SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported)
February 5, 2002
CORTEX PHARMACEUTICALS, INC.
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(Exact name of registrant as specified in its charter)
Delaware 0-17951 33-0303583
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(State or other jurisdiction of (Commission File Number) (I.R.S Employer Identification No.)
incorporation)
15241 Barranca Parkway
Irvine, California 92618
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (949) 727-3157
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N/A
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(Former name or former address, if changed since last report.)
Item 5. Other Events.
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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, dated February 8, 2002. Please note
that the following description of the Rights Agreement is only a summary, and is
not complete, and should be read together with the entire Rights Agreement,
which has been filed with the Securities and Exchange Commission as an exhibit
to an Amendment No. 1 to Registration Statement on Form 8-A filed February 15,
2002. A copy of the Rights Agreement is available free of charge from the
Company.
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
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
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(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 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;
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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.
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.
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Item 7. Financial Statements and Exhibits.
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(c) Exhibits.
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Exhibit Description Exhibit Number
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Restated Certificate of Incorporation dated April 11, 1989, as amended by Certificate of 3.1
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,
incorporated by reference to Exhibit 3.1 to the Registrant's Amendment No. 1 to
Registration Statement on Form 8-A, No. 001-16467, filed February 15, 2002.
Rights Agreement, dated as of February 8, 2002, between Cortex Pharmaceuticals, Inc. and 4.2
American Stock Transfer & Trust Company, which includes as Exhibit A thereto a form of
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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
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Terms of Stockholder Rights Plan, incorporated by reference to Exhibit 4.2 to the
Registrant's Amendment No. 1 to Registration Statement on Form 8-A, No. 001-16467, filed
February 15, 2002.
Press Release, dated February 7, 2002. 99.1
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CORTEX PHARMACEUTICALS, INC.
Date: 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
Exhibit Sequential
Number Description Page No.
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3.1 Restated Certificate of Incorporation dated April 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, incorporated by reference
to Exhibit 3.1 to the Registrant's Amendment No. 1 to Registration Statement on
Form 8-A, No. 001-16467, filed February 15, 2002.
4.2 Rights Agreement, dated as of February 8, 2002, between Cortex ----
Pharmaceuticals, Inc. and American Stock Transfer & Trust Company, which
includes as Exhibit A thereto a form of Certificate of Designation for the
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Series A Junior Participating Preferred Stock, as Exhibit B thereto the
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Form of Rights Certificate and as Exhibit C thereto a Summary of Terms of
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Stockholder Rights Plan, incorporated by reference to Exhibit 4.2 to the
Registrant's Amendment No. 1 to Registration Statement on Form 8-A, No.
001-16467, filed February 15, 2002.
99.1 Press Release, dated February 7, 2002. 8
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