Item
1.01 Entry into a Material Definitive Agreement.
Registered Direct Offering
On
March 9, 2020, Cocrystal Pharma, Inc. (the “Company”) entered into a securities purchase agreement (the “Purchase
Agreement”) with certain institutional investors (the “Purchasers”), pursuant to which the Company agreed to
sell and issue, in a registered direct offering, 5,037,038 of the Company’s shares of common stock, par value $0.001 (the
“Common Stock”) at a purchase price per share of $1.35 for aggregate gross proceeds to the Company of approximately
$6.8 million, before deducting fees payable to the placement agent and other estimated offering expenses payable by the Company.
The Company closed the offering on March 10, 2020.
The
Purchase Agreement contains representations, warranties, indemnification and other provisions customary for transactions of this
nature.
Pursuant
to an engagement agreement (the “Engagement Agreement”) between the Company and H.C. Wainwright & Co., LLC (“Wainwright”),
Wainwright agreed to serve as the exclusive placement agent for the Company in connection with the offering. The Company agreed
to pay Wainwright a cash placement fee equal to 6.5% of the aggregate purchase price for the shares of Common Stock sold in the
offering, a management fee of 1.0% of the aggregate purchase price for the shares of Common Stock sold in the offering, $12,900
for the clearing expenses of the placement agent, and to reimburse the placement agent for its legal fees and other accountable
expenses in the amount of $25,000.
The
shares in the registered direct offering were issued pursuant to a prospectus supplement dated as of March 10, 2020 which was
filed with the SEC, in connection with a takedown from the Company’s shelf registration statement on Form S-3 (File No.
333-220632), which became effective on October 10, 2017, and the base prospectus included therein. This Current Report on Form
8-K shall not constitute an offer to sell or the solicitation to buy nor shall there be any sale of the shares in any state or
jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities
laws of any such state or jurisdiction.
The
foregoing descriptions of the Purchase Agreement and the Engagement Agreement are not complete and are qualified in their entireties
by reference to the full text of such documents, copies of which are filed as exhibits to this Current Report on Form 8-K and
are incorporated by reference herein.
A
copy of the opinion of Nason, Yeager, Gerson, Harris & Fumero, P.A. relating to the validity of the shares of common stock
issued in the offering is attached as Exhibit 5.1 hereto.
Settlement
Agreement with Aegis Capital
On
March 12, 2020, the Company entered into a confidential Settlement Agreement with Aegis Capital Corporation (the “Settlement
Agreement”). Under the Settlement Agreement, the Company and Aegis agreed to settle the lawsuit filed by Aegis on March
5, 2020 in the United States District Court for the Southern District of New York alleging violation of the restriction on the
issuance and sale of the Company’s common stock without the prior written consent of Aegis (the “Lock-Up”) under
the Underwriting Agreement, dated October 30, 2019, by and between the Company and Aegis (the “Underwriting Agreement”).
Pursuant to the terms of the Settlement Agreement, Aegis has agreed, in addition to withdrawing its lawsuit, to terminate, subject
to certain exclusions, the provisions of the Underwriting Agreement, including the Lock-Up, and the Company has agreed, among
other things, to pay Aegis an undisclosed material amount. The Settlement Agreement also contains customary provisions regarding
mutual release of claims, subject to certain exceptions specified in the Settlement Agreement.
The
foregoing description of the Settlement Agreement and the transactions contemplated thereby does not purport to be complete and
is qualified in its entirety by reference to the full text of the Settlement Agreement, a copy of which will be filed as an exhibit
to the Company’s next periodic report.