Opexa Therapeutics, Inc. (Form: 8-K, Received: 09/20/2017 16:12:55)

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)

Texas		001-33004		76-0333165
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

222 Third Street, Suite #2240, Cambridge, Massachusetts		02142
(Address of principal executive offices)		(Zip Code)

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:

☐	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 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.

Name of Purchaser	Shares of Common Stock (#)	Purchase Price ($)
TVM Life Science Ventures VII Limited Partnership (1)	696,518	6,596,027.40
TVM Life Science Ventures VI GmbH & Co. KG (2)	200,382	1,897,625.56
TVM Life Science Ventures VI Limited Partnership (3)	68,677	650,388.14

(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.

Name of Purchaser	Shares ofSeries B Preferred Stock (#)	Purchase Price ($)
TVM Life Science Ventures VII Limited Partnership (1)	476,191	4,000,004.40
TVM Life Science Ventures VI GmbH & Co. KG (1)	177,322	1,489,501.10
TVM Life Science Ventures VI Limited Partnership (1)	60,773	510,496.90
Stephen Aselage	11,905	100,002.00
John Dunn	5,952	49,996.80

(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.

Name of Purchaser	PrincipalAmount ($)
TVM Life Science Ventures VII Limited Partnership (1)	3,000,000.00
TVM Life Science Ventures VI GmbH & Co. KG (1)	1,117,120.50
TVM Life Science Ventures VI Limited Partnership (1)	382,879.50

(1)

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
2,436,604	60,040	7,912	2,662,860

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	40,654	13,842	2,662,860

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	141,560	23,617	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).

3.1		Certificate of Amendment of Certificate of Formation of the Registrant.

3.2		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.

16.1		Letter dated September 20, 2017 from MaloneBailey, LLP to the SEC.

99.1		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

Exhibit 3.1

CERTIFICATE OF AMENDMENT

TO THE

RESTATED CERTIFICATE OF FORMATION

OPEXA THERAPEUTICS, INC.

Pursuant to the provisions of Section 3.053 of the Texas Business Organizations Code, Opexa Therapeutics, Inc., a Texas corporation (the “Corporation”), hereby adopts the following Certificate of Amendment to its Restated Certificate of Formation (the “Restated Certificate”).

ARTICLE I.

The name of the Corporation is Opexa Therapeutics, Inc . The file number issued to the Corporation by the Secretary of State of the State of Texas is 118585600 and the date of formation of the Corporation is March 15, 1991.

ARTICLE II.

The Restated Certificate is hereby amended by replacing the last paragraph at the end of Article IV in its entirety as follows:

“Upon this Certificate of Amendment to the Restated Certificate of Formation becoming effective pursuant to the Texas Business Organizations Code of the State of Texas (the “Effective Date”), each share of Common Stock, par value $0.01 per share (the “Old Common Stock”), issued and outstanding immediately prior to the Effective Date, shall be, and hereby is, reclassified as and changed into 0.096567 of a share of Common Stock, par value $0.01 per share (the “New Common Stock”). Each outstanding stock certificate which immediately prior to the Effective Date represented one or more shares of Old Common Stock shall thereafter, automatically and without the necessity of surrendering the same for exchange, represent the number of whole shares of New Common Stock determined by multiplying the number of shares of Old Common Stock represented by such certificate immediately prior to the Effective Date by 0.096567 and rounding such number down to the nearest whole integer, and shares of Old Common Stock held in uncertificated form shall be treated in the same manner. The Corporation shall not be required to issue or deliver any fractional shares of New Common Stock. Each holder of such New Common Stock shall be entitled to receive for such fractional interest, and at the Effective Date any such fractional interest in such shares of New Common Stock shall be converted into the right to receive, an amount in cash, without interest, determined by multiplying (i) such fractional share interest to which the holder would otherwise be entitled by (ii) the closing price of the Common Stock (on a post-reverse-split basis as adjusted for the amendment effected hereby) on the trading day immediately prior to the Effective Date on The NASDAQ Capital Market, or, if such price is not available, the average of the last bid and asked prices of the Common Stock on such day or other price determined by the Board of Directors. Shares of Common Stock that were outstanding prior to the Effective Date and that are not outstanding after the Effective Date shall resume the status of authorized but unissued shares of Common Stock.”

ARTICLE III.

This Certificate of Amendment to the Restated Certificate has been approved in the manner required by the Texas Business Organizations Code and by the governing documents of the Corporation.

ARTICLE IV.

This Certificate of Amendment shall become effective on September 19, 2017 at 3:01 p.m. Central Daylight Time.

The undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument and certifies under penalty of perjury that the undersigned is authorized under the provisions of law governing the entity to execute the filing instrument.


Dated: September 19, 2017		/s/ Neil K. Warma
		Neil K. Warma
		President and Chief Executive Officer

Exhibit 3.2

CERTIFICATE OF AMENDMENT

TO THE

RESTATED CERTIFICATE OF FORMATION

OPEXA THERAPEUTICS, INC.

ARTICLE I.

ARTICLE II.

The Restated Certificate is hereby amended by replacing Article I in its entirety as follows:

“The name of the Corporation is Acer Therapeutics Inc.”

ARTICLE III.

This Certificate of Amendment to the Restated Certificate has been approved in the manner required by the Texas Business Organizations Code and by the governing documents of the Corporation.

ARTICLE IV.

This Certificate of Amendment shall become effective on September 19, 2017 at 3:03 p.m. Central Daylight Time.


Dated: September 19, 2017	By:	/s/ Neil K. Warma
		Neil K. Warma

Exhibit 10.3

ACER THERAPEUTICS INC.

2013 Stock Incentive Plan

(Amended on April 20, 2016)

1. Purpose.

The purpose of this plan (the “Plan”) is to secure for Acer Therapeutics Inc., a Delaware corporation (the “Company”) and its shareholders the benefits arising from capital stock ownership by employees, officers and directors of, and consultants or advisors to, the Company and its parent and subsidiary corporations who are expected to contribute to the Company’s future growth and success. Under the Plan recipients may be awarded both (i) Options (as defined in Section 2.1) to purchase the Company’s common stock, par value $0.0001 (“Common Stock”) and (ii) shares of Common Stock (“Restricted Stock Awards”). Except where the context otherwise requires, the term “Company” shall include any parent and all present and future subsidiaries of the Company as defined in Sections 424(e) and 424(f) of the Internal Revenue Code of 1986, as amended or replaced from time to time (the “Code”). Those provisions of the Plan which make express reference to Section 422 of the Code shall apply only to Incentive Stock Options (as that term is defined below). Appendix Z to this Plan shall apply only to participants in the Plan who are residents of the State of California.

2. Types of Awards and Administration.

2.1 Options. Options granted pursuant to the Plan (“Options”) shall be authorized by action of the Board of Directors of Acer Therapeutics Inc. (the “Board” or “Board of Directors”) and may be either incentive stock options (“Incentive Stock Options”) meeting the requirements of Section 422 of the Code or non-statutory Options which are not intended to meet the requirements of Section 422. All Options when granted are intended to be non-statutory Options, unless the applicable Option Agreement (as defined in Section 5.1) explicitly states that the Option is intended to be an Incentive Stock Option. The vesting of Options may be conditioned upon the completion of a specified period of employment with the Company and/or such other conditions or events as the Board may determine. The Board may also provide that Options are immediately exercisable subject to certain repurchase rights in the Company dependent upon the continued employment of the optionee and/or such other conditions or events as the Board may determine.

2.1.1 Incentive Stock Options. Incentive Stock Options may only be granted to employees of the Company. For so long as the Code shall so provide, Options granted to any employee under the Plan (and any other incentive stock option plans of the Company) which are intended to constitute Incentive Stock Options shall not constitute Incentive Stock Options to the extent that such Options, in the aggregate, become exercisable for the first time in any one calendar year for shares of Common Stock with an aggregate fair market value (determined as of the respective date or dates of grant) of more than $100,000. If an Option is intended to be an Incentive Stock Option, and if for any reason such Option (or any portion thereof) shall not qualify as an Incentive Stock Option, then, to the extent of such nonqualification, such Option (or portion thereof) shall be regarded as a non-statutory Option appropriately granted under the Plan provided that such Option (or portion thereof) otherwise meets the Plan’s requirements relating to non-statutory Options.

2.2 Restricted Stock Awards. The Board in its discretion may grant Restricted Stock Awards, entitling the recipient to acquire, for a purchase price determined by the Board, shares of Common Stock subject to such restrictions and conditions as the Board may determine at the time of grant (“Restricted Stock”), including continued employment and/or achievement of pre-established performance goals and objectives.

2.3 Administration.

(a) The Plan shall be administered by the Board, whose construction and interpretation of the terms and provisions of the Plan shall be final and conclusive. The Board may in its sole discretion authorize issuance of Restricted Stock, the grant of Options and the issuance of shares upon exercise of such Options as provided in the Plan. The Board shall have authority, subject to the express provisions of the Plan, to construe Restricted Stock Agreements, Option Agreements and the Plan, to prescribe, amend and rescind rules and regulations relating to the Plan, to determine the terms and provisions of Restricted Stock Agreements and Option Agreements, and to make all other determinations in the judgment of the Board necessary or desirable for the administration of the Plan. The Board may correct any defect or supply any omission or reconcile any inconsistency in the Plan or in any Restricted Stock Agreement or Option Agreement in the manner and to the extent it shall deem expedient to carry the Plan into effect and it shall be the sole and final judge of such expediency. No director or person acting pursuant to authority delegated by the Board shall be liable for any action or determination under the Plan made in good faith.

(b) The Board may, to the full extent permitted by or consistent with applicable laws or regulations, delegate any or all of its powers under the Plan to a committee (the “Committee”) appointed by the Board, and if the Committee is so appointed, to the extent of such delegation, all references to the Board in the Plan shall mean and relate to such Committee, other than references to the Board in this sentence and in Section 18 (as to amendment or termination of the Plan) and Section 22.

3. Eligibility.

Options may be granted, and Restricted Stock may be issued, to persons who are, at the time of such grant or issuance, employees, officers or directors of, or consultants or advisors to, the Company; provided, that the class of persons to whom Incentive Stock Options may be granted shall be limited to employees of the Company.

3.1 10% Shareholder . If any employee to whom an Incentive Stock Option is to be granted is, at the time of the grant of such Option, the owner of stock possessing more than 10% of the total combined voting power of all classes of stock of the Company (after taking into account the attribution of stock ownership rules of Section 424(d) of the Code) (a “Greater Than 10% Shareholder”), any Incentive Stock Option granted to such individual must: (i) have an exercise price per share of not less than 110% of the fair market value of one share of Common Stock at the time of grant; and (ii) expire by its terms not more than five years from the date of grant.

4. Stock Subject to Plan.

Subject to adjustment as provided in Section 14.2 below, the maximum number of shares of Common Stock which may be issued under the Plan is 165,000 shares. If an Option shall expire or terminate for any reason without having been exercised in full, the unpurchased shares subject to such Option shall again be available for subsequent Option grants or Restricted Stock Awards under the Plan. If shares of Restricted Stock shall be forfeited to, or otherwise repurchased by, the Company pursuant to a Restricted Stock Agreement, such repurchased shares shall again be available for subsequent Option grants or Restricted Stock Awards under the Plan. If shares issued upon exercise of an Option are tendered to the Company in payment of the exercise price of an Option, such tendered shares shall again be available for subsequent Option grants or Restricted Stock Awards under the Plan.

5. Forms of Restricted Stock Agreements and Option Agreements.

5.1 Option Agreement. Each recipient of an Option shall execute an option agreement (“Option Agreement”) in substantially the form attached hereto as Exhibit A (ISO) or Exhibit B (NSO) or such other form not inconsistent with the Plan as may be approved by the Board of Directors. Such Option Agreements may differ among recipients.

5.2 Restricted Stock Agreement. Each recipient of a grant of Restricted Stock shall execute an agreement (“Restricted Stock Agreement”) in such form not inconsistent with the Plan as may be approved by the Board of Directors. Such Restricted Stock Agreements may differ among recipients.

5.3 “Lock-Up” Agreement. Unless the Board specifies otherwise, each Restricted Stock Agreement and Option Agreement shall provide that upon the request of the Company or the managing underwriter(s) of any offering of securities of the Company that is the subject of a registration statement filed under the United States Securities Act of 1933, as amended from time to time (the “Act”), the holder of any Option or the purchaser of any Restricted Stock shall, in connection therewith, agree in writing (in such form as the Company or such managing underwriter(s) shall request) to the general effect that for a period of time (not to exceed 180 days, plus such additional number of days (not to exceed 35) as may reasonably be requested to enable the underwriter(s) of such offering to comply with Rule 2711(f) of the Financial Industry Regulatory Authority or any amendment or successor thereto) from the effective date of the registration statement under the Act for such offering, the holder or purchaser will not sell, make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any shares of the common stock of the Company owned or controlled by him or her.

6. Purchase Price.

6.1 General. The purchase price per share of Restricted Stock and per share of stock deliverable upon the exercise of an Option shall be determined by the Board, provided, however, that in the case of any Option, the exercise price shall not be less than 100% of the fair market value of such stock, as determined by the Board, at the time of grant of such Option, or less than 110% of such fair market value in the case of any Incentive Stock Option granted to a Greater Than 10% Shareholder.

6.2 Payment of Purchase Price. Option Agreements may provide for the payment of the exercise price by delivery of cash or a check to the order of the Company in an amount equal to the exercise price of such Options, or, to the extent provided in the applicable Option Agreement, by one of the following methods:

(i) with the consent of the Board, by delivery to the Company of shares of Common Stock; such surrendered shares shall have a fair market value equal in amount to the exercise price of the Options being exercised,

(ii) with the consent of the Board, a personal recourse note issued by the optionee to the Company in a principal amount equal to such aggregate exercise price and with such other terms, including interest rate and maturity, as the Company may determine in its discretion; provided, however, that the interest rate borne by such note shall not be less than the lowest applicable federal rate, as defined in Section 1274(d) of the Code,

(iii) with the consent of the Board, if the class of Common Stock is registered under the Securities Exchange Act of 1934 at such time, subject to rules as may be established by the Board, by delivery to the Company of a properly executed exercise notice along with irrevocable instructions to a broker to promptly deliver to the Company cash or a check payable and acceptable to the Company for the purchase price,

(iv) with the consent of the Board, by reducing the number of Option shares otherwise issuable to the optionee upon exercise of the Option by a number of shares of Common Stock having a fair market value equal to such aggregate exercise price,

(v) with the consent of the Board, by any combination of such methods of payment.

The fair market value of any shares of Common Stock or other non-cash consideration which may be delivered upon exercise of an Option shall be determined by the Board of Directors. Restricted Stock Agreements may provide for the payment of any purchase price in any manner approved by the Board of Directors at the time of authorizing the issuance thereof.

7. Option Period.

Notwithstanding any other provision of the Plan or any Option Agreement, each Option and all rights thereunder shall expire on the date specified in the applicable Option Agreement, provided that such date shall not be later than ten years after the date on which the Option is granted (or five years in the case of an Incentive Stock Option granted to a Greater Than 10% Shareholder), and in either case, shall be subject to earlier termination as provided in the Plan or Option Agreement.

8. Exercise of Options.

8.1 General. Each Option shall be exercisable either in full or in installments at such time or times and during such period as shall be set forth in the Option Agreement evidencing such Option, subject to the provisions of the Plan. To the extent not exercised, installments shall accumulate and be exercisable, in whole or in part, at any time after becoming exercisable, but not later than the date the Option expires.

8.2 Notice of Exercise. An Option may be exercised by the optionee by delivering to the Company on any business day a written notice specifying the number of shares of Common Stock the optionee then desires to purchase and specifying the address to which the certificates for such shares are to be mailed (the “Notice”), accompanied by payment for such shares. In addition, the Company may require any individual to whom an Option is granted, as a condition of exercising such Option, to give written assurances (the “Investment Letter”) in a substance and form satisfactory to the Company to the effect that such individual is acquiring the Common Stock subject to the Option for his or her own account for investment and not with a view to the resale or distribution thereof, and to such other effects as the Company deems necessary or advisable in order to comply with any securities law(s).

8.3 Delivery. As promptly as practicable after receipt of the Notice, the Investment Letter (if required) and payment, the Company shall deliver or cause to be delivered to the optionee certificates for the number of shares with respect to which such Option has been so exercised, issued in the optionee’s name; provided, however, that such delivery shall be deemed effected for all purposes when the Company or a stock transfer agent shall have deposited such certificates in the United States mail, addressed to the optionee, at the address specified in the Notice.

9. Nontransferability of Options.

No Option shall be assignable or transferable by the person to whom it is granted, either voluntarily or by operation of law, except by will or the laws of descent and distribution. During the life of an optionee, an Option shall be exercisable only by the optionee.

10. Termination of Employment; Disability; Death. Except as may be otherwise expressly provided in the terms and conditions of the Option Agreement, Options shall terminate on the earliest to occur of:

(i) the date of expiration thereof;

(ii)

the date of termination of the optionee’s employment with, or provision of services to, the Company by the Company for Cause (as hereinafter defined);

(iii)

90 days after the date of voluntary termination of the optionee’s employment with, or provision of services to, the Company by the optionee (other than for death or permanent disability as defined below); or

(iv)

90 days after the date of termination of the optionee’s employment with, or provision of services to, the Company by the Company without Cause (other than for death or permanent disability as defined below).

Until the date on which the Option so expires, the optionee may exercise that portion of his or her Option which is exercisable at the time of termination of the employment or service relationship.

An employment or service relationship between the Company and the optionee shall be deemed to exist during any period during which the optionee is employed by or providing services to the Company. Whether an authorized leave of absence or an absence due to military or government service shall constitute termination of the employment relationship between the Company and the optionee shall be determined by the Board at the time thereof.

For purposes of this Section 10, the term “Cause” shall mean (a) any material breach by the optionee of any agreement to which the optionee and the Company are both parties, (b) any act (other than retirement) or omission to act by the optionee which may have a material and adverse effect on the Company’s business or on the optionee’s ability to perform services for the Company, including, without limitation, the commission of any crime (other than minor traffic violations), or (c) any material misconduct or material neglect of duties by the optionee in connection with the business or affairs of the Company. An optionee’s employment shall be deemed to have been terminated for Cause if the Company determines within thirty (30) days of the termination of employment (whether such termination was voluntary or involuntary) that termination for Cause was warranted.

In the event of the permanent and total disability or death of an optionee while in an employment or other relationship with the Company, any Option held by such optionee shall terminate on the earlier of the date of expiration of the Option or one year following the date of such disability or death. After disability or death, the optionee (or in the case of death, his or her executor, administrator or any person or persons to whom this option may be transferred by will or by laws of descent and distribution) shall have the right, at any time prior to such termination of an Option , to exercise the Option to the extent the optionee was entitled to exercise such Option as of the date of his or her disability or death. An optionee is permanently and totally disabled if he or she is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months; permanent and total disability shall be determined in accordance with Section 22(e)(3) of the Code and the regulations issued thereunder.

11. Rights as a Shareholder. The holder of an Option shall have no rights as a shareholder with respect to any shares covered by the Option (including, without limitation, any rights to receive dividends or non-cash distributions with respect to such shares) until the date of issue of a stock certificate to him or her for such shares. No adjustment shall be made for dividends or other rights for which the record date is prior to the date such stock certificate is issued.

12. Additional Provisions. The Board of Directors may, in its sole discretion, include additional provisions in Restricted Stock Agreements and Option Agreements, including, without limitation, restrictions on transfer, rights of the Company to repurchase shares of Restricted Stock or shares of Common Stock acquired upon exercise of Options, commitments to pay cash bonuses, to make, arrange for or guaranty loans or to transfer other property to optionees upon exercise of Options, or such other provisions as shall be determined by the Board of Directors; provided that such additional provisions shall not be inconsistent with any other term or condition of the Plan and such additional provisions shall not be such as to cause any Incentive Stock Option to fail to qualify as an Incentive Stock Option within the meaning of Section 422 of the Code.

13. Acceleration, Extension, Etc. The Board of Directors may, in its sole discretion, (i) accelerate the date or dates on which all or any particular Option or Options may be exercised or (ii) extend the period or periods of time during which all, or any particular, Option or Options may be exercised.

14. Adjustment Upon Changes in Capitalization

14.1 No Effect of Options upon Certain Corporate Transactions. The existence of outstanding Options shall not affect in any way the right or power of the Company to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company’s capital structure or its business, or any merger or consolidation, or any issue of Common Stock, or any issue of bonds, debentures, preferred or prior preference stock ahead of or affecting the Common Stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.

14.2 Adjustment Provisions. If, through or as a result of any merger, consolidation, sale of all or substantially all of the assets of the Company, reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar transaction, (i) the outstanding shares of Common Stock are increased, decreased or exchanged for a different number or kind of shares or other securities of the Company, or (ii) additional shares or new or different shares or other securities of the Company or other non-cash assets are distributed with respect to such shares of Common Stock or other securities, an appropriate and proportionate adjustment shall be made in (x) the maximum number and kind of shares reserved for issuance under the Plan, (y) the number and kind of shares or other securities subject to any then outstanding Options, and (z) the price for each share or other security subject to any then outstanding Options, so that upon exercise of such Options, in lieu of the shares of Common Stock for which such Options were then exercisable, the relevant optionee shall be entitled to receive, for the same aggregate consideration, the same total number and kind of shares or other securities, cash or property that the owner of an equal number of outstanding shares of Common Stock immediately prior to the event requiring adjustment would own as a result of the event. If any such event shall occur, appropriate adjustment shall also be made in the application of the provisions of this Section 14 and Section 15 with respect to Options and the rights of optionees after the event so that the provisions of such Sections shall be applicable after the event and be as nearly equivalent as practicable in operation after the event as they were before the event.

14.3 No Adjustment in Certain Cases. Except as hereinbefore expressly provided, the issue by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, for cash or property or for labor or services, either upon direct sale or upon the exercise of rights or warrants to subscribe therefor, or upon conversion of shares or obligations of the Company convertible into such shares or other securities, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares of Common Stock then subject to outstanding options.

14.4 Board Authority to Make Adjustments. Any adjustments under this Section 14 will be made by the Board of Directors, whose determination as to what adjustments, if any, will be made and the extent thereof will be final, binding and conclusive. No fractional shares will be issued under the Plan on account of any such adjustments.

15. Effect of Certain Transactions

15.1 General. Except as provided in any Option Agreement or Restricted Stock Agreement to the contrary, if the Company is merged with or into or consolidated with another corporation under circumstances where the stockholders of the Company immediately prior to such merger or consolidation do not own after such merger or consolidation shares representing at least fifty percent (50%) of the voting power of the Company or the surviving or resulting corporation, as the case may be, or if shares representing fifty percent (50%) or more of the voting power of the Company are transferred to an Unrelated Third Party, as hereinafter defined, or if the Company is liquidated, or sells or otherwise disposes of all or substantially all its assets (each such transaction is referred to herein as a “Change in Control Transaction”), the Board, or the board of directors of any corporation assuming the obligations of the Company, may, in its discretion, take any one or more of the following actions, as to some or all outstanding Options or Restricted Stock Awards (and need not take the same action as to each such Option or Restricted Stock Award): (i) provide that such Options shall be assumed, or equivalent Options shall be substituted, by the acquiring or succeeding corporation (or an affiliate thereof), provided that any such Options substituted for Incentive Stock Options shall meet the requirements of Section 424(a) of the Code, (ii) upon written notice to the optionees, provide that all unexercised Options will terminate immediately prior to the consummation of the Change in Control Transaction unless exercised by the optionee to the extent otherwise then exercisable within a specified period following the date of such notice, (iii) upon written notice to the grantees, provide that all unvested shares of Restricted Stock shall be repurchased at cost, (iv) make or provide for a cash payment to the optionees equal to the difference between (A) the fair market value of the per share consideration (whether cash, securities or other property or any combination of the above) the holder of a share of Common Stock will receive upon consummation of the Change in Control Transaction (the “Per Share Transaction Price”) times the number of shares of Common Stock subject to outstanding vested Options (to the extent then exercisable at prices not equal to or in excess of the Per Share Transaction Price) and (B) the aggregate exercise price of such outstanding vested Options, in exchange for the termination of such Options, or (v) provide that all or any outstanding Options shall become exercisable and all or any outstanding Restricted Stock Awards shall vest in part or in full immediately prior to such event. To the extent that any Options are exercisable at a price equal to or in excess of the Per Share Transaction Price, the Board may provide that such Options shall terminate immediately upon the consummation of the Change in Control Transaction without any payment being made to the holders of such Options. “ Unrelated Third Party ” shall mean any person who is not, on the date of adoption of this Plan by the Board, a holder of stock of any class or preference or any stock option of the Company .

15.2 Substitute Options. The Company may grant Options in substitution for options held by employees, officers or directors of, or consultants or advisors to, another corporation who become employees, officers or directors of, or consultants or advisors to, the Company, as the result of a merger or consolidation of the employing corporation with the Company or as a result of the acquisition by the Company of property or stock of the employing corporation. The Company may direct that substitute Options be granted on such terms and conditions as the Board considers appropriate in the circumstances.

15.3 Restricted Stock. In the event of a business combination or other transaction of the type detailed in Section 15.1, any securities, cash or other property received in exchange for shares of Restricted Stock shall continue to be governed by the provisions of any Restricted Stock Agreement pursuant to which they were issued, including any provision regarding vesting, and such securities, cash, or other property may be held in escrow on such terms as the Board of Directors may direct, to insure compliance with the terms of any such Restricted Stock Agreement.

16. No Special Employment Rights. Nothing contained in the Plan or in any Option Agreement or Restricted Stock Agreement shall confer upon any optionee or holder of Restricted Stock any right with respect to the continuation of his or her employment by the Company or interfere in any way with the right of the Company at any time to terminate such employment or to increase or decrease his or her compensation.

17. Other Employee Benefits. The amount of any compensation deemed to be received by an employee as a result of the issuance of shares of Restricted Stock or the grant or exercise of an Option or the sale of shares received upon issuance of a Restricted Stock Award or exercise of an Option will not constitute compensation with respect to which any other employee benefits of such employee are determined, including, without limitation, benefits under any bonus, pension, profit-sharing, life insurance or salary continuation plan, except as otherwise specifically determined by the Board of Directors.

18. Amendment of the Plan.

18.1 The Board may at any time, and from time to time, modify or amend in any respect or terminate the Plan. If shareholder approval is not obtained within twelve months after any amendment increasing the number of shares authorized under the Plan or changing the class of persons eligible to receive Options under the Plan, no Options granted pursuant to such amendments shall be deemed to be Incentive Stock Options and no Incentive Stock Options shall be issued pursuant to such amendments thereafter.

18.2 The termination or any modification or amendment of the Plan shall not, without the consent of an optionee or the holder of Restricted Stock, adversely affect his or her rights under an Option or Restricted Stock Award previously granted to him or her. With the consent of the recipient of Restricted Stock or optionee affected, the Board may amend outstanding Restricted Stock Agreements or Option Agreements in a manner not inconsistent with the Plan.

19. Withholding. The Company shall have the right to deduct from payments of any kind otherwise due to the optionee or recipient of Restricted Stock, any federal, state or local taxes of any kind required by law to be withheld with respect to issuance of any shares of Restricted Stock or shares issued upon exercise of Options. Prior to delivery of any Common Stock pursuant to the terms of this Plan, the Board has the right to require that the optionee or recipient of Restricted Stock remit to the Company an amount sufficient to satisfy any minimum tax withholding obligation. Subject to the prior approval of the Company, which may be withheld by the Company in its sole discretion, the obligor may elect to satisfy any minimum withholding obligations, in whole or in part, (i) by causing the Company to withhold shares of Common Stock otherwise issuable, or (ii) by delivering to the Company a sufficient number of shares of Common Stock. The shares so withheld shall have a fair market value equal to such minimum withholding obligation. The fair market value of the shares used to satisfy such minimum withholding obligation shall be determined by the Company as of the date that the amount of tax to be withheld is to be determined. A person who has made an election pursuant to this Section 19 may only satisfy his or her withholding obligation with shares of Common Stock which are not subject to any repurchase, forfeiture, unfulfilled vesting or other similar restrictions.

20. Effective Date and Duration of the Plan.

20.1 Effective Date. The Plan shall become effective when adopted by the Board of Directors. If shareholder approval is not obtained within twelve months after the date of the Board’s adoption of the Plan, no Options previously granted under the Plan shall be deemed to be Incentive Stock Options and no Incentive Stock Options shall be granted thereafter. Amendments to the Plan not requiring shareholder approval shall become effective when adopted by the Board. Amendments requiring shareholder approval shall become effective when adopted by the Board, but if shareholder approval is not obtained within twelve months of the Board’s adoption of such amendment, any Incentive Stock Options granted pursuant to such amendment shall be deemed to be non-statutory Options provided that such Options are authorized by the Plan. Subject to this limitation, Options may be granted under the Plan at any time after the effective date and before the date fixed for termination of the Plan.

20.2 Termination. Unless sooner terminated by action of the Board of Directors, the Plan shall terminate upon the close of business on the day next preceding the tenth anniversary of the date of its adoption by the Board of Directors.

21. Provision for Foreign Participants. The Board of Directors may, without amending the Plan, modify the terms of Option Agreements or Restricted Stock Agreements to differ from those specified in the Plan with respect to participants who are foreign nationals or employed outside the United States to recognize differences in laws, rules, regulations or customs of such foreign jurisdictions with respect to tax, securities, currency, employee benefit or other matters.

22. Requirements of Law. The Company shall not be required to sell or issue any shares under any Option or Restricted Stock Award if the issuance of such shares shall constitute a violation by the optionee, the Restricted Stock Award recipient, or by the Company of any provision of any law or regulation of any governmental authority. In addition, in connection with the Act, the Company shall not be required to issue any shares upon exercise of any Option unless the Company has received evidence satisfactory to it to the effect that the holder of such Option will not transfer such shares except pursuant to a registration statement in effect under the Act or unless an opinion of counsel satisfactory to the Company has been received by the Company to the effect that such registration is not required in connection with any such transfer. Any determination in this connection by the Board shall be final, binding and conclusive. In the event the shares issuable on exercise of an Option are not registered under the Act or under the securities laws of each relevant state or other jurisdiction, the Company may imprint on the certificate(s) appropriate legends that counsel for the Company considers necessary or advisable to comply with the Act or any such state or other securities law. The Company may register, but in no event shall be obligated to register, any securities covered by the Plan pursuant to the Act; and in the event any shares are so registered the Company may remove any legend on certificates representing such shares. The Company shall not be obligated to take any affirmative action in order to cause the exercise of an Option, the grant of any Restricted Stock Award or the issuance of shares pursuant thereto to comply with any law or regulation of any governmental authority.

23. Conversion of Incentive Stock Options into Non-Qualified Options; Termination. The Board of Directors, with the consent of any optionee, may in its discretion take such actions as may be necessary to convert such optionee’s Incentive Stock Options (or any installments or portions of installments thereof) that have not been exercised on the date of conversion into non-statutory Options at any time prior to the expiration of such Incentive Stock Options, regardless of whether the optionee is an employee of the Company or a parent or subsidiary of the Company at the time of such conversion. At the time of such conversion, the Board of Directors (with the consent of the optionee) may impose such conditions on the exercise of the resulting non-statutory Options as the Board of Directors in its discretion may determine, provided that such conditions shall not be inconsistent with this Plan. Nothing in this Plan shall be deemed to give any optionee the right to have such optionee’s Incentive Stock Options converted into non-statutory Options, and no such conversion shall occur until and unless the Board of Directors takes appropriate action. The Board of Directors, with the consent of the optionee, may also terminate any portion of any Incentive Stock Option that has not been exercised at the time of such termination.

24. Non-Exclusivity of this Plan; Non-Uniform Determinations. Neither the adoption of this Plan by the Board of Directors nor the approval of this Plan by the stockholders of the Company shall be construed as creating any limitations on the power of the Board of Directors to adopt such other incentive arrangements as it may deem desirable, including, without limitation, the granting of stock options otherwise than under this Plan, and such arrangements may be either applicable generally or only in specific cases.

The determinations of the Board of Directors under this Plan need not be uniform and may be made by it selectively among persons who receive or are eligible to receive Options or Restricted Stock Awards under this Plan (whether or not such persons are similarly situated). Without limiting the generality of the foregoing, the Board of Directors shall be entitled, among other things, to make non-uniform and selective determinations, and to enter into non-uniform and selective Option Agreements and Restricted Stock Agreements, as to (a) the persons to receive Options or Restricted Stock Awards under this Plan, (b) the terms and provisions of Options or Restricted Stock Awards, (c) the exercise by the Board of Directors of its discretion in respect of the exercise of Options pursuant to the terms of this Plan, and (d) the treatment of leaves of absence pursuant to Section 10 hereof.

25. Governing Law. This Plan and each Option or Restricted Stock Award shall be governed by the laws of the State of Delaware, without regard to its principles of conflicts of law.

APPENDIX Z

TO ACER THERAPEUTICS INC. 2013 STOCK INCENTIVE PLAN

FOR CALIFORNIA RESIDENTS ONLY

This Appendix to the Acer Therapeutics Inc. 2013 Stock Incentive Plan (the “Plan”) shall have application only to participants in the Plan who are residents of the State of California. Capitalized terms contained herein shall have the same meanings given to them in the Plan, unless otherwise provided in this Appendix. Notwithstanding any provision contained in the Plan to the contrary and to the extent required by applicable law, the following terms and conditions shall apply to all Options and Restricted Stock Awards (collectively “Awards”) granted to residents of the State of California, until such time as the Common Stock becomes subject to registration under the Securities Act of 1933:

1. Awards shall be nontransferable other than by will or the laws of descent and distribution. Notwithstanding the foregoing, and to the extent permitted by Section 422 of the Code, the Board, in its discretion, may permit distribution of an Award to an inter vivos or testamentary trust in which the Award is to be passed to beneficiaries upon the death of the trustor (settlor), or by gift to “immediate family” as that term is defined in Rule 16a-1(e) of the United States Exchange Act of 1934.

2. Unless employment is terminated for Cause, the right to exercise an Option in the event of termination of employment, to the extent that the optionee is otherwise entitled to exercise an Option on the date employment terminates, shall be

(a) at least six months from the date of termination of employment if termination was caused by death or permanent disability; and

(b) at least 30 days from the date of termination if termination of employment was caused by other than death or permanent disability;

3. Any Award exercised before shareholder approval is obtained shall be rescinded if shareholder approval is not obtained within 12 months of the Board’s adoption of the Plan.

Exhibit 16.1

September 20, 2017

U.S. Securities and Exchange Commission

100 F Street, N.E.

Washington, DC 20549

We have read the statements under Item 4.01 of the Current Report on Form 8-K of Acer Therapeutics Inc. to be filed with the Securities and Exchange Commission on or about September 20, 2017. We agree with all statements pertaining to us. We have no basis on which to agree or disagree with the other statements contained therein.

MaloneBailey, LLP

www.malonebailey.com

Houston, Texas

Exhibit 99.1

Acer Therapeutics and Opexa Therapeutics Close Merger and Financing

-Merger to create a pre-NDA-stage, Nasdaq-listed, pharmaceutical company focused on the development and commercialization of therapies for serious rare diseases with critical unmet medical need-

-Combined company, renamed Acer Therapeutics Inc., to commence trading on Nasdaq under the symbol “ACER” on September 21-

-Concurrent financing of $15.7 million from Acer investor syndicate-

-Acer plans to file a NDA for its lead product, EDSIVO™, for the treatment of vascular Ehlers-Danlos Syndrome (vEDS) in the first half of 2018-

September 19, 2017

CAMBRIDGE, MA – Acer Therapeutics Inc., (Nasdaq: ACER), a pharmaceutical company focused on the acquisition, development and commercialization of therapies for serious rare and ultra-rare diseases with critical unmet medical need, announced that today it completed the merger with Opexa Therapeutics, Inc., under which the stockholders of Acer (including investors in a financing that closed concurrently with the merger) become holders of 88.8% of combined company’s outstanding common stock, with Opexa shareholders retaining 11.2%.

In conjunction with the merger, a syndicate of existing and new investors led by TVM Capital Life Sciences invested approximately $15.7 million in Acer (including through a conversion of approximately $5.7 million in outstanding convertible notes) immediately prior to closing of the merger.

“Acer’s goal is to become a leading pharmaceutical company that acquires, develops and commercializes therapies for the treatment of patients with serious rare and ultra-rare diseases with critical unmet medical need,” said Chris Schelling, Chief Executive Officer and founder of Acer. “We have committed significant resources to rapidly advance our lead candidate EDSIVO™, a potential life-saving therapy for patients with vEDS. We believe that the proceeds from the concurrent financing will allow us to advance EDSIVO™ through NDA submission with the FDA in the first half of 2018. As a public company, we now look forward to engaging with a broader pool of investors as we seek to advance and expand our pipeline and make multiple products available to patients over the next several years.”

About the Merger

Existing stockholders of Acer, as well as investors in Acer’s concurrent financing, received newly issued shares of Opexa common stock in connection with the merger. In the combined company: (a) Opexa shareholders retained 11.2%, (b) Acer stockholders own 63.8% (excluding shares issued to them in the concurrent financing), and (c) the investors participating in the concurrent financing own 25% (excluding shares previously held by them). The combined company has approximately 6.6 million shares of common stock outstanding, following a reverse split of 1-for-10.355527.

Upon completion of the merger today, Opexa was renamed Acer Therapeutics Inc. The combined company will commence trading on the Nasdaq Capital Market under the symbol “ACER” on September 21, 2017.

The directors and the sole executive officer of Opexa resigned from their positions with Opexa upon the closing of the merger, and the combined company is now under the leadership of Acer’s current executive management team with Chris Schelling serving as President and Chief Executive Officer. The board of directors of the combined company consists of 7 members: Steve Aselage, Jason Amello, Hubert Birner, John Dunn, Michelle Griffin, Luc Marengere and Mr. Schelling.

About Acer Therapeutics

Acer, headquartered in Cambridge, MA, is a pharmaceutical company that acquires, develops and intends to commercialize therapies for patients with serious rare and ultra-rare diseases with critical unmet medical need. Acer’s late-stage clinical pipeline includes two candidates for severe genetic disorders for which there are few or no FDA-approved treatments: EDSIVO™ (celiprolol) for vEDS, and ACER-001 (a fully taste-masked, immediate release formulation of sodium phenylbutyrate) for urea cycle disorders (UCD) and Maple Syrup Urine Disease (MSUD). There are no FDA-approved drugs for vEDS and MSUD and limited options for UCD, which collectively impact more than 4,000 patients in the United States. Acer’s products have clinical proof-of-concept and mechanistic differentiation, and Acer intends to seek approval for them in the United States by using the regulatory pathway established under section 505(b)(2) of the Federal Food, Drug, and Cosmetic Act, or FFDCA, that allows an applicant to rely for approval at least in part on third-party data, which is expected to expedite the preparation, submission, and approval of a marketing application.

For more information, visit www.acertx.com.

Forward-Looking Statements

This press release contains “forward-looking statements” that involve substantial risks and uncertainties for purposes of the safe harbor provided by the Private Securities Litigation Reform Act of 1995. All statements, other than statements of historical facts, included in this press release regarding strategy, future operations, future financial position, future revenue, projected expenses, prospects, plans and objectives of management are forward-looking statements. Examples of such statements include, but are not limited to, statements relating to Acer’s listing on the Nasdaq Capital Market; expectations regarding the capitalization, resources and ownership structure of the company; the potential for EDSIVO™ (celiprolol) and ACER-001 to safely and effectively target diseases; the adequacy of the company’s capital to support its future operations and its ability to successfully initiate and complete clinical trials; the nature, strategy and focus of the company; the development and commercial potential of any product candidates of the company; and the executive and board structure of the company. Acer may not actually achieve the plans, carry out the intentions or meet the expectations or projections disclosed in the forward-looking statements and you should not place undue reliance on these forward-looking statements. Such statements are based on management’s current expectations and involve risks and uncertainties. Actual results and performance could differ materially from those projected in the forward-looking statements as a result of many factors, including, without limitation, risks and uncertainties associated with the ability to project future cash utilization and reserves needed for contingent future liabilities and business operations, the availability of sufficient resources of the company to meet its business objectives and operational requirements, the fact that the results of earlier studies and trials may not be predictive of future clinical trial results, the protection and market exclusivity provided by Acer’s intellectual property, risks related to the drug development and the regulatory approval process and the impact of competitive products and technological changes. Acer disclaims any intent or obligation to update these forward-looking statements to reflect events or circumstances that exist after the date on which they were made.

Investor Contact:

Hans Vitzthum

LifeSci Advisors

Ph: 212-915-2568

hans@lifescieadvisors.com