Marker Therapeutics, Inc S-3, filed Aug 10, 2021

Marker Therapeutics, Inc. (MRKR)

S-3 2021-08-10

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	Large accelerated filer ☐			Accelerated filer ☐
	Non-accelerated filer ☒			Smaller reporting company ☒
				Emerging growth company ☐


Title of each class of securities to be registered	Amount to be Registered		Proposed Maximum Offering Price per Unit		Proposed Maximum Aggregate Offering Price			Amount of Registration Fee(1)
Common Stock, par value $0.001 per share		(2)		(3)			(3)			—
Preferred Stock, par value $0.001 per share		(2)		(3)			(3)			—
Debt Securities		(2)		(3)			(3)			—
Warrants		(2)		(3)			(3)			—
Total		(2)				$	300,000,000		$	32,730

	ABOUT THIS PROSPECTUS					i
	SUMMARY					1
	RISK FACTORS					6
	SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS					7
	USE OF PROCEEDS					9
	DESCRIPTION OF CAPITAL STOCK					10
	DESCRIPTION OF DEBT SECURITIES					14
	DESCRIPTION OF WARRANTS					20
	LEGAL OWNERSHIP OF SECURITIES					22
	PLAN OF DISTRIBUTION					25
	LEGAL MATTERS					27
	EXPERTS					27
	WHERE YOU CAN FIND MORE INFORMATION					27
	INCORPORATION OF CERTAIN INFORMATION BY REFERENCE					28

	ABOUT THIS PROSPECTUS					S-i
	SUMMARY					S-1
	THE OFFERING					S-4
	RISK FACTORS					S-5
	SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS					S-7
	USE OF PROCEEDS					S-9
	DILUTION					S-10
	DESCRIPTION OF CAPITAL STOCK					S-12
	PLAN OF DISTRIBUTION					S-16
	LEGAL MATTERS					S-17
	EXPERTS					S-17
	WHERE YOU CAN FIND MORE INFORMATION					S-17
	INCORPORATION OF CERTAIN INFORMATION BY REFERENCE					S-18

Assumed public offering price per share			$	2.07
Historical net tangible book value per share as of June 30, 2021	$	0.76
Increase in as adjusted net tangible book value per share attributable to this offering		0.38
As adjusted net tangible book value per share after this offering				1.14
Dilution per share to new investors in this offering			$	0.93

SEC registration fee	$	32,730
Accounting fees and expenses		*
Legal fees and expenses		*
Transfer agent fees and expenses		*
Trustee fees and expenses		*
Printing and miscellaneous expenses		*
Total	$	*

	Exhibit Number			Description of Document
	1.1*			Form of Underwriting Agreement.
	1.2			Controlled Equity OfferingSM Sales Agreement, dated as of August 10, 2021, by and among the Registrant, Cantor Fitzgerald & Co. and RBC Capital Markets, LLC.
	2.1			Agreement and Plan of Merger and Reorganization, dated as of May 15, 2018 (incorporated by reference to Annex A to the Registrant’s Definitive Proxy Statement (File No. 001-37939), filed with the SEC on September 14, 2018).
	3.1			Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.4 to the Registrant’s Current Report on Form 8-K (File No. 001-37939), filed with the SEC on October 17, 2018).
	3.2			Bylaws of the Registrant (incorporated by reference to Exhibit 3.6 to the Registrant’s Current Report on Form 8-K (File No. 001-37939), filed with the SEC on October 17, 2018).
	4.1			Specimen Stock Certificate evidencing shares of Common Stock of the Registrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K (File No. 001-37939) filed with the SEC on October 17, 2018).
	4.2*			Form of Specimen Preferred Stock Certificate and Certificate of Designation of Preferred Stock.
	4.3			Form of Indenture, between the Registrant and one or more trustees to be named.
	4.4*			Form of Debt Securities.
	4.5			Form of Common Stock Warrant Agreement and Warrant Certificate.
	4.6			Form of Preferred Stock Warrant Agreement and Warrant Certificate.
	4.7			Form of Debt Securities Warrant Agreement and Warrant Certificate.
	5.1			Opinion of Cooley LLP.
	23.1			Consent of Marcum LLP, independent registered public accounting firm.
	23.2			Consent of Cooley LLP (included in Exhibit 5.1).
	24.1			Power of Attorney (included on signature page).
	25.1**			Statement of Eligibility of Trustee under the Indenture.

				MARKER THERAPEUTICS, INC.
				By:			/s/ Peter Hoang Peter Hoang President and Chief Executive Officer

Name	Title	Date
/s/ Peter Hoang Peter Hoang	President, Chief Executive Officer and Director (Principal Executive Officer)	August 10, 2021
/s/ Anthony Kim Anthony Kim	Chief Financial Officer (Principal Financial and Accounting Officer)	August 10, 2021
/s/ Frederick Wasserman Frederick Wasserman	Chairman of the Board	August 10, 2021
/s/ David Laskow-Pooley David Laskow-Pooley	Director	August 10, 2021
/s/ John Wilson John Wilson	Director	August 10, 2021
/s/ Juan Vera Juan Vera	Director	August 10, 2021
/s/ N. David Eansor N. David Eansor	Director	August 10, 2021
/s/ Steve Elms Steve Elms	Director	August 10, 2021

	By:	/s/ Peter Hoang
		Name:   Peter Hoang
		Title:     Chief Executive Officer

Section 2.01	Designation and Terms of Securities	5

Section 2.02	Form of Securities and Trustee’s Certificate	8

Section 2.03	Denominations: Provisions for Payment	8

Section 2.04	Execution and Authentications	9

Section 2.05	Registration of Transfer and Exchange	10

Section 2.06	Temporary Securities	11

Section 2.07	Mutilated, Destroyed, Lost or Stolen Securities	12

Section 2.08	Cancellation	13

Section 2.09	Benefits of Indenture	13

Section 2.10	Authenticating Agent	13

Section 2.11	Global Securities	14

Section 2.12	CUSIP Numbers	15

Section 3.01	Redemption	15

Section 3.02	Notice of Redemption	15

Section 3.03	Payment Upon Redemption	16

Section 3.04	Sinking Fund	17

Section 3.05	Satisfaction of Sinking Fund Payments with Securities	17

Section 3.06	Redemption of Securities for Sinking Fund	17

article 4	COVENANTS	18

Section 4.01	Payment of Principal, Premium and Interest	18

Section 4.02	Maintenance of Office or Agency	18

Section 4.03	Paying Agents	19

Section 4.04	Appointment to Fill Vacancy in Office of Trustee	20


Section 5.01	Company to Furnish Trustee Names and Addresses of Securityholders	20

Section 5.02	Preservation Of Information; Communications With Securityholders	20

Section 5.03	Reports by the Company	20

Section 5.04	Reports by the Trustee	21

Section 6.01	Events of Default	21

Section 6.02	Collection of Indebtedness and Suits for Enforcement by Trustee	23

Section 6.03	Application of Moneys Collected	25

Section 6.04	Limitation on Suits	25

Section 6.05	Rights and Remedies Cumulative; Delay or Omission Not Waiver	26

Section 6.06	Control by Securityholders	26

Section 6.07	Undertaking to Pay Costs	27

Section 7.01	Certain Duties and Responsibilities of Trustee	27

Section 7.02	Certain Rights of Trustee	28

Section 7.03	Trustee Not Responsible for Recitals or Issuance or Securities	30

Section 7.04	May Hold Securities	30

Section 7.05	Moneys Held in Trust	30

Section 7.06	Compensation and Reimbursement	31

Section 7.07	Reliance on Officer’s Certificate	31

Section 7.08	Disqualification; Conflicting Interests	32

Section 7.09	Corporate Trustee Required; Eligibility	32

Section 7.10	Resignation and Removal; Appointment of Successor	32

Section 7.11	Acceptance of Appointment By Successor	33

Section 7.12	Merger, Conversion, Consolidation or Succession to Business	35

Section 7.13	Preferential Collection of Claims Against the Company	35

Section 7.14	Notice of Default	35

Section 8.01	Evidence of Action by Securityholders	35

Section 8.02	Proof of Execution by Securityholders	36

Section 8.03	Who May be Deemed Owners	36

Section 8.04	Certain Securities Owned by Company Disregarded	37

Section 8.05	Actions Binding on Future Securityholders	37

Section 9.01	Supplemental Indentures Without the Consent of Securityholders	37

Section 9.02	Supplemental Indentures With Consent of Securityholders	39

Section 9.03	Effect of Supplemental Indentures	39

Section 9.04	Securities Affected by Supplemental Indentures	39

Section 9.05	Execution of Supplemental Indentures	40

Section 10.01	Company May Consolidate, Etc.	40

Section 10.02	Successor Entity Substituted	41

Section 11.01	Satisfaction and Discharge of Indenture	41

Section 11.02	Discharge of Obligations	42

Section 11.03	Deposited Moneys to be Held in Trust	42

Section 11.04	Payment of Moneys Held by Paying Agents	42

Section 11.05	Repayment to Company	42

Section 12.01	No Recourse	43

article 13	MISCELLANEOUS PROVISIONS	43

Section 13.01	Effect on Successors and Assigns	43

Section 13.02	Actions by Successor	43

Section 13.03	Surrender of Company Powers	44

Section 13.04	Notices	44

Section 13.05	Governing Law; Jury Trial Waiver	44

Section 13.06	Treatment of Securities as Debt	44

Section 13.07	Certificates and Opinions as to Conditions Precedent	44

Section 13.08	Payments on Business Days	45

Section 13.09	Conflict with Trust Indenture Act	45

Section 13.10	Counterparts	45

Section 13.11	Separability	45

Section 13.12	Compliance Certificates	45

Section 13.13	Patriot Act	45

Section 13.14	Force Majeure	45

Section 13.12	Table of Contents; Headings	45

Section of Trust Indenture Act of 1939, as Amended	Section of Indenture
310(a)	7.09
310(b)	7.08
	7.10
310(c)	Inapplicable
311(a)	7.13
311(b)	7.13
311(c)	Inapplicable
312(a)	5.01
	5.02(a)
312(b)	5.02(c)
312(c)	5.02(c)
313(a)	5.04(a)
313(b)	5.04(b)
313(c)	5.04(a)
	5.04(b)
313(d)	5.04(c)
314(a)	5.03
	13.12
314(b)	Inapplicable
314(c)	13.07(a)
314(d)	Inapplicable
314(e)	13.07(b)
314(f)	Inapplicable
315(a)	7.01(a)
	7.01(b)
315(b)	7.14
315(c)	7.01
315(d)	7.01(b)
315(e)	6.07
316(a)	6.06
	8.04
316(b)	6.04
316(c)	8.01
317(a)	6.02
317(b)	4.03
318(a)	13.09

	Marker Therapeutics, Inc., as Company

	By:
	Name:
	Title:

	Attest:

	Countersigned

	[●], as Warrant Agent

	By:
	Name:
	Title:

	Attest:




[*Form of Legend if Warrants are not immediately exercisable.*]	[Prior to [●], Warrants evidenced by this Warrant Certificate cannot be exercised.]

By:
Name:
Title:

ATTEST:


COUNTERSIGNED [●], as Warrant Agent

By:
Name:
Title:

ATTEST:


(Insert Social Security or Other Identifying Number
of Holder)


(Please print name and address including zip code)		Please print Social Security or other identifying number

Dated:

Marker Therapeutics, Inc., as Company

By:
Name:
Title:

ATTEST:

COUNTERSIGNED [●], as Warrant Agent

By:
Name:
Title:

ATTEST:

Address:


(Insert Social Security or Other Identifying Number of Holder)