Attached files
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
(Amendment No. 1)
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 19,
2017
Acer Therapeutics Inc.
(Exact name of registrant as specified in its charter)
Texas
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001-33004
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76-0333165
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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222 Third Street, Suite #2240, Cambridge,
Massachusetts
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02142
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including area code: (844)
902-6100
(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 obligations 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. ☐
EXPLANATORY NOTE
On
September 19, 2017, Opexa Therapeutics, Inc., a Texas corporation
now known as Acer Therapeutics Inc. (the “Company”), completed its merger
with privately-held Acer Therapeutics Inc. (“Private Acer”) in accordance with
the terms of the Agreement and Plan of Merger and Reorganization,
dated June 30, 2017, whereby the Company’s wholly-owned
subsidiary, Opexa Merger Sub, Inc., merged with and into Private
Acer, with Private Acer surviving as the Company’s wholly
owned subsidiary (the “Merger”). In connection with the
Merger, the Company changed its name from Opexa Therapeutics, Inc.
to Acer Therapeutics Inc.
On
September 20, 2017, the Company filed a Current Report on Form 8-K
(the “Original Form
8-K”) reporting, among other items, the consummation
of the Merger. This Amendment No. 1 to Current Report on Form 8-K
amends the Original Form 8-K to provide (i) the historical
unaudited condensed consolidated financial statements of Private
Acer as of June 30, 2017, and (ii) the pro forma condensed combined
financial information as required by Items 9.01(a) and 9.01(b) of
Current Report on Form 8-K, respectively. Such financial
information was excluded from the Original Form 8-K in reliance on
the instructions to such Items.
Item 9.01 Financial Statements and Exhibits.
(a)
Financial Statements of Businesses Acquired.
The
audited consolidated financial statements of Private Acer required
by Item 9.01(a) were previously filed with the SEC as part of the
Company’s Registration Statement on Form S-4 (Reg. No.
333-219358) filed on July 19, 2017 and, pursuant to General
Instruction B.3 of Form 8-K, are not required to be filed herewith.
The unaudited condensed consolidated financial statements of
Private Acer as of June 30, 2017 are filed as Exhibit 99.2 to this
Current Report on Form 8-K and are incorporated herein by
reference.
(b) Pro
Forma Financial Information.
The
unaudited pro forma condensed combined statement of operations for
the nine months ended September 30, 2017 giving effect to the
Merger is filed as Exhibit 99.3 to this Current Report on Form 8-K
and is incorporated herein by reference. On November 13, 2017, the
Company filed its Quarterly Report on Form 10-Q, which contained a
balance sheet dated September 30, 2017, and therefore an unaudited
pro forma condensed combined balance sheet as of September 30, 2017
is not required to be filed herewith pursuant to Rule 8-05(b)(2) of
Regulation S-X. The pro forma condensed combined statement of
operations for the year ended December 31, 2016 required by Item
9.01(b) was previously filed with the SEC as part of the
Company’s Registration Statement on Form S-4 (Reg. No.
333-219358) filed on July 19, 2017 and, pursuant to General
Instruction B.3 of Form 8-K, is not required to be filed
herewith.
(d)
Exhibits
Below
is a list of exhibits included with this Current Report on
Form 8-K.
Exhibit
No.
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Description
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2.1*
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Agreement
and Plan of Merger and Reorganization, dated as of June 30, 2017,
by and among Acer Therapeutics Inc. (formerly Opexa Therapeutics,
Inc.), Opexa Merger Sub, Inc. and Acer Therapeutics Inc.
(incorporated by reference to Exhibit 2.1 to Acer’s Current Report on Form 8-K filed
on July 3, 2017).
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3.1*
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Certificate
of Amendment to the Restated Certificate of Formation.
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3.2*
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Certificate
of Amendment to the Restated Certificate of Formation.
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10.1*+
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Acer
Therapeutics Inc. Amended and Restated 2010 Stock Incentive Plan
(incorporated by reference to Appendix A to Acer’s Definitive
Proxy Statement on Schedule 14A filed on April 11,
2016).**
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10.2*+
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Amendment
No. 1 to the Acer Therapeutics Inc. Amended and Restated 2010 Stock
Incentive Plan (incorporated by reference to Exhibit 10.35 to
Acer’s Registration Statement on Form S-4 (File No.
333-219358) filed on July 19, 2017).**
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10.3*+
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Acer
Therapeutics Inc. 2013 Stock Incentive Plan, as
amended.
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16.1*
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Letter
dated September 20, 2017 from MaloneBailey, LLP to the
SEC.
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99.1*
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Press
release issued by Acer on September 19, 2017 entitled “Acer Therapeutics and Opexa
Therapeutics Close Merger and Financing.”
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Unaudited
condensed consolidated balance sheet and statement of income of
Private Acer for the nine months ended September 30,
2017.
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Unaudited
pro forma condensed combined statement of income of Acer and
Private Acer for the nine months ended September 30,
2017.
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*
Previously
filed.
+
Management
contract or compensatory plans or arrangements.
**
Note
that the name of this plan has been amended to reflect the current
name of the Company.
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 hereunto duly authorized.
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Acer Therapeutics Inc.
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Dated: November
14, 2017
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By:
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/s/
Harry
S. Palmin
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Harry S.
Palmin
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Chief Financial
Officer
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