Item 1.01. Entry into a Material Definitive Agreement.
The Offering
On
The Offering is expected to close on or about
The Purchase Agreement contains customary representations and warranties and agreements of the Company and the Purchaser and customary indemnification rights and obligations of the parties. Pursuant to the terms of the Purchase Agreement and subject to certain exceptions, the Company has agreed to certain restrictions on the issuance and sale of its Common Stock or Common Stock Equivalents (as defined in the Purchase Agreement) during the 30-day period following the closing of the Offering.
The Shares, the Pre-Funded Warrants and the shares of Common Stock issuable
thereunder were offered by the Company pursuant to a registration statement on
Form S-3 (File No. 333-261342), which was filed with the
The Common Warrants were offered in a private placement under Section 4(a)(2) of the Securities Act of 1933, as amended (the "Securities Act"), and, along with the shares of Common Stock underlying the Common Warrants, have not been registered under the Securities Act or applicable state securities laws.
The form of Purchase Agreement is filed as Exhibit 10.1 to this Current Report on Form 8-K. The foregoing summary of the terms of the Purchase Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the Purchase Agreement which is incorporated herein by reference.
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Terms of the Pre-Funded Warrants
The Pre-Funded Warrants were offered, in lieu of shares of Common Stock, to any
Purchaser whose purchase of shares of Common Stock and Common Warrants in the
Offering would otherwise result in such Purchaser, together with its affiliates
and certain related parties, beneficially owning more than 4.99% (or, at such
Purchaser's option upon issuance, 9.99%) of the Company's outstanding Common
Stock immediately following the consummation of the Offering. Each Pre-Funded
Warrant represents the right to purchase shares of Common Stock at an exercise
price of
The form of Pre-Funded Warrant is filed as Exhibit 4.1 to this Current Report on Form 8-K. The foregoing summary of the terms of the Pre-Funded Warrant does not purport to be complete and is subject to, and qualified in its entirety by, the form of Pre-Funded Warrant which is incorporated herein by reference.
Terms of the Common Warrants
Each Common Warrant represents the right to purchase shares of Common Stock at
an exercise price of
The form of Common Warrant is filed as Exhibit 4.2 to this Current Report on Form 8-K. The foregoing summary of the terms of the Common Warrant does not purport to be complete and is subject to, and qualified in its entirety by, the form of Common Warrant which is incorporated herein by reference.
Placement Agent Compensation
The Company entered into an engagement letter with
This Current Report on Form 8-K does not constitute an offer to sell any securities or a solicitation of an offer to buy any securities, nor shall there be any sale of any securities in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
A copy of the opinion of
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Item. 3.02. Unregistered Sales of
The information contained above in Item 1.01 related to the Offering and issuance of the Common Warrants and the shares of Common Stock issuable upon exercise of the Common Warrants is hereby incorporated by reference into this Item 3.02. The Common Warrants and the shares of Common Stock issuable upon exercise of the Common Warrants have not been registered under the Securities Act and are instead being offered pursuant to the exemption provided in Section 4(a)(2) under the Securities Act.
Item 8.01. Other Events.
On
Forward-Looking Statements
This Current Report on Form 8-K 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 Current
Report on Form 8-K are forward-looking statements. Examples of such statements
include, but are not limited to, statements regarding the consummation of the
Offering and the satisfaction of closing conditions with respect to the
Offering. We 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, market and other conditions. We disclaim 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,
except as required by law. You should review additional disclosures we make in
our filings with the
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits Exhibit No. Description 4.1 Form of Pre-Funded Common Stock Purchase Warrant. 4.2 Form of Common Stock Purchase Warrant. 5.1 Opinion ofPillsbury Winthrop Shaw Pittman LLP . 10.1 Form of Securities Purchase Agreement, dated as ofMarch 21, 2023 , betweenAcer Therapeutics Inc. and the Purchaser. 23.1 Consent ofPillsbury Winthrop Shaw Pittman LLP (included in Exhibit 5.1). 99.1 Press Release issued byAcer Therapeutics Inc. , datedMarch 22, 2023 . 104 Cover Page Interactive Data File (embedded within the Inline XBRL document).
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