SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
CORTEX PHARMACEUTICALS, INC.
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(Exact name of registrant as specified in its charter)
Delaware 33-0303583
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(State of Incorporation (IRS Employer
or Organization) Identification No.)
15241 Barranca Parkway, Irvine, California 92618
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(Address of Principal Executive Offices) (Zip Code)
If this form relates to the In this form relates to the
registration of a class of registration of a class of
securities pursuant to Section securities pursuant to Section
12(b) of the Exchange Act and is 12(g) of the Exchange Act and is
effective pursuant to General effective pursuant to General
Instruction A.(c), please check Instruction A.(d), please check
the following box. [X] the following box. [_]
Securities Act registration statement file number to which this form relates:
None
Securities to be registered pursuant to Section 12(b) of the Act:
Common Stock, $0.001 par value American Stock Exchange
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(Title of Class) (Name of Exchange)
Securities to be registered pursuant to Section 12(g) of the Act: None
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered.
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The following is a description of the Common Stock, $0.001 par
value per share ("Common Stock"), of Cortex Pharmaceuticals, Inc. (the
"Company"). This summary is qualified by reference to the actual
provisions of the Company's Restated Certificate of Incorporation and
By-laws, copies of which have been filed with the Securities and
Exchange Commission.
Common Stock
Holders of shares of Common Stock are entitled to one vote per
share held of record on all matters submitted to a vote of
stockholders, including the election of directors. The holders are
entitled to receive dividends when, as and if declared by the Board of
Directors, in its discretion, out of funds legally available therefor,
subject to preferences that may be applicable to any outstanding
shares of Preferred Stock. In the event of a liquidation, dissolution
or winding up of the Registrant, the holders of Common Stock are
entitled to share ratably in all of the assets of the Registrant
remaining after payment of liabilities and after payment of any
preferential amounts to which holders of shares of the 9% Preferred
Stock, the Series B Preferred Stock and any other series of Preferred
Stock that may be outstanding in the future, may be entitled. Holders
of Common Stock have no preemptive or other subscription rights, and
there are no conversion rights or redemption or sinking fund
provisions with respect to such shares. All of the outstanding shares
of Common Stock are, and the shares of Common Stock when issued will
be, fully paid and nonassessable.
Stockholder Rights Plan
On February 5, 2002, the Company's Board of Directors approved
the adoption of a Stockholder Rights Plan and declared a dividend
distribution of one Right (a "Right") for each outstanding share of
the Company's Common Stock to stockholders of record on the close of
business on February 15, 2002 (the "Dividend Date"). Each Right
entitles the registered holder to purchase from the Company a unit
consisting of one one-thousandth of a share (a "Unit") of Series A
Junior Participating Preferred Stock, par value $0.001 per share (the
"Series A Preferred Stock"), at a purchase price of $75.00 per Unit,
subject to adjustment. The description and terms of the Rights are set
forth in a Rights Agreement (the "Rights Agreement") between the
Company and American Stock Transfer & Trust Company, as Rights Agent.
Certificates. Initially, the Rights will be attached to all
Common Stock certificates representing shares then outstanding, and no
separate Rights Certificates will be distributed. Subject to extension
by the Board of Directors in certain circumstances, the Rights will
separate from the Common Stock and a
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distribution date (the "Distribution Date") will occur upon the
earlier of (i) ten (10) days following a public announcement that a
person or group of affiliated or associated persons (an "Acquiring
Person") has acquired, or obtained the right to acquire, beneficial
ownership of fifteen percent (15%) or more of the outstanding shares
of Common Stock (the "Stock Acquisition Date"); or (ii) ten (10)
business days following the commencement of a tender offer or exchange
offer that would result in a person or group beneficially owning
fifteen percent (15%) or more of the outstanding shares of Common
Stock. Until the Distribution Date, (i) the Rights will be evidenced
by the Common Stock certificates and will be transferred with and only
with such Common Stock certificates; (ii) new Common Stock
certificates issued will contain a notation incorporating the Rights
Agreement by reference; and (iii) the surrender for transfer of any
certificates for Common Stock outstanding will also constitute the
transfer of the Rights associated with the Common Stock represented by
such certificate.
Expiration and Exercise. The Rights are not exercisable until the
Distribution Date and will expire at the close of business on February
15, 2012, unless earlier redeemed by the Company as described below.
As soon as practicable after the Distribution Date, Rights
Certificates will be mailed to holders of record of the Common Stock
as of the close of business on the Distribution Date and, thereafter,
the separate Rights Certificates will represent the Rights. Except as
otherwise determined by the Board of Directors, only shares of Common
Stock issued prior to the Distribution Date will be issued with
Rights.
"Flip-In". In the event that, at any time following the Dividend
Date, (i) the Company is the surviving corporation in a merger with an
Acquiring Person and its Common Stock is not changed or exchanged;
(ii) an Acquiring Person becomes the beneficial owner of more than
fifteen percent (15%) of the outstanding shares of Common Stock; (iii)
an Acquiring Person engages in one or more "self-dealing" transactions
as set forth in the Rights Agreement; or (iv) during such time as
there is an Acquiring Person, an event occurs which results in such
Acquiring Person's ownership interest being increased by more than
one-half of one percent (.50%) (e.g., a reverse stock split), each
holder of a Right will thereafter have the right to receive, upon
exercise, Common Stock (or, in certain circumstances, cash, property
or other securities of the Company) having a value equal to two times
the exercise price of the Right. Notwithstanding any of the foregoing,
following the occurrence of any of the events set forth in this
paragraph, all Rights that are, or (under certain circumstances
specified in the Rights Agreement) were, beneficially owned by any
Acquiring Person will be null and void. However, Rights are not
exercisable following the occurrence of any of the events set forth
above until such time as the Rights are no longer redeemable by the
Company as set forth below.
For example, at an exercise price of $75.00 per Right, each Right
not owned by an Acquiring Person (or by certain related parties)
following an event set forth in the preceding paragraph would entitle
its holder to purchase $150.00 worth of Common Stock (or other
consideration, as noted above) for $75.00. Assuming that
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the Common Stock had a per share value of $10.00 at such time, the
holder of each valid Right would be entitled to purchase fifteen (15)
shares of Common Stock for $75.00.
Permitted Offer. A tender or exchange offer for all outstanding
Common Stock at a price and on terms determined by the Board of
Directors prior to the purchase to be adequate and in the best
interests of the Company and its stockholders (other than the
Acquiring Person) is a Permitted Offer under the Rights Agreement. A
Permitted Offer does not trigger the exercisability of the Rights.
"Flip-Over". In the event that, at any time following the Stock
Acquisition Date, (i) the Company is acquired in a merger or other
business combination transaction in which the Company is not the
surviving corporation; or (ii) 50% or more of the Company's assets or
earning power is sold or transferred, each holder of a Right (except
Rights which previously have been voided as set forth above) shall
thereafter have the right to receive, upon exercise, common stock of
the acquiring company having a value equal to two times the exercise
price of the Right. The events set forth in this paragraph and in the
third preceding paragraph are referred to as the "Triggering Events."
Exchange Feature. At any time after any Person becomes an
Acquiring Person and prior to the acquisition by such person or group
of 50% or more of the outstanding Common Stock, the Board of Directors
may exchange the Rights (other than Rights owned by such Person or
group which will have become void), in whole or in part, for Common
Stock having a value equal to the exercise price (as adjusted) of the
Right exchanged (or a combination of cash, property, Common Stock or
other securities having an equal value).
Adjustment for Dilution. The purchase price payable, and the
number of Units of Series A Preferred Stock or other securities or
property issuable upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a
stock dividend on, or a subdivision, combination or reclassification
of, the Series A Preferred Stock; (ii) if holders of the Series A
Preferred Stock are granted certain rights or warrants to subscribe
for Series A Preferred Stock or convertible securities at less than
the current market price of the Series A Preferred Stock; or (iii)
upon the distribution to holders of the Series A Preferred Stock of
evidences of indebtedness or assets (excluding regular cash dividends)
or of subscription rights or warrants (other than those referred to
above).
With certain exceptions, no adjustment in the purchase price will
be required until cumulative adjustments amount to at least 1% of the
purchase price. No fractional Units will be issued and, in lieu
thereof, an adjustment in cash will be made based on the market price
of the Series A Preferred Stock on the last trading date prior to the
date of exercise.
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Redemption. At any time until ten (10) days following the Stock
Acquisition Date or such later date as may be determined by action of
a majority of the Board of Directors then in office and publicly
announced by the Company, the Company may redeem the Rights in whole,
but not in part, at a price of $0.001 per Right. Immediately upon the
action of the Board of Directors ordering redemption of the Rights,
the Rights will terminate and the only right of the holders of Rights
will be to receive the $0.001 redemption price. Rights are not
exercisable while subject to redemption.
Stockholder Rights. Until a Right is exercised, the holder
thereof, as such, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to receive
dividends. While the distribution of the Rights will not be taxable to
stockholders or to the Company, stockholders may, depending upon the
circumstances, recognize taxable income in the event that the Rights
become exercisable for Common Stock (or other consideration) of the
Company or for common stock of the acquiring company as set forth
above.
Amendments. Any of the provisions of the Rights Agreement may be
amended by the Board of Directors of the Company prior to the
Distribution Date. After the Distribution Date, the provisions of the
Rights Agreement may be amended by the Board in order to cure any
ambiguity, to make changes which do not adversely affect the interests
of holders of Rights (excluding the interests of any Acquiring
Person), or to shorten or lengthen any time period under the Rights
Agreement; provided, however, that no amendment to adjust the time
period governing redemption shall be made at such time as the Rights
are not redeemable.
Anti-Takeover Effects. The Rights are intended to protect the
stockholders of the Company in the event of an unfair or coercive
offer to acquire the Company and to provide the Board of Directors
with adequate time to evaluate unsolicited offers. The Rights may have
anti-takeover effects. The Rights will cause substantial dilution to a
person or group that attempts to acquire the Company without
conditioning the offer on a substantial number of Rights being
acquired. The Rights, however, should not affect any prospective
offeror willing to make an offer at a fair price and otherwise in the
best interests of the Company and its stockholders, as determined by a
majority vote of the Board of Directors. The Rights should not
interfere with any merger or other business combination approved by
the Board of Directors.
Incorporation By Reference. This summary description of the
Rights does not purport to be complete and is qualified in its
entirety by reference to the Rights Agreement, which is incorporated
herein by reference.
Page 5 of 8
Item 2. Exhibits.
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Exhibit Description
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Exhibit
Number
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Restated Certificate of Incorporation dated April 11, 1989, as amended 3.1
by Certificate of Amendment on June 27, 1989, by Certificate of
Designation filed April 29, 1991, by Certificate of Correction filed
May 1, 1991, by Certificate of Amendment of Certificate of Designation
filed June 13, 1991, by Certificate of Amendment of Certificate of
Incorporation filed November 12, 1992, by Certificate of Amendment of
Restated Certificate of Incorporation filed January 11, 1995, by
Certificate of Designation filed December 8, 1995, by Certificate of
Designation filed October 15, 1996, by Certificate of Designation filed
June 4, 1997, by Certificate of Amendment of Restated Certificate of
Incorporation filed December 21, 1998, and by Certificate of
Designation filed February 11, 2002.
By-Laws of the Registrant, as adopted March 4, 1987, and amended 3.2
through October 8, 1996, incorporated by reference to Exhibit 3.2 to
the Registrant's Annual Report on Form 10-KSB filed October 15, 1996.
Specimen Form of Stock Certificate for Common Stock, incorporated by 4.1
reference to Exhibit 4.1 to the Registrant's Registration Statement on
Form 8-A, No. 001-16467, filed May 2, 2001.
Rights Agreement, dated as of February 8, 2002, between Cortex 4.2
Pharmaceuticals, Inc. and American Stock Transfer & Trust Company,
which includes as Exhibit A thereto a form of Certificate of
Designation for the Series A Junior Participating Preferred Stock, as
Exhibit B thereto the Form of Rights Certificate and as Exhibit C
thereto a Summary of Terms of Stockholder Rights Plan.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this amendment no. 1 to registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
CORTEX PHARMACEUTICALS, INC.
Dated: February 15, 2002 By: /s/ Maria S. Messinger
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Maria S. Messinger,
Vice President, Chief Financial Officer
and Corporate Secretary
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EXHIBIT INDEX
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Exhibit Sequential
Number Description Page No.
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3.1 Restated Certificate of Incorporation dated April 9
11, 1989, as amended by Certificate of Amendment
on June 27, 1989, by Certificate of Designation
filed April 29, 1991, by Certificate of Correction
filed May 1, 1991, by Certificate of Amendment of
Certificate of Designation filed June 13, 1991, by
Certificate of Amendment of Certificate of
Incorporation filed November 12, 1992, by
Certificate of Amendment of Restated Certificate
of Incorporation filed January 11, 1995, by
Certificate of Designation filed December 8, 1995,
by Certificate of Designation filed October 15,
1996, by Certificate of Designation filed June 4,
1997, by Certificate of Amendment of Restated
Certificate of Incorporation filed December 21, 1998,
and by Certificate of Designation filed February 11,
2002.
3.2 By-Laws of the Registrant, as adopted March 4, --
1987, and amended through October 8, 1996,
incorporated by reference to Exhibit 3.2 to the
Registrant's Annual Report on Form 10-KSB filed
October 15, 1996.
4.1 Specimen Form of Stock Certificate for Common --
Stock, incorporated by reference to Exhibit 4.1 to
the Registrant's Registration Statement on Form
8-A, No. 001-16467, filed May 2, 2001.
4.2 Rights Agreement, dated as of February 8, 2002, 71
between Cortex Pharmaceuticals, Inc. and American
Stock Transfer & Trust Company, which includes as
Exhibit A thereto a form of Certificate of
Designation for the Series A Junior Participating
Preferred Stock, as Exhibit B thereto the Form of
Rights Certificate and as Exhibit C thereto a
Summary of Terms of Stockholder Rights Plan.
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