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): June 522, 2023

ACER THERAPEUTICS INC.

(Exact name of registrant as specified in its charter)


Delaware	001-33004	32-0426967
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)


One Gateway Center, Suite 356 300 Washington Street Newton, Massachusetts		02458
(Address of principal executive offices)		(Zip Code)
Registrant’s telephone number, including area code: (844) 902-6100
N/A
(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 obligation 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))


Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class	Trading Symbol	Name of Each Exchange on Which Registered
Common Stock, $0.0001 par value per share	ACER	The Nasdaq Stock Market LLC

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 31.01. ~~Notice~~ Entry ofinto ~~Delisting~~a orMaterial ~~Failure~~Definitive ~~to Satisfy Continued Listing Rule or Standard; Transfer of Listing~~Agreement.

~~Nasdaq~~On ~~Bid~~June ~~Price~~22, ~~Deficiency~~2023, ~~Notice~~Acer Therapeutics Inc. (the “Company”) received $1,000,000 in funding in exchange for the issuance of an unsecured, subordinated promissory note for that principal amount (the “Promissory Note”) to Christopher Schelling, the Company’s Chief Executive Officer and Founder, a member of the Company’s Board of Directors, and the beneficial owner of more than 10% of the Company’s outstanding common stock. Pursuant to the Promissory Note, the principal amount will accrue interest at a rate of six percent (6%) per annum, and all principal and accrued interest will be due and payable on August 21, 2023 (the “Maturity Date”); provided, however, that the repayment obligation of the Company under the Promissory Note is expressly subordinated to the Company’s obligations under its outstanding secured debt. If the Promissory Note is not paid in full on or before the Maturity Date, the unpaid balance will thereafter accrue interest at a rate of ten percent (10%) per annum.

OnThe ~~June~~Promissory 5,Note ~~2023,~~is ~~Acer~~filed ~~Therapeutics~~as ~~Inc~~Exhibit 10.1 ~~(the~~to ~~“Company”)~~this ~~received~~Current aReport ~~letter~~on ~~(the~~Form ~~“Bid~~8-K. ~~Price~~The ~~Deficiency~~foregoing ~~Notice”)~~summary ~~from~~of the ~~listing~~terms ~~qualifications department staff~~ of ~~The Nasdaq Stock Market (“Nasdaq”) indicating that~~ the ~~Company~~Promissory isNote does not inpurport ~~compliance~~to ~~with~~be ~~the~~complete ~~$1.00~~and ~~minimum~~is ~~bid~~subject ~~price~~to, ~~requirement~~and ~~set~~qualified ~~forth~~ in ~~Nasdaq~~its ~~Listing~~entirety ~~Rule~~by, ~~5550(a)(2)~~the ~~for~~Promissory ~~continued~~Note ~~listing~~which onis ~~The~~incorporated ~~Nasdaq~~herein ~~Capital~~by ~~Market (the “Bid Price Requirement”)~~reference.

~~The~~Item ~~Bid~~2.03. Creation ~~Price Deficiency Notice has no immediate effect on the listing~~ of ~~the~~a ~~Company’s~~Direct ~~common~~Financial ~~stock,~~Obligation ~~and~~or ~~the~~an ~~Company’s~~Obligation ~~common~~under ~~stock~~an ~~continues~~Off-Balance toSheet ~~trade~~Arrangement onof ~~the~~a ~~Nasdaq Capital Market under the symbol “ACER~~Registrant.”

In accordance with Nasdaq listing rule 5810(c)(3)(A), the Company has 180 calendar days from the date of the Bid Price Deficiency Notice, or until December 4, 2023, to regain compliance with respect to the Bid Price Requirement. The ~~Bid~~information ~~Price~~included ~~Deficiency~~under ~~Notice~~Item ~~states that to regain compliance with the Bid Price Requirement, the closing bid price of the Company’s common stock must meet or exceed $~~1.0001 ~~per share for a minimum~~ of ~~ten~~this ~~consecutive~~Current ~~business~~Report ~~days~~on ~~during~~Form ~~the~~8-K ~~compliance~~is ~~period~~incorporated ~~ending~~by ~~December~~reference ~~4, 2023~~herein.

Item If the Company fails to regain compliance with the Bid Price Requirement by December 4, 2023, the Company may be eligible for an additional 180-day compliance period to demonstrate compliance with the Bid Price Requirement7. To qualify, the Company will be required to meet the continued listing requirement for market value of publicly held shares (see the disclosure below under the heading “Prior Nasdaq MVLS Notice”) and all other initial listing standards for The Nasdaq Capital Market, with the exception of the Bid Price Requirement, and will need to provide written notice to Nasdaq of its intention to cure the deficiency during the second compliance period by effecting a reverse stock split, if necessary01. Regulation IfFD the Company does not qualify for the second compliance period or fails to regain compliance with the Bid Price Requirement during the second 180-day period, Nasdaq will notify the Company of its determination to delist the common stock, at which point the Company would have an opportunity to appeal the delisting determination to a Hearings PanelDisclosure.

The Company ~~intends~~has toupdated ~~actively~~its ~~monitor~~Corporate Presentation that will be available on the ~~closing~~Investor ~~bid~~Relations ~~price~~page of the Company’s ~~common~~website ~~stock~~at ~~between~~https://acertx.com/investor-relations ~~now~~ and ~~December~~will 4,be ~~2023~~used ~~and~~at ~~may,~~investor ifand ~~appropriate,~~other ~~evaluate~~meetings. ~~available~~A ~~options~~copy toof ~~resolve~~ the ~~deficiency~~updated ~~and~~Corporate ~~regain~~Presentation ~~compliance~~is ~~with~~furnished ~~the~~as ~~Bid~~Exhibit ~~Price Requirement~~99.1 ~~While the Company is exercising diligent efforts~~ to ~~maintain~~this ~~the~~Current ~~listing~~Report ~~of its common stock~~ on ~~Nasdaq,~~Form ~~there~~8-K ~~can~~and beis noincorporated ~~assurance~~herein ~~that~~by ~~the~~reference. The Company ~~will~~does benot ~~able~~undertake to ~~regain~~update orthis ~~maintain compliance with Nasdaq listing standards~~presentation.

~~Prior~~The ~~Nasdaq~~information ~~MVLS~~in ~~Deficiency~~Item ~~Notice~~7.01 of this Current Report on Form 8-K, including Exhibit 99.1, shall not be deemed to be filed for purposes of Section 18 of the Securities Exchange Act of 1934 (the “Exchange Act”), or otherwise subject to the liability of that section, and shall not be incorporated by reference into any registration statement or other document filed under the Securities Act of 1933 or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.

~~Separately,~~Item ~~and~~8.01. Other as previously disclosed, on May 3, 2023, the Company received a letter (the “MVLS Deficiency Notice”) from the listing qualifications department staff of Nasdaq notifying the Company that for the 30 consecutive business days prior to the date of the MVLS Deficiency Notice, the Company’s minimum Market Value of Listed Securities (“MVLS”) was below the minimum of $35 million required for continued listing on the Nasdaq Capital Market pursuant to Nasdaq listing rule 5550(b)(2)Events.

The ~~MVLS~~proceeds ~~Deficiency~~to ~~Notice~~the ~~had~~Company nofrom ~~immediate~~the ~~effect~~Promissory onNote, ~~the~~together ~~listing~~with of the Company’s ~~common~~existing ~~stock,~~cash and cash equivalents, are expected to be sufficient to fund the Company’s ~~common~~anticipated ~~stock~~operating ~~continues~~and tocapital ~~trade~~requirements oninto early in the ~~Nasdaq~~third ~~Capital~~quarter ~~Market~~of 2023.

On InJune ~~accordance with Nasdaq listing rule 5810(c)(3)(C)~~26, ~~the Company was provided 180 calendar days from the date of the MVLS Deficiency Notice, or until October 30,~~ 2023, toAcer ~~regain~~Therapeutics ~~compliance with respect to the MVLS requirement~~Inc. ~~The~~issued ~~MVLS~~a ~~Deficiency~~press ~~Notice~~release ~~stated~~entitled ~~that~~“Acer toTherapeutics ~~regain~~Receives ~~compliance,~~$1 ~~the~~Million ~~Company’s~~Capital ~~MVLS~~Infusion ~~must~~from ~~close~~Chief atExecutive ~~$35~~Officer ~~million~~and orFounder,” ~~more for~~ a ~~minimum~~copy of ~~ten~~which ~~consecutive~~is ~~business~~attached ~~days (or such longer period of time~~ as ~~the~~Exhibit ~~Nasdaq staff may require in some circumstances, but generally not more than 20 consecutive business days) during the compliance period ending October 30, 2023~~99.2 ~~The~~hereto ~~Company~~and ~~believes~~is ~~that~~incorporated itherein ~~can also regain compliance relative to the MVLS requirement~~ by ~~meeting a continued listing standard of a minimum stockholders’ equity of at least $2~~reference.~~5 million.~~

Forward-Looking If the Company does not regain compliance with respect to the MVLS requirement by October 30, 2023, Nasdaq staff will provide written notice to the Company that its securities are subject to delisting. At that time, the Company may appeal any such delisting determination to a Hearings Panel.Statements

~~The~~This Current Report on Form 8-K contains “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. All statements, other than statements of historical facts, included in this Current Report are forward-looking statements. Such statements include statements regarding the sufficiency and duration of the Company’s ~~intends~~cash toand ~~actively~~cash ~~monitor~~equivalents. Such statements are based on the current expectations of the Company’s ~~MVLS~~management ~~between~~and ~~now~~involve risks and ~~October~~uncertainties. ~~30,~~Actual ~~2023~~results and ~~may~~performance could differ materially from those projected in the forward-looking statements as a result of many factors, ifincluding ~~appropriate~~without limitation, ~~evaluate~~risks ~~available~~and ~~options~~uncertainties associated with the ability to ~~resolve~~project future cash utilization and reserves needed for contingent future liabilities and business operations, the ~~deficiency~~availability of sufficient resources to fund the Company’s various product candidate development programs and ~~regain~~to ~~compliance~~meet the Company’s business objectives and operational requirements, and the risks and uncertainties set forth in the Company’s filings with ~~respect~~the toSecurities and Exchange Commission, including the ~~MVLS~~Company’s ~~requirement~~Quarterly Reports on Form 10-Q and Annual Report on Form 10-K. ~~While~~Forward-looking statements speak only as of the date hereof, and the Company disclaims any obligation to update any forward-looking statements, unless otherwise required by law. Interested parties should review additional disclosures the Company makes in its filings with the Securities and Exchange Commission, including the Company’s Annual Report on Form 10-K and Quarterly Reports on Form 10‑Q. These documents may be accessed for no charge at http://www.sec.gov.

~~Company~~Item is9.01. Financial ~~exercising~~Statements ~~diligent~~and ~~efforts to maintain the listing of its common stock on Nasdaq, there can be no assurance that the Company will be able to regain or maintain compliance with Nasdaq listing standards~~Exhibits.

(d) Exhibits


Exhibit No.		Description

10.1		Unsecured Promissory Note, dated as of June 22, 2023, between Acer Therapeutics Inc. and Christopher Schelling.

99.1		Acer Therapeutics Inc. Corporate Presentation, June 26, 2023.

99.2		Press release issued by Acer Therapeutics Inc. dated June 26, 2023, entitled, “Acer Therapeutics Receives $1 Million Capital Infusion from Chief Executive Officer and Founder.”

104		Cover page interactive data file (embedded within the inline XBRL document).

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

Dated: June 7, 2023	ACER THERAPEUTICS INC.
Dated: June 26, 2023	ACER THERAPEUTICS INC.
	By:	/s/ Harry S. Palmin
		Harry S. Palmin
		Chief Financial Officer

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