As filed with the Securities and Exchange
Commission on June 14, 2019
Registration
No. 333-
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MARKER THERAPEUTICS,
INC.
(Exact name of registrant as specified in its
charter)
Delaware
(State or other jurisdiction of incorporation or organization)
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45-4497941
(I.R.S. Employer Identification Number)
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3200 Southwest Freeway, Suite 2240
Houston, Texas 77027
(713) 400-6400
(Address, including zip code, and telephone
number, including area code of registrant’s principal executive offices)
Peter Hoang
President, Chief Executive Officer and Director
Marker Therapeutics, Inc.
3200 Southwest Freeway, Suite 2240
Houston, Texas 77027
(713) 400-6400
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
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Divakar Gupta
Darren DeStefano
Madison A. Jones
Cooley LLP
55 Hudson Yards
New York, New York 10001
(212) 479-6000
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From time to time after the effective date
of this Registration Statement
(Approximate date of commencement of proposed
sale to the public)
If the
only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box.
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If any
of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the
following box.
x
If this
Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check
the following box and list the Securities Act registration statement number of the earlier effective registration statement for
the same offering.
¨
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this
Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.
¨
If this
Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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Accelerated filer
x
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Non-accelerated filer
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Smaller reporting company
x
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Emerging growth company
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If an emerging
growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with
any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
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CALCULATION OF REGISTRATION FEE
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Title of each class of securities to be registered
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Amount to be
Registered
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Proposed Maximum
Offering Price per Unit
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Proposed Maximum
Aggregate
Offering Price
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Amount of
Registration Fee (1)
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Common Stock, par value $0.001 per share
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(2)
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(3)
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(3)
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—
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Preferred Stock, par value $0.001 per share
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(2)
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(3)
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(3)
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—
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Debt Securities
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(2)
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(3)
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(3)
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—
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Warrants
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(2)
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(3)
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(3)
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—
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Total
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(2)
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$
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200,000,000
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$
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24,240
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(1)
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Calculated pursuant to Rule 457(o) under the Securities
Act of 1933, as amended, or the Securities Act.
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(2)
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There are being registered hereunder such indeterminate number of shares of common stock and preferred stock, such indeterminate
principal amount of debt securities and such indeterminate number of warrants to purchase common stock, preferred stock or debt
securities as shall have an aggregate initial offering price not to exceed $200,000,000. If any debt securities are issued at an
original issue discount, then the principal amount of such debt securities shall be in such greater amount as shall result in an
aggregate initial offering price not to exceed $200,000,000, less the aggregate dollar amount of all securities previously issued
hereunder. Any securities registered hereunder may be sold separately or in combination with other securities registered hereunder.
The securities registered also include such indeterminate number of shares of common stock and preferred stock and amount of debt
securities as may be issued upon conversion of or exchange for preferred stock or debt securities that provide for conversion or
exchange, upon exercise of warrants or pursuant to the anti-dilution provisions of any such securities. In addition, pursuant to
Rule 416 under the Securities Act, the shares being registered hereunder include such indeterminate number of shares of common
stock and preferred stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits,
stock dividends or similar transactions.
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(3)
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The proposed maximum aggregate offering price per class
of security will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities
registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form S-3 under
the Securities Act.
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The registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment
that specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act or until this registration statement shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete
and may be changed. We may not sell these securities or accept an offer to buy these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it
is not soliciting offers to buy these securities in any state where such offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
JUNE 14, 2019
PROSPECTUS
$200,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
From time to time, we may offer and sell up
to $200,000,000 of any combination of the securities described in this prospectus in one or more offerings. We may also offer securities
as may be issuable upon conversion, redemption, repurchase, exchange or exercise of any securities registered hereunder, including
any applicable anti-dilution provisions.
This prospectus provides a general description
of the securities we may offer. Each time we offer securities, we will provide specific terms of the securities offered in a supplement
to this prospectus. We may also authorize one or more free writing prospectuses to be provided to you in connection with these
offerings. The prospectus supplement and any related free writing prospectus may also add, update or change information contained
in this prospectus. You should carefully read this prospectus, the applicable prospectus supplement and any related free writing
prospectus, as well as any documents incorporated by reference, before you invest in any of the securities being offered.
This prospectus may not be used to consummate
a sale of any securities unless accompanied by a prospectus supplement.
We will sell these securities directly to investors,
through agents designated from time to time or to or through underwriters or dealers, on a continuous or delayed basis. For additional
information on the methods of sale, you should refer to the section entitled “Plan of Distribution” in this prospectus
and in the applicable prospectus supplement. If any agents or underwriters are involved in the sale of any securities with respect
to which this prospectus is being delivered, the names of such agents or underwriters and any applicable fees, commissions, discounts
or over-allotment options will be set forth in a prospectus supplement. The price to the public of such securities and the net
proceeds we expect to receive from such sale will also be set forth in a prospectus supplement.
Our common stock is traded on the Nasdaq Capital
Market under the symbol “MRKR.” On June 13, 2019, the last reported sale price of our common stock was $6.10 per share.
The applicable prospectus supplement will contain information, where applicable, as to any other listing on the Nasdaq Capital
Market or any securities market or other exchange of the securities, if any, covered by the prospectus supplement.
Investing in our securities involves
a high degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors”
contained in the applicable prospectus supplement and any related free writing prospectus we have authorized for use in connection
with a specific offering, and under similar headings in the other documents that are incorporated by reference into this prospectus
as described on page 5 of this prospectus.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION
NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL
OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is
, 2019.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is a part of a registration
statement on Form S-3 that we filed with the Securities and Exchange Commission, or SEC, utilizing a “shelf” registration
process. Under this shelf registration statement, we may sell any combination of the securities described in this prospectus in
one or more offerings up to a total aggregate offering price of $200,000,000. This prospectus provides you with a general description
of the securities we may offer.
Each time we sell securities under this prospectus,
we will provide a prospectus supplement that will contain specific information about the terms of that offering. We may also authorize
one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings.
The prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update
or change information contained in this prospectus or in any documents that we have incorporated by reference into this prospectus.
You should read this prospectus, any applicable prospectus supplement and any related free writing prospectus, together with the
information incorporated herein by reference as described under the heading “Incorporation of Certain Information by Reference,”
before investing in any of the securities offered.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE
A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
Neither we, nor any agent, underwriter or
dealer has authorized any person to give any information or to make any representation other than those contained or incorporated
by reference in this prospectus, any applicable prospectus supplement or any related free writing prospectus prepared by or on
behalf of us or to which we have referred you. This prospectus, any applicable supplement to this prospectus or any related free
writing prospectus do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered
securities to which they relate, nor do this prospectus, any applicable supplement to this prospectus or any related free writing
prospectus constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom
it is unlawful to make such offer or solicitation in such jurisdiction.
You should not assume that the information
contained in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate on any date
subsequent to the date set forth on the front of the document or that any information we have incorporated by reference is correct
on any date subsequent to the date of the document incorporated by reference, even though this prospectus, any applicable prospectus
supplement or any related free writing prospectus is delivered, or securities are sold, on a later date.
This prospectus and the information incorporated
herein by reference contain summaries of certain provisions contained in some of the documents described herein, but reference
is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents.
Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits
to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below
under the heading “Where You Can Find More Information.”
SUMMARY
This summary highlights selected information
from this prospectus and does not contain all of the information that you need to consider in making your investment decision.
You should carefully read the entire prospectus, the applicable prospectus supplement and any related free writing prospectus,
including the risks of investing in our securities discussed under the heading “Risk Factors” contained in the applicable
prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that are incorporated
by reference into this prospectus. You should also carefully read the information incorporated by reference into this prospectus,
including our financial statements and related notes, and the exhibits to the registration statement of which this prospectus is
a part, before making your investment decision.
Unless the context indicates otherwise, as
used in this prospectus, unless the context otherwise requires, references to "we," "us," "our,"
"the company" and "Marker Therapeutics" refer to Marker Therapeutics, Inc., formerly known as TapImmune,
Inc., and its subsidiaries. We own various U.S. federal trademark applications and unregistered trademarks, including our company
name. All other trademarks or trade names referred to in this prospectus are the property of their respective owners. Solely for
convenience, the trademarks and trade names in this prospectus are referred to without the symbols ® and ™, but such
references should not be construed as any indication that their respective owners will not assert, to the fullest extent under
applicable law, their rights thereto.
Company Overview
Overview
We are a clinical-stage immuno-oncology company
specializing in the development and commercialization of novel T cell-based immunotherapies and innovative peptide-based vaccines
for the treatment of hematological malignancies and solid tumor indications. We developed our lead product candidates from our
MultiTAA T cell technology, which is based on the selective expansion of non-engineered, tumor-specific T cells that recognize
tumor associated antigens, or TAAs, which are tumor targets, and then kill tumor cells expressing those targets. These T cells
are designed to recognize multiple tumor targets to produce broad spectrum anti-tumor activity. We are advancing two MultiTAA T
cell pipelines: our autologous T cells for the treatment of lymphoma, multiple myeloma and selected solid tumors and our allogeneic
T cells for the treatment of acute myeloid leukemia, or AML, and acute lymphoblastic leukemia, or ALL. Because we do not genetically
engineer our MultiTAA therapies, we believe that our product candidates are easier and less expensive to manufacture, with reduced
toxicities, than current engineered CAR-T and T cell receptor-based therapies, and may provide patients with meaningful clinical
benefit. We are also developing innovative peptide-based immunotherapeutic vaccines for the treatment of metastatic solid tumors,
as well as PolyStart, a proprietary nucleic acid-based antigen expression technology designed to improve the ability of the immune
system to recognize and destroy diseased cells.
We are pursuing post-transplant AML as the
lead indication for our MultiTAA program. Our MultiTAA therapy was well tolerated in our recent Phase 1 clinical trial, with no
drug-related serious adverse events. Eleven of the thirteen patients in the adjuvant disease setting dosed with our MultiTAA therapy
after receiving an allogeneic stem cell transplant survived, ranging from 6 weeks to 2.5 years post-infusion as of March 2019,
with nine of these patients in continuing complete remission. As of March 2019, survival of the six patients with active disease
ranged from 4 to 21 months, as compared to a historical survival rate of 4 months for patients who receive the standard of care
post-transplant. We intend to submit an investigational new drug application to the United States Food and Drug Administration
in the third quarter of 2019 to initiate a Phase 2 clinical trial in post-allogeneic hematopoietic stem cell transplant patients
with AML in both the adjuvant and active disease setting.
We are also evaluating our MultiTAA therapy
in a Phase 2 clinical trial for the treatment of breast cancer and in Phase 1 clinical trials for the treatment of ALL, lymphoma,
multiple myeloma, pancreatic cancer and sarcoma. As of March 2019, our MultiTAA therapy has been well tolerated in all clinical
trials in hematological and solid tumor indications with no drug-related serious adverse events, including cytokine release syndrome
or neurotoxicity. In our clinical trials in lymphoma, ALL and multiple myeloma, we observed that our MultiTAA therapies have shown
the potential to mediate a meaningful anti-tumor effect, as well as significant
in vivo
expansion of T cells. We may initiate
additional Phase 2 clinical trials in other indications in 2019 in addition to our planned Phase 2 trial in post-transplant AML
patients. We plan to report additional interim data from an ongoing Phase 1/2 clinical trial in pancreatic cancer in the third
quarter of 2019.
In addition to our MultiTAA therapies, we are
developing peptide-based immunotherapeutic vaccines that are designed to precisely target breast and ovarian cancer cells, in contrast
to standard therapies for the treatment of cancer that target both cancer cells and normal cells. We are currently evaluating TPIV100/110
for the treatment of breast cancers that overexpress human epidermal growth factor receptor 2 in a Phase 1b clinical trial and
TPIV200 for the treatment of breast and ovarian cancers that overexpress folate receptor alpha in multiple Phase 2 clinical trials,
including in ovarian cancer, for which we expect to report interim data in the fourth quarter of 2019, and triple negative breast
cancer, for which we recently reported that 26 of the 27 patients evaluated for immunogenicity showed significant immune response
to treatment as of March 2019. We believe that our peptide vaccines and our PolyStart technology, which is currently in preclinical
development, can be used as both standalone therapies and as complementary therapies that enhance the efficacy of other immunotherapy
approaches.
We believe that our therapies present promising
innovations in immuno-oncology. We developed our MultiTAA therapy in collaboration with the Cell and Gene Therapy Center at Baylor
College of Medicine, which was founded by Dr. Malcolm K. Brenner, M.D., Ph.D., a recognized pioneer in immuno-oncology. Baylor
College of Medicine remains an important strategic partner and conducts early-stage clinical trials of our MultiTAA therapies pursuant
to a sponsored research agreement. Our cell therapy founders include Drs. Brenner, Ann Leen, Ph.D., Juan Vera, M.D., Helen Heslop,
M.D., DSc (Hon) and Cliona Rooney, Ph.D., who all have significant experience in this field. Drs. Brenner, Heslop, Rooney, James
P. Allison and Padmanee Sharma serve on our Scientific Advisory Board.
Pipeline
Our clinical-stage pipeline, including clinical
trials being conducted by Baylor College of Medicine, is set forth below.
MAPP: autologous
LAPP: allogeneic
Corporate Information
We were incorporated under the laws of the
State of Nevada in 1991 under the name “TapImmune, Inc.” and reincorporated in Delaware in October 2018 under the name
“Marker Therapeutics, Inc.” On October 17, 2018, we completed a business combination with a Delaware corporation that
was then known as “Marker Therapeutics, Inc.,” or Private Marker, in accordance with the terms of the Agreement
and Plan of Merger and Reorganization dated as of May 15, 2018, or the Merger Agreement, by and among us, Private Marker and Timberwolf
Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of TapImmune, or Merger Sub, pursuant to which, among
other matters, Merger Sub merged with and into Private Marker, with Private Marker continuing as a wholly owned subsidiary of TapImmune
and the surviving corporation of the merger. In connection with the merger, we changed our name from “TapImmune, Inc.”
to “Marker Therapeutics, Inc.” and Private Marker changed its name to “Marker Cell Therapy, Inc.”
and became our wholly owned subsidiary. Our principal executive offices are located at 3200 Southwest Freeway, Suite 2240, Houston,
Texas 77027, and our telephone number is (713) 400-6400. Our website is located at
http://www.markertherapeutics.com
. We
do not incorporate by reference into this prospectus the information on, or accessible through, our website, and you should not
consider it as part of this prospectus.
The Securities We May Offer
We may offer shares of our common stock and
preferred stock, various series of debt securities and/or warrants to purchase any of such securities, either individually or in
combination, up to a total aggregate offering price of $200,000,000 from time to time in one or more offerings under this prospectus,
together with any applicable prospectus supplement and any related free writing prospectus, at prices and on terms to be determined
by market conditions at the time of the relevant offering. This prospectus provides you with a general description of the securities
we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement
that will describe the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
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designation or classification;
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aggregate principal amount or aggregate offering price;
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original issue discount, if any;
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rates and times of payment of interest or dividends, if any;
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redemption, conversion, exchange or sinking fund terms, if any;
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conversion or exchange prices or rates, if any, and, if applicable,
any provisions for changes to or adjustments in the conversion or exchange prices or rates and in the securities or other property
receivable upon conversion or exchange;
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restrictive covenants, if any;
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voting or other rights, if any; and
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important U.S. federal income tax considerations.
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The applicable prospectus supplement and any
related free writing prospectus that we may authorize to be provided to you may also add, update or change information contained
in this prospectus or in documents we have incorporated by reference. However, no prospectus supplement or free writing prospectus
will offer a security that is not registered and described in this prospectus at the time of the effectiveness of the registration
statement of which this prospectus is a part.
This prospectus may not be used to consummate
a sale of securities unless it is accompanied by a prospectus supplement.
We may sell the securities directly to investors
or through underwriters, dealers or agents. We, and our underwriters or agents, reserve the right to accept or reject all or part
of any proposed purchase of securities. If we do offer securities through underwriters or agents, we will include in the applicable
prospectus supplement:
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the names of those underwriters or agents;
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applicable fees, discounts and commissions to be paid to them;
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details regarding over-allotment options, if any; and
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the estimated net proceeds to us.
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Common Stock
. We may issue shares
of our common stock from time to time. Holders of our common stock are entitled to one vote for each share held on all matters
submitted to a vote of stockholders and do not have cumulative voting rights. An election of directors by our stockholders shall
be determined by a plurality of the votes cast by the stockholders entitled to vote on the election. Holders of common stock are
entitled to receive ratably any dividends as may be declared by our board of directors, subject to any preferential dividend rights
of any series of preferred stock that we may designate and issue in the future.
In the event of our liquidation, dissolution
or winding up, the holders of common stock are entitled to receive ratably our net assets available for distribution to stockholders
after the payment of all debts and other liabilities and subject to the prior rights of any outstanding preferred stock. Holders
of common stock have no preemptive, subscription, redemption or conversion rights. There are no redemption or sinking fund provisions
applicable to the common stock. The rights, preferences and privileges of holders of common stock are subject to and may be adversely
affected by the rights of the holders of shares of any series of preferred stock that we may designate and issue in the future.
Preferred Stock
. We may issue
shares of our preferred stock from time to time, in one or more series. Under our certificate of incorporation, our board of directors
has the authority, without further action by the stockholders, to issue up to 5,000,000 shares of preferred stock, par value $0.001
per share. You should refer to our certificate of incorporation and our bylaws, both of which are included as exhibits to the registration
statement of which this prospectus is a part.
Our board of directors
may, without further action by our stockholders, from time to time, direct the issuance of shares of preferred stock in series
and may, at the time of issuance, determine the rights, preferences and limitations of each series, including voting rights, dividend
rights and redemption and liquidation preferences. Satisfaction of any dividend preferences of outstanding shares of preferred
stock would reduce the amount of funds available for the payment of dividends on shares of our common stock. Holders of shares
of preferred stock may be entitled to receive a preference payment in the event of any liquidation, dissolution or winding-up of
our company before any payment is made to the holders of shares of our common stock. In some circumstances, the issuance of shares
of preferred stock may render more difficult or tend to discourage a merger, tender offer or proxy contest, the assumption of control
by a holder of a large block of our securities or the removal of incumbent management. Upon the affirmative vote of our board of
directors, without stockholder approval, we may issue shares of preferred stock with voting and conversion rights which could adversely
affect the holders of shares of our common stock.
If we offer a specific
series of preferred stock under this prospectus, we will describe the terms of the preferred stock in the prospectus supplement
for such offering and will file a copy of the certificate of designation establishing the terms of the preferred stock with
the SEC. We urge you to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be
provided to you) related to the series of preferred stock being offered, as well as the complete certificate of designation that
contains the terms of the applicable series of preferred stock.
Debt Securities
. We may issue
debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible
debt. The senior debt securities will rank equally with any other unsecured and unsubordinated debt. The subordinated debt securities
will be subordinate and junior in right of payment, to the extent and in the manner described in the instrument governing the debt,
to all of our senior indebtedness. Convertible debt securities will be convertible into or exchangeable for our common stock or
other securities. Conversion may be mandatory or at the holder’s option and would be at prescribed conversion rates.
Any debt securities issued under this prospectus
will be issued under one or more documents called indentures, which are contracts between us and a national banking association
or other eligible party, as trustee. In this prospectus, we have summarized certain general features of the debt securities. We
urge you, however, to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided
to you) related to the series of debt securities being offered, as well as the complete indentures that contain the terms of the
debt securities. A form of indenture has been filed as an exhibit to the registration statement of which this prospectus is a part,
and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered will be filed
as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports
that we file with the SEC.
Warrants
.
We may issue
warrants for the purchase of common stock, preferred stock and/or debt securities in one or more series. We may issue warrants
independently or together with common stock, preferred stock and/or debt securities, and the warrants may be attached to or separate
from these securities. In this prospectus, we have summarized certain general features of the warrants. We urge you, however, to
read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related
to the particular series of warrants being offered, as well as the complete warrant agreements and warrant certificates that contain
the terms of the warrants. Forms of the warrant agreements and forms of warrant certificates containing the terms of the warrants
that may be offered have been filed as exhibits to the registration statement of which this prospectus is a part, and supplemental
warrant agreements and forms of warrant certificates will be filed as exhibits to the registration statement of which this prospectus
is a part or will be incorporated by reference from reports that we file with the SEC before the issuance of such warrants.
Any warrants issued under this prospectus will
be evidenced by warrant certificates. Warrants may be issued under an applicable warrant agreement that we enter into with a warrant
agent. We will indicate the name and address of the warrant agent, if applicable, in the prospectus supplement relating to the
particular series of warrants being offered.
RISK FACTORS
Investing in our securities involves a high
degree of risk. You should carefully review the risks and uncertainties described under the heading “Risk Factors”
contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in our Annual
Report on Form 10-K for the year ended December 31, 2018, as updated by any subsequently filed periodic reports and other
documents that are incorporated by reference into this prospectus, before deciding whether to purchase any of the securities being
registered pursuant to the registration statement of which this prospectus is a part. Each of the risk factors described in the
documents referenced above could adversely affect our business, operating results and financial condition, as well as adversely
affect the value of an investment in our securities, and the occurrence of any of these risks might cause you to lose all or part
of your investment. Additional risks not presently known to us or that we currently believe are immaterial may also significantly
impair our business operations.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated
by reference herein contain forward-looking statements. These are based on our management’s current beliefs, expectations
and assumptions about future events, conditions and results and on information currently available to us. Discussions containing
these forward-looking statements may be found, among other places, in the sections entitled “Business,” “Risk
Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” contained
in the documents incorporated by reference herein.
Any statements in this prospectus, or incorporated
herein, about our expectations, beliefs, plans, objectives, assumptions or future events or performance are not historical facts
and are forward-looking statements. Within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange
Act of 1934, as amended, or the Exchange Act, these forward-looking statements include statements regarding:
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the timing, progress and results of clinical trials of our MultiTAA
therapies and other product candidates, including statements regarding the timing of initiation and completion of preclinical studies
or clinical trials or related preparatory work, the period during which the results of the trials will become available and our
research and development programs;
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the timing of any submission of filings for regulatory approval of
our product candidates and our ability to obtain and maintain regulatory approvals for our product candidates for any indication;
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our expectations regarding the potential benefits, activity, effectiveness
and safety of our product candidates;
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our expectations regarding the size of the patient populations, market
acceptance and opportunity for and clinical utility of our product candidates, if approved for commercial use;
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our manufacturing capabilities and strategy, including the, ease,
scalability and commercial viability of our manufacturing methods and processes;
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our expectations regarding the scope of any approved indications for
our product candidates;
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our ability to successfully commercialize our product candidates;
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the potential benefits of and our ability to maintain our relationships
and collaborations with the Baylor College of Medicine and other potential collaboration or strategic relationships;
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our ability to use our MultiTAA platform to develop future product
candidates;
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our estimates of our expenses, ongoing losses, future revenue, capital
requirements and our needs for or ability to obtain additional funding;
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our ability to identify, recruit and retain key personnel;
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our ability to protect and enforce our intellectual property position
for our product candidates, and the scope of such protection;
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our financial performance;
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our competitive position and the development of and projections relating
to our competitors or our industry; and
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the impact of laws and regulations.
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In some cases, you can identify forward-looking
statements by the words “may,” “might,” “can,” “will,” “to be,” “could,”
“would,” “should,” “expect,” “intend,” “plan,” “objective,”
“anticipate,” “believe,” “estimate,” “predict,” “project,” “potential,”
“likely,” “continue” and “ongoing,” or the negative of these terms, or other comparable terminology
intended to identify statements about the future, although not all forward-looking statements contain these words. These statements
involve known and unknown risks, uncertainties and other factors that may cause our actual results, levels of activity, performance
or achievements to be materially different from the information expressed or implied by these forward-looking statements.
You should refer to the “Risk Factors”
section contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in
the other documents that are incorporated by reference into this prospectus, for a discussion of important factors that may cause
our actual results to differ materially from those expressed or implied by our forward-looking statements. Given these risks, uncertainties
and other factors, many of which are beyond our control, we cannot assure you that the forward-looking statements in this prospectus
will prove to be accurate, and you should not place undue reliance on these forward-looking statements. Furthermore, if our forward-looking
statements prove to be inaccurate, the inaccuracy may be material. In light of the significant uncertainties in these forward-looking
statements, you should not regard these statements as a representation or warranty by us or any other person that we will achieve
our objectives and plans in any specified time frame, or at all.
Except as required by law, we assume no obligation
to update these forward-looking statements publicly, or to revise any forward-looking statements to reflect events or developments
occurring after the date of this prospectus, even if new information becomes available in the future.
USE OF PROCEEDS
We will retain broad discretion over the use
of the net proceeds from the sale of the securities offered hereby. Except as described in any applicable prospectus supplement
or in any free writing prospectuses that we may authorize to be provided to you in connection with a specific offering, we currently
intend to use the net proceeds from the sale of the securities offered hereby for working capital, capital expenditures and general
corporate purposes. We may also use a portion of the net proceeds to invest in or acquire businesses or technologies that
we believe are complementary to our own, although we have no current plans, commitments or agreements with respect to any acquisitions
as of the date of this prospectus. We will set forth in the applicable prospectus supplement or free writing prospectus our
intended use for the net proceeds received from the sale of any securities sold pursuant to the prospectus supplement or free writing
prospectus. Pending these uses, we intend to invest the net proceeds in investment-grade, interest-bearing securities.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital
stock and provisions of our certificate of incorporation and bylaws are summaries. You should also refer to the certificate of
incorporation and the bylaws, which are filed as exhibits to the registration statement of which this prospectus is part.
General
Our certificate of incorporation authorizes
us to issue up to 150,000,000 shares of common stock, $0.001 par value per share, and 5,000,000 shares of preferred stock, $0.001
par value per share. Our board of directors may establish the rights and preferences of the preferred stock from time to time.
As of March 31, 2019, we had outstanding 45,484,483 shares of common stock and no shares of preferred stock outstanding.
Common Stock
Voting Rights
Holders of our common stock are entitled to
one vote for each share held on all matters submitted to a vote of stockholders and do not have cumulative voting rights. As a
result, the holders of a plurality of the shares of common stock entitled to vote in any election of directors can elect all of
the directors standing for election, if they should so choose.
Dividends
Holders of common stock are entitled to receive
ratably any dividends as may be declared by our board of directors, subject to any preferential dividend rights of any series of
preferred stock that we may designate and issue in the future.
Liquidation
In the event of our liquidation, dissolution
or winding up, the holders of common stock are entitled to receive ratably our net assets available for distribution to stockholders
after the payment of all debts and other liabilities and subject to the prior rights of any outstanding preferred stock.
Rights and Preferences
Holders of common stock have no preemptive,
subscription, redemption or conversion rights. There are no redemption or sinking fund provisions applicable to the common stock.
The rights, preferences and privileges of holders of common stock are subject to and may be adversely affected by the rights of
the holders of shares of any series of preferred stock that we may designate and issue in the future.
Preferred Stock
Pursuant to our certificate of incorporation,
our board of directors has the authority, without further action by our stockholders, from time to time, to designate and issue
up to 5,000,000 shares of preferred stock in one or more series. Our board of directors may determine the rights, preferences and
limitations of each series, including voting rights, dividend rights and redemption and liquidation preferences. Satisfaction of
any dividend preferences of outstanding shares of preferred stock would reduce the amount of funds available for the payment of
dividends on shares of our common stock. Holders of shares of preferred stock may be entitled to receive a preference payment in
the event of any liquidation, dissolution or winding-up of our company before any payment is made to the holders of shares of our
common stock. In some circumstances, the issuance of shares of preferred stock may render more difficult or tend to discourage
a merger, tender offer or proxy contest, the assumption of control by a holder of a large block of our securities or the removal
of incumbent management. Upon the affirmative vote of our board of directors, without stockholder approval, we may issue shares
of preferred stock with voting and conversion rights which could adversely affect the holders of shares of our common stock.
Our board of directors will fix the designations,
voting powers, preferences and rights of each series, as well as the qualifications, limitations or restrictions thereof, of the
preferred stock of each series that we offer under this prospectus and applicable prospectus supplements in the certificate of
designation relating to that series. We will file as an exhibit to the registration statement of which this prospectus is
a part, or will incorporate by reference from reports that we file with the SEC, the form of any certificate of designation that
describes the terms of the series of preferred stock we are offering before the issuance of that series of preferred stock. This
description will include:
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the title and stated value;
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the number of shares we are offering;
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the liquidation preference per share;
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the purchase price per share;
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the dividend rate per share, dividend period and payment dates and
method of calculation for dividends;
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whether dividends will be cumulative or non-cumulative and, if cumulative,
the date from which dividends will accumulate;
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our right, if any, to defer payment of dividends and the maximum length
of any such deferral period;
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the procedures for any auction and remarketing, if any;
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the provisions for a sinking fund, if any;
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the provisions for redemption or repurchase, if applicable, and any
restrictions on our ability to exercise those redemption and repurchase rights;
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any listing of the preferred stock on any securities exchange or market;
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whether the preferred stock will be convertible into our common stock
or other securities of ours, including depositary shares and warrants, and, if applicable, the conversion period, the conversion
price, or how it will be calculated, and under what circumstances it may be adjusted;
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whether the preferred stock will be exchangeable into debt securities,
and, if applicable, the exchange period, the exchange price, or how it will be calculated, and under what circumstances it may
be adjusted;
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voting rights, if any, of the preferred stock;
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preemption rights, if any;
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restrictions on transfer, sale or other assignment, if any;
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whether interests in the preferred stock will be represented by depositary
shares;
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a discussion of any material or special U.S. federal income tax considerations
applicable to the preferred stock;
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the relative ranking and preferences of the preferred stock as to
dividend rights and rights if we liquidate, dissolve or wind up our affairs;
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any limitations on issuances of any class or series of preferred stock
ranking senior to or on a parity with the series of preferred stock being issued as to dividend rights and rights if we liquidate,
dissolve or wind up our affairs; and
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any other specific terms, rights, preferences, privileges, qualifications
or restrictions of the preferred stock.
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The General Corporation Law of the State of
Delaware, or DGCL, the state of our incorporation, provides that the holders of preferred stock will have the right to vote separately
as a class (or, in some cases, as a series) on an amendment to our certificate of incorporation if the amendment would change the
par value or, unless the certificate of incorporation provided otherwise, the number of authorized shares of the class or change
the powers, preferences or special rights of the class or series so as to adversely affect the class or series, as the case may
be. This right is in addition to any voting rights that may be provided for in the applicable certificate of designation.
The issuance of preferred stock could adversely
affect the voting power of holders of common stock and reduce the likelihood that common stockholders will receive dividend payments
and payments upon liquidation. The issuance could have the effect of decreasing the market price of the common stock. The issuance
of preferred stock also could have the effect of delaying, deterring or preventing a change in control of us.
Anti-Takeover Provisions
Section 203
of the Delaware General Corporation Law
We are subject to Section 203 of the DGCL,
which prohibits a Delaware corporation from engaging in any business combination with any interested stockholder for a period of
three years after the date that such stockholder became an interested stockholder, with the following exceptions:
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before such date, the board of directors of the corporation approved either the business combination or the transaction that
resulted in the stockholder becoming an interested stockholder;
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upon completion of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation outstanding at the time the transaction began, excluding for purposes
of determining the voting stock outstanding, but not the outstanding voting stock owned by the interested stockholder, those shares
owned (i) by persons who are directors and also officers and (ii) employee stock plans in which employee participants
do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange
offer; or
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on or after such date, the business combination is approved by the board of directors and authorized at an annual or special
meeting of the stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting
stock that is not owned by the interested stockholder.
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In general, Section 203 defines a "business
combination" to include the following:
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any merger or consolidation involving the corporation and the interested stockholder;
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any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder;
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subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of
the corporation to the interested stockholder;
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any transaction involving the corporation that has the effect of increasing the proportionate share of the stock or any class
or series of the corporation beneficially owned by the interested stockholder; or
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the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits
by or through the corporation.
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In general, Section 203 defines an "interested
stockholder" as an entity or person who, together with the person's affiliates and associates, beneficially owns, or within
three years prior to the time of determination of interested stockholder status did own, 15% or more of the outstanding voting
stock of the corporation.
Certificate of Incorporation and Bylaws
Because our stockholders do not have cumulative
voting rights, stockholders holding a plurality of the shares of our common stock outstanding will be able to elect all of our
directors. Our bylaws also provide that directors may be removed by the stockholders upon the vote of a majority of the shares
entitled to vote an election of directors, and if a director was elected by a voting group of stockholders, only stockholders from
that voting group may vote to remove such director, and such vacancy may be filled only by the stockholders of that voting group.
Furthermore, the authorized number of directors may be changed only by resolution of the board of directors, and vacancies and
newly created directorships on the board of directors may, except as otherwise required by law or determined by the board, only
be filled by a majority vote of the directors then serving on the board, even though less than a quorum.
Our bylaws provide that only a majority of
the authorized directors on our board of directors, the chairman of the board or the chief executive officer to call a special
meeting of stockholders. Our bylaws also provide that stockholders seeking to present proposals before a meeting of stockholders
to nominate candidates for election as directors at a meeting of stockholders must provide timely advance notice in writing, and
specify requirements as to the form and content of a stockholder's notice.
The combination of these provisions may make
it more difficult for our existing stockholders to replace our board of directors as well as for another party to obtain control
of us by replacing our board of directors. Since our board of directors has the power to retain and discharge our officers, these
provisions could also make it more difficult for existing stockholders or another party to effect a change in management. In addition,
the authorization of undesignated preferred stock makes it possible for our board of directors to issue preferred stock with voting
or other rights or preferences that could impede the success of any attempt to change our control.
These provisions are intended to enhance the
likelihood of continued stability in the composition of our board of directors and its policies and to discourage coercive takeover
practices and inadequate takeover bids. These provisions are also designed to reduce our vulnerability to hostile takeovers and
to discourage certain tactics that may be used in proxy fights. However, such provisions could have the effect of discouraging
others from making tender offers for our shares and may have the effect of delaying changes in our control or management. As a
consequence, these provisions may also inhibit fluctuations in the market price of our stock that could result from actual or rumored
takeover attempts. We believe that the benefits of these provisions, including increased protection of our potential ability to
negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure our company, outweigh the disadvantages
of discouraging takeover proposals, because negotiation of takeover proposals could result in an improvement of their terms.
Transfer Agent and Registrar
The transfer agent and registrar for our common
stock is Island Stock Transfer, with offices at 15500 Roosevelt Boulevard, Clearwater, FL 33760. The transfer agent for any series
of preferred stock that we may offer under this prospectus will be named and described in the prospectus supplement for that series.
Listing on Nasdaq
Our common stock is listed on the Nasdaq Capital
Market under the symbol “MRKR.”
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities from time to time,
in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the terms we
have summarized below will apply generally to any debt securities that we may offer under this prospectus, we will describe the
particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement. The terms of
any debt securities offered under a prospectus supplement may differ from the terms described below. Unless the context requires
otherwise, whenever we refer to the indenture, we also are referring to any supplemental indentures that specify the terms of a
particular series of debt securities.
We will issue the debt securities under the
indenture that we will enter into with the trustee named in the indenture. The indenture will be qualified under the Trust Indenture
Act of 1939, as amended, or the Trust Indenture Act. We have filed the form of indenture as an exhibit to the registration statement
of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities
being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated
by reference from reports that we file with the SEC.
The following summary of material provisions
of the debt securities and the indenture is subject to, and qualified in its entirety by reference to, all of the provisions of
the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and
any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete
indenture that contains the terms of the debt securities.
General
The indenture does not limit the amount of debt
securities that we may issue. It provides that we may issue debt securities up to the principal amount that we may authorize and
may be in any currency or currency unit that we may designate. Except for the limitations on consolidation, merger and sale of
all or substantially all of our assets contained in the indenture, the terms of the indenture do not contain any covenants or other
provisions designed to give holders of any debt securities protection against changes in our operations, financial condition or
transactions involving us.
We may issue the debt securities issued under
the indenture as “discount securities,” which means they may be sold at a discount below their stated principal amount.
These debt securities, as well as other debt securities that are not issued at a discount, may be issued with “original issue
discount,” or OID, for U.S. federal income tax purposes because of interest payment and other characteristics or terms of
the debt securities. Material U.S. federal income tax considerations applicable to debt securities issued with OID will be described
in more detail in any applicable prospectus supplement.
We will describe in the applicable prospectus
supplement the terms of the series of debt securities being offered, including:
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the title of the series of debt securities;
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any limit upon the aggregate principal amount that may be issued;
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the maturity date or dates;
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the form of the debt securities of the series;
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the applicability of any guarantees;
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whether or not the debt securities will be secured or unsecured, and
the terms of any secured debt;
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whether the debt securities rank as senior debt, senior subordinated
debt, subordinated debt or any combination thereof, and the terms of any subordination;
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if the price (expressed as a percentage of the aggregate principal
amount thereof) at which such debt securities will be issued is a price other than the principal amount thereof, the portion of
the principal amount thereof payable upon declaration of acceleration of the maturity thereof, or if applicable, the portion of
the principal amount of such debt securities that is convertible into another security or the method by which any such portion
shall be determined;
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the interest rate or rates, which may be fixed or variable, or the
method for determining the rate and the date interest will begin to accrue, the dates interest will be payable and the regular
record dates for interest payment dates or the method for determining such dates;
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our right, if any, to defer payment of interest and the maximum length
of any such deferral period;
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if applicable, the date or dates after which, or the period or periods
during which, and the price or prices at which, we may, at our option, redeem the series of debt securities pursuant to any optional
or provisional redemption provisions and the terms of those redemption provisions;
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the date or dates, if any, on which, and the price or prices at which
we are obligated, pursuant to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s
option to purchase, the series of debt securities and the currency or currency unit in which the debt securities are payable;
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the denominations in which we will issue the series of debt securities,
if other than denominations of $1,000 and any integral multiple thereof;
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any and all terms, if applicable, relating to any auction or remarketing
of the debt securities of that series and any security for our obligations with respect to such debt securities and any other terms
which may be advisable in connection with the marketing of debt securities of that series;
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whether the debt securities of the series shall be issued in whole
or in part in the form of a global security or securities;
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the terms and conditions, if any, upon which such global security
or securities may be exchanged in whole or in part for other individual securities;
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the depositary for such global security or securities;
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if applicable, the provisions relating to conversion or exchange of
any debt securities of the series and the terms and conditions upon which such debt securities will be so convertible or exchangeable,
including the conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional
(at our option or the holders’ option) conversion or exchange features, the applicable conversion or exchange period and
the manner of settlement for any conversion or exchange;
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if other than the full principal amount thereof, the portion of the
principal amount of debt securities of the series which shall be payable upon declaration of acceleration of the maturity thereof;
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additions to or changes in the covenants applicable to the particular
debt securities being issued, including, among others, the consolidation, merger or sale covenant;
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additions to or changes in the events of default with respect to the
securities and any change in the right of the trustee or the holders to declare the principal, premium, if any, and interest, if
any, with respect to such securities to be due and payable;
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additions to or changes in or deletions of the provisions relating
to covenant defeasance and legal defeasance;
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additions to or changes in the provisions relating to satisfaction
and discharge of the indenture;
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additions to or changes in the provisions relating to the modification
of the indenture both with and without the consent of holders of debt securities issued under the indenture;
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the currency of payment of debt securities if other than U.S. dollars
and the manner of determining the equivalent amount in U.S. dollars;
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whether interest will be payable in cash or additional debt securities
at our or the holders’ option and the terms and conditions upon which the election may be made;
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the terms and conditions, if any, upon which we will pay amounts in
addition to the stated interest, premium, if any and principal amounts of the debt securities of the series to any holder that
is not a “United States person” for federal tax purposes;
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any restrictions on transfer, sale or assignment of the debt securities
of the series; and
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any other specific terms, preferences, rights or limitations of, or
restrictions on, the debt securities, any other additions or changes in the provisions of the indenture, and any terms that may
be required by us or advisable under applicable laws or regulations.
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Conversion or Exchange Rights
We will set forth in the applicable prospectus
supplement the terms on which a series of debt securities may be convertible into or exchangeable for our common stock or our other
securities. We will include provisions as to settlement upon conversion or exchange and whether conversion or exchange is mandatory,
at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock
or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus
supplement applicable to a particular series of debt securities, the indenture will not contain any covenant that restricts our
ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety or substantially as
an entirety. However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume all of our obligations
under the indenture or the debt securities, as appropriate.
Events of Default under the Indenture
Unless we provide otherwise in the prospectus
supplement applicable to a particular series of debt securities, the following are events of default under the indenture with respect
to any series of debt securities that we may issue:
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if we fail to pay any installment of interest on any series of debt
securities, as and when the same shall become due and payable, and such default continues for a period of 90 days; provided, however,
that a valid extension of an interest payment period by us in accordance with the terms of any indenture supplemental thereto shall
not constitute a default in the payment of interest for this purpose;
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if we fail to pay the principal of, or premium, if any, on any series
of debt securities as and when the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise,
or in any payment required by any sinking or analogous fund established with respect to such series; provided, however, that a
valid extension of the maturity of such debt securities in accordance with the terms of any indenture supplemental thereto shall
not constitute a default in the payment of principal or premium, if any;
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if we fail to observe or perform any other covenant or agreement contained
in the debt securities or the indenture, other than a covenant specifically relating to another series of debt securities, and
our failure continues for 90 days after we receive written notice of such failure, requiring the same to be remedied and stating
that such is a notice of default thereunder, from the trustee or holders of at least 25% in aggregate principal amount of the outstanding
debt securities of the applicable series; and
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if specified events of bankruptcy, insolvency or reorganization occur.
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If an event of default with respect to debt
securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the
trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice
to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal of, premium, if any,
and accrued interest, if any, due and payable immediately. If an event of default specified in the last bullet point above occurs
with respect to us, the principal amount of and accrued interest, if any, of each issue of debt securities then outstanding shall
be due and payable without any notice or other action on the part of the trustee or any holder.
The holders of a majority in principal amount
of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series and
its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we
have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms of the indenture, if an
event of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any of its
rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities,
unless such holders have offered the trustee reasonable indemnity. The holders of a majority in principal amount of the outstanding
debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy
available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that
series, provided that:
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the direction so given by the holder is not in conflict with any law
or the applicable indenture; and
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subject to its duties under the Trust Indenture Act, the trustee need
not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the
proceeding.
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A holder of the debt securities of any series
will have the right to institute a proceeding under the indenture or to appoint a receiver or trustee, or to seek other remedies
only if:
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the holder has given written notice to the trustee of a continuing
event of default with respect to that series;
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the holders of at least 25% in aggregate principal amount of the outstanding
debt securities of that series have made written request,
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such holders have offered to the trustee indemnity satisfactory to
it against the costs, expenses and liabilities to be incurred by the trustee in compliance with the request; and
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the trustee does not institute the proceeding, and does not receive
from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series other conflicting
directions within 90 days after the notice, request and offer.
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These limitations do not apply to a suit instituted
by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with the
trustee regarding our compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
We and the trustee may change an indenture without
the consent of any holders with respect to specific matters:
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to cure any ambiguity, defect or inconsistency in the indenture or
in the debt securities of any series;
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to comply with the provisions described above under “Description
of Debt Securities—Consolidation, Merger or Sale;”
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to provide for uncertificated debt securities in addition to or in
place of certificated debt securities;
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to add to our covenants, restrictions, conditions or provisions such
new covenants, restrictions, conditions or provisions for the benefit of the holders of all or any series of debt securities, to
make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions
or provisions an event of default or to surrender any right or power conferred upon us in the indenture;
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to add to, delete from or revise the conditions, limitations, and
restrictions on the authorized amount, terms, or purposes of issue, authentication and delivery of debt securities, as set forth
in the indenture;
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to make any change that does not adversely affect the interests of
any holder of debt securities of any series in any material respect;
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to provide for the issuance of and establish the form and terms and
conditions of the debt securities of any series as provided above under “Description of Debt Securities—General”
to establish the form of any certifications required to be furnished pursuant to the terms of the indenture or any series of debt
securities, or to add to the rights of the holders of any series of debt securities;
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to evidence and provide for the acceptance of appointment under any
indenture by a successor trustee; or
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to comply with any requirements of the SEC in connection with the
qualification of any indenture under the Trust Indenture Act.
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In addition, under the indenture, the rights
of holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders of at least
a majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, unless we
provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may make
the following changes only with the consent of each holder of any outstanding debt securities affected:
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extending the fixed maturity of any debt securities of any series;
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reducing the principal amount, reducing the rate of or extending the
time of payment of interest, or reducing any premium payable upon the redemption of any series of any debt securities; or
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reducing the percentage of debt securities, the holders of which are
required to consent to any amendment, supplement, modification or waiver.
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Discharge
Each indenture provides that we can elect
to be discharged from our obligations with respect to one or more series of debt securities, except for specified obligations,
including obligations to:
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register the transfer or exchange of debt securities of the series;
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replace stolen, lost or mutilated debt securities of the series;
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pay principal of and premium and interest on any debt securities of
the series;
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maintain paying agencies;
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hold monies for payment in trust;
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recover excess money held by the trustee;
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compensate and indemnify the trustee; and
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appoint any successor trustee.
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In order to exercise our rights to be discharged,
we must deposit with the trustee money or government obligations sufficient to pay all the principal of, any premium, if any, and
interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each
series only in fully registered form without coupons and, unless we provide otherwise in the applicable prospectus supplement,
in denominations of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities of a series
in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository
Trust Company, or DTC, or another depositary named by us and identified in the applicable prospectus supplement with respect to
that series. To the extent the debt securities of a series are issued in global form and as book-entry, a description of terms
relating to any book-entry securities will be set forth in the applicable prospectus supplement.
At the option of the holder, subject to
the terms of the indenture and the limitations applicable to global securities described in the applicable prospectus supplement,
the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series,
in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indenture and
the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities
may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed
thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office
of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents
for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but we may require payment
of any taxes or other governmental charges.
We will name in the applicable prospectus
supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for
any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or
approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent
in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities
of any series, we will not be required to:
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issue, register the transfer of, or exchange any debt securities of
that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption
of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or
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register the transfer of or exchange any debt securities so selected
for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part.
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Information Concerning the Trustee
The trustee, other than during the occurrence
and continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically set forth
in the applicable indenture. Upon an event of default under an indenture, the trustee must use the same degree of care as a prudent
person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the trustee is under no obligation
to exercise any of the powers given it by the indenture at the request of any holder of debt securities unless it is offered reasonable
security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable
prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in
whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record
date for the interest.
We will pay principal of and any premium
and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless
we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will mail to the
holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate
the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series.
We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities
of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the
trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end
of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt
security thereafter may look only to us for payment thereof.
Governing Law
The indenture and the debt securities will
be governed by and construed in accordance with the internal laws of the State of New York, except to the extent that the Trust
Indenture Act is applicable.
DESCRIPTION OF WARRANTS
The following description, together with
the additional information we may include in any applicable prospectus supplement and in any related free writing prospectuses,
summarizes the material terms and provisions of the warrants that we may offer under this prospectus, which may consist of warrants
to purchase common stock, preferred stock or debt securities and may be issued in one or more series. Warrants may be offered independently
or together with common stock, preferred stock or debt securities offered by any prospectus supplement, and may be attached to
or separate from those securities. While the terms we have summarized below will apply generally to any warrants that we may offer
under this prospectus, we will describe the particular terms of any series of warrants that we may offer in more detail in the
applicable prospectus supplement and any applicable free writing prospectus. The terms of any warrants offered under a prospectus
supplement may differ from the terms described below. However, no prospectus supplement will fundamentally change the terms that
are set forth in this prospectus or offer a security that is not registered and described in this prospectus at the time of its
effectiveness.
We have filed forms of the warrant agreements
and forms of warrant certificates containing the terms of the warrants that may be offered as exhibits to the registration statement
of which this prospectus is a part. We will file as exhibits to the registration statement of which this prospectus is a part,
or will incorporate by reference from reports that we file with the SEC, the form of warrant agreement, if any, including a form
of warrant certificate, that describes the terms of the particular series of warrants we are offering. The following summaries
of material provisions of the warrants and the warrant agreements are subject to, and qualified in their entirety by reference
to, all the provisions of the warrant agreement and warrant certificate applicable to the particular series of warrants that we
may offer under this prospectus. We urge you to read the applicable prospectus supplements related to the particular series of
warrants that we may offer under this prospectus, as well as any related free writing prospectuses, and the complete warrant agreements
and warrant certificates that contain the terms of the warrants.
General
We will describe in the applicable prospectus
supplement the terms relating to a series of warrants being offered, including, to the extent applicable:
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the title of such securities;
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the offering price or prices and aggregate number of warrants offered;
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the currency or currencies for which the warrants may be purchased;
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if applicable, the designation and terms of the securities with which
the warrants are issued and the number of warrants issued with each such security or each principal amount of such security;
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if applicable, the date on and after which the warrants and the related
securities will be separately transferable;
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if applicable, the minimum or maximum amount of such warrants which
may be exercised at any one time;
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in the case of warrants to purchase debt securities, the principal
amount of debt securities purchasable upon exercise of one warrant and the price at which, and currency in which, this principal
amount of debt securities may be purchased upon such exercise;
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in the case of warrants to purchase common stock or preferred stock,
the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the
price at which, and the currency in which, these shares may be purchased upon such exercise;
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the effect of any merger, consolidation, sale or other disposition
of our business on the warrant agreements and the warrants;
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the terms of any rights to redeem or call the warrants;
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the terms of any rights to force the exercise of the warrants;
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any provisions for changes to or adjustments in the exercise price
or number of securities issuable upon exercise of the warrants;
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the dates on which the right to exercise the warrants will commence
and expire;
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the manner in which the warrant agreements and warrants may be modified;
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a discussion of any material or special U.S. federal income tax consequences
of holding or exercising the warrants;
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the terms of the securities issuable upon exercise of the warrants;
and
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any other specific terms, preferences, rights or limitations of or
restrictions on the warrants.
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Before exercising their warrants, holders
of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:
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in the case of warrants to purchase debt securities, the right to
receive payments of principal of, or premium, if any, or interest on, the debt securities purchasable upon exercise or to enforce
covenants in the applicable indenture; or
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in the case of warrants to purchase common stock or preferred stock,
the right to receive dividends, if any, or, payments upon our liquidation, dissolution or winding up or to exercise voting rights,
if any.
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Exercise of Warrants
Each warrant will entitle the holder to
purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable
prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise
the warrants at any time up to the specified time on the expiration date that we set forth in the applicable prospectus supplement.
After the close of business on the expiration date, unexercised warrants will become void.
Unless we otherwise specify in the applicable
prospectus supplement, holders of the warrants may exercise the warrants by delivering the warrant certificate representing the
warrants to be exercised together with specified information, and paying the required amount to the warrant agent in immediately
available funds, as provided in the applicable prospectus supplement. We will set forth on the reverse side of the warrant certificate
and in the applicable prospectus supplement the information that the holder of the warrant will be required to deliver to the warrant
agent in connection with the exercise of the warrant.
Upon receipt of the required payment and
the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office
indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such exercise. If
fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue a new warrant certificate
for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants may surrender
securities as all or part of the exercise price for warrants.
Governing Law
Unless we provide otherwise in the applicable
prospectus supplement, the warrants and warrant agreements, and any claim, controversy or dispute arising under or related to the
warrants or warrant agreements, will be governed by and construed in accordance with the laws of the State of New York.
Enforceability of Rights by Holders of Warrants
Each warrant agent will act solely as our
agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder
of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will
have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty
or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may,
without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right
to exercise, and receive the securities purchasable upon exercise of, its warrants.
LEGAL OWNERSHIP OF SECURITIES
We can issue securities in registered form
or in the form of one or more global securities. We describe global securities in greater detail below. We refer to those persons
who have securities registered in their own names on the books that we or any applicable trustee, depositary or warrant agent maintain
for this purpose as the “holders” of those securities. These persons are the legal holders of the securities. We refer
to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names,
as “indirect holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors
in securities issued in book-entry form or in street name will be indirect holders.
Book-Entry Holders
We may issue securities in book-entry form
only, as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more global
securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions
that participate in the depositary’s book-entry system. These participating institutions, which are referred to as participants,
in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only the person in whose name a security
is registered is recognized as the holder of that security. Global securities will be registered in the name of the depositary
or its participants. Consequently, for global securities, we will recognize only the depositary as the holder of the securities,
and we will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its
participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants
do so under agreements they have made with one another or with their customers; they are not obligated to do so under the terms
of the securities.
As a result, investors in a global security
will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other
financial institution that participates in the depositary’s book-entry system or holds an interest through a participant.
As long as the securities are issued in global form, investors will be indirect holders, and not legal holders, of the securities.
Street Name Holders
We may terminate a global security or issue
securities that are not issued in global form. In these cases, investors may choose to hold their securities in their own names
or in “street name.” Securities held by an investor in street name would be registered in the name of a bank, broker
or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities
through an account he or she maintains at that institution.
For securities held in street name, we
or any applicable trustee or depositary will recognize only the intermediary banks, brokers and other financial institutions in
whose names the securities are registered as the holders of those securities, and we or any such trustee or depositary will make
all payments on those securities to them. These institutions pass along the payments they receive to their customers who are the
beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required to do
so. Investors who hold securities in street name will be indirect holders, not legal holders, of those securities.
Legal Holders
Our obligations, as well as the obligations
of any applicable trustee or third party employed by us or a trustee, run only to the legal holders of the securities. We do not
have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means.
This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing
the securities only in global form.
For example, once we make a payment or
give a notice to the holder, we have no further responsibility for the payment or notice even if that holder is required, under
agreements with its participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly,
we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences of a default or of our
obligation to comply with a particular provision of an indenture, or for other purposes. In such an event, we would seek approval
only from the holders, and not the indirect holders, of the securities. Whether and how the legal holders contact the indirect
holders is up to the legal holders.
Special Considerations for Indirect Holders
If you hold securities through a bank,
broker or other financial institution, either in book-entry form because the securities are represented by one or more global securities
or in street name, you should check with your own institution to find out:
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how it handles securities payments and notices;
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whether it imposes fees or charges;
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how it would handle a request for the holders’ consent, if ever
required;
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whether and how you can instruct it to send you securities registered
in your own name so you can be a holder, if that is permitted in the future;
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how it would exercise rights under the securities if there were a
default or other event triggering the need for holders to act to protect their interests; and
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if the securities are in book-entry form, how the depositary’s
rules and procedures will affect these matters.
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Global Securities
A global security is a security that represents
one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global
securities will have the same terms.
Each security issued in book-entry form
will be represented by a global security that we issue to, deposit with and register in the name of a financial institution or
its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify
otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, New York, known as DTC, will be the
depositary for all securities issued in book-entry form.
A global security may not be transferred
to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special termination
situations arise. We describe those situations below under “—Special Situations When a Global Security Will Be Terminated.”
As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and legal holder of all securities
represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial
interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with
the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will
not be a legal holder of the security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus supplement for a particular
security indicates that the security will be issued as a global security, then the security will be represented by a global security
at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through another
book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system.
Special Considerations for Global Securities
As an indirect holder, an investor’s
rights relating to a global security will be governed by the account rules of the investor’s financial institution and of
the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of
securities and instead deal only with the depositary that holds the global security.
If securities are issued only as global
securities, an investor should be aware of the following:
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an investor cannot cause the securities to be registered in his or
her name, and cannot obtain non-global certificates for his or her interest in the securities, except in the special situations
we describe below;
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an investor will be an indirect holder and must look to his or her
own bank or broker for payments on the securities and protection of his or her legal rights relating to the securities, as we describe
above;
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an investor may not be able to sell interests in the securities to
some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form;
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an investor may not be able to pledge his or her interest in the global
security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of
the pledge in order for the pledge to be effective;
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the depositary’s policies, which may change from time to time,
will govern payments, transfers, exchanges and other matters relating to an investor’s interest in the global security;
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we and any applicable trustee have no responsibility for any aspect
of the depositary’s actions or for its records of ownership interests in the global security, nor will we or any applicable
trustee supervise the depositary in any way;
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the depositary may, and we understand that DTC will, require that
those who purchase and sell interests in the global security within its book-entry system use immediately available funds, and
your broker or bank may require you to do so as well; and
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financial institutions that participate in the depositary’s
book-entry system, and through which an investor holds its interest in the global security, may also have their own policies affecting
payments, notices and other matters relating to the securities.
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There may be more than one financial intermediary
in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries.
Special Situations When a Global Security Will Be Terminated
In a few special situations described below,
a global security will terminate and interests in it will be exchanged for physical certificates representing those interests.
After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors
must consult their own banks or brokers to find out how to have their interests in securities transferred to their own names, so
that they will be direct holders. We have described the rights of holders and street name investors above.
Unless we provide otherwise in the applicable
prospectus supplement, a global security will terminate when the following special situations occur:
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if the depositary notifies us that it is unwilling, unable or no longer
qualified to continue as depositary for that global security and we do not appoint another institution to act as depositary within
90 days;
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if we notify any applicable trustee that we wish to terminate that
global security; or
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if an event of default has occurred with regard to securities represented
by that global security and has not been cured or waived.
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The applicable prospectus supplement may
also list additional situations for terminating a global security that would apply only to the particular series of securities
covered by the prospectus supplement. When a global security terminates, the depositary, and neither we nor any applicable trustee,
is responsible for deciding the names of the institutions that will be the initial direct holders.
PLAN OF DISTRIBUTION
We may sell the securities from time to
time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods. We may
sell the securities to or through underwriters or dealers, through agents, or directly to one or more purchasers. We may distribute
securities from time to time in one or more transactions:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices; or
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We may also sell equity securities covered
by this registration statement in an “at the market” offering as defined in Rule 415(a)(4) under the Securities Act.
Such offering may be made into an existing trading market for such securities in transactions at other than a fixed price on or
through the facilities of the Nasdaq Capital Market or any other securities exchange or quotation or trading service on which such
securities may be listed, quoted or traded at the time of sale. Such at the market offerings, if any, may be conducted by underwriters
acting as principal or agent.
A prospectus supplement or supplements
(and any related free writing prospectus that we may authorize to be provided to you) will describe the terms of the offering of
the securities, including, to the extent applicable:
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the name or names of any underwriters, dealers or agents, if any;
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the purchase price of the securities and the proceeds we will receive
from the sale;
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any over-allotment options under which underwriters may purchase additional
securities from us;
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any agency fees or underwriting discounts and other items constituting
agents’ or underwriters’ compensation;
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any public offering price;
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any discounts or concessions allowed or reallowed or paid to dealers;
and
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any securities exchange or market on which the securities may be listed.
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Only underwriters named in the prospectus
supplement are underwriters of the securities offered by the prospectus supplement.
If underwriters are used in the sale, they
will acquire the securities for their own account and may resell the securities from time to time in one or more transactions at
a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase
the securities will be subject to the conditions set forth in the applicable underwriting agreement. We may offer the securities
to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject
to certain conditions, the underwriters will be obligated to purchase all of the securities offered by the prospectus supplement,
other than securities covered by any overallotment or other option. Any public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may change from time to time. We may use underwriters with whom we have a material relationship.
We will describe in the prospectus supplement, naming the underwriter, the nature of any such relationship.
We may sell securities directly or through
agents we designate from time to time. We will name any agent involved in the offering and sale of securities, and we will describe
any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, our agent
will act on a best-efforts basis for the period of its appointment.
We may authorize agents or underwriters
to solicit offers by certain types of institutional investors to purchase securities from us at the public offering price set forth
in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the
future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts
in the prospectus supplement.
We may provide agents and underwriters
with indemnification against civil liabilities related to this offering, including liabilities under the Securities Act, or contribution
with respect to payments that the agents or underwriters may make with respect to these liabilities. Agents and underwriters may
engage in transactions with, or perform services for, us in the ordinary course of business.
All securities we may offer, other than
common stock, will be new issues of securities with no established trading market. Any underwriters may make a market in these
securities, but will not be obligated to do so and may discontinue any market making at any time without notice. We cannot guarantee
the liquidity of the trading markets for any securities.
Any underwriter may engage in overallotment,
stabilizing transactions, short covering transactions and penalty bids. Overallotment involves sales in excess of the offering
size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing
bids do not exceed a specified maximum. Short covering transactions involve purchases of the securities in the open market after
the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from
a dealer when the securities originally sold by the dealer are purchased in a stabilizing or covering transaction to cover short
positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters
may discontinue any of the activities at any time. These transactions may be effected on any exchange or over-the-counter market
or otherwise.
Any underwriters or agents who are qualified
market makers on the Nasdaq Capital Market may engage in passive market making transactions in the securities on the Nasdaq Capital
Market in accordance with Rule 103 of Regulation M under the Exchange Act, during the business day prior to the pricing of the
offering, before the commencement of offers or sales of the securities. Passive market makers must comply with applicable volume
and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid
at a price not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive
market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded.
Passive market making may stabilize the market price of the securities at a level above that which might otherwise prevail in the
open market and, if commenced, may be discontinued at any time.
In compliance with guidelines of the Financial
Industry Regulatory Authority, or FINRA, the maximum consideration or discount to be received by any FINRA member or independent
broker dealer may not exceed 8% of the aggregate amount of the securities offered pursuant to this prospectus and any applicable
prospectus supplement.
LEGAL MATTERS
Unless otherwise indicated in the applicable
prospectus supplement, certain legal matters in connection with the offering and the validity of the securities offered by this
prospectus, and any supplement thereto, will be passed upon by Cooley LLP, New York, New York. Additional legal matters may be
passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
Marcum LLP, independent registered
public accounting firm, has audited our consolidated financial statements as of and for the years ended December 31, 2018 and
2017 and the effectiveness of our internal control over financial reporting as of December 31, 2018 as set forth in its reports,
which are included in our 2018 Annual Report on Form 10-K and incorporated by reference in this prospectus and
elsewhere in the registration statement. Our 2018 and 2017 financial statements are incorporated by reference in reliance on
Marcum LLP’s report, given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration
statement we filed with the SEC. This prospectus does not contain all of the information set forth in the registration statement
and the exhibits to the registration statement. For further information with respect to us and the securities we are offering under
this prospectus, we refer you to the registration statement and the exhibits and schedules filed as a part of the registration
statement. You should rely only on the information contained in this prospectus or incorporated by reference in this prospectus.
We have not authorized anyone else to provide you with different information. We are not making an offer of these securities in
any state where the offer is not permitted. You should not assume that the information in this prospectus is accurate as of any
date other than the date on the front page of this prospectus, regardless of the time of delivery of this prospectus or any sale
of the securities offered by this prospectus.
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. Our SEC filings are available to the public at the SEC’s website at
http://www.sec.gov
.
Copies of certain information filed by
us with the SEC are also available on our website at
http://www.markertherapeutics.com
. Information contained in or accessible
through our website does not constitute a part of this prospectus and is not incorporated by reference in this prospectus.
INCORPORATION OF CERTAIN INFORMATION
BY REFERENCE
The SEC allows us to “incorporate
by reference” information into this prospectus, which means that we can disclose important information to you by referring
you to another document filed separately with the SEC. The SEC file number for the documents incorporated by reference in this
prospectus is 001-37939. The documents incorporated by reference into this prospectus contain important information that you should
read about us.
The following documents are incorporated
by reference into this document:
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·
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our Annual Report on Form 10-K for the fiscal year ended December
31, 2018, filed with the SEC on
March 15, 2019
;
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·
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the information specifically incorporated by reference into our Annual
Report on Form 10-K for the year ended December 31, 2018 from our Definitive Proxy Statement on Schedule 14A, filed with the SEC
on
March 28, 2019
;
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·
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our Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 2019, filed with the SEC on
May 10, 2019
;
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·
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our Current Reports on Form 8-K filed with the SEC on
January 4, 2019
,
January 15, 2019
,
February 15, 2019
,
February 25, 2019
,
March 28, 2019
,
April 17, 2019
and
May 10, 2019
; and
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·
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the description of our common stock set forth in the registration
statement on Form 8-A registering our common stock under Section 12 of the Exchange Act, which was filed with the SEC on
November 3, 2016
, including any amendments or reports filed for purposes of updating such description.
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We also incorporate by reference into this
prospectus all documents (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such
form that are related to such items) that are filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act (i) after the date of the initial filing of the registration statement of which this prospectus forms a part and prior to effectiveness
of the registration statement, or (ii) after the date of this prospectus but prior to the termination of the offering. These documents
include periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K,
as well as proxy statements.
We will provide to each person, including
any beneficial owner, to whom a prospectus is delivered, without charge upon written or oral request, a copy of any or all of the
documents that are incorporated by reference into this prospectus but not delivered with the prospectus, including exhibits that
are specifically incorporated by reference into such documents. You should direct any requests for documents to Marker Therapeutics, Inc.,
Attn: Corporate Secretary, 3200 Southwest Freeway, Suite 2240, Houston, Texas 77027.
Any statement contained in this prospectus
or contained in a document incorporated or deemed to be incorporated by reference into this prospectus will be deemed to be modified
or superseded to the extent that a statement contained in this prospectus or any subsequently filed supplement to this prospectus,
or document deemed to be incorporated by reference into this prospectus, modifies or supersedes such statement.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimated
costs and expenses, other than underwriting discounts and commissions, payable by us in connection with the offering of the securities
being registered. All the amounts shown are estimates, except for the SEC registration fee and FINRA filing fee.
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SEC registration fee
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$
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24,240
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FINRA filing fee
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*
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Accounting fees and expenses
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*
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Legal fees and expenses
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*
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Transfer agent fees and expenses
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*
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Trustee fees and expenses
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*
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Printing and miscellaneous expenses
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*
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Total
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$
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*
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* These fees are calculated
based on the securities offered and the number of issuances and, accordingly, cannot be estimated at this time.
Item 15. Indemnification of Officers and Directors
We are incorporated under the laws of the
State of Delaware. Subsection (a) of Section 145 of the General Corporation Law of the State of Delaware, or the DGCL, empowers
a corporation to indemnify any person who was or is a party or who is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith
and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawful.
Subsection (b) of Section 145 empowers a
corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person acted
in any of the capacities set forth above, against expenses (including attorneys' fees) actually and reasonably incurred by the
person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 145 further
provides that to the extent a director or officer of a corporation has been successful on the merits or otherwise in the defense
of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by
such
person in connection therewith; that indemnification provided for by Section 145 shall not be deemed exclusive of any other
rights to which the indemnified party may be entitled; and the indemnification provided for by Section 145 shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of such person's heirs, executors and administrators. Section 145 also empowers the corporation to purchase
and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity,
or arising out of his status as such, whether or not the corporation would have the power to indemnify such person against such
liabilities under Section 145.
Section 102(b)(7)
of the DGCL provides that a corporation's certificate of incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director,
provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which
the director derived an improper personal benefit.
Our bylaws provide
that we will indemnify each person made, or threatened to be made, a party to an action or proceeding by reason of the fact that
he or she is or was a director or officer of our company, or a director officer of a predecessor corporation or of another corporation
if such person served in such position at our request, against all expenses incurred in defending such an action, suit or proceeding.
Such expenses will be paid by us in advance of the financial disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director to repay any advanced amounts if it is ultimately determined that he or she is not
entitled to indemnification as authorized by relevant section of the DGCL. We are not obligated to advance expenses to an agent
who is a party to an action, suit or proceeding brought by us and approved by a majority of our board of directors alleging willful
misappropriate of corporate assets by such agent, disclosure of confidential information in violation of such agent’s fiduciary
or contractual obligations to us or any other willful and deliberate breach in bad faith of such agent’s duty to us or our
stockholders.
We have entered into indemnification agreements
with each of our directors and officers. These indemnification agreements may require us, among other things, to indemnify our
directors and officers for some expenses, including attorneys’ fees, judgments, fines and settlement amounts incurred by
a director or officer in any action or proceeding arising out of his or her service as one of our directors or officers, or any
of our subsidiaries or any other company or enterprise to which the person provides services at our request.
We maintain a general liability insurance
policy that covers certain liabilities of directors and officers of our corporation arising out of claims based on acts or omissions
in their capacities as directors or officers.
Pursuant to the terms of the Merger Agreement
and subject to applicable law, from the effective time of the merger, or the Effective Time, through the sixth anniversary of the
date on which the Effective Time occurs, we and TapImmune shall each jointly and severally indemnify and hold harmless each person
who is, or has been at any time prior to the date thereof, or who became prior to the Effective Time, a director or officer of
TapImmune or Private Marker, respectively, against all costs incurred in connection with any claim, action, suit, proceeding or
investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that such person
is or was a director or officer of TapImmune or Private Marker, whether asserted or claimed prior to, at or after the Effective
Time, in each case, to the fullest extent permitted under the DGCL for directors or officers of Delaware corporations, provided
that any such person to whom expenses are advanced provides an undertaking, as applicable, to the extent then required by the DGCL,
to repay such advances if it is ultimately determined that such person is not entitled to indemnification.
Further, pursuant to the Merger Agreement,
the provisions of our certificate of incorporation and our bylaws shall contain provisions no less favorable with respect to indemnification,
advancement of expenses and exculpation of present and former directors and officers of each of TapImmune and Private Marker than
were set forth in the certificate of incorporation and bylaws of TapImmune and Private Marker, as applicable, and such provisions
shall not be amended, modified or repealed for a period of six years from the Effective Time in a manner that would adversely affect
the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of TapImmune or Private
Marker.
We shall pay all expenses, including reasonable
attorneys' fees, that are incurred by indemnified persons in connection with their successful enforcement of the rights provided
to such persons in the Merger Agreement. The director and officer indemnification provisions of the Merger Agreement are intended
to be in addition to the rights otherwise available to the former officers and directors of TapImmune and Private Marker by law,
charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of such indemnified
persons, their heirs and their representatives.
In the event we or TapImmune (i) consolidates
with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or
merger, or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper
provision shall be made so that our successors and assigns shall succeed to the indemnification obligations set forth in the Merger
Agreement.
The underwriting agreement, if any, entered
into with respect to an offering of securities registered hereunder will provide for indemnification by any underwriters of any
offering, our directors and officers who sign the registration statement and our controlling persons for some liabilities, including
liabilities arising under the Securities Act.
Item 16. Exhibits and Financial Statement Schedules
Exhibit
Number
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Description of Document
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1.1 *
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Form of Underwriting Agreement.
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2.1
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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).
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3.1
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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).
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3.2
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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).
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4.1
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Specimen
Stock Certificate evidencing shares of Common Stock of the Registrant (incorporated by reference to Exhibit 4.1 to the Registrant’s
Form 8-A/A (File No. 001-37939), filed with the SEC on October 17, 2018).
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4.2 *
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Form of Specimen Preferred Stock Certificate and Certificate of Designation of Preferred Stock.
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4.3
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Form of Indenture, between the Registrant and one or more trustees to be named.
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4.4 *
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Form of Debt Securities.
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4.5
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Form of Common Stock Warrant Agreement and Warrant Certificate.
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4.6
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Form of Preferred Stock Warrant Agreement and Warrant Certificate.
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4.7
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Form of Debt Securities Warrant Agreement and Warrant Certificate.
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5.1
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Opinion of Cooley LLP.
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23.1
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Consent of Marcum LLP, independent registered public accounting firm.
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23.2
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Consent
of Cooley LLP (included in Exhibit 5.1).
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24.1
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Power of Attorney (included on signature page).
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25.1 **
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Statement of Eligibility of Trustee under the Indenture.
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*
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To be filed, if applicable, by amendment or by a report
filed under the Exchange Act and incorporated herein by reference.
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**
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To be filed, if applicable, in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939
and Rule 5b-3 thereunder.
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Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which
offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
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(ii)
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To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement; and
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(iii)
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To include any material information with respect to
the plan of distribution not previously disclosed in the registration statement or any material change to such information in
the registration statement;
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provided, however
, that the undertakings
set forth in paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement or
are contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.
(2) That, for the purpose of determining
any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(3) To remove from registration by means
of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining
liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant
pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed
part of and included in the registration statement; and
(ii) Each prospectus required to be filed
pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such
form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
Provided, however
, that no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior
to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part
of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining
liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser
and will be considered to offer or sell such securities to such purchaser: (i) any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be filed pursuant to Rule 424; (ii) any free writing prospectus relating
to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; (iii)
the portion of any other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned registrant; and (iv) any other communication that is an
offer in the offering made by the undersigned registrant to the purchaser.
(6) That, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial
bona fide
offering thereof.
(7) To file an application for the purpose
of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant
to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities Exchange Commission
such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Houston, State of Texas, on this 14th day of June, 2019.
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MARKER THERAPEUTICS, Inc.
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By:
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/s/ Peter Hoang
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Peter Hoang
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Peter Hoang and Anthony Kim, jointly and severally, as his or her true and lawful
agent, proxy and attorneys-in-fact, with full power of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to (i) act on, sign and file with the Securities and Exchange Commission any and
all amendments (including post-effective amendments) to this registration statement together with all schedules and exhibits thereto
and any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended,
together with all schedules and exhibits thereto, (ii) act on, sign and file such certificates, instruments, agreements and
other documents as may be necessary or appropriate in connection therewith, (iii) act on and file any supplement to any prospectus
included in this registration statement or any such amendment or any subsequent registration statement filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended, and (iv) take any and all actions which may be necessary or appropriate to be
done, as fully for all intents and purposes as he or she might or could do in person, hereby approving, ratifying and confirming
all that such agent, proxy and attorney-in-fact or any of his substitutes may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
/s/
Peter Hoang
|
|
President, Chief Executive Officer and Director
|
|
June 14, 2019
|
|
Peter Hoang
|
|
(Principal Executive Officer)
|
|
|
|
|
|
|
|
|
|
/s/ Anthony Kim
|
|
Chief Financial Officer
|
|
June 14, 2019
|
|
Anthony Kim
|
|
(Principal Financial Officer and Principal Accounting Officer)
|
|
|
|
|
|
|
|
|
|
/s/ Frederick Wasserman
|
|
Chairman of the Board
|
|
June 14, 2019
|
|
Frederick Wasserman
|
|
|
|
|
|
|
|
|
|
|
|
/s/ David Eansor
|
|
Director
|
|
June 14, 2019
|
|
David Eansor
|
|
|
|
|
|
|
|
|
|
|
|
/s/ David Laskow-Pooley
|
|
Director
|
|
June 14, 2019
|
|
David Laskow-Pooley
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Juan Vera
|
|
Director
|
|
June 14, 2019
|
|
Juan Vera
|
|
|
|
|
|
|
|
|
|
|
|
/s/ John Wilson
|
|
Director
|
|
June 14, 2019
|
|
John Wilson
|
|
|
|
|
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