Attached files
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): September 19,
2017
Acer Therapeutics Inc.
(Exact name of registrant as specified in its charter)
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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
Opexa Therapeutics, Inc.
2635 Technology Forest Blvd.
The Woodlands, Texas 77381
(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:
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☐
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Written
communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
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☐
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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☐
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
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☐
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
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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 2.01 Completion of Acquisition or Disposition of
Assets.
Acquisition of Acer Therapeutics Inc.
On
September 19, 2017, Acer Therapeutics Inc., formerly known as Opexa
Therapeutics, Inc. (the “Registrant”), 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.
(“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”). This transaction was approved by
the Registrant’s
shareholders at a special meeting of its shareholders on September
19, 2017 (the “Special
Meeting”). Also on September 19, 2017, in connection
with, and prior to the completion of, the Merger, the Registrant
effected a 1-for-1:10.355527 reverse
stock split of its then outstanding common stock (the
“Reverse
Split”) and immediately
following the Merger, the Registrant changed its name to
“Acer Therapeutics
Inc.” (the
“Name
Change”), pursuant
to amendments to its certificate of formation filed with the Texas
Secretary of State on September 19, 2017.
Following
the completion of the Merger, the business conducted by the
Registrant became primarily the business conducted by Private Acer,
which is a pharmaceutical company that acquires, develops and
intends to commercialize therapies for patients with serious rare
diseases with critical unmet medical need.
Under
the terms of the Merger Agreement, the Registrant issued shares of
its common stock to Private Acer’s stockholders, at an
exchange rate of one share of common stock (after giving effect to
the Reverse Split and the conversion of Private Acer’s Series
A and Series B preferred stock and convertible debt), in exchange
for each share of Private Acer common stock outstanding immediately
prior to the Merger. The exchange rate was determined through
arm’s-length negotiations between the Registrant and Private
Acer. The Registrant also assumed all issued and outstanding stock
options under the Acer Therapeutics Inc. 2013 Stock Incentive Plan
(the “Private Acer
Plan”), with such stock options henceforth
representing the right to purchase a number of shares of the
Registrant’s common stock
equal to the number of shares of Private Acer’s common stock
previously represented by such stock options.
Immediately
after the Merger, there were approximately 6.6 million shares of
the Registrant’s common
stock outstanding. Immediately after the Merger, the former Private
Acer stockholders, including investors in the Concurrent Financing
(as defined below), owned approximately 89% of the outstanding
common stock of the Registrant, with the Registrant’s stockholders immediately prior to
the Merger, whose shares of the Registrant’s common stock remain outstanding
after the Merger, owning approximately 11% of the fully-diluted
common stock of the Registrant.
The
issuance of the shares of the Registrant’s common stock to the former
stockholders of Private Acer was registered with the U.S.
Securities and Exchange Commission (the “SEC”) on a Registration Statement on
Form S-4 (Reg. No. 333-219358) (the “Registration
Statement”).
Immediately prior to the Merger, Private Acer issued and sold an
aggregate of approximately $15.7 million (inclusive of the
conversion of approximately $5.7 million of principal and accrued
interest on outstanding convertible promissory notes issued by
Private Acer) of shares of Private Acer’s common stock (the
“Concurrent
Financing”) to
certain current stockholders of Private Acer and certain new
investors at a per share price of $9.47.
The
Registrant’s common stock
will continue to trade on a pre-split basis through the close of
business on Wednesday, September 20, 2017 on The NASDAQ Capital
Market under the ticker symbol “OPXA.” Commencing with the open of trading
on Thursday, September 21, 2017, the post-split shares will begin
trading on The NASDAQ Capital Market under the ticker symbol
“ACER.” On September 21, 2017, the
Registrant’s Series M Warrants, previously trading through
the close of business on Wednesday, September 20, 2017 under the
ticker symbol “OPXAW,” will commence trading on The NASDAQ
Capital Market, under the ticker symbol “ACERW.” The Registrant’s common stock and Series M Warrants
have new CUSIP numbers of 00444P 108 and 00444P 116,
respectively.
The
descriptions of the Merger and Merger Agreement included herein are
not complete and are subject to and qualified in their entirety by
reference to the Merger Agreement, a copy of which was filed as
Exhibit 2.1 to the Registrant’s Current Report on Form 8-K
filed with the SEC on July 3, 2017, and is incorporated herein by
reference.
Item 3.03 Material Modification to Rights of Security
Holders.
To the
extent required by Item 3.03 of Form 8-K, the information contained
in Item 2.01 of this Current Report on Form 8-K is incorporated by
reference herein.
On
September 19, 2017, the Registrant’s certificate of formation
was amended to effectuate the Reverse Split and the Name Change.
Each amendment to the Registrant’s certificate of formation was
approved by the Registrant’s shareholders at the Special
Meeting.
As a
result of the Reverse Split, the number of issued and outstanding
shares of the Registrant’s common stock immediately prior to
the Reverse Split was reduced into a smaller number of shares, such
that every 10.355527 shares of the
Registrant’s common stock held by a shareholder immediately
prior to the Reverse Split were combined and reclassified into one
share of the Registrant’s common stock.
No fractional shares were issued in connection with the Reverse
Split. In accordance with the amendment to the Registrant’s
certificate of formation to effect the Reverse Split, any
fractional shares resulting from the Reverse Split will be rounded
down to the nearest whole number and each shareholder who would
otherwise be entitled to a fraction of a share of common stock upon
the Reverse Split (after aggregating all fractions of a share to
which such shareholder would otherwise be entitled) shall, in lieu
thereof, be entitled to receive a cash payment in an amount equal
to the fraction to which the shareholder would otherwise be
entitled multiplied by the closing price of the Registrant’s
common stock (on a post-Reverse Split basis) on September
18, 2017 on The NASDAQ Capital Market.
The
foregoing descriptions of the amendments to the
Registrant’s certificate
of formation do not purport to be complete and are subject to and
qualified in their entirety by reference to the amendments to the
Registrant’s certificate
of formation, copies of which are attached hereto as Exhibit 3.1
and Exhibit 3.2, respectively, and incorporated herein by
reference.
Item 4.01 Changes in Registrant’s Certifying
Accountant.
(a) On
September 20, 2017, the Registrant engaged Wolf & Company,
P.C., as its principal accountants for the fiscal year ending
December 31, 2017, and dismissed MaloneBailey, LLP. The decision to
change accountants was approved by the audit committee of the
Registrant’s board of
directors.
The
report of MaloneBailey, LLP on the Registrant’s consolidated financial statements
for the years ended December 31, 2016 and 2015 did not contain an
adverse opinion or disclaimer of opinion, nor was it qualified or
modified as to uncertainty, audit scope, or accounting principles,
except that the financial statements of the Registrant for the
fiscal years ended December 31, 2016 and 2015 expressed, in an
explanatory paragraph, substantial doubt about the
Registrant’s ability to continue as a going concern due to
recurring losses, negative operating cash flows and an accumulated
deficit.
During
the years ended December 31, 2016 and 2015, and the subsequent
interim period through September 19, 2017, there were no: (1)
disagreements (as defined in Item 304(a)(1)(iv) of Regulation S-K
and the related instructions) with MaloneBailey, LLP on any matter
of accounting principles or practices, financial statement
disclosure, or auditing scope or procedures, which disagreement if
not resolved to the satisfaction of MaloneBailey, LLP would have
caused MaloneBailey, LLP to make reference thereto in its reports
on the consolidated financial statements for such years, or (2)
reportable events (as described in Item 304(a)(1)(v) of Regulation
S-K).
(b) On
September 20, 2017, the audit committee of the
Registrant’s board of
directors approved the engagement of Wolf & Company, P.C. as
the Registrant’s
independent registered public accounting firm for the fiscal year
ending December 31, 2017. Prior to the completion of the Merger,
Wolf & Company, P.C. served as the auditor of Private
Acer.
During
the years ended December 31, 2016 and 2015, and the subsequent
interim period through September 19, 2017, neither the Registrant
nor anyone on its behalf consulted with Wolf & Company, P.C.,
regarding either (i) the application of accounting principles to a
specific transaction, completed or proposed, or the type of audit
opinion that might be rendered on the Registrant’s financial statements, and neither
a written report nor oral advice was provided to the Registrant
that Wolf & Company, P.C. concluded was an important factor
considered by the Registrant in reaching a decision as to any
accounting, auditing or financial reporting issue or (ii) any
matter that was either the subject of a disagreement (as defined in
Item 304(a)(1)(iv) of Regulation S-K and the related instructions)
or a reportable event (as described in Item 304(a)(1)(v) of
Regulation S-K).
The
Registrant delivered a copy of this Current Report on Form 8-K to
MaloneBailey, LLP on September 19, 2017 and requested that a letter
addressed to the SEC stating whether or not it agrees with the
statements made in response to this Item 4.01 and, if not, stating
the respects in which it does not agree. MaloneBailey, LLP
responded with a letter dated September 20, 2017, a copy of which
is attached hereto as Exhibit 16.1 stating that MaloneBailey, LLP
agrees with the statements set forth above.
Item 5.01 Changes in Control of Registrant.
The
information set forth in Item 2.01 of this Current Report on Form
8-K is incorporated by reference into this Item 5.01.
In
accordance with the Merger Agreement, on September 19, 2017,
immediately prior to the effective time of the Merger, Timothy C.
Barabe, Hans-Peter Hartung, M.D., Gail J. Maderis, Michael S.
Richman and Neil K. Warma (together, the “Prior
Directors”)
resigned from the Registrant’s board of directors and any
respective committees of the board of directors to which they
belonged. Also on September 19, 2017, the Prior Directors approved
an increase to the number of directors comprising the board of
directors to seven and appointed, effective as of the effective
time of the Merger, Chris Schelling, Jason Amello, Stephen J.
Aselage, Hubert Birner, Michelle Griffin, John M. Dunn and Luc
Marengere as directors of the Registrant whose terms expire at the
Registrant’s next annual
meeting of shareholders.
Item 5.02 Departure of Directors or Certain Officers; Election of
Directors; Appointment of Certain Officers; Compensatory
Arrangements of Certain Officers.
(b)
Pursuant to the Merger Agreement, on September 19, 2017,
immediately prior to the effective time of the Merger, the Prior
Directors resigned from the Registrant’s board of directors and any
respective committees of the board of directors on which they
served, which resignations were not the result of any disagreements
with the Registrant relating to the Registrant’s operations, policies or
practices.
Also,
pursuant to the Merger Agreement, on September 19, 2017,
immediately prior to the effective time of the Merger, Neil K.
Warma, the Registrant’s
president, chief executive officer, acting chief financial officer
and secretary, resigned as an officer of the
Registrant.
(c)
Effective as of the effective time of the Merger, the
Registrant’s board of
directors appointed Christopher Schelling as the
Registrant’s president
and chief executive officer, Harry Palmin as the
Registrant’s chief
financial officer and Robert D. Steiner, M.D. as the
Registrant’s chief
medical officer. There are no family relationships among any of the
Registrant’s directors
and executive officers.
Chris Schelling. Mr. Schelling, 41, founded Private Acer
in December 2013 and has served as a director of Private Acer since
that time. From December 2013 to February 2016, Mr. Schelling
served as Private Acer’s chief operating officer, and since
February 2016 has served as Private Acer’s president and
chief executive officer. Mr. Schelling also founded Apanii
Consulting, LLC, a pharmaceutical and biotechnology consulting, in
December 2012 and serves as the chief executive officer of that
company. Prior to founding Apanii Consulting, Mr. Schelling
served as executive director of BioMarin Pharmaceutical Inc., a
biotechnology company, or BioMarin, where he worked on strategic
marketing. Mr. Schelling earned a B.A. in biology from Carroll
College.
Harry S. Palmin. Mr. Palmin, 47, has served as Private
Acer’s acting chief financial officer since February 2016.
Prior to that, Mr. Palmin served as the president, chief
executive officer and a director of Private Acer from its founding
in December 2013 until February 2016. Prior to joining Private
Acer, Mr. Palmin served in a variety of roles at Novelos
Therapeutics, Inc., a pharmaceutical company, including president
and director from 1998 to October 2013, chief executive officer
from January 2005 to October 2013 and acting chief financial
officer from 1998 to September 2005. Mr. Palmin earned a B.A.
in economics from Brandeis University and a M.A. in international
economics and finance from the Brandeis University International
Business School.
Robert D. Steiner, M.D. Dr. Steiner, 57, joined Private Acer as
its chief medical officer in March 2016. Since 2013,
Dr. Steiner has also served as a professor at the University
of Wisconsin School of Medicine and Public Health. From 2013 to
January 2016, Dr. Steiner was the executive director of the
Marshfield Clinic Research Foundation. Dr. Steiner held a
variety of roles at Oregon Health & Science University
from 1995 to 2013, culminating with his tenure as a professor of
pediatrics and molecular and medical genetics and vice chair for
research of the pediatrics department from 2006 to 2013.
Dr. Steiner earned his B.S. in molecular biology and his M.D.
from the University of Wisconsin-Madison.
(d) The
information set forth in Item 5.01 of this Current Report on Form
8-K with respect to the appointment of directors to the
Registrant’s board of
directors pursuant to and in accordance with the Merger Agreement
is incorporated by reference into this Item 5.02(d).
Audit Committee
On
September 19, 2017, Michelle Griffin, Jason Amello and John Dunn
were appointed to the audit committee of the Registrant’s board of directors, and Ms.
Griffin was appointed as the chair of the audit
committee.
Compensation Committee
On
September 19, 2017, Stephen Aselage, Michelle Griffin and Luc
Marengere were appointed to the compensation committee of the
Registrant’s board of
directors, and Mr. Aselage was appointed as the chair of the
compensation committee.
Nominating and Corporate Governance Committee
On
September 19, 2017, Stephen Aselage, John Dunn and Luc Marengere
were appointed to the nominating and corporate governance committee
of the Registrant’s board
of directors, and Mr. Dunn was appointed as the chair of the
nominating and corporate governance committee.
Affiliations with 5% Shareholders
Dr. Marengere is a member of the Registrant’s board of
directors and managing partner of TVM Life Science Ventures VII
Limited Partnership, which holds more than 5% of the
Registrant’s outstanding common stock. Dr. Birner is a
member of the Registrant’s board of directors and a managing
partner of TVM Capital Life Science and serves on the investment
committee for each of TVM Life Science Ventures VII Limited
Partnership, TVM Life Science Ventures VI GmbH & Co. KG
and TVM Life Science Ventures VI Limited Partnership. Mr. Dunn
is a member of the Registrant’s board of directors and has
served as a consultant to TVM Capital. TVM Capital and TVM Capital
Life Science are affiliated with TVM Life Science Ventures VII
Limited Partnership, TVM Life Science Ventures VI GmbH &
Co. KG and TVM Life Science Ventures VI Limited Partnership, which
together hold more than 5% of the Registrant’s outstanding
capital stock.
Private Placement of Common Stock
On June 30, 2017, Private Acer entered into the Subscription
Agreement with certain stockholders of Private Acer and certain new
investors pursuant to which the purchasers agreed to purchase an
aggregate of 1,655,162 shares of Private Acer common stock at a
price per share of $9.47 for an aggregate consideration of
approximately $15.7 million, inclusive of the conversion of
approximately $5.7 million of principal and accrued interest
on then outstanding convertible promissory notes previously issued
by Private Acer. The closing of the purchase and sale of shares of
Private Acer common stock under the Subscription Agreement took
take place immediately prior to the consummation of the Merger,
pursuant to which each share of Private Acer common stock was
converted into the right to receive one share of the
Registrant’s common stock. The table below sets forth the
number of shares of Private Acer common stock purchased and the
purchase price for the shares of common stock for each purchaser
that is an executive officer or director of the Registrant or
affiliated with an executive officer or director of the
Registrant.
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Name of
Purchaser
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Shares of Common
Stock (#)
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Purchase Price
($)
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TVM Life Science
Ventures VII Limited Partnership (1)
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696,518
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6,596,027.40
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TVM Life Science
Ventures VI GmbH & Co. KG (2)
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200,382
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1,897,625.56
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TVM Life Science
Ventures VI Limited Partnership (3)
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68,677
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650,388.14
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(1)
Includes 326,930
shares of common stock issued upon conversion of $3,096,027.40 of
principal and accrued interest on outstanding convertible
promissory notes.
(2)
Includes 121,740
shares of common stock issued upon conversion of $1,152,878.56 of
principal and accrued interest on outstanding convertible
promissory notes.
(3)
Includes 41,724
shares of common stock issued upon conversion of $395,135.14 of
principal and accrued interest on outstanding convertible
promissory notes.
Issuance of Series B Preferred Stock
In April 2016, Private Acer issued and sold an aggregate of 970,238
shares of Private Acer Series B preferred stock at a price per
share of $8.40 for an aggregate consideration of approximately
$8.1 million. The table below sets forth
the number
of shares of Private Acer Series B preferred stock purchased and
the purchase price for the shares of Private Acer Series B
preferred stock for each purchaser that is a an executive officer
or director of the Registrant or affiliated with an executive
officer or director of the Registrant. In connection with the
Merger, each share of Private Acer Series B preferred stock was
converted into Private Acer common stock, which entitled the holder
to exchange such share for one share of the Registrant’s
common stock.
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Name of
Purchaser
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Shares ofSeries
B Preferred Stock (#)
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Purchase Price
($)
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TVM Life Science
Ventures VII Limited Partnership (1)
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476,191
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4,000,004.40
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TVM Life Science
Ventures VI GmbH & Co. KG (1)
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177,322
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1,489,501.10
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TVM Life Science
Ventures VI Limited Partnership (1)
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60,773
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510,496.90
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Stephen
Aselage
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11,905
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100,002.00
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John
Dunn
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5,952
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49,996.80
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(1)
Each
of TVM Life Science Ventures VII Limited Partnership and TVM Life
Science Ventures VI GmbH & Co. KG holds more than 5% of the
Registrant’s outstanding capital stock. TVM Life Science
Ventures VI Limited Partnership is affiliated with TVM Life Science
Ventures VII Limited Partnership and TVM Life Science Ventures VI
GmbH & Co. KG.
Convertible Promissory Notes
In March 2017 and May 2017, Private Acer issued and sold at two
closings senior secured convertible promissory notes (the
“Private Acer Convertible
Notes”) in the aggregate
principal amount of $5.5 million. The Private Acer Convertible
Notes accrued interest at a rate of 10% per annum and had a
maturity date of March 22, 2018, which was subject to
extension by the investors. The aggregate amount of principal of
the Private Acer Convertible Notes and all accrued and unpaid
interest thereon was converted into shares of Private Acer common
stock at the closing of the Concurrent Financing at a conversion
price equal to $9.47 per share. Private Acer granted a security
interest to the purchasers of the Private Acer Convertible Notes in
substantially of its assets, which was extinguished in connection
with the conversion of the notes in the Concurrent
Financing.
The table below sets forth the principal amount of each convertible
note issued to a purchaser that is an executive officer or director
of the Registrant or affiliated with an executive officer or
director of the Registrant.
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Name of
Purchaser
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PrincipalAmount
($)
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TVM Life Science
Ventures VII Limited Partnership (1)
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3,000,000.00
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TVM Life Science
Ventures VI GmbH & Co. KG (1)
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1,117,120.50
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TVM Life Science
Ventures VI Limited Partnership (1)
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382,879.50
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(1)
Each
of TVM Life Science Ventures VII Limited Partnership and TVM Life
Science Ventures VI GmbH & Co. KG holds more than 5% of the
Registrant’s outstanding capital stock. TVM Life Science
Ventures VI Limited Partnership is affiliated with TVM Life Science
Ventures VII Limited Partnership and TVM Life Science Ventures VI
GmbH & Co. KG.
Voting Agreements
In connection with the issuance of the Private Acer Series B
preferred stock in April 2016, Private Acer entered into an amended
and restated voting agreement with investors including certain
directors, executive officers and 5% shareholders of the
Registrant. The amended and restated voting agreement was
terminated in connection with the Merger.
Investors’ Rights Agreement
In connection with the issuance of Private Acer Series B preferred
stock in April 2016, Private Acer entered into an amended and
restated investors’ rights agreement with investors including
certain directors, executive officers and 5% shareholders of the
Registrant, which provided certain holders of Private Acer common
stock (including Private Acer common stock issuable upon conversion
of Private Acer preferred stock) registration rights with respect
to such common stock. In addition to such registration rights, the
amended and restated investors’ rights agreement provided for
specified information rights and preemptive rights. The amended and
restated investors’ rights agreement was terminated in
connection with the Merger.
Right of First Refusal and Co-Sale Agreement
In connection with the issuance of the Private Acer Series B
preferred stock in April 2016, Private Acer entered into an amended
and restated right of first refusal and co-sale agreement
with investors including certain directors, executive officers and
5% shareholders of the Registrant. The amended and restated right
of first refusal and co-sale agreement was terminated in
connection with the Merger.
(e) On
September 19, 2017, the Registrant’s shareholders approved an
amendment (the “Plan
Amendment”) to the
Registrant’s Amended and Restated
2010 Stock Incentive (the “2010 Plan”) to
increase the number of shares of the Registrant’s common
stock available for issuance under the 2010 Plan to
4,868,862
shares (prior to giving effect to the
Reverse Split). The Plan Amendment had previously been approved by
the Registrant’s board of directors, subject to the approval
of the Registrant’s shareholders. Additionally, on September
19, 2017, pursuant to the Merger Agreement, the Registrant assumed
the Private Acer Plan. Please see the section
of the Registration Statement entitled “Management Following
the Merger – Employment Benefits Plans” for information
regarding the 2010 Plan and the Private Acer Plan, which
information is incorporated herein by
reference.
The foregoing descriptions of the 2010 Plan, as amended by the Plan
Amendment, and the Private Acer Plan do not purport to be complete
and are qualified in their entirety by reference to the full text
of the 2010 Plan, as amended by the Plan Amendment, and the Private
Acer Plan, copies of which are attached hereto as Exhibit 10.1,
Exhibit 10.2 and Exhibit 10.3, respectively, and incorporated
herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change
in Fiscal Year.
(a) To
the extent required by Item 5.03 of Form 8-K, the information
contained in Item 2.01 and Item 3.03 of this Current Report on Form
8-K is incorporated by reference herein.
Item 5.07 Submission of Matters to a Vote of Security
Holders.
At the
Special Meeting, the shareholders of the Registrant voted as set
forth below on the following proposals, each of which is described
in detail in the Registrant’s proxy
statement/prospectus/information statement included in the
Registration Statement. The shareholders of the Registrant had also
been solicited to vote to approve an adjournment of the Special
Meeting, if necessary, to solicit additional proxies if there were
insufficient votes at the time of the Special Meeting to approve
the Merger Agreement, but such adjournment was deemed
unnecessary.
At the
Special Meeting, 5,167,416 shares of common stock, or approximately
67.48% of the outstanding common stock entitled to vote, were
represented by proxy or in person.
The
final voting results for each matter submitted to a vote of the
Registrant’s shareholders are as follows:
Proposal 1. Approval of the Issuance of Common Stock
The
approval of the issuance of the Registrant’s common stock
pursuant to the Merger Agreement.
|
For
|
Against
|
Abstain
|
Broker
Non-Votes
|
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2,436,604
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60,040
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7,912
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2,662,860
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Proposal 2. Approval of Change in Control
The
approval of the change in control of the Registrant resulting from
the Merger pursuant to the Merger Agreement.
|
For
|
Against
|
Abstain
|
Broker
Non-Votes
|
|
2,450,060
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40,654
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13,842
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2,662,860
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Proposal 3. Approval of Amendment to 2010 Stock Incentive
Plan
The
approval of the Plan Amendment.
|
For
|
Against
|
Abstain
|
Broker
Non-Votes
|
|
2,339,379
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141,560
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23,617
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2,662,860
|
Proposal 4. Approval of the name change to Acer Therapeutics
Inc.
The
approval of an amendment to the certificate of formation of the
Registrant to effect the Name Change.
|
For
|
Against
|
Abstain
|
Broker
Non-Votes
|
|
5,012,468
|
83,830
|
19,498
|
0
|
Proposal 5. Approval of Reverse Stock Split
The
approval of an amendment to the certificate of formation of the
Registrant effecting a reverse stock split of the
Registrant’s issued and outstanding common stock within a
range of every one-to-15 shares (or any number in between) of
outstanding Registrant common stock to be combined and reclassified
into one share of Registrant common stock.
|
For
|
Against
|
Abstain
|
Broker
Non-Votes
|
|
4,575,509
|
412,976
|
127,309
|
0
|
Item 8.01 Other Events.
On
September 19, 2017, the Registrant issued a press release
announcing the implementation of the Reverse Split, completion of
the Merger, and effectiveness of the Name Change. A copy of such
press release is attached hereto as Exhibit 99.1 and incorporated
herein by reference.
Item 9.01 Financial Statements and Exhibits.
(a)
Financial Statements of Businesses Acquired.
The
financial statements of Private Acer required by Item 9.01(a) were
previously filed with the SEC as part of the Registration Statement
on July 19, 2017 and, pursuant to General Instruction B.3 of Form
8-K, are not required to be filed herewith.
(b) Pro
Forma Financial Information.
If
materially different than the pro forma combined condensed
financial information of the Registrant and Private Acer previously
filed with the SEC as part of the Registration Statement on July
19, 2017, the Registrant intends to file the pro forma combined
condensed financial information of the Registrant and Private Acer
required by Item 9.01(b) as part of an amendment to this Current
Report on Form 8-K not later than 71 calendar days after the date
this Current Report on Form 8-K is required to be
filed.
(d)
Exhibits
Below
is a list of exhibits included with this Current Report on
Form 8-K.
|
Exhibit
No.
|
|
Description
|
|
|
|
|
|
2.1^
|
|
Agreement
and Plan of Merger and Reorganization, dated as of June 30, 2017,
by and among Opexa Therapeutics, Inc., Opexa Merger Sub, Inc. and
Acer Therapeutics Inc. (incorporated by reference to Exhibit 2.1 to
the Registrant’s Current
Report on Form 8-K filed with the SEC on July 3,
2017).
|
|
|
|
|
|
|
Certificate
of Amendment of Certificate of Formation of the
Registrant.
|
|
|
|
|
|
|
|
Certificate
of Amendment of Certificate of Formation of the
Registrant.
|
|
|
|
|
|
|
10.1+
|
|
Opexa
Therapeutics, Inc. Amended and Restated 2010 Stock Incentive Plan
(incorporated by reference to Appendix A to the Registrant’s
Definitive Proxy Statement on Schedule 14A filed on April 11,
2016).
|
|
|
|
|
|
10.2+
|
|
Amendment
No. 1 to the Opexa Therapeutics, Inc. Amended and Restated 2010
Stock Incentive Plan (incorporated by reference to Exhibit 10.35 to
the Registrant’s Registration Statement on Form S-4 (File No.
333-219358) filed on July 19, 2017).
|
|
|
|
|
|
10.3+
|
|
Acer
Therapeutics Inc. 2013 Stock Incentive Plan.
|
|
|
|
|
|
|
Letter
dated September 20, 2017 from MaloneBailey, LLP to the
SEC.
|
|
|
|
|
|
|
|
Press
release issued by the Registrant on September 19, 2017 entitled
“Acer Therapeutics and
Opexa Therapeutics Close Merger and Financing.”
|
|
|
|
|
|
|
^
|
The
schedules and exhibits to this exhibit have been omitted pursuant
to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule
and/or exhibit will be furnished to the SEC upon
request.
|
|
+
|
Management
contract or compensatory plans or arrangements.
|
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.
|
|
Acer Therapeutics Inc.
|
|
|
|
|
|
|
|
|
Dated: September
20, 2017
|
By:
|
/s/
Harry
S. Palmin
|
|
|
|
|
Harry S.
Palmin
|
|
|
|
|
Chief Financial
Officer
|
|