, and may not be sold, pledged, hypothecated, donated, or
otherwise transferred (whether or not for consideration) without an effective registration statement under the Act or an opinion of counsel satisfactory to the Company and/or submission to the Company of such other evidence as may be satisfactory
to counsel to the Company, in each such case, to the effect that any such transfer shall not be in violation of the Act. It shall be a condition to the transfer of this Warrant that any transferee thereof deliver to the Company its written
agreement to accept and be bound by all of the terms and conditions of this Warrant.
(b) Except to the extent the resale of the shares of Common Stock issuable upon exercise hereof are registered for resale, or may be sold to the
public pursuant to Rule 144(b)(1) under the Securities Act, the certificates of the Company that will evidence the shares of Common Stock with respect to which this Warrant may be exercisable will be imprinted with a conspicuous legend in
substantially the following form:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE
SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED (WHETHER OR NOT FOR CONSIDERATION) BY THE HOLDER WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND/OR SUBMISSION TO THE
COMPANY OF SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY TO COUNSEL TO THE COMPANY, IN EACH SUCH CASE, TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE ACT.”
The Company agrees to prepare and file with the Securities Exchange Commission within 180 days from the date of
issuance of any shares of Common Stock upon exercise of this Warrant.
6. Rights and Obligations of Warrant Holder. The Holder of this Warrant
shall not, by virtue hereof, be entitled to any voting rights or other rights as a stockholder of the Company. No provision of this Warrant, in the absence of affirmative actions by the Holder to purchase Common Stock of the Company by exercising
this Warrant, and no enumeration in this Warrant of the rights or privileges of the Holder, will give rise to any liability of such Holder for the Exercise Price of Common Stock acquirable by exercise hereof or as a stockholder of the Company.
7. Transfer of Warrants. Subject to compliance with the restrictions on
transfer applicable to this Warrant referred to in Section 5 hereof, this Warrant and all rights hereunder are transferable, in whole or in part to other Lenders pursuant to the Line of Credit Letter Agreement, without charge to the registered
Holder, upon surrender of this Warrant with a properly executed Assignment (in substantially the form attached hereto as Exhibit B), to the Company, and the Company at its expense will issue and deliver to or upon the order of the Holder hereof a
new Warrant or Warrants in such denomination or denominations as may be requested, but otherwise of like tenor, in the name of the Holder or as the Holder (upon payment of any applicable transfer taxes) may direct.
8. Replacement of Warrants. Upon receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of any Warrant and, in the case of any such loss, theft or destruction, upon delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company or, in the case
of any such mutilation, upon surrender and cancellation of such Warrant, the Company at its expense will execute and deliver, in lieu thereof, a new Warrant of like tenor.
9. Company Records. Until this Warrant is transferred on the books of the
Company, the Company may treat the registered Holder hereof as the absolute owner hereof for all purposes, notwithstanding any notice to the contrary.
10. Miscellaneous.
10.1 Notices. All notices and other communications from the Company to the Holder of this Warrant shall be mailed by first class mail, postage prepaid, to such address
as may have been furnished to the Company in writing by such Holder, or, until an address is so furnished, to and at the address of the last Holder of this Warrant who has so furnished an address to the Company. All communications from the Holder
of this Warrant to the Company shall be mailed by first class mail, postage prepaid, to Galectin Therapeutics, Inc., 4960 Peachtree Industrial Boulevard, Suite 240, Norcross, GA 30071, Attn: Chief Financial Officer, or such other address as may
have been furnished to the Holder in writing by the Company.
10.2 Amendment and Waiver. Except as otherwise provided herein, this Warrant and any term hereof may be amended, waived, discharged or terminated only by an instrument
in writing signed by the party against which enforcement of such amendment, waiver, discharge or termination is sought.
10.3 Governing Law; Descriptive Headings. This Warrant shall be construed and enforced in accordance with and governed by the laws of the State of Nevada. The headings
in this Warrant are for purposes of reference only, and shall not limit or otherwise affect any of the terms hereof.
[SIGNATURE ON FOLLOWING PAGE]
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Dated: ___________, 2024.
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GALECTIN THERAPEUTICS, INC.
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Name:
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Jack W. Callicutt
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Title:
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CFO
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EXHIBIT A
EXERCISE NOTICE
[To be signed only upon exercise of Warrant]
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To:
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Date:
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The undersigned, the Holder of the within Warrant, pursuant to the provisions set forth in the within Warrant, hereby irrevocably elects to exercise
the purchase rights represented by such Warrant for, and agrees to subscribe for and purchase thereunder, ___________ shares of the Common Stock covered by such Warrant and herewith makes payment of $ _____________ therefor, and requests that the
certificates for such shares be issued in the name of, and delivered to, ___________________, whose address is: ________________________________. If said number of shares is less than all the shares covered by such Warrant, a new Warrant shall be
registered in the name of the undersigned and delivered to the address stated below.
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Signature
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(Signature must conform in all respects to name of Holder as specified on the face of the Warrant or on the form of Assignment attached as Exhibit B thereto.)
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Address
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[Signature Guarantee]
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EXHIBIT B
ASSIGNMENT
[To be signed only upon transfer of Warrant]
For value received, the undersigned hereby sells, assigns and transfers all of the rights of the undersigned under the within Warrant with respect to
the number of shares of the Common Stock covered thereby set forth below, unto:
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Name of Assignee
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Address
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No of Shares: Warrants
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Dated:
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Signature
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(Signature must conform in all respects to name of Holder as specified on the face of the Warrant.)
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Address
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Exhibit 10.2 |
GALECTIN THERAPEUTICS INC.
STOCK OPTION AGREEMENT
FOR
Agreement
1. Grant of Option. Galectin Therapeutics Inc., a Nevada corporation (the “Company”) hereby grants, as of ____________(“Date of Grant”), to ____________ (the “Optionee”) an option (the “Option”) to
purchase up to __________shares of the Company’s common stock, $________ par value per share (the “Shares”), at an exercise price per share equal to $1.72 (the “Exercise Price”). The Option shall be subject to the terms and conditions set
forth herein. The Option is being issued pursuant to the Company’s 2019 Omnibus Equity Incentive Plan (the “Plan”), which is incorporated herein for all purposes. The Option is an Incentive Stock Option and not a Non-Qualified Stock Option. [or The
Option is a Non-qualified Stock Option and not an Incentive Stock Option.] The Optionee hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all of the terms and conditions hereof and thereof and all applicable laws and
regulations.
2. Definitions. Unless otherwise provided herein, terms used herein that are defined in the Plan and not defined herein shall have the meanings attributed thereto in the Plan.
3. Exercise Schedule. Except as otherwise provided in Sections 6 or 9 of this Agreement, or in the Plan, the Option is exercisable in installments as provided below, which shall be cumulative. To the
extent that the Option has become exercisable with respect to a percentage of Shares as provided below, the Option may thereafter be exercised by the Optionee, in whole or in part, at any time or from time to time prior to the expiration of the
Option as provided herein. The following table indicates each date (the “Vesting Date”) upon which the Optionee shall be entitled to exercise the Option with respect to the percentage of Shares granted as indicated beside the date, provided that
the Continuous Service of the Optionee continues through and on the applicable Vesting Date:
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Percentage of Shares
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Vesting Date
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Except as otherwise specifically provided herein, there shall be no proportionate or partial vesting in the periods prior to each Vesting Date, and all vesting shall occur only on the appropriate Vesting Date. Upon the termination of the
Optionee’s Continuous Service, any unvested portion of the Option shall terminate and be null and void.
4. Method of Exercise. The vested portion of this Option shall be exercisable in whole or in part in accordance with the exercise schedule set forth in Section 3 hereof by written notice which shall
state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised, and such other representations and agreements as to the holder’s investment intent with respect to such Shares as may be required by
the Company pursuant to the provisions of the Plan. Such written notice shall be signed by the Optionee and shall be delivered in person or by certified mail to the Secretary of the Company. The written notice shall be accompanied by payment of the
Exercise Price. This Option shall be deemed to be exercised after both (a) receipt by the Company of such written notice accompanied by the Exercise Price and (b) arrangements that are satisfactory to the Committee in its sole discretion have been
made for Optionee’s payment to the Company of the amount, if any, that is necessary to be withheld in accordance with applicable Federal or state withholding requirements. No Shares shall be issued pursuant to the Option unless and until such
issuance and such exercise shall comply with all relevant provisions of applicable law, including the requirements of any stock exchange upon which the Shares then may be traded.
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Exhibit 10.2 |
5. Method of Payment. Payment of the Exercise Price shall be by any of the following, or a combination thereof, at the election of the Optionee: (a) cash; (b) check; or (c) to the extent permitted by the
Committee, with Shares owned by the Optionee, or the withholding of Shares that otherwise would be delivered to the Optionee as a result of the exercise of the Option or (d) pursuant to a “cashless exercise” procedure, by delivery of a properly
executed exercise notice together with such other documentation, and subject to such guidelines, as the Committee shall require to effect an exercise of the Option and delivery to the Company by a licensed broker acceptable to the Company of
proceeds from the sale of Shares, or (e) such other consideration or in such other manner as may be determined by the Committee in its absolute discretion.
6. Termination of Option.
(a) General. Any unexercised portion of the Option shall automatically and without notice terminate and become null and void at the time of the earliest to
occur of the following:
(i) unless the Committee otherwise determines in writing in its sole discretion, three months after the date on which the Optionee’s Continuous Service is terminated other than by reason of (A) by the Company or a
Related Entity for Cause, (B) a Disability of the Optionee as determined by a medical doctor satisfactory to the Committee, or (C) the death of the Optionee;
(ii) immediately upon the termination of the Optionee’s Continuous Service by the Company or a Related Entity for Cause;
(iii) twelve months after the date on which the Optionee’s Continuous Service is terminated by reason of a Disability as determined by a medical doctor satisfactory to the Committee;
(iv) twelve months after the date of termination of the Optionee’s Continuous Service by reason of the death of the Optionee;
(v) the tenth anniversary of the date as of which the Option is granted.
(b) Cancellation. To the extent not previously exercised, (i) the Option shall terminate immediately in the event of (A) the liquidation or dissolution of
the Company, or (B) any reorganization, merger, consolidation or other form of corporate transaction in which the Company does not survive or the Shares are exchanged for or converted into securities issued by another entity, or an affiliate of
such successor or acquiring entity, unless the successor or acquiring entity, or an affiliate thereof, assumes the Option or substitutes an equivalent option or right pursuant to Section 10(c)(ii) of the Plan, and (ii) the Committee in its sole
discretion may by written notice (“cancellation notice”) cancel, effective upon the consummation of any transaction that constitutes a Change in Control, the Option (or portion thereof) that remains unexercised on such date. The Committee shall
give written notice of any proposed transaction referred to in this Section 6(b) a reasonable period of time prior to the closing date for such transaction (which notice may be given either before or after approval of such transaction), in order
that the Optionee may have a reasonable period of time prior to the closing date of such transaction within which to exercise the Option if and to the extent that it then is exercisable (including any portion of the Option that may become
exercisable upon the closing date of such transaction). The Optionee may condition his exercise of the Option upon the consummation of a transaction referred to in this Section 6(b).
7. Transferability. Unless otherwise determined by the Committee, the Option granted hereby is not transferable otherwise than by will or under the applicable laws of descent and distribution, and during
the lifetime of the Optionee the Option shall be exercisable only by the Optionee, or the Optionee’s guardian or legal representative. In addition, the Option shall not be assigned, negotiated, pledged or hypothecated in any way (whether by
operation of law or otherwise), and the Option shall not be subject to execution, attachment or similar process. Upon any attempt to transfer, assign, negotiate, pledge or hypothecate the Option, or in the event of any levy upon the Option by
reason of any execution, attachment or similar process contrary to the provisions hereof, the Option shall immediately become null and void. The terms of this Option shall be binding upon the executors, administrators, heirs, successors and assigns
of the Optionee.
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Exhibit 10.2 |
8. No Rights of Stockholders. Neither the Optionee nor any personal representative (or beneficiary) shall be, or shall have any of the rights and privileges of, a stockholder of the Company with respect
to any Shares purchasable or issuable upon the exercise of the Option, in whole or in part, prior to the date on which the Shares are issued.
9. Acceleration of Exercisability of Option.
(a) Acceleration Upon Certain Terminations or Cancellations of Option. This Option shall become immediately fully exercisable in the event that, prior to
the termination of the Option pursuant to Section 6 hereof, (i) the Option is terminated pursuant to Section 6(b)(i) hereof, or (ii) the Company exercises its discretion to provide a cancellation notice with respect to the Option pursuant to
Section 6(b)(ii) hereof.
(b) Acceleration Upon Change in Control. This Option shall become immediately fully exercisable in the event that, prior to the termination of the Option
pursuant to Section 6 hereof, and during the Optionee’s Continuous Service, there is a “Change in Control”, as defined in Section 9(b) of the Plan.
10. No Right to Continued Employment. Neither the Option nor this Agreement shall confer upon the Optionee any right to continued employment or service with the Company.
11. Law Governing. This Agreement shall be governed in accordance with and governed by the internal laws of the state of Georgia.
12. Incentive Stock Option Treatment. The terms of this Option shall be interpreted in a manner consistent with the intent of the Company and the Optionee that the Option qualify as an Incentive Stock
Option under Section 422 of the Code. If any provision of the Plan or this Agreement shall be impermissible in order for the Option to qualify as an Incentive Stock Option, then the Option shall be construed and enforced as if such provision had
never been included in the Plan or the Option. If and to the extent that the number of Options granted pursuant to this Agreement exceeds the limitations contained in Section 422 of the Code on the value of Shares with respect to which this Option
may qualify as an Incentive Stock Option, this Option shall be a Non-Qualified Stock Option. [Delete for Non-qualified Stock Option]
13. Interpretation / Provisions of Plan Control. This Agreement is subject to all the terms, conditions and provisions of the Plan, including, without limitation, the amendment provisions thereof, and to
such rules, regulations and interpretations relating to the Plan adopted by the Committee as may be in effect from time to time. If and to the extent that this Agreement conflicts or is inconsistent with the terms, conditions and provisions of the
Plan, the Plan shall control, and this Agreement shall be deemed to be modified accordingly. The Optionee accepts the Option subject to all of the terms and provisions of the Plan and this Agreement. The undersigned Optionee hereby accepts as
binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under the Plan and this Agreement, unless shown to have been made in an arbitrary and capricious manner.
14. Notices. Any notice under this Agreement shall be in writing and shall be deemed to have been duly given when delivered personally or when deposited in the United States mail, registered, postage
prepaid, and addressed, in the case of the Company, to the Company’s Secretary at 4960 Peachtree Industrial Blvd., Norcross, GA 30071 , or if the Company should move its principal office, to such principal office, and, in the case of the
Optionee, to the Optionee’s last permanent address as shown on the Company’s records, subject to the right of either party to designate some other address at any time hereafter in a notice satisfying the requirements of this Section.
15. Section 409A.
(a) It is intended that the Option awarded pursuant to this Agreement be exempt from Section 409A of the Code (“Section 409A”) because it is believed that (i) the Exercise Price may never be less than the Fair Market
Value of a Share on the Grant Date and the number of shares subject to the Option is fixed on the original Date of Grant, (ii) the transfer or exercise of the Option is subject to taxation under Section 83 of the Code and Treas. Reg. 1.83-7, and
(iii) the Option does not include any feature for the deferral of compensation other than the deferral of recognition of income until the exercise of the Option. The provisions of this Agreement shall be interpreted in a manner consistent with this
intention, and the provisions of this Agreement may not be amended, adjusted, assumed or substituted for, converted or otherwise modified without the Optionee’s prior written consent if and to the extent that the Company believes or reasonably
should believe that such amendment, adjustment, assumption or substitution, conversion or modification would cause the award to violate the requirements of Section 409A. In the event that either the Company or the Optionee believes, at any time,
that any benefit or right under this Agreement is subject to Section 409A, then the Committee may (acting alone and without any required consent of the Optionee) amend this Agreement in such manner as the Committee deems necessary or appropriate to
be exempt from or otherwise comply with the requirements of Section 409A (including without limitation, amending the Agreement to increase the Exercise Price to such amount as may be required in order for the Option to be exempt from Section 409A).
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Exhibit 10.2 |
(b) Notwithstanding the foregoing, the Company does not make any representation to the Optionee that the Option awarded pursuant to this Agreement is exempt from, or satisfy, the requirements of Section 409A, and the
Company shall have no liability or other obligation to indemnify or hold harmless the Optionee or any Beneficiary for any tax, additional tax, interest or penalties that the Optionee or any Beneficiary may incur in the event that any provision of
this Agreement, or any amendment or modification thereof or any other action taken with respect thereto, that either is consented to by the Optionee or that the Company reasonably believes should not result in a violation of Section 409A, is deemed
to violate any of the requirements of Section 409A.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the ____ day of _____ 20__.
|
COMPANY:
|
||
| GALECTIN THERAPEUTICS INC. | ||
| A Nevada corporation | ||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
The Optionee acknowledges receipt of a copy of the Plan and represents that he or she has reviewed the provisions of the Plan and this Option Agreement in their entirety, is familiar with and understands their terms
and provisions, and hereby accepts this Option subject to all of the terms and provisions of the Plan and the Option Agreement. The Optionee further represents that he or she has had an opportunity to obtain the advice of counsel prior to executing
this Option Agreement.
|
OPTIONEE:
|
||
|
By:
|
||
Page 4 of 4
Exhibit 10.3
Restricted Stock Unit Agreement
under the Galectin Therapeutics Inc.
2019 Omnibus Equity Compensation Plan
Pursuant to the terms of the Galectin Therapeutics Inc. 2019 Omnibus Equity Compensation Plan (the “Plan”), Galectin Therapeutics Inc., a Nevada corporation (together with all successors thereto, the “Company”), hereby enters into this
Restricted Stock Unit Agreement with the undersigned employee (the “Grantee”), pursuant to which the Company will issue the number of shares of the Company’s common stock equal to the number of Restricted Stock Units (“RSU’s”) granted hereunder in
accordance with the terms set forth in this agreement (the “Agreement”).
Notwithstanding anything in this Agreement to the contrary, the grant of the RSUs pursuant to this Agreement and the issuance of shares of the Company’s common stock in settlement of such RSUs shall be subject to, and governed by, all the terms
and conditions of the Plan. To the extent there is any inconsistency between the terms of the Plan and of this Agreement, the terms of the Plan shall control.
All capitalized terms used in this Agreement and not otherwise defined shall have the respective meanings given such terms in the Plan.
|
Number of RSUs Granted:
|
[ ]
|
|
|
Grant Date:
|
[_______, 20__]
|
|
|
Vesting Commencement Date:
|
[_______, 20__]
|
1. General. Each RSU represents a right to receive one share of the Company’s common stock (a “Share”) in accordance with and subject to the terms and conditions of
this Agreement and the Plan. By execution of this Agreement, the Grantee agrees to be bound by all of the terms and provisions of the Plan, the rules and regulations under the Plan adopted from time to time, and the decisions and determinations of
the Committee made from time to time.
2. Account for Grantee. The Company shall maintain a bookkeeping account for the Grantee (the “Account”) reflecting the number of RSUs then
credited to the Grantee hereunder as a result of such grant of RSUs.
3. Nontransferability. The Grantee may not transfer RSUs or any rights hereunder to any third party other than by will or the laws of descent
and distribution.
4. Vesting and Forfeiture. [ ]
5. Settlement - Delivery of Shares. The Company shall issue the Shares underlying the RSUs that have vested pursuant to Section 4 to the Grantee
in settlement of the Grantee’s vested RSUs as soon as reasonably practicable on or after the earlier of (i) the third business day after the Vesting Date on which a trading window is open under the Company’s insider trading policy or (iii) December
31 of the year that includes the applicable Vesting Date.
6. Withholding Taxes. The Grantee agrees to make appropriate arrangements with the Company (or the appropriate Affiliate that employed the Grantee) for the
satisfaction of all applicable Federal, state, local and foreign income and employment tax withholding requirements arising in connection with the vesting of the RSUs and issuance of Shares in settlement of such vested RSUs. The Grantee
acknowledges and agrees that the Company may, refuse to deliver Shares if the Grantee does not deliver or make arrangements to deliver such required withholding amounts to the Company at the time the RSUs vest.
7. Miscellaneous.
(a) Change and Modifications. This Agreement may not be orally changed, modified or terminated, nor shall any oral waiver of any of its terms be effective. This Agreement may be changed, modified or
terminated only by an agreement in writing signed by the Company and the Grantee.
(b) No Promise of Continued Affiliation. The RSUs granted hereunder shall not constitute or be evidence of any agreement or understanding, express or implied, that the Grantee has a right to continue as
an employee of, or other service provider to, the Company or any Affiliate for any period of time, or at any particular rate of compensation or remuneration.
(c) Unfunded Obligations. The grant of the RSUs and any provision for distribution of Shares in settlement of the Grantee’s Account hereunder shall be by means of bookkeeping entries on the books of the
Company and shall not create in the Grantee any right to, or claim against any, specific assets of the Company, nor result in the creation of any trust or escrow account for the Grantee. With respect to the Grantee’s entitlement to any distribution
hereunder, the Grantee shall be a general creditor of the Company.
(d) Section 409A of the Internal Revenue Code. To the extent applicable, the RSUs are intended to be exempt from the requirements of Section 409A of the Internal Revenue Code of 1986 and applicable
regulations and guidance thereunder and shall be construed and interpreted accordingly; provided however, that the Company does not guarantee the tax result of participation in the Plan.
(e) Notices. All notices, requests, consents and other communications shall be in writing and be deemed given when delivered personally, by telex or facsimile transmission or when received if mailed by
first class registered or certified mail, postage prepaid. Notices to the Company or the Grantee shall be addressed as set forth underneath their signatures below, or to such other address or addresses as may have been furnished by such party in
writing to the other.
(f) Counterparts. For the convenience of the parties and to facilitate execution, this Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same document.
2
The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by the undersigned as of the date first above written.
|
GALECTIN THERAPEUTICS INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Address:
|
||
|
4960 Peachtree Industrial
|
||
| Boulevard | ||
|
Suite 240
|
||
|
Norcross, GA 30071
|
||
The undersigned hereby acknowledges receiving and reviewing a copy of the Plan and understands that the RSUs granted hereby and any Shares issuable in settlement of such RSUs are subject to the terms of the Plan and this Agreement. This
Agreement is hereby accepted, and the terms and conditions thereof and of the Plan hereby agreed to, by the undersigned as of the date first above written.
|
GRANTEE:
|
|
|
Name:
|
3
Exhibit 10.19
SUPPLEMENTAL LINE OF CREDIT LETTER AGREEMENT
March 29, 2024
GALECTIN THERAPEUTICS, INC.
4960 Peachtree Industrial Blvd., Suite 240
Norcross, Georgia 30071
Directors and Officers of Galectin Therapeutics, Inc.:
This letter agreement supplements that certain Line of Credit Agreement,
dated as of July 25 2022, the (“Line of Credit Agreement”) between Galectin Therapeutics, Inc., a Nevada corporation (the “Company”)
and Richard E. Uihlein, an individual resident of the State of Illinois. This letter agreement (the “Supplemental Line of Credit Agreement”) confirms Uihlein’s commitment to provide the
Company with a line of credit of $10,000,000 (the “Supplemental Line of Credit”), which is in addition to the $60,000,000 that was established under the Line of Credit Agreement. The
Supplemental Line of Credit, subject to the restrictions outlined below, is available to finance the Company’s working capital needs in the amount of $10,000,000.
Each advance made pursuant to the Supplemental Line of Credit by Uihlein shall be evidenced by an unsecured Promissory Note substantially in the
form of Exhibit A attached hereto (each, a “Promissory Note”), executed by a duly authorized officer of the Company, which
shall represent the Company’s obligation to pay the principal amount of such advance with interest thereon. Uihlein shall make requested advances promptly after a draw is submitted by the Company. The Supplemental Line of Credit may be drawn upon
through March 31, 2025, through draws no more frequently than monthly. As set forth therein, the Promissory Notes shall bear interest (based upon the principal amount outstanding from time to time) payable on or before March 31, 2026, at the
Applicable Federal Rate for short term loans published by the Internal Revenue Service as may be in effect at the time of such applicable advance, which interest rate on the date hereof is [ ]%, plus two (2%) percent. Interest on the Promissory
Notes will compound monthly and accrue. The Promissory Notes may not be prepaid without the consent of Uihlein.
The Company may only draw on the Supplemental Line of Credit after the Company has drawn on the maximum amount available for borrowing under the
Line of Credit Agreement. The date and amount of any borrowing pursuant to the Supplemental Line of Credit and each payment of principal in respect thereof shall be (i) reflected by the Company on Schedule
1 attached hereto, which Schedule 1 shall be amended by the Company from time to time, without any further action by Uihlein, to reflect each new advance pursuant to the
Supplemental Line of Credit.
At the election of Uihlein, the principal and accrued interest on a Promissory Note may be converted into the number of shares of the Company’s
common stock (the “Common Stock”) equal to the amount of principal and accrued interest on such Promissory Note divided by the price equal to the closing price of the Common Stock as
reported on Nasdaq.com for the trading day immediately preceding the date of conversion of such Promissory Note, but in no event less than $3.00 per share.
In consideration for making draws under the Supplemental Line of Credit, the Company shall issue warrants to Uihlein, exercisable to purchase an
aggregate of 200,000 shares of Common Stock (collectively, the “Warrants”) in substantially the form attached hereto as Exhibit B.
The Company shall issue Uihlein Warrants that are exercisable to purchase the Common Shares, ratably, at the time of the draws, with exercise prices equal to 150% of the closing price of the Common Stock on the date of the Promissory Note
evidencing such draw, but in no event more than $10.00 per share nor less than $3.00 per share. For example, if $1,000,000 has been advanced on the Supplemental Line of Credit in the aggregate, then the Company will issue Uihlein a Warrant
exercisable to purchase 20,000 shares of Common Stock. The Warrants expire on July 31, 2029.
Any shares of Common Stock issued to Uihlein upon conversion of a Promissory Note shall be accompanied by registration rights whereby the Company
shall agree to register the shares of Common Stock with the Securities and Exchange Commission (the “SEC”) within 180 days of the conversion of a Promissory Note.
In the event that the Company on or after March 31, 2024 raises additional capital from at-the-market sales, other financings, exercise of warrants
or options, from license or similar fees received from pharmaceutical or other companies or from strategic or financial partnerships or ventures (collectively, “Other Funding”) then
Uihlein may, at his election, within 30 days of an Other Funding, reduce the size of the Supplemental Line of Credit on a dollar for dollar basis determined by the amount of the Other Funding actually received, but in no event may Uihlein elect to
reduce the size of the Supplemental Line of Credit below the amount that is then drawn under this Supplemental Line of Credit Agreement and provided further that Uihlein shall not reduce the size of the Supplemental Line of Credit on account of
Other Funding to the extent such Other Funding has resulted in reductions under the Line of Credit Agreement. Furthermore, the Company agrees that (i) in the event the Company closes on one or more Other Fundings through a debt financing, where
terms of such debt financing is more favorable to lender than those of this Supplemental Line of Credit Agreement, then Uihlein shall have the right to amend this Supplemental Line of Credit Agreement so that the terms herein are at least as
favorable as such debt financing or (ii) in the event of the Company closes on one or more Other Fundings through an equity financing, then Uihlein shall have the right to participate in such equity financing for up to $10,000,000, and the dollar
amount by which Uihlein shall participate in such equity financing shall reduce Uihlein’s commitment under the Supplemental Line of Credit.
The Company agrees that so long as any Promissory Note is outstanding the Company will not grant a security interest in the material assets of the
Company to any person or entity.
No other document shall evidence the indebtedness of Uihlein which may be created pursuant to the terms of this Supplemental Line of Credit
Agreement, other than the Promissory Note.
[signatures on the following page]
2
This Supplement Line of Credit Agreement shall be governed by, construed and interpreted in accordance with the laws of the State of Georgia.
|
Very truly yours,
|
|
|
/s/ Richard E. Uihlein
|
|
|
Richard E. Uihlein
|
Agreed and accepted as of
March 29, 2024
|
GALECTIN THERAPEUTICS, INC.
|
||
|
By:
|
/s/ Joel Lewis
|
|
|
Name:
|
Joel Lewis | |
|
Title:
|
Chief Executive Officer |
3
SCHEDULE 1
SCHEDULE OF ADVANCES
|
Date
|
Lender
|
Amount
of
Advance
|
Unpaid
Aggregate
Principal
Balance
|
Notation
Made By
|
|
__________
|
__________
|
__________
|
__________
|
__________
|
|
__________
|
__________
|
__________
|
__________
|
__________
|
|
__________
|
__________
|
__________
|
__________
|
__________
|
|
__________
|
__________
|
__________
|
__________
|
__________
|
|
__________
|
__________
|
__________
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__________
|
__________
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|
__________
|
__________
|
__________
|
__________
|
__________
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|
__________
|
__________
|
__________
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__________
|
__________
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__________
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__________
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__________
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__________
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__________
|
__________
|
__________
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|
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__________
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__________
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__________
|
__________
|
Exhibit 10.20
EXHIBIT A
FORM OF CONVERTIBLE PROMISSORY NOTE
CONVERTIBLE PROMISSORY NOTE
|
$
|
Atlanta, Georgia
|
||
|
Dated as of ___, 2024
|
|||
FOR VALUE RECEIVED, the undersigned, GALECTIN THERAPEUTICS, INC., a Nevada corporation (the “Company”),
hereby unconditionally promises to pay to the order of Richard E. Uihlein, an individual resident of the State of Illinois (“Lender”), whose office address is 12575 Uline Drive, Pleasant
Prairie, WI 53158, on March 31, 2026, in lawful money of the United States of America and in immediately available funds, the principal amount of (a) _____________________ DOLLARS ($_______________). The Company further agrees to pay interest in
like money at an annual rate of ______% [the Applicable Federal Rate for short term loans as may be in effect on the date of the Promissory Note as published by the Internal Revenue Service plus two (2%) percent] on the unpaid principal amount
hereof from time to time outstanding, which shall compound monthly and accrue commencing on the date hereof and continuing until paid in full on January 31, 2026 or sooner prepaid.
This Promissory Note is made pursuant to that certain Supplemental Line of Credit Letter Agreement, dated as of March ___, 2024, by and between
Lender and the Company, and the Company and the Lender are entitled to the benefits and obligations thereof. Only with the consent of Lender, this Promissory Notes may be prepaid, in whole or in part, at any time without premium or penalty, but
with interest on the amount prepaid.
At the election of Lender, the principal and accrued interest on this Promissory Note may be converted into the number of shares of the Company’s
common stock (the “Common Stock”) equal to the amount of principal and accrued interest on this Promissory Note divided by the price equal to the closing price of the Common Stock on the
date of this Promissory Note.
The Company, for itself and all other persons who now are or who may become liable for the payment of all or any part of the obligations evidenced
by this Promissory Note, jointly, severally and irrevocably, hereby waives presentment for payment, demand, protest, notice of protest, notice of dishonor and any and all other notices and demands whatsoever. The Company shall pay all costs and
expenses of collection, including, without limitation, reasonable attorneys’ fees except to the extent limited or prohibited by law.
No act, omission, or other failure on the part of Lender or any holder of this Note to exercise any right, remedy or recourse hereunder with respect
to the Company, whether before or after the occurrence of a default, shall constitute waiver or release of any such right, remedy, recourse, default by such holder or on behalf of any other holder; such waiver or release to be effected only through
a written document executed by Lender or such holder and then only to the extent specifically recited therein. A waiver or release with reference to any one event shall not be construed as continuing, as a bar to, or as a waiver or release of, any
subsequent right, remedy or recourse as to a subsequent event.
This Promissory Note shall be governed by, construed and interpreted in accordance with the laws of the State of Georgia.
|
GALECTIN THERAPEUTICS, INC.
|
||
|
By:
|
||
|
Name:
|
Joel Lewis
|
|
|
Title:
|
Chief Executive Officer
|
Exhibit 21.1
SUBSIDIARIES OF REGISTRANT
The following is a list of the Corporation’s subsidiaries as of December 31, 2023. The Corporation owns, directly or indirectly, 100% of the voting securities of each
subsidiary, unless noted otherwise.
|
NAME
|
STATE OR JURISDICTION
OF ORGANIZATION
|
|
|
Galectin Therapeutics Security Corp.
|
Delaware
|
|
|
Galectin Sciences LLC
|
Georgia
|
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 (Nos. 333- 198070, 333-225890, 333-249955
and 333-270981), and Registration Statement on Form S-3 (Nos. 333-208674, 333-213138, 333-218112, 333-226402, 333-230085, 333-233193 and 333-271278) of our report dated March
29, 2024 included in this Annual Report on Form 10-K of Galectin Therapeutics, Inc. and Subsidiaries (the “Company”) relating to the consolidated balance
sheets of the Company as of December 31, 2023 and 2022, and the related consolidated statements of operations, changes in redeemable convertible preferred stock and stockholders’ equity (deficit), and cash flows for each of the two years in the
period ended December 31, 2023.
/s/ Cherry Bekaert LLP
Atlanta, Georgia
March 29, 2024
Exhibit 31.1
Certification pursuant to Rule 13a-14(a) of the Securities Act of 1934
I, Joel Lewis, certify that:
| 1. |
I have reviewed this annual report on Form 10-K of Galectin Therapeutics Inc.;
|
| 2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not
misleading with respect to the period covered by this report;
|
| 3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and
for, the periods presented in this report;
|
| 4. |
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting
(as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and we have:
|
| a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
| b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and
the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
| c) |
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by
this report based on such evaluation; and
|
| d) |
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report)
that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
|
| 5. |
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors
(or persons performing the equivalent functions):
|
| a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and
report financial information; and
|
| b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
|
March 29, 2024
|
/s/ Joel Lewis
|
|
|
Name:
|
Joel Lewis
|
|
|
Title:
|
Chief Executive Officer and President
|
|
|
(principal executive officer)
|
||
Exhibit 31.2
Certification pursuant to Rule 13a-14(a) of the Securities Act of 1934
I, Jack W. Callicutt, certify that:
| 1. |
I have reviewed this annual report on Form 10-K of Galectin Therapeutics Inc.;
|
| 2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not
misleading with respect to the period covered by this report;
|
| 3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and
for, the periods presented in this report;
|
| 4. |
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting
(as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and we have:
|
| a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
| b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and
the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
| c) |
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by
this report based on such evaluation; and
|
| d) |
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report)
that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
|
| 5. |
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors
(or persons performing the equivalent functions):
|
| a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and
report financial information; and
|
| b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
|
March 29, 2024
|
/s/ Jack W. Callicutt
|
|
|
Name:
|
Jack W. Callicutt
|
|
|
Title:
|
Chief Financial Officer
|
|
|
(principal financial and accounting officer)
|
||
Exhibit 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of Galectin Therapeutics Inc. (the “Company”) on Form 10-K for the period ended December 31, 2023 as filed with the Securities and
Exchange Commission on the date hereof (the “Report”), I, Joel Lewis, Chief Executive Officer and President of the Company, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that, to my knowledge:
| (1) |
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
|
| (2) |
The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.
|
|
March 29, 2024
|
/s/ Joel Lewis
|
|
|
Name:
|
Joel Lewis
|
|
|
Title:
|
Chief Executive Officer and President
|
|
|
(principal executive officer)
|
||
Exhibit 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of Galectin Therapeutics Inc. (the “Company”) on Form 10-K for the period ended December 31, 2023 as filed with the Securities and
Exchange Commission on the date hereof (the “Report”), I, Jack W. Callicutt, Chief Financial Officer, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that, to my knowledge:
| (1) |
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
|
| (2) |
The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.
|
|
March 29, 2024
|
/s/ Jack W. Callicutt
|
|
|
Name:
|
Jack W. Callicutt
|
|
|
Title:
|
Chief Financial Officer and President
|
|
|
(principal financial and accounting officer)
|
||
Exhibit 97
GALECTIN THERAPEUTICS INC.
CLAWBACK POLICY
1. Introduction
The Board of Directors (the “Board”) of Galectin Therapeutics Inc. (the “Company”) believes that it is in the best interests of the Company and its stockholders to create and foster a culture of
business ethics, integrity and accountability, and that, among other purposes, reinforces the Company’s incentive compensation philosophy.
The Board has therefore adopted this policy to provide for the recoupment of certain executive compensation in the event of an accounting restatement resulting from material noncompliance with applicable financial
reporting requirements under the federal securities laws (this “Policy”). This Policy is designed to comply with Section 10D of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations
promulgated thereunder.
2. General Administration
This Policy shall be administered by the Board or, if so designated by the Board, the Company’s Compensation Committee of the Board, in which case references herein to the Board shall be deemed to be references to
the Compensation Committee of the Board. Any determinations made by the Board in respect to this Policy, or to matters as to this Policy’s amendment, enforcement, or otherwise, shall be final and binding on all individuals affected by this Policy
and any related procedures carried out by the Company’s executive officers in connection with this Policy.
3. Applicability
This Policy applies to the Company’s (i) current and former Executive Officers1, as determined by the Board in accordance with Section 10D of the Exchange Act and the listing standards of the national
securities exchange on which the Company’s securities are listed, and (ii) such other senior executives or employees who may from time to time be deemed subject to this Policy by the Board in its sole discretion ((i) and (ii) collectively, the “Covered
Persons”).
Subsequent changes in a Covered Person’s employment status, including retirement or termination of employment, do not affect the Company’s rights to recover Incentive Compensation pursuant to this Policy.
1 For purposes of clarity, “Executive Officers” shall include the Company’s president, principal financial officer, principal accounting officer (or if there is no such accounting officer, the controller),
any vice-president of the Company in charge of a principal business unit, division, or function (such as sales, administration, or finance), any other officer who performs a policy-making function, and any other person who performs similar
policy-making functions for the Company. Executive officers of the Company’s parent(s) or subsidiaries are deemed Executive Officers of the Company if they perform such policy-making functions for the Company.
4. Recoupment; Accounting Restatement
If the Company is required to prepare an accounting restatement of its financial statements due to the Company’s material noncompliance with financial reporting requirements under the federal securities laws2
(without regard to any fault or misconduct relating to the Covered Person), then, the Board shall require prompt reimbursement or prompt forfeiture, as applicable, of any excess Incentive Compensation received by a Covered Person:
(i) After beginning service as an Executive Officer (or after otherwise being deemed subject to this Policy by the Board pursuant to Section 3(ii) of this Policy);
(ii) Who served as an Executive Officer at any time during the performance period for that Incentive Compensation (or who otherwise was deemed a Covered Person pursuant to Section 3(ii) of this
Policy at any time during the performance period for that Incentive Compensation);
(iii) While the Company has a class of securities listed on a national securities exchange or a national securities association; and
(iv) During the three completed fiscal years immediately preceding the date that the Company is required to prepare an accounting restatement or during any transition period (that results from a
change in the Company’s fiscal year) within or immediately following those three completed fiscal years. However, a transition period between the last day of the Company’s previous fiscal year end and the first day of its new fiscal year that
comprises a period of nine to 12 months would be deemed a completed fiscal year.
The Company’s obligation to recover excess Incentive Compensation is not dependent on if or when the restated financial statements are filed.
5. Incentive Compensation; Financial Reporting Measures
For purposes of this Policy, “Incentive Compensation” means any compensation that is granted, earned, or vested based wholly or in part on the attainment of a Financial Reporting Measure.3
Incentive Compensation includes (but is not limited to):
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Annual bonuses and other short- and long-term cash incentives;
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Stock options;
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Stock appreciation rights;
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Restricted stock;
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Restricted stock units;
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Performance shares; and
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2 Such required accounting restatements include restatements that correct errors that are material to previously issued financial statements, as well as restatements that correct errors that are not material
to previously issued financial statements but would result in a material misstatement if the errors were left uncorrected in the current report or the error correction was recognized in the current period.
3 Equity awards that vest exclusively upon completion of a specified employment period, without any performance condition, and bonus awards that are discretionary or exclusively based on subjective goals or
goals unrelated to Financial Reporting Measures, do not constitute Incentive Compensation.
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Performance units.
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For purposes of this Policy, “Financial Reporting Measure” means a measure that is determined and presented in accordance with the accounting principles used in preparing the Company’s financial statements, or any
measure that is derived wholly or in part therefrom.
Financial Reporting Measures include (but are not limited to):
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Company stock price;
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Total shareholder return;
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Revenues;
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Net income;
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Earnings before interest, taxes, depreciation and amortization, EBITDA, or adjusted EBITDA;
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Funds from operations;
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Liquidity measures, such as working capital or operating cash flow;
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Return measures, such as return on invested capital or return on assets; and
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Earnings measures, such as earnings per share.
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Incentive Compensation is deemed “received” in the Company’s fiscal period during which the Financial Reporting Measure specified in the compensation award is attained, even if the payment or grant of the
compensation occurs after the end of that period.
In addition, the date on which the Company is required to prepare an accounting restatement will be deemed to have occurred on the earlier of (A) the date the Board concludes or reasonably should have concluded
that the Company’s previously issued financial statements contain a material error, and (B) the date a court, regulator, or other legally authorized body directs the Company to restate its previously issued financial statements to correct a
material error.
6. Excess Incentive Compensation: Amount Subject to Recovery
The amount of Incentive Compensation to be recovered shall be the excess of the Incentive Compensation paid to the Covered Person, which excess was based on, and that is
determined by the Board to have been, the erroneous information that caused or substantially caused the Company’s material noncompliance with the applicable financial reporting requirements under the federal securities laws, over the Incentive
Compensation that would have been paid to the Covered Person had the Incentive Compensation been based on the restated financial statements results.
The amount of excess Incentive Compensation to be recovered shall be computed without regard to any taxes paid.
If the Board cannot so determine the amount of excess Incentive Compensation received by the Covered Person directly from, or as a consequence of, the information in the accounting restatement, then, the Board
shall make its determination based on a reasonable estimate of the effect of the accounting restatement in light of all relevant facts and circumstances. For Incentive Compensation based in part of whole on stock price or measures of shareholder
return, excess Incentive Compensation will be calculated in such manner as the Board deems appropriate in its sole discretion under the circumstances.
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In no event shall the Company be required to award Covered Persons an additional payment if the restated or accurate financial results would have resulted in a higher Incentive Compensation payment.
7. Method of Recoupment
The Board shall determine, in its sole discretion and not inconsistent with applicable law, the method or methods for recouping Incentive Compensation hereunder, which, in the circumstances, may include, without
limitation:
(a) mandating reimbursement of cash Incentive Compensation previously paid;
(b) seeking recovery of any gain realized on the vesting, exercise, settlement, sale, transfer, or other disposition of any equity-based awards;
(c) offsetting the recouped amount from any compensation otherwise owed by the Company to the Covered Person;
(d) cancelling outstanding vested or unvested equity awards; and
(e) taking any other remedial and recovery action not disallowed by applicable law, as determined by the Board.
8. No Indemnification
The Company shall not indemnify any Covered Persons against the loss of any incorrectly awarded Incentive Compensation.
9. Cooperation
Covered Persons agree to facilitate the Company’s compliance with its disclosure obligations related to this Policy in accordance with the requirements of the federal securities laws, SEC rules, regulations, or
standards, and applicable stock exchange listing rules.
10. Interpretation
Consistent with Section 2 of this Policy, the Board shall be authorized to construe and interpret this Policy and to make all determinations necessary, appropriate, or advisable for the administration of this
Policy in accordance with the Company’s constitutional documents.
This Policy memorializes the Board’s intention that this Policy be interpreted in a manner that is consistent with Section 10D of the Exchange Act and any applicable rules, regulations, or standards adopted by the
U.S. Securities and Exchange Commission (the “SEC”) and any national securities exchange on which the Company’s securities are listed.
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11. Effective Date
This Policy shall be effective as of the date it is duly adopted by the Board (the “Effective Date”) and shall apply to all Incentive Compensation that is approved, awarded or granted to Covered Persons on
or after October 2, 2023.
12. Amendment; Termination
Consistent with Section 2 of this Policy, the Board may amend this Policy from time to time in its sole discretion and shall amend this Policy as the Board deems necessary or proper to comply with federal
securities laws, SEC rules, regulations, or standards, and applicable stock exchange listing rules. The Board may, but is not required to, reassess the terms of this Policy on a yearly basis as part of the Company’s analysis of material risks.
The Board may terminate this Policy at any time.
13. Other Recoupment Rights
The Board intends that this Policy shall be applied to the fullest extent of the law. If a Covered Person fails to repay Incentive Compensation that is owed to the Company under this Policy, the Company shall take
all appropriate action to recover such owed amount from the Covered Person, and the Covered Person shall also be required to reimburse the Company for all expenses (including legal expenses) incurred by the Company in recovering such owed amount.
The Board may require that any employment agreement, equity award agreement, or similar agreement entered into on or after the Effective Date shall, as a condition to the grant of any benefit thereunder, require a
Covered Person to agree to abide by the terms of this Policy.
Any right of recoupment under this Policy is in addition to, and not in lieu of, (i) any other remedies or rights of recoupment that may be possibly available to the
Company pursuant to the terms of any applicable provisions in any employment agreement, equity award agreement, equity incentive plan or other arrangement or agreement and (ii) any other equitable or legal remedies available to the Company.
14. Impracticability
The Board shall recover any excess Incentive Compensation in accordance with this Policy unless such recovery would be impracticable, as determined by the Board, in
accordance with Rule 10D-1 of the Exchange Act and the applicable listing standards of the national securities exchange on which the Company’s securities are listed.
15. Successors
This Policy shall be binding and enforceable against all Covered Persons and their beneficiaries, heirs, executors, administrators, or other legal representatives to the extent consistent with relevant law.
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