Filed
pursuant to Rule 424(b)(5)
Registration
No. 333-237738
PROSPECTUS
SUPPLEMENT
(To
the Prospectus dated May 13, 2020)
26,000,000
Shares of Common Stock
We
are offering 26,000,000 shares of our common stock, par value $0.001 per share, at a purchase price of $1.54 per
share pursuant to this prospectus supplement and the accompanying prospectus.
The
offering is being underwritten on a firm commitment basis. The underwriters may offer the shares of common stock from time to time to
purchasers directly or through agents, or through brokers in brokerage transactions on The Nasdaq Capital Market, or to dealers in negotiated
transactions or in a combination of such methods of sale, or otherwise, at fixed price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices related to such prevailing market prices.
Our
common stock is traded on The Nasdaq Capital Market under the symbol “COCP.” On May 3, 2021, the last reported sale price
of our common stock on The Nasdaq Capital Market was $1.24 per share.
Investing
in our common stock involves a high degree of risk. Please read “Risk Factors” beginning on page S-6 of this prospectus
supplement, and in our Annual Report on Form 10-K for the year ended December 31, 2020, which is incorporated by reference into this
prospectus supplement.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus supplement or the accompanying prospectus is truthful or complete. Any representation to the contrary is a criminal
offense.
|
|
|
Per
Share
|
|
|
Total
|
|
|
Public offering price
|
|
$
|
1.54
|
|
|
$
|
40,040,000
|
|
|
Underwriting discounts and
commissions (1)
|
|
$
|
0.1155
|
|
|
$
|
3,003,000
|
|
|
Proceeds, before expenses, to us
|
|
$
|
1.4245
|
|
|
$
|
37,037,000
|
|
|
|
(1)
|
In
addition, we have agreed to pay the underwriter a management fee of 1.0% of the aggregate gross proceeds from this offering and to
reimburse the underwriter for certain of its expenses. See the “Underwriting” section beginning on page S-8 of this
prospectus supplement for a description of the compensation payable to the underwriter.
|
The
underwriter expects to deliver the shares of common stock on or about May 7, 2021.
H.C.
Wainwright & Co.
The
date of this prospectus supplement is May 4, 2021
ABOUT
THIS PROSPECTUS SUPPLEMENT
This
document is in two parts. The first part is this prospectus supplement, which describes the terms of the offering and also adds to and
updates information contained in the accompanying prospectus and the documents incorporated by reference into this prospectus supplement
and the accompanying prospectus. The second part consists of a prospectus dated May 13, 2020, included in the registration statement
on Form S-3 (No. 333-237738) that was initially filed on April 17, 2020 with the Securities and Exchange Commission (“SEC”),
as amended on May 4, 2020, and was declared effective by the SEC on May 13, 2020. Since the accompanying prospectus provides general
information about us, some of the information may not apply to this offering. This prospectus supplement describes the specific details
regarding this offering. Generally, when we refer to the “prospectus,” we are referring to both parts of this document. Additional
information is incorporated by reference in this prospectus supplement. If information in this prospectus supplement is inconsistent
with the accompanying prospectus, you should rely on this prospectus supplement. You should read this prospectus supplement, the accompanying
prospectus and any information incorporated by reference before you make any investment decision.
Neither
we nor Wainwright are making an offer to sell the securities in jurisdictions where the offer or sale is not permitted. The distribution
of this prospectus supplement and the accompanying prospectus and the offer and sale of our securities in certain jurisdictions may be
restricted by law. Persons outside the United States who come into possession of this prospectus supplement and the accompanying prospectus
must inform themselves about and observe any restrictions relating to the offering of the securities and the distribution of this prospectus
supplement and the accompanying prospectus outside the United States. This prospectus supplement and the accompanying prospectus do not
constitute an offer of, or an invitation to purchase, any shares of common stock in any jurisdiction in which such offer or invitation
would be unlawful.
You
should rely only on information contained in this prospectus supplement, the accompanying prospectus and the documents we incorporate
by reference in this prospectus supplement. We have not authorized anyone to provide you with information that is different from that
contained in this prospectus supplement. We are not offering to sell or seeking offers to buy shares of common stock in jurisdictions
where offers and sales are not permitted. The information contained in this prospectus supplement and the accompanying prospectus supplement
is accurate only as of their respective dates, regardless of the time of delivery of this prospectus or of any sale of our common stock.
Unless
otherwise mentioned or unless the context requires otherwise, all references in this prospectus supplement to the “Company,”
“we,” “us,” “our” and “Cocrystal” refer to Cocrystal Pharma, Inc., a Delaware corporation,
and its consolidated subsidiaries.
To
the extent this prospectus supplement contains summaries of the documents referred to herein, you are directed to the actual documents
for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents
referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which
this prospectus supplement is a part, and you may obtain copies of those documents as described below under the section entitled “Where
You Can Find More Information.”
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus supplement and the accompanying prospectus, including documents incorporated by reference into this prospectus supplement
and the accompanying prospectus, contain “forward-looking statements” within the meaning of Section 27A of the Securities
Act of 1933 (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934 (the “Exchange Act”).
Such forward-looking statements include those statements that express plans, anticipation, intent, contingency, goals, targets or future
development and/or otherwise are not statements of historical fact. Forward-looking statements can generally be identified by the use
of words such as “anticipate,” “expect,” “plan,” “could,” “may,” “will,”
“should,” “would,” “intend,” “seem,” “potential,” “appear,” “continue,”
“future,” believe,” “estimate,” “forecast,” “project” and other words of similar
meaning, although not all forward-looking statements contain these identifying words. In particular, these forward-looking statements
include, among others, statements about our expectations with respect to the expected progress of our coronavirus program, Influenza
program, including the anticipated results of our collaboration with Merck under the Collaboration Agreement, the expected progress of
our Norovirus program, and intended use of proceeds
from this offering.
These
statements are based on our current expectations and projections and involve estimates, assumptions, risks and uncertainties that could
cause actual results to differ materially from those expressed in them. Any forward-looking statements are qualified in their entirety
by reference to the factors discussed in this prospectus supplement, and the accompanying prospectus, and the documents incorporated
by reference herein and therein. Important factors that could cause actual results to differ from those in the forward-looking statements
include the risks arising from the impact of the COVID-19 pandemic on our Company, including supply chain disruptions, and the national
and global economy, our continued ability to proceed with our programs, our reliance on certain third parties, our reliance on continuing
collaboration with Merck under the Collaboration Agreement, the future results of preclinical and clinical studies, general risks arising
from clinical trials, receipt of regulatory approvals, and development of effective treatments and/or vaccines by competitors. We also
refer you to the Risk Factors which begin on page S-6 of this prospectus supplement and our most recent Annual Report on Form 10-K
for the year ended December 31, 2020, under the caption “Item 1A – Risk Factors” of such report, and the other documents
incorporated by reference into this prospectus supplement for both an expanded discussion of the risks and uncertainties described above
and additional risks and uncertainties that could cause actual results to differ materially and adversely from those expressed or implied
by forward-looking statements. However, factors or events that could cause our actual results to differ may emerge from time to time,
and it is not possible for us to predict all of them.
You
should read this prospectus supplement, the accompanying prospectus and the documents that we reference herein and therein, completely
and with the understanding that our actual future results may be materially different from what we expect. You are cautioned not to place
undue reliance on the forward-looking statements contained in, or incorporated by reference into, this prospectus supplement. Each forward-looking
statement speaks only as of the date of this prospectus supplement or, in the case of documents incorporated by reference, the date of
the applicable document (or any earlier date indicated in the statement), and we undertake no obligation to update or revise any of these
statements, whether as a result of new information, future developments or otherwise, except as required by law. We qualify all of our
forward-looking statements by these cautionary statements.
PROSPECTUS
SUPPLEMENT SUMMARY
This
summary is not complete and does not contain all of the information that you should consider before investing in the securities offered
by this prospectus supplement and the accompanying prospectus. You should read this summary together with the entire prospectus supplement
and the accompanying prospectus, including our financial statements, the notes to those financial statements and the other documents
that are incorporated by reference in this prospectus supplement and the accompanying prospectus, before making an investment decision.
See “Risk Factors” beginning on page S-6 of this prospectus supplement for a discussion of the risks involved in investing
in our securities.
Our
Company
Cocrystal
Pharma, Inc. is a biotechnology company seeking to discover and develop novel antiviral therapeutics as treatments for serious
and/or chronic viral diseases. We employ unique structure-based technologies and Nobel Prize winning expertise to create first-
and best-in-class antiviral drugs. These technologies are designed to efficiently deliver small molecule therapeutics that are
safe, effective, and convenient to administer. We have identified promising discovery, preclinical and clinical stage antiviral
compounds for unmet medical needs caused by influenza virus, coronavirus, and norovirus infections. The Company is also seeking
a partner for further clinical development of its Hepatitis C product which has completed Phase 2a clinical trials.
Cocrystal
Technology
We
are developing antiviral therapeutics that inhibit the essential viral replication function of RNA viruses causing acute and chronic
viral diseases. Our goals include treating influenza virus, coronavirus, and norovirus infections by discovering and developing drug
candidates targeting the viral replication process. In the case of coronavirus, we target a major protease enzyme that produces the active
form of the viral replication enzyme. We have selected a lead coronavirus development candidate which we have licensed from Kansas State
University Research Foundation. To discover and design these inhibitors, we use a proprietary platform comprising computation, medicinal
chemistry, X-ray crystallography, and our extensive know-how. We determine the structures of cocrystals containing the inhibitors bound
to the enzyme or protein to guide our structure-based drug design. We also use advanced computational methods to screen and design product
candidates using proprietary cocrystal structural information. In designing the candidates, we seek to anticipate and avert potential
viral mutations leading to resistance. By designing and selecting drug candidates that interrupt the viral replication process and also
have specific binding characteristics, we seek to develop drugs that are not only effective against both the virus and possible mutants
of the virus, but which also have reduced off-target interactions that cause undesirable clinical side effects. The successful application
of our approach requires an extensive knowledge of viruses and drug targets. In addition, knowledge and experience in the fields of structural
biology, and enzymology are required. We developed our proprietary structure-based drug design under the guidance of Dr. Roger Kornberg,
our Chief Scientist, Chairman of our Scientific Advisory Board and recipient of the Nobel Prize in Chemistry in 2006. Our drug discovery
process focuses on the highly conserved regions of the viral enzymes and inhibitor-enzyme interactions at the atomic level. Additionally,
we have developed proprietary chemical libraries consisting of non-nucleoside inhibitors, metal-binding inhibitors, and drug-like fragments.
Our drug discovery process is different from traditional, empirical, medicinal chemistry approaches that often require iterative high-throughput
compound screening and lengthy hit-to-lead processes. We will continue developing preclinical and clinical drug candidates using our
proprietary drug discovery technology.
Corporate
Information
Our
principal executive offices are located at 19805 North Creek Parkway, Bothell, Washington 98011 and our telephone number is (786) 459-1831.
Our Internet website address is www.cocrystalpharma.com. The information on our website is not incorporated into this prospectus supplement.
The
Offering
|
Issuer
|
|
Cocrystal
Pharma, Inc.
|
|
|
|
|
|
Common
stock offered
|
|
26,000,000 shares
of common stock
|
|
|
|
|
|
Common
stock to be outstanding immediately after this offering
|
|
97,468,755 shares of common stock
|
|
|
|
|
|
Use
of proceeds
|
|
We
intend to use the net proceeds from this offering for the expansion of our coronavirus and influenza programs, and for working capital
and other general corporate purposes. See “Use of Proceeds” on page S-7 of this prospectus supplement.
|
|
|
|
|
|
Nasdaq
Capital Market symbol
|
|
“COCP”
|
|
|
|
|
|
Risk
factors
|
|
This
investment involves a high degree of risk. See “Risk Factors” beginning on page S-6 of this prospectus supplement,
our Annual Report on Form 10-K for the year ended December 31, 2020, which is incorporated by reference into this prospectus supplement,
and the other reports incorporated by reference into the accompanying prospectus for a discussion of factors you should carefully
consider before deciding to invest in our common stock.
|
The
number of shares of common stock to be outstanding immediately after this offering is based on 71,468,755 shares of common stock outstanding
as of May 3, 2021 and excludes, as of that date:
|
|
●
|
243,375
shares of common stock issuable upon the exercise of outstanding warrants at a weighted average exercise price of $15.00 per share;
|
|
|
|
|
|
|
●
|
1,772,287
shares of common stock issuable upon the exercise of outstanding stock options at a weighted average exercise price of $2.52 per
share; and
|
|
|
|
|
|
|
●
|
2,262,736
shares of common stock available for future grants under our 2015 Equity Incentive Plan (“Equity Plan”).
|
Except
as otherwise indicated, all information in this prospectus supplement assumes no exercise of outstanding options.
RISK
FACTORS
An
investment in our common stock involves a substantial risk of loss. You should carefully consider the risk factors set forth below, in
our Annual Report on Form 10-K for the year ended December 31, 2020, , together with the other information included or incorporated by
reference into this prospectus supplement and the accompanying prospectus, before you decide to invest in our common stock. The occurrence
of any of these risks could harm our business. In that case, the trading price of our common stock could decline, and you may lose all
or part of your investment. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also
impair our operations. You should also refer to the other information contained in this prospectus supplement and the accompanying prospectus
or incorporated by reference herein or therein, including our financial statements and the notes to those statements and the information
set forth under the heading “Cautionary Note Regarding Forward-Looking Statements.”
Risk
Related to This Offering and Our Common Stock
We
have broad discretion in the use of the net proceeds we receive from this offering and may not use them effectively.
We
cannot specify with certainty the particular uses of the net proceeds we will receive from this offering. We will have broad discretion
in the application of these net proceeds, including for any of the purposes described in the section entitled “Use of Proceeds.”
Accordingly, you will have to rely upon our judgment with respect to the use of these net proceeds, with only limited information concerning
our specific intentions. We may spend a portion or all of the net proceeds we will receive from this offering in ways that our stockholders
may not desire or that may not yield a favorable return. Our failure to apply these funds effectively could harm our business.
If
you purchase shares in this offering, you will suffer immediate and substantial dilution of your investment. You will experience further
dilution if we issue additional equity securities in future financing transactions.
Because
the offering price per share of our common stock is higher than the net tangible book value per share of our common stock, you will suffer
immediate and substantial dilution in the net tangible book value of the common stock you purchase in this offering.
Investors
purchasing shares of common stock in this offering will incur immediate dilution of approximately $0.82 per share. In addition,
we have stock options and warrants outstanding that are exercisable into shares of our common stock. To the extent that such outstanding
securities are exercised into shares of our common stock, investors purchasing our securities in this offering may experience
further dilution.
Because
our common stock was, with infrequent exceptions, not actively traded, if the current liquidity dissipates purchasers of our stock may
incur difficulty in selling their shares at or above the price they paid for them, or at all.
Until
2020, our common stock was not actively traded with infrequent exceptions. The active market for our common stock in 2020 may
not be sustained. Accordingly, investors may experience difficulty is selling their shares of common stock at or above
the price they paid for them.
Future
sales of our common stock, or the perception that such sales may occur, could cause the market price for our common stock to decline.
We
cannot predict the effect, if any, that market sales of shares of our common stock or the availability of shares of our common stock
for sale will have on the market price of our common stock prevailing from time to time. Sales of substantial amounts of shares of our
common stock in the public market, or the perception that those sales will occur, could cause the market price of our common stock to
decline or be depressed.
USE
OF PROCEEDS
We
estimate that the net proceeds from this offering will be approximately $36.4 million, after deducting underwriting discounts
and commissions and estimated offering expenses payable by us. We intend to use the net proceeds from this offering for
the expansion of our coronavirus and influenza programs, and for general corporate purposes and working capital.
As
of the date of this prospectus supplement, we cannot specify with certainty all of the particular uses of the proceeds from this offering.
Accordingly, we will retain broad discretion over the use of such proceeds.
DILUTION
If
you purchase shares of our common stock in this offering, your interest will be diluted to the extent of the difference between the price
per share you pay in this offering and the net tangible book value per share of our common stock after this offering. Our net tangible
book value as of December 31, 2020 was approximately $33.4 million, or $0.47 per share. Net tangible book value per share represents
the amount of our total tangible assets, excluding goodwill and intangible assets, less total liabilities divided by the total number
of shares of our common stock outstanding.
After
giving effect to the sale of 26,000,000 shares of our common stock at the offering price of $1.54 per share, and
after deducting the underwriting discounts and commissions and estimated offering expenses, our as adjusted net tangible book
value as of December 31, 2020 would have been approximately $69.8 million or approximately $0.72 per share. This
represents an immediate increase in the net tangible book value of approximately $0.25 per share to our existing stockholders
and an immediate dilution in as adjusted net tangible book value of approximately $0.82 per share to purchasers of our
common stock in this offering.
Dilution
per share of common stock to new investors is determined by subtracting as adjusted net tangible book value per share of common stock
after this offering from the offering price per share of common stock paid by new investors.
The
following table illustrates this per share dilution:
|
Offering price per share
|
|
|
|
|
|
$
|
1.54
|
|
|
|
|
|
|
|
|
|
|
|
|
Net tangible book value per share as of December 31, 2020
|
|
$
|
0.47
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Increase in net tangible
book value per share attributable to new investors this offering
|
|
$
|
0.25
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As adjusted net tangible book value per share
after giving effect to this offering
|
|
|
|
|
|
$
|
0.72
|
|
|
|
|
|
|
|
|
|
|
|
|
Dilution in net tangible
book value per share to new investors in this offering
|
|
|
|
|
|
$
|
0.82
|
|
The
number of shares of our common stock to be outstanding after this offering is based on the actual number of shares outstanding as of
December 31, 2020, which was 70,438,755, and excludes as of such date:
|
|
●
|
243,375
shares of common stock issuable upon the exercise of outstanding warrants at a weighted average exercise price of $15.00 per share;
|
|
|
|
|
|
|
●
|
1,779,399
shares of common stock issuable upon the exercise of outstanding stock options at a weighted average exercise price of $2.53 per
share; and
|
|
|
|
|
|
|
●
|
2,262,736
shares of common stock available for future grants under our Equity Plan.
|
To
the extent that any outstanding options or warrants are exercised, or we otherwise issue additional shares of common stock in the future,
at a price less than the public offering price, there will be further dilution to the investors.
UNDERWRITING
Pursuant
to an underwriting agreement with H.C. Wainwright & Co., LLC (the “underwriter”), we have agreed to issue and sell, and
the underwriter has agreed to purchase, the number of shares of common stock listed opposite its name below, less the underwriting discount,
on the closing date, subject to the terms and conditions contained in the underwriting agreement. The underwriting agreement provides
that the obligations of the underwriter are subject to certain customary conditions precedent, representations and warranties contained
therein.
|
Underwriter
|
|
Number
of
Shares
|
|
|
H.C. Wainwright & Co., LLC
|
|
|
26,000,000
|
|
|
Total
|
|
|
26,000,000
|
|
Pursuant
to the underwriting agreement, the underwriter has agreed to purchase all of the shares sold under the underwriting agreement
if any of these shares are purchased. The underwriter has advised us that it does not intend to confirm sales to any account
over which it exercises discretionary authority.
Discounts,
Commissions and Expenses
The
underwriter may offer the shares of common stock from time to time to purchasers directly or through agents, or through brokers in brokerage
transactions on Nasdaq, or to dealers in negotiated transactions or in a combination of such methods of sale, or otherwise, at a fixed
price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices, subject to receipt and acceptance by it and subject to its right to reject any order in whole or in part.
The difference between the price at which the underwriter purchases shares from us and the price at which the underwriter resells such
shares may be deemed underwriting compensation. If the underwriter effects such transactions by selling shares of common stock to or
through dealers, such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriter and/or
purchasers of shares of common stock for whom they may act as agents or to whom they may sell as principal.
The
underwriter is offering the shares, subject to prior sale, when, as and if issued to and accepted by it, subject to approval of legal
matters and other conditions specified in the underwriting agreement. The underwriter reserves the right to withdraw, cancel or modify
offers to the public and to reject orders in whole or in part.
The
following table shows the public offering price, underwriting discount and proceeds, before expenses, to us.
|
|
|
Per
Share
|
|
|
Total
|
|
|
Public offering price
|
|
$
|
1.54
|
|
|
$
|
40,040,000
|
|
|
Underwriting discounts and commissions payable
by us
|
|
$
|
0.1155
|
|
|
$
|
3,003,000
|
|
|
Proceeds, before expenses, to us
|
|
$
|
1.4245
|
|
|
$
|
37,037,000
|
|
We
have also agreed to pay the underwriter a management fee equal to 1.0% of the aggregate gross proceeds in this offering. We have agreed
to reimburse the expenses of the underwriter in the non-accountable sum of $50,000 in connection with this offering, up to $90,000 for
expenses of legal counsel, and up to $15,950 for the clearing expenses of the underwriter in connection with this offering.
Right
of First Refusal
We
have granted the underwriter a twelve-month right of first refusal to act as our exclusive underwriter or placement agent for any further
capital raising transactions undertaken by us, and to act as the exclusive advisor, manager or underwriter or placement agent, as applicable,
if we sell or acquire a business, finance any indebtedness, or decide to raise funds by means of a public offering or a private placement
or any other capital-raising financing of equity, equity-linked or debt securities using an underwriter or placement agent.
Tail
Financing Payments
In
the event that any investors that participate in this offering or were introduced to this offering by the underwriter provide any capital
to us in a public or private offering or capital-raising transaction within 6 months following the termination of our engagement of the
underwriter, we shall pay the underwriter the cash compensation provided above on the gross proceeds from such investors.
Indemnification
We
have agreed to indemnify the underwriter against certain liabilities, including civil liabilities under the Securities Act of 1933, as
amended, or the Securities Act, or to contribute to payments that the underwriter may be required to make in respect of those liabilities.
Lock-Up
Agreements
We
have agreed to not sell any shares of our common stock or any securities convertible into or exercisable or exchangeable into share of
common stock, subject to certain exceptions, for a period of 90 days after the date of this prospectus supplement.
Price
Stabilization, Short Positions and Penalty Bids
In
connection with this offering, the underwriter may engage in stabilizing transactions, syndicate covering
transactions and penalty bids in connection with our common stock.
|
|
●
|
Stabilizing
transactions permit bids to purchase shares of common stock so long as the stabilizing bids do not exceed a specified maximum.
|
|
|
●
|
Syndicate
covering transactions involve purchases of common stock in the open market after the distribution has been completed in order to
cover syndicate short positions. Such a naked short position would be closed out by buying securities in the open market. A naked
short position is more likely to be created if the underwriter is concerned that there could be downward pressure on the price of
the securities in the open market after pricing that could adversely affect investors who purchase in the offering.
|
|
|
●
|
Penalty
bids permit the underwriter to reclaim a selling concession from a syndicate member when the securities originally sold by the syndicate
member are purchased in a stabilizing or syndicate covering transaction to cover syndicate short positions.
|
These
stabilizing transactions, syndicate covering transactions and penalty bids may have the effect of raising or maintaining the market price
of our common stock or preventing or retarding a decline in the market price of our common stock. As a result, the price of our common
stock in the open market may be higher than it would otherwise be in the absence of these transactions. Neither we nor the underwriter
make any representation or prediction as to the effect that the transactions described above may have on the price of our common stock.
These transactions may be effected on The Nasdaq Capital Market, in the over-the-counter market or otherwise and, if commenced, may be
discontinued at any time.
Regulation
M
In
connection with this offering, the underwriter also may engage in passive market making transactions in our common stock in accordance
with Regulation M during a period before the commencement of offers or sales of shares of our common stock in this offering and extending
through the completion of the distribution. In general, a passive market maker must display its bid at a price not in excess of the highest
independent bid for that security. However, if all independent bids are lowered below the passive market maker’s bid that bid must
then be lowered when specific purchase limits are exceeded. Passive market making may stabilize the market price of the securities at
a level above that which might otherwise prevail in the open market and, if commenced, may be discontinued at any time.
Electronic
Distribution
A
prospectus in electronic format may be made available on the websites maintained by the underwriter, if any, participating in this offering
and the underwriter may distribute prospectuses electronically. Other than the prospectus in electronic format, the information on these
websites is not part of this prospectus or the registration statement of which this prospectus form a part, has not been approved or
endorsed by us or the underwriter, and should not be relied upon by investors.
Other
Relationships
From
time to time, the underwriter has provided and may provide in the future, various advisory, investment and commercial banking and other
services to us in the ordinary course of business, for which they have received and may continue to receive customary fees and discounts
and commissions. However, except as disclosed in this prospectus supplement, we have no present arrangements with the underwriter for
any further services.
H.C.
Wainwright & Co., LLC acted as our exclusive placement agent in connection with our registered direct offering we consummated in
March 2020, as our exclusive sales agent in connection with an at-the-market offering facility in June 2020, and as our underwriter in
August 2020, in each case for which it received compensation.
Transfer
Agent
The
transfer agent of our common stock is Equity Stock Transfer. Their address is 237 West 37th Street,
Suite 602, New York, NY 10018.
Nasdaq
Capital Market Listing
Our
common stock is listed on The Nasdaq Capital Market under the symbol “COCP”.
DIVIDEND
POLICY
We
have never declared or paid cash dividends on our capital stock. We currently intend to retain our future earnings, if any, for use in
our business and therefore do not anticipate paying cash dividends in the foreseeable future. Payment of future dividends, if any, will
be at the discretion of our Board after taking into account various factors, including our financial condition, operating results, current
and anticipated cash needs and plans for expansion.
LEGAL
MATTERS
Nason,
Yeager, Gerson, Harris & Fumero, P.A., Palm Beach Gardens, Florida, will pass upon certain legal matters relating to this offering.
Ellenoff Grossman & Schole LLP, New York, New York, is acting as counsel to the underwriter in connection with certain legal matters
relating to this offering.
EXPERTS
The
consolidated financial statements as of December 31, 2020 and 2019 and for the years then ended incorporated by reference in this prospectus
supplement have been so incorporated by reference in reliance on the reports of Weinberg & Company, our independent registered public
accounting firm, given on the authority of said firm as experts in auditing and accounting.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains an internet website
that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC,
including Cocrystal at www.sec.gov. You may also access our SEC reports and proxy statements free of charge at our website, www.cocrystalpharma.com.
The information contained in, or that can be accessed through, our website is not part of this prospectus supplement.
This
prospectus supplement and the accompanying prospectus are part of the registration statement on Form S-3 filed with the SEC under the
Securities Act for the common stock offered by this prospectus supplement. This prospectus supplement does not contain all of the information
set forth in the registration statement, certain parts of which have been omitted in accordance with the rules and regulations of the
SEC. For further information, reference is made to the registration statement and its exhibits. Whenever we make references in this prospectus
supplement or the accompanying prospectus to any of our contracts, agreements or other documents, the references are not necessarily
complete and you should refer to the exhibits attached to the registration statement for the copies of the actual contract, agreement
or other document.
DOCUMENTS
INCORPORATED BY REFERENCE
The
SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important information to
you by referring you to another document that we have filed separately with the SEC. Any information that we incorporate by reference
is considered part of this prospectus supplement. We hereby incorporate by reference the following information or documents into this
prospectus supplement and the accompanying prospectus:
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Our
Annual Report on Form 10-K for the year ended December 31, 2020;
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Our
current report on Form 8-K filed on March 9, 2021 (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K
and exhibits that are related to such item); and
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The
description of our common stock contained in our Registration Statement on Form 8-A (File No. 001-38418), filed under Section 12(b)
of the Exchange Act on March 9, 2018, including any subsequent amendment or report filed for the purpose of amending such description.
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Any
information in any of the foregoing documents will automatically be deemed to be modified or superseded to the extent that information
in this prospectus supplement or the accompanying prospectus or in a later filed document that is incorporated or deemed to be incorporated
herein by reference modifies or replaces such information.
We
also incorporate by reference any future filings (excluding information furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits
filed on such form that are related to such items) made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
until we sell all of the securities offered by this prospectus supplement. Information in such future filings updates and supplements
the information provided in this prospectus supplement. Any statements in any such future filings will automatically be deemed to modify
and supersede any information in any document we previously filed with the SEC that is incorporated or deemed to be incorporated herein
by reference to the extent that statements in the later filed document modify or replace such earlier statements.
Upon
written or oral request, we will provide to you, without charge, a copy of any or all of the documents that are incorporated by reference
into this prospectus supplement and the accompanying prospectus but not delivered with the prospectus, including exhibits which are specifically
incorporated by reference into such documents. Requests should be directed to:
Cocrystal
Pharma, Inc.
19805
North Creek Parkway
Bothell,
Washington 98011
Telephone
number: (786) 459-1831
PROSPECTUS
$150,000,000
Cocrystal
Pharma, Inc.
Common
Stock
Preferred
Stock
Warrants
Units
Cocrystal
Pharma, Inc. intends to offer and sell from time to time the securities described in this prospectus. The total offering price of the
securities described in this prospectus will not exceed a total of $150,000,000.
This
prospectus describes some of the general terms that apply to the securities. We will provide specific terms of any securities we may
offer in supplements to this prospectus. You should read this prospectus and any applicable prospectus supplement carefully before you
invest. We also may authorize one or more free writing prospectuses to be provided to you in connection with the offering. The prospectus
supplement and any free writing prospectus also may add, update or change information contained or incorporated in this prospectus.
We
may offer and sell these securities to or through one or more underwriters, brokers or agents, or directly to purchasers on a continuous
or delayed basis. The prospectus supplement for each offering of securities will describe the plan of distribution for that offering.
For general information about the distribution of securities offered, see “Plan of Distribution” in this prospectus. The
prospectus supplement also will set forth the price to the public of the securities and the net proceeds that we expect to receive from
the sale of such securities.
Our
common stock is traded on The Nasdaq Capital Market under the symbol “COCP.” On April 16, 2020, the last reported sales price
of our common stock on the Nasdaq Capital Market was $0.90 per share and our public float consisted of 36,909,583 shares of common stock.
Investing
in our securities involves risks. You should read carefully and consider “Risk Factors” included in our most recent Annual
Report on Form 10-K and on page 2 of this prospectus and in the applicable prospectus supplement before investing in our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
whether this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is May 13, 2020
TABLE
OF CONTENTS
You
should rely only on information contained in this prospectus. We have not authorized anyone to provide you with information that is different
from that contained in this prospectus. We are not offering to sell or seeking offers to buy shares of common stock or other securities
in jurisdictions where offers and sales are not permitted. The information contained in this prospectus is accurate only as of the date
of this prospectus, regardless of the time of delivery of this prospectus or of any sale of our common stock or other securities. We
are responsible for updating this prospectus to ensure that all material information is included and will update this prospectus to the
extent required by law.
PROSPECTUS
SUMMARY
This
summary only highlights the more detailed information appearing elsewhere in this prospectus or incorporated by reference in this prospectus.
It may not contain all of the information that is important to you. You should carefully read the entire prospectus and the documents
incorporated by reference in this prospectus before deciding whether to invest in our securities. Unless otherwise indicated or the context
requires otherwise, in this prospectus and any prospectus supplement hereto references to “Cocrystal,” “we,”
“us,” and “our” refer to Cocrystal Pharma, Inc. and its consolidated subsidiaries.
About
This Prospectus
This
prospectus is part of a “shelf” registration statement that we have filed with the Securities and Exchange Commission (the
“Commission”). By using a shelf registration statement, we may sell, at any time and from time to time, in one or more offerings,
any combination of the securities described in this prospectus. The exhibits to our registration statement contain the full text of certain
contracts and other important documents we have summarized in this prospectus. Since these summaries may not contain all the information
that you may find important in deciding whether to purchase the securities we offer, you should review the full text of these documents.
The registration statement and the exhibits can be obtained from the Commission as indicated under the section entitled “Incorporation
of Certain Information by Reference.”
This
prospectus only provides you with a general description of the securities we may offer. Each time we sell securities, we will provide
a prospectus supplement that contains specific information about the terms of those securities. The prospectus supplement also may add,
update or change information contained in this prospectus. If there is an inconsistency between the information in this prospectus and
any prospectus supplement, you should rely on the information in the prospectus supplement. You should read carefully both this prospectus
and any prospectus supplement together with the additional information described below under the section entitled “Incorporation
of Certain Information by Reference.”
We
are not making an offer of these securities in any jurisdiction where the offer is not permitted. You should not assume that the information
in this prospectus or a prospectus supplement is accurate as of any date other than the date on the front of the document.
Our
Company
Cocrystal
Pharma, Inc. is a biotechnology company seeking to discover and develop novel antiviral therapeutics as treatments for serious and/or
chronic viral diseases. We employ unique structure-based technologies and Nobel Prize winning expertise to create first- and best-in-class
antiviral drugs. These technologies are designed to efficiently deliver small molecule therapeutics that are safe, effective and convenient
to administer. We have identified promising preclinical and early clinical stage antiviral compounds for unmet medical needs including
influenza, Hepatitis C virus, coronavirus, and norovirus infections.
Corporate
Information
Our
principal executive offices are located at 19805 N. Creek Parkway, Bothell, WA 98011 and our telephone number is (786) 459-1831. Our
Internet website address is www.cocrystalpharma.com. The information on our website is not incorporated into this prospectus.
CAUTIONARY
NOTE REGARDING FORWARD LOOKING STATEMENTS
This
prospectus including the documents incorporated by reference contains forward-looking statements. All statements other than statements
of historical facts, including statements regarding our future financial position, liquidity, business strategy and plans and objectives
of management for future operations, are forward-looking statements. The words “believe,” “may,” “estimate,”
“continue,” “anticipate,” “intend,” “should,” “plan,” “could,”
“target,” “potential,” “is likely,” “will,” “expect” and similar expressions,
as they relate to us, are intended to identify forward-looking statements. We have based these forward-looking statements largely on
our current expectations and projections about future events and financial trends that we believe may affect our financial condition,
results of operations, business strategy and financial needs.
The
results anticipated by any or all of these forward-looking statements might not occur. Important factors, uncertainties and risks that
may cause actual results to differ materially from these forward-looking statements are contained in the risk factors that follow and
elsewhere in this prospectus and the incorporated documents. We undertake no obligation to publicly update or revise any forward-looking
statements, whether as the result of new information, future events or otherwise. For more information regarding some of the ongoing
risks and uncertainties of our business, see the risk factors that follow and or that are disclosed in our incorporated documents.
RISK
FACTORS
Investing
in our securities involves risks. Before purchasing the securities offered by this prospectus you should consider carefully the risk
factors incorporated by reference in this prospectus from our Annual Report on Form 10-K for the year ended December 31, 2019 filed with
the Commission on March 27, 2020, as well as the risks, uncertainties and additional information (i) set forth in our reports on Forms
10-K, 10-Q and 8-K and in the other documents incorporated by reference in this prospectus that we file with the Commission after the
date of this prospectus and which are deemed incorporated by reference in this prospectus, and (ii) the information contained in any
applicable prospectus supplement. For a description of these reports and documents, and information about where you can find them, see
“Incorporation of Certain Information By Reference.” The risks and uncertainties we discuss in this prospectus and in the
documents incorporated by reference in this prospectus are those that we currently believe may materially affect our company. Additional
risks not presently known, or currently deemed immaterial, also could materially and adversely affect our financial condition, results
of operations, business and prospects.
USE
OF PROCEEDS
Unless
we specify otherwise in an accompanying prospectus supplement, we intend to use the net proceeds from the sale of the securities by us
to provide additional funds for working capital and other general corporate purposes. Any specific allocation of the net proceeds of
an offering of securities will be determined at the time of such offering and will be described in the accompanying supplement to this
prospectus.
DESCRIPTION
OF CAPITAL STOCK
We
are authorized to issue 100,000,000 shares of common stock, par value $0.001 per share, and 5,000,000 shares of preferred stock, par
value $0.001 per share.
Common
Stock
We
are authorized to issue 100,000,000 shares of common stock, par value $0.001 per share. The holders of common stock are entitled to one
vote per share on all matters submitted to a vote of shareholders, including the election of directors. There is no cumulative voting
in the election of directors. In the event of our liquidation or dissolution, holders of common stock are entitled to share ratably in
all assets remaining after payment of liabilities and the liquidation preferences of any outstanding shares of preferred stock. Holders
of common stock have no preemptive rights and have no right to convert their common stock into any other securities and there are no
redemption provisions applicable to our common stock.
The
holders of common stock are entitled to any dividends that may be declared by the Board of Directors out of funds legally available for
payment of dividends subject to the prior rights of holders of preferred stock and any contractual restrictions we have against the payment
of dividends on common stock. We have not paid dividends on our common stock since inception and do not plan to pay dividends on our
common stock in the foreseeable future.
As
of April 1, 2020, we had 52,140,699 shares of common stock outstanding. In addition, as of that date, there were 1,084,229 shares underlying
our outstanding warrants and stock options.
Preferred
Stock
We
are authorized to issue 5,000,000 shares of “blank check” preferred stock with designations, rights and preferences as may
be determined from time to time by our Board of Directors. As the date of this prospectus, we had no shares of preferred stock issued
and outstanding.
Preferred
stock is available for possible future financings or acquisitions and for general corporate purposes without further authorization of
our shareholders unless such authorization is required by applicable law, or the rules of any securities exchange or market on which
our stock is then listed or admitted or trading.
Our
Board of Directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting
power or other rights of the holders of common stock. The issuance of preferred stock, while providing flexibility in connection with
possible acquisitions and other corporate purposes could, under some circumstances, have the effect of delaying, deferring or preventing
a change in control of the Company. For a description of how future issuances of our preferred stock could affect the rights of our shareholders,
see “Certain Provisions of Delaware Law and of Our Charter and Bylaws - Issuance of “blank check” Preferred Stock,”
below.
A
prospectus supplement relating to any series of preferred stock being offered will include specific terms relating to the offering. Such
prospectus supplement will include:
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title and stated or par value of the preferred stock;
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the
number of shares of the preferred stock offered, the liquidation preference per share and the offering price of the preferred stock;
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the
dividend rate(s), period(s) and/or payment date(s) or method(s) of calculation thereof applicable to the preferred stock;
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whether
dividends shall be cumulative or non-cumulative and, if cumulative, the date from which dividends on the preferred stock shall accumulate;
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the
provisions for a sinking fund, if any, for the preferred stock;
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any
voting rights of the preferred stock;
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the
provisions for redemption, if applicable, of the preferred stock;
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any
listing of the preferred stock on any securities exchange;
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the
terms and conditions, if applicable, upon which the preferred stock will be convertible into our common stock, including the conversion
price or the manner of calculating the conversion price and conversion period;
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if
appropriate, a discussion of federal income tax consequences applicable to the preferred stock; and
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any
other specific terms, preferences, rights, limitations or restrictions of the preferred stock.
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DESCRIPTION
OF WARRANTS
We
may issue warrants for the purchase of common stock. Warrants may be issued independently or together with other securities and may be
attached to or separate from any offered securities. Each series of warrants will be issued under a separate warrant agreement. The following
outlines some of the general terms and provisions of the warrants that we may issue from time to time. Additional terms of the warrants
and the applicable warrant agreement will be set forth in the applicable prospectus supplement.
The
following descriptions, and any description of the warrants included in a prospectus supplement, may not be complete and is subject to
and qualified in its entirety by reference to the terms and provisions of the applicable warrant agreement, which we will file with the
Commission in connection with any offering of warrants.
General
The
prospectus supplement relating to a particular issue of warrants will describe the terms of the warrants, including the following:
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title of the warrants;
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the
offering price for the warrants, if any;
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the
aggregate number of the warrants;
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the
terms of the security that may be purchased upon exercise of the warrants;
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if
applicable, the designation and terms of the securities that the warrants are issued with and the number of warrants issued with
each security;
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if
applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable;
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the
dates on which the right to exercise the warrants commence and expire;
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if
applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
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if
applicable, a discussion of material United States federal income tax considerations;
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anti-dilution
provisions of the warrants, if any;
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redemption
or call provisions, if any, applicable to the warrants; and
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any
additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
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Exercise
of warrants
Each
warrant will entitle the holder of the warrant to purchase the securities that we specify in the applicable prospectus supplement at
the exercise price that we describe in the applicable prospectus supplement. Holders may exercise warrants at any time up to the close
of business on the expiration date set forth in the applicable prospectus supplement. After the close of business on the expiration date,
unexercised warrants will be void. Holders may exercise warrants as set forth in the prospectus supplement relating to the warrants being
offered. Until a holder exercises the warrants to purchase any securities underlying the warrants, the holder will not have any rights
as a holder of the underlying securities by virtue of ownership of warrants.
DESCRIPTION
OF UNITS
As
specified in any applicable prospectus supplement, we may issue units consisting of one or more warrants, debt securities, shares of
preferred stock, shares of common stock or any combination of such securities.
Transfer
Agent
We
have appointed Equity Stock Transfer as our transfer agent. Their contact information is: 237 West 37th Street, Suite 602, New York,
New York 10018, phone number (212) 575-5757.
CERTAIN
PROVISIONS OF DELAWARE LAW AND OF OUR CHARTER AND BYLAWS
Anti-takeover
Provisions
In
general, Section 203 of the Delaware General Corporation Law (the “DGCL”) prohibits a Delaware corporation with a class of
voting stock listed on a national securities exchange or held of record by 2,000 or more shareholders from engaging in a “business
combination” with an “interested shareholder” for a three-year period following the time that this shareholder becomes
an interested shareholder, unless the business combination is approved in a prescribed manner. A “business combination” includes,
among other things, a merger, asset or stock sale or other transaction resulting in a financial benefit to the interested shareholder.
An “interested shareholder” is a person who, together with affiliates and associates, owns, or did own within three years
prior to the determination of interested shareholder status, 15% or more of the corporation’s voting stock. Under Section 203,
a business combination between a corporation and an interested shareholder is prohibited unless it satisfies one of the following conditions:
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before
the shareholder became interested, the board of directors approved either the business combination or the transaction which resulted
in the shareholder becoming an interested shareholder;
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upon
consummation of the transaction which resulted in the shareholder becoming an interested shareholder, the interested shareholder
owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes
of determining the voting stock outstanding, shares owned by persons who are directors and also officers, and employee stock plans,
in some instances; or
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at
or after the time the shareholder became interested, the business combination was approved by the board of directors of the corporation
and authorized at an annual or special meeting of the shareholders by the affirmative vote of at least two-thirds of the outstanding
voting stock which is not owned by the interested shareholder.
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The
DGCL permits a corporation to opt out of, or choose not to be governed by, its anti-takeover statute by expressly stating so in its original
certificate of incorporation (or subsequent amendment to its certificate of incorporation or bylaws approved by its shareholders). Our
Certificate of Incorporation does not contain a provision expressly opting out of the application of Section 203 of the DGCL; therefore
we are subject to the anti-takeover statute.
Issuance
of “Blank Check” Preferred Stock
Our
Certificate of Incorporation authorizes the issuance of up to 5,000,000 shares of “blank check” preferred stock with designations,
rights and preferences as may be determined from time to time by our Board of Directors. Our Board of Directors is empowered, without
shareholder approval, to issue a series of preferred stock with dividend, liquidation, conversion, voting or other rights which could
dilute the interest of, or impair the voting power of, our common shareholders. The issuance of a series of preferred stock could be
used as a method of discouraging, delaying or preventing a change in control. For example, it would be possible for our Board of Directors
to issue preferred stock with voting or other rights or preferences that could impede the success of any attempt to effect a change in
control of our Company.
Our
Bylaws also allow our Board of Directors to fix the number of directors. Our shareholders do not have cumulative voting in the election
of directors.
Special
Shareholder Meetings and Action by Written Consent
Under
our Bylaws, special meetings of the shareholders shall be held when directed by (i) the Board of
Directors, or (ii) when requested in writing by the holders of not less than 20 percent of all the shares entitled to vote at the meeting.
Our Bylaws do not permit meetings of shareholders to be called by any other person. This could have the effect of delaying or preventing
unsolicited takeovers and changes in control or changes in our management.
Indemnification
of Directors and Officers.
Section
145(a) of the DGCL, which Cocrystal is subject to, provides that a corporation may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. Section
145(b) of the DGCL provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason
of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view
of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper. To the extent that a present or former director or officer of a corporation has been
successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 145(a) and (b) of the DGCL,
or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees)
actually and reasonably incurred by such person in connection therewith.
Any
indemnification under Section 145(a) and (b) of the DGCL (unless ordered by a court) shall be made by Cocrystal only as authorized in
the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in
the circumstances because the person has met the applicable standard of conduct set forth in Section 145(a) and (b). Such determination
shall be made, with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors
designated by majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors
so direct, by independent legal counsel in a written opinion, or (4) by the shareholders. Expenses (including attorneys’ fees)
incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be
paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified
by the corporation as authorized in this section. Such expenses (including attorneys’ fees) incurred by former directors and officers
or other employees and agents may be so paid upon such terms and conditions, if any, as the corporation deems appropriate. The indemnification
and advancement of expenses provided by, or granted pursuant to, Section 145 shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding
such office. We have entered into Indemnification Agreements with each director and executive officer.
Section
145 of the DGCL also empowers a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would
have the power to indemnify such person against such liability under Section 145.
Article
11 of Cocrystal’s Certificate of Incorporation provides that directors and officers of the Company, and any persons serving at
the request of the Company as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust
or other enterprise, including service with respect to employee benefit plans, shall be indemnified to the fullest extent permitted by
the DGCL.
Cocrystal
carries directors and officers liability coverages designed to insure its officers and directors and those of its subsidiaries against
certain liabilities incurred by them in the performance of their duties, and also providing for reimbursement in certain cases to Cocrystal
and its subsidiaries for sums paid to directors and officers as indemnification for similar liability.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 (the “Securities Act”) may be permitted to our
directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, Cocrystal 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.
Governing
Law and Forum Selection
Article
12 of Cocrystal’s Certificate of Incorporation provides that the internal affairs of the Company shall be governed by and interpreted
under the laws of the State of Delaware, excluding its conflict of laws principles, and that unless the Company consents in writing to
the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any
derivative action or proceeding brought on behalf of the Company, (ii) any action asserting a claim of breach of a fiduciary duty owed
by any director or officer (or affiliate of any of the foregoing) of the Company to the Company or the Company’s shareholders,
(iii) any action asserting a claim arising pursuant to any provision of the DGCL or the Company’s Certificate of Incorporation
or Bylaws, or (iv) any other action asserting a claim arising under, in connection with, and governed by the internal affairs doctrine.
Article
12 of the Company’s Certificate of Incorporation has the effect of requiring parties bringing actions concerning the Company’s
internal affairs, including actions brought by the Company’s shareholders, to litigate such matters in the Delaware Court of Chancery,
to the extent such exclusive jurisdiction is permitted under applicable law. As such, shareholders of the Company seeking to bring a
claim regarding the internal affairs of the Company may be subject to increased costs associated with litigating in Delaware as opposed
to their home state or other forum, precluded from bringing such a claim in a forum they otherwise consider to be more favorable, and
discouraged from bringing such claims as a result of the foregoing or other factors related to forum selection.
Article
12 of the Company’s Certificate of Incorporation does not provide the Delaware Court of Chancery with jurisdiction over matters
for which federal courts have exclusive jurisdiction, such as suits brought to enforce any duty or liability created by the Exchange
Act or the rules and regulations promulgated thereunder. Based on a case brought against Facebook, Inc. and its directors in a federal
district court in California, the Company believes that Article 12 will effect a claim made under the DGCL that is combined with a claim
made under the Exchange Act by causing the DGCL claim and the Exchange Act claim to be separated between the courts having jurisdiction
over the respective claims. However, because the case in question was decided by a federal district court, its ruling is not binding
on any other courts, and we cannot assure you that other courts will rule the same way.
Additionally,
Section 22 of the Securities Act provides that state and federal courts have concurrent jurisdiction over claims to enforce any duty
or liability created by the Securities Act or the rules and regulations promulgated thereunder. As such, there is some uncertainty as
to the effect that Article 12 of our Certificate of Incorporation would have when a claim under the DGCL is combined with a claim under
the Securities Act, and in such a case Article 12 may cause the DGCL claim and the Securities Act claim to be separated between the courts
having jurisdiction over the respective claims, or alternatively it may cause the DGCL claim and the Securities Act claim to be consolidated
in the Delaware Court of Chancery.
Because
Article 12 of our Certificate of Incorporation may have the effect of severing certain causes of action between federal and state courts,
shareholders seeking to assert such claims face the risk of increased litigation expenses arising from litigating multiple related claims
in two separate courts, and shareholders may be discouraged from bringing all or some of these claims as a result. Notwithstanding the
foregoing, the Company’s shareholders will not be deemed to have waived the Company’s compliance obligations with respect
to the federal securities laws, including the Exchange Act and the Securities Act, or the rules and regulations promulgated thereunder.
PLAN
OF DISTRIBUTION
We
may sell the securities offered by this prospectus from time to time in one or more transactions, including without limitation:
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through
underwriters or brokers;
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directly
to purchasers;
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in
a rights offering;
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in
“at-the-market” offerings, within the meaning of Rule 415(a)(4) of the Securities Act to or through a market maker or
into an existing trading market on an exchange or otherwise;
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through
agents;
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in
block trades;
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through
a combination of any of these methods; or
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through
any other method permitted by applicable law and described in a prospectus supplement.
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In
addition, we may issue the securities as a dividend or distribution to our existing stockholders or other security holders.
The
prospectus supplement with respect to any offering of securities will include the following information:
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the
terms of the offering;
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the
names of any underwriters or agents;
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the
name or names of any managing underwriter or underwriters;
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the
purchase price or initial public offering price of the securities;
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the
net proceeds from the sale of the securities;
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any
delayed delivery arrangements;
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any
underwriting discounts, commissions and other items constituting underwriters’ compensation;
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any
discounts or concessions allowed or re-allowed or paid to brokers;
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any
commissions paid to agents; and
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any
securities exchange on which the securities may be listed.
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Sale
through Underwriters or Brokers
If
underwriters are used in the sale, the underwriters may resell the securities from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Underwriters may offer
securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or
more firms acting as underwriters. Unless we inform you otherwise in the applicable prospectus supplement, the obligations of the underwriters
to purchase the securities will be subject to certain conditions, and the underwriters will be obligated to purchase all of the offered
securities if they purchase any of them. The underwriters may change from time to time any initial public offering price and any discounts
or concessions allowed or re-allowed or paid to brokers.
We
will describe the name or names of any underwriters, brokers or agents and the purchase price of the securities in a prospectus supplement
relating to the securities.
In
connection with the sale of the securities, underwriters may receive compensation from us or from purchasers of the securities, for whom
they may act as agents, in the form of discounts, concessions or commissions. Underwriters may sell the securities to or through brokers,
and these brokers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agents, which is not expected to exceed that customary in the types of transactions involved.
Underwriters, brokers and agents that participate in the distribution of the securities may be deemed to be underwriters, and any discounts
or commissions they receive from us, and any profit on the resale of the securities they realize may be deemed to be underwriting discounts
and commissions, under the Securities Act. The prospectus supplement will identify any underwriter or agent and will describe any compensation
they receive from us.
Underwriters
could make sales in privately negotiated transactions and/or any other method permitted by law, including sales deemed to be an “at-the-market”
offering, sales made directly on The Nasdaq Capital Market, the existing trading market for our shares of common stock, or sales made
to or through a market maker other than on The Nasdaq Capital Market. The name of any such underwriter or agent involved in the offer
and sale of our securities, the amounts underwritten, and the nature of its obligations to take our securities will be described in the
applicable prospectus supplement.
Unless
otherwise specified in the prospectus supplement, each series of the securities will be a new issue with no established trading market,
other than our shares of common stock, which are currently traded on The Nasdaq Capital Market. It is possible that one or more underwriters
may make a market in a series of the securities, but underwriters will not be obligated to do so and may discontinue any market making
at any time without notice. Therefore, we can give no assurance about the liquidity of the trading market for any of the securities.
Under
agreements we may enter into, we may indemnify underwriters, brokers, and agents who participate in the distribution of the securities
against certain liabilities, including liabilities under the Securities Act, or contribute with respect to payments that the underwriters,
brokers or agents may be required to make.
Any
compensation we pay underwriters or brokers will be subject to the guidelines of the Financial Industry Regulatory Authority, Inc. We
will disclose the compensation in any applicable prospectus supplement or pricing supplement, as the case may be.
To
facilitate the offering of securities, certain persons participating in the offering may engage in transactions that stabilize,
maintain, or otherwise affect the price of the securities. This may include short sales of the securities, which involve the sale
by persons participating in the offering of more securities than we sold to them. In these circumstances, these persons would
cover such short positions by making purchases in the open market. In addition, these persons may stabilize or maintain
the price of the securities by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling
concessions allowed to brokers participating in the offering may be reclaimed if securities sold by them are repurchased in connection
with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities
at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
From
time to time, we may engage in transactions with these underwriters, brokers, and agents in the ordinary course of business.
Direct
Sales and Sales through Agents
We
may sell the securities directly. In this case, no underwriters or agents would be involved. We also may sell the securities through
agents designated by us from time to time. In the applicable prospectus supplement, we will name any agent involved in the offer or sale
of the offered securities, and we will describe any commissions payable to the agent. Unless we inform you otherwise in the applicable
prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We
may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the
Securities Act with respect to any sale of those securities. We will describe the terms of any sales of these securities in the applicable
prospectus supplement.
Remarketing
Arrangements
Securities
also may be offered and sold, if so indicated in the applicable prospectus supplement, in connection with a remarketing upon their purchase,
in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms, acting as principals
for their own accounts or as agents for us. Any remarketing firm will be identified and the terms of its agreements, if any, with us
and its compensation will be described in the applicable prospectus supplement.
Delayed
Delivery Contracts
If
we so indicate in the applicable prospectus supplement, we may authorize agents, underwriters or brokers to solicit offers from certain
types of institutions to purchase securities from us at the public offering price under delayed delivery contracts. These contracts would
provide for payment and delivery on a specified date in the future. The contracts would be subject only to those conditions described
in the applicable prospectus supplement. The applicable prospectus supplement will describe the commission payable for solicitation of
those contracts.
General
Information
We
may have agreements with the underwriters, brokers, agents and remarketing firms to indemnify them against certain civil liabilities,
including liabilities under the Securities Act, or to contribute with respect to payments that the underwriters, brokers, agents or remarketing
firms may be required to make. Underwriters, brokers, agents and remarketing firms may be customers of, engage in transactions with or
perform services for us in the ordinary course of their businesses.
LEGAL
MATTERS
The
validity of the securities offered hereby will be passed upon for us by Nason, Yeager, Gerson, Harris & Fumero, P.A., Palm Beach
Gardens, Florida.
EXPERTS
The
consolidated financial statements as of December 31, 2019 and 2018 incorporated by reference in this prospectus have been so incorporated
in reliance on the report of Weinberg & Company.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
documents listed below are incorporated by reference into this prospectus:
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Our
annual report on Form 10-K for the year ended December 31, 2019 filed on March 27, 2020; and
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Our
current report on Form 8-K filed on January 29, 2020, January 31, 2020, February 24, 2020, March 4, 2020, March 13, 2020, March 30,
2020, April 20, 2020 and April 22, 2020 (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits
that are related to such item); and
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The
description of our common stock contained in our Registration Statement on Form 8-A (File No. 001-38418), filed under Section 12(b)
of the Securities Exchange Act of 1934 (the “Exchange Act”) on March 9, 2018, including any subsequent amendment or report
filed for the purpose of amending such description; and
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All
documents subsequently filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering,
other than information furnished pursuant to Items 2.02 and 7.01 of Form 8-K and any related exhibits, shall be deemed to be incorporated
by reference into the prospectus.
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Any
statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus is modified or superseded
for purposes of the prospectus to the extent that a statement contained in this prospectus or in any other subsequently filed document
that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement.
We
will provide to each person, including any beneficial owner, to whom a prospectus is delivered, a copy of any or all of the information
that has been incorporated by reference in this prospectus but not delivered with the prospectus.
We
are an Exchange Act reporting company and are required to file periodic reports on Form 10-K and 10-Q and current reports on Form 8-K.
The Commission maintains an internet website that contains reports, proxy and information statements, and other information regarding
issuers that file electronically with the Commission, including Cocrystal at www.sec.gov. You may also access our Exchange Act reports
and proxy statements free of charge at our website, www.cocrystalpharma.com.
You
may obtain a copy of any of our filings, at no cost, by contacting us at:
19805
N. Creek Parkway
Bothell,
WA 98011
(786)
459-1831
26,000,000 Shares
Common
Stock
PROSPECTUS
SUPPLEMENT
H.C.
Wainwright & Co.
May
4, 2021
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