Item 1.01. Entry into a Material Definitive Agreement.

Second Amendment of SWK Credit Agreement

On January 30, 2023, Acer Therapeutics Inc. (the "Company") entered into a Second Amendment to Credit Agreement (the "Second Amendment") which amended that certain Credit Agreement dated as of March 4, 2022, between the Company, the lenders party thereto and SWK Funding LLC ("SWK"), as the agent, sole lead arranger and sole bookrunner (the "March 2022 SWK Credit Agreement"), as amended by that certain Amendment to Credit Agreement, dated August 19, 2022 (the "First Amendment" and the March 2022 SWK Credit Agreement, as amended by the First Amendment, the "August 2022 SWK Credit Agreement"). The August 2022 SWK Credit Agreement provided for a senior secured term loan facility for the Company in an aggregate amount of $6.5 million in a single borrowing, which was funded on March 14, 2022 (the "Original Term Loan"). In addition to other provisions, the Second Amendment provides for an additional senior secured term loan to be made to the Company in an aggregate amount of $7.0 million in a single borrowing which is expected to fund on or about January 31, 2023 (the "Second Term Loan", and together with the Original Term Loan, the "SWK Loans").

Pursuant to the terms of the August 2022 SWK Credit Agreement as amended by the Second Amendment (the "Current SWK Credit Agreement"):



     •    Interest Rate: Interest is now calculated on the SWK Loans based on
          3-month SOFR instead of 3-month LIBOR, such that the SWK Loans now bear
          interest at an annual rate of the sum of (i) 3-month SOFR, subject to a
          1% floor, plus (ii) a margin of 11%, with such interest payable quarterly
          in arrears.



     •    Capitalization of Interest: The Company's option to capitalize accrued
          interest (the "PIK Amount") has been extended through May 15, 2023
          (instead of the previous February 15, 2023).



     •    Maturity Date: The final maturity date of the Second Term Loan is
          March 4, 2024, which is the same as the final maturity date of the
          Original Term Loan.



     •    Exit Fees: The Company has the option to prepay the Second Term Loan in
          whole or in part. Upon the repayment of the Second Term Loan (whether a
          voluntary prepayment, an accelerated repayment or at scheduled maturity),
          the Company must pay an exit fee so that SWK receives an aggregate amount
          (inclusive of all principal, interest and origination and other fees paid
          in cash to SWK under the SWK Credit Agreement with respect to the Second
          Term Loan, but excluding the Third Warrant (defined below)) equal to the
          outstanding principal amount of the Second Term Loan (inclusive of PIK
          Amounts) multiplied by: (i) if the repayment occurs on or before
          April 15, 2023, 1.18, (ii) if the repayment occurs on or after April 16,
          2023 but prior to May 16, 2023, 1.28667, (iii) if the repayment occurs on
          or after May 16, 2023 but prior to June 16, 2023, 1.39334, and (iv) if
          the repayment occurs on or after July 16, 2023, 1.5. The Second Amendment
          did not modify the exit fee applicable to the Original Term Loan.



     •    Minimum Cash Requirement: The Second Amendment revised the liquidity
          covenant and the Current SWK Credit Agreement now provides that the
          Company's cash and cash equivalents balance minus the aggregate amount of
          any accounts payable which are unpaid more than 90 days beyond terms
          consistent with the Company's practice must not be less than the lesser
          of (a) the outstanding principal amount of the SWK Loans, or (b)
          $1.5 million; provided, however, that such $1.5 million amount shall
          automatically be increased to $3.0 million on the date that is 14 days
          following the date, if any, that the Company's Board of Directors
          determines that discontinuation of the development program for the
          Company's product candidate known as ACER-801 (osanetant) for the
          treatment of vasomotor symptoms is warranted based upon a serious adverse
          event or a lack of efficacy at any dose studied in the results from a
          completed Phase 2a trial (an "Osanetant Failure Date").



     •    Amortization: Commencing on May 15, 2023, the principal amount of the SWK
          Loans will amortize at a rate of $1.3 million (previously $650,000)
          payable quarterly; provided, however, that if the Osanetant Failure Date
          occurs, the principal amount of the SWK Loans will instead amortize on
          the 15th day of each month thereafter, at a monthly rate of $600,000,
          until the Company has issued additional equity or subordinated debt
          resulting in net cash proceeds of not less than $10.0 million following
          the Osanetant Failure Date.



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In connection with the execution of the Second Amendment, the Company issued to SWK an additional warrant (the "Third Warrant") to purchase 250,000 shares of the Company's common stock, $0.0001 par value per share ("Common Stock"), at an exercise price of $2.39 per share. SWK may exercise the Third Warrant in accordance with the terms thereof for all or any part of such shares of Common Stock from the date of issuance until and including March 4, 2029.

The foregoing description of the August 2022 SWK Credit Agreement as amended by the Second Amendment as well as the foregoing description of the Third Warrant do not purport to be complete and are qualified in their entirety by reference . . .

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an

Off-Balance Sheet Arrangement of a Registrant.

The information required by Item 2.03 relating to the Current SWK Credit Agreement (including, without limitation, as amended by the Second Amendment), the SWK Loans (including, without limitation, as augmented by the Second Term Loan), and the Marathon Convertible Notes (including, without limitation, as amended by the Marathon Amendment Agreement) is contained in Item 1.01 of this Current Report on Form 8-K and incorporated herein by reference.

Item 3.02 Unregistered Sales of Equity Securities.

The information required by Item 3.02 relating to the issuance of the Third Warrant is contained in Item 1.01 of this Current Report on Form 8-K and is incorporated herein by reference. The issuance of the Third Warrant to SWK has been made in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933.

Item 8.01. Other Events.

On November 9, 2018, the Company entered into a sales agreement with Roth Capital Partners, LLC, and on March 18, 2020, an amended and restated sales agreement was entered into with JonesTrading Institutional Services LLC and Roth Capital Partners, LLC. Such amended and restated agreement provides a facility for the offer and sale of shares of Common Stock from time to time having an aggregate offering price of up to $50.0 million depending upon market demand, in transactions deemed to be an at-the-market offering (the "ATM Facility").

During January 2023 to date, the Company has sold 1,365,059 shares of Common Stock at an average price per share of $2.84 under the ATM Facility, with gross proceeds of approximately $3.9 million, and net proceeds of approximately $3.7 million. Following these recent sales under the ATM facility, the Company had 20,989,339 shares of Common Stock outstanding as of January 30, 2023. The net proceeds from these recent sales under the ATM facility, together with the proceeds from the Second Term Loan and the Company's existing cash and cash equivalents, are expected to be sufficient to fund the Company's anticipated operating and capital requirement into early in the second quarter of 2023.

Forward-Looking Statements

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



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regarding the sufficiency and duration of the Company's cash and cash equivalents. Such statements are based on the current expectations of the Company's management 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 to fund the Company's various product candidate development programs and to meet the Company's business objectives and operational requirements, the fact that the results of earlier studies and trials may not be predictive of future clinical trial results, risks related to the drug development and regulatory approval processes, including the timing and requirements of regulatory actions, and the risks and uncertainties set forth in the Company's filings with the Securities and Exchange Commission, including the Company's Quarterly Reports on Form 10-Q and Annual Report on Form 10-K. 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.

Item 9.01. Financial Statements and Exhibits.




(d) Exhibits

Exhibit No.                                  Description

10.1                Credit Agreement dated March 4, 2022, among Acer Therapeutics
                  Inc., the lenders party thereto and SWK Funding LLC, as the
                  agent, sole lead arranger and sole bookrunner (incorporated by
                  reference to the Registrant's Current Report on Form 8-K filed on
                  March 7, 2022).

10.2                Amendment to Credit Agreement dated August 19, 2022, among Acer
                  Therapeutics Inc., the lenders party thereto and SWK Funding LLC,
                  as the agent, sole lead arranger and sole bookrunner
                  (incorporated by reference to the Registrant's Current Report on
                  Form 8-K filed on August 23, 2022).

10.3                Second Amendment to Credit Agreement dated January 30, 2023,
                  among Acer Therapeutics Inc., the lenders party thereto and SWK
                  Funding LLC, as the agent, sole lead arranger and sole
                  bookrunner.

10.4                Warrant issued on January 30, 2023, by the Company to SWK
                  Funding LLC pursuant to the Second Amendment to Credit Agreement
                  dated January 30, 2023, among Acer Therapeutics Inc., the lenders
                  party thereto and SWK funding LLC, as the agent, sole lead
                  arranger and sole bookrunner.

10.5                Secured Convertible Note Purchase Agreement dated March 4,
                  2022, between Acer Therapeutics Inc., MAM Aardvark, LLC and
                  Marathon Healthcare Finance Fund, L.P. (incorporated by reference
                  to the Registrant's Current Report on Form 8-K filed on March 7,
                  2022).

10.6                Form of Secured Convertible Note issuable by Acer Therapeutics
                  Inc. to MAM Aardvark, LLC and Marathon Healthcare Finance Fund,
                  L.P. pursuant to the Secured Convertible Note Purchase Agreement
                  dated March 4, 2022, between Acer Therapeutics Inc. and MAM
                  Aardvark, LLC and Marathon Healthcare Finance Fund, L.P.
                  (incorporated by reference to the Registrant's Current Report on
                  Form 8-K filed on March 7, 2022).

10.7                Amendment Agreement dated January 30, 2023, with respect to
                  Secured Convertible Note Purchase Agreement between Acer
                  Therapeutics Inc., MAM Aardvark, LLC and Marathon Healthcare
                  Finance Fund, L.P.

10.8                Credit Agreement, dated as of March 4, 2022, among Acer
                  Therapeutics Inc., the Lenders party thereto and MAM Aardvark,
                  LLC, not individually, but solely in its capacity as
                  administrative and collateral agent for the Lenders (incorporated
                  by reference to the Registrant's Current Report on Form 8-K filed
                  on March 7, 2022).

10.9                Termination Agreement dated as of January 30, 2023 among Acer
                  Therapeutics Inc., the Lenders party thereto and MAM Aardvark,
                  LLC, not individually, but solely in its capacity as
                  administrative and collateral agent for the Lenders.

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



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