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): May 17, 2022
ACER THERAPEUTICS INC.
(Exact name of registrant as specified in its charter)
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Delaware |
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001-33004 |
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32-0426967 |
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(State or other jurisdiction of |
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(Commission File Number) |
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(IRS Employer Identification No.) |
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One Gateway Center, Suite 356 Newton, Massachusetts |
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02458 |
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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 |
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N/A |
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(Former name or former address, if changed since last report) |
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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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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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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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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Securities registered pursuant to Section 12(b) of the Act: |
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Title of Each Class |
Trading Symbol |
Name of Each Exchange on Which Registered |
Common Stock, $0.0001 par value per share |
ACER |
The Nasdaq Stock Market LLC |
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 8.01.Other Events
On May 17, 2022, Acer Therapeutics Inc. (the “Company”) filed a prospectus supplement relating to the offer and sale from time to time of shares of its common stock, $0.0001 par value per share, with an aggregate offering price of up to $6,400,000 (the “Shares”) pursuant to the Company’s existing at-the-market (ATM) facility and Amended and Restated Sales Agreement, dated March 18, 2020, among the Company, JonesTrading Institutional Services LLC and Roth Capital Partners, LLC. A copy of the opinion of Pillsbury Winthrop Shaw Pittman LLP relating to the legality of the issuance and sale of the Shares is attached as Exhibit 5.1 hereto.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any Shares, nor shall there be any sale of Shares in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.
Item 9.01.Financial Statements and Exhibits.
(d) Exhibits
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Exhibit No. |
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Description |
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5.1 |
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23.1 |
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Consent of Pillsbury Winthrop Shaw Pittman LLP (included in Exhibit 5.1). |
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104 |
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Cover page interactive data file (embedded within the inline XBRL document). |
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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.
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Dated: May 17, 2022 |
ACER THERAPEUTICS INC. |
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By: |
/s/ Harry S. Palmin |
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Harry S. Palmin |
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Chief Operating Officer and Chief Financial Officer |
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Exhibit 5.1
PILLSBURY WINTHROP SHAW PITTMAN LLP
12255 El Camino Real, Suite 300
San Diego, CA 92130-4088
May 17, 2022
Acer Therapeutics Inc.
One Gateway Center, Suite 356
300 Washington Street
Newton, MA 02458
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We are acting as counsel for Acer Therapeutics Inc., a Delaware corporation (the “Company”), in connection with the issuance and sale of shares of common stock, $0.0001 par value per share, of the Company having an aggregate offering price of up to $6,400,000 (the “Shares”), all of which are authorized but heretofore unissued shares to be offered and sold by the Company, pursuant to (i) the Registration Statement on Form S-3 (File No. 333-261342) (the “Registration Statement”), originally filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933 (the “Act”) on November 24, 2021, (ii) the related prospectus, as supplemented by the prospectus supplement relating to the offer and sale of the Shares (as so supplemented, the “Prospectus”), and (iii) the Amended and Restated Sales Agreement, dated as of March 18, 2020, by and among the Company, Roth Capital Partners, LLC and JonesTrading Institutional Services LLC (the “Agreement”).
We have reviewed and are familiar with such documents, corporate proceedings and other matters as we have considered relevant or necessary as a basis for the opinions in this letter. Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, when issued and sold by the Company in the manner described in the Registration Statement and the Prospectus and in accordance with terms of the Agreement, will be validly issued, fully paid and nonassessable.
The opinions set forth in this letter are limited to the General Corporation Law of the State of Delaware, as in effect on the date hereof.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Company’s Current Report on Form 8-K filed on May 17, 2022 and to the use of our name under the caption “Legal Matters” in the Prospectus. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Pillsbury Winthrop Shaw Pittman LLP