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Item 1.01
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Entry into a Material Definitive Agreement.
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Purchase Agreement and Registration Rights Agreement with
Aspire Capital
On February 28, 2020,
Marker Therapeutics, Inc. (the “Company”), entered into a common stock purchase agreement (the “Purchase Agreement”)
with Aspire Capital Fund, LLC, an Illinois limited liability company (“Aspire Capital”) which provides that, upon the
terms and subject to the conditions and limitations set forth therein, Aspire Capital is committed to purchase up to an aggregate
of $30.0 million of shares of the Company’s common stock over the 30-month term of the Purchase Agreement. In consideration
for entering into the Purchase Agreement, concurrently with the execution of the Purchase Agreement, the Company issued to Aspire
Capital 345,357 shares of the Company’s common stock (the “Commitment Shares”).
Concurrently with entering
into the Purchase Agreement, the Company also entered into a registration rights agreement with Aspire Capital (the “Registration
Rights Agreement”), in which the Company agreed to file with the Securities and Exchange Commission (the “SEC”)
a prospectus supplement to the Company’s effective shelf registration statement on Form S-3 (File No. 333-232122) registering
all of the shares of common stock that may be offered to Aspire Capital from time to time, including the Commitment Shares.
Under
the Purchase agreement, on any trading day selected by the Company, the Company has the right, in its sole discretion, to present
Aspire Capital with a purchase notice (each, a “Purchase Notice”), directing Aspire Capital (as principal) to purchase
up to 100,000 shares of the Company’s common stock per business day, up to $30.0 million of the Company’s common stock
in the aggregate at a per share price (the “Purchase Price”) equal to the lesser of:
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the lowest sale price of the Company’s common stock on the purchase date; or
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the arithmetic average of the three (3) lowest closing sale prices
for the Company’s common stock during the ten (10) consecutive trading days ending on the trading day immediately preceding
the purchase date.
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The Company and Aspire
Capital also may mutually agree to increase the number of shares that may be sold to as much as an additional 2,000,000 shares
per business day.
In addition, on any
date on which the Company submits a Purchase Notice to Aspire Capital in an amount equal to at least 100,000 shares, the Company
also has the right, in its sole discretion, to present Aspire Capital with a volume-weighted average price purchase notice (each,
a “VWAP Purchase Notice”) directing Aspire Capital to purchase an amount of stock equal to up to 30% of the aggregate
shares of the Company’s common stock traded on its principal market on the next trading day (the “VWAP Purchase Date”),
subject to a maximum number of shares the Company may determine. The purchase price per share pursuant to such VWAP Purchase Notice
is generally 97% of the volume-weighted average price for the Company’s common stock traded on its principal market on the
VWAP Purchase Date.
The
Purchase Price will be adjusted for any reorganization, recapitalization, non-cash dividend, stock split, or other similar transaction
occurring during the period(s) used to compute the Purchase Price. The Company may deliver multiple Purchase Notices and VWAP Purchase
Notices to Aspire Capital from time to time during the term of the Purchase Agreement, so long as the most recent purchase has
been completed.
The
Purchase Agreement provides that the Company and Aspire Capital shall not effect any sales under the Purchase Agreement on any
purchase date where the closing sale price of the Company’s common stock is less than $0.25. There are no trading volume
requirements or restrictions under the Purchase Agreement, and the Company will control the timing and amount of sales of the Company’s
common stock to Aspire Capital. Aspire Capital has no right to require any sales by the Company, but is obligated to make purchases
from the Company as directed by the Company in accordance with the Purchase Agreement. There are no limitations on use of proceeds,
financial or business covenants, restrictions on future fundings, rights of first refusal, participation rights, penalties or liquidated
damages in the Purchase Agreement. The Purchase Agreement may be terminated by the Company at any time, at its discretion, without
any cost to the Company. Aspire Capital has agreed that neither it nor any of its agents, representatives and affiliates shall
engage in any direct or indirect short-selling or hedging of the Company’s common stock during any time prior to the termination
of the Purchase Agreement. Any proceeds from the Company receives under the Purchase Agreement are expected to be used for working
capital and general corporate purposes.
The Purchase Agreement
provides that the number of shares that may be sold pursuant to the Purchase Agreement will be limited to 9,232,814 shares, including
the Commitment Shares, or the Exchange Cap, which represents 19.99% of the Company’s outstanding shares of Common Stock as
of February 28, 2020, unless stockholder approval is obtained to issue more than 19.99%. This limitation will not apply if, at
any time the Exchange Cap is reached and at all times thereafter, the average price paid for all shares issued under the Purchase
Agreement is equal to or greater than $2.41, which was the Closing Sale Price immediately preceding the execution of the Purchase
Agreement. The Company is not required or permitted to issue any shares of Common Stock under the Purchase Agreement if such issuance
would breach its obligations under the rules or regulations of The Nasdaq Global Market.
The foregoing is a
summary description of certain terms of the Purchase Agreement and the Registration Rights Agreement and, by its nature, is incomplete.
Copies of the Purchase Agreement and Registration Rights Agreement are filed herewith as Exhibits 10.1 and 4.1, respectively, to
this Current Report on Form 8-K and are incorporated herein by reference. All readers are encouraged to read the entire text of
the Purchase Agreement and the Registration Rights Agreement.
The Company is filing
the opinion of its counsel, Cooley LLP, relating to the legality of the shares of common stock offered and sold pursuant to the
Purchase Agreement, as Exhibit 5.1 hereto.