UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 10-K
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
X
For the fiscal year ended: December 31, 2015
OR
[ ]
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from: _____________ to _____________
Commission file number: 000-55158
Cocrystal Pharma, Inc.
(Exact name of registrant as specified in its charter)
Delaware
(State or Other Jurisdiction
of Incorporation or Organization)
1860 Montreal Road, Tucker GA
(Address of Principal Executive Office)
35-2528215
(I.R.S. Employer
Identification No.)
30084
(Zip Code)
Registrant’s telephone number, including area code: (678)-892-8800
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: Common Stock, $0.01 par value
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes [ ] No [X]
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Exchange Act. Yes [ ]
No [X]
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data
File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period
that the registrant was required to submit and post such files). Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be
contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form
10-K or any amendment to this Form 10-K. [X]
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,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange
Act.
Large accelerated filer
Non-accelerated filer
[ ]
[ ]
Accelerated filer
Smaller reporting company
[ X ]
[ ]
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). [ ] Yes [X] No
The aggregate market value of the voting and non-voting common equity held by non-affiliates computed by reference to the closing price as
of the last business day of the registrant’s most recently completed second fiscal quarter, June 30, 2015, was approximately $177 million.
The number of shares outstanding of the registrant’s common stock, as of March 10, 2016, was approximately 704 million shares.
INDEX
Page
Part I.
Item 1.
Item 1A.
Item 1B.
Item 2.
Item 3.
Item 4.
Part II.
Item 5.
Item 6.
Item 7.
Item 7A.
Item 8.
Item 9.
Item 9A.
Item 9B.
Part III.
Item 10.
Item 11.
Item 12.
Item 13.
Item 14.
Part IV.
Business.
Risk Factors.
Unresolved Staff Comments.
Properties.
Legal Proceedings.
Mine Safety Disclosures.
Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity
Securities.
Selected Financial Data.
Management’s Discussion and Analysis of Financial Condition and Results of Operations.
Quantitative and Qualitative Disclosures About Market Risk.
Financial Statements and Supplementary Data.
Changes in and Disagreements With Accountants on Accounting and Financial Disclosure.
Controls and Procedures.
Other Information.
Directors, Executive Officers and Corporate Governance.
Executive Compensation.
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
Certain Relationships and Related Transactions, and Director Independence.
Principal Accounting Fees and Services.
Item 15.
Exhibits, Financial Statement Schedules.
SIGNATURES
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Forward-Looking Statements
PART I
Except for the historical information contained herein or incorporated by reference, this Annual Report and the information incorporated by
reference contains forward-looking statements that involve risks and uncertainties. These statements include projections about our
accounting and finances, plans and objectives for the future, future operating and economic performance and other statements regarding
future performance. These statements are not guarantees of future performance or events. Our actual results may differ materially from those
discussed here. Factors that could cause or contribute to differences in our actual results include those discussed in the following section, and
those discussed in Part II, Item 7 entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations”
including the Risk Factors.
Overview
Cocrystal Pharma, Inc. (“the Company”) was formerly incorporated in Nevada under the name Biozone Pharmaceuticals, Inc. On January 2,
2014, Biozone Pharmaceuticals, Inc. sold substantially all of its assets to MusclePharm Corporation (“MusclePharm”), and, on the same day,
merged with Cocrystal Discovery, Inc. in a transaction accounted for as a reverse merger. Following the merger, the Company assumed
Cocrystal Discovery, Inc.’s business plan and operations. On March 18, 2014, the Company reincorporated in Delaware under the name
Cocrystal Pharma, Inc.
Effective November 25, 2014, Cocrystal Pharma, Inc. and affiliated entities completed a series of merger transactions as a result of which
Cocrystal Pharma, Inc. merged with RFS Pharma, LLC, a Georgia limited liability company (“RFS Pharma”). We refer to the surviving entity
of this merger as “Cocrystal” or the “Company.”
Our primary business going forward is to develop novel medicines for use in the treatment of human viral diseases. Cocrystal has been
developing novel technologies and approaches to create first-in-class and best-in-class antiviral drug candidates since its initial funding in
2008. Our focus is to pursue the development and commercialization of broad-spectrum antiviral drug candidates that will transform the
treatment and prophylaxis of viral diseases in humans. By concentrating our research and development efforts on viral replication inhibitors,
we plan to leverage our infrastructure and expertise in these areas.
The Company operates in only one segment. Management uses cash flow as the primary measure to manage its business and does not segment
its business for internal reporting or decision-making.
Cocrystal Technology
We are developing antiviral therapeutics that inhibit the essential replication function of a virus, including the RNA-dependent RNA
polymerase enzyme, the helicase enzyme and the NS5A protein of HCV, and the polymerase enzymes of influenza virus and norovirus. The
polymerase inhibitors include both nucleosides (Nucs) and non-nucleosides. To discover and design these inhibitors, we use proprietary
antiviral nucleoside chemistry, and a proprietary platform comprising computation, medicinal chemistry, click chemistry, and X-ray
crystallography. We determine the structures of cocrystals containing the inhibitors bound to the enzyme or protein to guide our 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. While this approach is easy to describe, it is much more difficult to carry out. In particular, an extensive knowledge of
viruses and drug targets is required. In addition, knowledge and experience in the fields of structural biology, enzymology, and nucleoside
chemistry is required.
We developed our proprietary structure-based drug design and antiviral nucleoside chemistry under the guidance of Dr. Roger Kornberg, our
Chief Scientist and recipient of the Nobel Prize in Chemistry in 2006, and Dr. Raymond Schinazi, our Chairman and a world leader in the area
of nucleoside chemistry and the founder of several biotechnology companies focusing on antiviral drug discovery and development. Our drug
discovery process focuses on those parts of the enzymes to which drugs bind and on drug-enzyme interactions at the atomic
level. Additionally, we have developed proprietary targeted in-house chemical libraries of nucleosides, non-nucleoside inhibitors, metal-
binding inhibitors, and 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.
-1-
Cocrystal’s proprietary technology integrates several powerful and specialized techniques:
(1)
Selection of viral drug targets amenable to broad spectrum antiviral drug development and essential for viral genome replication;
(2)
Proprietary nucleoside chemistry;
(3)
(4)
(5)
(6)
(7)
Atomic resolution 3-D structure determination of drug binding pockets;
In-depth computational analysis of conservation of drug-binding pockets and critical molecular interactions between antiviral
inhibitors and amino acid residues of the target molecule’s drug-binding pocket;
Cocrystal structure determinations to inform hit identification, hit-to-lead, and lead optimization processes;
Molecular modeling and computer-guided lead discovery to support rational chemical modifications based on structure-activity
relationships, or SAR, of candidate inhibitor compounds;
Knowledge of enzymatic mechanisms to guide the design of drugs with exceptional affinity, specificity, and broad spectrum activity;
and
(8)
Platforms for rapid identification of antiviral enzyme inhibitors showing broad spectrum antiviral capability.
We have applied these techniques to develop antiviral inhibitors of three important viruses: hepatitis C, influenza, and norovirus.
Market-Driven Product Profiles
In all of our programs our goal is to develop best-in-class, oral, broad-spectrum, high-barrier-to-resistance drugs. An ideal product for an
antiviral therapy would have at least the following characteristics:
(1)
(2)
(3)
(4)
Good safety and tolerability profile;
Effective against all viral subtypes that cause disease;
High barrier to viral resistance; and
Ease of administration, for example, a pill.
Even at the discovery stage of drug development, we select compounds with these factors in mind. Furthermore, our technology is capable of
delivering therapies that satisfy all of these key factors, as detailed below.
Safety and tolerability: All drugs have side effects, also referred to as adverse effects. These usually result from a drug’s ability to bind to
human biological molecules (usually proteins). When this interaction is intentional (i.e., part of the drug’s mechanism of action), the adverse
effects are classified as on-target effects. When this interaction is unintentional (i.e., resulting from the drug’s interaction with an unintended
human molecule), the effects are called off-target effects. Our inhibitors target viral replication enzymes and a viral replication protein, which
are unique to viruses. Because the targets are viral, not human, minimal adverse effects are possible. During the discovery phase, we screen
all candidate compounds for potential cross-reactivity with human replication enzymes and eliminate those that are cross-reactive.
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Broadly effective against all viral subtypes: For any given viral disease, there are different subtypes of viruses that cause the disease. For
example, there are six different subtypes of the virus known to cause hepatitis C. These subtypes are termed “genotypes.” Each hepatitis C
virus genotype is common in some parts of the world and rare in others.
Most antiviral drugs available today are only effective against certain subtypes of viruses and less effective or not effective at all against other
subtypes. To address this problem, we are developing drug candidates that specifically target viral proteins involved in replication. Despite the
various subtypes of virus that may exist, these enzymes are essentially identical (highly conserved) among all subtypes of a given virus. By
targeting these conserved replication enzymes, our antiviral compounds are designed and tested to be effective against all virus
subtypes. Replication enzymes are conserved not only among subtypes of a given virus but among many different viruses, creating an
opportunity for the development of broad spectrum antiviral drugs.
High Barrier to Viral Resistance: Viral resistance is a major obstacle to developing effective antiviral therapies. Viruses can reproduce rapidly
and in enormous quantities. During reproduction, random variations in viral molecules, called mutations, spontaneously develop. If such a
mutation occurs in a viral molecule that is targeted by a given antiviral therapy, that therapy may no longer be effective against the mutated
virus. These mutated or “resistant” viruses can freely infect and multiply even in individuals who have received drug treatment. In some cases,
resistant virus strains may even predominate. For example, in the 2009 swine influenza pandemic, the predominant strain was resistant to the
best available therapies.
Cocrystal’s focus on viral replication proteins can overcome the obstacle of viral resistance. We identify and target critical components of viral
replication proteins that are essential for function and, therefore, sensitive to change. Any mutation in these critical components is likely to
inactivate the protein and, in turn, render the virus incapable of replicating. Because such mutations cannot propagate, the virus cannot
effectively develop resistance to the enzyme inhibitors we employ. We test the effectiveness of our compounds against potential viral
mutations and select compounds with the highest barrier to resistance.
Ease of administration: We select compounds for development that can be administered orally, preferably once daily, and in pill-form.
Therapeutic Targets
Hepatitis C: A large and increasing market with considerable unmet medical need
Hepatitis C is a viral infection of the liver that according to The World Health Organization in 2013 affects over 150 million people
worldwide. The annual number of deaths due to Hepatitis C is estimated at 350,000 globally or nearly 1,000 per day. Most patients develop
chronic infections, which can lead to fibrosis (scarring), cirrhosis, liver failure, and liver cancer. The worldwide market for hepatitis C
antiviral drugs was $13 billion in 2014 (PRNewswire September 2015) and is expected to grow to $15.5 billion by 2022 (Datamonitor
Healthcare August 2013).
Today the hepatitis C market belongs to direct-acting antiviral agents (DAAs) that have activity (are effective against all or multiple hepatitis
C virus (HCV) genotypes); have a high barrier to resistance; and are orally available.
Hepatitis C is a highly competitive and changing market. Currently, the standard treatment varies with the genotype of the hepatitis C virus
infection. Prior to late 2013, treatment included peginterferon alpha and ribavirin, along with a protease inhibitor (either telaprevir, boceprevir,
or simeprevir). In late 2013, sofosbuvir, a drug belonging to a new class of drugs called “nucleoside analogs” or “Nucs,” was approved to treat
hepatitis C. In patients infected with HCV genotype 1 (the most common HCV genotype in the US), sofosbuvir was administered in
combination with peginterferon alpha and ribavirin. In patients with HCV genotypes 2 and 3, however, sofosbuvir could be effectively
administered in combination with ribavirin, without the need for peginterferon alpha. In late 2014, new combinations of direct-acting antiviral
agents (DAAs), Harvoni(TM) (sofosbuvir/ledipasvir) and Viekira Pak(TM) (ombitasvir/paritaprevir/ritonavir, dasabuvir), were approved to
treat HCV genotype 1. In addition to these drugs, several compounds are currently in development by companies such as Janssen, Merck, and
Bristol-Myers Squibb.
We were originally pursuing drug candidates that target two distinct HCV replication enzymes – the NS5B polymerase and the NS3 helicase --
that are essential to viral replication and are highly conserved across all HCV genotypes. As a result of the merger with RFS Pharma LLC, we
now have two additional drug classes in our HCV portfolio – nucleoside/nucleotide polymerase inhibitors and NS5A inhibitors. We have a
preclinical pipeline of pan-genotypic NNI, pan-genotypic Nuc, and pan-genotypic NS5A inhibitors in preclinical development, which
represent the potential for significant commercial opportunities. The drug development candidates in our pipeline show excellent pan-
genotypic activity against all major HCV genotypes and high barrier to drug resistance. In addition to these properties, our drug development
candidates show favorable preclinical safety/tolerability. Manufacturing and IND-enabling studies of these preclinical leads are in
progress. We believe there is significant market potential for our unique pan-genotypic combination regimen (Nuc + NNI + NS5A).
We are also developing pan-genotypic antiviral compounds that inhibit HCV helicase, also known as the NS3 helicase, another enzyme that is
essential for hepatitis C viral replication. These compounds specifically inhibit an essential step of HCV replication prior to the synthesis of
new RNA strands by NS5B polymerase. We believe that we are a leader in developing hepatitis C treatments that target this enzyme.
Therefore, our HCV helicase inhibitor could be the first in a new class of treatments for hepatitis C.
We anticipate a significant global HCV market opportunity that will persist through at least 2030, given the large prevalence of HCV infection
worldwide (170 million HCV-infected individuals and the majority remain undiagnosed). We have four classes of HCV direct-acting antiviral
agents (DAAs) in development, targeting the HCV NS5B polymerase (NNI and Nuc), NS5A, and NS3 helicase, which could be developed as
an all-oral, pan-genotypic combination regimen with significant upside. Such a combination treatment with different classes of DAAs has the
potential to change the paradigm of treatment for HCV with its efficacy, higher barrier to viral resistance, and shorter duration of treatment.
These strategies could allow us to expand and broaden our portfolio in the HCV antiviral therapeutic area, and could also lead to high and fast
cure rate, and to a better suppression of the emergence of drug resistance.
-3-
Norovirus: A worldwide public health problem responsible for close to 90% of epidemic, non-bacterial outbreaks of gastroenteritis around the
world.
Norovirus is a very common and highly contagious virus that causes symptoms of acute gastroenteritis including nausea, vomiting, stomach
pain and diarrhea. Other symptoms include fatigue, fever and dehydration. Noroviruses are a major cause of gastrointestinal illness in closed
and crowded environments, having become notorious for their common occurrence in hospitals, nursing homes, child care facilities, and cruise
ships. In the United States alone, noroviruses are the most common cause of acute gastroenteritis, and are estimated to cause 21 million
illnesses each year and contribute to 70,000 hospitalizations and 800 deaths. Noroviruses are responsible for up to 1.1 million hospitalizations
and 218,000 deaths annually in children in the developing world. In immunosuppressed patients, chronic norovirus infection can lead to a
debilitating illness with extended periods of nausea, vomiting and diarrhea. There is currently no effective treatment or effective vaccine for
norovirus, and the ability to curtail outbreaks is limited. Few, companies are developing antiviral treatments for this disease. However, three
candidate vaccines are currently in early stages of clinical testing by GlaxoSmithKline, Ligocyte and Takeda Pharmaceuticals.
By targeting viral replication enzymes, we believe it is possible to develop an effective treatment for all genogroups of norovirus. Also,
because of the significant unmet medical need and the possibility of chronic norovirus infection in immunocompromised individuals, new
antiviral therapeutic approaches may warrant an accelerated path to market. Cocrystal is developing inhibitors of the RNA-dependent RNA
polymerase of norovirus. Similar to the hepatitis C virus polymerases, this enzyme is essential to viral replication and is highly conserved
between all noroviral geno-groups. Therefore, an inhibitor of this enzyme might be an effective treatment or short-term prophylactic agent
(when administered during a cruise or nursing home stay, for example). We have developed a preclinical Nuc which exhibits broad spectrum
anti-norovirus activity. In addition, we have developed X-ray quality norovirus polymerase crystals. We are implementing the platform and
approaches that have proven successful in our other antiviral programs.
Influenza: A worldwide public health problem, including the potential for pandemic disease.
Influenza is a severe respiratory illness, caused by either influenza A or B virus, that results in yearly outbreaks of disease during the winter
months. The Centers for Disease Control (CDC) estimates that influenza is linked to 49,000 deaths and 200,000 hospitalizations each year in
the United States. The worldwide market for antiviral drugs to treat influenza was $3.8 billion dollars in 2012 and is expected to grow to $6
billion dollars by 2018 (bccResearch).
Currently, approved antiviral treatments for influenza are effective, but burdened with significant viral resistance. Strains of influenza virus
that are resistant to the approved treatments osteltamivir phosphate (Tamiflu(R)) and zanamavir (Relenza(R)) have appeared, and in some
cases predominate. For example, the predominant strain of the 2009 swine influenza pandemic was resistant to Tamiflu. These drugs target
viral neuraminadase enzymes, which are not highly conserved between viral strains. In fact, different influenza virus strains such as H1N1 and
H5N1 are named according to their respective differences in hemagglutinin (H) and neuraminidase (N). The ability of the influenza virus to
produce viable variants of these two proteins is the key to its ability to develop resistance to these drugs.
We are developing drug candidates that are specifically designed to be effective against all strains of the influenza A virus and to have a high
barrier to resistance. Our drug candidates target a replication enzyme complex essential to viral replication, and should be effective against all
forms of influenza A, including avian influenza, an emerging public health concern in Asia. The influenza replication complex consists of
three different proteins: PA, PB1, and PB2. We have developed X-ray quality influenza crystals, and structure-based leads with an excellent
broad spectrum activity against major serotypes. A small number of antiviral product candidates that are competitors for Cocrystal’s
influenza program are one Nuc (Favipiravir), developed by Toyoma Chemical, and VX-787, developed by Janssen.
-4-
Intellectual Property
Our success depends, in part, upon our ability to protect our core technology. To establish and protect our proprietary rights, we rely on a
combination of patents, patent applications, trademarks, copyrights, trade secrets and know-how, license agreements, confidentiality
procedures, non-disclosure agreements with third parties, employee disclosure and invention assignment agreements, and other contractual
rights.
As of December 31, 2015, our patent portfolio consisted of patents and pending applications in the areas primarily related to the treatment of
HCV, HIV, Norovirus and Ebola.
With respect to treatment of HCV, our portfolio is divided into three groups, related to our NS5B, NS3 and NS5A programs. The NS5B
program includes both nucleoside (Nuc) and non-nucleoside (NNI) compounds. In our NS5B Nuc program, we had two patents, one U.S. non-
provisional application, three U.S. provisional applications, two international applications filed under the Patent Cooperation Treaty (PCT) at
the World Intellectual Property Organization (WIPO), and fifteen foreign counterpart applications, over five patent families. The counterpart
foreign applications were filed in a number of countries and regions depending on the particular patent family, including Brazil, Canada,
Japan, Europe, India, Korea, Mexico and Russia. In our NS5B NNI program, our patent portfolio consisted of two related families, including
one granted U.S. patent and two pending U.S. patent applications, with one counterpart application pending in the European Patent Office.
In our NS3 protease program, we had two issued patent families, including two issued U.S. patents, one issued foreign counterpart and twelve
foreign counterparts pending, depending on the particular patent family, in Australia, Brazil, Canada, China, Europe, Hong Kong, India,
Israel, Japan and Mexico.
In our NS5A program, we have two issued U.S. patents, one pending divisional patent application, one international patent application and
foreign counterpart applications pending in Brazil, Canada, Europe and India.
In our Ebola program, our patent portfolio consisted of one pending U.S. provisional patent application. In our Norovirus program, our patent
portfolio consisted of one issued U.S. patent and three pending foreign counterpart applications. IN our HIV program, our patent portfolio
consisted of one issued U.S. patent.
The term of individual patents depends upon the countries in which they are granted. In most countries, the patent term is 20 years from the
earliest claimed filing data. In the United States, a patent’s term may be up to 21 years if the earliest claimed filing date is that of a
provisional application. Other legal provisions may, however, shorten or lengthen a patent’s term. In the United States, a patent’s term may,
in certain cases, be lengthened by patent term adjustment, which compensates a patentee for undue administrative delays by the U.S. Patent
and Trademark Office in examining and granting a patent. Alternatively, a patents’ term may be shortened if a patent is terminally disclaimed
over a commonly owned patent or patent naming a common investor and having an earlier expiration date. The Drug Price Competition and
Patent Restoration Act of 1984, or Hatch-Waxman Act, permits and patent term restoration of up to five years beyond the expiration of at U.S.
patent as partial compensation for the length of time the drug is under regulatory review. Similar patent extensions are available in some other
countries (Where they may be termed supplementary protection certificates or SPC’s).
Collaborations
Emory University: Cocrystal Pharma has an exclusive license from Emory University for use of certain inventions and technology related to
inhibitors of HCV that were jointly developed by Emory and Cocrystal Pharma employees. The License Agreement is dated March 7, 2013
wherein Emory agrees to add to the Licensed Patents and Licensed Technology Emory’s rights to any patent, patent application, invention, or
technology application that is based on technology disclosed within three (3) years of March 7, 2013. The agreement includes payments due
to Emory ranging from $40,000 to $500,000 based on successful achievement of certain drug development milestones. Additionally,
Cocrystal may have royalty payments at 3.5% of net sales due to Emory with a minimum in year one of $25,000 and increase to $400,000 in
year five upon product commercialization. One of Cocrystal’s Directors, Dr. Raymond Schinazi, is also a faculty member at Emory
University.
NIH: Cocrystal Pharma has two Public Health Biological Materials License Agreements with the NIH. The original License Agreements
were dated August 31, 2010 and it was amended on November 6, 2013. The materials licensed are being used in Norovirus assays to screen
potential antiviral agents in our library.
University of Pittsburgh and Emory University: Cocrystal Pharma assigned its patent rights to the patent titled “3'-AZIDO
PURINENUCLEOTIDE PRODRUGS FOR TREATMENT OF VIRAL INFECTIONS” to University of Pittsburgh on November 21, 2014.
This patent is jointly owned by Cocrystal Pharma, the University of Pittsburgh and Emory University. One of Cocrystal’s Directors, Dr.
Raymond Schinazi, is also a faculty member at Emory University.
Duke University and Emory University: Cocrystal Pharma has entered an agreement to license various patents and know-how to use
CRISPR/Cas9 technologies for developing a possible cure for hepatitis B virus (HBV) and human papilloma virus (HPV). This license
allows Cocrystal Pharma to develop and potentially commercialize a cure for HBV and HPV utilizing the underlying patents and
technologies developed by the universities. This agreement includes a non-refundable $100,000 license fee payable to Duke upon a
determination of rights letter from the U.S. Veterans Administration with respect to patents and know-how that disclaims any ownership
interest. Future royalties may be payable to Duke, ranging from 2-5% of net sales depending on achieving certain sales milestones, if
commercial products are developed using this know-how. One of Cocrystal’s Directors, Dr. Raymond Schinazi, is also a faculty member at
Emory University.
Competition
The biotechnology and pharmaceutical industries are subject to intense and rapidly changing competition as companies seek to develop new
technologies and proprietary products. We know of several companies that have marketed or are developing products for the treatment of
hepatitis C and influenza, including Gilead Sciences, Inc., Merck & Co., Janssen Pharmaceuticals, Inc., Bristol-Myers Squibb, Toyoma
Chemical Co. and Abbvie, Inc. These and other companies developing products for the other viral diseases that are of interest to us have
substantially greater financial resources, expertise and capabilities than we do.
-5-
Government Regulation
Government authorities extensively regulate the research, development, testing, manufacturing and commercialization of drug products. Any
product candidates we develop must be approved by the FDA before they may be legally marketed in the U.S., and by the appropriate foreign
regulatory agencies before they may be legally marketed in other countries. The clinical testing of product candidates to establish their safety
and efficacy in humans is subject to substantial statutory and regulatory requirements with which we must comply.
Research and Development Expenses
Manufacturing
We do not own or operate, and have no plans to establish any manufacturing facilities. Our chemistry laboratory can produce research scale
(milligram-gram) quantities of our lead drug candidates. As such, our progress is often dependent on successful project execution by third
party vendors.
Employees
We employ 23 full-time employees. Of these full-time employees, 18 are engaged in research and development activities.
Legacy Business
Our Legacy Business
Prior to the merger with Cocrystal Discovery on January 2, 2014, we were primarily engaged in the business of developing and manufacturing
over-the-counter drug products (OTC) and cosmetic and beauty products for third parties. In addition, Cocrystal marketed two lines of
proprietary skin care products. All of these assets were sold to MusclePharm as part of the January 2, 2014 Asset Purchase Agreement in
exchange for 1,200,000 shares of MusclePharm common stock which had a market value as of January 2, 2014 of $9,840,000. In addition,
MusclePharm licensed back to us the patents we sold it for six months in exchange for our paying it a 5% royalty on gross sales. We did not
sell minority interests in three companies, one of which is publicly traded. In addition, we did not sell to MusclePharm a license which the
publicly traded company had previously issued to us.
We also owned a 45% interest in BetaZone Laboratories, LLC (“BetaZone”), which was engaged in the sale and license of pharmaceutical and
cosmetic products in Latin America. We received no material royalties from BetaZone, which had licensed our proprietary technology. This
technology was also sold to MusclePharm.
We were incorporated as a Nevada corporation on December 4, 2006, and in March, 2014, we re-incorporated in Delaware. At the time of our
incorporation in 2006, our corporate name was International Surf Resorts Inc. We changed our name to Biozone Pharmaceuticals, Inc. on
March 1, 2011. We acquired Biozone Labs and our other subsidiaries on June 30, 2011. Prior to that time, we were an Internet-based provider
of international surf resorts, camps and guided surf tours.
Item 1A. Risk Factors.
You should consider carefully the following risk factors, together with all of the other information included or incorporated in this Annual
Report. Each of these risk factors, either alone or taken together, could adversely affect our business, operating results and financial
condition, and adversely affect the value of an investment in our common stock. There may be additional risks that we do not know of or that
we believe are immaterial that could also impair our business and financial position.
-6-
RISK FACTORS
Investing in our common stock involves a high degree of risk. You should carefully consider the following risk factors before deciding
whether to invest in the Company. If any of the events discussed in the risk factors below occur, our business, financial condition, results of
operations or prospects could be materially and adversely affected. In such case, the value and marketability of the common stock could
decline.
RISKS RELATED TO OUR FINANCIAL CONDITION AND NEED FOR ADDITIONAL CAPITAL
We have never generated revenue and expect that due to the regulatory constraints on a drug development company with products
in the pre-clinical stage, we may not ever generate revenue and may continue to incur significant losses for the foreseeable future.
We are a preclinical-stage, biopharmaceutical discovery and development company. Since inception, our operations have been limited to
organizing and staffing the Company, acquiring and developing intellectual property rights, developing our technology platform, undertaking
basic research on viral replication enzyme targets and conducting preclinical studies for our initial programs. Thereafter, because of the need
to complete clinical trials, establish safety and efficacy and obtaining regulatory approval, we do not anticipate generating revenue for at least
5 years and will continue to sustain large losses.
Based on cash on hand as of December 31, 2015 of $9.3 million and subsequent financing received of $5.0 million, Cocrystal does not have
the capital to finance operations for the next 12 months. This raises doubt about our ability to be a going concern.
We have not and may never file a New Drug Application (NDA) or its foreign equivalent, necessary to legally sell products in the U.S. of
foreign markets.
We have devoted the majority of our financial resources to research and development. We have financed our operations primarily through the
sale of equity securities. The results of our operations will depend, in part, on the rate of future expenditures and our ability to obtain funding
through equity or debt financings, strategic alliances or grants. We anticipate our expenses will increase substantially if and as we continue our
research and preclinical development of our product candidates. We anticipate that if we undertake clinical studies our expenses will increase
even further.
Because we have yet to generate any revenue on which to evaluate our potential for future success and to determine if we will be able
to execute our business plan, it is difficult to evaluate our future prospects and the risk of success or failure of our business.
Our ability to generate revenue and achieve profitability depends on our ability, alone or with partners, to successfully complete the
development of, obtain the regulatory approvals for and commercialize pharmaceutical product candidates. We have no pharmaceutical
product candidates that have generated any commercial revenue, do not expect to generate revenues from the commercial sale of
pharmaceutical products in the near future, and might never generate revenues from the sale of pharmaceutical products. Our ability to
generate revenue and achieve profitability will depend on, among other things, the following:
· identifying and validating new therapeutic strategies;
· completing our research and preclinical development of pharmaceutical product candidates;
· initiating and completing clinical trials for pharmaceutical product candidates;
· seeking and obtaining regulatory marketing approvals for pharmaceutical product candidates that successfully complete
clinical trials;
· establishing and maintaining supply and manufacturing relationships with third parties;
· launching and commercializing pharmaceutical product candidates for which we obtain regulatory marketing approval, with
a partner or, if launched independently, successfully establishing a sales force, marketing and distribution infrastructure;
· maintaining, protecting, enforcing, defending and expanding our intellectual property portfolio; and
· attracting, hiring and retaining qualified personnel.
Because of the numerous risks and uncertainties associated with pharmaceutical product development, we cannot predict the timing or amount
of increased expenses and when we will be able to achieve or maintain profitability, if ever. Our expenses could increase beyond expectations
if we are required by the FDA or foreign regulatory agencies to perform unanticipated studies and trials.
Even if one or more pharmaceutical product candidates we independently develop is approved for commercial sale, we anticipate incurring
significant costs associated with commercializing any approved pharmaceutical product candidate. Moreover, if we can generate revenues
from the sale of any approved pharmaceutical products, we may not become profitable and may need to obtain additional funding to continue
operations.
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If we do not raise additional debt or equity capital, we may not be able to remain operational.
Developing pharmaceutical products, including conducting preclinical studies and clinical trials, is very expensive. We expect our research and
development expenses to substantially increase as we advance our product candidates toward clinical programs. In order to conduct these
trials, we will need to raise additional capital to support our operations and such funding may not be available to us on acceptable terms, or at
all.
As we move lead compounds through toxicology and other preclinical studies, also referred to as nonclinical studies, we will be required to file
an Investigational New Drug application (“IND”) or its equivalent in foreign countries, and as we conduct clinical development of product
candidates, we may have adverse results that may cause us to consume additional capital. Our partners may not elect to pursue the
development and commercialization of our product candidates subject to our respective agreements with them. These events may increase our
development costs more than we expect. We may need to raise additional capital or otherwise obtain funding through strategic alliances if we
initiate clinical trials for new product candidates other than programs currently partnered. We will require additional capital to obtain
regulatory approval for, and to commercialize, product candidates.
If we must secure additional financing, such additional fundraising efforts may divert our management from our day-to-day activities, which
may adversely affect our ability to develop and commercialize product candidates. We cannot guarantee that future financing will be available
in sufficient amounts or on terms acceptable to us, if at all. If we cannot raise additional capital when required or on acceptable terms, we may
be required to:
· significantly delay, scale back or discontinue the development or commercialization of any product candidates;
· seek strategic alliances for research and development programs at an earlier stage than otherwise would be desirable or on
terms less favorable than might otherwise be available; or
· relinquish or license on unfavorable terms, our rights to technologies or any product candidates we otherwise would seek to
develop or commercialize ourselves.
If we are unable to raise additional capital in sufficient amounts or on terms acceptable to us, we will be prevented from pursuing development
and commercialization efforts, which will have a material adverse effect on our business, operating results and prospects or sufficient enough
to render the Company unable to continue operations at all..
RISKS RELATED TO THE DISCOVERY AND DEVELOPMENT OF PRODUCT CANDIDATES
Because the approach we are taking to discover and develop drugs is novel, it may never lead to marketable products.
We are concentrating our antiviral therapeutic product research and development efforts using our proprietary technology, and our future
success depends on the continued successful development of this technology and the products derived from it. We have no drug products or
drug product candidates. The scientific discoveries that form the basis for our efforts to discover and develop drug product candidates are
relatively new and unproven. The scientific evidence to support the feasibility of developing product candidates based on our approach is
limited. If we do not successfully develop and commercialize drug product candidates based upon our technological approach, we may not
become profitable and the value of our stock may decline.
Further, our focus on Cocrystal's technology for developing drugs, as opposed to relying entirely on more standard technologies for drug
development, increases the risks associated with the ownership of our stock. If we are unsuccessful in developing any product candidates
using Cocrystal's technology, we may be required to change the scope and direction of our product development activities. We may not
identify and implement successfully an alternative product development strategy, and may as a result cease operations.
If we do not succeed in our efforts to identify or discover potential product candidates, your investment may be lost.
The success of our business depends primarily upon our ability to identify, develop and commercialize antiviral drug products, an extremely
risky business. Our research programs may initially show promise in identifying potential product candidates, yet fail to yield product
candidates for clinical development for several reasons, including:
· our research methodology or that of our partners may be unsuccessful in identifying potential product candidates;
· potential product candidates may have harmful side effects or may have other characteristics that may make the products
unmarketable or unlikely to receive marketing approval; and
· we or our partners may change their development profiles for potential product candidates or abandon a therapeutic area.
Such events may force us to abandon our development efforts for a program or programs, which would have a material adverse effect on our
business and could cause us to cease operations. Research programs to identify new product candidates require substantial technical, financial
and human resources. We may focus our efforts and resources on potential programs or product candidates that ultimately prove to be
unsuccessful.
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If we are unable to successfully complete preclinical testing and clinical trials of our product candidates or experience significant
delays in doing so, our business will be materially harmed.
We intend to invest a significant portion of our efforts and financial resources in the identification and preclinical development of product
candidates that target viral replication enzymes. Our ability to generate product revenues, which we do not expect will occur for many years, if
ever, will depend heavily on the successful development and eventual commercialization of our product candidates.
The commercial success of our product candidates will depend on several factors, including:
·
·
·
successful completion of preclinical studies and clinical trials;
receipt of marketing and pricing approvals from regulatory authorities;
obtaining and maintaining patent and trade secret protection for product candidates;
· establishing and maintaining manufacturing relationships with third parties or establishing our own manufacturing
capability; and
· commercializing our products, if and when approved, whether alone or in collaboration with others.
If we do not achieve one or more of these factors in a timely manner or at all, we could experience significant delays or an inability to
successfully complete development of, or to successfully commercialize, our product candidates, which would materially harm our business.
Most pharmaceutical products that do overcome the long odds of drug development and achieve commercialization still do not recoup their
cost of capital. If we are unable to design and develop each drug to meet a commercial need far in the future, the approved drug may become a
commercial failure and our investment in those development and commercialization efforts will have been commercially unsuccessful.
We may be unable to demonstrate safety and efficacy of our product candidates to the satisfaction of regulatory authorities or we may
incur additional costs or experience delays in completing, or ultimately be unable to complete, the development and
commercialization of our product candidates.
Before obtaining marketing approval from regulatory authorities for the sale of product candidates, we or our partners must conduct extensive
preclinical studies and clinical trials to demonstrate the safety and efficacy of the product candidates in humans. Clinical testing is expensive,
difficult to design and implement, can take many years to complete and is uncertain as to outcome. A failure of one or more clinical trials can
occur at any stage of testing. The outcome of preclinical studies and early clinical trials may not be predictive of the success of later clinical
trials, and interim results of a clinical trial do not predict final results. Moreover, preclinical and clinical data are often susceptible to varying
interpretations and analyses, and many companies that have believed their product candidates performed satisfactorily in preclinical studies
and clinical trials have nonetheless failed to obtain marketing approval for their products.
Events that may cause a delay or unsuccessful completion of clinical development include, as examples:
· delays in agreeing with the FDA or other regulatory authorities on final clinical trial design;
· imposition of a clinical hold following an inspection of our clinical trial operations or trial sites by the FDA or other
regulatory authorities;
· delays in agreeing on acceptable terms with prospective contract research organizations, or CROs, and clinical trial sites;
· delays in obtaining required institutional review board approval at each clinical trial site;
· delays in recruiting suitable patients to participate in a trial;
· delays in the testing, validation, manufacturing and delivery of the product candidates to the clinical sites;
· delays in having patients complete participation in a trial or return for post-treatment follow-up;
· delays caused by patients dropping out of a trial due to product side effects or disease progression;
· clinical sites dropping out of a trial to the detriment of enrollment;
· time required to add new clinical sites; or
· delays by our contract manufacturers in producing and delivering sufficient supply of clinical trial materials.
-9-
If we or our partners must conduct additional clinical trials or other testing of any product candidates beyond those that are contemplated, or
are unable to successfully complete clinical trials or other testing of any the product candidates, or if the results of these trials or tests are not
positive or are only modestly positive or if there are safety concerns, we or our partners may:
·
·
be delayed in obtaining marketing approval for our product candidates;
not obtain marketing approval at all;
· obtain approval for indications or patient populations not as broad as intended or desired;
· obtain approval with labeling that includes significant use or distribution restrictions or safety warnings;
·
·
be subject to additional post-marketing testing requirements; or
remove the product from the market after obtaining marketing approval.
Our product development costs will also increase if we experience delays in testing or in obtaining marketing approvals. We do not know
whether any clinical trials will begin as planned, will need to be restructured or will be completed on schedule if at all. Significant clinical trial
delays also could shorten any periods during which we may have the exclusive right to commercialize our product candidates or allow our
competitors to bring products to market before we do, which would impair our ability to successfully commercialize our product candidates
and may harm our business and results of operations. Any inability to successfully complete preclinical and clinical development, whether
independently or with our partners, could cause additional costs to us or impair our ability to generate revenues from our product candidates,
including product sales, milestone payments, profit sharing or royalties.
Our product candidates may cause adverse effects or have other properties that could delay or prevent their regulatory approval or
limit the scope of any approved label or market acceptance.
Adverse events (“AEs”), that may be observed during clinical trials of our product candidates could cause us, other reviewing entities, clinical
trial sites or regulatory authorities to interrupt, delay or halt such trials and could cause denial of regulatory approval. If AEs are observed in
any clinical trials of our product candidates, including those our partners may develop under our alliance agreements, our or our partners’
ability to obtain regulatory approval for product candidates may be negatively impacted.
Serious or unexpected side effects caused by an approved product could result in significant negative consequences, including:
· regulatory authorities may withdraw prior approval of the product or impose restrictions on its distribution in the form of a
modified risk evaluation and mitigation strategy;
· we may be required to add labeling statements, such as warnings or contraindications;
· we may be required to change the way the product is administered or conduct additional clinical trials;
· we could be sued and held liable for harm caused to patients; and
· our reputation may suffer.
These events could prevent us or our partners from achieving or maintaining market acceptance of the affected product and could
substantially increase the costs of commercializing our products and impair our ability to generate revenues from the commercialization of
these products either by us or by our partners.
Even if we complete the necessary preclinical studies and clinical trials, we cannot predict whether or when we will obtain regulatory
approval to commercialize a product candidate and we cannot, therefore, predict the timing of any revenue from a product.
Neither we nor any partners we may have can commercialize a product until the appropriate regulatory authorities, such as the FDA or its
foreign equivalent, have reviewed and approved the product candidate. The regulatory agencies may not complete their review processes in a
timely manner, or we may not be able to obtain regulatory approval. Additional delays may result if an FDA Advisory Committee or foreign
regulatory authority recommends restrictions on approval or recommends non-approval.
-10-
Following regulatory approval for a product candidate, we will still face extensive regulatory requirements and the approved product
may face future development and regulatory difficulties.
Even if we obtain regulatory approval in the United States, the FDA may still impose significant restrictions on the indicated uses or
marketing of our product candidates, or impose ongoing requirements for potentially costly post-approval studies or post-market surveillance.
The holder of an approved New Drug Application (“NDA”), must monitor and report AEs and any failure of a product to meet the
specifications in the NDA. The holder of an approved NDA must also submit new or supplemental applications and obtain FDA approval for
certain changes to the approved product, product labeling or manufacturing process. Advertising and promotional materials must comply with
FDA rules and other applicable federal and state laws, and are subject to FDA review.
Drug product manufacturers and their facilities are subject to payment of user fees and continual review and periodic inspections by the FDA
and other regulatory authorities for compliance with current Good Manufacturing Practices (“cGMP”), and adherence to commitments made in
the NDA. If we or a regulatory agency discover previously unknown problems with a product such as AEs of unanticipated severity or
frequency, or problems with the facility where the product is manufactured, a regulatory agency may impose restrictions on that product or the
manufacturing facility, including requiring recall or withdrawal of the product from the market or suspension of manufacturing.
If we or our partners fail to comply with regulatory requirements following approval of our product candidates, a regulatory agency may:
·
·
·
·
·
·
·
issue a warning letter asserting we are in violation of the law;
seek an injunction or impose civil or criminal penalties or monetary fines;
suspend or withdraw regulatory approval;
suspend any ongoing clinical trials;
refuse to approve a pending NDA or supplements to an NDA submitted by us;
seize product; or
refuse to allow us to enter into supply contracts, including government contracts.
Our defense of any government investigation of alleged violations of law, or any lawsuit alleging such violations, could require us to expend
significant time and resources in response and could generate negative publicity. The occurrence of any event or penalty described above may
prevent or inhibit our ability to commercialize our products and generate revenues.
We may not succeed in obtaining or maintaining necessary rights to drug compounds and processes for our development pipeline
through acquisitions and in-licenses.
We may be unable to acquire or in-license any compositions, methods of use, processes or other third-party intellectual property rights from
third parties we identify. The licensing and acquisition of third-party intellectual property rights is a competitive area, and more established
companies are also pursuing strategies to license or acquire third-party intellectual property rights we may consider attractive. These
established companies may have a competitive advantage over us due to their size, cash resources and greater clinical development and
commercialization capabilities.
Companies that perceive us to be a competitor may be unwilling to assign or license rights to us. We also may be unable to license or acquire
third-party intellectual property rights on terms that would allow us to make an appropriate return on our investment. If we are unable to
successfully obtain rights to required third-party intellectual property rights, our business, financial condition and prospects for growth could
suffer.
If we fail to comply with environmental, health and safety laws and regulations, we could become subject to fines or penalties or incur
costs that could have a material adverse effect on the success of our business.
We are subject to numerous environmental, health and safety laws and regulations, including those governing laboratory procedures and the
handling, use, storage, treatment and disposal of hazardous materials and wastes. Our operations involve using hazardous and flammable
materials, including chemicals and biological materials. Our operations also produce hazardous waste products. We generally contract with
third parties for the disposal of these materials and wastes. We cannot eliminate the risk of contamination or injury from these materials. If
contamination occurs or injury results from our use of hazardous materials, we could be held liable for any resulting damages, and any liability
could exceed our resources. We also could incur significant costs associated with civil or criminal fines and penalties.
Although our workers’ compensation insurance may cover us for costs and expenses we may incur due to injuries to our employees resulting
from the use of hazardous materials or other work-related injuries, this insurance may not provide adequate coverage against other potential
liabilities. We may incur substantial costs to comply with current or future environmental, health and safety laws and regulations. These
current or future laws and regulations may impair our research, development or production efforts. Failure to comply with these laws and
regulations also may cause substantial fines, penalties or other sanctions.
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Compliance with governmental regulations regarding the treatment of animals used in research could increase our operating costs,
which would adversely affect the commercialization of our technology.
The Animal Welfare Act (“AWA”), is the federal law that covers the treatment of certain animals used in research. The AWA imposes a wide
variety of specific regulations that govern the humane handling, care, treatment and transportation of certain animals by producers and users of
research animals, most notably relating to personnel, facilities, sanitation, cage size, feeding, watering and shipping conditions. Third parties
with whom we contract are subject to registration, inspections and reporting requirements. Some states have their own regulations, including
general anti-cruelty legislation, which establish certain standards in handling animals. If we or our contractors fail to comply with regulations
concerning the treatment of animals used in research, we may be subject to fines and penalties and adverse publicity, and our operations could
be adversely affected.
Public perception of ethical and social issues may limit or discourage the type of research we conduct.
Our clinical trials will involve people, and we and third parties with whom we contract also do research using animals. Governmental
authorities could, for public health or other purposes, limit the use of human or animal research or prohibit the practice of our technology. In
addition, animal rights activists could protest or make threats against our facilities, which may cause property damage and delay our
research. Ethical and other concerns about our methods, such as our use of human subjects in clinical trials or our use of animal testing, could
adversely affect our market acceptance.
We have limited experience in conducting and managing the preclinical development activities and clinical trials necessary to obtain
approvals for marketing our product candidates, including approval by the FDA.
Our efforts to develop our product candidates are at an early stage. To date we have not entered a compound into human clinical trials. We
may be unable to progress our product candidates undergoing preclinical testing into clinical trials. Success in preclinical testing and early
clinical trials does not ensure that later clinical trials will succeed, and favorable initial results from a clinical trial do not determine outcomes
in subsequent clinical trials. The indications of use for which we are pursuing development may have clinical effectiveness endpoints not
previously reviewed or validated by the FDA or foreign regulatory authorities, which may complicate or delay our effort to obtain marketing
approval. We cannot guarantee that our clinical trials will succeed. In fact, most compounds fail in clinical trial, even at companies far larger
and more experienced than us.
We have not obtained marketing approval or commercialized any of our product candidates. We may not successfully design or implement
clinical trials required for marketing approval to market our product candidates. If we are unsuccessful in conducting and managing our
preclinical development activities or clinical trials or obtaining marketing approvals, we might not be able to commercialize our product
candidates, or might be significantly delayed in doing so, which will materially harm our business.
-12-
RISKS RELATED TO OUR RELIANCE ON THIRD PARTIES
If we form strategic alliances which are unsuccessful or are terminated, we may be unable to develop or commercialize certain
product candidates and we may be unable to generate revenues from our development programs.
We are likely to use third party alliance partners for financial, scientific, manufacturing, marketing and sales resources for the clinical
development and commercialization of certain of our product candidates. These strategic alliances will likely constrain our control over
development and commercialization of our product candidates, especially once a candidate has reached the stage of clinical development. Our
ability to recognize revenues from successful strategic alliances may be impaired by several factors including:
· a partner may shift its priorities and resources away from our programs due to a change in business strategies, or a merger,
acquisition, sale or downsizing of its company or business unit;
· a partner may cease development in therapeutic areas which are the subject of our strategic alliances;
· a partner may change the success criteria for a program or product candidate delaying or ceasing development of such
program or candidate;
· a significant delay in initiation of certain development activities by a partner could also delay payment of milestones tied to
such activities, impacting our ability to fund our own activities;
· a partner could develop a product that competes, either directly or indirectly, with an alliance product;
· a partner with commercialization obligations may not commit sufficient financial or human resources to the marketing,
distribution or sale of a product;
· a partner with manufacturing responsibilities may encounter regulatory, resource or quality issues and be unable to meet
demand requirements;
· a partner may exercise its rights under the agreement to terminate a strategic alliance;
· a dispute may arise between us and a partner concerning the research, development or commercialization of a program or
product candidate resulting in a delay in milestones, royalty payments or termination of a program and possibly resulting in
costly litigation or arbitration which may divert management attention and resources; and
· a partner may use our proprietary information or intellectual property to invite litigation from a third party or fail to
maintain or prosecute intellectual property rights possibly jeopardizing our rights in such property.
Termination of a strategic alliance may require us to seek out and establish alternative strategic alliances with third-party partners; this may
not be possible, or we may not be able to do so on terms acceptable to us, in which case it may be necessary for us to limit the size or scope of
one or more of our programs or increase our expenditures and seek additional funding by other means. Such events would likely have a
material adverse effect on our results of operations and financial condition.
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We expect to rely on third parties to conduct some or all aspects of our compound formulation, research and preclinical testing, and
those third parties may not perform satisfactorily.
We do not expect to independently conduct most and certainly not all aspects of our drug discovery activities, compound formulation research
or preclinical testing of product candidates. We rely and expect to continue to rely on third parties to conduct some aspects of our preclinical
testing.
If these third parties terminate their engagements, we will need to enter into alternative arrangements which would delay our product
development activities. Our reliance on these third parties for research and development activities will reduce our control over these activities
but will not relieve us of our responsibilities. For product candidates we develop and commercialize on our own, we will remain responsible
for ensuring that each of our IND-enabling preclinical studies and clinical trials are conducted under the respective study plans and trial
protocols.
If these third parties do not successfully carry out their contractual duties, meet expected deadlines or conduct our studies under regulatory
requirements or our stated study plans and protocols, we will not be able to complete, or may be delayed in completing, the necessary
preclinical studies to enable us or our partners to select viable product candidates for IND submissions and will not be able to, or may be
delayed in our efforts to, successfully develop and commercialize such product candidates.
We intend to rely on third-party manufacturers to produce our preclinical supplies, and we intend to rely on third parties to produce
clinical supplies of any product candidates we advance into clinical trials and commercial supplies of any approved product
candidates.
Reliance on third-party manufacturers entails risks to which we would not be subject if we manufactured the product candidates ourselves,
including:
·
·
the inability to meet any product specifications and quality requirements consistently;
a delay or inability to procure or expand sufficient manufacturing capacity;
· manufacturing and product quality issues related to scale-up of manufacturing;
·
·
costs and validation of new equipment and facilities required for scale-up;
a failure to comply with cGMP and similar foreign standards;
· the inability to negotiate manufacturing agreements with third parties under commercially reasonable terms;
· termination or nonrenewal of manufacturing agreements with third parties in a manner or that is costly or damaging to us;
· the reliance on a few sources, and sometimes, single sources for raw materials, such that if we cannot secure a sufficient
supply of these product components, we cannot manufacture and sell product candidates in a timely fashion, in sufficient
quantities or under acceptable terms;
· the lack of qualified backup suppliers for any raw materials currently purchased from a single source supplier;
· operations of our third-party manufacturers or suppliers could be disrupted by conditions unrelated to our business or
operations, including the bankruptcy of the manufacturer or supplier;
·
·
carrier disruptions or increased costs beyond our control; and
failing to deliver products under specified storage conditions and in a timely manner.
These events could lead to clinical study delays or failure to obtain regulatory approval, or impact our ability to successfully commercialize
future products. Some of these events could be the basis for FDA action, including injunction, recall, seizure or total or partial suspension of
production.
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Because we expect to rely on limited sources of supply for the drug substance and drug product of product candidates, any disruption
in the chain of supply may cause a delay in developing and commercializing these product candidates.
We intend to establish manufacturing relationships with a limited number of suppliers to manufacture raw materials, the drug substance, and
the drug product of any product candidate for which we are responsible for preclinical or clinical development. Each supplier may require
licenses to manufacture such components if such processes are not owned by the supplier or in the public domain. As part of any marketing
approval, a manufacturer and its processes must be qualified by the FDA or foreign regulatory authorities prior to commercialization. If supply
from the approved vendor is interrupted, there could be a significant disruption in commercial supply. An alternative vendor would need to be
qualified through an NDA or marketing authorization supplement, which could cause further delay. The FDA or other regulatory agencies
outside of the United States may also require additional studies if a new supplier is relied upon for commercial production.
These factors could cause the delay of clinical trials, regulatory submissions, required approvals or commercialization of our product
candidates, cause us to incur higher costs and prevent us from commercializing our products successfully. Furthermore, if our suppliers fail to
deliver the required commercial quantities of drug substance or drug product on a timely basis and at commercially reasonable prices, and we
are unable to secure one or more replacement suppliers capable of production at a substantially equivalent cost, our clinical trials may be
delayed or we could lose potential revenue.
Manufacturing issues may arise that could increase product and regulatory approval costs or delay commercialization.
As we scale up manufacturing of product candidates and conduct required stability testing, product, packaging, equipment and process-related
issues may require refinement or resolution to proceed with any clinical trials and obtain regulatory approval for commercial marketing. We
may identify significant impurities or stability problems, which could cause increased scrutiny by regulatory agencies, delays in clinical
programs and regulatory approval, significant increases in our operating expenses, or failure to obtain or maintain approval for product
candidates or any approved products.
We expect to rely on third parties to conduct, supervise and monitor our clinical trials, and if those third parties perform in an
unsatisfactory manner, it may harm our business.
We expect to rely on Clinical Research Organizations (“CROs”) and clinical trial sites to ensure the proper and timely conduct of our clinical
trials. While we will have agreements governing their activities, we and our partners will have limited influence over their actual
performance. Nevertheless, we or our partners will be responsible for ensuring that each of our clinical trials is conducted in accordance with
its protocol, and all legal, regulatory and scientific standards. Our reliance on the CROs does not relieve us of our regulatory responsibilities.
We, our partners and our CROs must comply with current Good Clinical Practices (“cGCPs”), as defined by the FDA and the International
Conference on Harmonization, for conducting, recording and reporting the results of IND-enabling preclinical studies and clinical trials, to
ensure that data and reported results are credible and accurate and that the rights, integrity and confidentiality of clinical trial participants are
protected. The FDA enforces these cGCPs through periodic inspections of trial sponsors, principal investigators and clinical trial sites. If we or
our CROs fail to comply with cGCPs, the clinical data generated in our clinical trials may be deemed unreliable and the FDA may require us
to perform additional clinical trials before approving any marketing applications. Our clinical trials will require a sufficiently large number of
test subjects to evaluate the safety and effectiveness of a product candidate. If our CROs fail to comply with these regulations or fail to recruit
a sufficient number of patients, fail to recruit properly qualified patients or fail to properly record or maintain patient data, we may be required
to repeat such clinical trials, which would delay the regulatory approval process.
Our contracted CROs will not be our employees, and we cannot control whether they devote sufficient time and resources to our clinical and
nonclinical programs. These CROs may also have relationships with other commercial entities, including our competitors, for whom they may
also be conducting clinical trials, or other drug development activities that could harm our competitive position. If our CROs do not
successfully carry out their contractual duties or obligations, fail to meet expected deadlines, or if the quality or accuracy of the clinical data
they obtain is compromised due to failing to adhere to our clinical protocols or regulatory requirements, or for any other reasons, our clinical
trials may be extended, delayed or terminated, and we may not obtain regulatory approval for, or successfully commercialize our product
candidates. Our financial results and the commercial prospects for such products and any product candidates we develop would be harmed,
our costs could increase, and our ability to generate revenues could be delayed.
We also expect to rely on other third parties to store and distribute drug products for any clinical trials we may conduct. Any performance
failure by our distributors could delay clinical development or marketing approval of our product candidates or commercialization of our
products, if approved, producing additional losses and depriving us of potential product revenue.
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RISKS RELATED TO OUR INTELLECTUAL PROPERTY
If we cannot obtain or protect intellectual property rights related to our future products and product candidates, we may not be able
to compete effectively in our markets.
We rely upon a combination of patents, trade secret protection and confidentiality agreements to protect the intellectual property related to our
future products and product candidates. The strength of patents in the biotechnology and pharmaceutical field involves complex legal and
scientific questions and can be uncertain. The patent applications we own or in-license may fail to result in patents with claims that cover the
products in the United States or in other countries. There is no assurance that all of the potentially relevant prior art relating to our patents and
patent applications has been found; such prior art can invalidate a patent or prevent a patent from issuing based on a pending patent
application. Even if patents do successfully issue, third parties may challenge their validity, enforceability or scope, which may cause such
patents to be narrowed or invalidated. Even if unchallenged, our patents and patent applications may not adequately protect our intellectual
property or prevent others from designing around our claims.
If the patent applications we hold or have in-licensed regarding our programs or product candidates fail to issue or if their breadth or strength
of protection is threatened, it could dissuade companies from collaborating with us to develop product candidates, and threaten our ability to
commercialize products. We cannot offer any assurances about which patents will issue or whether any issued patents will be found invalid
and unenforceable or will be threatened by third parties. Since patent applications in the United States and most other countries are
confidential for a period after filing, and some remain so until issued, we cannot be certain that we were the first to invent a patent application
related to a product candidate. In certain situations, if we and one or more third parties have filed patent applications in the United States and
claiming the same subject matter, an administrative proceeding can be initiated to determine which applicant is entitled to the patent on that
subject matter. Patents have a limited lifespan. In the United States, the natural expiration of a patent is 20 years after it is filed, although
various extensions may be available. However the life of a patent, and the protection it affords, is limited. Once the patent life has expired for
a product, we may be open to competition from generic medications. Further, if we encounter delays in regulatory approvals, the time during
which we could market a product candidate under patent protection could be reduced.
Besides the protection afforded by patents, we rely on trade secret protection and confidentiality agreements to protect proprietary know-how
that is not patentable, processes for which patents are difficult to enforce and any other elements of our drug discovery and development
processes that involve proprietary know-how, information or technology not covered by patents. Although each of our employees agrees to
assign their inventions to us through an employee inventions agreement, and all of our employees, consultants, advisors and any third parties
who have access to our proprietary know-how, information or technology to enter into confidentiality agreements, we cannot provide any
assurances that all such agreements have been duly executed or our trade secrets and other confidential proprietary information will not be
disclosed or that competitors will not otherwise gain access to our trade secrets or independently develop substantially equivalent information
and techniques. The FDA, as part of its Transparency Initiative, is considering whether to make additional information publicly available on a
routine basis, including information we may consider to be trade secrets or other proprietary information, and it is not clear how the FDA’s
disclosure policies may change, if at all.
The laws of some foreign countries do not protect proprietary rights to the same extent or in the same manner as the laws of the United States.
We may encounter significant problems in protecting and defending our intellectual property both in the United States and abroad. If we are
unable to prevent material disclosure of the non-patented intellectual property related to our technologies to third parties, and there is no
guarantee we will have any such enforceable trade secret protection, we may not be able to establish or maintain a competitive advantage in
our market, which could materially adversely affect our business, results of operations and financial condition.
-16-
Third-party claims of intellectual property infringement may prevent or delay our development and commercialization efforts.
Our commercial success depends in part on our avoiding infringement of the patents and proprietary rights of third parties. There is substantial
litigation, both within and outside the United States, involving patent and other intellectual property rights in the biotechnology and
pharmaceutical industries, including patent infringement lawsuits, interferences, oppositions, and reexaminations and other post-grant
proceedings before the U.S. Patent and Trademark Office (“U.S. PTO”), and corresponding foreign patent offices. Numerous U.S. and foreign
issued patents and pending patent applications, which are owned by third parties, exist in the fields in which we and our partners are pursuing
product candidates. As the biotechnology and pharmaceutical industries expand and more patents are issued, the risk increases that our
product candidates may be subject to claims of infringement of the patent rights of third parties.
Third parties may assert we are employing their proprietary technology without authorization. There may be third-party patents or patent
applications with claims to materials, formulations, methods of manufacture or methods for treatment related to the use or manufacture of our
product candidates. Because patent applications can take many years to issue, there may be patent applications currently pending that may
later result in patents that our product candidates may infringe. Third parties may obtain patents in the future and claim that use of our
technologies infringes these patents. If any third-party patents were to be held by a court of competent jurisdiction to cover the manufacturing
process of any of our product candidates, any molecules formed during the manufacturing process or any final product itself, the holders of
any such patents may be able to block our ability to commercialize such product candidate unless we obtained a license under the applicable
patents, or until such patents expire. Similarly, if any third-party patents were to be held by a court of competent jurisdiction to cover aspects
of our formulations, processes for manufacture or methods of use, including combination therapy, the holders of any such patents may be able
to block our ability to develop and commercialize the applicable product candidate unless we obtained a license or until such patent expires. In
either case, such a license may not be available on commercially reasonable terms or at all.
Parties making intellectual property claims against us may obtain injunctive or other equitable relief, which could block our ability to further
develop and commercialize one or more of our product candidates. Defense of these claims, regardless of their merit, involve substantial
litigation expense and would be a substantial diversion of employee resources from our business. If a claim of infringement against us
succeeds, we may have to pay substantial damages, possibly including treble damages and attorneys’ fees for willful infringement, pay
royalties, redesign our infringing products or obtain one or more licenses from third parties, which may be impossible or require substantial
time and monetary expenditure.
We may need to obtain licenses to intellectual property rights from third parties.
We may need to obtain licenses from third parties to advance our research or allow commercialization of our product candidates. We may fail
to obtain these licenses at a reasonable cost or on reasonable terms, if at all. In that event, we would be unable to further develop and
commercialize one or more of our product candidates, which could harm our business significantly. We cannot provide any assurances that
third-party patents do not exist that might be enforced against our products, resulting in either an injunction prohibiting our sales, or, with
respect to our sales and other activities, an obligation on our part to pay royalties and/or other forms of compensation to third parties.
We may be involved in lawsuits to protect or enforce our patents or the patents of our licensors, which could be expensive, time-
consuming and unsuccessful.
Competitors may infringe our patents or the patents of our licensors. To counter such infringement or unauthorized use, we may be required to
file infringement claims, or we may be required to defend the validity or enforceability of such patents, which can be expensive and time-
consuming. In an infringement proceeding, a court may decide that a patent of ours or our licensors is not valid or is unenforceable, or may
refuse to stop the other party from using the technology at issue because our patents do not cover that technology. An adverse result in any
litigation or defense proceedings could put one or more of our patents at risk of being invalidated or interpreted narrowly and could put our
patent applications at risk of not issuing.
Interference proceedings provoked by third parties or brought by us may be necessary to determine the priority of inventions regarding our
patents or patent applications or those of our partners or licensors. An unfavorable outcome could require us to cease using the related
technology or to license rights to it from the prevailing party. Our business could be harmed if the prevailing party does not offer us a license
on commercially reasonable terms. Our defense of litigation or interference proceedings may fail and, even if successful, may cause
substantial costs and distract our management and other employees. We may not be able to prevent, alone or with our licensors,
misappropriation of our intellectual property rights, particularly in countries where the laws may not protect those rights as fully as in the
United States.
Because of the substantial amount of discovery required in intellectual property litigation, there is a risk that some of our confidential
information could be compromised by disclosure during this type of litigation. There could also be public announcements of the results of
hearings, motions or other interim proceedings or developments. If securities analysts or investors perceive these results to be negative, it
could have a material adverse effect on the price of our securities.
-17-
We may be subject to claims our employees, consultants or independent contractors have wrongfully used or disclosed confidential
information of third parties.
We employ individuals previously employed at other biotechnology or pharmaceutical companies. We may be subject to claims we or our
employees, consultants or independent contractors have inadvertently or otherwise used or disclosed confidential information of our
employees’ former employers or other third parties. We may also be subject to claims that former employers or other third parties have an
ownership interest in our patents. Litigation may be necessary to defend against these claims. There is no guarantee of success in defending
these claims, and if we succeed, litigation could cause substantial cost and be a distraction to our management and other employees.
Because we face significant competition from other biotechnology and pharmaceutical companies, our operating results will suffer if
we fail to compete effectively.
The biotechnology and pharmaceutical industries are intensely competitive. We have competitors both in the United States and
internationally, including major multinational pharmaceutical companies, biotechnology companies and universities and other research
institutions. Our competitors may have substantially greater financial, technical and other resources, such as larger research and development
staff and experienced marketing and manufacturing organizations. Additional mergers and acquisitions in the biotechnology and
pharmaceutical industries may cause even more resources being concentrated in our competitors. Competition may increase further because of
advances in the commercial applicability of technologies and greater availability of capital for investment in these industries. Our competitors
may develop, acquire or license drug products that are more effective or less costly than any product candidate we may develop.
All of our programs are in a preclinical development stage and are targeted toward indications for which there are approved products on the
market or product candidates in clinical development. We will face competition from other drugs that are or will be approved for the same
therapeutic indications. Our ability to compete successfully will depend largely on our ability to leverage our experience in drug discovery
and development to:
·
·
discover and develop therapeutics superior to other products in the market;
attract qualified scientific, product development and commercial personnel;
· obtain patent and/or other proprietary protection for our technology platform and product candidates;
·
obtain required regulatory approvals; and
· successfully collaborate with pharmaceutical companies in the discovery, development and commercialization of new
therapeutics.
The availability of our competitors’ products could limit the demand, and the price we can charge, for any products we may develop and
commercialize. We will not achieve our business plan if the acceptance of these products is inhibited by price competition or the reluctance of
physicians to switch from existing drug products to our products, or if physicians switch to other new drug products or reserve our products for
use in limited circumstances. The inability to compete with existing or subsequently introduced drug products would have a material adverse
impact on our business, financial condition and prospects.
Established pharmaceutical companies may invest heavily to accelerate discovery and development of novel compounds or to in-license novel
compounds that could make our product candidates less competitive. Any new product that competes with an approved product must typically
demonstrate advantages, such as in efficacy, convenience, tolerability or safety, to overcome price competition and to succeed. Our
competitors may obtain patent protection, receive approval by FDA and/or foreign regulatory authorities or discover, develop and
commercialize product candidates before we do, which would have a material adverse impact on our business.
-18-
The commercial success of our product candidates will depend upon the acceptance of these product candidates by the medical
community, including physicians, patients and healthcare payors.
Assuming one or more product candidates achieve regulatory approval and we commence marketing such products, the market acceptance of
any product candidates will depend on several factors, including:
·
demonstration of clinical safety and efficacy compared to other products;
· the relative convenience, ease of administration and acceptance by physicians, patients and healthcare payors;
·
the prevalence and severity of any AEs;
· limitations or warnings in the label approved by FDA and/or foreign regulatory authorities for such products;
·
·
·
·
availability of alternative treatments;
pricing and cost-effectiveness;
the effectiveness of our or any collaborators’ sales and marketing strategies;
our ability to obtain hospital formulary approval; and
· our ability to obtain and maintain sufficient third-party payor coverage or reimbursement.
If our current product candidates are approved, we expect sales to generate substantially all of our product revenues for the foreseeable future,
and as such, the failure of these products to find market acceptance would harm our business.
If coverage and adequate reimbursement are not available for our product candidates, it could make it difficult for us to sell products
profitably.
Market acceptance and sales of any product candidates we develop will depend on coverage and reimbursement policies and may be affected
by future healthcare reform measures. Government authorities and third-party payors, such as private health insurers, hospitals and health
maintenance organizations, decide which drugs they will pay for and establish reimbursement levels. We cannot be sure that coverage and
adequate reimbursement will be available for any product candidates. Also, inadequate reimbursement amounts may reduce the demand for,
or the price of, our future products. If reimbursement is not available, or is available only at limited levels, we may not be able to successfully
commercialize product candidates we develop.
We cannot be certain if and when we will obtain formulary approval to allow us to sell any products we may develop and commercialize into
our target markets. Obtaining formulary approval from hospitals and from payors can be an expensive and time-consuming process. Failure to
obtain timely formulary approval will limit our commercial success.
There have been numerous legislative and regulatory proposals to change the healthcare system in the United States and in some foreign
jurisdictions that could affect our ability to sell products profitably. These legislative and/or regulatory changes may negatively impact the
reimbursement for drug products, following approval. The availability of generic treatments may also substantially reduce reimbursement for
our future products. The potential application of user fees to generic drug products may expedite approval of additional generic drug
treatments. We expect to experience pricing pressures in connection with sale of any of our products, due to the trend toward managed
healthcare, the increasing influence of health maintenance organizations and additional legislative changes. If we fail to successfully secure
and maintain reimbursement coverage for our future products or are significantly delayed in doing so, we will have difficulty achieving
market acceptance of our products and our business will be harmed.
In some non-U.S. jurisdictions, the proposed pricing for a drug must be approved before it may be lawfully marketed. The requirements
governing drug pricing vary widely from country to country. The European Union, or EU, provides options for its member states to restrict the
range of medicinal products for which their national health insurance systems provide reimbursement and to control the prices of medicinal
products for human use. A member state may approve a specific price for the medicinal product or it may instead adopt a system of direct or
indirect controls on the profitability of Cocrystal placing the medicinal product on the market. There can be no assurance that any country that
has price controls or reimbursement limitations for pharmaceutical products will allow favorable reimbursement and pricing arrangements for
our products. Historically, products launched in the EU do not follow price structures of the U.S. and tend to be priced significantly lower.
-19-
If we are unable to establish sales and marketing capabilities or enter into agreements with third parties to market and sell our
product candidates, we may be unable to generate any revenues.
We do not have an organization for the sales, marketing and distribution of pharmaceutical products and the cost of establishing and
maintaining such an organization may exceed the cost-effectiveness of doing so. To market any products that may be approved, we must build
our sales, marketing, managerial and other non-technical capabilities or arrange with third parties to perform these services.
Our current and future partners may not dedicate sufficient resources to the commercialization of our product candidates or may otherwise fail
in their commercialization due to factors beyond our control. If we are unable to establish effective alliances to enable the sale of our product
candidates to healthcare professionals and in geographical regions, including the United States, that will not be covered by our own marketing
and sales force, or if our potential future strategic partners do not successfully commercialize the product candidates, our ability to generate
revenues from product sales will be adversely affected.
If we are unable to establish adequate sales, marketing and distribution capabilities, whether independently or with third parties, we may not
be able to generate sufficient product revenue and may not become profitable. We will be competing with many companies that have
extensive and well-funded marketing and sales operations. Without an internal team or the support of a third party to perform marketing and
sales functions, we may be unable to compete successfully against these more established companies.
If we obtain approval to commercialize any approved products outside of the United States, a variety of risks associated with
international operations could materially adversely affect our business.
If any of our product candidates are approved for commercialization, we may enter into agreements with third parties to market them on a
worldwide basis or in more limited geographical regions. We expect we will be subject to additional risks related to entering into international
business relationships, including:
·
·
·
different regulatory requirements for drug approvals in foreign countries;
reduced protection for intellectual property rights;
unexpected changes in tariffs, trade barriers and regulatory requirements;
· economic weakness, including inflation, or political instability in foreign economies and markets;
· compliance with tax, employment, immigration and labor laws for employees living or traveling abroad;
·
foreign taxes, including withholding of payroll taxes;
· foreign currency fluctuations, which could cause increased operating expenses and reduced revenues, and other obligations
incident to doing business in another country;
·
workforce uncertainty in countries where labor unrest is endemic;
· production shortages resulting from any events affecting raw material supply or manufacturing capabilities abroad; and
· business interruptions resulting from geopolitical actions, including war and terrorism, or natural disasters including
earthquakes, typhoons, floods and fires.
-20-
RISKS RELATED TO OUR BUSINESS OPERATIONS AND INDUSTRY
If we lose key management or scientific personnel, cannot recruit qualified employees, directors, officers, or other personnel or
experience increases in our compensation costs, our business may materially suffer.
We depend on principal members of our executive and research teams, the loss of whose services may adversely impact the achievement of
our objectives. We are highly dependent on our management team and our Chairman of the Board, Dr. Raymond Schinazi. We do not carry
“key-man” life insurance on the lives of any of our employees or advisors. Furthermore, our future success will also depend in part on the
continued service of our key scientific and management personnel and our ability to identify, hire, and retain additional personnel. We may not
be able to attract and retain personnel on acceptable terms the competition among numerous pharmaceutical companies for individuals with
similar skill sets. Because of this competition, our compensation costs may increase significantly. If we lose key employees, our business
may suffer.
If we expand our organization, we may experience difficulties in managing growth, which could disrupt our operations.
We have 23 full-time employees. As our company matures, we expect to expand our employee base to increase our managerial, scientific and
operational, commercial, financial and other resources and to hire more consultants and contractors. Future growth would impose significant
additional responsibilities on our management, including the need to identify, recruit, maintain, motivate and integrate additional employees,
consultants and contractors. Also, our management may need to divert a disproportionate amount of its attention away from our day-to-day
activities and to managing these growth activities. We may not be able to effectively manage the expansion of our operations, which may
cause weaknesses in our infrastructure, and give rise to operational mistakes, loss of business opportunities, loss of employees and reduced
productivity among remaining employees. Our expected growth could require significant capital expenditures and may divert financial
resources from other projects, such as developing additional product candidates. If our management cannot effectively manage our growth, our
expenses may increase more than expected, our ability to generate and/or grow revenues could be reduced, and we may not be able to
implement our business strategy. Our future financial performance and our ability to commercialize product candidates and compete will
depend, in part, on our ability to manage any future growth.
Any relationships with customers and third party payors may be subject, directly or indirectly, to federal and state healthcare fraud
and abuse laws, false claims laws and health information privacy and security laws. If we are unable to comply, or have not fully
complied, with such laws, we could face criminal sanctions, civil penalties, contractual damages, reputational harm and diminished
profits and future earnings.
If we obtain FDA approval for any of our product candidates and commercialize those products in the United States, our operations may be
directly, or indirectly through our customers, subject to various federal and state fraud and abuse laws, including, without limitation, the
federal Anti-Kickback Statute and the federal False Claims Act. These laws may impact, among other things, our proposed sales, marketing
and education programs. We may be subject to patient privacy regulation by the federal government and by the U.S. states and foreign
jurisdictions in which we conduct our business. The laws that may affect our ability to operate include:
· the federal Anti-Kickback Statute, which prohibits, among other things, persons from knowingly and willfully soliciting,
receiving, offering or paying remuneration, directly or indirectly, to induce, or in return for, either the referral of an
individual, or the purchase or recommendation of an item or service for which payment may be made under a federal
healthcare program, such as the Medicare and Medicaid programs;
· federal civil and criminal false claims laws and civil monetary penalty laws, which prohibit, among other things, individuals
or entities from knowingly presenting, or causing to be presented, claims for payment from Medicare, Medicaid, or other
third party payers that are false or fraudulent;
· the federal Health Insurance Portability and Accountability Act of 1996, or HIPAA, which created new federal criminal
statutes that prohibit executing a scheme to defraud any healthcare benefit program and making false statements relating to
healthcare matters;
· HIPAA, as amended by the Health Information Technology and Clinical Health Act of 2009, or HITECH, and its
implementing regulations, which imposes certain requirements relating to the privacy, security and transmission of
individually identifiable health information; and
· state and foreign law equivalents of each of the above federal laws, such as anti-kickback and false claims laws which may
apply to items or services reimbursed by any third party payer, including commercial insurers, and state and foreign laws
governing the privacy and security of health information in certain circumstances, many of which differ from each other in
significant ways and may not have the same effect, thus complicating compliance efforts.
If our operations are found to violate any of the laws described above or any other governmental regulations that apply to us, we may be
subject to penalties, including, without limitation, civil and criminal penalties, damages, fines, possible exclusion from Medicare, Medicaid
and other government healthcare programs, and curtailment or restructuring of our operations, which could adversely affect our ability to
operate our business and our results of operations.
-21-
We face potential product liability, and, if successful claims are brought against us, we may incur substantial liability and costs.
Using our product candidates in clinical trials and the sale of any products for which we obtain marketing approval exposes us to the risk of
product liability claims. Product liability claims might be brought against us by consumers, healthcare providers, pharmaceutical companies or
others selling or otherwise coming into contact with our products. If we cannot successfully defend against product liability claims, we could
incur substantial liability and costs. Regardless of merit or eventual outcome, product liability claims may cause:
·
·
·
·
·
·
·
impairment of our business reputation;
withdrawal of clinical trial participants;
costs due to related litigation;
distraction of management’s attention from our primary business;
substantial monetary awards to patients or other claimants;
the inability to commercialize our product candidates; and
decreased demand for our product candidates, if approved for commercial sale.
We do not have any product liability insurance coverage. We anticipate obtaining such insurance prior to the commencement of any clinical
trials but any such insurance coverage we obtain may not reimburse us for all expenses or losses we may suffer. Insurance coverage is
becoming increasingly expensive and we may not be able to maintain insurance coverage at a reasonable cost or in sufficient amounts to
protect us against losses due to liability. If and when we obtain marketing approval for product candidates, we intend to expand our insurance
coverage to include the sale of commercial products; however, we may be unable to obtain product liability insurance on commercially
reasonable terms or in adequate amounts. Occasionally, large judgments have been awarded in class action lawsuits based on drugs that had
unanticipated adverse effects. A successful product liability claim or series of claims brought against us could cause our stock price to decline
and, if judgments exceed our insurance coverage, could adversely affect our results of operations and business.
Business interruptions could delay us in developing our future products.
We have locations in Washington and Georgia. We are vulnerable to natural disasters such as earthquakes and tornados as well as other
events that could disrupt our operations. We do not carry insurance for natural disasters and we may not carry sufficient business interruption
insurance to compensate us for losses that may occur. Any losses or damages we incur could have a material adverse effect on our business
operations.
If our information technology systems are hacked, a third party may misappropriate our trade secrets which could harm our business
and future results of operations.
We keep some of our intellectual property, including trade secrets and results of our preclinical research on a central server, and our
employees email such information to each other and to third parties outside of our offices. In addition, since we do not encrypt all of this
information, there is a risk that hackers could misappropriate our intellectual property. Any such misappropriation could harm our business
and future results of operations.
RISKS RELATED TO OUR COMMON STOCK
Because we are subject to the “penny stock” rules, brokers cannot generally solicit the purchase of our common stock which
adversely affects its liquidity and market price.
The Securities and Exchange Commission (“SEC”) has adopted regulations which generally define “penny stock” to be an equity security that
has a market price of less than $5.00 per share, subject to specific exemptions. The market price of our common stock on the Bulletin Board
has been substantially less than $5.00 per share and therefore we are currently considered a “penny stock” according to SEC rules. This
designation requires any broker-dealer selling these securities to disclose certain information concerning the transaction, obtain a written
agreement from the purchaser and determine that the purchaser is reasonably suitable to purchase the securities.
Due to factors beyond our control, our stock price may be volatile.
Companies trading in the stock market in general, and particularly the over-the-counter markets, including the OTCQB, have experienced
extreme price and volume fluctuations that have often been unrelated or disproportionate to the operating performance of these companies.
Our common stock price recently has experienced significant gains even though there has been no disclosure by us of any positive factors.
Broad market and industry factors may negatively affect the market price of our common stock, regardless of our actual operating
performance.
-22-
Our principal stockholders and management own a significant percentage of our stock and will be able to exert significant control
over matters which require stockholder approval.
As of March 10, 2016, our executive officers, directors, 5% stockholders and their affiliates beneficially owned approximately 80% of our
common stock. Therefore, these stockholders will have the ability to influence us through this ownership position. These stockholders may be
able to determine all matters requiring stockholder approval. These stockholders, acting together, may be able to control elections of directors,
amendments of our organizational documents, or approval of any merger, sale of assets, or other major corporate transaction. This may
prevent or discourage unsolicited acquisition proposals or offers for our common stock you may believe are in your best interest as one of our
stockholders.
Future sales and issuances of our common stock or rights to purchase common stock, including under our equity incentive plan, could
cause additional dilution of the percentage ownership of our stockholders and could cause our stock price to fall.
We expect that significant additional capital will be needed to continue our planned operations. To the extent we raise additional capital by
issuing equity securities, our stockholders may experience substantial dilution. We may sell common stock, convertible securities or other
equity securities in one or more transactions at prices and in a manner we determine from time to time. If we sell common stock, convertible
securities or other equity securities in more than one transaction, investors may be materially diluted by subsequent sales. These sales may also
result in material dilution to our existing stockholders, and new investors could gain rights superior to our existing stockholders.
Under our Equity Incentive Plans, our management may grant stock options and other equity-based awards to our employees, directors and
consultants. During 2015, our Board of Directors authorized an additional 50 million shares for grant to our employees, directors and
consultants. These additional shares are offered under our 2015 Equity Incentive Plan. During 2015, 21,970,000 stock options were granted
under this plan. The number of shares available for future grant under the Equity Incentive Plans is approximately 28 million shares.
If we are subject to securities class action litigation, we may sustain material costs.
In the past, securities class action litigation has often been brought against a company following a decline in the market price of its securities.
This risk is especially relevant for us because pharmaceutical companies have experienced significant stock price volatility in recent years. If
we face such litigation, it could cause substantial costs and a diversion of management’s attention and resources, which could harm our
business.
As a public company, we are subject to investigations by the SEC and other federal and state regulatory agencies.
The Company cannot predict or determine whether any proceeding may be instituted in connection with any subpoena or the outcome of any
proceeding that may be instituted. Responding to such investigations may consume significant financial resources and limit us from other
programs with those resources. In addition, any adverse investigation result could have a significant adverse effect on the Company share
price and on the ability of the Company to raise necessary capital.
Our ability to use our net operating loss carry forwards and certain other tax attributes may be limited.
Under Section 382 of the Internal Revenue Code of 1986 if a corporation undergoes an “ownership change,” generally defined as a greater
than 50% change (by value) in its equity ownership over a three year period, the corporation’s ability to use its pre-change net operating loss
carry forwards (“NOLs”), and other pre-change tax attributes (such as research tax credits) to offset its post-change income may be limited.
We believe that, with the RFS Pharma and Cocrystal Discovery mergers and other transactions that have occurred over the past three years,
we may have triggered an “ownership change” limitation. We may also experience ownership changes in the future because of subsequent
shifts in our stock ownership. If we earn net taxable income, our ability to use our pre-change net operating loss carry forwards to offset U.S.
federal taxable income may be subject to limitations, which could result in increased future tax liability to us. At the state level, there may be
periods during which the use of NOLs is suspended or otherwise limited, which could accelerate or permanently increase state taxes owed.
We do not intend to pay dividends on our common stock so any returns will be limited to the value of our stock.
We have never declared or paid any cash dividends on our common stock. We anticipate we will retain future earnings for the development,
operation and expansion of our business and do not anticipate declaring or paying any cash dividends for the foreseeable future. Any return to
stockholders will therefore be limited to the appreciation of their stock.
-23-
Because we may not attract the attention of major brokerage firms, it could have a material impact upon the price of our common
stock.
It is not likely that securities analysts of major brokerage firms will provide research coverage for our common stock since the firm itself
cannot recommend the purchase of our common stock under the penny stock rules referenced in the previous risk factor. The absence of such
coverage limits the likelihood that an active market will develop for our common stock. It may also make it more difficult for us to attract
new investors when we acquire additional capital.
Because many of our outstanding shares are freely tradable, sales of these shares could cause the market price of our common stock
to drop significantly, even if our business is performing well.
As of March 10, 2016, we had approximately 704 million shares of common stock outstanding, approximately 103 million of which may be
publicly sold under Rule 144. In general, Rule 144 provides that any non-affiliate of Cocrystal, who has held restricted common stock for at
least six months, is entitled to sell their restricted stock freely, provided that we stay current in our SEC filings. After one year, a non-affiliate
may sell without any restrictions.
An affiliate of the Company may sell after six months (subject to contractual restrictions as described above) with the following restrictions:
(i) we are current in our filings,
(ii)
certain manner of sale provisions, and
(iii)
filing of Form 144.
Future sales of our common stock could cause the market price of our common stock to drop significantly, even if our business is performing
well.
We may issue preferred which could make it more difficult for a third party to acquire us and could depress our stock price.
In accordance with the provisions of our Certificate of Incorporation and the Stockholder Rights Agreement described above, our Board may
issue one or more additional series of preferred stock that have more than one vote per share, so long as the Board obtains the majority
approval of each of the groups of shareholders who formerly held our Series A and Series B. This could permit our Board to issue preferred
stock to investors who support our management and give effective control of our business to our management. Issuance of preferred stock
could block an acquisition resulting in both a drop in our stock price and a decline in interest of our common stock. This could make it more
difficult for shareholders to sell their common stock. This could also cause the market price of our common stock shares to drop significantly,
even if our business is performing well.
If we are not successful in completing preclinical or clinical testing or are unable to demonstrate safety and efficacy of our product
candidates to the satisfaction of the regulatory authorities, we may suffer impairment on our IPR&D assets.
In-process research and development (IPR&D) represents a series of awarded patents, filed patent applications and an in-process research
program acquired in the acquisition of RFS Pharma that are integral to the development of the Company’s planned future products. In-
process research and development represents an indefinite-lived intangible asset. Any series of preclinical and clinical outcomes that reduce
the probability for technical and regulatory success, may trigger interim impairment testing. If our IPR&D becomes impaired, writedown on
the carrying amount of these assets may result, which could depress our stock price. During 2015, we lowered our forecasts of future cash
flows, which caused a reduction in our IPR&D, resulting in an impairment charge of $38.7 million.
We continue to have material weaknesses in internal control over financial reporting, which could negatively impact our ability to
raise capital and could result in increased costs to ensure compliance with Sarbanes-Oxley Section 404.
During our assessment of the effectiveness of internal control over financial reporting as of December 31, 2015, we identified the following
material weaknesses:
We did not maintain adequate segregation of duties in our accounting and financial reporting processes. We have not appropriately restricted
access to our accounting applications to appropriate users and do not have processes in place that ensure that appropriate segregation of
duties is maintained. The Company lacks sufficient qualified personnel to review conclusions reached for complex accounting transactions.
Our internal control over this process would not allow for employees to detect a material misstatement in these areas in the normal course of
performing their duties.
-24-
We do not have processes in place to ensure that all related party transactions, including those entered into with or on behalf of related
parties, (1) have been identified, (2) are properly authorized prior to entering into the transaction, and (3) are properly monitored and
evaluated for appropriate recording and presentation in the financial statements. We did not maintain an effective financial reporting process
to prepare financial statements in accordance with U.S. GAAP. Specifically, our process lacked timely and complete financial statement
reviews and procedures to ensure all required disclosures were made in our financial statements. We also lacked a process to review
information used to prepare our financial statements and disclosures and did not have adequate segregation of duties over preparation of the
financial statements.
Increased costs could be incurred to remediate these material weaknesses and could involve upgrading or replacing the Company’s
accounting software, adding additional staff and providing additional training.
Item 1B. Unresolved Staff Comments
Not Applicable
Item 2. Properties
We have operating facilities in Bothell, WA and Tucker, GA. In addition, we are responsible for a lease of laboratory space in Princeton, NJ.
In January 2014, Cocrystal Discovery renewed its lease for approximately 9,400 square feet of office and laboratory space in Bothell,
Washington. The lease expires on February 1, 2019 and provides for annual rent of approximately $149,617.
As part of the merger (that occurred on November 25, 2014) with RFS Pharma, LLC, Cocrystal assumed the lease for RFS Pharma facilities
located in Tucker, Georgia. This lease was amended on January 1, 2014 and expires on December 31, 2016 for approximately 5,626 (or
6,148) square feet of office and laboratory space. Cocrystal leases the Tucker, Georgia facility from a trust established, in part, for the benefit
of one of Cocrystal’s Directors, Dr. Raymond Schinazi. The annual expense for this lease is estimated to be $183,000 (if all the space as
noted in the lease is used then this number is estimated to be $199,632).
In July 2011, we entered into a lease for approximately 3,869 square feet of laboratory space in Princeton, New Jersey to conduct research
and development activities related to our legacy business. The lease expires on July 20, 2016. Rent expense is $8,231 per month. We sublet
this space on a month-to-month basis at the same rental amount.
We believe that our facilities are sufficient to meet our current needs and that suitable additional space will be available if needed for future
work.
-25-
Item 3. Legal Proceedings
From time to time, the Company is a party to, or otherwise involved in, legal proceedings arising in the normal course of business. As of the
date of this report, except as described below, the Company is not aware of any proceedings, threatened or pending, against it which, if
determined adversely, would have a material effect on its business, results of operations, cash flows or financial position.
In October 2015, Cocrystal Pharma, Inc. received a subpoena from the staff of the Securities and Exchange Commission seeking the
production of documents. The Company is fully cooperating with the inquiry. The Company cannot predict or determine whether any
proceeding may be instituted in connection with the subpoena or the outcome of any proceeding that may be instituted.
The Company has been named as a party to a lawsuit filed on April 15, 2014 in Contra Costa County, California by an entity managed by
Mr. Daniel Fisher. Also named in this action are two of the Company’s subsidiaries – BioZone Laboratories and Cocrystal Discovery. The
action seeks recovery on a promissory note purportedly executed by BioZone Laboratories in the principal amount of $295,000 in 2007, or
almost seven years before the Company’s acquisition of Cocrystal Discovery. Motions challenging the sufficiency of the allegations in the
complaint were filed in the third quarter, 2014. The motions were granted and plaintiff was given an opportunity to amend the complaint,
and plaintiff has filed an amended complaint. On July 2, 2015 the Company, along with its subsidiaries and other named defendants, filed a
motion to bifurcate the action, and stay discovery on one of the causes of action. This motion was granted on August 27, 2015 and the Court
limited the scope of discovery in the first phase of the case. The Court also ordered that the Company post a bond for the amount of
$295,000, and the Company complied with the Order by posting the bond on September 29, 2015. This is recorded as a short-term
deposit. The action should shortly be “at issue” with all parties joined, and the Company expects a trial date on the breach of contract claims,
only, to be set at a Case Management Conference presently scheduled to occur on April 19, 2016. The Company further expects to again
pursue summary adjudication of the contract claims against it (its prior motion having been denied without prejudice to re-filing), following
the Case Management Conference. The Company intends to vigorously defend the action.
On October 13, 2013, Plaintiff Shefa LMV, LLC ("Plaintiff") filed a First Amended Complaint in Los Angeles Superior Court for civil
penalties and injunctive relief against numerous retailers and manufacturers of products, and alleged violations of California Health & Safety
Code Sec. 25249.6 (part of the "Safe Drinking Water and Toxic Enforcement Act") and California Business & Professional Code Sec. 17200,
et seq. (California's "Unfair Competition Law"). The case is captioned Shefa LMV, LLC v. Walgreens Co., et al., Los Angeles Superior
Court Case No. BC520416. The complaint alleges that the retailers and manufacturers failed to place a clear and reasonable warning on the
products which contained "Cocamide DEA" pursuant to the Safe Drinking Water and Toxic Enforcement Act, and further requested that the
defendants be enjoined from manufacturing or selling products with Cocamide DEA in the State of California. Numerous actions that had
been filed alleging similar claims against defendants who manufactured and/or sold Cocamide DEA products have been coordinated, with a
new Judicial Council Coordination Proceeding Case No. JCCP 4765. On October 17, 2014, Plaintiff filed an amendment to the Complaint,
adding our subsidiary BioZone Laboratories, Inc. a California corporation, as Doe Defendant No. 9. The Company filed an Answer to the
First Amended Complaint on October 13, 2015. No discovery has taken place yet.
In October 2015, Cocrystal Pharma, Inc. received a subpoena from the staff of the Securities and Exchange Commission seeking the
production of documents. The Company is fully cooperating with the inquiry. The Company cannot predict or determine whether any
proceeding may be instituted in connection with the subpoena or the outcome of any proceeding that may be instituted.
In December 2015, Cocrystal Pharma, Inc. issued notice of default letters to 580 Garcia Properties, Daniel Fisher and Sharon Fisher for failure
to remit certain payments on a promissory note executed between the parties in June, 2014. Cocrystal Pharma, Inc. also exercised a failure to
pay provision within that note to escalate the interest rate from 7.24% to 11.24%. As of March 9, 2016, the additional amounts due Cocrystal
Pharma, Inc. total approximately $245,000. Due to the contingent nature of this default action, Cocrystal Pharma, Inc. has not recorded these
amounts in our 2015 financial statements.
Item 4. Mine Safety Disclosures
Not applicable.
-26-
PART II
Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Market Information
Our common stock has been quoted on the OTC Bulletin Board under the symbol “COCP” since January 2, 2014. Prior to that it was shown
on the OTC Bulletin Board under the symbol “BZNE.” The following table sets forth the high and low prices as reported on the OTC Bulletin
Board for the prior two years. The quotations reflect inter-dealer prices, without retail mark-up, mark-down or commission, and may not
represent actual transactions. As of March 1, 2016, there were approximately 232 holders of record of our common stock.
Year ended December 31, 2015
January 1, 2015 through March 31, 2015
April 1, 2015 through June 30, 2015
July 1, 2015 through September 30, 2015
October 1, 2015 through December 31, 2015
Year ended December 31, 2014
January 1, 2014 through March 31, 2014
April 1, 2014 through June 30, 2014
July 1, 2014 through September 30, 2014
October 1, 2014 through December 31, 2014
High
Low
$
$
$
$
$
$
$
$
1.53 $
1.51 $
1.16 $
0.89 $
0.60 $
0.44 $
0.60 $
0.74 $
0.40
0.95
0.59
0.52
0.33
0.25
0.27
0.52
The last reported sales price of our Common stock on the OTC Bulletin Board on March 9, 2016 was $0.599 per share.
Dividend Policy
We have not declared nor paid any cash dividend on our common stock, and we currently intend to retain future earnings, if any, to finance the
expansion of our business, and we do not expect to pay any cash dividends in the foreseeable future. The decision whether to pay cash
dividends on our common stock will be made by our board of directors, in their discretion, and will depend on our financial condition, results
of operations, capital requirements and other factors that our board of directors considers significant.
Securities Authorized for Issuance under Equity Compensation Plans
In connection with our merger with Cocrystal, we assumed the Cocrystal Discovery, Inc, 2007 Equity Incentive Plan, as amended (the
“Plan”). See Item 11, “Executive Compensation” for information concerning the Plan.
Recent Sales of Unregistered Securities
In addition to those unregistered securities previously disclosed in reports filed with the Securities and Exchange Commission, we have issued
common stock without registration under the Securities Act of 1933 (the “Securities Act”) as described below.
Between February 11, 2015 and March 6, 2015, the Company issued a total of 5,281,312 shares of common stock to 23 accredited investors
upon the cashless exercise of warrants acquired by such investors in prior securities offerings of the Company. The shares of common stock
issued upon exercise of the warrants have not been registered under the Act and were issued and sold in reliance upon the exemption from
registration contained in Section 3(a)(9) of the Act.
On March 3, 2015, the Company filed an amendment to its Certificate of Incorporation that increased the number of its authorized shares of
common stock from 200,000,000 to 800,000,000. In accordance with the terms of the Certificate of Designation designating the Series A and
the Certificate of Incorporation designating the Series B, the filing of the Certificate of Amendment caused the immediate conversion of the
Series A and Series B into a total of 340,760,802 and 205,083,086 shares of common stock, respectively, for no additional consideration. The
shares of common stock issued upon conversion have not been registered under the Act and were issued and sold in reliance upon the
exemption from registration contained in Section 3(a)(9) of the Act.
On March 15, 2016, Cocrystal Pharma, Inc. (the “Company”) accepted subscription agreements representing investor commitments
totaling $5,004,370 in a private placement offering to investors who participated in the March 2015 private placement on a pro-rata basis to
their participation in the March 2015 private placement (the “Offering”) of 9,812,491 shares of the Company’s common stock at a
purchase price of $0.51 per share. The purchasers included 7 members of the Company’s board of directors including Dr. Raymond F.
Schinazi and Dr. Phil Frost. As of the date of this report, the Company has received all of the committed funds.
Certain existing holders of the Company’s common stock are entitled to rights of first refusal to participate in the Offering under the terms
of a Stockholder Rights Agreement entered into in connection with the Company’s merger with RFS Pharma, LLC in November 2014. If
any such holders notify the Company of their desire to participate in the offering on or prior to March 19, 2016, the Company will accept
on a pro rata basis the subscriptions received from holders of such first refusal rights.
The Company intends to use the net proceeds of the Offering for working capital and general corporate purposes. The form of Securities
Purchase Agreement is attached as Exhibit 10.1 to this Form 10-K and is incorporated herein by reference.
All of the securities were issued and sold in reliance upon the exemption from registration contained in Section 4(a)(2) of the Securities Act
of 1933 (the “Act”) and Rule 506 promulgated thereunder. These securities may not be offered or sold in the United States in the absence
of an effective registration statement or exemption from the registration requirements under the Act. The investors are accredited investors
and there was no general solicitation.
-27-
Item 6. Selected Financial Data
Not required.
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
The following discussion and analysis should be read in conjunction with the Consolidated Financial Statements included elsewhere in this
report.
Company Overview
The Company was formerly incorporated in Nevada under the name Biozone Pharmaceuticals, Inc. On January 2, 2014, the Company sold
substantially all of its assets to MusclePharm Corporation (“MusclePharm”), and, on the same day, merged with Cocrystal Discovery, Inc. in a
transaction accounted for as a reverse merger. Following the merger, the Company assumed Cocrystal Discovery, Inc.’s business plan and
operations. On March 18, 2014, the Company reincorporated in Delaware under the name Cocrystal Pharma, Inc.
Effective November 25, 2014, Cocrystal Pharma, Inc. and affiliated entities completed a series of merger transactions as a result of which
Cocrystal Pharma, Inc. merged with RFS Pharma, LLC, a Georgia limited liability company (“RFS Pharma”). We refer to the surviving entity
of this merger as “Cocrystal” or the “Company.”
The majority of factors based on the qualitative analysis of the considerations in ASC 805 indicate that Cocrystal is the accounting acquirer in
the business combination with RFS Pharma. Therefore, the transaction is not a reverse merger as the legal acquirer is also the acquirer from an
accounting point of view.
Our primary business going forward is to develop novel medicines for use in the treatment of human viral diseases. Cocrystal has been
developing novel technologies and approaches to create first-in-class and best-in-class antiviral drug candidates since its initial funding in
2008. Our focus is to pursue the development and commercialization of broad-spectrum antiviral drug candidates that will transform the
treatment and prophylaxis of viral diseases in humans. By concentrating our research and development efforts on viral replication inhibitors,
we plan to leverage our infrastructure and expertise in these areas.
Critical Accounting Policies and Estimates
Our management’s discussion and analysis of our financial condition and results of operations is based on our consolidated financial
statements, which have been prepared in accordance with U.S. Generally Accepted Accounting Principles, or GAAP. The preparation of these
consolidated financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities and
expenses. On an ongoing basis, we evaluate these estimates and judgments, including those described below. We base our estimates on our
historical experience and on various other assumptions that we believe to be reasonable under the circumstances. These estimates and
assumptions form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other
sources. Actual results and experiences may differ materially from these estimates. While our significant accounting policies are more fully
described in the accompanying notes to the consolidated financial statements included in this Annual Report on Form 10-K for the year ended
December 31, 2015, we believe that the following accounting policies are the most critical to aid you in fully understanding and evaluating
our reported financial results and affect the more significant judgments and estimates that we use in the preparation of our consolidated
financial statements.
Stock-Based Compensation
We account for stock options related to our equity incentive plans under the provisions of Financial Accounting Standards Board (“FASB”)
Accounting Standards Codification (“ASC”) 718 which requires the recognition of the fair value of stock-based compensation. The fair value
of stock options was estimated using a Black-Scholes option valuation model. This model requires the input of subjective assumptions
including expected stock price volatility, expected life and estimated forfeitures of each award. The fair value of equity-based awards is
amortized ratably over the requisite service period of the award. Due to the limited amount of historical data available to us, particularly with
respect to stock-price volatility, employee exercise patterns and forfeitures, actual results could differ from our assumptions.
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Fair Value of Warrants
Warrants are recorded either as equity instruments or derivative liabilities. In the case of warrants recorded as liabilities, they are recorded at
their estimated fair value at the date of issuance. Subsequent changes in estimated fair value are recorded in other income (expense) in the
Company’s statement of operations in each subsequent period. T he warrants are measured at estimated fair value using the Black Scholes
valuation model, which is based, in part, upon inputs for which there is little or no observable market data, requiring the Company to develop
its own assumptions. Inherent in this model are assumptions related to expected stock price volatility, expected life, risk-free interest rate and
dividend yield. We estimate the volatility of our common stock at the date of issuance, and at each subsequent reporting period, based on
historical implied volatility based on a group of comparable companies, that matches the expected remaining life of the warrants. The risk-
free interest rate is based on the U.S. Treasury zero-coupon yield curve on the measurement date for a maturity similar to the expected
remaining life of the warrants. The expected life of the warrants is assumed to be equivalent to their remaining contractual term. The
dividend rate is based on our historical rate, which we anticipate to remain at zero. The assumptions used in calculating the estimated fair
value of the warrants represent our best estimates. However these estimates involve inherent uncertainties and the application of management
judgment. As a result, if factors change and different assumptions are used, the warrant liability and the change in estimated fair value could
be materially different.
Business Combinations and Intangible Assets
In connection with our acquisition of RFS Pharma in November 2014, we acquired a substantial amount of intellectual property. We have
accounted for the intellectual property acquired as an in-process research and development (IPR&D) asset and have determined that asset to
have an indefinite life based on the stage of development of the research projects of RFS Pharma at the date of acquisition. This intangible
asset, which we recorded at its estimated fair value of $185.0 million as of the acquisition date, will continue to have an indefinite life until the
associated research and development activities are complete, at which point a determination of the asset’s useful life will be made. Prior to
completion of these research and development activities, the intangible asset will be subject to annual impairment tests, or more frequent tests
in the event of any impairment indicators occurring. These impairment tests require significant judgment regarding the status of the research
activities, the potential for future revenues to be derived from any products that may result from those activities, and other factors.
The Company conducted its annual impairment tests related to the in-process research and development asset as of November 30, 2015. The
initial valuation recorded in November 2014 at the time of the RFS Pharma acquisition represented the fair value of the acquired hepatitis C
program acquired from RFS Pharma. We performed our impairment test and estimated fair value of each unit of account based on the income
approach (also known as the discounted cash flow (“DCF”) method, which utilizes the present value of future cash flows to estimate fair
value.) The future cash flows for our hepatitis C assets were projected based upon our estimates of future revenues, operating income and
other factors (such as working capital and capital expenditures). We took into account market conditions for hepatitis C therapies, anticipated
new competitive therapies and anticipated market price declines as we modeled future cash flows.
Late in 2015, the Company received reports from ongoing pre-clinical studies that indicated higher than acceptable toxicity related to its
hepatitis C lead molecule, CC-1845. Work is ongoing to further isolate the source(s) of the higher than acceptable toxicity by separating the
two diasteromers that form CC-1845. We have determined one of these diasteromers has higher than desired toxicity. Work on the second
diasteromer is still in process. These events result in longer than anticipated development times for our lead molecule, a lower probability of
technical and regulatory success and longer development times for back-up molecules within hepatitus C. As a result, we have lowered our
forecasts of future cash flows, which caused a reduction in value of our hepatitis C assets and which led to the impairment charged recorded in
2015 of $38.7 million related to our IPR&D asset. As we continue work on this program, we may be required to record additional impairment
charges depending on the outcome of our research activities.
We also recorded $65.2 million of goodwill in the RFS Pharma acquisition that is subject to impairment testing. This goodwill primarily
represents the amount recorded as a deferred tax liability in the RFS Pharma acquisition, which was required as the goodwill recorded for
book purposes is not tax deductible based on the structure of the acquisition. Future impairment tests of goodwill will also require substantial
judgment and estimates. We completed our annual goodwill impairment tests as of November 30, 2015 and determined that there was no
impairment.
Income Taxes
Given the uncertainty regarding future realization of our deferred tax assets, which primarily result from our net operating losses and research
and development credit carryforwards, we have placed a full valuation allowance on our deferred tax assets. However, as noted above, we
initially recorded a deferred tax liability of $65.2 million related to the RFS Pharma acquisition. Due to the impairment loss we recognized on
our in-process research and development in 2015, we reduced the deferred tax liability for the tax effect on that impairment loss, or about
$15.3 million. As of December 31, 2015, our deferred tax liability is approximately $49.9 million. We have not considered this deferred tax
liability as a source of future income in our determination of the need for a valuation allowance against our deferred tax assets due to the fact
that this deferred tax liability relates to our indefinite-lived IPR&D asset, and the timing of reversal of this deferred tax liability cannot
currently be determined due to uncertainty regarding the ultimate outcome of our research activities associated with the intellectual property
acquired in the RFS Pharma transaction. To the extent our estimates regarding the outcome of those activities changes in future periods, our
determination regarding the valuation allowance may also change.
-29-
Results of Operations for the Years Ended December 31, 2015 and December 31, 2014
As stated above, we are focused on research and development of novel medicines for use in the treatment of human viral diseases.
Accordingly, we had no revenue for the years ended December 31, 2015 or 2014, except for $77,000 in grant revenues in 2015 and $9,000 in
2014. For the year ended December 31, 2015, we had a net loss of $50,122,000 compared to a net loss of $99,000 for 2014. We reported a
net loss of $50,122,000 for the year ended December 31, 2015 due primarily to reporting a full year of operations reflecting the merger of
RFS Pharma, which occurred in November 2014 and an impairment loss of $38,665,000 on our IPR&D. Our operating loss for the year ended
December 31, 2015 was $53,948,000, compared to an operating loss of $5,799,000 in 2014. Other expense was $11,422,000 which reflects a
$9,916,000 loss on the fair value of derivative liabilities and a loss on escrowed shares of $1,686,000. The loss on derivative liabilities is due
to the substantial increase in the fair value of our outstanding warrants. Under accounting principles generally accepted in the United
States, we record other income or expense for the change in fair value of our outstanding warrants that are accounted for as liabilities during
each reporting period. If the value of the warrants increases during a period, which occurred during the year ended December 31, 2015, we
record other expense. The fair value of our outstanding warrants is inversely related to the fair value of the underlying common stock; as
such, a decrease in the fair value of our common stock during a given period generally results in other income while an increase in the fair
value of our common stock generally results in other expense. This other income or expense is non cash. We believe investors should focus
on our operating loss rather than net income or loss for the periods presented.
Research and Development Expense
Research and development expense consists primarily of compensation-related costs for our 18 employees dedicated to research and
development activities and for our Scientific Advisory Board members, as well as lab supplies, lab services, and facilities and equipment
costs. We expect research and development expenses to increase in future periods as we expand our pre-clinical development activities.
Total research and development expenses were $47,261,000 for the year ended December 31, 2015, compared with $4,071,000 for the year
ended December 31, 2014. This increase of $43,190,000 is primarily the result of recognizing an impairment loss on IPR&D of $38,665,000
as well as reporting a full year of operations reflecting the merger of RFS Pharma, which occurred in November 2014. Laboratory Services
increased $2,814,000, personnel costs increased $1,142,000 and professional fees increased $569,000. We expect research and development
expenses to increase in 2016 reflecting manufacturing scale up and our initiation of Phase I programs.
General and Administrative Expense
General and administrative expense includes compensation-related costs for our employees dedicated to general and administrative activities,
legal fees, audit and tax fees, consultants and professional services, and general corporate expenses.
General and administrative expenses were $6,765,000 for the year ended December 31, 2015, compared with $1,737,000 for the year ended
December 31, 2014. This increase of $5,028,000 is primarily the result of reporting a full year of operations reflecting the merger of RFS
Pharma, which occurred in November 2014. In addition, there were significant new expenses in 2015 for equity stock option grants to new
executives of $2,934,000 and $518,000 in additional legal expenses related to the several legal proceedings Cocrystal Pharma, Inc. is a party
to.
Future general and administrative expenses are expected to continue at the current levels.
Interest Income/Expense
Interest income was $180,000 for the year ended December 31, 2015, compared to $96,000 for the year ended December 31, 2014. These
amounts primarily represent interest earned on the mortgage note we acquired in June 2014. The key objectives of our investment policy are
to preserve principal and ensure sufficient liquidity, so our invested cash may not earn as high a level of income as longer-term or higher risk
securities, which generally have less liquidity and more volatility.
Other Income/Expense
Other expense, net, was $11,422,000 for the year ended December 31, 2015 compared with Other Income, net of $5,648,000 for the year
ended December 31, 2014.
Other expense, net of $11,422,000 for the year ended December 31, 2015 reflects an increase in fair value of our derivative liabilities as our
stock price increased, $9,916,000, and the loss on MusclePharm escrow shares of $1,686,000. These shares were to be held in escrow but
released by the escrow agent to Musclepharm. Cocrystal Pharma believes this release was in error and is vigorously seeking to recoup these
losses.
Other Income in 2014 of $5,648,000 reflects a $1,359,000 realized gain on marketable securities, and other income of $5,730,000 related to
the decrease in fair value of our derivative liabilities as our stock price decreased, offset by other expense of $946,000 for the difference
between the proceeds received in our January 2014 common stock financing and the fair value of the warrants issued with the common
stock. These derivative liabilities are warrants to acquire the Company’s common stock that are potentially settleable in cash.
-30-
Income Taxes
For the year ended December 31, 2015, we recorded an income tax benefit of $15,248,000 resulting primarily from reduction of our deferred
tax liability stemming from the impairment loss recorded for the Company’s in-process research and development. At our effective tax rate of
approximately 34%, the impact on our deferred tax liability for the $38.7 million impairment loss is approximately $12 million. The
remaining tax benefit of approximately $3.2 million resulted from favorable changes in our state income tax apportionment rates.
Liquidity and Capital Resources
We had cash and cash equivalents of approximately $9.3 million as of December 31, 2015.
For the year ended December 31, 2015, net cash used in operating activities was $10,317,000, compared to net cash used in operating
activities of $6,009,000 for 2014. The increase in cash used in operating activities from 2014 to 2015 was attributable to our increase in
research and development activities, including an increase in personnel, and increased general and administrative expenses associated with
being a public company and with the two mergers we entered into during 2014. In 2015, net cash used in investing activities of $262,000
consisted of capital expenditures primarily for improvements to our corporate offices in Tucker, Georgia. For the year ended December 31,
2015, net cash provided by financing activities was $15,885,000, compared to cash provided by financing activities of $2,866,000 for 2014. In
2015, net cash generated by financing activities was primarily due to the proceeds from issuance of common stock.
We have a history of operating losses as we have focused our efforts on raising capital and research and development activities. The
Company’s consolidated financial statements are prepared using generally accepted accounting principles in the United States of America
applicable to a going concern, which contemplates the realization of assets and the satisfaction of liabilities in the normal course of business.
The Company has incurred net losses and negative operating cash flows since inception. For the year ended December 31, 2015, the
Company recorded a net loss of approximately $50.1 million and used approximately $10.3 million of cash in operating activities. As of
December 31, 2015, the Company had approximately $9.3 million in cash and cash equivalents and working capital, excluding our derivative
liabilities, of approximately $7.3 million. The Company has not yet established an ongoing source of revenue sufficient to cover its operating
costs and allow it to continue as a going concern. The ability of the Company to continue as a going concern is dependent on the Company
obtaining adequate capital to fund operating losses until it becomes profitable. The Company can give no assurances that any additional
capital that it is able to obtain, if any, will be sufficient to meet its needs, or that any such financing will be obtainable on acceptable terms. If
the Company is unable to obtain adequate capital, it could be forced to cease operations or substantially curtail is commercial activities.
These conditions raise substantial doubt as to the Company’s ability to continue as a going concern. The accompanying financial statements
do not include any adjustments relating to the recoverability and classification of recorded asset amounts and classification of liabilities
should the Company be unable to continue as a going concern.
In March, 2016 we received commitments from investors to invest $5,004,370 in the Company. As of March 14, all of these funds have been
received. As we continue to incur losses, achieving profitability is dependent upon the successful development, approval and
commercialization of our product candidates, which is a number of years in the future. Once that occurs, we will have to achieve a level of
revenues adequate to support our cost structure. We may never achieve profitability, and unless and until we do, we will continue to need to
raise additional capital. Over the next 12 months ending December 31, 2016, we estimate negative cash flow of approximately $17.0
million. Management intends to fund future operations through additional private or public debt or equity offerings, and may seek additional
capital through arrangements with strategic partners or from other sources.
Off-Balance Sheet Arrangements
We do not have any off-balance sheet arrangements.
Cautionary Note Regarding Forward Looking Statements
This report includes forward-looking statements including statements regarding our future business development, regulatory compliance,
generation of revenues, our liquidity, expectations from proposed capital raises, and the issues relating to the potential claims relating to our
former Pittsburg, California lease and the related bank loan guarantee.
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. 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 and our other filings with the
SEC
-31-
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
Our primary exposure to market risk is interest rate sensitivity, which is affected by changes in the general level of U.S. interest
rates. However, as our investments are in highly liquid money market funds, we do not believe we are subject to any material market risk
exposure. As of December 31, 2015, we did not have any material derivative financial instruments held as assets. The fair value of our cash
and cash equivalents was $9.3 million as of December 31, 2015.
We do not currently have any hard to value investment securities or securities for which a market is not readily available or active.
We are not subject to significant credit risk as this risk does not have the potential to materially impact the value of our assets and liabilities.
Item 8. Financial Statements and Supplementary Data
The consolidated financial statements and supplementary data of Cocrystal Pharma, Inc. required by this Item are described in Item 15 of
this Annual Report on Form 10-K and are presented beginning on page F-1.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosures
Not applicable.
Item 9A. Controls and Procedures
As required by Rule 13a-15 under the Securities Exchange Act of 1934, as of December 31, 2015, the fiscal year end covered by this report,
our management concluded its evaluation of the effectiveness of the design and operation of our disclosure controls and procedures.
Disclosure controls and procedures refer to controls and other procedures designed to ensure that information required to be disclosed in the
reports we file or submit under the Securities Exchange Act of 1934 is recorded, processed, summarized and reported within the time periods
specified in the rules and forms of the SEC and that such information is accumulated and communicated to our management, including our
chief executive officer and chief financial officer, as appropriate, to allow timely decisions regarding required disclosure. In designing and
evaluating our disclosure controls and procedures, management recognizes that any controls and procedures, no matter how well designed and
operated, can provide only reasonable assurance of achieving the desired control objectives, and management is required to apply its judgment
in evaluating and implementing possible controls and procedures.
Our management does not expect that our disclosure controls and procedures will prevent all error and all fraud. A control system, no matter
how well designed and operated, can provide only reasonable, not absolute, assurance that the control system’s objectives will be met.
Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered
relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that
all control issues and instances of fraud, if any, have been detected. These inherent limitations include the realities that judgments in decision-
making can be faulty, and that breakdowns can occur because of simple error or mistake. The design of any system of controls is based in part
upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its
stated goals under all potential future conditions.
With respect to the fiscal year ended December 31, 2015, under the supervision and with the participation of our management, we conducted
an evaluation of the effectiveness of the design and operations of our disclosure controls and procedures, as defined in Rules 13a-15(e) and
15d-15(e) promulgated under the Securities Exchange Act of 1934. Based upon our evaluation regarding the fiscal year ending December 31,
2015, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were not effective due to
inadequate accounting systems and insufficient personnel to properly prepare, implement and monitor adequate controls and procedures.
Management’s Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rules 13a-
15(f) and 15d-15(f) under the Securities Exchange Act. Our management is also required to assess and report on the effectiveness of our
internal control over financial reporting in accordance with Section 404 of the Sarbanes-Oxley Act of 2002 (“Section 404”). Management
assessed the effectiveness of our internal control over financial reporting as of December 31, 2015. In making this assessment, we used the
criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control - Integrated
Framework (2013). During our assessment of the effectiveness of internal control over financial reporting as of December 31, 2015, we
identified the following material weaknesses:
COSO Components – Control Environment
We did not maintain an effective control environment, which is the foundation and structure necessary for effective internal control over
financial reporting, as evidenced by: (i) lack of segregation of duties over individuals responsible for certain key control activities; (ii) an
insufficient number of personnel appropriately qualified to perform control monitoring activities, including the recognition of the risks and
complexities of transactions; and (iii) an insufficient number of personnel with the appropriate level of GAAP knowledge and experience
commensurate with our financial reporting requirements. This control environment material weakness contributed to the company not
having effective controls to ensure that potential errors or misstatements may occur, but may not be detected.
-32-
Risk Assessment, Monitoring Activities and Control Activities - Segregation of Duties
We did not maintain adequate segregation of duties in our accounting and financial reporting processes. We have not appropriately restricted
access to our accounting applications to appropriate users and do not have processes in place that ensure that appropriate segregation of duties
is maintained. Certain personnel have access to financial applications, programs and data beyond that needed to perform their individual job
responsibilities and without independent monitoring. This allows for the creation, review and processing of certain financial data without
independent review and authorization. There are also certain financial personnel that have incompatible duties, including in the areas of cash
disbursements, payroll, and journal entry reviews. We have not yet completed the process of assigning different people the responsibilities of
authorizing transactions, recording transactions, and maintaining custody of assets to reduce the opportunities to allow any person to be in a
position to both perpetrate and conceal errors or fraud in the normal course of the person’s duties. Particularly in the areas of purchases, cash
disbursements, and payroll, certain individuals have incompatible duties that limit our ability to identify and detect errors or fraud that may
occur.
Risk Assessment, Monitoring Activities and Control Activities - Supervision and Review of Complex Accounting Areas
The Company lacks sufficient qualified personnel to review conclusions reached regarding the accounting for complex transactions and
related analyses to record amounts resulting from such transactions in our financial records. For calculations related to stock-based
compensation and the fair value of our derivative liabilities in particular, there is a lack of review of assumptions used and the underlying
calculations made by the preparer of this information that are then used to record amounts in our financial statements. There is also a lack of
review of assumptions used and documentation of the sources of information used in our evaluation of the fair value of our in-process
research and development intangible asset. Our internal control over these processes would not allow for employees to detect a material
misstatement in these areas in the normal course of performing their duties.
Risk Assessment, Information and Communication - Authorization, Identification and Reporting of Related Party Transactions
We do not have processes in place to ensure that all related party transactions, including those entered into with or on behalf of related
parties, (1) have been identified, (2) are properly authorized prior to entering into the transaction, and (3) are properly monitored and
evaluated for appropriate recording and presentation in the financial statements.
Monitoring Activities and Control Activities - Financial Reporting Process
We did not maintain an effective financial reporting process to prepare financial statements in accordance with U.S. GAAP. Specifically, our
process lacked timely and complete financial statement reviews and procedures to ensure all required disclosures were made in our financial
statements. We also lacked a process to review information used to prepare our financial statements and disclosures and did not have adequate
segregation of duties over preparation of the financial statements.
The material weaknesses identified by management could result in a material misstatement to our annual or interim financial statements that
would not be prevented or detected. Management has concluded that our internal control over financial reporting was not effective as
of December 31, 2015 due to the material weaknesses identified. We reviewed the results of management’s assessment with the Audit
Committee of the Company’s Board of Directors.
BDO USA, LLP, our independent registered public accounting firm, has issued an attestation report regarding its assessment of our internal
control over financial reporting as of December 31, 2015, as set forth at the beginning of Part II, Item 8 of this Annual Report on Form 10-K.
A material weakness (within the meaning of PCAOB Auditing Standard No. 5) is a deficiency, or a combination of deficiencies, in internal
control over financial reporting, such that there is a reasonable possibility that a material misstatement of our annual or interim financial
statements will not be prevented or detected on a timely basis. A significant deficiency is a deficiency, or a combination of deficiencies, in
internal control over financial reporting that is less severe than a material weakness; yet important enough to merit attention by those
responsible for oversight of Cocrystal’s financial reporting.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Projections of any
evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or
that the degree of compliance with the policies and procedures may deteriorate.
-33-
Changes in Internal Control over Financial Reporting
Except for the changes described below, there were no changes in internal control over financial reporting that occurred during the
year ended December 31, 2015, that have materially affected, or are reasonably likely to materially affect, our internal control over financial
reporting.
On November 16, 2015, Curtis Dale became our Interim Chief Financial Officer (CFO). Mr. Dale has extensive experience in
accounting and finance, and provides additional pharmaceutical industry knowledge. Mr. Dale was promoted to the Interim Chief Financial
Officer position from his position as Controller with the Company. That Controller position was added in August, 2015 to provide additional
resources focused on improving internal controls over financial reporting.
The Controller position remained vacant from November 16, 2015 through January 11, 2016, when a contract Controller was
engaged. The Company’s accountant was also replaced with a contract accountant in early November 2015. These changes in finance
personnel resulted from shifting those responsibilities from the Company’s Bothell, Washington location to its Tucker, Georgia location.
The new Finance personnel began the process of implementing certain control procedures to strengthen our control environment. We also
began more thoroughly documenting our control activities in place and performed some testing of our internal control activities. However,
these efforts have been preliminary and we have identified several material weaknesses, as noted above, during the course of performing these
procedures.
Remedial Actions to Address Material Weaknesses
The Company recognized that it did not maintain an effective control environment during 2015 which contributed to the company not
having effective controls to ensure that potential errors or misstatements may occur, but may not be detected. The Company intends to
focus more resources on internal control procedures during 2016. The Company engaged a third party consultant to help document,
propose and develop a set of entity level and activity level controls that once implemented would help the Company becomes Sarbanes-
Oxley Section 404 compliant. An initial set of risk control matrices have been developed and are undergoing evaluation to identify the key
versus non-key activities and related controls.
Segregation of Duties-The Company has developed a Segregation of Duties Matrix and is in the process of updating business processes,
documentation and job roles to fully implement this matrix. We have not yet completed the process of assigning different people the
responsibilities of authorizing transactions, recording transactions, and maintaining custody of assets to reduce the opportunities to allow any
person to be in a position to both perpetrate and conceal errors or fraud in the normal course of the person’s duties. Our financial software does
not provide robust administrative tools to effectively segregate roles, especially with limited financial staff. The Company will be evaluating a
replacement financial system in 2016 but will also focus on effective compensating controls until the financial software can be upgraded or
replaced.
Supervision and Review of Complex Accounting Areas-During 2015, the Chief Financial Officer was responsible for calculations related to
stock-based compensation and the fair value of derivative liabilities. As conducted in 2015, this process did not provide the appropriate level
of review of assumptions and underlying calculations to detect material misstatements. Going forward, the Controller will prepare the
complex calculations and the Chief Financial Officer will review those prior to adjusting any valuations in the financial statements.
Authorization, Identification and Reporting of Related Party Transactions- During 2015, the Company added a General Counsel position to
the organization. The Company is in the process of developing contracting procedures that will require both the General Counsel and Chief
Financial Officer to review and approve all new contracts and agreements, prior to approval by the Chief Executive Office. The Company is
also in the process of tightening procurement processes to ensure competitive bids are requested and the vendors participating in these bids are
more thoroughly researched prior to any Company commitments.
More formal financial statement review processes will be established and will include the CEO and General Counsel, in addition to the
CFO. A disclosure checklist is being developed to help ensure the adequacy and timeliness of all financial statement disclosures.
Item 9B. Other Information
Not applicable.
-34-
COCRYSTAL PHARMA, INC.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Report of Independent Registered Public Accounting Firm
Report of Independent Registered Public Accounting Firm on Internal Control over Financial Reporting
Consolidated Balance Sheets
Consolidated Statements of Operations and Comprehensive Income (Loss)
Consolidated Statements of Convertible Preferred Stock and Stockholders’ Equity (Deficit)
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
Page
F-1
F-2
F-3
F-4
F-5
F-6
F-7
-35-
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Board of Directors and Stockholders
Cocrystal Pharma, Inc.
Tucker, Georgia
We have audited the accompanying consolidated balance sheets of Cocrystal Pharma, Inc. (the “Company”) as of December 31, 2015 and
2014 and the related consolidated statements of operations and comprehensive income (loss), convertible preferred stock and stockholders’
equity (deficit), and cash flows for each of the two years in the period ended December 31, 2015. These financial statements are the
responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material
misstatement. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the
financial statements. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of
Cocrystal Pharma, Inc. at December 31, 2015 and 2014, and the results of its operations and its cash flows for the years then ended, in
conformity with accounting principles generally accepted in the United States of America.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), Cocrystal
Pharma, Inc.’s internal control over financial reporting as of December 31, 2015, based on criteria established in Internal Control – Integrated
Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) and our report dated March
15, 2016, expressed an adverse opinion thereon.
The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. As
described in Note 1 to the consolidated financial statements, the Company has suffered recurring losses from operations and has an
accumulated deficit that raise substantial doubt about its ability to continue as a going concern. Management’s plans in regard to these
matters are also described in Note 1. The consolidated financial statements do not include any adjustments that might result from the
outcome of this uncertainty. Our opinion is not modified with respect to this matter.
/s/ BDO USA, LLP
Seattle, Washington
March 15, 2016
F-1
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Board of Directors and Stockholders
Cocrystal Pharma, Inc.
Tucker, Georgia
We have audited Cocrystal Pharma, Inc.’s internal control over financial reporting as of December 31, 2015, based on criteria established in
Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (the
COSO criteria). Cocrystal Pharma, Inc.’s management is responsible for maintaining effective internal control over financial reporting and for
its assessment of the effectiveness of internal control over financial reporting, included in the accompanying “Item 9A, Management’s Report
on Internal Control Over Financial Reporting”. Our responsibility is to express an opinion on the Company’s internal control over financial
reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial
reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting,
assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on
the assessed risk. Our audit also included performing such other procedures as we considered necessary in the circumstances. We believe that
our audit provides a reasonable basis for our opinion.
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting
principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of
records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide
reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally
accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of
management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any
evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or
that the degree of compliance with the policies or procedures may deteriorate.
A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a
reasonable possibility that a material misstatement of the company’s annual or interim financial statements will not be prevented or detected
on a timely basis. Material weaknesses regarding management’s failure to maintain an effective control environment; design and maintain
controls over appropriate segregation of duties; design and maintain controls over the supervision and review of complex accounting areas;
design and maintain controls over the supervision and review of the financial reporting process; and design and maintain controls over the
authorization, identification, and disclosure of related party transactions have been identified and described in management’s assessment.
These material weaknesses were considered in determining the nature, timing, and extent of audit tests applied in our audit of the 2015
financial statements, and this report does not affect our report dated March 15, 2016, on those financial statements.
In our opinion, Cocrystal Pharma, Inc. did not maintain, in all material respects, effective internal control over financial reporting as of
December 31, 2015, based on the COSO criteria.
We do not express an opinion or any other form of assurance on management’s statements referring to any corrective actions taken by the
company after the date of management’s assessment.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated
balance sheets of Cocrystal Pharma, Inc. as of December 31, 2015 and 2014, and the related consolidated statements of operations and
comprehensive income (loss), convertible preferred stock and stockholders’ equity (deficit), and cash flows for each of the two years in the
period ended December 31, 2015, and our report dated March 15, 2016 expressed an unqualified opinion thereon.
/s/ BDO USA, LLP
Seattle, Washington
March 15, 2016
F-2
COCRYSTAL PHARMA, INC.
CONSOLIDATED BALANCE SHEETS
(in thousands)
Assets
Current assets:
Cash and cash equivalents
Accounts receivable
Marketable securities
Prepaid and other current assets
Mortgage note receivable, current portion
Total current assets
Property and equipment, net
Deposits
Mortgage note receivable, long-term portion
In process research and development
Goodwill
Total assets
Liabilities and stockholders' equity (deficit)
Current liabilities:
Accounts payable and accrued expenses
Derivative liabilities
Total current liabilities
Long-term liabilities
Deferred rent
Deferred tax liability
Total long-term liabilities
Total liabilities
Commitments and contingencies
December 31,
2015
December
31, 2014
$
$
$
$
9,276
32
-
441
170
9,919
$
$
430
31
2,354
146,301
65,195
224,230
2,585
4,115
6,700
61
49,875
49,936
3,970
122
1,975
144
165
6,376
284
31
2,431
184,966
65,195
259,283
693
8,464
9,157
62
65,195
65,257
$
56,636
$
74,414
Series A convertible preferred stock, $0.001 par value; 1,000 shares authorized, issued and outstanding at
December 31, 2014, issued in the merger with RFS Pharma, LLC
$
-
$
178,218
Stockholders' equity:
Series B convertible preferred stock, $.001 par value; 5,000 shares authorized; 10 and 1,000 shares
issued and outstanding at December 31, 2015 and December 31, 2014, respectively
-
1
Common stock, $.001 par value; 800,000 and 200,000 shares authorized, 694,396 and 122,494
shares issued and outstanding as of December 31, 2015 and December 31, 2014, respectively
Additional paid-in capital
Accumulated other comprehensive income, net of tax
Accumulated deficit
Total stockholders' equity
694
229,456
-
(62,556)
167,594
123
18,725
236
(12,434)
6,651
Total liabilities and stockholders' equity
$
224,230
$
259,283
See accompanying notes to consolidated financial statements.
F-3
COCRYSTAL PHARMA, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE INCOME (LOSS)
(in thousands)
Grant revenues
Operating expenses
Research and development
General and administrative
Total operating expenses
Loss from operations
Interest income
Realized gain on sale of marketable securities
Other expense
Fair value of warrant liabilities in excess of proceeds from financing
Loss on return of escrowed shares
Change in fair value of derivative liabilities
Total other income (expense), net
Loss before income taxes
Income tax benefit
Net loss
Comprehensive income (loss):
Net loss
Unrealized gain on marketable securities, net of tax
Total comprehensive income (loss)
Net loss per common share:
Net loss per share, basic
Net loss per share, diluted
Weighted average common shares outstanding, basic
Weighted average common shares outstanding, diluted
See accompanying notes to consolidated financial statements.
F-4
2015
2014
$
78
$
9
47,261
6,765
54,026
4,071
1,737
5,808
(53,948)
(5,799)
180
-
-
-
(1,686)
(9,916)
(11,422)
96
1,359
(7)
(946)
(584)
5,730
5,648
(65,370)
(151)
15,248
(50,122) $
(50,122) $
-
(50,122) $
52
(99)
(99)
236
137
(0.08) $
(0.08) $
630,316
630,316
(0.00)
(0.01)
326,779
327,753
$
$
$
$
$
CONSOLIDATED STATEMENTS OF CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS’ EQUITY (DEFICIT)
(in thousands)
COCRYSTAL PHARMA, INC.
Series A
Convertible
Preferred Stock
Series B
Convertible
Preferred Stock Common Stock
Shares Amount Shares Amount Shares Amount
Additional
Paid-in
capital
Accumulated
other
comprehensive
income (loss)
Accumulated
Deficit
Total
Stockholders'
Equity
Balance as of
December 31,
2013
Conversion of
series A
convertible
stock
7,046 $
10,308
279 $
-
- $
- $
3,502
$
(12,335)$
(8,833)
(7,046)
(10,308)
721
1
10,107
10,108
Merger between
Biozone
Pharmaceuticals,
Inc. and
Cocrystal
Discovery, Inc.
Exercise of
common stock
options
Stock-based
compensation
Issuance of
common stock
and warrants in
January 2014
Unrealized gain
on marketable
securities, net of
tax
Series A
preferred stock
issued in the
merger with RFS
Pharma, LLC
Stock options
issued in the
merger with RFS
Pharm, LLC
Net loss
Balance as of
December 31,
2014
1,000 178,218
1,000 $ 178,218 1,000 $
Exercise of
common stock
options
Conversion of
Series A and
Series B
convertible
shares to
common stock (1,000 ) (178,218 ) (1,000)
Stock-based
compensation
Sale of common
shares
Unrealized loss on marketable
securities, net of tax
Exercise of
warrants
115,907
116
(1,596)
(1,480)
1,087
1
115
38
5,500
6
(6)
$
236
116
38
-
236
-
6,565
(99)
6,565
(99)
1
122,494 $
123 $
18,725 $
236 $
(12,434)$
6,651
182
23
23
(1) 545,844
546 177,673
178,218
2,934
17,239
17
15,845
8,637
8
14,256
(236)
2,934
15,862
(236)
14,264
Net loss
Balance as of
December 31,
2015
- $
-
- $
-
694,396 $
694 $ 229,456 $
- $
(62,556)$
167,594
See accompanying notes to consolidated financial statements.
(50,122)
(50,122)
F-5
COCRYSTAL PHARMA, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
Operating activities:
Net loss
Adjustments to reconcile net loss to net cash used in operating activities:
Depreciation
Stock-based compensation
Fair value of warrant liabilities in excess of proceeds from financing
Change in fair value of derivative liabilities
Deferred income tax
Loss on return of escrowed shares
Realized gain on sale of marketable securities
Impairment on IPR&D
Loss on sale of equipment
Changes in operating assets and liabilities:
Prepaid expenses and other current assets
Accounts payable and accrued expenses
Net cash used in operating activities
Investing activities
Cash acquired in acquisition of Biozone Pharmaceuticals, Inc.
Cash acquired in acquisition of RFS Pharma, Inc.
Purchase of property and equipment
Long term deposits
Proceeds from sale of marketable securities
Investment in mortgage note receivable
Principal payments received on mortgage note receivable
Net cash provided by (used in) investing activities
Financing activities
Proceeds from exercise of stock options
Proceeds from issuance of common stock and warrants
Net cash provided by financing activities
Net increase in cash and cash equivalents
Cash and cash equivalents at beginning of period
Cash and cash equivalents at end of period
SUPPLEMENTAL DISCLOSURE OF NON-CASH INVESTING AND FINANCING ACTIVITIES:
Cashless exercise of warrants
Unrealized gain on marketable securities net of tax
Fair value of assets acquired and liabilities assumed in reverse merger with Biozone Pharmaceuticals, Inc.
Prepaid expenses and other current assets
Marketable securities
Accounts payable and accrued expenses
Derivative liabilities
Fair value of Series A preferred stock issued in acquisition of RFS Pharma, LLC
Fair value of stock options issued in acquisition of RFS Pharma, LLC
Fair value of assets acquired and liabilities assumed in acquisition of RFS Pharma, LLC
In-process research and development
Goodwill
Deferred tax liabilities
Prepaid expenses and other current assets
Accounts payable and accrued expenses
Property and equipment
Other long term assets
See accompanying notes to consolidated financial statements.
2015
2014
$
(50,122) $
192
2,934
-
9,916
(15,267)
1,686
-
38,665
-
(212)
1,891
(10,317)
-
-
(339)
-
-
-
77
(262)
23
15,862
15,885
5,306
3,970
9,276
$
14,265 $
-
-
-
-
-
-
-
-
-
-
-
-
-
-
$
$
(99)
199
38
(5,730)
(52)
584
(1,359)
-
6
9
(551)
(6,009)
589
194
(5)
(3)
7,900
(2,626)
30
6,079
116
2,750
2,866
2,936
1,034
3,970
0
236
5
8,811
(410)
(10,475)
178,218
6,566
184,966
65,195
(65,195)
132
(532)
14
10
F-6
COCRYSTAL PHARMA, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Organization and Basis of Presentation
Cocrystal Pharma, Inc. (the “Company”) is a biopharmaceutical company focused on developing antiviral therapeutics for human diseases.
On January 2, 2014, Biozone Pharmaceuticals, Inc. merged with Cocrystal Discovery, Inc. (as further described below). The Company was
previously incorporated in Nevada under the name Biozone Pharmaceuticals, Inc. ("Biozone"). On March 18, 2014, the Company
reincorporated in Delaware under the name Cocrystal Pharma, Inc. ("we", the "Company", or "Cocrystal").
Our primary business is to develop novel medicines for use in the treatment of human viral diseases. Cocrystal has been developing novel
technologies and approaches to create antiviral drug candidates since its initial funding in 2008. Our focus is to pursue the development and
commercialization of broad-spectrum antiviral drug candidates that will transform the treatment and prophylaxis of viral diseases in humans.
By concentrating our research and development efforts on viral replication inhibitors, we plan to leverage our infrastructure and expertise in
these areas.
Effective January 2, 2014, Biozone, Biozone Acquisitions Co., Inc., a wholly-owned subsidiary of Biozone (the “Merger Sub”), and Cocrystal
Discovery entered into and closed an Agreement and Plan of Merger (the “Biozone Merger Agreement”). Pursuant to the Biozone Merger
Agreement, Merger Sub merged with and into Cocrystal Discovery (the “Merger”), with Cocrystal Discovery continuing as the surviving
corporation and a wholly-owned subsidiary of Biozone. Cocrystal Discovery is considered the accounting acquirer as its shareholders own
60% of the combined entity after the Merger. In connection with the Biozone Merger Agreement, all of the Company’s shares of Series A
preferred stock were first converted to common stock, and Biozone then issued to Cocrystal Discovery’s security holders a total of 1,000,000
shares of the Company’s Series B Convertible Preferred Stock (“Series B”) (at a ratio of 0.07454 Series B stock for each common share of
Cocrystal Discovery). The Series B shares: (i) automatically convert into shares of the Company’s common stock at a rate of 205.08308640
shares for each share of Series B at such time that the Company has sufficient authorized capital, (ii) are entitled to vote on all matters
submitted to shareholders of the Company and vote on an as converted basis and (iii) have a nominal liquidation preference. Additionally, the
Company assumed all of the outstanding stock options under the Cocrystal Discovery 2007 Equity Incentive Plan. Subsequent to the Merger,
Biozone changed its name to Cocrystal Pharma, Inc.
The Merger has been treated as a reverse merger and recapitalization effected by a share exchange for financial accounting and reporting
purposes since substantially all of Biozone’s operations were disposed of immediately prior to the consummation of the Merger as reported on
a Form 8-K filed by Biozone on January 2, 2014. Cocrystal Discovery is treated as the accounting acquirer as its shareholders control the
Company after the Merger, even though Biozone was the legal acquirer. As a result, the assets and liabilities and the historical operations that
are reflected in these financial statements are those of Cocrystal Discovery as if Cocrystal Discovery had always been the reporting company
and, on the Merger date, changed its name and reorganized its capital stock. Since Biozone had no operations upon the Merger taking place,
the transaction was treated as a recapitalization for accounting purposes and no goodwill or other intangible assets were recorded by the
Company as a result of the Merger. Historical common stock amounts and additional paid-in capital have been retroactively adjusted using
the exchange ratio of 0.07454 Series B shares for each one common share of Cocrystal Discovery.
Effective November 25, 2014, Cocrystal, Cocrystal Holdings, Inc., a Delaware corporation and wholly-owned subsidiary of Cocrystal,
Cocrystal Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of the Company (the “Cocrystal Merger Sub”), RFS Merger
Sub, LLC, a Delaware limited liability company and wholly-owned subsidiary of the Company (the “RFS Merger Sub”) and RFS Pharma,
LLC, a Georgia limited liability company (“RFS Pharma”), entered into and closed an Agreement and Plan of Merger (the “RFS Merger
Agreement”).
The consideration paid by the Company was approximately $184.8 million, consisting of the issuance of 1,000,000 shares of Series A
Preferred stock (“Series A”) with an estimated fair value of approximately $178.2 million and the issuance of 16,542,538 options to purchase
the Company’s common stock as replacements of awards previously issued to employees of RFS Pharma with an estimated fair value of
approximately $6.6 million. The Series A shares automatically converted into 340,760,802 shares of the Company’s common stock upon the
approval of the Company’s shareholders on March 3, 2015 to increase the total number of the Company’s authorized common shares to
800,000,000 shares. Prior to the Series A shares being converted to common stock, the Series A shares contained a provision that they could
be redeemed at each holder’s option based on a defined conversion price beginning on November 25, 2015 if not previously converted to
common stock. The Series A shares were therefore classified as mezzanine equity in the Company’s balance sheet as of December 31, 2014,
because at that time such shares could potentially have been redeemed by its holders for events that were outside the Company’s control. No
accretion to redemption value was required, as redemption was not probable.
Basis of Presentation
The financial statements are prepared in accordance with accounting principles generally accepted in the United States (“GAAP”).
Principles of Consolidation
The consolidated financial statements include the accounts of Cocrystal Pharma, Inc. and its wholly owned subsidiaries: RFS Pharma, LLC,
Cocrystal Discovery, Inc., Cocrystal Merger Sub, Inc., Baker Cummins Corp. and Biozone Laboratories, Inc. Intercompany transactions and
balances have been eliminated.
F-7
Liquidity
The Company has no pharmaceutical products approved for sale, has not generated any revenues to date from pharmaceutical product sales,
and has incurred significant operating losses since inception. The Company has never been profitable and has incurred losses from operations
of $54.0 million and $5.8 million in the years ended December 31, 2015 and 2014, respectively. Subsequent to December 31, 2015, the
Company received commitments for a $5,004,370 private stock placement, all of which has been received. The Company does not believe
that its cash and cash equivalents of $9.3 million as of December 31, 2015, and funds received in this financing will be sufficient to allow the
Company to fund its current operating plan for at least the next 12 months. The ability of the Company to continue as a going concern is
dependent on the Company obtaining adequate capital to fund operating losses until it becomes profitable. The Company can give no
assurances that any additional capital that it is able to obtain, if any, will be sufficient to meet its needs, or that any such financing will be
obtainable on acceptable terms. If the Company is unable to obtain adequate capital, it could be forced to cease operations or substantially
curtail its commercial activities. These conditions raise substantial doubt as to the Company’s ability to continue as a going concern. The
accompanying consolidated financial statements do not include any adjustments relating to the recoverability and classification of recorded
asset amounts and classification of liabilities should the Company be unable to continue as a going concern.
Management’s Plan to Continue as a Going Concern:
In order to continue as a going concern, the Company will need, among other things, additional capital resources. Management’s plans to
obtain such resources for the Company include obtaining capital from the sale of its equity securities during 2016. However, management
cannot provide any assurance that the Company will be successful in accomplishing any of its plans.
The ability of the Company to continue as a going concern is dependent upon its ability to successfully accomplish the plans described in the
preceding paragraph and eventually to secure other sources of financing and attain profitable operations.
2. Summary of Significant Accounting Policies
Segments
The Company operates in only one segment. Management uses cash flow as the primary measure to manage its business and does not segment
its business for internal reporting or decision-making.
Use of Estimates
The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the
reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the
reported amounts of expenses during the reporting period. Actual results could differ from those estimates.
Concentrations of Credit Risk
Financial instruments that potentially subject the Company to significant concentrations of credit risk consist primarily of cash and cash
equivalents. The Company maintains deposits in federally insured financial institutions in excess of federally insured limits. The Company has
not experienced any losses in such accounts and believes it is not exposed to significant risk on its cash.
The Company’s future results of operations involve a number of risks and uncertainties. Factors that could affect the Company’s future
operating results and cause actual results to vary materially from expectations include, but are not limited to, rapid technological change,
regulatory approvals, competition from current treatments and therapies and larger companies, protection of proprietary technology, strategic
relationships and dependence on key individuals.
Products developed by the Company require clearances from the U.S. Food and Drug Administration (the “FDA”) and other international
regulatory agencies prior to commercial sales in their respective markets. The Company’s products may not receive the necessary clearances
and if they are denied clearance, clearance is delayed or the Company is unable to maintain clearance the Company’s business could be
materially adversely impacted.
Cash and Cash Equivalents
The Company considers all highly liquid investments with an original maturity from the date of purchase of three months or less to be cash
equivalents. Cash and cash equivalents include cash in a readily available checking account.
Marketable securities
Marketable securities consist of equity securities of publicly traded entities, and are classified as available-for-sale and carried at fair value on
the balance sheet. Changes in the fair value of marketable securities are recorded as other comprehensive income.
Property and Equipment
Property and equipment, which consists of lab equipment, computer equipment, and office equipment, are stated at cost and depreciated over
the estimated useful lives of the assets (three to five years) using the straight-line method.
F-8
Goodwill and In-Process Research and Development
Goodwill and an intangible asset for in-process research and development were recorded in connection with the acquisition of RFS Pharma in
November 2014. In-process research and development represents a series of awarded patents, filed patent applications and an in-process
research program acquired in the acquisition of RFS Pharma that are integral to the development of the Company’s planned future
products. In-process research and development represents an indefinite-lived intangible asset. As a result, both goodwill and in-process
research and development are not amortized but are tested for impairment annually at the reporting unit level on November 30 or more
frequently if events and circumstances indicate impairment may have occurred. Factors the Company considers important that could trigger an
interim review for impairment include, but are not limited to, the following:
•
Significant changes in the manner of its use of acquired assets or the strategy for its overall business;
• Significant negative industry or economic trends;
• Significant decline in stock price for a sustained period; and
• Significant decline in market capitalization relative to net book value.
•
•
Limited funding could further delay development efforts
Safety or efficacy issues could surface during development efforts
• Clinical outcomes for drug candidates do not lead to regulatory approval
Goodwill and in-process research and development are evaluated for impairment first by a qualitative assessment to determine the likelihood
of impairment. If it is determined that impairment is more likely than not, the Company will then proceed to the two step impairment test. For
goodwill, the first step is to compare the fair value of the reporting unit to the carrying amount of the reporting unit and for in-process research
and development to compare the fair value of the in-process research and development asset to its carrying amount (the “First Step”). If the
carrying amount exceeds the fair value, a second step must be followed to calculate impairment (the “Second Step”). Otherwise, if the fair
value exceeds the carrying amount, the goodwill or indefinite-lived research and development asset is not considered to be impaired as of the
measurement date. In its review of the carrying value of the goodwill for its single reporting unit and its in-process research and development,
the Company determines fair values of its goodwill using the market approach, and its in-process research and development asset using the
income approach.
In performing the impairment valuation, the Company considered, among other factors, the Company’s intention for future use of acquired
assets, analyses of historical financial performance and estimates of future performance of Cocrystal Pharma’s product candidates. The fair
values of intangible assets were calculated primarily using a discounted cash flow analysis of future development costs and exit values under a
number of different scenarios. Company management estimated the probabilities of occurrence of each scenario and prepared forecast
balance sheets and income statements for the combined company. The rates utilized to discount net cash flows to their present values were
based on a range of discount rates from 5.4% (rate during the active periods) to 18.4% (terminal rate).
Upon completion of the impairment evaluation, we have determined that in-process research and development assets related to our Hepatitis
C programs have been impaired. During the fourth quarter of 2015, pre-clinical studies on our lead molecule CC-1845 demonstrated higher
than acceptable toxicology risk. The Company is working to further isolate the cause(s) of these toxicology issues, but this will further delay
our development timetable and lower the probability of successful outcomes upon further development. As a result of these findings, we
have determined the carrying value of our Hepatitis C in-process research and development has been impaired by $38.7 million. We have
reflected this writedown in the Research and Development operating expenses in our Consolidated Statement of Operations.
Long-Lived Assets
The Company regularly reviews the carrying value and estimated lives of all of its long-lived assets, including property and equipment, to
determine whether indicators of impairment may exist which warrant adjustments to carrying values or estimated useful lives. The
determinants used for this evaluation include management’s estimate of the asset’s ability to generate positive income from operations and
positive cash flow in future periods as well as the strategic significance of the assets to the Company’s business objective. Should an
impairment exist, the impairment loss would be measured based on the excess of the carrying amount over the asset’s fair value.
F-9
Mortgage Note Receivable
The Company records its mortgage note receivable at the amount advanced to the borrower, which includes the stated principal amount and
certain loan origination and commitment fees that are recognized over the term of the mortgage note. Interest income is accrued as earned
over the term of the mortgage note. The Company evaluates the collectability of both interest and principal of the note to determine whether it
is impaired. The note would be considered to be impaired if, based on current information and events, the Company determined that it was
probable that it would be unable to collect all amounts due according to the existing contractual terms. If the note were considered to be
impaired, the amount of loss would be calculated by comparing the recorded investment to the value determined by discounting the expected
future cash flows at the note’s effective interest rate or to the fair value of the Company’s interest in the underlying collateral, less the cost to
sell. No impairment loss has been recognized in connection with the mortgage note receivable.
In December 2015, Cocrystal Pharma, Inc. issued notice of default letters to 580 Garcia Properties, Daniel Fisher and Sharon Fisher for failure
to remit certain payments on a promissory note executed between the parties in June, 2014. Cocrystal Pharma, Inc. also exercised a failure to
pay provision within that note to escalate the interest rate from 7.24% to 11.24%. As of March 9, 2016, the additional amounts due Cocrystal
Pharma, Inc. total approximately $245,000. Due to the contingent nature of this default action, Cocrystal Pharma, Inc. has not recorded a
receivable for this amount in its 2015 financial statements.
Grant Revenue and Accounts Receivable
Research and development grants are recorded as revenue when there is reasonable assurance that the Company has complied with all
conditions necessary to achieve the grants, collectability is reasonably assured, and as the expenditures are incurred. Accounts receivable
represents amounts due under research and development grants that have not yet been received.
Research and Development Expenses
All research and development costs are expensed as incurred.
Income Taxes
The Company accounts for income taxes under the asset and liability method. Under this method, deferred tax assets and liabilities are
determined based on differences between financial reporting and tax bases of assets and liabilities and are measured using enacted tax rates
and laws that are expected to be in effect when the differences are expected to be recovered or settled. Realization of deferred tax assets is
dependent upon future taxable income. A valuation allowance is recognized if it is more likely than not that some portion or all of a deferred
tax asset will not be realized based on the weight of available evidence, including expected future earnings. The Company recognizes an
uncertain tax position in its financial statements when it concludes that a tax position is more likely than not to be sustained upon examination
based solely on its technical merits. Only after a tax position passes the first step of recognition will measurement be required. Under the
measurement step, the tax benefit is measured as the largest amount of benefit that is more likely than not to be realized upon effective
settlement. This is determined on a cumulative probability basis. The full impact of any change in recognition or measurement is reflected in
the period in which such change occurs. The Company elects to accrue any interest or penalties related to income taxes as part of its income
tax expense.
Stock-Based Compensation
The Company recognizes compensation expense using a fair-value-based method for costs related to stock-based payments, including stock
options. The fair value of options awarded to employees is measured on the date of grant using the Black-Scholes option pricing model and is
recognized as expense, net of a forfeiture rate, over the requisite service period on a straight-line basis.
Use of the Black-Scholes option pricing model requires the input of subjective assumptions including expected volatility, expected term, and a
risk free interest rate. The Company estimates volatility using market comparable entities since the Company’s common stock has limited
trading history and limited observable volatility of its own. The expected term of the options is estimated by using the Securities and Exchange
Commission Staff Bulletin No. 107’s Simplified Method for Estimate Expected Term . The risk free interest rate is estimated using
comparable published federal funds rates.
F-10
Common Stock Purchase Warrants and Other Derivative Financial Instruments
We classify as equity any contracts that require physical settlement or net-share settlement or provide us a choice of net-cash settlement or
settlement in our own shares (physical settlement or net-share settlement) provided that such contracts are indexed to our own stock as defined
in ASC 815-40, Contracts in Entity's Own Equity. We classify as assets or liabilities any contracts that require net-cash settlement (including a
requirement to net cash settle the contract if an event occurs and if that event is outside our control) or give the counterparty a choice of net-
cash settlement or settlement in shares (physical settlement or net-share settlement). We assess classification of our common stock purchase
warrants and other free standing derivatives at each reporting date to determine whether a change in classification between assets and
liabilities is required.
Our derivative instruments consisting of warrants to purchase our common stock were valued using the Black-Scholes option pricing model,
using the following assumptions at December 31, 2015:
·
·
·
·
Estimated dividends:
None
Expected volatility:
78 - 101%
Risk-free interest rate:
0.49 - 2.20%
Expected term:
0.20 – 8.0 years
Recent Accounting Pronouncements
In August 2014, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) No. 2014-15, Disclosure
of Uncertainties about an Entity’s Ability to Continue as a Going Concern (ASU 2014-15). ASU 2014-15 requires management to determine
whether substantial doubt exists regarding the entity’s going concern presumption, which generally refers to an entity’s ability to meet its
obligations as they become due. If substantial doubt exists but is not alleviated by management’s plan, the footnotes must specifically state that
“there is substantial doubt about the entity’s ability to continue as a going concern within one year after the financial statements are issued”. In
addition, if substantial doubt exists, regardless of whether such doubt was alleviated, entities must disclose (a) principal conditions or events
that raise substantial doubt about the entity’s ability to continue as a going concern (before consideration of management’s plans, if any); (b)
management’s evaluation of the significance of those conditions or events in relation to the entity’s ability to meet its obligations; and (c)
management’s plans that are intended to mitigate the conditions or events that raise substantial doubt, or that did alleviate substantial doubt,
about the entity’s ability to continue as a going concern. If substantial doubt has not been alleviated, these disclosures should become more
extensive in subsequent reporting periods as additional information becomes available. In the period that substantial doubt no longer exists
(before or after considering management’s plans), management should disclose how the principal conditions and events that originally gave
rise to substantial doubt have been resolved. The ASU applies prospectively to all entities for annual periods ending after December 15, 2016,
and to annual and interim periods thereafter. Early adoption is permitted. The Company has not adopted the provisions of this ASU. Upon
adoption, the Company will use this guidance to evaluate going concern.
In February 2016, the FASB issued ASU No. 2016-02, Leases. The new standard establishes a right-of-use (ROU) model that requires a
lessee to record a ROU asset and a lease liability on the balance sheet for all leases with a term longer than 12 months. Leases will be
classified as either finance or operating, with classification affecting the pattern of expense recognition in the income statement. The
Company is currently evaluating the impact of its pending adoption of the new standard on its consolidated financial statements.
3. RFS Pharma, LLC Acquisition
On November 25, 2014, the Company entered into and closed an Agreement and Plan of Merger with RFS Pharma. At the closing of the
merger, the Company issued to RFS Pharma’s members 1,000,000 shares of the Company’s Series A preferred shares to purchase all of the
outstanding member interests in RFS Pharma, and also issued 16,542,538 options to purchase the Company’s common stock as replacements
of awards previously issued to employees of RFS Pharma. The Series A shares automatically converted into 340,760,802 shares of the
Company’s common stock upon the approval of the Company’s shareholders on March 3, 2015 to increase the total number of the Company’s
authorized common shares to 800,000,000 shares.
The goodwill associated with the acquisition is not deductible for tax purposes.
The fair value of the Series A shares was based on the quoted market price of the Company’s common stock into which the Series A shares
were convertible and the fair value of the replacement options issued was based on the Black-Scholes option pricing model.
The purchase price consideration was allocated based on the estimated fair value of the tangible and identifiable intangible assets acquired and
liabilities assumed from RFS Pharma. Based upon the estimated fair values determined by the Company, the total purchase price was
allocated as follows (in thousands):
Purchased in-process research and development
Net book value of tangible assets acquired
Goodwill
Deferred tax liability
Total purchase price
$
$
184,966
(183)
65,195
(65,195)
184,783
F-11
4. Property and Equipment
Property and equipment consist of the following as of December 31 (in thousands):
Lab equipment
Computer and office equipment
Total equipment
Less accumulated depreciation
Property and equipment, net
2015
2014
$
$
$
1,205
378
1,583
(1,153)
$
430
1,146
87
1,233
(949)
284
Depreciation expense for the years ended December 31, 2015 and 2014 was $192,000 and $199,000, respectively.
5. Marketable Securities
As of December 31, 2014, the Company owned 260,000 shares of MusclePharm, Inc. (“MusclePharm”) common stock. The 260,000 shares
were part of 600,000 shares originally issued to the Company related to the Company’s sale of assets to MusclePharm that were required to be
held in escrow until October 2014 to satisfy any breaches of representations under the Biozone Merger Agreement. The 600,000 shares
received by the Company that were not required to be held in escrow were sold for $5,400,000 in June 2014. On September 29, 2014, the
Company signed a Memo of Understanding in which it agreed to release 90,000 shares of MusclePharm stock out of the original balance of
600,000 shares held in escrow in exchange for a release from all claims which MusclePharm had made concerning assets which it acquired in
its purchase of assets from the Company in January 2014. The Company recognized a net loss on the return of these MusclePharm shares of
$584,000 in the year ended December 31, 2014. In October 2014, MusclePharm exercised its right to repurchase 250,000 shares of
MusclePharm shares at $10.00 per share. MusclePharm did not withdraw the portion of its claim that relates to the pending eviction
proceedings (See note 15) and was to continue to hold in escrow 260,000 shares of its stock pending such time as MusclePharm and the
Company can reach a mutually agreeable arrangement with respect to the MusclePharm lease. However, during the second quarter of 2015,
the escrow agent released these shares held in escrow to MusclePharm without Cocrystal Pharma, Inc’s consent. The Company recorded a
$1,686,000 loss on this conversion but is vigorously seeking reimbursement from MusclePharm for the loss recognized on these shares.
6. Mortgage Note Receivable
In June 2014, the Company acquired a mortgage note from a bank for $2,626,290 which is collateralized by, among other things, the
underlying real estate and related improvements. The property subject to the mortgage is owned by Daniel Fisher, one of the founders of
Biozone, and is currently under lease to MusclePharm. At December 31, 2015, the carrying amount of the mortgage note receivable was
$2,512,000, which consisted of $2,432,000 of principal, $53,000 of interest and $27,000 of fees paid to the selling bank. The mortgage note
has a maturity date of August 1, 2032 and bears an interest rate of 7.24%.
However, on December 23, 2015, the Company issued notice of default letters to 580 Garcia Properties, Daniel Fisher and Sharon Fisher for
failure to remit certain payments on a promissory note executed between the parties in June 2014. Cocrystal Pharma, Inc. also exercised a
failure to pay provision within that note to escalate the interest rate from 7.24% to 11.24%. As of February 9, 2016, the additional amounts
due Cocrystal Pharma, Inc. total approximately $245,000. Due to the contingent nature of this default action, Cocrystal Pharma, Inc. has not
recorded a receivable for this amount in its 2015 financial statements.
The Company records its mortgage note receivable at the amount advanced to the borrower, which includes the stated principal amount and
certain loan origination and commitment fees that are recognized over the term of the mortgage note. Interest income is accrued as earned
over the term of the mortgage note. The Company evaluates the collectability of both interest and principal of the note to determine whether it
is impaired. The note would be considered to be impaired if, based on current information and events, the Company determined that it was
probable that it would be unable to collect all amounts due according to the existing contractual terms. If the note were considered to be
impaired, the amount of loss would be calculated by comparing the recorded investment to the value determined by discounting the expected
future cash flows at the note’s effective interest rate or to the fair value of the Company’s interest in the underlying collateral, less the cost to
sell. No impairment loss has been recognized in connection with the mortgage note receivable.
7. Convertible Preferred Stock
Series A Convertible Preferred Stock
As of January 1, 2014, Cocrystal Discovery, Inc. had outstanding shares of its Series A Preferred Stock (“Cocrystal Discovery Series A”). The
holders of Cocrystal Discovery Series A preferred stock were entitled to receive cumulative dividends at a rate of $0.1153 per share per
annum. The preferred stock dividends were payable when and if declared by the Company’s Board of Directors. No dividends were ever
declared on the Cocrystal Discovery Series A.
In connection with the merger with Biozone in January 2014, the Company exchanged the above Cocrystal Discovery Series A for a new
Series B Convertible Preferred Stock. See below for more information.
The Company has authorized up to 5,000,000 shares of preferred stock, $0.001 par value per share, for issuance. In connection with the
merger with RFS Pharma in November 2014, the Company created a new series of Series A Preferred Stock (“Series A”). The Series A
shares automatically converted into 340,760,802 shares of the Company’s common stock on March 3, 2015 as a result of the Company’s
shareholders approving an increase in the number of the Company’s authorized common shares to 800,000,000. The Series A shares were
classified as mezzanine equity in the Company’s consolidated balance sheet as of December 31, 2014, because at that date such shares could
potentially have been redeemed by its holders for events that were outside the Company’s control. No accretion to redemption value was
required, as redemption was not probable.
F-12
Series B Convertible Preferred Stock
In connection with the merger with Biozone, the Company issued to Cocrystal Discovery’s Series A and Common security holders 1,000,000
shares of the Company’s Series B Convertible Preferred Stock (“Series B”). The Series B shares automatically converted into 205,083,086
shares of the Company’s common stock on March 3, 2015 as a result of the Company’s shareholders approving an increase in the number of
the Company’s authorized common shares to 800,000,000.
8. Common Stock
As of December 31, 2015, the Company had 800,000,000 shares of authorized common stock, $0.001 par value per share, and had
694,396,187 shares issued and outstanding. As discussed above, on March 3, 2015, the Company’s shareholders approved an increase in the
number of authorized shares to 800,000,000, which automatically resulted in the conversion of all outstanding Series A and Series B shares to
common stock and thereby increased the number of outstanding shares of common stock by 545,844,608.
The holders of common stock are entitled to one vote for each share of common stock held.
9. Stock Based Awards
Equity Incentive Plans
The Company adopted an equity incentive plan (the “2007 Plan”) in 2007 under which 53,599,046 shares of common stock have been
reserved for issuance to employees, nonemployee directors and consultants of the Company. Recipients of incentive stock options shall be
eligible to purchase shares of the Company’s common stock at an exercise price equal to no less than the estimated fair market value of such
stock on the date of grant. The maximum term of options granted under the 2007 Plan is ten years. The options generally vest 25% after one
year, with the balance vesting monthly over the remaining three years. No further stock option grants will result from The 2007 Plan. All
remaining shares from this plan, approximately 30 million, were allocated for our March 2016 financing efforts.
The Company adopted a second equity incentive plan (the “2015 Plan”) in 2015 under which 50,000,000 shares of common stock have been
reserved for issuance to employees, directors and consultants of the Company. Recipients of incentive stock options shall be eligible to
purchase shares of the Company’s common stock at an exercise price equal to no less than the estimated fair market value of such stock on the
date of grant. The maximum term of options granted under the 2015 Plan is ten years. The options generally vest 25% after one year, with the
balance vesting monthly over the remaining three years. As of December 31, 2015, 28,030,000 shares of common stock remain available for
future grant under the 2015 Plan.
The following table summarizes stock option transactions for the 2007 and 2015 Plans for the years ended December 31, 2014 and 2015:
Balance at December 31, 2013
Increase in option pool
Options granted to merger employees
Exercised
Cancelled
Balance at December 31, 2014
Increase in authorized options
Exercised
Granted
Cancelled
Redeployed for March 2016 Financing
Balance at December 31, 2015
Number of
shares
available for
grant
Total
options
outstanding
Weighted
Average
Exercise
Price
Aggregate
Intrinsic
Value
1,648
47,459
(16,543)
-
258
32,823
50,000
(183)
(23,720)
66
(29,500)
29,485
4,403 $
-
16,543
(1,087)
(258)
19,600
(183)
23,720
(66)
0.12 $
3,406
15,484
0.10
0.11
0.11
0.10
0.13
0.78
0.12
43,071
$
0.48
$
17,867
The Company recognizes compensation expense using a fair-value-based method for costs related to stock-based payments, including stock
options. The fair value of options awarded to employees is measured on the date of grant using the Black-Scholes option pricing model and is
recognized as expense over the requisite service period on a straight-line basis. The Black-Scholes option pricing model includes the
following weighted average assumptions:
F-13
Assumptions:
Risk-free interest rate
Expected dividend yield
Expected volatility
Expected terms (in years)
Year Ended December 31,
2015
2014
1.66 - 2.08%
0%
78 -108%
5.00 - 6.50
1.08 - 2.51%
0%
108%
6.08
During 2015, the Company granted 21,970,000 options under the 2015 Plan and 1,750,000 under the 2007 Plan with exercise prices ranging
from $0.70 to $1.17 per share. Exercise prices under the 2015 Plan reflect the market price of Cocrystal Pharma, Inc. stock on the grant
date. The weighted average fair value of options granted during 2015 and 2014 were $0.55 and $0.45, respectively.
The Company uses historical data to estimate forfeitures at the time of grant and is required to record stock-based compensation only for those
awards that are expected to vest. The Company has assumed a zero forfeiture rate in the valuation of awarded stock options. The Company
recorded employee stock-based compensation expense of $2,964,196 and $37,578 for the years ended December 31, 2015 and 2014,
respectively.
As of December 31, 2015, there was $11,363,990 of total unrecognized compensation expense related to non-vested employee stock options
that is expected to be recognized over a weighted average period of 4.2 years.
As of December 31, 2015, options to purchase 43,071,206 shares of common stock, with an aggregate intrinsic value of $17,866,633 were
outstanding that were fully vested or expected to vest with a weighted average remaining contractual term of 5.0 years. As of December 31,
2015, options to purchase 20,115,156 shares of common stock, with an aggregate intrinsic value of $13,818,911, were exercisable with a
weighted-average exercise price of $0.203 per share and a weighted-average remaining contractual term of 4.1 years. The aggregate intrinsic
value of outstanding and exercisable options at December 31, 2015 was calculated based on the closing price of the Company’s common stock
as reported on the Over-the-Counter Bulletin Board and the OTCQx markets on December 31, 2015 of $0.89 per share less the exercise price
of the options. The aggregate intrinsic value is calculated based on the positive difference between the closing fair market value of the
Company’s common stock and the exercise price of the underlying options.
Common Stock Reserved for Future Issuance
The following table present information concerning common stock available for future issuance (in thousands):
Stock options issued and outstanding
Authorized for future option grants
Warrants outstanding
Total
10. Warrants
December 31,
2015
2014
43,071
29,485
8,280
19,600
32,823
26,669
80,836
79,092
The following is a summary of activity in the number of warrants outstanding to purchase the Company’s common stock for the year ended
December 31, 2015 (in thousands):
Warrants accounted for as:
Equity
Warrants accounted for as:
Liabilities
January
2012
March
2013
warrants
warrants
April 2013
warrants
February
2012
August
2013
October
2013
warrants
warrants
warrants
October
2013
Series A
warrants
January
2014
warrants
Total
Outstanding,
January 1,
2014
Warrants
acquired in
merger with
Biozone
Warrants
issued
Outstanding,
December 31,
2014
Warrants
exercised
-
-
-
-
-
-
-
650
-
455
1,864
1,000
10,000
200
7,000
-
-
-
-
-
-
5,500
5,500
650
455
1,864
1,000
10,000
200
7,000
5,500
26,669
-
-
(364)
-
(10,000)
(200)
(6,325)
(1,500)
(18,389)
-
-
-
21,169
Outstanding,
December 31,
2015
650
455
1,500
1,000
-
-
675
4,000
8,280
Expiration
date
January
11, 2016
March 1,
2016
April 25,
2018
February
28, 2016
August 26,
2023
October
18, 2018
October
24, 2023
January
16, 2024
Warrants consist of warrants potentially settleable in cash, which are liability-classified warrants, and equity-classified warrants.
F-14
Warrants classified as liabilities
Liability-classified warrants consist of warrants issued by Biozone in connection with equity financings in February 2012, August 2013,
October 2013 and January 2014, which were assumed by the Company in connection with its merger with Biozone in January 2014. As of
December 31, 2015, 5,675,000 warrants are accounted for as liabilities and 2,605,000 warrants are accounted for as equity. Warrants
accounted for as liabilities are either potentially settleable in cash or not indexed to the Company’s own stock because they contain
contingencies under which the Company could be forced to settle them for cash or because they contain potential adjustments to their exercise
price. As such, they are therefore accounted for as liabilities.
The estimated fair value of outstanding warrants accounted for as liabilities is determined at each balance sheet date. Any decrease or increase
in the estimated fair value of the warrant liability since the most recent balance sheet date is recorded in the consolidated statement of
operations and comprehensive income (loss) as changes in fair value of derivative liabilities. The fair value of the warrants classified as
liabilities is estimated using the Black-Scholes option-pricing model with the following inputs as of December 31, 2015:
February
2012 warrants
August 2013
warrants
October 2013
warrants
October 2013
warrants
January 2014
warrants
Strike price
$
0.60
$
0.40
$
0.50
$
0.50
$
0.50
Expected term (years)
Cumulative volatility %
Risk-free rate %
0.2
81%
0.49%
7.7
101%
2.18%
2.8
78%
1.26%
7.8
101%
2.14%
8.0
100%
2.15%
The Company’s expected volatility is based on a combination of implied volatilities of similar publicly traded entities given that the Company
has limited history of its own observable stock price. The expected life assumption is based on the remaining contractual terms of the
warrants. The risk-free rate is based on the zero coupon rates in effect at the balance sheet date. The dividend yield used in the pricing model
is zero, because the Company has no present intention to pay cash dividends.
11. Licenses and Collaborations
Emory University: Cocrystal Pharma has an exclusive license from Emory University for use of certain inventions and technology related to
inhibitors of hepatitis C virus that were jointly developed by Emory and Cocrystal Pharma employees. The License Agreement is dated March
7, 2013 wherein Emory agrees to add to the Licensed Patents and Licensed Technology Emory’s rights to any patent, patent application,
invention, or technology application that is based on technology disclosed within three (3) years of March 7, 2013. The agreement includes
payments due to Emory ranging from $40,000 to $500,000 based on successful achievement of certain drug development
milestones. Additionally, Cocrystal may have royalty payments at 3.5% of net sales due to Emory with a minimum in year one of $25,000
and increase to $400,000 in year five upon product commercialization. One of Cocrystal’s Directors, Dr. Raymond Schinazi, is also a faculty
member at Emory University.
NIH: Cocrystal Pharma has two Public Health Biological Materials License Agreements with the NIH. The original License Agreements were
dated August 31, 2010 and it was amended on November 6, 2013. The materials licensed are being used in Norovirus assays to screen
potential antiviral agents in our library.
University of Pittsburgh and Emory University: Cocrystal Pharma assigned its patent rights to the patent titled “3'-AZIDO
PURINENUCLEOTIDE PRODRUGS FOR TREATMENT OF VIRAL INFECTIONS” to University of Pittsburgh on November 21, 2014.
This patent is jointly owned by Cocrystal Pharma, the University of Pittsburgh and Emory University. One of Cocrystal’s Directors, Dr.
Raymond Schinazi, is also a faculty member at Emory University.
Duke University and Emory University: Cocrystal Pharma has entered an agreement to license various patents and know-how to use
CRISPR/Cas9 technologies for developing a possible cure for hepatitis B virus (HBV) and human papilloma virus (HPV). This license
allows Cocrystal Pharma to develop and potentially commercialize a cure for HBV utilizing the underlying patents and technologies
developed by the universities. This agreement includes a non-refundable $100,000 license fee payable to Duke upon a determination of rights
letter from the U.S. Veterans Administration with respect to patents and know-how that disclaims any ownership interest. Future royalties
may be payable to Duke, ranging from 2-5% of net sales depending on achieving certain sales milestones, if commercial products are
developed using this know-how. One of Cocrystal’s Directors, Dr. Raymond Schinazi, is also a faculty member at Emory University.
F-15
12. Fair Value Measurement
ASC 820 defines fair value, establishes a framework for measuring fair value under generally accepted accounting principles and enhances
disclosures about fair value measurements. Fair value is defined under ASC 820 as the exchange price that would be received for an asset or
paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction
between market participants on the measurement date. Valuation techniques used to measure fair value under ASC 820 must maximize the use
of observable inputs and minimize the use of unobservable inputs. The standard describes a fair value hierarchy based on three levels of
inputs, of which the first two are considered observable and the last unobservable, that may be used to measure fair value which are the
following:
Level 1 — quoted prices in active markets for identical assets or liabilities.
Level 2 — other significant observable inputs for the assets or liabilities through corroboration with market data at the measurement date.
Level 3 — significant unobservable inputs that reflect management’s best estimate of what market participants would use to price the assets or
liabilities at the measurement date.
The Company categorized its cash equivalents as Level 1 fair value measurements. The warrants are valued using the Black-Scholes option-
pricing model as discussed in Note 10 above.
The following table presents a summary of fair values of assets and liabilities that are remeasured at fair value at each balance sheet date as of
December 31, 2015 and 2014, and their placement within the fair value hierarchy as discussed above (in thousands):
Description
Assets:
Cash and cash equivalents
Marketable securities
Total assets
Liabilities:
Warrants potentially settleable in cash
Total liabilities
Description
Assets:
Cash and cash equivalents
Marketable securities
Total assets
Liabilities:
Warrants potentially settleable in cash
Total liabilities
Quoted Prices
in Active
Markets
Significant
Other
Observable
Inputs
Unobservable
Inputs
December 31,
2015
(Level 1)
(Level 2)
(Level 3)
$
$
$
$
9,276
-
9,276
$
$
9,276
-
9,276
$
$
4,115
4,115
$
$
-
-
$
$
-
-
-
$
$
-
-
$
$
-
-
-
4,115
4,115
Quoted Prices
in Active
Markets
Significant
Other
Observable
Inputs
Unobservable
Inputs
December 31,
2014
(Level 1)
(Level 2)
(Level 3)
$
$
$
$
3,970
1,975
5,945
$
$
3,970
-
3,970
$
$
-
1,975
1,975
$
$
-
-
-
8,464
8,464
$
$
-
-
$
$
-
-
$
$
8,464
8,464
The Company has not transferred any financial instruments into or out of Level 3 classification during the year ended December 31, 2015. A
reconciliation of the beginning and ending Level 3 liabilities for the years ended December 31, 2015 and 2014, is as follows (in thousands):
Balance , January 1,
Value of warrants converted in cashless exercise
Change in fair value of Teva option
Estimated fair value of warrants assumed in merger on January 2, 2014
Estimated fair value of warrants issued in January common stock sale
Change in fair value of warrants for the year ended
Balance at December 31,
13. Net Loss per Share
$
2015
8,464
$
(14,265)
Fair Value Measurements
Using Significant
Unobservable Inputs (Level 3)
2014
23
-
(23)
10,475
3,696
(5,707)
8,464
-
-
-
9,916
4,115
$
$
The Company accounts for and discloses net loss per common share in accordance with FASB ASC Topic 260, Earnings Per Share. Basic net
loss per common share is computed by dividing net loss attributable to common stockholders by the weighted average number of common
shares outstanding Diluted net income (loss) per common share is computed by dividing net income (loss) attributable to common
stockholders by the weighted average number of common shares that would have been outstanding during the period assuming the issuance of
common stock for all potential dilutive common shares outstanding. Potential common shares consist of shares issuable upon the exercise of
stock options and warrants. Because the inclusion of potential common shares would be anti-dilutive for the years ended December 31, 2015
and December 31, 2014, diluted net loss per share is the same as basic net loss per common share for these periods.
The following table sets forth the computation of basic and diluted net loss per share (amounts in thousands, except per share amounts):
Numerator:
Net loss attributable to shareholders
Adjustment for change in fair value of derivative liability
Net loss attributable to shareholders
Denominator:
Weighted average shares outstanding used to compute net loss per share:
Basic
Adjustment for dilutive effects of warrants
Diluted
Net loss per share
Basic
Diluted
For the year ended:
2015
2014
$
$
(50,122) $
-
(50,122) $
(99)
(2,228)
(2,327)
630,316
-
630,316
326,779
954
327,733
$
$
(0.08) $
(0.08) $
(0.00)
(0.01)
The following table sets forth the number of potential common shares excluded from the calculations of net income (loss) per diluted share
because their inclusion would be anti-dilutive (in thousands):
Options to purchase common stock
Warrants to purchase common stock
Total
F-16
For the year ended December
31,
2015
2014
43,071
8,280
51,351
19,600
16,669
36,269
14. Income Taxes
In accordance with the authoritative guidance for income taxes under ASC 740, a deferred tax asset or liability is determined based on the
difference between the financial statement and the tax basis of assets and liabilities as measured by the enacted tax rates, which will be in
effect when these differences reverse. The Company provides a valuation allowance against net deferred tax assets unless, based upon the
available evidence, it is more likely than not that the deferred tax assets will be realized.
The Company recognizes the impact of a tax position in the financial statements only if that position is more likely than not of being sustained
upon examination by taxing authorities, based on the technical merits of the position. The Company’s practice is to recognize interest and/or
penalties related to income tax matters in income tax expense.
The Company is subject to taxation in the U.S. and various state jurisdictions. Currently no years are under examination. All tax years are
subject to examination by the U.S. and state tax authorities due to the carry-forward of unutilized net operating losses and research and
development credits.
A reconciliation of income tax expense (benefit) for the years ended December 31, 2015 and 2014 is as follows:
Current:
Federal
State
Total current income tax expense
Deferred:
Federal
State
Total deferred income tax expense (benefit)
Total income tax expense (benefit)
Year Ended December 31,
2015
2014
$
$
$
-
19
19
(12,001)
(3,266)
(15,267)
(15,248) $
-
2
2
(51)
(3)
(54)
(52)
Significant components of the Company’s deferred income taxes at December 31, 2015 and 2014 are shown below (in thousands):
Deferred Tax Assets:
Net operating loss carryforwards
Compensation
Research and development tax credits
Other
Total gross deferred tax assets
Deferred Tax Liabilities
Unrealized gain on marketable securities
Property and equipment
Acquired in-process research and development
Total Deferred Tax Liabilities
Net deferred tax assets
Valuation allowance
Net Deferred Tax Liability
December 31,
2015
2014
$
$
14,273
1,098
972
128
16,471
7,276
14
835
65
8,190
-
(5)
(49,875)
(185)
(18)
(65,195)
(49,880)
(65,398)
(33,409)
(16,466)
(57,208)
(7,986)
$
(49,875) $
(65,194)
The Company has established a valuation allowance against net deferred tax assets due to the uncertainty that such assets will be realized. The
Company periodically evaluates the recoverability of the deferred tax assets. At such time as it is determined that it is more likely than not
that deferred tax assets will be realizable, the valuation allowance will be reduced. The Company has not considered the deferred tax liability
related to acquired in-process research and development to be a future source of taxable income in evaluating the need for a valuation
allowance against its deferred tax assets due to the in-process research and development asset being considered an indefinite-lived intangible
asset.
At December 31, 2015, the Company had federal and California net operating losses, or NOL, carryforwards of approximately $40.5 million
and $8.1 million, respectively. The federal NOL carryforwards begin to expire in 2027, and the California NOL carryforwards begin to expire
in 2029. At December 31, 2015, the Company also had federal and California research tax credit carryforwards of approximately $802,000 and
$258,000, respectively. The federal research tax credit carryforwards begin to expire in 2029, and the California research tax credit
carryforwards do not expire and can be carried forward indefinitely until utilized.
The above NOL carryforwards and the research tax credit carryforwards may be subject to an annual limitation under Section 382 and 383 of
the Internal Revenue Code of 1986, and similar state provisions if the Company experienced one or more ownership changes, which would
limit the amount of NOL and tax credit carryforwards that can be utilized to offset future taxable income and tax, respectively. In general, an
ownership change, as defined by Section 382 and 383, results from transactions increasing ownership of certain stockholders or public groups
in the stock of the corporation by more than 50 percentage points over a three-year period. The Company has not completed an IRC Section
382/383 analysis. If a change in ownership were to have occurred, NOL and tax credit carryforwards could be eliminated or restricted. If
eliminated, the related asset would be removed from the deferred tax asset schedule with a corresponding reduction in the valuation
allowance. Due to the existence of the valuation allowance, limitations created by future ownership changes, if any, will not impact the
Company’s effective tax rate.
A reconciliation of the federal statutory income tax rate to the Company’s effective income tax rate is as follows:
Statutory federal income tax rate
Change in fair value of warrant liability
State income taxes, net of federal benefit
Tax credits
Change in valuation allowance
Permanent differences
State rate adjustment
Other
Effective rate
F-17
Year Ended December 31,
2015
2014
34.0%
(5.2)%
0.1%
0.3%
(12.5)%
(0.8)%
3.3%
4.4%
34.0%
10.7%
0.4%
0.9%
(11.2)%
0.7%
0.1%
23.6%
34.1%
15. Commitments and Contingencies
Commitments
The Company leases office and laboratory space in Bothell, Washington; Tucker, Georgia; and Princeton, New Jersey, under operating leases
that expire in January 2019, December 2016, and September 2016, respectively. Future minimum lease payments, by year and in aggregate,
are as follows (in thousands):
Year ending December 31
2016
2017
2018
2019
Total Minimum Lease Payments
$
$
361
159
168
14
702
The minimum lease payments above do not include common area maintenance (CAM) charges, which are contractual obligations under some
of the Company’s operating leases, but are not fixed and can fluctuate from year to year.
The minimum lease payments above include the amounts that would be paid if the Company maintains its Bothell lease for the five year
term. The Company has the right to terminate this lease after three years, by giving prior notice at least 180 days prior to such early
termination date and by paying a termination fee equal to the sum of three months’ rent plus the unamortized balance of the sum of (a) all
brokerage commissions paid by the landlord of the property in connection with the lease and (b) the abated free base rent related to the five
months of the lease, treating items (a) and (b) as being amortized on a level basis over the five year base term of the lease.
The offices and laboratory space in Tucker, Georgia are leased from a trust established, in part, for the benefit of one of Cocrystal’s
Directors, Dr. Raymond Schinazi.
Rent expense for 2015 and 2014, totaled $375,000 and $295,000, respectively.
Contingencies
From time to time, the Company is a party to, or otherwise involved in, legal proceedings arising in the normal course of business. As of the
date of this report, except as described below, the Company is not aware of any proceedings, threatened or pending, against it which, if
determined adversely, would have a material effect on its business, results of operations, cash flows or financial position.
The Company has been named as a party to a lawsuit filed on April 15, 2014 in Contra Costa County, California by Insean entity managed by
Mr. Daniel Fisher. Also named in this action are two of the Company’s subsidiaries – BioZone Labs and Cocrystal Discovery. The action
seeks recovery on a promissory note purportedly executed by BioZone Labs in the principal amount of $295,000 in 2007, or almost seven
years before the Company’s acquisition of Cocrystal Discovery. Motions challenging the sufficiency of the allegations in the complaint were
filed in the third quarter, 2014. The motions were granted and plaintiff was given an opportunity to amend the complaint, and plaintiff has
filed an amended complaint. On July 2, 2015 the Company, along with its subsidiaries and other named defendants, filed a motion to bifurcate
the action, and stay discovery on one of the causes of action. This motion was granted on August 27, 2015 and the Court limited the scope of
discovery in the first phase of the case. The Court also ordered that the Company post a bond for the amount of $295,000, and the Company
complied with the Order by posting the bond on September 29, 2015. This is recorded as a short-term deposit. The action should shortly be
“at issue” with all parties joined, and the Company expects a trial date on the breach of contract claims, only, to be set at a Case Management
Conference presently scheduled to occur on April 19, 2016. The Company further expects to again pursue summary adjudication of the
contract claims against it (its prior motion having been denied without prejudice to re-filing), following the Case Management Conference.
The Company intends to vigorously defend the action.
On October 13, 2013, Plaintiff Shefa LMV, LLC ("Plaintiff") filed a First Amended Complaint in Los Angeles Superior Court for civil
penalties and injunctive relief against numerous retailers and manufacturers of products, and alleged violations of California Health & Safety
Code Sec. 25249.6 (part of the "Safe Drinking Water and Toxic Enforcement Act") and California Business & Professional Code Sec. 17200,
et seq. (California's "Unfair Competition Law"). The case is captioned Shefa LMV, LLC v. Walgreens Co., et al., LASC Case No.
BC520416. The complaint alleges that the retailers and manufacturers failed to place a clear and reasonable warning on the products which
contained "Cocamide DEA" pursuant to the Safe Drinking Water and Toxic Enforcement Act, and further requested that the defendants be
enjoined from manufacturing or selling products with Cocamide DEA in the State of California. Numerous actions that had been filed
alleging similar claims against defendants who manufactured and/or sold Cocamide DEA products have been coordinated, with a new
Judicial Council Coordination Proceeding Case No. JCCP 4765. On October 17, 2014, Plaintiff filed an amendment to the Complaint,
adding BioZone Laboratories, Inc. a California corporation, as Doe Defendant No. 9. The Company filed an Answer to the First Amended
Complaint on October 13, 2015. No discovery has taken place yet.
F-18
In October 2015, Cocrystal Pharma, Inc. received a subpoena from the staff of the Securities and Exchange Commission seeking the
production of documents. The Company is fully cooperating with the inquiry. The Company cannot predict or determine whether any
proceeding may be instituted in connection with the subpoena or the outcome of any proceeding that may be instituted.
In December 2015, Cocrystal Pharma, Inc. issued notice of default letters to 580 Garcia Properties, Daniel Fisher and Sharon Fisher for failure
to remit certain payments on a promissory note executed between the parties in June, 2014. Cocrystal Pharma, Inc. also exercised a failure to
pay provision within that note to escalate the interest rate from 7.24% to 11.24%. As of February 9, 2016 the additional amounts due
Cocrystal Pharma, Inc. total approximately $245,000. Due to the contingent nature of this default action, Cocrystal Pharma, Inc. has not
recorded a receivable for this amount in its 2015 financial statements.
16. Subsequent Events
On March 15, 2016, Cocrystal Pharma, Inc. (the “Company”) accepted subscription agreements representing investor commitments
totaling $5,004,370 in a private placement offering to investors who participated in the March 2015 private placement on a pro-rata basis to
their participation in the March 2015 private placement (the “Offering”) of 9,812,491 shares of the Company’s common stock at a
purchase price of $0.51 per share. The purchasers included 7 members of the Company’s board of directors including Dr. Raymond F.
Schinazi and Dr. Phil Frost.
F-19
Item 10. Directors, Executive Officers and Corporate Governance
PART III
The information required by Item 10 will be included in the Proxy Statement to be filed relating to our 2016 Annual Meeting of Stockholders
and is incorporated herein by reference.
Item 11. Executive Compensation
The information required by Item 11 will be included in the Proxy Statement to be filed relating to our 2016 Annual Meeting of Stockholders
and is incorporated herein by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The information required by Item 12 will be included in the Proxy Statement to be filed relating to our 2016 Annual Meeting of Stockholders
and is incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions, and Director Independence
The information required by Item 13 will be included in the Proxy Statement to be filed relating to our 2016 Annual Meeting of Stockholders
and is incorporated herein by reference.
Item 14. Principal Accountant Fees and Services
The information required by Item 14 will be included in the Proxy Statement to be filed relating to our 2016 Annual Meeting of Stockholders
and is incorporated herein by reference.
-36-
Item 15. Exhibits, Financial Statement Schedules
PART IV
EXHIBIT INDEX
Incorporated by Reference
Form
8-K
8-K
8-K
8-K
8-K
DEF 14A
Exhibit No.
10.1
10.2
10.3
10.4
10.5
10.6
10.7
31.1
31.2
32.1
Exhibit Description
Securities Purchase Agreement
Curtis Dale Employment Agreement
Jeffrey Meckler Employment
Agreement*
Douglas Mayers Employment
Agreement*
Walt Linscott Employment Agreement*
Walt Linscott Stock Option Agreement*
2015 Equity Incentive Plan*
Certification of Principal Executive
Officer (302)
Certification of Principal Financial
Officer (302)
Certification of Principal Executive and
Principal Financial Officer (906)
101.INS
101.SCH
XBRL Instance Document
XBRL Taxonomy Extension Schema
Document
101.CAL
XBRL Taxonomy Extension Calculation
Linkbase Document
101.DEF
XBRL Taxonomy Extension Definition
Linkbase Document
101.LAB
XBRL Taxonomy Extension Label
Linkbase Document
101.PRE
XBRL Taxonomy Extension
Presentation Linkbase Document
* Management contract or compensatory plan or arrangement.
Filed or
Furnished
Herewith
Date
02/26/15
11/17/15
9/24/15
Number
10.1
10.2
10.3
Furnished
Filed
Filed
9/24/15
10.4
Filed
7/27/15
7/27/15
6/1/15
10.5
10.6
10.7
Filed
Filed
Filed
Filed
Filed
Furnished**
Filed
Filed
Filed
Filed
Filed
Filed
** This exhibit is being furnished rather than filed and shall not be deemed incorporated by reference into any filing, in accordance with Item
601 of Regulation S-K.
+ Filed pursuant to a confidential treatment request for certain portions of this document.
Copies of this report (including the financial statements) and any of the exhibits referred to above will be furnished at no cost to our
shareholders who make a written request to our Corporate Secretary at Cocrystal Pharma, Inc., 1860 Montreal Road, Tucker, Georgia, 30084.
-37-
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned, thereunto duly authorized.
SIGNATURES
March 15, 2016
COCRYSTAL PHARMA, INC.
By:
/s/ Jeffrey Meckler
Jeffrey Meckler
Chief Executive Officer
(Principal Executive Officer)
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of
the registrant and in the capacities and on the dates indicated.
SIGNATURE
TITLE
DATE
/s/ Jeffrey Meckler
Jeffrey Meckler
/s/ Raymond F. Schinazi
Raymond F. Schinazi
/s/ David Block
David Block
/s/ Phillip Frost
Phillip Frost
/s/ Jane Hsiao
Jane Hsiao
/s/ Steven Rubin
Steven Rubin
/s/ Gary Wilcox
Gary Wilcox
/s/ Curtis Dale
Curtis Dale
Chief Executive Officer (Principal Executive Officer) and Director
March 15, 2016
Chairman
Director
Director
Director
Director
Director
March 15, 2016
March 15, 2016
March 15, 2016
March 15, 2016
March 15, 2016
March 15,2016
Chief Financial Officer (Principal Accounting Officer)
March 15, 2016
-38-
SECURITIES PURCHASE AGREEMENT
Exhibit 10.1
THIS SECURITIES PURCHASE AGREEMENT (the “Agreement”) entered into as of this 26th day of February, 2016 (the “Effective
Date”) by and between the parties on the signature page to this Agreement (each, a “Purchaser”), and Cocrystal Pharma, Inc., a Delaware
corporation (“COCP”) (collectively, the Purchaser and COCP are the “Parties”).
WHEREAS, this Agreement contemplates a transaction in which the Purchaser will purchase from COCP, and COCP will sell to the
Purchaser, up to $15 million of COCP common stock on the terms contained below;
NOW, THEREFORE, in consideration of the mutual promises contained herein, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:
1 . Sale and Purchase. COCP agrees to sell and the Purchaser agrees to purchase a number of shares of COCP common stock (the
“Shares”) as calculated on the signature page to this Agreement at a price per share equal to a 10% discount from the average closing price of
the Shares on the OTC Markets for the five trading days prior to February 26, 2016 which is $0.51 per Share. All funds shall be wired to
COCP within three business days in accordance with Exhibit A. The Purchaser acknowledges that certain former holders of the Company’s
preferred stock certain rights of first refusal (the “ROFR”). In order to promptly close the sale of the Shares prior to expiration of the ROFR
exercise period, the Company and the Purchaser agree that to the extent that any such former preferred stockholders exercise their ROFR
rights and elect to purchase Shares the total purchases pursuant to this Agreement and the ROFR may exceed $15 million and the Company
shall use such excess to fund its operations.
2
. Representations and Warranties of COCP . As an inducement to the Purchaser to enter into this Agreement and
consummate the transaction contemplated hereby, COCP hereby makes the following representations and warranties, each of which is
materially true and correct on the date hereof:
2 . 1 Organization. COCP is a corporation duly organized, validly existing, and in good standing under the laws of the State of
Delaware and is duly authorized to conduct business as currently conducted.
2 . 2 Authority. COCP has full power and authority to execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement constitutes the valid and legally binding obligation of COCP, enforceable in accordance with its terms. The
execution, delivery, and performance of this Agreement and all other agreements contemplated hereby have been duly authorized by COCP.
2.3 Non-Contravention. The execution and delivery of this Agreement by COCP and the observance and performance of the
terms and provisions contained herein do not constitute a violation or breach of any applicable law, or any provision of any other contract or
instrument to which COCP is a party or by which it is bound, or any order, writ, injunction, decree, statute, rule, by-law or regulation
applicable to COCP.
2 . 4 Litigation. There are no actions, suits, or proceedings pending or, to the best of COCP’s knowledge, threatened, which
could in any manner restrain or prevent COCP from effectually and legally selling the Shares pursuant to the terms and provisions of this
Agreement. COCP is not a party to any litigation except as has been disclosed in its Form 10-K filed with the Securities and Exchange
Commission (the “SEC”).
with respect to the transactions contemplated by this Agreement.
2 . 5 Brokers’ Fees. COCP has no liability or obligation to pay fees or commissions to any broker, finder, or agent
2 . 6 Reporting Company. COCP is a publicly-held company subject to reporting obligations pursuant to Section 13 of the Securities
Exchange Act of 1934 (the “Exchange Act”) and has a class of common stock registered pursuant to Section 12(g) of the Exchange Act.
2.7 SEC Reports. COCP has filed with the SEC all reports required to be filed since January 1, 2014, none of the reports filed with the
SEC contained any material statements which were not true and correct or omitted to state any statements of material fact necessary in order
to make the statements made not misleading.
2.8 Outstanding Securities. All issued and outstanding shares of capital stock and equity interests in COCP have been duly authorized
and validly issued and are fully paid and non-assessable.
2 . 9 No Material Adverse Change . Since November 16, 2015 (filing date of the last Form 10-Q), there has not been individually or in
the aggregate a Material Adverse Change with respect to COCP. For the purposes of this Agreement, “Material Adverse Change” means any
event, change or occurrence which, individually or together with any other event, change, or occurrence, could result in a material adverse
change on COCP or material adverse change on its business, assets, financial condition, or results of operations. Provided, however, a
Material Adverse Change does not exist solely because (i) there are changes in the economy, credit markets or capital markets, or (ii)
changes generally affecting the industry in which COCP operates.
3. Representations and Warranties of the Purchaser. As an inducement to COCP to enter into this Agreement and to consummate
the transactions contemplated hereby, the Purchaser hereby makes the following representations and warranties, each of which is materially
true and correct on the date hereof and will be materially true and correct on the closing date:
3 . 1 Authority. The Purchaser has full power and authority to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement constitutes the valid and legally binding obligation of the Purchaser, enforceable in accordance with
its terms. The execution, delivery, and performance of this Agreement and all other agreements contemplated hereby have been duly
authorized by the Purchaser.
3 . 2 Non-Contravention. The execution and delivery of this Agreement by the Purchaser and the observance and
performance of the terms and provisions of this Agreement on the part of the Purchaser to be observed and performed will not constitute a
violation of applicable law or any provision of any contract or other instrument to which the Purchaser is a party or by which it is bound, or
any order, writ, injunction, decree statute, rule or regulation applicable to it.
3 . 3 Litigation There are no actions, suits, or proceedings pending or, to the best of the Purchaser’s knowledge,
threatened, which could in any manner restrain or prevent the Purchaser from effectually and legally purchasing the Shares pursuant to the
terms and provisions of this Agreement.
agent with respect to the transactions contemplated by this Agreement.
3 . 4 Brokers’ Fees. The Purchaser has no liability or obligation to pay fees or commissions to any broker, finder, or
3.5 Information. The Purchaser has relied solely on the reports of COCP filed with the SEC, other publicly available
information and other written and electronic information prepared by COCP in making its decision to purchase the Shares. The Purchaser
acknowledges that the purchase of the Shares entails a high degree of risk including the risks highlighted in the risk factors contained in
filings by COCP with the SEC including its annual report on Form 10-K for the year ended December 31, 2014 and subsequent Form 10-Qs.
The Purchaser represents that it has had an opportunity to ask questions and receive answers from COCP regarding the terms and conditions
of this Agreement and the reasons for this offering, the business prospects of COCP, the risks attendant to COCP’s business, and the risks
relating to an investment in COCP. The Purchaser acknowledges the receipt (without exhibits) of or access to the reports filed with SEC at
www.sec.gov which includes COCP’s reports referred to in this Section 3.5.
3 . 6 Investment. The Purchaser is acquiring the Shares for its own account for investment and not with a view to, or
for sale in connection with, any distribution thereof, nor with any present intention of distribution or selling the same, and, except as
contemplated by this Agreement, and has no present or contemplated agreement, undertaking, arrangement, obligation, indebtedness or
commitment providing for the disposition thereof. The Purchaser understands that the Shares may not be sold, transferred or otherwise
disposed of without registration under the Act or an exemption therefrom, and that in the absence of an effective registration statement
covering the Shares or an available exemption from registration under the Act, the Shares must be held indefinitely.
3 . 7 Restricted Securities. The Purchaser understands that the Shares have not been registered under the Act in
reliance on an exemption from registration under the Securities Act of 1933 (the “Act”) pursuant to Section 4(a)(2) thereof and Rule 506(b)
thereunder and the Shares will bear a restrictive legend.
3 . 8 Investment Experience. The Purchaser represents that it is an “accredited investor” within the meaning of the
applicable rules and regulations promulgated under the Act, for one of the reasons on the attached Exhibit B to this Agreement. The
Purchaser represents and acknowledges that (i) it is experienced in evaluating and investing in private placement transactions in similar
circumstances, (ii) it has such knowledge and experience in financial and business matters and is capable of evaluating the merits and risks
of the investment in the Shares, (iii) it is able to bear the substantial economic risks of an investment the Shares for an indefinite period of
time, (iv) it has no need for liquidity in such investment, (v) it can afford a complete loss of such investment, and (vi) it has such knowledge
and experience in financial, tax and business matters so as to enable it to utilize the information made available to it in connection with the
offering of the Shares to evaluate the merits and risks of the purchase of the Shares and to make an informed investment decision with
respect thereto.
3.9 No General Solicitation. The offer to sell the Shares was directly communicated to the Purchaser by COCP. At
no time was the Purchaser presented with or solicited advertisement, articles, notice or other communication published in any newspaper,
television or radio or presented at any seminar or meeting, or any solicitation by a person not previously known to the undersigned in
connection with the communicated offer.
4
. Survival of Representations and Warranties and Agreements . All representations and warranties of the Parties
contained in this Agreement shall survive the closing.
5. Indemnification.
5.1 Indemnification Provisions for Benefit of the Purchaser. In the event COCP breaches any of its representations, warranties, and/or
covenants contained herein, and provided that the Purchaser makes a written claim for indemnification against COCP, then COCP agrees to
indemnify the Purchaser from and against the entirety of any losses, damages, amounts paid in settlement of any claim or action, expenses, or
fees including court costs and reasonable attorneys' fees and expenses.
5.2 Indemnification Provisions for Benefit of COCP. In the event the Purchaser breaches any of its representations, warranties, and/or
covenants contained herein, and provided that COCP makes a written claim for indemnification against the Purchaser, then the Purchaser
agrees to indemnify COCP from and against the entirety of any losses, damages, amounts paid in settlement of any claim or action, expenses,
or fees including court costs and reasonable attorneys' fees and expenses.
6. Post-Closing Covenants. The Parties agree as follows with respect to the period following the closing:
6 . 1 General. In case at any time after the closing any further action is necessary or desirable to carry out the
purposes of this Agreement, each of the Parties will take such further action (including the execution and delivery of such further
instruments and documents) as the other Party may request, all at the sole cost and expense of the requesting Party (unless the requesting
Party is entitled to indemnification therefore under Section 5).
6 . 2 Company. COCP hereby covenants that, after the closing, COCP will, at the request of Purchaser, execute, acknowledge and
deliver to the Purchaser without further consideration, all such further assignments, conveyances, consents and other documents, and take
such other action, as the Purchaser may reasonably request (a) to transfer to, vest and protect in the Purchaser and its right, title and interest in
the Shares, and (b) otherwise to consummate or effectuate the transactions contemplated by this Agreement.
7 . Expenses. Except as otherwise provided in this Agreement, all Parties hereto shall pay their own expenses, including legal and
accounting fees, in connection with the transactions contemplated herein.
8 . Severability. In the event any parts of this Agreement are found to be void, the remaining provisions of this Agreement shall
nevertheless be binding with the same effect as though the void parts were deleted.
9. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. The execution of this Agreement may be by actual or facsimile signature.
1 0 . Benefit. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their legal representatives,
successors and assigns. Nothing in this Agreement, expressed or implied, is intended to confer on any person other than the Parties or their
respective heirs, successors and assigns any rights, remedies, obligations, or other liabilities under or by reason of this Agreement.
1 1 . Notices and Addresses. All notices, offers, acceptance and any other acts under this Agreement (except payment) shall be in
writing, and shall be sufficiently given if delivered to the addressees in person, by FedEx or similar overnight next business day delivery, or
by email followed by overnight next business day delivery, as follows:
To COCP: Cocrystal Pharma, Inc.
1860 Montreal Road
Tucker, Georgia 30084
Attention: Mr. Walt Linscott
Email: wlinscott@cocrystalpharma.com
To the Purchaser: The address set forth on the signature page attached hereto
or to such other address as any of them, by notice to the other may designate from time to time.
1 2 . Attorney's Fees. In the event that there is any controversy or claim arising out of or relating to this Agreement, or to the
interpretation, breach or enforcement thereof, and any action or arbitration proceeding is commenced to enforce the provisions of this
Agreement, the prevailing party shall be entitled to a reasonable attorney's fee, including the fees on appeal, costs and expenses.
1 3 . Governing Law. This Agreement and any dispute, disagreement, or issue of construction or interpretation arising hereunder
whether relating to its execution, its validity, the obligations provided therein or performance shall be governed or interpreted according to
the laws of the State of Delaware.
1 4 . Oral Evidence. This Agreement constitutes the entire Agreement between the parties and supersedes all prior oral and written
agreements between the parties hereto with respect to the subject matter hereof. Neither this Agreement nor any provision hereof may be
changed, waived, discharged or terminated orally, except by a statement in writing signed by the party or parties against whom enforcement
or the change, waiver discharge or termination is sought.
15. Assignment. No Party hereto shall assign its rights or obligations under this Agreement without the prior written consent
of the other Party.
1 6 . Section Headings. Section headings herein have been inserted for reference only and shall not be deemed to limit or otherwise
affect, in any matter, or be deemed to interpret in whole or in part any of the terms or provisions of this Agreement.
FLORIDA LAW PROVIDES THAT WHEN SALES ARE MADE TO FIVE OR MORE PERSONS IN FLORIDA, ANY SALE
MADE IN FLORIDA IS VOIDABLE BY THE PURCHASER WITHIN THREE DAYS AFTER THE FIRST TENDER OF
CONSIDERATION IS MADE BY SUCH PURCHASER TO COCP, AN AGENT OF COCP OR AN ESCROW AGENT OR
WITHIN THREE DAYS AFTER THE AVAILABILITY OF THAT PRIVILEGE IS COMMUNICATED TO SUCH PURCHASER,
WHICHEVER OCCURS LATER. PAYMENTS FOR TERMINATED SUBSCRIPTIONS VOIDED BY PURCHASERS AS
PROVIDED FOR IN THIS PARAGRAPH WILL BE PROMPTLY REFUNDED WITHOUT INTEREST. NOTICE SHOULD BE
GIVEN TO COCP TO THE ATTENTION OF WALT LINSCOTT AT THE ADDRESS SET FORTH IN SECTION 11 OF THIS
AGREEMENT.
[Signature Page Attached]
IN WITNESS WHEREOF the parties hereto have set their hand and seals as of the above date.
COCRYSTAL PHARMA, INC.:
By:
Walt Linscott,
General Counsel
PURCHASER:
By: ________________________________
(Print Name and Title)
Address:______________________________
_____________________________________
Email:________________________________
Tax ID of Purchaser: ____________________
Amount Invested: $__________________ with the number of shares based upon the per share purchase price set forth in Section 1.
Exhibit A
(Cocrystal Wire Instructions)
Exhibit B
Accredited Investor Questionnaire
For Individual Investors Only:
(1) I am an accredited investor because I have an individual net worth, or my spouse and I have combined net worth, in excess of
$1,000,000. For purposes of calculating net worth under this paragraph (1), (i) the primary residence shall not be included as an asset, (ii) to
the extent that the indebtedness that is secured by the primary residence is in excess of the fair market value of the primary residence, the
excess amount shall be included as a liability, and (iii) if the amount of outstanding indebtedness that is secured by the primary residence
exceeds the amount outstanding 60 days prior to the execution of this Subscription Agreement, other than as a result of the acquisition of the
primary residence, the amount of such excess shall be included as a liability.
(2a) I am an accredited investor because I had individual income (exclusive of any income attributable to my spouse) of more than
$200,000 in the last two completed years and I reasonably expect to have an individual income in excess of $200,000 this year.
(2b) Alternatively, my spouse and I have joint income in excess of $300,000 in each applicable year.
(3) I am a director or executive officer of the Company.
Other Investors:
(4) The undersigned is one of the following: any bank as defined in Section 3(a)(2) of the Securities Act whether acting in its
individual or fiduciary capacity; any broker or dealer registered pursuant to section 15 of the Securities Exchange Act of 1934; insurance
company as defined in Section 2(13) of the Securities Act; investment company registered under the Investment Company Act of 1940 or a
business development company as defined in Section 2(a)(48) of that Act; Small Business Investment Company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958; any plan established and maintained by a
state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such
plan has total assets in excess of $5,000,000; employee benefit plan within the meaning of Title I of the Employee Retirement Income
Security Act of 1974, if the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a bank,
savings and loan association, insurance company, or registered investment advisor, or if the employee benefit plan has total assets in excess
of $5,000,000, or if a self-directed plan, with investment decisions made solely by persons that are accredited investors.
(5) The undersigned is a private business development company as defined in Section 202(a)(22) of the Investment Advisors Act of
1940.
(6) The undersigned is a organization described in Section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or
similar business trust or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of
$5,000,000.
(7) The undersigned is a trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities
offered, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) of the Securities Act.
(8) The undersigned is an entity in which all of the equity owners are accredited investors.
Exhibit 31.1
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER
I, Jeffrey Meckler, certify that:
1. I have reviewed this annual report on Form 10-K of Cocrystal Pharma, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period
covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures
(as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others
within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under
our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about
the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s
most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably
likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial
reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent
functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s
internal control over financial reporting.
Date: March 15, 2016
/s/ Jeffrey Meckler
Jeffrey Meckler
Chief Executive Officer
(Principal Executive Officer)
Exhibit 31.2
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER
I, Curtis Dale, certify that:
1. I have reviewed this annual report on Form 10-K of Cocrystal Pharma, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period
covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all
material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this
report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures
(as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by
others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under
our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about
the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s
most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably
likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over
financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the
equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s
internal control over financial reporting.
Date: March 15, 2016
/s/ Curtis Dale
Curtis Dale
Chief Financial Officer
(Principal Financial Officer)
Exhibit 32.1
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the annual report of Cocrystal Pharma, Inc. (the “Company”) on Form 10-K for the year ended December 31, 2015, as
filed with the Securities and Exchange Commission on the date hereof, I, Jeffrey Meckler, certify, pursuant to 18 U.S.C. Sec.1350, as
adopted pursuant to Sec.906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
1. The annual report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934
and
2. The information contained in the annual report fairly presents, in all material respects, the financial condition and results of
operations of the Company.
/s/ Jeffrey Meckler
Jeffrey Meckler
Chief Executive Officer
(Principal Executive Officer)
Dated: March 15, 2016
In connection with the annual report of Cocrystal Pharma, Inc. (the “Company”) on Form 10-K for the year ended December 31, 2015, as
filed with the Securities and Exchange Commission on the date hereof, I, Curtis Dale, certify, pursuant to 18 U.S.C. Sec.1350, as adopted
pursuant to Sec.906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
1. The annual report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934
and
2. The information contained in the annual report fairly presents, in all material respects, the financial condition and results of
operations of the Company.
/s/ Curtis Dale
Curtis Dale
Chief Financial Officer
(Principal Financial Officer)
Dated: March 15, 2016