UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
13D/A
Under
the Securities Exchange Act of 1934
(Amendment
No. 13)*
GALECTIN
THERAPEUTICS, INC.
(Name
of Issuer)
Common
Stock $0.001 par value per share
(Title
of Class of Securities)
299096
107
(CUSIP
Number)
James
C. Czirr
10X Capital Management, LLC
545
Dutch Valley Road, N.E., Suite A
Atlanta,
Georgia 30324
(208)
290-4770
Name,
Address and Telephone Number of Person Authorized to
Receive
Notices and Communications)
September
22, 2023
(Date
of Event which Requires Filing of this Statement)
If
the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D,
and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☐
Note:
Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule.13d-7
for other parties to whom copies are to be sent.
*
The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject
class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover
page.
The
information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18
of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act (however, see the Notes).
| 1. |
Names
of Reporting Person.
10X
Fund, L.P. |
| 2. |
Check
the Appropriate Box if a Member of a Group (See Instructions) |
| |
(a) |
| |
(b) |
| 3. |
SEC
Use Only
|
| 4. |
Source
of Funds (See Instructions)
WC |
| 5. |
Check
if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
☐ |
| 6. |
Citizenship
or Place of Organization
State
of Delaware, United States |
Number
of Shares Beneficially
Owned
by
Each
Reporting
Person
With: |
7. |
Sole
Voting Power – 5,947,207* |
| 8. |
Shared
Voting Power – N/A |
| 9. |
Sole
Dispositive Power – 5,947,207* |
| 10. |
Shared
Dispositive Power – N/A |
| 11. |
Aggregate
Amount Beneficially Owned by Each Reporting Person
5,947,207* |
| 12. |
Check
if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
|
| 13. |
Percent
of Class Represented by Amount in Row (11)
9.6%
** |
| 14. |
Type
of Reporting Person (See Instructions)
PN |
*
Amount of securities beneficially owned by 10X Fund, L.P. (“10X Fund”) includes 5,947,207 shares of Common Stock of
Galectin Therapeutics, Inc. (“GALT”) owned directly by 10X Fund. Beneficial ownership does not include 5,238,736 warrants
owned by 10X Fund which are not exercisable within the next 61 days, because such are warrants are not exercisable if the exercise would
result in 10X Fund and certain related parties owning in excess of 9.99% of the outstanding shares of GALT, which provision may only
be changed on at least 61 days prior notice to GALT.
**
Calculation of percentage based on a total of 61,848,657 shares of Common Stock as of November 8, 2023.
| 1. |
Names
of Reporting Person.
10X
Capital Management, LLC |
| 2. |
Check
the Appropriate Box if a Member of a Group (See Instructions) |
| |
(a) |
| |
(b) |
| 3. |
SEC
Use Only
|
| 4. |
Source
of Funds (See Instructions)
AF |
| 5. |
Check
if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
☐ |
| 6. |
Citizenship
or Place of Organization
State
of Florida, United States |
Number
of Shares Beneficially
Owned
by
Each
Reporting
Person
With: |
7. |
Sole
Voting Power – 5,947,207* |
| 8. |
Shared
Voting Power – N/A |
| 9. |
Sole
Dispositive Power – 5,947,207* |
| 10. |
Shared
Dispositive Power –N/A |
| 11. |
Aggregate
Amount Beneficially Owned by Each Reporting Person
5,947,207* |
| 12. |
Check
if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
|
| 13. |
Percent
of Class Represented by Amount in Row (11)
9.6%
** |
| 14. |
Type
of Reporting Person (See Instructions)
IA,
HC |
*
Amount of securities beneficially owned by 10X Capital Management, LLC (“10X Capital”) includes 5,947,207 shares of
Common Stock held by 10X Fund, L.P. 10X Capital is the general partner of 10X Fund, and controls the decision to vote or dispose of any
shares held by 10X Fund. Beneficial ownership does not include 5,238,736 warrants owned by 10X Fund and 493,517 warrants owned by 10X
Capital which are not exercisable within the next 61 days, because such are warrants are not exercisable if the exercise would result
in 10X Capital and certain related parties owning in excess of 9.99% of the outstanding shares of GALT, which provision may only be changed
on at least 61 days prior notice to GALT.
**
Calculation of percentage based on a total of 61,848,657 shares of Common Stock as of November 8, 2023.
| 1. |
Names
of Reporting Person.
James
C. Czirr |
| 2. |
Check
the Appropriate Box if a Member of a Group (See Instructions) |
| |
(a) |
| |
(b) |
| 3. |
SEC
Use Only
|
| 4. |
Source
of Funds (See Instructions)
PF |
| 5. |
Check
if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
☐ |
| 6. |
Citizenship
or Place of Organization
USA |
Number
of Shares
Beneficially
Owned by
Each Reporting
Person With: |
7. |
Sole
Voting Power – 1,113,908* |
| 8. |
Shared
Voting Power – 5,947,207* |
| 9. |
Sole
Dispositive Power – 1,113,908* |
| 10. |
Shared
Dispositive Power – 5,947,207* |
| 11. |
Aggregate
Amount Beneficially Owned by Each Reporting Person
7,061,115* |
| 12. |
Check
if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
|
| 13. |
Percent
of Class Represented by Amount in Row (11)
11.4%
** |
| 14. |
Type
of Reporting Person (See Instructions)
IN |
*
Amount of securities beneficially owned directly by James C. Czirr (“Mr. Czirr”) includes (i) 762,116 shares owned
outright, (ii) 335,125 shares issuable upon vested stock options, and (iii) 16,667 shares issuable upon conversion of shares of Series
A Preferred Stock owned by Mr. Czirr. Mr. Czirr’s beneficial ownership also includes 5,947,207 common shares held by 10X Fund.
Mr. Czirr, as a member and manager of 10X Capital, the general partner of 10X Fund, shares voting and investment power over shares held
by 10X Fund and 10X Capital, and disclaims beneficial ownership of shares owned by 10X Fund or 10X Capital except to the extent of his
beneficial interest in such entities. 10X Capital is the general partner of 10X Fund, and controls the decision to vote or dispose of
any shares held by 10X Fund. Beneficial ownership does not include 5,238,736 warrants owned by 10X Fund and 493,517 warrants owned by
10X Capital which are not exercisable within the next 61 days, because such warrants are not exercisable if the exercise would result
in 10X Fund or 10X Capital and certain related parties owning in excess of 9.99% of the outstanding shares of GALT, which provision may
only be changed on at least 61 days prior notice to GALT.
**
Calculation of percentage based on a total of 61,848,657 shares of Common Stock as of November 8, 2023.
This
Amendment No. 13 to Schedule 13D supersedes and replaces the Schedule 13D (the “Original Statement”) initially filed
on March 24, 2009, as amended from time to time thereafter.
ITEM
1. SECURITY AND ISSUER
This
Schedule 13D relates to the Common Stock, par value $0.001 per share (the “Common Stock”), of Galectin Therapeutics,
Inc. (the “Issuer”). The principal executive officers of the Issuer are located at 4960 Peachtree Industrial Boulevard,
Suite 240, Norcross, GA 30071.
ITEM
2. IDENTITY AND BACKGROUND
(a)
This Statement is filed by:
(i)
10X Fund, L.P. (“10X Fund”), a Delaware limited partnership;
(ii)
10X Capital Management, LLC (“10X Capital”), a Florida limited liability company, the general partner of 10X Fund;
(iii)
James C. Czirr (“Mr. Czirr”), the managing member of 10X Capital.
The
foregoing persons are hereinafter sometimes collectively referred to as the “Reporting Persons”. All disclosures herein
with respect to any Reporting Person are made only by such Reporting Person. Any disclosures herein with respect to persons other than
the Reporting Persons are made on information and belief after making inquiry to the appropriate party.
(b)
The address of the principal business and principal office of the Reporting Persons is c/o 10X Capital Management, LLC, 545 Dutch Valley
Road, N.E., Suite A, Atlanta, Georgia 30324.
(c)
10X Fund is an investment fund. 10X Capital only business activity is to serve as the general partner of 10X Fund. Mr. Czirr is the majority
owner and managing member of 10X Capital.
(d)
None of the Reporting Persons has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors).
(e)
None of the Reporting Persons has, during the last five years, been a party to civil proceeding of a judicial administrative body of
competent jurisdiction and, as a result of such proceeding, was, or is subject to, a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, Federal or state securities laws or finding any violation with respect
to such laws.
ITEM
3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
10X
Fund: As of November 20, 2023, 10X Fund owned directly (i) 5,947,207 common shares; and (ii) warrants to acquire 5,238,736 common
shares.
The
source of the funds used to acquire the securities beneficially owned by 10X Fund were funds invested by limited partners of 10X Fund,
which were then invested in the Issuer’s securities.
Pursuant
to a Securities Purchase Agreement dated February 12, 2009, 10X Fund invested an aggregate of $6,000,000 in the Issuer in eleven different
closings, pursuant to which it acquired an aggregate of 900,000 shares of Series B-1 Preferred Stock, 2,100,000 shares of Series B-2
Preferred Stock, 1,000,000 Class A-1 Warrants, 1,000,000 Class A-2 Warrants, and 4,000,000 Class B Warrants. All of the funds invested
by 10X Fund were derived from investments by limited partners in 10X Fund.
In
2011, 10X Fund invested an aggregate of $3,000,000 in the Issuer for 1,000,000 common shares through the exercise of the Class A-1 Warrants.
All of the funds invested by 10X Fund were derived from investments by limited partners in 10X Fund.
In
2013 and 2014, 10X Fund invested an aggregate of $3,000,000 in the Issuer for 1,000,000 common shares through the exercise of the Class
A-2 Warrants. All of the funds invested by 10X Fund were derived from investments by limited partners in 10X Fund.
Pursuant
to a Securities Purchase Agreement and a Lock-Up Agreement each dated September 22, 2016, 10X Fund invested in aggregate of $2,508,000
in the Issuer in three different closings, pursuant to which it acquired 2,508,000 of Series B-3 Preferred Stock, 1,342,009 Series B
Warrants, and 1,127,033 Lock-Up Warrants.
10X
Fund’s current ownership of common stock of the Issuer is derived from the following transactions:
| ● | 2,498,184
shares received as stock dividends on the Series B-1, B-2 and B-3 Preferred Stock; plus |
| ● | 1,000,000
shares received on exercise of Class A-1 Warrants; plus |
| ● | 1,000,000
shares received on exercise of Class A-2 Warrants; plus |
| ● | 600,000
shares received on conversion of the Series B-1 Preferred Stock; plus |
| ● | 1,400,000
shares received on conversion of the Series B-2 Preferred Stock; plus |
| ● | 1,789,346
shares received on conversion of the Series B-3 Preferred Stock; less |
| ● | 1,245,256
shares sold on the open market; less |
| ● | 1,095,067
shares distributed to limited partners who withdrew from 10X Fund. |
10X
Fund’s current ownership of 2,793,833 Class B Warrants is derived from the following transactions:
| ● | 4,000,000
warrants issued under the February 12, 2009 securities purchase agreement; less |
| ● | 700,000
warrants allocable to 10X Capital under the terms of the offering to its limited partners;
less |
| ● | 506,167
Class B Warrants distributed to limited partners who withdrew from 10X Fund. |
10X
Fund’s current ownership of 1,242,005 Class B-3 Warrants is derived from investments made by 10X Fund in the Company under the
2016 Securities Purchase Agreement.
10X
Fund’s current ownership of 1,102,898 Lock-Up Warrants is derived from the following transactions:
| ● | 1,127,033
warrants issued under the September 22, 2016 Securities Purchase Agreement and Lock-Up Agreement;
less |
| ● | 24,135
Lock-Up Warrants distributed to limited partners who withdrew from 10X Fund. |
10X
Capital: As of November 20, 2023, 10X Capital owned directly 490,181 Class B Warrants of the Issuer and 3,336 Lock-Up Warrants.
10X
Capital’s current ownership of 490,181 Class B Warrants is derived from the following transactions:
| ● | 700,000
warrants allocable to 10X Capital under the terms of the offering to its limited partners;
less |
| ● | 225,000
donated to The Widows and Orphans Fund; plus |
| ● | 15,180
warrants allocated to 10X Capital as performance fees earned from by withdrawing limited
partners. |
10X
Capital’s current ownership of 3,336 Lock-Up Warrants is derived from warrants allocated to 10X Capital is performance fees earned
from withdrawing limited partners.
Mr.
Czirr: As of November 20, 2023, Mr. Czirr beneficially owned directly the following shares of common stock: (i) 762,116 shares owned
outright, (ii) 335,125 shares issuable upon vested stock options, and (iii) 16,667 shares issuable upon conversion of shares of Series
A Preferred Stock. The source of funds to acquire the securities owed by Mr. Czirr were either his personal funds or services provided
by him to the Issuer.
ITEM
4. PURPOSE OF TRANSACTION
The
Reporting Persons acquired their interests in the Issuer for investment purposes. The Reporting Persons intend to monitor and evaluate
their investment on a continuing basis.
Except
as set forth in this Item 4 and elsewhere in this Statement, the Reporting Persons do not have any plans or proposals which related to
or would result in any of the actions specified in Item 4 of Schedule 13D, but the Reporting Persons reserve the right to change their
intentions with respect to any of the foregoing at any time without notice.
ITEM
5. INTEREST IN SECURITIES OF THE ISSUER
(a)
— (b) The aggregate number and percentage of shares of Common Stock beneficially owned by the Reporting Persons (on the basis of
a total of 61,848,657 shares of Common Stock issued and outstanding as reported by the Issuer) are as follows:
| |
10X
Fund, L.P. |
|
| |
a) |
Amount
beneficially owned: 5,947,207 |
Percentage
9.6% |
| |
b) |
Number
of shares to which the Reporting Person has: |
|
| |
|
i)
Sole power to vote or to direct the vote: |
5,947,207 |
| |
|
ii)
Shared power to vote or to direct the vote: |
— |
| |
|
iii)
Sole power to dispose or to direct the disposition of: |
5,947,207 |
| |
|
iv)
Shared power to dispose or to direct the disposition of: |
— |
| |
10X
Capital Management, LLC |
|
| |
a) |
Amount
beneficially owned: 5,947,207 |
Percentage
9.6% |
| |
b) |
Number
of shares to which the Reporting Person has: |
|
| |
|
i)
Sole power to vote or to direct the vote: |
— |
| |
|
ii)
Shared power to vote or to direct the vote: |
5,947,207 |
| |
|
iii)
Sole power to dispose or to direct the disposition of: |
— |
| |
|
iv)
Shared power to dispose or to direct the disposition of: |
5,947,207 |
| |
James
C. Czirr |
|
| |
a) |
Amount
beneficially owned: 7,061,115 |
Percentage
11.4% |
| |
b) |
Number
of shares to which the Reporting Person has: |
|
| |
|
i)
Sole power to vote or to direct the vote: |
1,113,908 |
| |
|
ii)
Shared power to vote or to direct the vote: |
5,947,207 |
| |
|
iii)
Sole power to dispose or to direct the disposition of: |
1,113,908 |
| |
|
iv)
Shared power to dispose or to direct the disposition of: |
5,947,207 |
Mr.
Czirr, as a member of and the managing member of 10X Capital, which is the general partner of 10X Fund, may be deemed to share beneficial
ownership of any shares of common stock beneficially owned by 10X Capital and 10X Fund, but he disclaims such beneficial ownership to
the extent such beneficial ownership exceeds his pecuniary interest in 10X Fund and 10X Capital.
(c)
Transactions effected during the last sixty (60) days or since the most recent filing on Schedule 13D:
On
September 22, 2023, the Issuer, 10X Fund and 10X Capital entered into an agreement under which the parties agreed to amend the Class
B Warrants, the Class B-3 Warrants and the Lock-UP Warrants to (i) extend the expiration date to September 30, 2026, (ii) delete the
cash-less exercise provisions (to the extent contained therein), (iii) add a provision that provides that the warrants may not be exercised
if the exercise would result in the holder and certain related parties owning in excess of 9.99% of the common stock of the Issuer, (iv)
provide that if the holder or its affiliates failed to vote their shares of common stock in the manner recommended by the Issuer’s
board of directors, the expiration date would terminate 30 days thereafter, and (v) provide that the expiration date of the warrants
would expire thirty calendar days after the Issuer’s common stock has a closing price of $6.00 or greater for 10 consecutive trading
days.
(d)
Name of any other person known to have the right to receive or power to direct dividends from, or the proceeds from the sale of the foregoing
securities: None.
(e)
N/A
ITEM
6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER
There
are no contracts, arrangements, understandings or relationships (legal or otherwise), among the persons named in Item 2 and between such
persons and any person with respect to the securities of Issuer, including but not limited to transfer of voting of any of the securities,
finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profit, division of profits or loss, of
the giving or withholding of proxies, other than the documents filed as Exhibits hereto pursuant to Item 7.
ITEM
7. MATERIAL TO BE FILED AS EXHIBITS
| Exhibit
No. |
|
Description |
|
|
| A |
|
Registration
Rights Agreement dated February 12, 2009 between the Issuer and 10X Fund, L.P. |
|
Incorporated
by reference from Exhibit 10.2 to the Issuer’s Current Report on Form 8-K filed on February 17, 2009 |
| |
|
|
|
|
| B |
|
Registration
Rights Agreement, dated September 22, 2016, by and between Galectin Therapeutics Inc. and 10X Fund, L.P. |
|
Incorporated
by reference from Exhibit 10.2 to the Issuer’s Current Report on Form 8-K as filed with the Commission on September 27, 2016 |
| |
|
|
|
|
| C |
|
Joint
Filing Agreement |
|
Incorporated
by reference from Exhibit P to the Issuer’s Schedule 13D/A as filed with the Commission on September 8, 2017 |
| |
|
|
|
|
| D |
|
Settlement Agreement dated December 17, 2018 |
|
Filed
herewith |
| |
|
|
|
|
| E |
|
Form of Amended and Restated Class B Common Stock Purchase Warrant |
|
Filed
herewith |
| |
|
|
|
|
| F |
|
Form of Amended and Restated Class B-3 Common Stock Purchase Warrant |
|
Filed
herewith |
| |
|
|
|
|
| G |
|
Form of Amended and Restated Lock-Up Common Stock Purchase Warrant |
|
Filed
herewith |
SIGNATURE
After
reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete
and correct.
| December 1, 2023 |
|
|
| Date |
|
|
| |
|
|
| 10X
FUND, L.P. |
|
|
| |
|
|
| By:
10X Capital Management, LLC, general partner |
|
|
| |
|
|
| /s/
James C. Czirr |
|
|
| Signature |
|
|
| James
C. Czirr, Managing Member |
|
|
| Name/Title |
|
|
| |
|
|
| December 1, 2023 |
|
|
| Date |
|
|
| |
|
|
| 10X
CAPITAL MANAGEMENT, LLC |
|
|
| |
|
|
| /s/
James C. Czirr |
|
|
| Signature |
|
|
| James
C. Czirr, Managing Member |
|
|
| Name/Title |
|
|
| |
|
|
| December 1, 2023 |
|
|
| Date |
|
|
| |
|
|
| /s/
James C. Czirr |
|
|
| Signature |
|
|
| James
C. Czirr, Individually |
|
|
| Name/Title |
|
|
The
original statement shall be signed by each person on whose behalf the statement is filed or his authorized representative. If the statement
is signed on behalf of a person by his authorized representative (other than an executive officer or general partner of the filing person),
evidence of the representative’s authority to sign on behalf of such person shall be filed with the statement: provided, however,
that a power of attorney for this purpose which is already on file with the Commission may be incorporated by reference. The name and
any title of each person who signs the statement shall be typed or printed beneath his signature.
Exhibit
D
SETTLEMENT
AGREEMENT AND RELEASE
This
Settlement Agreement and Release (this “Agreement”) is entered into between Galectin Therapeutics, Inc., a
Nevada corporation (the “Company”) and 10X Fund, LP, a Delaware Limited Partnership (“10X Fund”
as of December 17, 2018 (the “Effective Date”):
R
E C I T A L S
Recital
A. The Company is a clinical stage biopharmaceutical company engaged in drug research and development to create new therapies
for fibrotic disease and cancer;
Recital
B. 10X Fund is an investor in the Company and holds all of the outstanding shares of Series B-1 Preferred Stock, Series B-2 Preferred
Stock and Series B-3 Preferred Stock issued by the Company (collectively, the “Series B Preferred Stock”);
Recital
C. The Series B Preferred Stock possesses a number of special voting rights (the “Super Voting Rights”),
including the right to elect two and nominate an additional three directors, for a total of five members of the board of directors of
the Company (the “Board”), and further has a number of protective rights that require the approval of the holder
of the Series B Preferred Stock prior to engaging in a number of corporate transactions, such as financings, as all are more fully set
forth in the Second Amended and Restated Certificate of Designation of Preferences, Rights and Limitations of Series B-1, Series B-2
and Series B-3, for the Series B Preferred Stock (the “Certificate of Designation”);
Recital
D. The Series B Preferred Stock is entitled to a quarterly dividend, payable either in cash or in stock, which is 12% in the case
of the Series B-1 Preferred Stock and Series B-2 Preferred Stock and 8% in the case of the Series B-3 Preferred Stock (collectively the
“Dividend Rights”);
Recital
E. 10X Fund is a ten percent beneficial owner of the Company under the provisions of Section 16 of the Securities Exchange Act
of 1934 (15 U.S.C. § 78(p), et seq.) (herewith “Section 16”), which status subjects 10X Fund to
potential obligations to disgorge short swing profits arising from purchases and sales that occur within six months of one another;
Recital
F. On January 17, 2017, 10X Fund filed a Complaint For Declaratory Relief and Damages (the “Action”)
against the Company asking that the Court determine, inter alia, if the receipt of stock dividends by the 10X Fund pursuant to
the Dividend Rights are purchases for Section 16 purposes;
Recital
G. During 2018 10X Fund engaged in sales of common stock of the Company (the “Common Stock”), that when
paired to stock dividends received by 10X Fund on the Series B Preferred Stock gave rise to a claim by the Company against 10X Fund.
That claim was asserted by the Company against 10X Fund on February 20, 2018 (the “Demand”) in the amount of
$792,504.30, which claim the 10X Fund has disputed;
Recital
H. During 2018 10X Fund made additional sales of Common Stock that the Company contends are paired to stock dividends received
by the 10X Fund, and on account of such sales the Company has updated and increased the Demand against the 10X Fund from $792,504.30
to $1,409,370.95, all as more fully detailed in the counterclaim filed by the Company against the 10X Fund in the Action (the “Counterclaim”);
Recital
I. In connection with the issuance of the Series B-1 Preferred Stock and the Series B-2 Preferred Stock, the Company issued a
number of warrants exercisable by the holder thereof for the purchase of Common Stock, a schedule of such warrants (other than warrants
previously transferred to limited partners who have withdrawn from the 10X Fund), is attached hereto as Exhibit A (collectively
the “Subject Warrants”);
Recital
J. The Company and 10X have differing views on the issues presented to the Court for decision in the Action and the Counterclaim;
Recital
K. The Company and 10X have diligently prosecuted their respective positions with respect to the matters before the Court in the
Action and the Counterclaim which prosecution has included among others filing cross motions for summary judgment, filing multiple briefs
in support of their respective positions and engaging in oral argument before the Court; and
Recital
L. The Company and 10X have determined that it is the best interest of each to enter into this Agreement, which inter alia,
will lead to the dismissal of the Action and Counterclaim and the resolutions of other matters as set forth herein;
WHEREAS,
each Party denies all allegations, claims and defenses made by the other Party in the Action, the Demand and Counterclaim, except as
expressly admitted in the Action.
WHEREAS,
notwithstanding the above, solely in order to avoid the cost, delay and uncertainty of further litigation, the Parties desire to compromise
and settle certain disputes and claims which exist or which may exist between and among them as more fully set forth herein.
C
O V E N A N T S
NOW,
THEREFORE, in consideration of the mutual promises and releases set forth below and other valuable consideration, the sufficiency
of which is hereby acknowledged, the Parties agree as follows:
1. Conversion.
Upon the Settlement Effectiveness (as herein defined) 10X Fund will convert all of its shares of Series B Preferred Stock into Common
Stock on the terms set forth in the Certificate of Designation (the “Conversion”), by the execution and delivery
to the Company of the Notices of Conversion attached hereto as Exhibit B-1, Exhibit B-2 and Exhibit B-3.
The Parties acknowledge and agree that upon the Conversion the Super Voting Rights and the Dividend Rights will be extinguished.
2. Consideration
for the Conversion. In consideration for the Conversion, the Company and 10X Fund agrees as follows:
(a) The
Company will release 10X Fund from the Demand and Counterclaim and to the extent not otherwise covered in the Demand and Counterclaim
with respect to any short swing profits claims arising after January 1, 2017 that may arise from the following: the match of (A) stock
dividends on Series B Preferred Stock issued by the Company to 10X Fund through the date of the Conversion, if such dividends are deemed
to be purchases, to (B) sales and/or in kind distributions by 10X that have occurred to date and that may occur through the six month
anniversary of the Conversion (collectively, the “Released Short Swing Profits Claims”).
(b) The
Company will amend the Subject Warrants, with such amendments being in the form that is attached hereto as Exhibit C-1
(as to the Subject Warrants held by 10X Fund), Exhibit C-2 (as to the Subject Warrants held by 10X Capital Management)
and Exhibit C-3 (as to the Subject Warrants held by the Widows and Orphans Fund). As more fully provided in such amendments,
the Subject Warrants shall be amended to provide that (a) the maturity of the Subject Warrants is extended by five years, (b) except
as provided in the last sentence of this section, the Subject Warrants are not transferable and can only be held and exercised by the
present owner thereof, (c) except as provided in the last sentence of this section, the Subject Warrants are cashless so long as held
and exercised by the present holders thereof (in the hands of a transferee other than as provided in the last sentence of this section
there would be no cashless feature), (d) the Subject Warrants may be exercised only in a minimum amount of the lesser of (i) 10,000 shares
(determined prior to applying the cashless exercise formula, if applicable, or (ii) the entire balance of the warrant; and (e) for so
long as the longer of 10X Fund holds any of the Subject Warrants, 10X Fund has the right to nominate one director to serve on the Board
as provided in (c) below. Nothing herein is intended to limit or impair 10X Capital Management’s rights, including the right effect
a mandatory withdrawal of any investor at any time or to dissolve the 10X Fund at any time at its discretion. In the event 10X Capital
Management decides to dissolve 10X Fund, then notwithstanding anything in this Section (b) to the contrary, 10X Fund may distribute the
Subject Warrants to its limited partners, and such Subject Warrants shall retain their 5 year extended term and cashless feature.
(c) For
so long as 10X Fund holds unexercised any of the Subject Warrants or 10X Fund is a beneficial owner of 10% of the Common Stock (as defined
in Section 16), 10X Fund (but not its transferee) shall have the right to nominate one director to serve on the Board. The Company shall
take all reasonably necessary or desirable actions within its control (including without limitation calling special meetings of the Board,
nominating such person designated by 10X Fund as a director on the applicable proxy statement and recommending his or her election) to
permit the 10X Fund to appoint one member of the Board. The Board shall not nominate more directors for election than there are seats
on the Board. James Czirr is approved as a director nominee on behalf of 10X Fund. 10X Fund may nominate a person other than and in lieu
of James Czirr. If James Czirr resigns as a director during his term of service, the Company will appoint a nominee selected by 10X Fund
to serve the remainder of the term until the next annual meeting of stockholders. The foregoing provision or a variation thereof is included
in the amendments to the Subject Warrants issued or to be issued to 10X Fund, which constitute multiple expressions of a single right.
For the avoidance of doubt the right granted to 10X Fund in this Agreement and in the amendment to the Subject Warrants in the aggregate
is the right to nominate a total of one director.
(d) The
Company will pay the legal fees of the 10X Fund in the Action and Counterclaim in the amount of $120,000. The Company will also pay the
legal fees of the Company’s counsel in the Action and Counterclaim. The Company agrees to indemnify 10X Fund, 10X Capital Management
and James C. Czirr from any claims asserted against 10X Fund, 10X Capital Management and James C. Czirr by lawyers claiming they are
entitled to payment of legal fees attributable to the recovery by Company in this Agreement.
(e) So
long as any of the Subject Warrants is outstanding, or James C. Czirr is the beneficial owner of at least 250,000 shares of common stock,
the Company will, in its proxies and website and other places where the history of the Company is detailed, continue to identify James
C. Czirr as a co-founder of the Company, such as the following language which appeared in the most recent proxy: “Mr. Czirr was
a co-founder of Galectin Therapeutics in July 2000.”
(f) The
Company and the Board in good faith will consider the engagement of person identified by 10X Fund to Company on November 12, 2018 as
an IR consultant to the Company. In its determination the Company and the Board will consider the needs of the Company, the view of the
Company’s CEO and management team, input from the Company’s IR/PR firms and IR advisors, and the role that such individual
would perform.
3. Equality
of Consideration. The Company and 10X Fund agree that value of the consideration delivered by the Company to 10X Fund in or pursuant
to this Agreement is equal to the value received by the Company from the Conversion and the extinguishment of the Super Voting Rights
and Dividend Rights occurring thereby.
4. Conditions
to Settlement.
(a) This
Agreement is contingent upon the entry of an order from the Court approving the terms of this Agreement pursuant to Section 16(b).
(b) This
Agreement is contingent upon a three year extension of the $10,000,000 line of credit from Richard Uihlein, such extension to be in the
form of the amendment attached hereto as Exhibit D.
(c) This
Agreement will become effective (“Settlement Effectiveness”) upon the satisfaction of conditions (a) and (b).
5. Dismissal
of Action. The 10X Fund agrees to dismiss the Action within one (1) business days of the Settlement Effectiveness and the receipt
of the sum specified in section 3(d), which dismissal shall be without prejudice as to the Counts seeking declaratory relief and with
prejudice as to the Count seeking monetary relief. The Company agrees to dismiss the Counterclaim with prejudice within one (1) business
days of the Settlement Effectiveness.
6. Mutual
Release.
(a) Upon
the Settlement Effectiveness, 10X Fund, 10X Capital Management, and James C. Czirr on behalf of themselves and their successors, heirs,
assigns, attorneys, executors, administrators, and all other representatives, or any and all other persons who could claim through them,
hereby unconditionally, irrevocably, forever and fully release, acquit, and forever discharge the Company of and from any and all claims,
demands, actions, causes of action, suits, liens, debts, obligations, promises, agreements, costs, damages, liabilities, and judgments
of any kind, nature, or amount whether in law or equity, liquidated or unliquidated, including any and all claimed or unclaimed compensatory
damages, consequential damages, interest, costs, expenses and fees (including reasonable or actual attorneys’ fees) which were
actually asserted in the Action.
(b) In
consideration of the mutual promises and releases set forth herein upon the Settlement Effectiveness, the Company, on behalf of itself,
its successors, heirs, assigns, attorneys, executors, administrators, and all other representatives, or any and all other persons who
could claim through them, hereby unconditionally, irrevocably, forever and fully release, acquit, and forever discharge 10X Fund, 10X
Capital Management and James C. Czirr from any and all claims, actions, causes of action, obligations, costs, expenses, damages, losses,
liabilities, suits, debts, demands (including attorneys’ fees and costs) of whatever character, related to the Released Short Swing
Profits Claim.
7. No
Admission of Liability. This Agreement is the result of a compromise and shall never at any time for any purpose be considered
as an admission of liability or responsibility on the part of any Party, and each Party continues to deny such liability and to disclaim
such responsibility.
8. Tax
Reporting. The Parties intend that the transactions described in this Agreement constitute a Section 368 tax-free reorganization
under the Internal Revenue Code and agree to report it as such on their respective tax returns.
9. Public
Disclosure. The Parties understand and agree that the terms of this Agreement will be publicly disclosed by the Company upon
the Settlement Effectiveness.
10. Full
and Independent Knowledge. The Parties represent that they have carefully read and understand the scope and effect of each provision
contained in this Agreement. The Parties further represent that they are not relying and have not relied upon any representation or statement
made by any other Party or such Party’s representatives with regard to the subject matter, basis or effect of this Agreement.
11. Prior
Review of this Agreement. Each Party acknowledges that this Agreement has been fully read, reviewed and understood by its authorized
signatory. Because this Agreement is the product of negotiations between the Parties it shall be construed as if jointly prepared and
drafted by them, and no provision hereof shall be construed for or against any Party by reason of ambiguity in language, rules of construction
against the drafting Party, or similar doctrine.
12. Advice
of Counsel. In executing this Agreement, the Parties acknowledge that they have consulted with and have had the advice and counsel
of attorneys licensed to practice law and that they have executed this Agreement after independent investigation and without fraud, duress
or undue influence.
13. Final
and Binding Agreement. No promise, inducement or agreement not herein contained or expressly incorporated herein by reference
has been made, and this Agreement contains the entire agreement between the Parties. The terms of this Agreement are intended to be contractual
and not mere recitals. The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties, and to their respective
heirs, successors, administrators, assigns, conservators, guardians, agents, representatives, corporate affiliates, officers, directors,
partners, shareholders and employees.
14. Execution
of Further Documents and Cooperation. Following the execution of this Agreement, the Parties shall take such action and execute
and deliver such further documents as may be reasonably necessary or appropriate to effectuate the intention of this Agreement.
15. Governing
Law. This Agreement and the rights and obligations hereunder shall be governed by and construed in accordance with the laws of
the State of Georgia, without regard to the principles of the conflicts of laws thereof. In the event of any dispute arising out of this
Agreement, the Parties agree that the only proper forum for the resolution of any such dispute shall be the state and federal courts
in the State of Georgia.
16. Attorney’s
Fees. If any Party to this Agreement brings a proceeding to enforce or interpret any provision of this Agreement, the prevailing
Party shall be entitled to recover its reasonable attorneys’ fees in addition to all other costs allowed by law.
17. Execution
in Counterparts. The Parties agree that this Agreement may be executed in counterparts and that it is the intent of the Parties
that the copy signed by a Party will be deemed an original for all purposes, will constitute one and the same instrument, and will be
fully enforceable against such Party. Delivery of this Agreement may be accomplished by facsimile, PDF reproduction or other electronic
means (“Electronic Delivery”); if Electronic Delivery is utilized by any of the Parties, a counterpart original shall be
promptly executed and/or delivered following request by any Party.
18. Captions
and Headings. The captions and headings contained in this Agreement have been inserted for convenience only and in no way define,
limit or enlarge the scope or interpretation of this Agreement.
19. Severability.
Should any provision of this Agreement be held unlawful, unenforceable, or invalid by reason of statute, ordinance, law and/or decision
of any tribunal or court of law or equity, the same shall be effective to that extent, without in any way invalidating or affecting the
remaining provisions of this Agreement.
20. Amendment;
Waiver. This Agreement may be amended only by a written instrument signed by an authorized representative of each of the Parties.
No failure to exercise and no delay in exercising, on the part of any Party, any right, remedy, power or privilege hereunder, shall operate
as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. The failure of any Party
to insist upon a strict performance of any of the terms or provisions of this Agreement, or to exercise any option, right or remedy herein
contained, shall not be construed as a waiver or as a relinquishment for the future of such term, provision, option, right or remedy,
but the same shall continue and remain in full force and effect. No waiver by any Party of any term or provision of this Agreement shall
be deemed to have been made unless expressed in writing and signed by such Party.
21. Authority.
Each of the signatories hereto represents and warrants that it is fully authorized to enter into this Agreement on behalf of the person
or entity for which it executes this Agreement.
IN
WITNESS WHEREOF, each of the Parties has caused this Agreement to be duly executed on its behalf as of the date first above written.
| 10
X FUND, LP |
|
GALECTIN
THERAPEUTICS, INC. |
| |
|
|
|
|
| By: |
10X
Capital Management, LLC |
|
By: |
|
| |
|
|
|
Harold
Shlevin |
| |
|
|
|
President
and CEO |
| By: |
|
|
|
|
| |
James
C. Czirr |
|
|
|
| |
Managing
Member |
|
|
|
EXHIBIT
A
SUBJECT
WARRANTS
| Warrant
No. |
|
Holder |
|
Number |
| |
|
|
|
|
| W-2009-B-02E |
|
10X
Capital Management LLC |
|
101,785
|
| W-2009-B-03E |
|
10X
Capital Management LLC |
|
56,547
|
| W-2009-B-04E |
|
10X
Capital Management LLC |
|
33,928
|
| W-2009-B-05E |
|
10X
Capital Management LLC |
|
36,757
|
| W-2009-B-06F |
|
10X
Capital Management LLC |
|
35,057
|
| W-2009-B-07G |
|
10X
Capital Management LLC |
|
36,757
|
| W-2009-B-08E |
|
10X
Capital Management LLC |
|
36,757
|
| W-2009-B-09E |
|
10X
Capital Management LLC |
|
37,887
|
| W-2009-B-010E |
|
10X
Capital Management LLC |
|
35,060
|
| W-2009-B-011G |
|
10X
Capital Management LLC |
|
64,465
|
| W-2009-B-02F |
|
The
Widows and Orphans Fund |
|
48,215
|
| W-2009-B-03F |
|
The
Widows and Orphans Fund |
|
26,786
|
| W-2009-B-04F |
|
The
Widows and Orphans Fund |
|
16,072
|
| W-2009-B-05F |
|
The
Widows and Orphans Fund |
|
17,410
|
| W-2009-B-06G |
|
The
Widows and Orphans Fund |
|
16,610
|
| W-2009-B-07H |
|
The
Widows and Orphans Fund |
|
17,410
|
| W-2009-B-08F |
|
The
Widows and Orphans Fund |
|
17,410
|
| W-2009-B-09F |
|
The
Widows and Orphans Fund |
|
17,946
|
| W-2009-B-010F |
|
The
Widows and Orphans Fund |
|
16,606
|
| W-2009-B-011H |
|
The
Widows and Orphans Fund |
|
30,535
|
| W-2009-B-01A |
|
10X
Fund LP |
|
1,200,000
|
| W-2009-B-02C |
|
10X
Fund LP |
|
450,000
|
| W-2009-B-03C |
|
10X
Fund LP |
|
250,000
|
| W-2009-B-04C |
|
10X
Fund LP |
|
150,000
|
| W-2009-B-05C |
|
10X
Fund LP |
|
162,499
|
| W-2009-B-06C |
|
10X
Fund LP |
|
54,999
|
| W-2009-B-07C |
|
10X
Fund LP |
|
78,976
|
| W-2009-B-08C |
|
10X
Fund LP |
|
162,500
|
| W-2009-B-09C |
|
10X
Fund LP |
|
167,501
|
| W-2009-B-010C |
|
10X
Fund LP |
|
155,001
|
| W-2009-B-011C |
|
10X
Fund LP |
|
48,166
|
Exhibit
B-1
NOTICE
OF CONVERSION
SERIES
B-1 CONVERTIBLE PREFERRED STOCK
(TO
BE EXECUTED BY THE REGISTERED HOLDER IN ORDER TO CONVERT SHARES OF PREFERRED STOCK)
The
undersigned hereby elects to convert the number of shares of Series B-1 Convertible Preferred Stock (“Series B-1 Preferred”)
indicated below, into shares of common stock, par value $0.001 per share (the “Common Stock”), of Galectin Therapeutics,
Inc., a Nevada corporation (the “Corporation”), according to the conditions hereof, as of the date written below.
If shares are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto and is delivering herewith such certificates and opinions as reasonably requested by the Corporation in accordance therewith.
No fee will be charged to the Holder for any conversion, except for such transfer taxes, if any.
Conversion
Calculations:
| Date
to Effect Conversion: |
|
December
_, 2018 |
| Number
of shares of Series B-1 Preferred owned prior to Conversion: |
|
900,000 |
| Stated
Value of Shares of Series B-1 Preferred to be Converted: |
|
$2.00 |
| Conversion
Amount 1: |
|
[Insert
Conversion Amount] |
| Applicable
Conversion Price |
|
$3.00 |
| Number
of Shares of Common Stock to be Issued 2:: |
|
[Insert
Number of Shares of Common Stock to be Issued] |
| Number
of Shares of Series B-1 Preferred Owned Subsequent to Conversion: |
|
0 |
| |
10
X FUND, LP |
| |
|
| |
By: |
10X
Capital Management, LLC |
| |
|
|
| |
By: |
|
| |
|
James
C. Czirr |
| |
|
Managing
Member |
1
The “Conversion Amount” means the sum of the Stated Value of Series B-1 Preferred to be Converted plus all accrued
but unpaid dividends on such Series B1 Preferred as of the Date to Effect Conversion.
2
The number of shares of Common Stock to be issued is determined by dividing the Conversion Amount by the Applicable Conversion
Price.
Exhibit
B-2
NOTICE
OF CONVERSION
SERIES
B-2 CONVERTIBLE PREFERRED STOCK
(TO
BE EXECUTED BY THE REGISTERED HOLDER IN ORDER TO CONVERT SHARES OF PREFERRED STOCK)
The
undersigned hereby elects to convert the number of shares of Series B-2 Convertible Preferred Stock (“Series B-2 Preferred”)
indicated below, into shares of common stock, par value $0.001 per share (the “Common Stock”), of Galectin Therapeutics,
Inc., a Nevada corporation (the “Corporation”), according to the conditions hereof, as of the date written below.
If shares are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto and is delivering herewith such certificates and opinions as reasonably requested by the Corporation in accordance therewith.
No fee will be charged to the Holder for any conversion, except for such transfer taxes, if any.
Conversion
Calculations:
| Date to Effect Conversion: |
|
December _, 2018 |
| Number of shares of Series B-2 Preferred owned prior to Conversion: |
|
2,100,000 |
| Stated Value of Shares of Series B-2 Preferred to be Converted: |
|
$2.00 |
| Conversion
Amount 3: |
|
[Insert Conversion Amount] |
| Applicable Conversion Price: |
|
$3.00 |
| Number
of Shares of Common Stock to be Issued 4:: |
|
[Insert Number of Shares of Common Stock to be Issued] |
| Number of Shares of Series B-2 Preferred Owned Subsequent to Conversion: |
|
0 |
| |
10 X FUND, LP |
| |
|
| |
By: |
10X
Capital Management, LLC |
| |
|
|
| |
By: |
|
| |
|
James
C. Czirr |
| |
|
Managing
Member |
3
The “Conversion Amount” means the sum of the Stated Value of Series B-2 Preferred to be Converted plus all accrued
but unpaid dividends on such Series B2 Preferred as of the Date to Effect Conversion.
4
The number of shares of Common Stock to be issued is determined by dividing the Conversion Amount by the Applicable Conversion
Price.
EXHIBIT
B-3
NOTICE
OF CONVERSION
SERIES
B-3 CONVERTIBLE PREFERRED STOCK
10
X Fund, LP (“10 X Fund”) hereby elects to convert its shares of Series B-3 Convertible Preferred Stock (“Series
B-3 Preferred”) into shares of common stock, par value $0.001 per share (the “Common Stock”), of Galectin
Therapeutics, Inc., a Nevada corporation (the “Corporation”). This Conversion will be effectuated according to the
conditions hereof, as of the date written below. If shares are to be issued in the name of a person other than the undersigned, the undersigned
will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as reasonably requested
by the Corporation in accordance therewith. No fee will be charged to the Holder for any conversion, except for such transfer taxes,
if any.
Definitions
Series
B-3 Preferred is comprised of three (3) sub-series (“Sub-Series”); each with a distinct Conversion Price. For clarity,
the three (3) sub-series will be defined as follows:
| |
1. |
“Sub-Series
B-3A” means the shares of Series B-3 Preferred the Corporation issued to 10 X Fund on September 22, 2016. |
| |
|
|
| |
2. |
“Sub-Series
B-3B” means the shares of Series B-3 Preferred the Corporation issued to 10 X Fund on September 29, 2016. |
| |
|
|
| |
3. |
“Sub-Series
B-3C” means the shares of Series B-3 Preferred the Corporation issued to 10 X Fund on December 23, 2016. |
Conversion
Calculations
| Date
to Effect Conversion: |
|
December
___, 2018 |
| Shares
of Series B-3 Preferred owned prior to Conversion: |
|
2,508,000 |
| Series
B-3 Preferred to be Converted: |
|
Sub-Series
B-3A: 375,000
Sub-Series
B-3B: 1,125,000
Sub-Series
B-3C: 1,008,000 |
| |
|
Total:
2,508,000 |
| Stated
Value of Shares of Series B-3 Preferred to be Converted: |
|
$1.00 |
| Applicable
Conversion Price for Each Sub-Series: |
|
Sub-Series
B-3A: $2.69375
Sub-Series
B-3B: $1.49375
Sub-Series
B-3C: $1.12375 |
| Conversion
Amount 5: |
|
[Insert
Conversion Amount] |
| Number
of Shares of Common Stock to be Issued for Each Sub-Series 6: |
|
Sub-Series
B-3A: [TBD]
Sub-Series
B-3B: [TBD]
Sub-Series
B-3C: [TBD] |
| |
|
Total:
[TBD] |
| Number
of Shares of Series B-3 Preferred Owned Subsequent to Conversion: |
|
0 |
| |
10
X FUND, LP |
| |
|
| |
By: |
10X
Capital Management, LLC |
| |
|
|
| |
By: |
|
| |
|
James
C. Czirr |
| |
|
Managing
Member |
5
The “Conversion Amount” means the sum of the Stated Value of the applicable Sub-Series of Series B-3 Preferred to be
Converted plus all accrued but unpaid dividends on such Sub-Series as of the Date to Effect Conversion.
6
The number of shares of Common Stock to be issued for each Sub-Series is determined by dividing the Conversion Amount by the Conversion
Price applicable to the Sub-Series being converted. .
Exhibit
E
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 (THE “SECURITIES ACT”) 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.
W-2009-B-______
GALECTIN
THERAPEUTICS, INC.
FOURTH
AMENDED AND RESTATED
COMMON
STOCK PURCHASE WARRANT – CLASS B
Galectin
Therapeutics, Inc., a Nevada corporation (the “Company”), for value received and subject to the terms set forth below hereby
grants to 10X Fund, L.P., a Delaware limited partnership (“10X Fund”), or its registered and permitted 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 nonassessable shares of the Common Stock, par value $0.001 per share, at the purchase
price of three dollars ($3.00) per share (the “Exercise Price”). 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. This
instrument supersedes and replaces Third Amended and Restated Warrant W-2009-B-___________.
1.
Definitions. As used herein the following terms, unless the context otherwise requires, have the following respective meanings:
(a)
“Common Stock” means the Company’s common stock, par value $0.001 per share, 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.
(b)
“Forced Exercise” means any exercise of this Warrant following the occurrence of the event set forth subsection 2.1(c).
(c)
“Issue Date” means ______________.
(d)
“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.
(e)
“Registration Rights Agreement” means the Registration Rights Agreement, dated as of the Issue Date, to which the
Company and 10X Fund are parties, as amended, modified or supplemented from time to time in accordance with its terms.
(f)
“This Warrant” means, collectively, this Warrant and all other stock purchase warrants issued in exchange therefor
or replacement thereof.
(g)
“Trading Day” means a day on which the Common Stock is traded on a Trading Market.
(h)
“Trading Market” means any one of the following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the Nasdaq SmallCap Market, the NYSE Alternext US, the New York Stock Exchange, the Nasdaq National
Market, 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 earliest of the following (the
“Exercise Period”), unless earlier terminated pursuant to Section 3.2 herein:
(a)
September 30, 2026, or
(b)
Thirty days after Holder or its affiliates fails to vote all of the shares of Common Stock then owned by it or its affiliates in the
manner recommended by the board of directors of the Company in any vote of the stockholders of the Company; or
(c)
Thirty calendar days after the shares of Common Stock have a closing price of $6.00 or greater for 10 consecutive Trading Days.
Any
exercise of this Warrant shall be for a minimum of the lesser of 10,000 shares of Common Stock or the remaining number of shares covered
by this Warrant.
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 Subscription Agreement as described in Section 2.4 hereof, executed by the Person who shall have the purchase rights represented
by this Warrant and who shall exercise 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; and
(iv)
a wire transfer or 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 the 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.
(g)
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right
to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the Subscription Agreement, the Holder (together with the Holder’s affiliates, and any other Persons
acting as a group together with the Holder or any of the Holder’s affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder and its affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation
contained herein beneficially owned by the Holder or any of its affiliates or Attribution Parties. Except as set forth in the preceding
sentence, for purposes of this Section 2(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange
Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to
the Holder that such calculation is in compliance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the
limitation contained in this Section 2(g) applies, the determination of whether this Warrant is exercisable (in relation to other securities
owned by the Holder together with any affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be
in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status
as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2(d), in determining the number of outstanding shares of Common Stock, a Holder may rely on
the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed
with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by
the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. In any case, the number of outstanding
shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including
this Warrant, by the Holder or its affiliates or Attribution Parties since the date as of which such number of outstanding shares of
Common Stock was reported. The “Beneficial Ownership Limitation” shall be 9.99% of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder,
upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(d). Any increase
in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The provisions
of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(g)
to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation
herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations
contained in this paragraph shall apply to a successor holder of this Warrant. Notwithstanding the above, the limitations on Holders’
ability to exercise this Warrant contained in this Section 2(g) shall not limit the Holders right to exercise this Warrant in the event
of a Forced Exercise hereof.
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
Subscription Agreement. The Subscription Agreement 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 Subscription Agreement
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., Atlanta, 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 permitted 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 permitted transferee thereof deliver to the Company its written agreement to accept and be bound by all of the terms and conditions
of this Warrant. The foregoing notwithstanding, the Company acknowledges its obligations as set forth in the Registration Rights Agreement
to register the shares of Common Stock issuable upon exercise hereof.
(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.”
Except
as set forth in the Registration Rights Agreement, the Company has not agreed to register any of the Holder’s shares of Common
Stock of the Company with respect to which this Warrant may be exercisable for distribution in accordance with the provisions of the
Securities Act, and the Company has not agreed to comply with any exemption from registration under the Act for the resale of the Holder’s
shares of Common Stock with respect to which this Warrant may be exercised. Hence, it is the understanding of the Holder of this Warrant
that by virtue of the provisions of certain rules respecting “restricted securities” promulgated by the SEC, the shares of
Common Stock of the Company with respect to which this Warrant may be exercisable may be required to be held indefinitely, unless and
until registered under the Securities Act (as contemplated by the Registration Rights Agreement), unless an exemption from such registration
is available, in which case the Holder may still be limited as to the number of shares of Common Stock of the Company with respect to
which this Warrant may be exercised that may be sold from time to time.
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. In the event of the liquidation and dissolution of the Holder (but not otherwise) and 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, 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
Blvd, 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 Delaware. The headings in this Warrant are for purposes of reference only, and shall not limit or otherwise affect any of the
terms hereof.
10.4
Counterparts. This Warrant may be executed in counterparts, and the counterparts shall together constitute a single agreement.
[Signature
Page Follows]
Dated:
September __, 2023
| |
GALECTIN
THERAPEUTICS, INC. |
| |
|
|
| |
By: |
|
| |
Name: |
Jack
W. Callicutt |
| |
Title: |
Chief
Financial Officer |
Acceptance
of Third Amended and Restated Warrant
The
undersigned accepts this Third Amended and Restated Warrant and agrees that it supersedes and replaces the Second Amended and Restated
Warrant described in the first paragraph hereof. The undersigned represents that it is the Holder of, has not assigned and has not exercised
the Second Amended and Restated Warrant.
| |
10X
Fund L.P. |
| |
By: |
10X
Capital Management, LLC, its general partner |
| |
|
|
| |
By: |
|
| |
Name: |
James
C. Czirr |
| |
Title: |
Managing
Member |
Signature
Page to Third Amended and Restated Common Stock Purchase Warrant - W-2009-B-08II
EXHIBIT
A
SUBSCRIPTION
AGREEMENT
[To
be signed only upon exercise of Warrant]
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 (which number being exercised shall be at a minimum equal to the lesser of 10,000 shares
of Common Stock, or the remaining number of shares covered by this 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.
| |
10X
Fund L.P. |
| |
By: |
10X
Capital Management, LLC, its general partner |
| |
|
|
| |
By: |
|
| |
Name: |
James
C. Czirr |
| |
Title: |
Managing
Member |
| |
|
|
| |
Address: |
|
EXHIBIT
B
ASSIGNMENT
[To
be signed only upon transfer of Warrant in the circumstance permitted in Section 7]
For
value received, the undersigned represents that 10X Fund is in the process of being liquidated and dissolved and that this transfer is
made pursuant to such liquidation and dissolution and 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:
| Name
of Assignee |
|
Address |
|
No.
of Shares |
Dated:
| |
10X
Fund L.P. |
| |
By: |
10X
Capital Management, LLC, its general partner |
| |
|
|
| |
By: |
|
| |
Name: |
James
C. Czirr |
| |
Title: |
Managing
Member |
| |
|
|
| |
Address: |
|
Exhibit
F
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.
W-2016-B-3-____
GALECTIN
THERAPEUTICS, INC.
AMENED
AND RESTATED
COMMON
STOCK PURCHASE WARRANT – CLASS B-3
Galectin
Therapeutics, Inc., a Nevada corporation (the “Company”), for value received and subject to the terms set forth below hereby
grants to 10X Fund, L.P., a Delaware limited partnership, 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 nonassessable shares of the Common Stock, par value $0.001 per share, at the purchase price of Three Dollars
($3.00) per share (the “Exercise Price”). 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. This instrument supersedes
and replaces Warrant W-2016-B-3-___.
1.
Definitions. As used herein the following terms, unless the context otherwise requires, have the following respective meanings:
“Common
Stock” means the Company’s common stock, par value $0.001 per share, 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.
“Forced
Exercise” means any exercise of this Warrant following the occurrence of the event set forth subsection 2.1(c)
“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.
“Registration
Rights Agreement” means the Registration Rights Agreement, dated as of the Issue Date, to which the Corporation and the original
Holder are parties, as amended, modified or supplemented from time to time in accordance with its terms.
“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 SmallCap Market, the NYSE Alternext US, the New York Stock Exchange, the Nasdaq National Market, the OTC Bulletin
Board or the “Pink Sheets”.
2.
Exercise.
2.1
Exercise Period. The Holder may exercise this Warrant at any time six months after the Issue Date and before the earliest of the following
(the “Exercise Period”), unless earlier terminated pursuant to Section 3.2 herein:
(a)
September 30, 2026, or
(b)
Thirty days after Holder or its affiliates fails to vote all of the shares of Common Stock then owned by it or its affiliates in the
manner recommended by the board of directors of the Company in any vote of the stockholders of the Company; or
(c)
Thirty calendar days after the shares of Common Stock have a closing price of $6.00 or greater for 10 consecutive Trading Days.
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 Subscription Agreement 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 wire transfer or 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.
(g)
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right
to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the Subscription Agreement, the Holder (together with the Holder’s affiliates, and any other Persons
acting as a group together with the Holder or any of the Holder’s affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder and its affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation
contained herein beneficially owned by the Holder or any of its affiliates or Attribution Parties. Except as set forth in the preceding
sentence, for purposes of this Section 2(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange
Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to
the Holder that such calculation is in compliance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the
limitation contained in this Section 2(g) applies, the determination of whether this Warrant is exercisable (in relation to other securities
owned by the Holder together with any affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be
in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status
as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2(d), in determining the number of outstanding shares of Common Stock, a Holder may rely on
the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed
with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by
the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. In any case, the number of outstanding
shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including
this Warrant, by the Holder or its affiliates or Attribution Parties since the date as of which such number of outstanding shares of
Common Stock was reported. The “Beneficial Ownership Limitation” shall be 9.99% of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder,
upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(d). Any increase
in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The provisions
of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(g)
to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation
herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations
contained in this paragraph shall apply to a successor holder of this Warrant. Notwithstanding the above, the limitations on Holders’
ability to exercise this Warrant contained in this Section 2(g) shall not limit the Holders right to exercise this Warrant in the event
of a Forced Exercise hereof.
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
Subscription Agreement. The Subscription Agreement 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 Subscription Agreement
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 3.5 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. The foregoing notwithstanding, the Company acknowledges its obligations as set forth in the Registration Rights Agreement to
register the shares of Common Stock issuable upon exercise hereof.
(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.”
Except
as set forth in the Registration Rights Agreement, the Company has not agreed to register any of the Holder’s shares of Common
Stock of the Company with respect to which this Warrant may be exercisable for distribution in accordance with the provisions of the
Securities Act, and the Company has not agreed to comply with any exemption from registration under the Act for the resale of the Holder’s
shares of Common Stock with respect to which this Warrant may be exercised. Hence, it is the understanding of the Holder of this Warrant
that by virtue of the provisions of certain rules respecting “restricted securities” promulgated by the SEC, the shares of
Common Stock of the Company with respect to which this Warrant may be exercisable may be required to be held indefinitely, unless and
until registered under the Securities Act (as contemplated by the Registration Rights Agreement), unless an exemption from such registration
is available, in which case the Holder may still be limited as to the number of shares of Common Stock of the Company with respect to
which this Warrant may be exercised that may be sold from time to time.
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, 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 Delaware. 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]
Dated:
________________, 2023.
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GALECTIN
THERAPEUTICS, INC. |
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|
|
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By: |
|
| |
Name: |
Jack
W. Callicutt |
| |
Title: |
Chief
Financial Officer |
Acceptance
of Amended and Restated Warrant
The
undersigned accepts this Amended and Restated Warrant and agrees that it supersedes and replaces the Warrant described in the first paragraph
hereof. The undersigned represents that it is the Holder of, has not assigned and has not exercised the original Warrant.
| |
10X
Fund L.P. |
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|
|
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By: |
10X
Fund L.P., its general partner |
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|
|
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By: |
|
| |
Name: |
James
C. Czirr |
| |
Title: |
Managing
Member |
Signature
Page to Amended and Restated Common Stock Purchase Warrant - W-2016-B-3-1A
EXHIBIT
A
SUBSCRIPTION
AGREEMENT
[To
be signed only upon exercise of Warrant]
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.
| |
Signature |
|
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|
|
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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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|
|
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Address |
|
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[Signature Guarantee] |
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:
| Name
of Assignee |
|
Address |
|
No.
of Shares |
| Dated: |
Signature |
|
| |
|
|
| |
|
(Signature
must conform in all respects to name of Holder as specified on the face of the Warrant.) |
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|
|
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Address |
|
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[Signature Guarantee] |
Exhibit
G
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.
W-2016-B-3/LU_________
GALECTIN
THERAPEUTICS, INC.
SECOND
AMENDED AND RESTATED
COMMON
STOCK PURCHASE WARRANT – CLASS B-3
Galectin
Therapeutics, Inc., a Nevada corporation (the “Company”), for value received and subject to the terms set forth below hereby
grants to 10X Fund, L.P., a Delaware limited partnership, 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 nonassessable shares of the Common Stock, par value $0.001 per share, at the purchase price of Three Dollars ($3.00) per share
(the “Exercise Price”). 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. This instrument supersedes and replaces Amended
and Restated Common Stock Purchase Warrant W-2016-B-3/LU_______.
1.
Definitions. As used herein the following terms, unless the context otherwise requires, have the following respective meanings:
“Common
Stock” means the Company’s common stock, par value $0.001 per share, 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..
“Forced
Exercise” means any exercise of this Warrant following the occurrence of the event set forth subsection 2.1(c).
“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.
“Registration
Rights Agreement” means the Registration Rights Agreement, dated as of the Issue Date, to which the Corporation and the original
Holder are parties, as amended, modified or supplemented from time to time in accordance with its terms.
“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 SmallCap Market, the NYSE Alternext US, the New York Stock Exchange, the Nasdaq National Market, the OTC Bulletin
Board or the “Pink Sheets”.
2.
Exercise.
2.1
Exercise Period. The Holder may exercise this Warrant at any time six months after the Issue Date and before the earliest of the following
(the “Exercise Period”), unless earlier terminated pursuant to Section 3.2 herein:
(a) September
30, 2026, or
(b) Thirty
days after Holder or its affiliates fails to vote all of the shares of Common Stock then owned by it or its affiliates in the manner
recommended by the board of directors of the Company in any vote of the stockholders of the Company; or
(c) Thirty
calendar days after the shares of Common Stock have a closing price of $6.00 or greater for 10 consecutive Trading Days.
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 Subscription Agreement 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.
(g)
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right
to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the Subscription Agreement, the Holder (together with the Holder’s affiliates, and any other Persons
acting as a group together with the Holder or any of the Holder’s affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder and its affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation
contained herein beneficially owned by the Holder or any of its affiliates or Attribution Parties. Except as set forth in the preceding
sentence, for purposes of this Section 2(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange
Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to
the Holder that such calculation is in compliance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the
limitation contained in this Section 2(g) applies, the determination of whether this Warrant is exercisable (in relation to other securities
owned by the Holder together with any affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be
in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status
as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2(d), in determining the number of outstanding shares of Common Stock, a Holder may rely on
the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed
with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by
the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. In any case, the number of outstanding
shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including
this Warrant, by the Holder or its affiliates or Attribution Parties since the date as of which such number of outstanding shares of
Common Stock was reported. The “Beneficial Ownership Limitation” shall be 9.99% of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder,
upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(d). Any increase
in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The provisions
of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(g)
to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation
herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations
contained in this paragraph shall apply to a successor holder of this Warrant. Notwithstanding the above, the limitations on Holders’
ability to exercise this Warrant contained in this Section 2(g) shall not limit the Holders right to exercise this Warrant in the event
of a Forced Exercise hereof.
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
Subscription Agreement. The Subscription Agreement 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 Subscription Agreement
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. The foregoing notwithstanding, the Company acknowledges its obligations as set forth in the Registration Rights Agreement to
register the shares of Common Stock issuable upon exercise hereof.
(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.”
Except
as set forth in the Registration Rights Agreement, the Company has not agreed to register any of the Holder’s shares of Common
Stock of the Company with respect to which this Warrant may be exercisable for distribution in accordance with the provisions of the
Securities Act, and the Company has not agreed to comply with any exemption from registration under the Act for the resale of the Holder’s
shares of Common Stock with respect to which this Warrant may be exercised. Hence, it is the understanding of the Holder of this Warrant
that by virtue of the provisions of certain rules respecting “restricted securities” promulgated by the SEC, the shares of
Common Stock of the Company with respect to which this Warrant may be exercisable may be required to be held indefinitely, unless and
until registered under the Securities Act (as contemplated by the Registration Rights Agreement), unless an exemption from such registration
is available, in which case the Holder may still be limited as to the number of shares of Common Stock of the Company with respect to
which this Warrant may be exercised that may be sold from time to time.
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, 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 Delaware. 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]
Dated:
September ___, 2023.
| |
GALECTIN
THERAPEUTICS, INC. |
| |
|
|
| |
By: |
|
| |
Name: |
Jack
W. Callicutt |
| |
Title: |
Chief
Financial Officer |
Acceptance
of Second Amended and Restated Warrant
The
undersigned accepts this Second Amended and Restated Warrant and agrees that it supersedes and replaces Amended Common Stock Purchase
Warrant W-2016-B-3/LU-7A described in the first paragraph hereof. The undersigned represents that it is the Holder of, has not assigned
and has not exercised Warrant W-2016-B-3/LU-7A.
| |
10X Fund L.P. |
| |
|
|
| |
By: |
10X
Capital Management, LLC, its general partner |
| |
|
|
| |
By: |
|
| |
Name: |
James
C. Czirr |
| |
Title: |
Managing
Member |
Signature
Page to Amended and Restated Common Stock Purchase Warrant - W-2016-B-3/LU-7AA
EXHIBIT
A
SUBSCRIPTION
AGREEMENT
[To
be signed only upon exercise of Warrant]
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.
| |
10X Fund L.P. |
| |
|
|
| |
By: |
10X
Capital Management, LLC, its general partner |
| |
|
|
| |
By: |
|
| |
Name: |
James
C. Czirr |
| |
Title: |
Managing
Member |
| |
Address: |
|
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:
| Name
of Assignee |
|
Address |
|
No.
of Shares |
| |
10X Fund L.P. |
| |
|
|
| |
By: |
10X
Capital Management, LLC, its general partner |
| |
|
|
| |
By: |
|
| |
Name: |
James
C. Czirr |
| |
Title: |
Managing
Member |
| |
Address: |
|
Galectin Therapeutics (NASDAQ:GALT)
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