Cocrystal Pharma, Inc. — Regulatory Filings 2018

May 11, 2018

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

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Form S-8

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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

Cocrystal Pharma, Inc.

(Exact name of registrant as specified in its charter)

Delaware	35-2528215
(State
or other jurisdiction of	(I.R.S.
Employer
incorporation
or organization)	Identification
No.)

| 1860
Montreal Road, Tucker GA 30084 |
| --- |
| (Address
of Principal Executive Offices)(Zip Code) |

| Cocrystal
Pharma, Inc. 2015 Equity Incentive
Plan |
| --- |
| (Full
title of the plan) |

| James
Martin 1860
Montreal Road Tucker,
Georgia 30084 |
| --- |
| (Name
and address of agent for service) |

( 678)-892-8800
(Telephone
number, including area code, of agent for service)

Copy to:

Michael Harris, Esq.

Nason, Yeager, Gerson, White & Lioce, P.A.

3001 PGA Boulevard, Suite 305

Palm Beach Gardens, Florida 33410

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

| Large
accelerated filer [ ] | Accelerated
filer [X] |
| --- | --- |
| Non-accelerated
filer [ ] (Do not check if a smaller reporting company) | Smaller
reporting company [ ] |
| | Emerging
growth company [ ] |

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.

CALCULATION OF REGISTRATION FEE

Title of each class of securities to be registered			Proposed maximum offering price per share		Proposed maximum aggregate offering price	Amount of registration fee
Common Stock, par value $0.001 per share:
2015 Equity Incentive Plan (issued)	65,000	(2)	$ 35.10	(3)	$ 2,281,500	$ 284.05
2015 Equity Incentive Plan (available)	1,601,667	(4)	$ 1.83	(5)	$ 2,931,051	$ 364.92
Total	1,666,667				$ 5,212,551	$ 648.97

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(1) This Registration Statement on Form S-8 (the “Registration Statement”) also covers an indeterminate number of additional shares of Common Stock that may become issuable under the Cocrystal Pharma, Inc. 2015 Equity Incentive Plan (the “2015 Plan”) as a result of stock splits, stock dividends and other terms pursuant to Rule 416 under the Securities Act of 1933 (the “Securities Act”).

(2) Represents shares of Common Stock subject to stock options under the 2015 Plan that are outstanding as of the date this Registration Statement is being filed.

(3) Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of the weighted-average exercise price of outstanding stock awards granted pursuant to the 2015 Plan.

(4) Represents shares of Common Stock, available for grants under the 2015 Plan as of the date this registration statement is being filed.

(5) Estimated solely for the purpose of computing the registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act based on the average of the high and low prices of the registrant’s Common Stock as quoted on Nasdaq on May 7, 2018.

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PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

ITEM 1. PLAN INFORMATION

This Registration Statement relates to 1,666,667 shares of Common Stock issuable to employees, consultants, officers, and directors of Cocrystal Pharma, Inc. (the “Registrant”) and its subsidiaries under the 2015 Plan.

We will send or give the documents containing the information specified in this Part I of Form S-8 to employees as specified by the Securities and Exchange Commission (the “SEC”) pursuant to Rule 428(b)(1) under the Securities Act.

ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION

We will furnish without charge to each person to whom the prospectus is delivered, upon the oral or written request of such person, a copy of any and all of the documents incorporated by reference (other than exhibits to such documents). Requests should be directed to the attention of Cocrystal Pharma, Inc., 1860 Montreal Road, Tucker GA, 30084 Attention: Corporate Secretary or (678)-892-8800.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.

The documents listed below are incorporated by reference in the registration statement:

| (a) | Our
Annual Report on Form 10-K for the year ended December 31, 2017, filed on March 21, 2018,
as amended by Amendment No. 1 on Form 10-K/A filed on April 30, 2018; |
| --- | --- |
| (b) | Our
Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2018, filed on
May 10, 2018; |
| (c) | Our
Current Reports on Form 8-K filed on January 24, 2018, February 6, 2018, February 14,
2018, and May 2, 2018 (other than information furnished pursuant to Items 2.02 and 7.01
of Form 8-K and any related exhibits); |
| (d) | All
other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (the “Exchange Act”), since the end of the fiscal year covered by
the Annual Report referred to in paragraph (a) above; |
| (e) | The
description of our Common Stock contained in the Registration Statement on Form 8-A filed
on March 9, 2018, including any amendments or reports filed for the purpose of updating
such description; and |
| (f) | All
documents subsequently filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act prior to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining unsold, from
the date of filing of such documents. |

ITEM 4. DESCRIPTION OF SECURITIES.

Not applicable.

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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.

Not applicable.

ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.

Our Certificate of Incorporation provides that none of our directors will be personally liable to us or our shareholders for monetary damages for breach of fiduciary duty as a director, except for liability:

| ● | For
any breach of the director’s duty of loyalty to us or our shareholders; |
| --- | --- |
| ● | For
acts or omissions not in good faith or that involve intentional misconduct or a knowing
violation of the law; |
| ● | Under
Section 174 of the Delaware General Corporation Law for the unlawful payment of dividends;
or |
| ● | For
any transaction from which the director derives an improper personal benefit. |

These provisions eliminate our rights and those of our shareholders to recover monetary damages from a director for breach of his fiduciary duty of care as a director except in the situations described above. The limitations summarized above, however, do not affect our ability or that of our shareholders to seek non-monetary remedies, such as an injunction or rescission, against a director for breach of his fiduciary duty.

Section 145 of the Delaware General Corporation Law provides a corporation with the power to indemnify any officer or director acting in his capacity as our representative who is or is threatened to be made a party to any lawsuit or other proceeding for expenses, judgment and amounts paid in settlement in connection with such lawsuit or proceeding. The indemnity provisions apply whether the action was instituted by a third party or was filed by one of our shareholders. The Delaware General Corporation Law provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of shareholders or disinterested directors or otherwise. We have provided for this indemnification in our Certificate of Incorporation because we believe that it is important to attract qualified directors and officers. We have also entered into Indemnification Agreements with our directors and officers which agreements are designed to indemnify them to the fullest extent permissible by law, subject to one limitation described in the next sentence. We have further provided in our Certificate of Incorporation that no indemnification shall be available, whether pursuant to our Certificate of Incorporation or otherwise, arising from any lawsuit or proceeding in which we assert a direct claim, as opposed to a shareholders’ derivative action, against any directors and officers. This limitation is designed to insure that if we sue a director or officer we do not have to pay for his defense.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.

Not applicable.

ITEM 8. EXHIBITS.

See Exhibit Index, which is incorporated herein by reference.

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ITEM 9. UNDERTAKINGS.

(a) The undersigned Registrant hereby undertakes:

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

i. To include any prospectus required by section 10(a)(3) of the Securities Act;

ii. To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;

iii. To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

provided, however , that paragraphs (a)(l)(i) and (a)(l)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.

| (2) | That,
for the purpose of determining any liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof. |
| --- | --- |
| (3) | To
remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering. |

| (b) | The
undersigned Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the Registrant’s annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d)
of the Exchange Act) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. |
| --- | --- |
| (c) | Insofar
as indemnification for liabilities arising under the Securities Act may be permitted
to directors, officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of the
SEC such indemnification is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection
with the securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy
as expressed in the Act and will be governed by the final adjudication of such issue. |

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tucker, State of Georgia, on May 11, 2018.

| COCRYSTAL
PHARMA, INC. | |
| --- | --- |
| By: | /s/ Gary Wilcox |
| | Gary
Wilcox Interim
Chief Executive Officer |

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the date indicated.

SIGNATURE	TITLE	DATE
/s/ Gary Wilcox	Interim Chief Executive
Officer and Vice Chairman (Principal Executive Officer)	May
11, 2018
Gary Wilcox
/s/
James Martin	Chief Financial Officer
(Principal Financial and Accounting Officer)	May
11, 2018
James Martin
/s/ Raymond F.
Schinazi	Chairman	May
11, 2018
Raymond F. Schinazi
/s/ David Block	Director	May
11, 2018
David Block
/s/ Phillip Frost	Director	May
11, 2018
Phillip Frost
/s/ Jane Hsiao	Director	May
11, 2018
Jane Hsiao
/s/ Steven Rubin	Director	May
11, 2018
Steven Rubin

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EXHIBIT INDEX

No.	Description
5.1	Legal Opinion of Nason, Yeager, Gerson, White & Lioce. P.A.
10.1	Cocrystal Pharma, Inc. 2015 Equity Incentive Plan
23.1	Consent of Nason, Yeager, Gerson, White & Lioce, P.A. (included in Exhibit 5.1)
23.2	Consent of BDO USA, LLP

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