<PAGE>
As Filed With the Securities and Exchange Commission on January 31, 1997
Registration No. 333-_______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington. D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
CORTEX PHARMACEUTICALS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 33-0303583
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
15241 Barranca Parkway, Irvine, California 92618
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
---------------------
1996 STOCK INCENTIVE PLAN
1989 INCENTIVE STOCK OPTION, NONQUALIFIED STOCK OPTION AND STOCK
PURCHASE PLAN
1989 SPECIAL NONQUALIFIED STOCK OPTION AND STOCK PURCHASE PLAN
EXECUTIVE STOCK PLAN
(FULL TITLES OF THE PLANS)
------------
Vincent F. Simmon, Ph.D., President and Chief Executive Officer
Cortex Pharmaceuticals, Inc.
15241 Barranca Parkway, Irvine, California 92618
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(714) 727-3157
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copy to:
Lawrence B. Cohn, Esq.
Stradling, Yocca, Carlson & Rauth, a Professional Corporation
660 Newport Center Drive, Suite 1600, Newport Beach, California 92660
[cover page continued on next page]
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[cover page continued]
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities To Be Offering Aggregate Registration
To Be Registered Price Offering Fee
Registered (1)(2)(3) Per Share Price (4)
- -------------------------------------------------------------------------
Common Stock,
.001 par value 2,402,319 shares $3.53125 $8,483,188.96 $2,571
- -------------------------------------------------------------------------
(1) Includes the total number of shares of Common Stock which may be issued
under the 1996 Stock Incentive Plan (the "1996 Plan"), which are 613,132
shares, plus (i) any shares underlying lapsed or expired options granted
under the Company's 1989 Incentive Stock Option, Nonqualified Stock Option
and Stock Purchase Plan (the "1989 Incentive Plan"), 1989 Special
Nonqualified Stock Option and Stock Purchase Plan (the 1989 Stock Purchase
Plan") and Executive Stock Plan (the "Executive Plan"), (collectively the
"Prior Plans"), plus, (ii) on the last day of each fiscal year of the
Company, a number of shares equal to twenty percent (20%) of the increase
in the number of shares of Common Stock outstanding since the last day of
the previous fiscal year (except in the case of fiscal year ending June 30,
1997, in which case the added shares of Common Stock shall equal twenty
percent (20%) of the increase in the number of shares of Common Stock
outstanding since October 25, 1996).
(2) Includes an aggregate of 902,319 shares subject to issuance under
outstanding options granted under the Company's Prior Plans.
(3) Includes additional shares of Common Stock that may become issuable
pursuant to the anti-dilution adjustment provisions of the Company's 1996
Plan, the 1989 Incentive Plan, the 1989 Stock Purchase Plan and the
Executive Plan.
(4) The aggregate offering price for 1,500,000 shares of Common Stock
registered hereby, which are to be offered to the Registrant's employees,
officers, directors, consultants or other persons or entities who provide
services to the Registrant or an affiliate of the Registrant pursuant to
the 1996 Plan, and the remaining 902,319 shares of Common Stock registered
hereby which would be issued upon exercise of the remaining options and
rights to purchase which Registrant is authorized to issue under its 1989
Incentive Plan, 1989 Stock Purchase Plan and the Executive Plan, is
estimated solely for the purpose of calculating the registration fee, in
accordance with Rule 457(h)(1), on the basis of the price of securities of
the same class as determined in accordance with Rule 457(c), using the
average of the closing bid and asked price of the Common Stock of the
Registrant on the NASDAQ System on January 27, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-KSB for the year ended June
30, 1996.
(b) The Registrant's Quarterly Report on Form 10-QSB for the quarter ended
September 30, 1996.
(c) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since the end of the fiscal year covered by the Prospectus referred to in (a)
above.
(d) The description of the Registrant's Common Stock that is contained in
the Registrant's Registration Statement on Form 8-A filed under Section 12 of
the Exchange Act, including any amendment or report filed for the purpose of
updating that description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all of such securities then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a part hereof from the
date of filing of such documents, except as to any portion of any future annual
or quarterly report to stockholders or document that is not deemed filed under
such provisions. For the purposes of this registration statement, any statement
in a document incorporated by reference shall be deemed to be modified or
superseded to the extent that a statement contained in this registration
statement modifies or supersedes a statement in such document. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) As permitted by the Delaware General Corporation Law, the Registrant's
Restated Certificate of Incorporation, as amended, provides for indemnification
of its directors and officers to the fullest extent permitted by the Delaware
General Corporation Law. In addition, the Registrant's Restated Certificate of
Incorporation, as amended, eliminates the liability of directors to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty
as a director, except to the extent otherwise required by the Delaware General
Corporation Law.
(b) The Registrant has entered into indemnification agreements with each
of its directors and executive officers. The indemnification agreements provide
for the indemnification of directors and
2
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officers of the Company against any and all expenses, judgments, fines,
penalties and amounts paid in settlement, to the fullest extent permitted by
law. The Registrant also maintains directors and officers liability
insurance, under which directors and officers are insured against certain
expenses in connection with the defense of actions, suits or proceedings, and
certain liabilities which might be imposed as a result of such actions, suits
or proceedings, to which they are parties by reason of being or having been
such directors or officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
Number Description
------ -----------
4.1 1989 Incentive Stock Option, Nonqualified Stock Option and
Stock Purchase Plan, incorporated by reference to Exhibit 10.8
to the Company's Registration Statement on Form S-1, No. 33-
28284, effective on July 18, 1989.
4.2 1989 Special Nonqualified Stock Option and Stock Purchase
Plan, incorporated by reference to Exhibit 10.9 to the
Company's Registration Statement on Form S-1, No. 33-28284,
effective on July 18, 1989.
4.3 Amendment to 1989 Incentive Stock Option, Nonqualified Stock
Option and Stock Purchase Plan adopted October 22, 1992,
incorporated by reference to Exhibit 10.28 to the Company's
Annual Report on Form 10-K filed September 16, 1992.
4.4 Amendment to 1989 Incentive Stock Option, Nonqualified Stock
Option and Stock Purchase Plan adopted December 13, 1993,
incorporated by reference to Exhibit 4.9 to the Company's
Registration Statement on Form S-8 filed January 28, 1994.
4.5 Amendment to 1989 Special Nonqualified Stock Option and Stock
Purchase Plan adopted December 13, 1993, incorporated by
reference to Exhibit 4.8 to the Company's Registration
Statement on Form S-8 filed January 28, 1994.
4.6 Amendment to Executive Stock Plan adopted December 13, 1993,
incorporated by reference to Exhibit 4.7 to the Company's
Registration Statement on Form S-8 filed January 28, 1994.
4.7 Amendment to 1989 Incentive Stock Option, Nonqualified Stock
Option and Stock Purchase Plan adopted December 15, 1994,
incorporated by reference to Exhibit 4.10 to the Company's
Registration Statement on Form S-8 filed February 8, 1995.
3
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4.8 Amendment to 1989 Special Nonqualified Stock Option and Stock
Purchase Plan adopted December 1994, incorporated by reference
to Exhibit 4.9 to the Company's Registration Statement on Form
S-8 filed February 8, 1995.
4.9 Amendment to Executive Stock Plan adopted September 9, 1994,
incorporated by reference to Exhibit 10.47 to the Company's
Annual Report on Form 10-KSB filed October 13, 1995.
4.10 Amendment to 1989 Incentive Stock Option, Nonqualified Stock
Option and Stock Purchase Plan adopted December 12, 1995,
incorporated by reference to Exhibit 4.11 to the Company's
Registration Statement on Form S-8 filed September 13, 1996.
4.11 Amendment to 1989 Special Nonqualified Stock Option and Stock
Purchase Plan adopted December 12, 1995, incorporated by
reference to Exhibit 4.10 to the Company's Registration
Statement on Form S-8 filed September 13, 1996.
4.12 1996 Stock Incentive Plan, adopted on October 25, 1996,
incorporated by reference to Exhibit 10.60 to the Company's
Quarterly Report on Form 10-QSB filed November 12, 1996.
5.1 Opinion of Stradling, Yocca, Carlson & Rauth, a Professional
Corporation, Counsel to the Registrant.
23.1 Consent of Stradling, Yocca, Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, independent auditors.
24.1 Power of Attorney (included on signature page to the
Registration Statement at page S-1).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 (the "Securities
Act");
(ii) To reflect in the prospectus any facts or events
which, individually or together, represent a fundamental
change in the information set forth in the registration
statement;
(iii) To include any additional or changed material
information on the plan of distribution.
4
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PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii)
shall not apply if the information required to be included in a post-effective
amendment by these paragraphs is incorporated by reference from periodic reports
filed by the small business issuer under the Exchange Act.
(2) That, for the purpose of determining liability under
the Securities Act, to treat each post-effective amendment as a new registration
statement of the securities offered, and the offering of such securities at that
time to be the initial bona fide offering.
(3) To file a post-effective amendment to remove from
registration any of the securities that remain unsold at the end of the
offering.
(e) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the small business issuer pursuant to the foregoing provisions, or otherwise,
the small business issuer has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the small business issuer of expenses incurred or paid by a director,
officer or controlling person of the small business issuer in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
small business issuer will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
5
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irvine, State of California, on the 31st day of
January, 1997.
CORTEX PHARMACEUTICALS, INC.
By: /s/ Vincent F. Simmon, Ph.D.
----------------------------
Vincent F. Simmon, Ph.D.
President and Chief Executive
Officer
(Principal Executive Officer)
POWER OF ATTORNEY
We, the undersigned officers and directors of Cortex Pharmaceuticals, Inc.,
do hereby constitute and appoint Vincent F. Simmon, Ph.D. and D. Scott Hagen, or
either of them, as our true and lawful attorneys and agents, to do any and all
acts and things in our name and behalf in our capacities as directors and
officers and to execute any and all instruments for us and in our names in the
capacities indicated below, which said attorneys and agents, or either of them,
may deem necessary or advisable to enable said corporation to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in connection with this Registration
Statement, including specifically, but without limitation, power and authority
to sign for us or any of us in our names and in the capacities indicated below,
any and all amendments (including post-effective amendments) hereto or any
related registration statement that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933, as amended; and we do hereby
ratify and confirm all that the said attorneys and agents, or either of them,
shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Vincent F. Simmon, Ph.D.
- ------------------------------ President, Chief Executive January 31, 1997
Vincent F. Simmon, Ph.D. Officer and Director
/s/ D. Scott Hagen
- ------------------------------ Vice President, Chief January 31, 1997
D. Scott Hagen Chief Financial Officer and
Secretary (Principal
Financial and
Accounting Officer)
S-1
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/s/ Harvey S. Sadow, Ph.D.
- ------------------------------ Chairman of the Board January 31, 1997
Harvey S. Sadow, Ph.D. and Director
/s/ Robert F. Allnutt
- ------------------------------ Director January 31, 1997
Robert F. Allnutt
/s/ Carl W. Cotman, Ph.D.
- ------------------------------ Director January 31, 1997
Carl W. Cotman, Ph.D.
/s/ Michael G. Grey
- ------------------------------ Director January 31, 1997
Michael G. Grey
/s/ Davis L. Temple, Jr., Ph.D.
- ------------------------------ Director January 31, 1997
Davis L. Temple, Jr., Ph.D.
S-2
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EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
4.1 1989 Incentive Stock Option, Nonqualified Stock Option and Stock
Purchase Plan, incorporated by reference to Exhibit 10.8 to the
Company's Registration Statement on Form S-1, No. 33-28284, effective
on July 18, 1989.
4.2 1989 Special Nonqualified Stock Option and Stock Purchase Plan,
incorporated by reference to Exhibit 10.9 to the Company's
Registration Statement on Form S-1, No. 33-28284, effective on July
18, 1989.
4.3 Amendment to 1989 Incentive Stock Option, Nonqualified Stock Option
and Stock Purchase Plan adopted October 22, 1992, incorporated by
reference to Exhibit 10.28 to the Company's Annual Report on Form 10-K
filed September 16, 1992.
4.4 Amendment to 1989 Incentive Stock Option, Nonqualified Stock Option
and Stock Purchase Plan adopted December 13, 1993, incorporated by
reference to Exhibit 4.9 to the Company's Registration Statement on
Form S-8 filed January 28, 1994.
4.5 Amendment to 1989 Special Nonqualified Stock Option and Stock Purchase
Plan adopted December 13, 1993, incorporated by reference to
Exhibit 4.8 to the Company's Registration Statement on Form S-8 filed
January 28, 1994.
4.6 Amendment to Executive Stock Plan adopted December 13, 1993,
incorporated by reference to Exhibit 4.7 to the Company's Registration
Statement on Form S-8 filed January 28, 1994.
4.7 Amendment to 1989 Incentive Stock Option, Nonqualified Stock Option
and Stock Purchase Plan adopted December 15, 1994, incorporated by
reference to Exhibit 4.10 to the Company's Registration Statement on
Form S-8 filed February 8, 1995.
4.8 Amendment to 1989 Special Nonqualified Stock Option and Stock Purchase
Plan adopted December 1994, incorporated by reference to Exhibit 4.9
to the Company's Registration Statement on Form S-8 filed February 8,
1995.
4.9 Amendment to Executive Stock Plan adopted September 9, 1994,
incorporated by reference to Exhibit 10.47 to the Company's Annual
Report on Form 10-KSB filed October 13, 1995.
4.10 Amendment to 1989 Incentive Stock Option, Nonqualified Stock Option
and Stock Purchase Plan adopted December 12, 1995, incorporated by
reference to Exhibit 4.11 to the Company's Registration Statement on
Form S-8 filed September 13, 1996.
4.11 Amendment to 1989 Special Nonqualified Stock Option and Stock Purchase
Plan adopted December 12, 1995, incorporated by reference to
Exhibit 4.10 to the Company's Registration Statement on Form S-8 filed
September 13, 1996.
S-3
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4.12 1996 Stock Incentive Plan, adopted on October 25, 1996, incorporated
by reference to Exhibit 10.60 to the Company's Quarterly Report on
Form 10-QSB filed November 12, 1996.
5.1 Opinion of Stradling, Yocca, Carlson & Rauth, a Professional
Corporation, Counsel to the Registrant.
23.1 Consent of Stradling, Yocca, Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, independent auditors.
24.1 Power of Attorney (included on signature page to the Registration
Statement at page S-1).
S-4
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[LETTERHEAD]
January 31, 1997
Cortex Pharmaceuticals, Inc.
15241 Barranca Parkway
Irvine, California 92618
RE: REGISTRATION STATEMENT ON FORM S-8 - 1996 STOCK INCENTIVE PLAN,
1989 INCENTIVE STOCK OPTION, NONQUALIFIED STOCK OPTION AND STOCK
PURCHASE PLAN, 1989 SPECIAL NONQUALIFIED STOCK OPTION AND STOCK
PURCHASE PLAN AND EXECUTIVE STOCK PLAN
Ladies and Gentlemen:
At your request, we have examined the form of Registration Statement on
Form S-8, (the "Registration Statement"), being filed by Cortex Pharmaceuticals,
Inc., a Delaware corporation (the "Company"), with the Securities and Exchange
Commission (the "Commission") on January 31, 1997, in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of
2,402,319 shares of the Company's Common Stock, $.001 par value per share (the
"Common Stock"), issuable under the Company's 1996 Stock Incentive Plan, 1989
Incentive Stock Option, Nonqualified Stock Option and Stock Purchase Plan, 1989
Special Nonqualified Stock Option and Stock Purchase Plan and Executive Stock
Plan (the "Plans").
We have examined the proceedings heretofore taken and are familiar with the
additional proceedings proposed to be taken by the Company in connection with
the authorization, issuance and sale of the securities referred to above.
Based on the foregoing, it is our opinion that the 2,402,319 shares of
Common Stock to be issued under the Plans and against full payment therefor in
accordance with the respective terms and conditions of the Plans will be legally
and validly issued, fully paid and nonassessable.
<PAGE>
Cortex Pharmaceuticals, Inc.
January 31, 1997
Page 2
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
STRADLING, YOCCA, CARLSON & RAUTH
<PAGE>
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1996 Stock Incentive Plan, the 1989 Incentive
Stock Option, Nonqualified Stock Option and Stock Purchase Plan, the 1989
Special Nonqualified Stock Option and Stock Purchase Plan and the Executive
Stock Plan of our report dated July 26, 1996, except Note 10, as to which the
date is October 15, 1996, with respect to the financial statements of Cortex
Pharmaceuticals, Inc. included in the Annual Report (Form 10-KSB) for the
year ended June 30, 1996.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
San Diego, California
January 29, 1997
