STIPULATED MOTION AND ORDER

THOMAS S. ZILLY, District Judge.

I. STIPULATED MOTION

WHEREAS, on November 1, 2019, Plaintiff Martin Tutschek ("Plaintiff") filed in this Court a Verified Stockholder Derivative Complaint (the "Complaint") (ECF No. 1) on behalf of nominal defendant Cocrystal Pharma, Inc. ("Cocrystal"), captioned Tutschek v. Schinazi, et al.,

WHEREAS, the Complaint names as defendants Raymond Schinazi, Gary Wilcox, Phillip Frost, Jane Hsiao, Steve Rubin, David S. Block, Jeffrey Meckler and Todd Brady (collectively, the "Individual Cocrystal Defendants"), who are current or former directors or officers of Cocrystal, and Elliot Mitchell Maza and Brian Keller (collectively with the Individual Cocrystal Defendants, the "Officer/Director Defendants"), who are former officers of Cocrystal's predecessor, BioZone Pharmaceuticals, Inc. ("BioZone"), and generally alleges that these Officer/Director Defendants breached fiduciary duties to shareholders of Cocrystal or BioZone by failing to disclose an alleged scheme to artificially inflate the price of BioZone's stock;

WHEREAS the Complaint also names as defendants Barry Honig, Michael Brauser, John Stetson, and John O'Rourke (collectively, the "Shareholder Defendants" and, together with the Officer/Director Defendants and Cocrystal, the "Defendants"), who are alleged to be controlling shareholders of Cocrystal, and generally alleges that these Shareholder Defendants breached fiduciary duties by engaging in a "pump and dump" scheme that artificially inflated the price of BioZone stock, and otherwise engaged in related-party transactions that benefited themselves or entities that were either controlled or affiliated with them;

WHEREAS, a related securities class action lawsuit, captioned Pepe v. Cocrystal Pharma, Inc., et al., No. 2:18-cv-14091-KM-JBC, is pending in the United States District Court for the District of New Jersey (the "Securities Class Action");

WHEREAS, the plaintiff in the Securities Class Action asserts federal securities claims against certain defendants who are also named as defendants in this Action—including certain current or former officers of Cocrystal and former officers of BioZone—arising from facts common to those alleged in this Action;

WHEREAS, the plaintiff in the Securities Class Action filed an amended complaint (ECF No. 37) on June 25, 2019;

WHEREAS, the court in the Securities Class Action entered a stipulated order on October 21, 2019, directing that the "Stipulating Defendants" in that case would not be required to answer, move to dismiss, or otherwise respond to the plaintiff's amended complaint until after the parties to the Securities Class Action had engaged in mediation of the claims asserted in the Securities Class Action and reported to the District Court on the outcome of the mediation efforts;

WHEREAS, the parties to the Securities Class Action engaged in mediation on November 22, 2019, before the Honorable Jose Linares (Ret.);

WHEREAS, the parties to the Securities Class Action did not achieve a settlement on November 22, 2019, but are continuing to work with the mediator in an attempt to reach an agreed resolution;

WHEREAS, on January 16, 2019, Plaintiff Susan S. Church filed a Verified Stockholder Derivative Complaint (the "Church Complaint") (ECF No. 1) on behalf of nominal defendant Cocrystal, captioned Church v. Maza, et al., No. 2:19-cv-00080-TSZ (the "Church Derivative Action");

WHEREAS, the Church Complaint alleges claims against some of the same individuals who are defendants in this Action based on the same alleged misconduct;

WHEREAS, on April 9, 2019, this Court entered a stipulated order in the Church Derivative Action pursuant to which all proceedings, including any motion practice, obligation to respond to the Church Complaint and any amended complaint, and all discovery and disclosure obligations or deadlines under the applicable local and federal rules or previously-issued Orders of the Court were stayed until (1) the Securities Class Action is dismissed, with prejudice, and all appeals related thereto have been exhausted; (2) any defendant's motion to dismiss the Securities Class Action is denied in whole or in part; or (3) the stay is modified by stipulation of the parties to the Church Derivative Action as ordered by the Court, or by the Court pursuant to a motion;

WHEREAS, counsel for Plaintiff and counsel for Defendants Raymond Schinazi, Gary Wilcox, Jane Hsiao, Steve Rubin, David S. Block, Jeffrey Meckler and Todd Brady, and Nominal Defendant Cocrystal Pharma, Inc. (collectively with Plaintiff, the "Stipulating Parties"), who are all the parties who have appeared in the Action, have conferred regarding the status of the Action, the Securities Class Action, the Church Derivative Action, and the appropriate next steps;

WHEREAS, the Stipulating Parties agree, as did the stipulating parties in the Church Derivative Action, that resolution of the related Securities Class Action will have a bearing on the claims asserted in this Action;

WHEREAS, based on the overlapping parties and factual allegations in the Action and in the Securities Class Action and the likely impact of the resolution of the Securities Class Action on the claims in the Action, and to avoid the unnecessary expenditure of judicial and party resources, the Stipulating Parties have agreed, subject to this Court's approval, as did the stipulating parties in the Church Derivative Action, to a limited stay of the Action until (1) the Securities Class Action is dismissed, with prejudice, and all appeals related thereto have been exhausted; (2) any defendant's motion to dismiss the Securities Class Action is denied in whole or in part; (3) the stay is modified by stipulation of the parties to the Action as ordered by the Court, or by the Court pursuant to a motion; or (4) in the event a related derivative action is not stayed, plaintiff may lift the stay upon thirty (30) days' notice, by email, to defendants' counsel;

WHEREAS, such a stay in this Action is consistent with the terms of the Stay Order in the Church Derivative Action;

WHEREAS, counsel for the Stipulating Parties have conferred with out-of-state counsel for defendant Brauser, who has not yet appeared in the Action, and counsel for defendant Brauser acknowledges that defendant Brauser has been served with the complaint in this action, reserving all rights and defenses, and consents to the relief requested in this Stipulation and Proposed Order;

WHEREAS, defendant Brian Keller was served with the Complaint on November 20, 2019 and an affidavit of service was filed with the Court on November 26, 2019 (ECF No. 11), and Mr. Keller has not yet appeared in the Action, and the Stipulating Parties do not know his opinion on the relief requested in this Stipulation and Proposed Order;

WHEREAS, counsel for the Stipulating Parties have conferred with out-of-state counsel for defendant John O'Rourke, who has not yet appeared in this Action, and counsel for Mr. O'Rourke has agreed to the relief requested in this Stipulation and Proposed Order;

WHEREAS, counsel for the Stipulating Parties have conferred with out-of-state counsel for defendant Maza, who has not yet appeared in the Action, and counsel for defendant Maza has executed a waiver of service on behalf of defendant Maza, reserving all rights and defenses other than insufficient service of process, and consents to the relief requested in this Stipulation and Proposed Order;

WHEREAS, counsel for the Stipulating Parties have conferred with out-of-state counsel for defendant Phillip Frost, who has not yet appeared in the Action, and counsel for Dr. Frost has agreed to accept service of the Complaint on behalf of Dr. Frost, reserving all rights and defenses other than insufficient service of process, and consents to the relief requested in this Stipulation and Proposed Order;

WHEREFORE, the Stipulating Parties, through their undersigned counsel, hereby agree, stipulate, and respectfully request that the Court enter an Order as follows:

1. Undersigned counsel for Defendants who are parties to this Stipulated Motion agree to accept service of the Complaint in the Action on behalf of each of the Defendants they represent, but each such Defendant expressly reserves all rights and defenses other than insufficient service of process.

2. Except as noted below, all proceedings, including any motion practice, obligation to respond to the Complaint and any amended complaint, and all discovery and disclosure obligations or deadlines under the applicable local and federal rules or previously-issued Orders of this Court in the Action are hereby stayed until further order of the Court.

3. Defendants shall promptly notify Plaintiff's undersigned counsel of any related shareholder derivative actions filed nominally on behalf of Cocrystal of which they become aware.

4. Defendants shall promptly notify Plaintiff's undersigned counsel if any such related derivative action is not stayed. In the event that any such related derivative action is not stayed, Plaintiff may move to lift the stay of this Action upon thirty (30) days' notice, by email, to Defendants' undersigned counsel.

5. During the stay, Plaintiff may file an amended complaint, but Defendants need not answer, move to dismiss, or otherwise respond to any amended complaint during the pendency of the stay.

6. Either during the stay, or shortly after termination of the stay, the parties to this Action and the Church Derivative Action may move to consolidate this Action with the Church Derivative Action.

7. All pending deadlines, hearings, or conferences are vacated until after the stay is lifted.

8. Within fourteen (14) days after the Securities Class Action is resolved, or a motion to dismiss the Securities Class Action is denied, or by July 31, 2020, whichever occurs earliest, the parties to this Action shall file a Joint Status Report.

II. ORDER

The parties' stipulated motion, docket no. 15, is GRANTED as amended, without prejudice to the right of any defendant who has not yet appear to oppose the relief granted herein.

IT IS SO ORDERED.