Securities Registration: Employee Benefit Plan (s-8)
28 March 2023 - 7:18AM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on March 27, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE
SECURITIES ACT OF 1933
ACER THERAPEUTICS INC.
(Exact name of registrant as specified in its charter)
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| Delaware |
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32-0426967 |
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incorporation or organization) |
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(I.R.S. Employer
Identification No.) |
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| One Gateway Center, Suite 356
300 Washington Street, Newton, MA |
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02458 |
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(Zip Code) |
Acer Therapeutics Inc. 2018 Stock Incentive Plan
(Full title of the plan)
Chris Schelling
President and Chief Executive Officer
Acer Therapeutics Inc.
One Gateway Center, Suite 356, 300 Washington Street
Newton MA 02458
(Name and
address agent for service)
(844) 902-6100
(Telephone number, including area code, of agent for service)
Copy to:
Mike
Hird
Christina F. Pearson
Pillsbury Winthrop Shaw Pittman LLP
11682 El Camino Real, Suite 200
San Diego, California 92130
(858) 509-4000
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated
filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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| Large accelerated filer |
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☐ |
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Accelerated filer |
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☐ |
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| Non-accelerated filer |
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☑ |
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Smaller reporting company |
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☑ |
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Emerging growth company |
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The
Registration Statement shall become effective upon filing in accordance with Rule 462 under the Securities Act.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
General Instruction E Information
This
Registration Statement is being filed for the purpose of increasing the number of securities of the same class as other securities for which a Registration Statement on Form S-8 relating to the same employee
benefit plan is effective. The Registrant’s Registration Statements on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on May
15, 2018 (File No. 333-224942), March 7, 2019 (File
No. 333-230133), March 18, 2020 (File No.
333-237265), March 1, 2021 (File No.
333-253742) and March 3, 2022 (File No. 333-263241) excluding reports that the Registrant
filed with the Commission that were incorporated into such Registration Statements in order to maintain current information about the Registrant, are hereby incorporated by reference into this Registration Statement pursuant to General Instruction E
of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3: Incorporation of Documents by Reference
The following documents filed by Acer Therapeutics Inc. (the “Registrant”) with the Commission are hereby incorporated by reference
in this Registration Statement:
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(a) |
Annual Report on Form 10-K for the fiscal year ended December 31,
2022; and |
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(b) |
Current Reports on Form 8-K filed with the SEC on January
3, 2023, January
5, 2023, January
9, 2023, January
31, 2023, February
7, 2023, February
13, 2023, March
15, 2023, March
17, 2023, and March 22, 2023 (each to the extent filed and not furnished); and
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(c) |
the description of the Registrant’s common stock contained in
Exhibit 4.1 to its Annual Report on Form 10-K for the year ended December 31, 2019, together
with any amendment or report filed with the Commission for the purpose of updating such description |
In addition, all
documents filed by Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, (excluding any portions thereof furnished by the Registrant, including but not limited to
information furnished under Item 2.02 and Item 7.01 and any exhibits relating to Item 2.02 or Item 7.01 furnished under Item 9.01 of Form 8-K and any certification required by 18 U.S.C. § 1350), on or
after the date of this Registration Statement, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated
by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.
Any statement contained in
this Registration Statement or in a document incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this
Registration Statement or in any subsequently filed document that is deemed to be incorporated by reference in this Registration Statement modifies or supersedes such statement.
Item 8: Exhibits.
Item 9: Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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(i) |
To include any prospectus required by Section 10(a)(3) of the Securities Act; |
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(ii) |
To reflect in the prospectus any facts or events arising after the effective date of this Registration
Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective Registration Statement; and |
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(iii) |
To include any material information with respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in the Registration Statement; |
provided, however, that clauses
(a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for
the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as
indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is against public policy as expressed in the Securities Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of Newton, state of Massachusetts,
on March 27, 2023.
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| ACER THERAPEUTICS INC. |
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| By |
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/s/ Chris Schelling |
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Chris Schelling |
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President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Chris Schelling and Harry S.
Palmin, or either of them, as his or her true and lawful attorneys-in-fact and agents, with full powers of substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8, and to file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents and full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming that said attorney-in-fact and agent, or any substitute or resubstitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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| Name |
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Title |
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Date |
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| /s/ Chris Schelling
Chris Schelling |
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President and Chief Executive Officer and Director
(Principal Executive Officer) |
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March 27, 2023 |
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| /s/ Harry S. Palmin
Harry S. Palmin |
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Chief Financial Officer (Principal Financial
and Accounting Officer) |
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March 27, 2023 |
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| /s/ Jason Amello
Jason Amello |
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Director |
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March 27, 2023 |
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| /s/ Steven J. Aselage
Steven J. Aselage |
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Chairman of the Board |
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March 27, 2023 |
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| /s/ John M. Dunn
John M. Dunn |
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Director |
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March 27, 2023 |
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| /s/ Michelle Griffin
Michelle Griffin |
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Director |
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March 27, 2023 |
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