8-K

Dated: November 9, 2018

ACER THERAPEUTICS INC.

/s/ Harry S. Palmin

Harry S. Palmin

Chief Operating Officer and Chief Financial Officer

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (date of earliest event reported): November 9, 2018

ACER THERAPEUTICS INC.

(Exact name of registrant as specified in its charter)

Delaware

001-33004

32-0426967

(State or other jurisdiction of
incorporation)

(Commission

File Number)

(IRS Employer

Identification No.)

One Gateway Center, Suite 351
300 Washington Street

Newton, Massachusetts

02458

(Address of principal executive offices)

(Zip Code)

Registrant’s telephone number, including area code: (844) 902-6100

N/A

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 1.01.

Entry into a Material Definitive Agreement.

On November 9, 2018, Acer Therapeutics Inc. (the “Company”) entered into that certain Sales Agreement (the “Agreement”) with Roth Capital Partners, LLC (the “Sales Agent”), under which the Company may sell shares of its common stock from time to time having an aggregate offering price of up to $50,000,000, depending upon market demand, with the Sales Agent acting as an agent for sales. Pursuant to the Agreement, the Company may offer and sell the shares in transactions deemed to be an “at-the-market” offering as defined in Rule 415 of the Securities Act of 1933. The Agreement replaces that certain Sales Agreement dated March 25, 2016 (the “Original Sales Agreement”), between the Company (formerly known as Opexa Therapeutics, Inc.) and IFS Securities, Inc. (doing business as Brinson Patrick, a division of IFS Securities, Inc.) (“IFS”) which was terminated.

The Company will pay the Sales Agent a commission equal to 3% of the gross proceeds from the sale of shares of common stock by it as agent under the Agreement. The Agreement provides that the Company will provide customary indemnification rights to the Sales Agent. The Company has no obligation to sell any shares of common stock pursuant to the Agreement and may at any time suspend sales pursuant to the Agreement. Either party may terminate the Agreement at any time without liability of any party.

The shares of common stock will be sold pursuant to a new shelf registration statement on Form S-3 which will be filed by the Company with the Securities and Exchange Commission, including a prospectus and a prospectus supplement, but the registration statement has not yet become effective. Interested investors should read the registration statement, prospectus and prospectus supplement and all documents incorporated therein by reference. This Current Report shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state.

As a result of the foregoing, the continuous offering through IFS pursuant to a prospectus supplement dated March 25, 2016 is deemed terminated and no further shares will be offered or sold by the Company through IFS.

The foregoing description of the Agreement does not purport to be complete and is subject to and qualified in its entirety by reference to the Agreement, a copy of which is filed as Exhibit 10.1 hereto and is incorporated herein by reference.

Item 1.02.

Termination of a Material Definitive Agreement.

Reference is made to the disclosure above in Item 1.01. The Original Sales Agreement was terminated on November 9, 2018.

Item 9.01.

Financial Statements and Exhibits.

(d) Exhibits


Exhibit No.		Description

10.1		Sales Agreement, dated November 9, 2018, by and between Acer Therapeutics Inc. and Roth Capital Partners, LLC.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.