As
filed with the Securities and Exchange Commission on November 14,
2017
Registration
No.
333-
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
____________________
ACER THERAPEUTICS INC.
(Exact
name of registrant as specified in its charter)
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Texas
(State or other jurisdiction of incorporation or
organization)
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76-0333165
(I.R.S. Employer Identification No.)
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222
Third Street, Suite #2240, Cambridge, Massachusetts
(Address of principal executive offices)
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02142
(Zip Code)
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Acer
Therapeutics Inc. Amended and Restated 2010 Stock Incentive
Plan
Acer Therapeutics
Inc. 2013 Stock Incentive Plan, as amended
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(Full title of the plan)
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Chris
Schelling
President
and Chief Executive Officer
Acer
Therapeutics Inc.
222
Third Street, Suite 2240
Cambridge,
MA 02142
(Name and address agent for service)
(844)
902-6100
(Telephone number, including area code, of agent for
service)
Copy
to:
Mike
Hird, Esq.
Patty
M. DeGaetano, Esq.
Pillsbury
Winthrop Shaw Pittman LLP
12255
El Camino Real, Suite 300
San
Diego, California 92130
(619)
234-5000
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Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, 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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☐
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Accelerated filer
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☐
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Non-accelerated
filer
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☐
(Do not check if a smaller reporting
company)
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Smaller reporting company
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☒
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Emerging
growth company
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☐
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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.
☐
CALCULATION OF REGISTRATION FEE
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Title of
Securities To Be Registered
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Amount To Be
Registered
(1)
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Proposed Maximum
Offering Price Per Share
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Proposed Maximum
Aggregate Offering Price
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Amount of
Registration Fee
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Common
stock, $.01 par value:
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Amended
and Restated 2010 Stock Incentive Plan (issued)
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273,600
(2)
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$15.54
(3)
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$4,251.744.00
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$529.34
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Amended
and Restated 2010 Stock Incentive Plan (available)
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196,400
(4)
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$17.79
(5)
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$3,493,956.00
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$435.00
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2013
Stock Incentive Plan, as amended (issued)
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165,000
(2)
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$3.92
(3)
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$646,800.00
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$
80.53
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(1)
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Pursuant
to Rule 416(a) under the Securities Act of 1933 (the
“Securities Act”), this registration statement also
covers an indeterminate number of additional shares of common stock
to be offered or sold pursuant to the above-named plan that may be
issued as a result of the anti-dilution and other adjustment
provisions therein by reason of certain corporate transactions or
events, including any stock dividend, stock split, recapitalization
or other similar transaction effected without the receipt of
consideration which results in an increase in the number of the
registrant’s outstanding shares of common stock.
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(2)
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Represents
shares of common stock subject to stock options that are
outstanding as of the date this Registration Statement is being
filed.
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(3)
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Estimated
in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of the weighted
average exercise price of outstanding stock awards.
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(4)
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Represents
shares of common stock available for grant as of the date this
Registration Statement is being filed.
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(5)
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Computed
in accordance with Rules 457(c) and (h) under the Securities
Act, solely for the purpose of calculating the registration fee,
based on the average of the high and low prices of the common stock
as reported on the Nasdaq Capital Market on November 10,
2017.
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____________________
The Registration Statement shall become effective upon filing in
accordance with Rule 462 under the Securities Act.
EXPLANATORY NOTE
On
September 19, 2017, Acer Therapeutics Inc., formerly known as Opexa
Therapeutics, Inc. (the “Registrant,” “we,”
“us” or “our”), completed its business
combination with what was then known as Acer Therapeutics Inc.
(“Private Acer”) in accordance with the terms of the
Agreement and Plan of Merger and Reorganization, dated as of June
30, 2017, by and among the Registrant, Opexa Merger Sub, Inc., a
wholly owned subsidiary of the Registrant (“Merger
Sub”), and Private Acer (the “Merger Agreement”),
pursuant to which Merger Sub merged with and into Private Acer,
with Private Acer surviving as a wholly owned subsidiary of the
Registrant (the “Merger”). Pursuant to the Merger
Agreement, each option to purchase shares of Private Acer common
stock that was outstanding and unexercised immediately prior to the
effective time of the Merger under the Acer Therapeutics Inc. 2013
Stock Incentive Plan (the “2013 Plan”), whether or not
vested, was converted into and became an option to purchase shares
of the Registrant’s common stock and the Registrant assumed
the 2013 Plan.
The
Registrant is also filing this Registration Statement on Form S-8
for the purpose of registering an additional 470,000 shares of
common stock issuable to eligible persons under the Acer
Therapeutics Inc. 2010 Amended and Restated Stock Incentive
Plan, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3: Incorporation of Documents by Reference
The
following documents filed by the Registrant with the Securities and
Exchange Commission (the “Commission”) are hereby
incorporated by reference in this Registration
Statement:
(a)
Annual
Report on Form 10-K for thefiscal year ended December 31,
2016.
(b)
Quarterly Reports
on Form 10-Q for the quarterly periods ended March 31, 2017, June
30, 2017 and September 30, 2017.
(c)
Current Reports on
Form 8-K filed on February 1, 2017, April 14, 2017, May 22, 2017,
July 3, 2017, July 19, 2017, August 9, 2017, September 11, 2017,
September 20, 2017, October 5, 2017 (except Item 7.01) and
November 14, 2017.
(d)
Prospectus filed
on August 11, 2017 pursuant to Rule 424(b) under the Securities
Act, relating to the Registration Statement on Form S-4, as
amended, declared effective August 10, 2017 (File No. 333-219358),
which contains audited financial statements of Private Acer as of
December 31, 2016 and 2015, the two latest fiscal years for which
such statements have been filed, and pro forma financial
information for the three months ended March 31, 2017, including
all material incorporated by reference therein.
(e)
The
description of the Registrant’s Common Stock contained in the
Registration Statement on Form 8-A (File No. 001-33004) filed on
August 30, 2006, including any amendment or report filed for the
purpose of updating such description.
In
addition, all documents filed by Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, as amended, or the Exchange Act, (excluding any
portions thereof furnished by the Registrant, including but not
limited to information furnished under Item 2.02 and Item 7.01 and
any exhibits relating to Item 2.02 or Item 7.01 furnished under
Item 9.01 of Form 8-K and any certification required by 18 U.S.C.
§ 1350), on or after the date of this Registration Statement,
prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be
a part hereof from the date of filing of such
documents.
Any
statement contained in this Registration Statement or in a document
incorporated by reference in this Registration Statement shall be
deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained in
this Registration Statement or in any subsequently filed document
that is deemed to be incorporated by reference in this Registration
Statement modifies or supersedes such statements.
Item 4: Description of Securities.
None
Item 5: Interests of Named Experts and Counsel.
Not
applicable
Item 6: Indemnification of Directors and Officers.
Section 8.101
of the Texas Business Organizations Code, or the TBOC, authorizes
Acer to indemnify certain persons, including any person who was, is
or is threatened to be made a named defendant or respondent in a
threatened, pending or completed action or other proceeding,
because the person is or was a director or officer, against
judgments and reasonable expenses actually incurred by the person
in connection with the threatened, pending or completed action or
other proceeding. Acer is required by Section 8.051 of the
TBOC to indemnify a director or officer against reasonable expenses
actually incurred by him or her in connection with a threatened,
pending, or completed action or other proceeding in which he or she
is a named defendant or respondent because he or she is or was a
director or officer if he or she has been wholly successful, on the
merits or otherwise, in the defense of the action or
proceeding.
Acer’s
restated certificate of formation, as amended, provides that none
of its directors shall be personally liable to Acer or its
shareholders for monetary damages for an act or omission in such
director’s capacity as a director; provided, however, that
the liability of such director is not limited to the extent that
such director is found liable for (i) a breach of the
director’s duty of loyalty to Acer or its shareholders,
(ii) an act or omission not in good faith that constitutes a
breach of duty of the director to Acer or an act or omission that
involves intentional misconduct or a knowing violation of the law,
(iii) a transaction from which the director received an
improper benefit, whether or not the benefit resulted from an
action taken within the scope of the director’s office, or
(iv) an act or omission for which the liability of the
director is expressly provided by an applicable
statute.
Acer’s
restated certificate of formation, as amended, and amended and
restated bylaws, as amended, provide that Acer shall indemnify its
officers, directors, agents and any other persons to the fullest
extent permitted by applicable law. Acer’s directors and
officers are covered by insurance indemnifying them against certain
liabilities which might be incurred by them in their capacities as
such.
At the
present time, there is no pending litigation or proceeding
involving a director, officer, employee or other agent of Acer in
which indemnification would be required or permitted. Acer is not
aware of any threatened litigation or proceeding which may result
in a claim for such indemnification.
Item 7: Exemption From Registration Claimed.
Not
applicable
Item 8: Exhibits.
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Exhibit
No.
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Description
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Specimen Common
Stock Certificate of Acer Therapeutics Inc. (incorporated by
reference to Exhibit 4.1 to Acer’s Quarterly Report on Form
10-Q filed on November 13, 2017).
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Opinion
of Pillsbury Winthrop Shaw Pittman LLP.
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Consent
of Wolf & Company, P.C., independent registered public
accounting firm.
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Consent
of MaloneBailey, LLP, independent registered public accounting
firm.
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Consent
of Pillsbury Winthrop Shaw Pittman LLP (included in
Exhibit 5.1).
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24.1
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Power
of Attorney (contained on signature page hereto).
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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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Amendment No. 1 to
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, as amended, (File No.
333-219358) filed on July 19, 2017).*
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Form of
restricted stock agreement for awards to be made under the Acer
Therapeutics Inc. Amended and Restated 2010 Stock Incentive Plan
(incorporated by reference to Exhibit 10.3 to Acer’s
Quarterly Report on Form 10-Q filed on May 12, 2015).*
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Form of
award agreement for awards to be made under the Acer Therapeutics
Inc. Amended and Restated 2010 Stock Incentive Plan (incorporated
by reference to Exhibit 10.1 of Acer’s Quarterly Report on
Form 10-Q filed August 14, 2014).*
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Acer
Therapeutics Inc. 2013 Stock Incentive Plan, as amended
(incorporated by reference to Exhibit 10.3 of Acer’s Current
Report on Form 8-K filed on September 20, 2017).
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*Note
that the name of this plan has been amended to reflect the current
name of the Registrant.
Item
9: Undertakings.
(a)
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:
(i)
To
include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii)
To
reflect in the prospectus any facts or events arising after the
effective date of this 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
(iii)
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;
provided, however
, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in the registration
statement.
(2)
That, for the purpose of determining any liability under the
Securities Act, 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 hereby which remain unsold at
the termination of the offering.
(b)
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the Registrant’s annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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.
(c)
Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission such indemnification is against
public policy as expressed in the Securities Act, 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 and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the
requirements of the Securities Act, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the city of Cambridge,
state of Massachusetts, on November 14, 2017.
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ACER THERAPEUTICS
INC.
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By:
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/s/
Chris
Schelling
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Chris
Schelling
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President and Chief
Executive Officer
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POWER OF
ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Chris Schelling and Harry Palmin,
and/or either of them, his or her true and lawful attorney-in-fact
and agent, 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 sign any and all amendments to this Registration
Statement on Form S-8, and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission granting unto said
attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be
done, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute may lawfully do or
cause to be done by virtue hereof.
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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Name
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Title
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Date
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/s/
Chris
Schelling
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President, Chief
Executive Officer and
Director
(Principal Executive
Officer)
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November
14, 2017
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Chris
Schelling
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/s/
Harry
Palmin
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Chief
Financial Officer
(Principal Financial and Accounting
Officer)
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November
14, 2017
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Harry
Palmin
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/s/
Steve
Aselage
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Director
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November
14, 2017
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Steve
Aselage
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/s/
Jason
Amello
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Director
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November
14, 2017
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Jason
Amello
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/s/
Hubert
Birner
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Director
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November
14, 2017
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Hubert Birner,
Ph.D.
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/s/
John
Dunn
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Director
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November
14, 2017
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John
Dunn
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/s/
Michelle
Griffin
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Director
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November
14, 2017
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Michelle
Griffin
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/s/
Luc
Marengere
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Director
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November
14, 2017
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Luc Marengere,
Ph.D.
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