Securities Purchase Agreement, dated 1/7/2004


 EXHIBIT 10.77 
  
 SECURITIES PURCHASE AGREEMENT 
  

This Securities Purchase Agreement (this “Agreement”) is dated as of January 7, 2004, by and among Cortex Pharmaceuticals, Inc., a
Delaware corporation (the “Company”), and each of the purchasers identified on the signature pages hereto (each a “Purchaser” and collectively the “Purchasers”); and 
  
 WHEREAS, subject to the terms and conditions set forth in this Agreement and
pursuant to Section 4(2) of the Securities Act (as defined below), and Rule 506 promulgated thereunder, the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company in
the aggregate, shares of Common Stock and Warrants to purchase shares of Common Stock as set forth herein. The maximum aggregate of Subscription Amounts which the Company will accept is $20,000,000. 
  
 NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this
Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows: 
  
 ARTICLE I. 
 DEFINITIONS 
  
 1.1 Definitions. In addition to
the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings indicated in this Section 1.1: 
  
 “Action” shall have the meaning ascribed to such term in Section 3.1(j). 
  
 “Affiliate” means any Person that, directly
or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 144. With respect to a Purchaser, any investment fund or managed account that
is managed on a discretionary basis by the same investment manager as such Purchaser will be deemed to be an Affiliate of such Purchaser. 
  
 “Business Day” means any day except Saturday, Sunday and any day which shall be a federal legal holiday or a day on which
banking institutions in the State of New York are authorized or required by law or other governmental action to close. 
  
 “Closing” means the closing of the purchase and sale of the Shares and the Warrants pursuant to Section 2.1. 

 
 “Closing Date” means the date of the
Closing, which shall be the date hereof. 
  
 “Closing Price” means on any particular date (a) the last reported closing bid price per share of Common Stock on such date on the Trading Market (as reported by Bloomberg L.P. at 4:15 PM (New York time) as the last
reported closing bid price for regular session trading on such day), or (b) if there is no such price on such date, then the closing bid price on the Trading Market on the date nearest preceding such date (as reported by Bloomberg L.P. at 4:15 PM
(New York time) as the closing bid price for 







 
regular session trading on such day), or (c) if the Common Stock is not then listed or quoted on the Trading Market and if prices for the Common Stock are
then reported in the “pink sheets” published by the Pink Sheets LLC (formerly the National Quotation Bureau Incorporated) (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per
share of the Common Stock so reported, or (d) if the shares of Common Stock are not then publicly traded the fair market value of a share of Common Stock as determined by an appraiser selected in good faith by the Purchasers of a majority in
interest of the Shares and reasonably acceptable to the Company. 
  
 “Commission” means the Securities and Exchange Commission. 
  
 “Common Stock” means the common stock of the Company, $0.001 par value per share, and any securities into which such
common stock may hereafter be reclassified. 
  
 “Common Stock Equivalents” means any securities of the Company or its Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including without limitation, any debt, preferred stock, rights,
options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock. 
  
 “Company Counsel” means Stradling Yocca Carlson & Rauth, P.C. 
  
 “Disclosure Schedules” means the Disclosure
Schedules attached as Annex I hereto. 
  
 “Effective Date” means the date that the Registration Statement is first declared effective by the Commission. 
  
 “Exchange Act” means the Securities Exchange Act of 1934, as amended. 
  
 “Intellectual Property Rights” shall have
the meaning ascribed to such term in Section 3.1(o). 
  
 “Liens” means a lien, charge, security interest, encumbrance, right of first refusal or other restriction. 
  
 “Major Purchasers” means the original Purchasers on the Closing Date holding, on the date of determination, at least
50,000 Shares, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement and subsequent assignees holding, on the
date of determination, at least 250,000 Shares, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.

  
 “Material Adverse Effect”
shall have the meaning ascribed to such term in Section 3.1(b). 
  

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 “Material Permits” shall have the meaning ascribed to such term in
Section 3.1(m). 
  
 “Per Unit Purchase
Price” equals $2.75, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement and before the Closing.

  
 “Person” means an individual
or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind. 
  
 “Registration Statement” means a
registration statement meeting the requirements set forth in the Registration Rights Agreement and covering the resale by the Purchasers of the Shares and the Warrant Shares. 
  
 “Registration Rights Agreement” means the Registration Rights Agreement, dated as of the
date of this Agreement, among the Company and each Purchaser, in the form of Exhibit A hereto. 
  
 “Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule. 
  
 “SEC Reports” shall have the meaning ascribed to such term in Section 3.1(h). 
  
 “Securities” means the Shares, the Warrants
and the Warrant Shares. 
  
 “Securities
Act” means the Securities Act of 1933, as amended. 
  
 “Shares” means an aggregate of up to 7,272,727 shares of Common Stock, which are being issued and sold by the Company to the Purchasers at the Closing. 
  
 “Subscription Amount” means, as to each
Purchaser and the Closing, the amounts set forth below such Purchaser’s signature block on the signature page hereto, in United States dollars and in immediately available funds. 
  
 “Subsidiary” means any Person in which the Company, directly or indirectly, owns capital
stock or holds an equity or similar interest. 
  
 “Trading Day” means (i) a day on which the Common Stock is traded on a Trading Market, or (ii) if the Common Stock is not listed on a Trading Market, a day on which the Common Stock is traded on the over-the-counter market,
as reported by the OTC Bulletin Board, or (iii) if the Common Stock is not quoted on the OTC Bulletin Board, a day on which the Common Stock is quoted in the “pink sheets” published by the Pink Sheets LLC (formerly the National Quotation
Bureau Incorporated) (or any similar organization or agency succeeding to its functions of reporting prices); provided, that in the event that the Common Stock is not listed or quoted as set forth in (i), (ii) and (iii) hereof, then Trading Day
shall mean a Business Day. 
  

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 “Trading Market” means the following markets or exchanges on which the
Common Stock is listed or quoted for trading on the date in question: the American Stock Exchange, the New York Stock Exchange, the Nasdaq National Market or the Nasdaq SmallCap Market. 
  
 “Transaction Documents” means this Agreement, the Registration Rights Agreement, the
Warrant and any other documents or agreements executed in connection with the transactions contemplated hereunder. 
  
 “Unit” means a Share and a Warrant to purchase 0.65 shares of Common Stock. 
  
 “Warrants” means an aggregate of up to
4,727,273 Common Stock purchase warrants, in the form of Exhibit C, issuable to the Purchasers at Closing, which warrants shall be exercisable immediately and have an exercise price equal to $3.25 and a term of exercise of 5 years.

  
 “Warrant Shares” means the
shares of Common Stock issuable upon exercise of the Warrants. 
  
 ARTICLE II. 
 PURCHASE AND SALE 
  
 2.1 Closing. At the Closing, each Purchaser shall purchase, severally and not jointly, and the Company shall issue and sell, to each Purchaser such
number of Units set forth opposite such Purchaser’s name on Schedule A hereto at the Per Unit Purchase Price. Upon satisfaction of the conditions set forth in Section 2.2, the Closing shall occur at the offices of Feldman Weinstein LLP, or such
other location as the parties shall mutually agree. Notwithstanding the foregoing, in no event will the Closing occur unless and until the Company has received an aggregate Subscription Amount of at least $10,000,000 in accordance with Section
2.2(b)(ii). 
  
 2.2 Closing Conditions. 
  
 (a) At the Closing the Company shall deliver or cause to be
delivered to each Purchaser (except as otherwise provided below): 
  
 (i) this Agreement duly executed by the Company; 
  
 (ii) on or prior to January 16, 2004, one or more stock certificates, registered in the name of such Purchaser free and clear of all
restrictive and other legends (except as expressly provided in Section 4.1(b) hereof), evidencing such number of Shares equal to the number Units set forth opposite such Purchaser’s name on Schedule A hereto, registered in the
name of such Purchaser; 
  
 (iii) on or prior to
January 16, 2004, a Warrant, registered in the name of such Purchaser, pursuant to which such Purchaser shall have the right to acquire up to the number of shares of Common Stock equal to the number of Units set forth opposite such Purchaser’s
name on Schedule A hereto; 
  

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 (iv) the Registration Rights Agreement duly executed by the Company; and 
  
 (v) a legal opinion of Company Counsel, in the form of
Exhibit B attached hereto. 
  
 (b) At the
Closing each Purchaser shall deliver or cause to be delivered to the Company the following: 
  
 (i) this Agreement duly executed by such Purchaser; 
  
 (ii) such Purchaser’s Subscription Amount as to such Closing by wire transfer to the account of the
Company as provided to the Purchasers in writing prior to the Closing Date; and 
  
 (iii) the Registration Rights Agreement duly executed by such Purchaser. 
  
 (c) All representations and warranties of the other party contained herein shall remain true and correct as
of the Closing Date (except for representations and warranties that speak as of a specific date, which representations and warranties must be correct as of such date), and each party shall have performed and complied in all material respects with
the covenants and conditions required by this Agreement to be performed or complied with by the party at or prior to the Closing. 
  
 (d) As of the Closing Date, there shall have been no Material Adverse Effect with respect to the Company since the date hereof.

  
 (e) From the date hereof to the Closing Date,
trading in the Common Stock shall not have been suspended by the Commission (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and, at any time prior to the
Closing Date, trading in securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any
Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities. 
  
 ARTICLE III. 
 REPRESENTATIONS AND WARRANTIES

  
 3.1 Representations and Warranties of the Company.
Except as set forth under the corresponding section of the Disclosure Schedules delivered concurrently herewith, the Company hereby makes the following representations and warranties as of the date hereof and as of the Closing Date to each
Purchaser: 
  
 (a) Subsidiaries. The
Company has no direct or indirect Subsidiaries other than those listed on Schedule 3.1(a). The Company owns, directly or indirectly, all of the capital stock or comparable equity interests of each Subsidiary free and clear of any lien,
charge, security interest, encumbrance, right of first refusal or other restriction 

  

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(collectively, “Liens”), and all the issued and outstanding shares of capital stock or comparable equity interest of each Subsidiary are
validly issued and are fully paid, non-assessable and free of preemptive and similar rights. 
  
 (b) Organization and Qualification. Each of the Company and its Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization (as applicable), with the requisite corporate power and authority to own and use its properties and assets and to carry on its business as
currently conducted. Neither the Company nor any Subsidiary is in violation of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. Each of the Company and its
Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except
where the failure to be so qualified or in good standing, as the case may be, would not have or reasonably be expected to result in (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a
material adverse effect on the results of operations, assets, prospects, business or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, or (iii) adversely impair the Company’s ability to perform fully on a
timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”). 
  
 (c) Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the
transactions contemplated by each of the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of each of the Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further consent or action is required by the Company, its Board of Directors or its stockholders. Each Transaction
Document has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company, enforceable against the Company in accordance
with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, or moratorium or similar laws affecting the rights of creditors generally and the application of general principles of equity. 
  
 (d) No Conflicts. The execution, delivery and
performance of the Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby do not and will not (i) conflict with or violate any provision of the Company’s or any
Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or
other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or 

  

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other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as would not have or reasonably be expected to result in a Material Adverse Effect.

  
 (e) Filings, Consents and Approvals.
The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection
with the execution, delivery and performance by the Company of the Transaction Documents, other than (a) the filing with the Commission of the Registration Statement, the application(s) to each Trading Market for the listing of the Shares and
Warrant Shares for trading thereon in the time and manner required thereby, and applicable Blue Sky filings, (b) such as have already been obtained or such exemptive filings as are required to be made under applicable securities laws, and (c) such
other filings as may be required following the Closing Date under the Securities Act, the Exchange Act and corporate law. 
  
 (f) Issuance of the Securities. The Securities are duly authorized and, the Shares and Warrant Shares, when issued and paid for in
accordance with the Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens and shall not be subject to preemptive rights or similar rights of stockholders. The Company has reserved from its
duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to this Agreement and the Warrants. 
  
 (g) Capitalization. The number of shares and type of all authorized, issued and outstanding capital stock, options and other
securities of the Company (whether or not presently convertible into or exercisable or exchangeable for shares of capital stock of the Company) is as set forth in the SEC Reports. All outstanding shares of capital stock are duly authorized, validly
issued, fully paid and nonassessable and have been issued in compliance with all applicable securities laws. Except as disclosed in Schedule 3.1(g), there are no outstanding options, warrants, script rights to subscribe to, calls or commitments of
any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock, or contracts, commitments,
understandings or arrangements by which the Company is or may become bound to issue additional shares of Common Stock, or securities or rights convertible or exchangeable into shares of Common Stock. Except as set forth on Schedule 3.1(g), there are
no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders) and the issue and sale of the Company Securities will not obligate the Company to issue shares
of Common Stock or other securities to any Person (other than the Purchasers) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under such securities. To the knowledge of
the Company, except as specifically disclosed in Schedule 3.1(g), no Person or group of related Persons beneficially owns (as determined pursuant to Rule 13d-3 under the Exchange Act), or has the right to acquire, by agreement with or by obligation
binding upon the Company, beneficial ownership of in excess of 5% of the outstanding Common Stock, ignoring for such purposes any limitation on the number of shares of Common Stock that may be owned at any single time. 
  

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 (h) SEC Reports; Financial Statements. The Company has filed all reports required
to be filed by it under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) of the Exchange Act, for the two years preceding the date hereof (or such shorter period as the Company was required by law to file such
material) (the foregoing materials, including the exhibits thereto (together with any materials filed by the Company under the Exchange Act, whether or not required), being collectively referred to herein as the “SEC Reports” and,
together with this Agreement and the Disclosure Schedules to this Agreement, the “Disclosure Materials”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the
expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations of the Commission promulgated
thereunder, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the
Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved
(“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP or may be condensed or summary
statements, and fairly present in all material respects the financial position of the Company and its consolidated subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the
case of unaudited statements, to normal, immaterial, year-end audit adjustments. All material agreements to which the Company is a party or to which the property or assets of the Company are subject are included as part of or specifically identified
in the SEC Reports. 
  
 (i) Material
Changes. Since the date of the latest audited financial statements included within the SEC Reports, except as disclosed in the SEC Reports, (i) there has been no event, occurrence or development that has had or that could reasonably be expected
to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B)
liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or required to be disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting or the identity of its
auditors, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company
has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company stock option plans. The Company does not have pending before the Commission any request for confidential treatment of information.

  

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 (j) Litigation. Except as disclosed in the SEC Reports, there is no action, suit,
inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental
or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction
Documents or the Securities or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor, to the knowledge of the Company, any director or
officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is
not pending or contemplated, any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any
registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act. 
  
 (k) Labor Relations. No material labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the
employees of the Company which could reasonably be expected to result in a Material Adverse Effect. 
  
 (l) Compliance. Except as disclosed in the SEC Reports, neither the Company nor any Subsidiary (i) is in default under or in
violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it
is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has
been waived), (ii) is in violation of any order of any court, arbitrator or governmental body, or (iii) is or has been in violation of any statute, rule or regulation of any governmental authority, including without limitation all foreign, federal,
state and local laws applicable to its business, except in the case of clauses (i), (ii) and (iii) as would not have or reasonably be expected to result in a Material Adverse Effect. 
  
 (m) Regulatory Permits. The Company and its Subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except where the failure to possess such permits would not have or reasonably
be expected to result in a Material Adverse Effect (“Material Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any Material Permit.

  
 (n) Title to Assets. The Company and
its Subsidiaries have good and marketable title in fee simple to all real property owned by them and good and marketable title in all personal property owned by them, in each case free and clear of all Liens, except for Liens as do not materially
affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company 

  

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and its Subsidiaries and Liens for the payment of federal, state or other taxes, the payment of which is neither delinquent nor subject to penalties. To the
knowledge of the Company, any real property and facilities held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and its Subsidiaries are in material compliance.

  
 (o) Patents and Trademarks. The
Company and its Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications, service marks, trade names, copyrights, licenses and other similar rights that are necessary or material for use in
connection with their respective businesses as described in the SEC Reports and which the failure to so have could have or reasonably be expected to result in a Material Adverse Effect (collectively, the “Intellectual Property
Rights”). Neither the Company nor any Subsidiary has received a written notice that the Intellectual Property Rights used by the Company or any Subsidiary violates or infringes the rights of any Person. To the knowledge of the Company, all
such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. 
  
 (p) Insurance. The Company and its Subsidiaries are insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the businesses in which the Company and its Subsidiaries are engaged. Neither the Company nor any of its Subsidiaries has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business. 
  

(q) Transactions With Affiliates and Employees. Except as set forth in the SEC Reports, none of the officers or directors of the
Company and, to the knowledge of the Company, none of the employees of the Company is presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of
the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner. 
  
 (r) Internal Accounting Controls. The Company and its Subsidiaries maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with
GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any differences. The Company has established disclosure controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the Company and designed such disclosure
controls and procedures to ensure that material information relating to the Company, including its subsidiaries, is made known to the certifying officers by others 

  

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within those entities, particularly during the period in which the Company’s Form 10-K or 10-Q, as the case may be, is being prepared. The
Company’s certifying officers have evaluated the effectiveness of the Company’s controls and procedures as of a date within 90 days prior to the filing date of the Form 10-Q for the quarter ended September 30, 2003 (such date, the
“Evaluation Date”). The Company presented in its Form 10-Q for the quarter ended September 30, 2003 the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no significant changes in the Company’s internal controls (as such term is defined in Item 307(b) of Regulation S-K under the Exchange Act) or, to the knowledge
of the Company, in other factors that could significantly affect the Company’s internal controls. 
  
 (s) Certain Fees. Except for the fees described on Schedule 3.1(s), no brokerage or finder’s fees or commissions are or
will be payable by the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by this Agreement. The Purchasers shall have no obligation
with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by this Agreement. 
  
 (t) Private Placement. Assuming the accuracy of the
Purchasers representations and warranties set forth in Section 3.2, no registration under the Securities Act is required for the offer and sale of the Securities by the Company to the Purchasers as contemplated hereby. The issuance and sale of the
Securities hereunder does not contravene the rules and regulations of the Trading Market. Neither the Company nor any Person acting on the Company’s behalf has sold or offered to sell or solicited any offer to buy the Securities by means of any
form of general solicitation or advertising. 
  
 (u) Investment Company. The Company is not, and is not an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. 
  
 (v) Registration Rights. No Person has any right to
cause the Company to effect the registration under the Securities Act of any securities of the Company. 
  
 (w) Listing and Maintenance Requirements. The Company has not, in the two years preceding the date hereof, received notice from any
Trading Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market. The Company is, and has no reason to believe that it
will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. 
  
 (x) Application of Takeover Protections. The Company and its Board of Directors have taken all necessary action, if any, in order
to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s Certificate of Incorporation (or similar
charter documents) or the laws of its state of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the Company fulfilling their obligations or exercising their rights under the Transaction Documents,
including, without limitation, the Company’s issuance of the Securities and the Purchasers’ ownership of the Securities. 
  

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 (y) Disclosure. The Company confirms that neither the Company nor any other Person
acting on its behalf has provided any of the Purchasers or their agents or counsel with any information that constitutes or might constitute material, non-public information. The Company understands and confirms that the Purchasers will rely on the
foregoing representations and covenants in effecting transactions in securities of the Company. All disclosure provided to the Purchasers regarding the Company, its business and the transactions contemplated hereby, including the Disclosure
Schedules to this Agreement, furnished by or on behalf of the Company are true and correct and do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not misleading. No event or circumstance has occurred or information exists with respect to the Company, its Subsidiaries or their respective businesses, properties, prospects, operations or
condition (financial or otherwise), which, under applicable law, rule or regulation, requires public disclosure or announcement by the Company but which has not been so publicly announced or disclosed. 
  
 (z) No Integrated Offering. Neither the Company, nor
any of its affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the
Securities to be integrated with prior offerings by the Company for purposes of the Securities Act or any applicable shareholder approval provisions, including, without limitation, under the rules and regulations of any exchange or automated
quotation system on which any of the securities of the Company are listed or designated. 
  
 (aa) Solvency. Based on the financial condition of the Company as of the Closing Date, (i) the Company’s fair saleable value
of its assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known contingent liabilities) as they mature; (ii) the Company’s assets do not constitute
unreasonably small capital to carry on its business for the current fiscal year as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements of the business conducted by the
Company, and projected capital requirements and capital availability thereof, and including the anticipated proceeds of the sale of the Securities; and (iii) the current cash flow of the Company, together with the proceeds the Company would receive,
were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its debt when such amounts are required to be paid. The Company does not intend to incur
debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt). 
  
 (bb) Acknowledgment Regarding Purchasers’ Purchase of Company Securities. The Company acknowledges and agrees that each of the
Purchasers is acting solely in the capacity of an arm’s length purchaser with respect to this Agreement and the transactions contemplated hereby. The Company further acknowledges that no Purchaser is acting as 

  

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a financial advisor or fiduciary of the Company or any other Purchaser (or in any similar capacity) with respect to the Transaction Documents and the
transactions contemplated hereby and thereby and any advice given by any Purchaser or any of their respective representatives or agents in connection with the Transaction Document and the transactions contemplated hereby and thereby is merely
incidental to such Purchaser’s purchase of the Securities. The Company further represents to each Purchaser that the Company’s decision to enter into the Transaction Documents has been based solely on the independent evaluation of the
transactions contemplated hereby by the Company and its representatives. 
  
 (cc) S-3 Eligibility. The Company is eligible to register the resale of the Shares and Warrant Shares on Form S-3. 
  
 Each Purchaser acknowledges and agrees that the Company does not make or has not made any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in this Section 3.1. 
  
 3.2 Representations and Warranties of the Purchasers. Each Purchaser hereby, for itself and for no other Purchaser, represents and warrants as of the date hereof and as of the Closing Date to the Company as
follows: 
  
 (a) Organization; Authority.
Such Purchaser is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with full right, corporate or partnership power and authority to enter into and to consummate the transactions
contemplated by the Transaction Documents and otherwise to carry out its obligations thereunder. The execution, delivery and performance by such Purchaser of the transactions contemplated by this Agreement has been duly authorized by all necessary
corporate or similar action on the part of such Purchaser. Each Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute the valid
and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms. 
  
 (b) Investment Intent. Such Purchaser is acquiring the Securities as principal for its own account for investment purposes only and
not with a view to or for distributing or reselling such Securities or any part thereof, without prejudice, however, to such Purchaser’s right, subject to the provisions of this Agreement, at all times to sell or otherwise dispose of all or any
part of such Securities pursuant to an effective registration statement under the Securities Act or under an exemption from such registration and in compliance with applicable federal and state securities laws. Nothing contained herein shall be
deemed a representation or warranty by such Purchaser to hold Securities for any period of time. Such Purchaser is acquiring the Securities hereunder in the ordinary course of its business. Such Purchaser does not have any agreement or
understanding, directly or indirectly, with any Person to distribute any of the Securities. 
  
 (c) Purchaser Status. At the time such Purchaser was offered the Securities, it was, and at the date hereof it is an
“accredited investor” as defined in Rule 501(a) under the Securities Act. 
  

 13 







 (d) Experience of Such Purchaser. Such Purchaser, either alone or together with
its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities, and has so evaluated the merits and
risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment. 
  
 (e) Reliance on Exemptions. Such Purchaser
understands that the Securities are being offered and sold to it in reliance upon specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying upon the truth and accuracy
of, and the Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the
Purchaser to acquire the Securities. 
  
 (f)
Information. Such Purchaser and its advisors, if any, have been furnished with all materials relating to the business, finances and operations of the Company, and materials relating to the offer and sale of the Securities, that have been
requested by the Purchaser or its advisors, if any. The Purchaser and its advisors, if any, have been afforded the opportunity to ask questions of the Company. The Purchaser acknowledges and understands that its investment in the Securities involves
a significant degree of risk. 
  
 (g)
Governmental Review. Such Purchaser understands that no United States federal or state agency or any other government or governmental agency has passed upon or made any recommendation or endorsement of the Securities or an investment therein.

  
 (h) Residency. Such Purchaser is a
resident of (or, if an entity, has its principal place of business in) the jurisdiction set forth immediately below such Purchaser’s name on the signature pages hereto. 
  
 (i) Certain Fees. No brokerage or finder’s fees or commissions are or will be payable by such
Purchaser to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by this Agreement. The Company shall have no obligation with respect to any fees
or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by this Agreement. 
  
 The Company acknowledges and agrees that each Purchaser does not make or has
not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Section 3.2. 
  
 ARTICLE IV. 
 OTHER AGREEMENTS OF THE PARTIES

  
 4.1 Transfer Restrictions. 
  
 (a) The Securities may only be disposed of pursuant to an
effective registration statement under the Securities Act or pursuant to an available exemption from the 

  

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registration requirements of the Securities Act, and in compliance with any applicable state securities laws. In connection with any transfer of Securities
other than pursuant to an effective registration statement or pursuant to Rule 144(k), to the Company, to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section 4.1(b), the Company may require the transferor thereof to
provide to the Company an opinion of counsel selected by the transferor, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred
Securities under the Securities Act. The Company hereby consents to and agrees to register on the books of the Company and with its transfer agent, without any such legal opinion (unless otherwise required by its transfer agent), any transfer of
Securities by a Purchaser to an Affiliate of such Purchaser, provided that the transferee agrees to be bound by all of the applicable provisions of the Transaction Documents, including the representations of the Purchaser, and certifies to the
Company that it is an “accredited investor” as defined in Rule 501(a) under the Securities Act. 
  
 (b) The Purchasers agree to the imprinting, so long as is required by this Section 4.1(b), of a legend on any of the Securities in the
following form: 
  
 THESE SECURITIES HAVE NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. NOTWITHSTANDING THE
FOREGOING, THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THESE SECURITIES. 
  
 The Company acknowledges and agrees that a Purchaser may from time to time pledge or grant a security interest in some or all of the
Securities in connection with a bona fide margin agreement or other loan or financing agreement secured by the Securities and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Securities to the pledgees
or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be
required of such pledge or transfer. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Securities may reasonably request in connection with a pledge or
transfer of the Securities, including the preparation and filing of any required prospectus supplement under Rule 424(b)(3) under the Securities Act or other applicable provision of the Securities Act to appropriately amend the list of selling
stockholders thereunder. 
  

 15 







 (c) Certificates evidencing the Shares and Warrant Shares shall not contain any legend
(including the legend set forth in Section 4.1(b)), (i) while a registration statement (including the Registration Statement) covering the resale of such Shares or Warrant Shares is effective under the Securities Act, or (ii) following any sale of
such Shares or Warrant Shares pursuant to Rule 144, or (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144(k), or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial
interpretations and pronouncements issued by the Staff of the Commission). The Company shall cause its counsel to issue a legal opinion to the Company’s transfer agent promptly after the Effective Date if required by the Company’s transfer
agent to effect the removal of the legend hereunder. If all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Warrant Shares, such Warrant Shares shall be issued free of
all legends. The Company agrees that following the Effective Date or at such time as such legend is no longer required under this Section 4.1(c), it will, no later than five Trading Days following the delivery by a Purchaser to the Company or the
Company’s transfer agent of a certificate representing Shares or Warrant Shares, as the case may be, issued with a restrictive legend, deliver or cause to be delivered to such Purchaser a certificate representing such Securities that is free
from all restrictive and other legends. The Company may not make any notation on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in this Section. 
  
 (d) In addition to such Purchaser’s other available
remedies, the Company shall pay to a Purchaser, in cash, as liquidated damages and not as a penalty, for each $1,000 of Shares or Warrant Shares (based on the Closing Price of the Common Stock on the date such Securities are submitted to the
Company’s transfer agent) subject to Section 4.1(c), $10 per Trading Day (increasing to $20 per Trading Day ten (10) Trading Days after such damages have begun to accrue) for each Trading Day after such fifth Trading Day until such certificate
is delivered. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have
the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief. 
  

(e) Each Purchaser severally and not jointly agrees that the removal of the restrictive legend from certificates representing
Securities as set forth in this Section 4.1 is predicated upon the Company’s reliance that the Purchaser will sell any Securities pursuant to either the registration requirements of the Securities Act, including any applicable prospectus
delivery requirements, or an exemption therefrom. 
  
 4.2
Furnishing of Information. As long as any Purchaser owns Securities, the Company covenants to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company
after the date hereof pursuant to the Exchange Act. Upon the request of any such holder of Securities, the Company shall deliver to such holder a written certification of a duly authorized officer as to whether it has complied with the preceding
sentence. As long as any Purchaser owns Securities, if the Company is not required to file reports pursuant to the Exchange Act, it will prepare and furnish to the Purchasers and make publicly available in accordance with Rule 144(c) such
information as is 

  

 16 







 
required for the Purchasers to sell the Securities under Rule 144. The Company further covenants that it will take such further action as any holder of
Securities may reasonably request, all to the extent required from time to time to enable such Person to sell such Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144. 
  
 4.3 Integration. The Company shall not, and shall use commercially
reasonable efforts to ensure that no Affiliate thereof shall, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or
sale of the Securities in a manner that would require the registration under the Securities Act of the sale of the Securities to the Purchasers or that would be integrated with the offer or sale of the Securities for purposes of the rules and
regulations of any Trading Market. 
  
 4.4 Subsequent
Placements 
  
 (a) From the date hereof until
90 Trading Days after the Effective Date, the Company will not, directly or indirectly, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition of) any of
its equity or equity equivalent securities, including without limitation any debt, preferred stock or other instrument or security that is, at any time during its life and under any circumstances, convertible into or exchangeable or exercisable for
Common Stock. 
  
 (b) From the 90th Trading Day after the Effective Date until 12 months following the Effective Date, the Company shall not effect a financing of
its Common Stock or Common Stock Equivalents (a “Subsequent Financing”) unless (i) the Company delivers to each of the Purchasers hereunder a written notice at least 5 Trading Days prior to the closing of such Subsequent Financing
(the “Subsequent Financing Notice”) of its intention to effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds
intended to be raised thereunder, the Person with whom such Subsequent Financing is proposed to be effected, and attached to which shall be a term sheet or similar document relating thereto and (ii) such Purchaser shall not have notified the Company
by 6:30 p.m. (New York City time) on the fifth (5th) Trading Day after its receipt of the Subsequent Financing
Notice of its willingness to provide (or to cause its designee to provide), subject to completion of mutually acceptable documentation, up to an amount equal to such Purchaser’s Subscription Amount at the Closing on the same terms set forth in
the Subsequent Financing Notice. If one or more Purchasers shall fail to so notify the Company of their willingness to participate in the Subsequent Financing, the Company must provide such Purchasers with a second Subsequent Financing Notice, and
the Purchasers will again have the right to participate, subject to completion of mutually acceptable documentation, up to an amount equal to such Purchaser’s Subscription Amount at the Closing, if the Subsequent Financing subject to the
initial Subsequent Financing Notice is not consummated for any reason on the terms set forth in such Subsequent Financing Notice within 60 Trading Days after the date of the initial Subsequent Financing Notice with the Person identified in the
Subsequent Financing Notice. 
  

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 (c) Notwithstanding anything to the contrary herein, this Section 4.4 shall not apply to
the following: (i) the granting of options or restricted stock to employees, officers, directors and key consultants of the Company pursuant to any stock option plan or agreement duly adopted by the Company’s board of directors or a committee
of directors established for such purpose, or (ii) the exercise of any security issued by the Company in connection with the offer and sale of the Company’s securities pursuant to this Agreement, or (iii) the exercise of or conversion of any
convertible securities, options or warrants issued and outstanding on the date hereof, provided such securities have not been amended since the date hereof, or (iv) the issuance of securities in connection with a joint venture or development
agreement or strategic partnership or similar agreement approved by the Company’s board of directors, a primary purpose of which is not to raise equity capital, or (v) the issuance of securities in connection with an equipment lease financing
transaction or a bank financing transaction approved by the Company’s board of directors, a primary purpose of which is not to raise equity capital; (vi) the issuance of warrants to IRG or Rodman and Renshaw, Inc., or Shoreline Pacific LLC, or
their respective assigns, in connection with the engagement letters dated February 13, 2003, July 8, 2003, and May 9, 2002, respectively, as amended to date; or (vii) the exercise of or conversion of any convertible securities, options or warrants
issued and outstanding pursuant to subclauses (i), (iv), (v), and (vi) above. 
  
 4.5 Securities Laws Disclosure; Publicity. The Company shall, by 8:30 a.m., Eastern Daylight Time on January 9, issue a press release reasonably acceptable to Rodman and Renshaw, Inc. disclosing all material
terms of the transactions contemplated by the Transaction Documents, to the extent permitted by applicable law. The Company and each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions
contemplated hereby, and neither the Company nor any Purchaser shall issue any such press release or otherwise make any such public statement without the prior consent of the Company, with respect to any press release of any Purchaser, or without
the prior consent of each Purchaser, with respect to any press release of the Company, which consent shall not unreasonably be withheld, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the
other party with prior notice of such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing with the Commission or any
regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (i) as required by federal securities law in connection with the Form 8-K to be filed following the Closing Date and the registration statement
contemplated by the Registration Rights Agreement and (ii) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers with prior notice of such disclosure permitted under
subclause (i) or (ii). 
  
 4.6 Shareholders Rights Plan. No
claim will be made or enforced by the Company or any other Person that any Purchaser is an “Acquiring Person” under any shareholders rights plan or similar plan or arrangement in effect or hereafter adopted by the Company, or that any
Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents or under any other agreement between the Company and the Purchasers. 
  

 18 







 4.7 Non-Public Information. Except as otherwise provided in Section 4.4(b) which information each
Purchaser agrees to keep confidential (unless, as to Purchaser, such Purchaser declines to accept such information when offered by the Company), the Company covenants and agrees that neither it nor any other Person acting on its behalf will provide
any Purchaser or its agents or counsel with any information that the Company believes constitutes material non-public information, unless prior thereto such Purchaser shall have executed a written agreement regarding the confidentiality and use of
such information. The Company understands and confirms that each Purchaser shall be relying on the foregoing representations in effecting transactions in securities of the Company. 
  
 4.8 Use of Proceeds. Except as set forth on Schedule 4.8 attached hereto, the Company shall use the net proceeds from
the sale of the Securities hereunder for working capital purposes and not for the satisfaction of any portion of the Company’s debt (other than payment of trade payables in the ordinary course of the Company’s business and prior
practices), to redeem any Company equity or equity-equivalent securities or to settle any outstanding litigation. 
  
 4.9 Indemnification of Purchasers. The Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners,
employees and agents (each, a “Purchaser Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and
reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to: (a) any misrepresentation, breach or inaccuracy, or any allegation by a third party that, if true, would
constitute a breach or inaccuracy, of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents; or (b) any cause of action, suit or claim brought or made against such
Purchaser Party and arising solely out of or solely resulting from the execution, delivery, performance or enforcement of this Agreement or any of the other Transaction Documents and without causation by any other activity, obligation, condition or
liability pertaining to such Purchaser. The Company will reimburse such Purchaser for its reasonable legal and other expenses (including the cost of any investigation, preparation and travel in connection therewith) incurred in connection therewith,
as such expenses are incurred. 
  
 4.10 Reservation of Common
Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to
issue Shares pursuant to this Agreement and Warrant Shares pursuant to the Warrants. 
  
 4.11 Listing of Common Stock. The Company hereby agrees to use commercially reasonable efforts to maintain the listing of the Common Stock on the Trading Market, and, unless completed prior to the Closing, to
list the applicable Shares and Warrant Shares on the Trading Market as soon as reasonably practicable following the Closing (but not later than the earlier of the Effective Date and the first anniversary of the Closing Date). The Company further
agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will include in such application the Shares and Warrant Shares, and will take such other action as is necessary or desirable in the opinion of the
Purchasers to cause the Shares and Warrant Shares to be listed on such other Trading Market as promptly as possible. The Company will 

  

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take all action reasonably necessary to continue the listing and trading of its Common Stock on a Trading Market and will comply in all respects with the
Company’s reporting, filing and other obligations under the bylaws or rules of the Trading Market. 
  
 ARTICLE V. 
 MISCELLANEOUS 
  
 5.1 Termination. This Agreement may be terminated by the Company or, as to any Purchaser and the Company, any
Purchaser, by written notice to the other parties, if the Closing has not been consummated by the third Business Day following the date of this Agreement; provided that no such termination will affect the right of any party to sue for any breach by
the other party (or parties). 
  
 5.2 Fees and Expenses.
Each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this
Agreement. The Company shall pay all stamp and other taxes and duties levied in connection with the sale of the Securities. 
  
 5.3 Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules. 

 
 5.4 Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number
specified on the signature pages attached hereto prior to 6:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number on
the signature pages attached hereto on a day that is not a Trading Day or later than 6:30 p.m. (New York City time) on any Trading Day, (c) the Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier
service, or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto. 
  
 5.5 Amendments; Waivers. No provision of this Agreement may be waived
or amended except in a written instrument signed, in the case of an amendment, by the Company and each Major Purchaser or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought. No waiver of any default with
respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right. Any waiver effected in accordance with this Section 5.5 shall be binding upon each holder of any securities purchased under this
Agreement at the time outstanding (including securities into which such securities are convertible or exercisable), each future holder of all such securities, and the Company. 
  

 20 







 5.6 Construction. The headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions hereof. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will
be applied against any party. 
  
 5.7 Successors and
Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent
of each Major Purchaser; provided, however, that no consent shall be required in connection with a merger, consolidation or sale of substantially all of the Company’s assets. Any Purchaser may assign any or all of its rights under this
Agreement to any Person in connection with the transfer of the Securities, provided such transferee agrees in writing to be bound, with respect to the transferred Securities, by the provisions hereof that apply to the “Purchasers”.

  
 5.8 No Third-Party Beneficiaries. This Agreement is
intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in Section 4.9.

  
 5.9 Governing Law. All questions concerning the
construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law
thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its
respective affiliates, directors, officers, shareholders, employees or agents) shall be commenced exclusively in the state and federal courts sitting in The City of New York, Borough of Manhattan. Each party hereto hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in The City of New York, New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed
herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any
such court, that such suit, action or proceeding is improper. Each party hereto hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by delivering a copy thereof via
overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Each party hereto (including its affiliates, agents, officers, directors and employees) hereby irrevocably waives, to the fullest extent permitted
by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. If either party shall commence an action or proceeding to enforce any provisions of a
Transaction Document, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or
proceeding. 
  

 21 







 5.10 Survival. The representations, warranties, agreements and covenants contained herein shall
survive the Closing and delivery and/or exercise of the Securities, as applicable. 
  
 5.11 Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been
signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile signature page were an original thereof. 
  
 5.12 Severability. If any provision of this Agreement is held to be invalid or unenforceable in any respect, the
validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute
therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement. 
  
 5.13 Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) the Transaction Documents, whenever any Purchaser exercises a right,
election, demand or option under a Transaction Document and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind or withdraw, in its sole discretion from time to time upon
written notice to the Company, any relevant notice, demand or election in whole or in part without prejudice to its future actions and rights. 
  
 5.14 Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company
shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof, or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of
such loss, theft or destruction and customary and reasonable indemnity or security, if requested. The applicants for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs associated with the
issuance of such replacement Securities. 
  
 5.15 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties agree
that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations described in the foregoing sentence and hereby agrees to waive in any action for specific performance of any such obligation the
defense that a remedy at law would be adequate. 
  
 5.16
Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of
such enforcement or exercise or any part thereof are subsequently invalidated, declared to be 

  

 22 







 
fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee,
receiver or any other person under any law (including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally
intended to be satisfied shall, to the extent permissible under applicable law, be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred. 
  
 5.17 Independent Nature of Purchasers’ Obligations and Rights.
The obligations of each Purchaser under any Transaction Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance of the obligations of any other Purchaser
under any Transaction Document. The decision of each Purchaser to purchase Securities pursuant to this Agreement has been made by such Purchaser independently of any other Purchaser and independently of any information, materials, statements or
opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company or of the Subsidiary which may have been made or given by any other Purchaser or
by any agent or employee of any other Purchaser, and no Purchaser or any of its agents or employees shall have any liability to any other Purchaser (or any other person) relating to or arising from any such information, materials, statements or
opinions. Nothing contained herein or in any Transaction Document, and no action taken by any Purchaser pursuant thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Document. Each Purchaser acknowledges that no other Purchaser has acted as
agent for such Purchaser in connection with making its investment hereunder and that no other Purchaser will be acting as agent of such Purchaser in connection with monitoring its investment hereunder. Each Purchaser shall be entitled to
independently protect and enforce its rights, including without limitation the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party
in any proceeding for such purpose. The Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because it was required or requested to do so by the Purchasers.

  
 5.18 Continuation of Waiver. Each Purchaser which
executed a waiver of certain of its rights under that Securities Purchase Agreement dated as of August 21, 2003, by its execution of this Agreement, agrees that such waiver shall extend through the Closing Date and shall not expire on January 31,
2004. 
  
 (Signature Page Follows) 
  

 23 







 IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed
by their respective authorized signatories as of the date first indicated above. 
  

	CORTEX PHARMACEUTICALS INC.	 	 	 	 Address for Notice:

					
	By:	 	 /s/ Roger G. Stoll

	 	 	 	 	 	 
	 	 	 Name:
	 	 	 	 Tel:
	 	 
	 	 	 Title:
	 	 	 	 Fax:
	 	 
	 	 	 	 	 	 	 Attn:
	 	 

  
 With
copy to (which shall not constitute notice): 
  
 Stradling Yocca Carlson & Rauth 
 660 Newport Center Drive, Suite 1600 
 Newport Beach, California 92660 
 Attn: Lawrence B. Cohn 
 Tel: (949) 725-4000 
 Fax: (949) 725-4100 
  
 [SIGNATURE PAGE CONTINUES] 
  

 24 







 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Accipiter Life Sciences Fund, L.P. 
 Signature of Authorized Signatory of Investing entity: /s/ Gabe Hoffman 
 Name of Authorized Signatory: Gabe Hoffman

 Title of Authorized Signatory: Principal 
  
 Address for Notice of Investing Entity: 
  
 717 Fifth Avenue, 11th Floor

 New York, NY 10022 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  

NSCC, NY Window 
 55 Water Street 
 NY, NY Concourse Level 
 S Building 
 Account: Morgan Stanley, NY 
  
 Subscription Amount: $586,415.50 
 Shares: 213,242 
 Warrant Shares: 138,607 
 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Accipiter Life Sciences Fund (QP), L.P. 
 Signature of Authorized Signatory of Investing entity: /s/ Gabe Hoffman 
 Name of Authorized Signatory: Gabe Hoffman

 Title of Authorized Signatory: Principal 
  
 Address for Notice of Investing Entity: 
  
 717 Fifth Avenue, 11th Floor

 New York, NY 10022 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  

NSCC, NY Window 
 55 Water Street 
 NY, NY Concourse Level 
 S Building 
 Account: Morgan Stanley, NY 
  
 Subscription Amount: $358,850.25 
 Shares: 130,491 
 Warrant Shares: 84,819 
 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Accipiter Life Sciences Fund, Ltd. 
 Signature of Authorized Signatory of Investing entity: /s/ Gabe Hoffman 
 Name of Authorized Signatory: Gabe Hoffman

 Title of Authorized Signatory: Principal 
  
 Address for Notice of Investing Entity: 
  
 717 Fifth Avenue, 11th Floor

 New York, NY 10022 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  

NSCC, NY Window 
 55 Water Street 
 NY, NY Concourse Level 
 S Building 
 Account: Morgan Stanley, NY 
  
 Subscription Amount: $554,735.50 
 Shares: 201,722 
 Warrant Shares: 131,119 
 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 ALEXANDRA GLOBAL MASTER FUND LTD. 
  
 By: ALEXANDRA INVESTMENT MANAGEMENT, LLC 
  

	 	 	By:	 	 /s/ Mikhail Filimonov

	 	 	 	

	 	 	 Name:
 Title:
	 	 Mikhail Filimonov
 Chairman and Chief Executive Officer


  
 Address for Notice of Investing
Entity: 
  
 c/o Alexandra Investment Management, LLC 
 767 Third Avenue, 39th Floor

 New York, NY 10017 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  

Subscription Amount: $275,000.00 
 Shares: 100,000 
 Warrant Shares: 65,000 
 EIN Number: [you may provide this under separate
cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Basso Multi-Strategy Holding Fund Ltd. 
 Signature of Authorized Signatory of Investing entity: /s/ Howard I. Fischer 
 Name of Authorized Signatory: Howard I. Fischer 
 Title of Authorized Signatory: Authorized Signatory 
  
 Address for Notice of Investing Entity: 
  
 c/o Basso Capital Management 
 1281 East Main St. 
 Stamford, CT 06902 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  
 Same 
  
 Subscription Amount: $137,500 
 Shares: 50,000

 Warrant Shares: 32,500 
 EIN Number: [you may provide this
under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Basso Equity Opportunity Holding Fund Ltd. 
 Signature of Authorized Signatory of Investing entity: /s/ Howard I. Fischer 
 Name of Authorized Signatory: Howard I. Fischer 
 Title of Authorized Signatory: Authorized Signatory 
  
 Address for Notice of Investing Entity: 
  
 c/o Basso Capital Management 
 1281 East Main St. 
 Stamford, CT 06902 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  
 Same 
  
 Subscription Amount: $137,500 
 Shares: 50,000

 Warrant Shares: 32,500 
 EIN Number: [you may provide this
under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Michael R. Hamblett 
 Signature of Authorized Signatory of Investing entity: /s/ Michael R. Hamblett 
 Name of Authorized Signatory:
                                        
                     
 Title of Authorized Signatory:
                                        
                     
  
 Address for Notice of Investing Entity: 
  
 34 Waterbury Ave. 
 Madison, CT 06443 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 

 
 Subscription Amount: $100,001.00 
 Shares: 36,364 
 Warrant Shares: 23,637 
 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: SRG Capital, LLC 
 Signature of Authorized Signatory of Investing entity: /s/ Andrew J. Turchin 
 Name of Authorized Signatory: Andrew J. Turchin 
 Title of Authorized Signatory: Chief Financial Officer 
  
 Address for Notice of Investing Entity: 
  
 120 Broadway, 40th Fl. 
 NY, NY 10271 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 

 
 Same 
  
 Subscription Amount: $150,001.50 
 Shares:
54,546 
 Warrant Shares: 35,455 
 EIN Number: [you may provide
this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE]







 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Benjamin Partners Savings Plan F/B/O Jeffrey Benison 
 Signature of Authorized Signatory of Investing entity: /s/ Jeffrey Benison 
 Name of Authorized Signatory: Jeffrey Benison 
 Title of Authorized Signatory: Trustee 
  
 Address for Notice of Investing Entity: 
  
 589 Broadway 
 New York, NY 10012 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 

 
 589 Broadway 
 New York, NY 10012 
  
 Subscription Amount:
$77,000 
 Shares: 28,000 
 Warrant Shares: 18,200 
 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Bristol Investment Fund, Ltd. 
 Signature of Authorized Signatory of Investing entity: /s/ Paul Kessler 
 Name of Authorized Signatory: Paul Kessler 
 Title of Authorized Signatory: Director 
  
 Address for Notice of Investing Entity: 
  
 Bristol Capital Advisors, LLC 
 6363 Sunset Boulevard, Fifth Floor 

Hollywood, California 90028 
 Attention: Amy Wang, Esq. 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 

 
 Subscription Amount: $350,000 
 Shares: 127,273 
 Warrant Shares: 82,728 
 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Steve Kovacs Investments Ltd. 
 Signature of Authorized Signatory of Investing entity: /s/ Hartley Zwingerman 
 Name of Authorized Signatory: Hartley Zwingerman 
 Title of Authorized Signatory: A.S.O. 
  
 Address for Notice of Investing Entity: 
  
 c/o Canaccord Capital Corp. 
 320 Bay Street 
 Suite 1300 
 Toronto, Ontario M5H4A6 
  
 Address for Delivery of Securities for
Investing Entity (if not same as above): 
  
 Subscription Amount: $137,500

 Shares: 50,000 
 Warrant Shares: 32,500 
 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Stonestreet L.P. 
 Signature of Authorized Signatory of Investing entity: /s/ illegible 
 Name of Authorized Signatory: illegible 
 Title of Authorized Signatory: President 
  
 Address for Notice of Investing Entity: 
  
 260 Town Centre Blvd. 
 Suite 201 
 Markham, Ontario L3R8H8 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  
 c/o Canaccord Capital Corp. 
 320 Bay Street 
 Suite 1300 
 Toronto, Ontario M5H4A6 
  
 Subscription Amount: $275,000 
 Shares: 100,000 
 Warrant Shares: 65,000 
 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: CC Life Science, Ltd. 
 Signature of Authorized Signatory of Investing entity: /s/ Thomas A. Frei 
 Name of Authorized Signatory: Thomas A. Frei 
 Title of Authorized Signatory: Authorized Individual 
  
 Address for Notice of Investing Entity: 
  
 CC Life Science, Ltd. 
 c/o Castle Creek Lifescience Partners, LLC 
 1111 West Jackson Blvd., Suite 2020 
 Chicago, IL 60604 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  
 Same 
  
 Subscription Amount: $800,000 
 Shares: 290,909 
 Warrant Shares: 189,091 
 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Castle Creek Healthcare Partners LLC 
 Signature of Authorized Signatory of Investing entity: /s/ Thomas A. Frei 
 Name of Authorized Signatory: Thomas A. Frei 
 Title of Authorized Signatory: Managing Director 
  
 Address for Notice of Investing Entity: 
  
 1111 W. Jackson Blvd. 
 20th Floor 
 Chicago, IL 60604 
  
 Address for Delivery of
Securities for Investing Entity (if not same as above): 
  
 Subscription Amount:
$500,000 
 Shares: 181,818 
 Warrant Shares: 118,182 

EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: CRANSHIRE CAPITAL L.P. 
 Signature of Authorized Signatory of Investing entity: /s/ Keith Goodman 
 Name of Authorized Signatory: KEITH GOODMAN 

	Title of Authorized Signatory:	CFO-DOWNSVIEW CAPITAL, INC. 


	  	THE GENERAL PARTNER 

  
 Address for Notice of Investing Entity: 
  
 CRANSHIRE CAPITAL L.P. 
 666 DUNDEE ROAD, STE 1901 
 NORTHBROOK, IL 60062 
  
 Address for Delivery of Securities for Investing
Entity (if not same as above): 
  
 Subscription Amount: $999,999.00 

Shares: 363,636 
 Warrant Shares: 236,363 
 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Crescent International, Ltd. 
 Signature of Authorized Signatory of Investing entity: /s/ illegible 
 Name of Authorized Signatory: Mel Craw 
 Title of Authorized Signatory: Authorized Signature 
  
 Address for Notice of Investing Entity: 
  
 Crescent International Ltd. 
 c/o Greenlight (Switzerland) S.A. 
 84, av. Louis-Casai 
 P.O. Box 161 
 CH-1216 Cointrin / Geneva 
 Switzerland 
  
 Address for Delivery of Securities for Investing Entity
(if not same as above): 
  
 Subscription Amount: $330,000 
 Shares: 120,000 
 Warrant Shares: 78,000 
 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: DKR Saturn Holding Fund Ltd. 
 Signature of Authorized Signatory of Investing entity: /s/ Barbara Burger 
 Name of Authorized Signatory: Barbara Burger 
 Title of Authorized Signatory: Authorized Signatory and Alternate Director 
  
 Address for Notice of Investing Entity: 
  
 Mailing Address is c/o 
 DKR Capital Partners, L.P., 1281 East Main Street, Stamford, CT 06902 USA 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  

To be delivered to Morgan Stanley – instructions to be given separately, please call Renee Hogan at Morgan Stanley at (212) 762-5192. Please also call Joe
Sowin of DKR Saturn Management L.P. at (212) 808-2420. 
  
 Subscription
Amount: USD 91,575 
 Shares: 33,300 
 Warrant Shares: 21,645

 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: DKR Saturn Event Driven Holding Fund Ltd. 
 Signature of Authorized Signatory of Investing entity: /s/ Barbara Burger 
 Name of Authorized Signatory: Barbara Burger 
 Title of Authorized Signatory: Authorized Signatory and Alternate Director 
  
 Address for Notice of Investing Entity: 
  
 Mailing Address is c/o 
 DKR Capital Partners, L.P., 1281 East Main Street, Stamford, CT 06902 USA 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  

To be delivered to Morgan Stanley – instructions to be given separately, please call Renee Hogan at Morgan Stanley at (212) 762-5192. Please also call Joe
Sowin of DKR Saturn Management L.P. at (212) 808-2420. 
  
 Subscription
Amount: USD 458,425 
 Shares: 166,700 
 Warrant Shares: 108,355

 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Elliott Associates, L.P. 
 By: Elliott Capital Advisors, L.P., as general partner 
 By: Braxton Associates, Inc., as general partner 
  

	By:	 	 /s/ Elliott Greenberg

	 	

	 	 	 Elliott Greenberg, Vice President


  
 Address for Notice of Investing
Entity: 712 Fifth Ave., 35th floor, New York, NY 10019 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  
 Subscription Amount: $110,000 
 Shares: 40,000 
 Warrant Shares: 26,000 
 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Elliott International, L.P. 

	 By:
	 	 Elliott International Capital Advisors Inc.,
 as Attorney-in-Fact

		
	By:	 	 /s/ Elliott Greenberg

	 	

	 	 	 Elliott Greenberg, Vice President


  
 Address for Notice of Investing
Entity: c/o Elliott Management Corporation, 712 Fifth Ave., 25th floor, New York, NY 10019 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 

 
 Subscription Amount: $165,000 
 Shares: 60,000 
 Warrant Shares: 39,000 
 EIN Number: Non-US Entity 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Capital Ventures International 
 Signature of Authorized Signatory of Investing entity: /s/ Martin Kobinger 
 Name of Authorized Signatory: Martin Kobinger 
 Title of Authorized Signatory: Investment Manager 
  
 Address for Notice of Investing Entity: 
  
 Heights Capital Management, Inc. 
 425 California St., Suite 1100 
 San Francisco, CA 94133 
 Attn: Martin Kobinger 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  
 Capital Ventures International 
 401 City Avenue, Suite 220 
 Bala Cynwyd, PA 19004 
 Attn: Mike Mollen 
  
 Subscription Amount: $1,000,000 
 Shares: 363,636 
 Warrant Shares: 236,364 
 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Signature of Authorized Signatory of Investing Facility: /s/ Jeffrey Thorp 

Name of Investing Facility: LANGLEY PARTNERS, L.P. 
 Name of Authorized
Signatory: LANGLEY CAPITAL, LLC ITS GENERAL PARTNER 
 Title of Authorized Signatory: MANAGING MEMBER 
  
 Address for Notice: 
  
 535 Madison Avenue, 7th Floor 
 New York, NY 10022 
 Facsimile: (212) 208-2971 
  
 With a copy to: 
  
 Raphael M. Russo, Esq. 
 Paul, Weiss, Rifkind Wharton & Garrison LLP 
 1285 Avenue of the Americas 
 New York, NY 10019 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  
 Subscription Amount: $600,000 
 Shares: 218,182 
 Warrant Shares: 141,818 
 EIN Number: [you may provide this under separate
cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 OMICRON MASTER TRUST 
 By: Omicron Capital L.P., as advisor 
 By: Omicron Capital Inc., its general partner 
  

	By:	 	 /s/ Olivier Morali

	 	

	 	 	Name:	 	Olivier Morali
	 	 	Title:	 	President

  
 c/o Omicron Capital L.P. 

810 Seventh Avenue, 39th FL

 New York, NY 10019 
 Fax: (212) 803-5269 
 Attn: Brian Daly 
  
 Subscription Amount: $550,000.00 
 Shares: 200,000 
 Warrant Shares: 
 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Perceptive Life Sciences Master Fund, Ltd. 
 Name of Authorized Signatory: Perceptive Advisors, LLC, Investment Manager  
  

	Signature of Authorized Signatory of Investing entity:	  	 /s/ Andrew C. Sankin


	 Title of Authorized Signatory:
	  	 Andrew C. Sankin
 Chief
Operating Officer


  
 Address for Notice of Investing
Entity: 
  
 Perceptive Life Sciences Master Fund, Ltd. 
 c/o Perceptive Advisors, LLC 
 5437 Connecticut Ave., NW, Suite 100

 Washington, DC 20015 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  

Perceptive Life Sciences Master Fund, Ltd. 
 c/o First New York
Securities, LLC 
 850 3rd Avenue, 17th Floor 
 New York, NY 10022 
  
 Subscription Amount:
$1,650,000.00 
 Shares: 600,000.00 
 Warrant Shares: 390,000.00

 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Portside Growth and Opportunity Fund 
 Signature of Authorized Signatory of Investing entity: /s/ Jeff Smith 
 Name of Authorized Signatory: Jeff Smith 
 Title of Authorized Signatory: Authorized Signatory 
  
 Address for Notice of Investing Entity: 
  
 c/o Ramius Capital Group, LLC 
 666 Third Ave., 26th Fl. 
 New York, NY 10017 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  
 Same 
  
 Subscription Amount: $499,999.50 
 Shares: 181,818 
 Warrant Shares: 118,182 
 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Quogue Capital LLC 
 Signature of Authorized Signatory of Investing entity: /s/ Wayne Rothbaum 
 Name of Authorized Signatory: Wayne Rothbaum 
 Title of Authorized Signatory: Principal 
  
 Address for Notice of Investing Entity: 
  
 1285 Ave of Americas 
 35th FL 
 NY, NY 10019 
  
 Address for Delivery of
Securities for Investing Entity (if not same as above): 
  
 Subscription Amount:
$357,500 
 Shares: 130,000 
 Warrant Shares: 84,500 

EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 RHP Master Fund, Ltd. 
 By: Rock Hill Investment Management, L.P. 
 By: RHP General Partner, LLC 
  

	 /s/ Keith Marlowe


	 By:
	 	 Keith Marlowe

	 Its:
	 	 Director


  
 Address for Notice of Investing
Entity: 
  
 c/o Rock Hill Investment Management, L.P. 
 3 Bala Plaza – East, Suite 585 
 Bala Cynwyd, PA 19004 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 

 
 Subscription Amount: $249,999.75 
 Shares: 90,909 
 Warrant Shares: 59,091 
 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: R& R Opportunity Fund LP 
 Signature of Authorized Signatory of Investing entity: /s/ Thomas G. Pinou 
 Name of Authorized Signatory: Thomas G. Pinou 
 Title of Authorized Signatory: Chief Financial Officer 
  
 Address for Notice of Investing Entity: 
  
 330 Madison Ave 27th Floor 
 New York, NY 10017 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 

 
 Subscription Amount: $86,997 
 Shares: 31,635 
 Warrant Shares: 20,563 
 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Sands Brothers Venture Capital Fund LLC 
 Signature of Authorized Signatory of Investing entity: /s/ Steven Sands 
 Name of Authorized Signatory: Steven Sands 
 Title of Authorized Signatory: Managing Partner 
  
 Address for Notice of Investing Entity: 
  
 Sands Brothers 
 90 Park Ave, 39th Flr 
 New York, NY 10016 
 Attn: Glen McKelrey 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  
 Subscription Amount: $100,000 
 Shares: 
 Warrant Shares: 
 EIN
Number: [you may provide this under separate cover] 
  
 [SIGNATURE
PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Sands Brothers Venture Capital Fund II LLC 
 Signature of Authorized Signatory of Investing entity: /s/ Steven Sands 
 Name of Authorized Signatory: Steven Sands 
 Title of Authorized Signatory: Managing Partner 
  
 Address for Notice of Investing Entity: 
  
 Sands Brothers 
 90 Park Ave, 39th Flr 
 New York, NY 10016 
 Attn: Glen McKelrey 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  
 Subscription Amount: $100,000 
 Shares: 
 Warrant Shares: 
 EIN
Number: [you may provide this under separate cover] 
  
 [SIGNATURE
PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Sands Brothers Venture Capital Fund III LLC 
 Signature of Authorized Signatory of Investing entity: /s/ Steven Sands 
 Name of Authorized Signatory: Steven Sands 
 Title of Authorized Signatory: Managing Partner 
  
 Address for Notice of Investing Entity: 
  
 Sands Brothers 
 90 Park Ave, 39th Flr 
 New York, NY 10016 
 Attn: Glen McKelrey 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  
 Subscription Amount: $500,000 
 Shares: 
 Warrant Shares: 
 EIN
Number: [you may provide this under separate cover] 
  
 [SIGNATURE
PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Sands Brothers Venture Capital Fund IV LLC 
 Signature of Authorized Signatory of Investing entity: /s/ Steven Sands 
 Name of Authorized Signatory: Steven Sands 
 Title of Authorized Signatory: Managing Partner 
  
 Address for Notice of Investing Entity: 
  
 Sands Brothers 
 90 Park Ave, 39th Flr 
 New York, NY 10016 
 Attn: Glen McKelrey 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  
 Subscription Amount: $200,000 
 Shares: 
 Warrant Shares: 
 EIN
Number: [you may provide this under separate cover] 
  
 [SIGNATURE
PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: SB Opportunity Technology Associates 
 Signature of Authorized Signatory of Investing entity: /s/ Steven Sands 
 Name of Authorized Signatory: Steven Sands 
 Title of Authorized Signatory: Managing Partner 
  
 Address for Notice of Investing Entity: 
  
 c/o Sands Brothers 
 90 Park Ave, 39th Flr 
 New York, NY 10016 
 Attn: Glen McKelrey 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  
 Subscription Amount: $50,000 
 Shares: 
 Warrant Shares: 
 EIN
Number: [you may provide this under separate cover] 
  
 [SIGNATURE
PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Katie & Adam Bridge Fund LP 
 Signature of Authorized Signatory of Investing entity: /s/ Steven Sands 
 Name of Authorized Signatory: Steven Sands 
 Title of Authorized Signatory: Managing Partner 
  
 Address for Notice of Investing Entity: 
  
 c/o Sands Brothers 
 90 Park Ave, 39th Flr 
 New York, NY 10016 
 Attn: Glen McKelrey 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  
 Subscription Amount: $50,000 
 Shares: 
 Warrant Shares: 
 EIN
Number: [you may provide this under separate cover] 
  
 [SIGNATURE
PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Satellite Asset Management, L.P. 
 Signature of Authorized Signatory of Investing entity: /s/ Brian S. Kriftcher 
 Name of Authorized Signatory: By: Brian S. Kriftcher 
 Title of Authorized Signatory: Chief Operating Officer & Principal 
  
 Address for Notice of Investing Entity: 
  
 623 Fifth Avenue, 20th Floor 
 New York, NY 10022 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 

 
 Subscription Amount: $500,000 
 Shares: 181,818 
 Warrant Shares: 118,182 
 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: SF CAPITAL PARTNERS LTD. 
 Signature of Authorized Signatory of Investing entity: /s/ Michael A. Roth 
 Name of Authorized Signatory: Michael A. Roth 
 Title of Authorized Signatory: Authorized Signatory 
  
 Address for Notice of Investing Entity: 
  
 c/o Staro Asset Management 
 3600 South Lake Drive 
 St. Francis, WI 53235-3716 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  
 Same 
  
 Subscription Amount: $550,000 
 Shares: 200,000

 Warrant Shares: 130,000 
 EIN Number: [you may provide this
under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: SMITHFIELD FIDUCIARY LLC 
 Signature of Authorized Signatory of Investing entity: /s/ Adam J. Chill 
 Name of Authorized Signatory: Adam J. Chill 
 Title of Authorized Signatory: Authorized Signatory 
  
 Address for Notice of Investing Entity: 
  
 c/o Highbridge Capital Management, LLC 
 9 West 57th Street, 27th Floor 
 New York, New York 10019

 Attn: Ari J. Storch / Adam J. Chill 
 Tel: (212) 287-4720

 Fax: (212) 751-0755 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  

Subscription Amount: $500,002.25 
 Shares: 181,819 
 Warrant Shares: 118,182 
 EIN Number: N/A 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: TCMP3 PARTNERS 
 Signature of Authorized Signatory of Investing entity: /s/ Steven E. Slawson 
 Name of Authorized Signatory: STEVEN E. SLAWSON 
 Title of Authorized Signatory: PRINCIPAL/GENERAL PARTNER 
  
 Address for Notice of Investing Entity: 
  
 TITAN CAPITAL MANAGEMENT 
 7 CENTURY DRIVE, SUITE 201 
 PARSIPPANY, NEW JERSEY 07054 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  
 SAME 
  
 Subscription Amount: $148,500 
 Shares: 54,000

 Warrant Shares: 35,100 
 EIN Number: [you may provide this
under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: The Tail Wind Fund Ltd. 
 Signature of Authorized Signatory of Investing entity: /s/ D.A. Crook 
 Name of Authorized Signatory: D.A. CROOK 
 Title of Authorized Signatory: CEO of investment manager – Tail Wind Advisory & Management Ltd.

  
 Address for Notice of Investing Entity: 
  
 c/o Tail Wind Advisory and Management Ltd. 
 Attn: David Crook 
 1st Floor, No. 1 Regent Street 
 London, SW1Y 4NS UK 
 Facsimile: 011-44-207-468-7657 
  
 with a copy to: 
 Peter J. Weisman, P.C. 
 335 Madison Avenue, Suite 1702 
 New York, NY 10017 
 Facsimile: 212-317-8855 
  
 Address for Delivery
of Securities for Investing Entity (if not same as above): 
  
 Please see
attached 
  
 Subscription Amount: $500,000 
 Shares: 181,818 
 Warrant Shares: 118,182 
 EIN Number: [you may provide this under separate cover] – N/A 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Topaz Partners 
 Signature of Authorized Signatory of Investing entity: /s/ David Muschel 
 Name of Authorized Signatory: David Muschel 
 Title of Authorized Signatory: Manager 
  
 Address for Notice of Investing Entity: 
  
 900 3rd Ave, 11th Floor 
 NY, NY 10022 

 
 Address for Delivery of Securities for Investing Entity (if not same as above):

  
 Subscription Amount: $500,000 
 Shares: 181,818 
 Warrant Shares: 118,182 
 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Ursus Capital L.P. 
 Signature of Authorized Signatory of Investing entity: /s/ Evan Sturza 
 Name of Authorized Signatory: Evan Sturza 
 Title of Authorized Signatory: General Partner 
  
 Address for Notice of Investing Entity: 
  
 156 West 56th Street 
 16th Floor 
 New York, NY 10019 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 

 
 Subscription Amount: $243,375.00 
 Shares: 88,500 shares 
 Warrant Shares: 57,525 warrants 
 EIN Number: [you may provide this under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Ursus Offshore Ltd. 
 Signature of Authorized Signatory of Investing entity: /s/ Evan Sturza 
 Name of Authorized Signatory: Evan Sturza 
 Title of Authorized Signatory: Managing Director 
  
 Address for Notice of Investing Entity: 
  
 P.O. Box 896 GT 
 Harbour Centre, 2nd Floor 
 North Church Street 
 Grand Cayman 
 Cayman Island 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  
 156 West 56th Street 
 16th Floor 
 New York, NY 10019 
  
 Subscription Amount: $169,125.00 
 Shares: 61,500 shares 
 Warrant Shares: 39,975 warrants 
 EIN Number: [you may provide this under separate cover] N/A 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: Viking Global Equities LP 
 Signature of Authorized Signatory of Investing entity: /s/ Brian Smith 
 Name of Authorized Signatory: Brian Smith 
 Title of Authorized Signatory: Chief Financial Officer 
  
 Address for Notice of Investing Entity: 
  
 Viking Global Investors LP 
 55 Railroad Avenue 
 Greenwich, CT 06830-6378 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  
 TO BE PROVIDED 
  
 Subscription Amount: $1,391,500 (506,000 shares @ $2.75) 
 Shares: 506,000 
 Warrant Shares: 
 EIN Number: TO BE PROVIDED 
  
 [SIGNATURE PAGES CONTINUE]







 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: VGE III Portfolio Ltd. 
 Signature of Authorized Signatory of Investing entity: /s/ Brian Smith 
 Name of Authorized Signatory: Brian Smith 
 Title of Authorized Signatory: Chief Financial Officer 
  
 Address for Notice of Investing Entity: 
  
 Viking Global Investors LP 
 55 Railroad Avenue 
 Greenwich, CT 06830-6378 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 
  
 TO BE PROVIDED 
  
 Subscription Amount: $1,358,500 (494,000 shares @ $2.75) 
 Shares: 494,000 
 Warrant Shares: 
 EIN Number: TO BE PROVIDED 
  
 [SIGNATURE PAGES CONTINUE]







 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: XMARK FUND LP 
 Signature of Authorized Signatory of Investing entity: /s/ Mitchell D. Kaye 
 Name of Authorized Signatory: MITCHELL D. KAYE 
 Title of Authorized Signatory: CHIEF INVESTMENT OFFICER 
  
 Address for Notice of Investing Entity: 
  
 XMARK FUNDS 
 152 WEST 57TH ST., 21ST FL. 
 NEW YORK, NY 10019 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 

 
 see above 
  
 Subscription Amount: $207,955 
 Shares: 75,620

 Warrant Shares: 49,153 
 EIN Number: [you may provide this
under separate cover] 
  
 [SIGNATURE PAGES CONTINUE] 






 [PURCHASER’S SIGNATURE PAGE] 
  
 Name of Investing Entity: XMARK FUND, LTD. 
 Signature of Authorized Signatory of Investing entity: /s/ Mitchell D. Kaye 
 Name of Authorized Signatory: MITCHELL D. KAYE 
 Title of Authorized Signatory: CHIEF INVESTMENT OFFICER 
  
 Address for Notice of Investing Entity: 
  
 XMARK FUNDS 
 152 WEST 57TH ST., 21ST FL. 
 NEW YORK, NY 10019 
  
 Address for Delivery of Securities for Investing Entity (if not same as above): 

 
 same as above 
  
 Subscription Amount: $342,045 
 Shares: 124,380

 Warrant Shares: 80,847 
 EIN Number: [you may provide this
under separate cover] NOT APPLICABLE 
  
 [SIGNATURE PAGES CONTINUE]







 SCHEDULE A 
  

	 Name of Purchaser

	  	Number of Units

	  	Number of Warrants


	 Accipiter Life Sciences Fund, L.P.
	  	213,242	  	138,607
	 Accipiter Life Sciences Fund (QP), L.P.
	  	130,491	  	84,819
	 Accipiter Life Sciences Fund, Ltd.
	  	201,722	  	131,119
	 Alexandra Global Master Fund Ltd.
	  	100,000	  	65,000
	 Basso Multi-Strategy Holding Fund Ltd.
	  	50,000	  	32,500
	 Basso Equity Opportunity Holding Fund Ltd.
	  	50,000	  	32,500
	 Michael R. Hamblett
	  	36,364	  	23,637
	 SRG Capital LLC
	  	54,546	  	35,455
	 Benjamin Partners Inc. Savings Plan F/B/O Jeffrey Benison
	  	28,000	  	18,200
	 Bristol Investment Fund, Ltd.
	  	127,273	  	82,728
	 Steve Kovacs Investments Ltd.
	  	50,000	  	32,500
	 Stonestreet LP
	  	100,000	  	65,000
	 CC Life Science, Ltd
	  	290,909	  	189,091
	 Castle Creek Healthcare Partners LLC
	  	181,818	  	118,182
	 Cranshire Capital, L.P.
	  	363,636	  	236,363
	 Crescent International Ltd.
	  	120,000	  	78,000
	 DKR Saturn Holding Fund Ltd.
	  	33,300	  	21,645
	 DKR Saturn Event Driven Holding Fund
	  	166,700	  	108,355
	 Elliot Associates, L.P.
	  	40,000	  	26,000
	 Elliot International, L.P.
	  	60,000	  	39,000
	 Capital Ventures International
	  	363,636	  	236,364
	 Langley Partners, L.P.
	  	218,182	  	141,818
	 Omicron Master Trust
	  	200,000	  	130,000
	 Perceptive Life Sciences Master Fund, Ltd.
	  	600,000	  	390,000
	 Portside Growth and Opportunity Fund
	  	181,818	  	118,182
	 Quogue Capital LLC
	  	130,000	  	84,500
	 RHP Master Fund, Ltd.
	  	90,909	  	59,091
	 R&R Opportunity Fund
	  	31,635	  	20,563
	 Sands Brothers Venture Capital Fund LLC
	  	36,364	  	23,636
	 Sands Brothers Venture Capital Fund II LLC
	  	36,364	  	23,636
	 Sands Brothers Venture Capital Fund III LLC
	  	181,818	  	118,182
	 Sands Brothers Venture Capital Fund IV LLC
	  	72,727	  	47,273
	 SBO Opportunity Technology Associates
	  	18,182	  	11,818
	 Katie & Adam Bridge Partners LP
	  	18,182	  	11,818
	 Satellite Asset Management LP
	  	181,818	  	118,182
	 SF Capital Partners Ltd.
	  	200,000	  	130,000
	 Smithfield Fiduciary, LLC
	  	181,819	  	118,182
	 TCMP3 Partners
	  	54,000	  	35,100
	 The Tail Wind Fund Limited
	  	181,818	  	118,182
	 Topaz Partners
	  	181,818	  	118,182
	 Ursus Capital LP
	  	88,500	  	57,525
	 Ursus Offshore Ltd.
	  	61,500	  	39,975
	 Viking Global Equities LP
	  	506,000	  	328,900
	 VGE III Portfolio Ltd.
	  	494,000	  	321,100
	 Xmark Fund, L.P.
	  	75,620	  	49,153
	 Xmark Fund, Ltd.
	  	124,380	  	80,847
	 Total:
	  	6,909,091	  	4,490,910







 EXHIBIT A 
  

REGISTRATION RIGHTS AGREEMENT 
  
 This Registration Rights Agreement (this “Agreement”) is made and entered into as of January 7, 2004, by and among Cortex
Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and the investors signatory hereto (each a “Purchaser” and collectively, the “Purchasers”). 
  
 This Agreement is made pursuant to the Securities Purchase Agreement, dated
as of the date hereof among the Company and the Purchasers (the “Purchase Agreement”). 
  
 The Company and the Purchasers hereby agree as follows: 
  
 1. Definitions. Capitalized terms used and not otherwise defined herein that are defined in the Purchase Agreement shall have the meanings given
such terms in the Purchase Agreement. As used in this Agreement, the following terms shall have the following meanings: 
  
 “Effectiveness Date” means, with respect to the Registration Statement required to be filed hereunder, the earlier of (a)
the 90th calendar day following the Closing Date and (b) the fifth Trading Day following the date on which the Company is notified by the Commission that the Registration Statement will not be reviewed or is no longer subject to further review and
comments. 
  
 “Effectiveness
Period” shall have the meaning set forth in Section 2(a). 
  
 “Filing Date” means, with respect to the Registration Statement required to be filed hereunder, the 20th calendar day following the Closing Date. 
  
 “Holder” or “Holders” means the holder or holders, as the case may be, from time to time of Registrable
Securities. 
  
 “Indemnified
Party” shall have the meaning set forth in Section 5(c). 
  
 “Indemnifying Party” shall have the meaning set forth in Section 5(c). 
  
 “Losses” shall have the meaning set forth in Section 5(a). 
  
 “Major Holders” means the original Holders on the Closing Date holding, on the date of
determination, at least 50,000 Shares, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement, and subsequent
transferees holding, on the date of determination, at least 250,000 Shares, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date
of this Agreement. 
  

 1 







 “Proceeding” means an action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial proceeding, such as a deposition), whether commenced or threatened. 
  
 “Prospectus” means the prospectus included in the Registration Statement (including, without limitation, a prospectus
that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable Securities covered by the Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus. 
  
 “Registrable Securities” means the Shares and the Warrant Shares, together with any shares of Common Stock issued or issuable upon any stock split, dividend or other distribution, recapitalization or
similar event with respect to the foregoing. 
  
 “Registration Statement” means the registration statements required to be filed hereunder, including (in each case) the Prospectus, amendments and supplements to the registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in the registration statement. 
  
 “Rule 415” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule. 
  
 “Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule. 
  
 “Securities Act” means the Securities Act of 1933, as amended. 
  
 2. Registration. 
  
 (a) On or prior to the Filing Date, the Company shall
prepare and file with the Commission the Registration Statement covering the resale of all of the Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement required hereunder shall be on
Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case the Registration Statement shall be on another appropriate form in accordance herewith). The Registration Statement
required hereunder shall contain (except if otherwise directed by the Major Holders) the “Plan of Distribution” attached hereto as Annex A. The Company shall cause the Registration Statement to become effective and remain
effective as provided herein. The Company shall use its commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities 

  

 2 







 
Act as promptly as possible after the filing thereof, but in any event not later than the Effectiveness Date, and shall use its commercially reasonable
efforts to keep the Registration Statement continuously effective under the Securities Act until the date when all Registrable Securities covered by the Registration Statement (a) have been sold pursuant to the Registration Statement or an exemption
from the registration requirements of the Securities Act or (b) may be sold without volume restrictions pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable
to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”). 
  
 (b) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without
affording a Major Holder the opportunity to review and comment on the same as required by Section 3(a), the Company shall not be deemed to have satisfied this clause (i)); provided, however, that if a Holder fails to provide the
Company with any information that is required to be provided in the Registration Statement with respect to such Holder pursuant to Section 3(k), then the Filing Date shall be extended until two Trading Days following the date of receipt by the
Company of such required information, or (ii) the Company fails to file with the Commission a request for acceleration in accordance with Rule 461 promulgated under the Securities Act, within five Trading Days of the date that the Company is
notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement will not be “reviewed,” or not subject to further review, or (iii) prior to the date when such Registration Statement is first declared
effective by the Commission, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the Commission in respect of such Registration Statement within fifteen Trading Days after the receipt of comments
by or notice from the Commission that such amendment is required in order for a Registration Statement to be declared effective, or (iv) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on
or before the Effectiveness Date, or (v) after a Registration Statement is first declared effective by the Commission, it ceases for any reason to remain continuously effective as to all Registrable Securities for which it is required to be
effective, or the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities, for in any such cases twenty-five Trading Days (which need not be consecutive days) in the aggregate during any 12-month period (any
such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (iv) the date on which such Event occurs, or for purposes of clause (ii) the date on which such five Trading Day period is exceeded, or for
purposes of clause (iii) the date which such fifteen Trading Day period is exceeded, or for purposes of clause (v) the date on which such twenty-five Trading Day period is exceeded, being referred to as “Event Date”), then in
addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 2% of the aggregate
purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities then held by such Holder; and (y) on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such
date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 2% of the aggregate purchase 

  

 3 







 
price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities then held by such Holder. If the Company fails to pay any
liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 18% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the
Holder, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The liquidated damages pursuant to the terms hereof shall apply on a pro-rata basis for any portion of a month
prior to the cure of an Event. 
  
 3. Registration
Procedures 
  
 In connection with the Company’s
registration obligations hereunder, the Company shall: 
  
 (a) Not less than three Trading Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, (i) furnish to the Major Holders copies of all such documents proposed to be filed
(including documents incorporated or deemed incorporated by reference to the extent requested by such Person), which documents will be subject to the review of such Major Holders, and (ii) cause its officers and directors, counsel and independent
certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the
Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities shall reasonably object in good faith. 
  
 (b) (i) Prepare and file with the Commission such
amendments, including post-effective amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities
for the Effectiveness Period; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424; (iii) respond as promptly as reasonably
possible, and in any event within fifteen Trading Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and, as promptly as reasonably possible, upon request, provide the Major Holders
true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition
of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such
Prospectus as so supplemented. 
  
 (c) Notify the
Holders of Registrable Securities to be sold as promptly as reasonably possible (and, in the case of (i)(A) below, not less than two Trading Days prior to such filing) and (if requested by any such Person) confirm such notice in writing promptly
following the day (i)(A) when a Prospectus or any Prospectus supplement or 

  

 4 







 
post-effective amendment to the Registration Statement is proposed to be filed; (B) when the Commission notifies the Company whether there will be a
“review” of the Registration Statement and whenever the Commission comments in writing on the Registration Statement (the Company shall upon request provide true and complete copies thereof and all written responses thereto to each of the
Major Holders); and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the Commission or any other Federal or state governmental authority during the period of
effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iii) of the issuance by the Commission or any other federal or state governmental authority of any
stop order suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; and (v) of the occurrence of any event or passage
of time that makes the financial statements included in the Registration Statement ineligible for inclusion therein or any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein
by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any
untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. 
  
 (d) Use its commercially reasonable efforts to avoid the
issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for
sale in any jurisdiction, at the earliest practicable moment. 
  
 (e) Furnish to each Holder, without charge, at least one conformed copy of the Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to
be incorporated therein by reference to the extent requested by such Holder, and all exhibits to the extent requested by such Holder (including those previously furnished or incorporated by reference) promptly after the filing of such documents with
the Commission. 
  
 (f) Promptly deliver to each
Holder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Holder may reasonably request in connection with resales by the Holder of Registrable
Securities. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any
amendment or supplement thereto, except after the giving on any notice pursuant to Section 3(c). 
  

 5 







 (g) Prior to any resale of Registrable Securities by a Holder, use its commercially
reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the registration or qualification) of such Registrable Securities for the resale by the Holder
under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each the registration or qualification (or exemption therefrom) effective during the Effectiveness Period and
to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided, that the Company shall not be required to qualify
generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such
jurisdiction. 
  
 (h) If requested by the
Holders, cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to the Registration Statement, which certificates shall be free, to
the extent permitted by the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holders may request. 
  
 (i) Upon the occurrence of any event contemplated by Section
3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (ii) through (v) of Section 3(c) above to suspend
the use of the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use commercially reasonable efforts to ensure that the use of the Prospectus
may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(i) to suspend the availability of a Registration Statement and Prospectus, subject to the payment of liquidated damages pursuant
to Section 2(b), for a period not to exceed 60 days (which need not be consecutive days) in any 12 month period. 
  
 (j) Comply with all applicable rules and regulations of the Commission. 
  
 (k) The Company may require each selling Holder to furnish to the Company a certified statement as to the
number of shares of Common Stock beneficially owned by such Holder and, if required by the Commission, the Person thereof that has voting and dispositive control over the Shares. 
  

 6 







 4. Registration Expenses. All fees and expenses incident to the performance of or compliance with
this Agreement by the Company shall be borne by the Company whether or not any Registrable Securities are sold pursuant to the Registration Statement. The fees and expenses referred to in the foregoing sentence shall include, without limitation, (i)
all registration and filing fees (including, without limitation, fees and expenses (A) with respect to filings required to be made with the Trading Market on which the Common Stock is then listed for trading, and (B) in compliance with applicable
state securities or Blue Sky laws), (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities and of printing prospectuses if the printing of prospectuses is reasonably requested by the
holders of a majority of the Registrable Securities included in the Registration Statement), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company, (v) Securities Act liability insurance, if the
Company so desires such insurance, and (vi) fees and expenses of all other Persons retained by the Company in connection with the consummation of the transactions contemplated by this Agreement. In addition, the Company shall be responsible for all
of its internal expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit and the fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange as required hereunder. 
  
 5. Indemnification 
  
 (a) Indemnification by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify and hold
harmless each Holder, the officers, directors, agents and employees of each of them, each Person who controls any such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors,
agents and employees of each such controlling Person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees) and
expenses (collectively, “Losses”), as incurred, to the extent arising out of or relating to any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any Prospectus or any form of prospectus
or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case
of any Prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, except to the extent, but only to the extent, that (1) such untrue statements or omissions are based solely upon
information regarding such Holder furnished in writing to the Company by such Holder expressly for use therein, or to the extent that such information relates to such Holder or such Holder’s proposed method of distribution of Registrable
Securities and was reviewed and expressly approved in writing by such Holder expressly for use in the Registration Statement, such Prospectus or such form of Prospectus or in any amendment or supplement thereto (it being understood that the Holder
has approved Annex A hereto for this purpose) or (2) in the case of an occurrence of an event of the type specified in Section 3(c)(ii)-(v), the use by such Holder of an outdated or defective prospectus after the Company has notified such Holder in
writing that the Prospectus is outdated or defective and prior to the receipt by such 

  

 7 







 
Holder of the Advice contemplated in Section 6(d). The Company shall notify the Holders promptly of the institution, threat or assertion of any Proceeding of
which the Company is aware in connection with the transactions contemplated by this Agreement. 
  
 (b) Indemnification by Holders. Each Holder shall, severally and not jointly, indemnify and hold harmless the Company, its
directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such controlling
Persons, to the fullest extent permitted by applicable law, from and against all Losses, as incurred, to the extent arising out of or based upon: (x) such Holder’s failure to comply with the prospectus delivery requirements of the Securities
Act or (y) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus, or any form of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or
relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading (i) to the extent, but only to the extent, that such untrue statement or omission is contained
in any information so furnished in writing by such Holder to the Company specifically for inclusion in the Registration Statement or such Prospectus or (ii) to the extent that (1) such untrue statements or omissions are based solely upon information
regarding such Holder furnished in writing to the Company by such Holder expressly for use therein, or to the extent that such information relates to such Holder or such Holder’s proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly for use in the Registration Statement (it being understood that the Holder has approved Annex A hereto for this purpose), such Prospectus or such form of prospectus or in any
amendment or supplement thereto or (2) in the case of an occurrence of an event of the type specified in Section 3(c)(ii)-(v), the use by such Holder of an outdated or defective Prospectus after the Company has notified such Holder in writing that
the Prospectus is outdated or defective and prior to the receipt by such Holder of the Advice contemplated in Section 6(d). In no event shall the liability of any selling Holder hereunder be greater in amount than the dollar amount of the net
proceeds received by such Holder upon the sale of the Registrable Securities giving rise to such indemnification obligation. 
  
 (c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought or asserted against any Person entitled to indemnity
hereunder (an “Indemnified Party”), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to
assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that the failure of any Indemnified
Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which
determination is not subject to appeal or further review) that such failure shall have prejudiced the Indemnifying Party. 
  

 8 







 An Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses; (2)
the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding; or (3) the named parties to any such Proceeding (including any
impleaded parties) include both such Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified
Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right
to assume the defense thereof and the reasonable fees and expenses of one separate counsel shall be at the expense of the Indemnifying Party). The Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without its
written consent, which consent shall not be unreasonably withheld. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is
a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding. 
  
 All reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to the
extent incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within ten Trading Days of written notice thereof to the
Indemnifying Party; provided, that the Indemnified Party shall promptly reimburse the Indemnifying Party for that portion of such fees and expenses applicable to such actions for which such Indemnified Party is not entitled to indemnification
hereunder, determined based upon the relative faults of the parties. 
  
 (d) Contribution. If a claim for indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified Party (by reason of public policy or otherwise), then each Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified
Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference
to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any
Losses shall be deemed to include, subject to the limitations set forth in Section 5(c), any reasonable attorneys’ or other reasonable fees or expenses incurred by such party in connection with any Proceeding to the extent such party would have
been indemnified for such fees or expenses if the indemnification provided for in this Section was available to such party in accordance with its terms. 
  

 9 







 The parties hereto agree that it would not be just and equitable if contribution pursuant
to this Section 5(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this
Section 5(d), no Holder shall be required to contribute, in the aggregate, any amount in excess of the amount of proceeds actually received by such Holder from the sale of the Registrable Securities by reason of such untrue or alleged untrue
statement or omission or alleged omission, except in the case of fraud by such Holder. The indemnity and contribution agreements contained in this Section are in addition to any liability that the Indemnifying Parties may have to the Indemnified
Parties. 
  
 6. Miscellaneous 
  
 (a) Remedies. In the event of a breach by the Company
or by a Holder, of any of their obligations under this Agreement, each Holder or the Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The Company and each Holder agree that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it shall waive the defense that a remedy at law would be adequate. 
  
 (b) No Piggyback on Registrations. Except as set
forth on Schedule 6(b), neither the Company nor any of its security holders (other than the Holders in such capacity pursuant hereto) may include securities of the Company in a Registration Statement other than the Registrable Securities, and the
Company shall not after the date hereof enter into any agreement providing any such right to any of its security holders. Except as set forth in the SEC Reports, no Person has any right to cause the Company to effect the registration under the
Securities Act of any securities of the Company. The Company shall not file any other registration statement until after the Effective Date, other than any registration statement on Form S-8 relating to the registration of equity securities issuable
in connection with a stock option or other employee benefit plan. 
  
 (c) Compliance. Each Holder covenants and agrees that it will comply with the prospectus delivery requirements of the Securities Act as applicable to it in connection with sales of Registrable Securities
pursuant to the Registration Statement. 
  
 (d)
Discontinued Disposition. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c), such Holder will forthwith
discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement or until it is advised in writing (the
“Advice”) by the Company 

  

 10 







 
that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph. 
  
 (e) Piggy-Back Registrations. If at any time during
the Effectiveness Period there is not an effective Registration Statement covering all of the Registrable Securities and the Company shall determine to prepare and file with the Commission a registration statement relating to an offering for its own
account or the account of others under the Securities Act of any of its equity securities, other than on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely
in connection with any acquisition of any entity or business or equity securities issuable in connection with the stock option or other employee benefit plans, then the Company shall send to each Holder a written notice of such determination and, if
within fifteen days after the date of such notice, any such Holder shall so request in writing, the Company shall include in such registration statement all or any part of such Registrable Securities such Holder requests to be registered, subject to
customary underwriter cutbacks applicable to all holders of registration rights. 
  
 (f) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the same shall be in writing and signed by the Company and each Major Holder of the then outstanding Registrable Securities.

  
 (g) Notices. Any and all notices or
other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile
at the facsimile number provided for below prior to 6:30 p.m. (New York City time) on a Trading Day, (ii) the Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number provided for
below later than 6:30 p.m. (New York City time) on any date and earlier than 11:59 p.m. (New York City time) on such date, (iii) the Trading Day following the date of mailing, if sent by nationally recognized overnight courier service, or (iv) upon
actual receipt by the party to whom such notice is required to be given. The address or facsimile number for such notices and communications shall be delivered and addressed as set forth in the Purchase Agreement 
  
 (h) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties and shall inure to the benefit of each Holder. Each Holder may assign their respective rights hereunder in the manner and to the Persons as
permitted under the Purchase Agreement. 
  
 (i)
Execution and Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and, all of which taken together shall constitute one and the same Agreement. In


  

 11 







 
the event that any signature is delivered by facsimile transmission, such signature shall create a valid binding obligation of the party executing (or on
whose behalf such signature is executed) the same with the same force and effect as if such facsimile signature were the original thereof. 
  
 (j) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be
governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Agreement (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall be commenced exclusively in the state and
federal courts sitting in the City of New York, New York. Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, New York for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of the any of this Agreement), and hereby irrevocably waives, and agrees not to assert in any suit, action
or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper. Each party hereto hereby irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by delivering a copy thereof via overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Each party hereto hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. If either party shall commence an action or proceeding to enforce any
provisions of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys fees and other costs and expenses incurred with the investigation, preparation and prosecution of such
action or proceeding. 
  
 (k) Cumulative
Remedies. The remedies provided herein are cumulative and not exclusive of any remedies provided by law. 
  
 (l) Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto
shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable. 
  

 12 







 (m) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof. 
  
 (n) Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser hereunder is several and not joint with the obligations of any other Purchaser hereunder, and no Purchaser
shall be responsible in any way for the performance of the obligations of any other Purchaser hereunder. Nothing contained herein or in any other agreement or document delivered at any closing, and no action taken by any Purchaser pursuant hereto or
thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert with respect to such obligations or the
transactions contemplated by this Agreement. Each Purchaser shall be entitled to protect and enforce its rights, including without limitation the rights arising out of this Agreement, and it shall not be necessary for any other Purchaser to be
joined as an additional party in any proceeding for such purpose. 
  
 (o) Conflicting Instructions. A person or entity is deemed to be a holder of Registrable Securities whenever such person or entity owns of record such Registrable Securities. If the Company receives conflicting
instructions, notices or elections from two or more Persons or entities with respect to the same Registrable Securities, the Company will act upon the basis of instructions, notice or election received from the registered owner of such Registrable
Securities. 
  

 13 







 EXHIBIT A 
  

IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date first written above. 
  

	CORTEX PHARMACEUTICALS, INC.
		
	 By:
	 	  


	 	 	     Name:

	 	 	     Title:



  
 [PURCHASERS’
SIGNATURE PAGES TO FOLLOW] 






 [PURCHASER SIGNATURE PAGES TO REGISTRATION RIGHTS AGREEMENT] 
  

 15 







 [PURCHASER SIGNATURE PAGES TO REGISTRATION RIGHTS AGREEMENT] 
  
 Name of Purchaser Entity: 
  

	 By:
	 	  


	 	 	 Name:

	 	 	 Title:


  

 16 







 ANNEX A 
  
 Plan of Distribution 
  
 The Selling Stockholders and any of their pledgees, assignees, donees and successors-in-interest may, from time to time, sell any or all of their shares
of Common Stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions. These sales may be at fixed or negotiated prices. The Selling Stockholders may use any one or more of the following methods
when selling shares: 
  

	 	•	ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; 

  

	 	•	block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;


  

	 	•	purchases by a broker-dealer as principal and resale by the broker-dealer for its account; 

  

	 	•	an exchange distribution in accordance with the rules of the applicable exchange; 

  

	 	•	privately negotiated transactions; 

  

	 	•	settlement of short sales entered into after the date of this Prospectus; 

  

	 	•	broker-dealers may agree with the Selling Stockholders to sell a specified number of such shares at a stipulated price per share; 

  

	 	•	a combination of any such methods of sale; and 

  

	 	•	any other method permitted pursuant to applicable law. 

  
 The Selling Stockholders may also sell shares under Rule 144 under the Securities Act, if available, rather than under this prospectus. 
  
 Broker-dealers engaged by the Selling Stockholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the Selling Stockholders (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated. The
Selling Stockholders do not expect these commissions and discounts to exceed what is customary in the types of transactions involved. 
  
 The Selling Stockholders may from time to time pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they
default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to time under this prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act of 1933 amending the list of Selling Stockholders to include the pledgee, transferee or other successors in interest as Selling Stockholders under this prospectus. 
  

 17 







 The Selling Stockholders and any broker-dealers or agents that are involved in selling the shares may be
deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares purchased by them may
be deemed to be underwriting commissions or discounts under the Securities Act. The Selling Stockholders have informed the Company that it does not have any agreement or understanding, directly or indirectly, with any person to distribute the Common
Stock. 
  
 The Company is required to pay all fees and expenses
incident to the registration of the shares. The Company and the Selling Stockholders have agreed to indemnify each other against certain losses, claims, damages and liabilities, including liabilities under the Securities Act. 
  

 18 







 EXHIBIT C 
  

NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL
OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES 
  
 COMMON
STOCK PURCHASE WARRANT 
  
 To Purchase
             Shares of Common Stock of 
  
 Cortex Pharmaceuticals, Inc. 
  
 THIS COMMON STOCK PURCHASE WARRANT CERTIFIES that, for value received,              (the “Holder”), is entitled, upon the terms and
subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after January 7, 2004 (the “Initial Exercise Date”) and on or prior to the close of business on January 6, 2009 (the
“Termination Date”) but not thereafter, to subscribe for and purchase from Cortex Pharmaceuticals Inc, a corporation incorporated in the State of Delaware (the “Company”), up to
             shares (the “Warrant Shares”) of Common Stock, par value $0.001 per share, of the Company (the “Common Stock”). The purchase price of
one share of Common Stock (the “Exercise Price”) under this Warrant shall be $3.25, subject to adjustment hereunder. The Exercise Price and the number of Warrant Shares for which the Warrant is exercisable shall be subject to
adjustment as provided herein. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Securities Purchase Agreement (the “Purchase Agreement”), dated January 7, 2004, between the
Company and the purchasers signatory thereto. 
  

 1 







 1. Title to Warrant. Prior to the Termination Date and subject to compliance with applicable laws
and Section 7 of this Warrant, this Warrant and all rights hereunder are transferable, in whole or in part, at the office or agency of the Company by the Holder in person or by duly authorized attorney, upon surrender of this Warrant together with
the Assignment Form annexed hereto properly endorsed. The transferee shall sign an investment letter in form and substance reasonably satisfactory to the Company. 
  
 2. Authorization of Shares. The Company covenants that all Warrant Shares which may be issued upon the exercise of
the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges in respect of the
issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue). 
  
 3. Exercise of Warrant. 
  
 (a) Exercise of the purchase rights represented by this Warrant may be made at any time or times on or after the Initial Exercise Date and
on or before the Termination Date by the surrender of this Warrant and the Notice of Exercise Form annexed hereto duly executed, at the office of the Company (or such other office or agency of the Company as it may designate by notice in writing to
the registered Holder at the address of such Holder appearing on the books of the Company) and upon payment of the Exercise Price of the shares thereby purchased by wire transfer or cashier’s check drawn on a United States bank or by means of a
cashless exercise pursuant to Section 3(d), the Holder shall be entitled to receive a certificate for the number of Warrant Shares so purchased. Certificates for shares purchased hereunder shall be delivered to the Holder within three (3) Trading
Days after the date on which this Warrant shall have been exercised as aforesaid. This Warrant shall be deemed to have been exercised and such certificate or certificates shall be deemed to have been issued, and the Holder or any other person so
designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date the Warrant has been exercised by payment to the Company of the Exercise Price and all taxes required to be paid by the
Holder, if any, pursuant to Section 5 prior to the issuance of such shares, have been paid. If the Company fails to deliver to the Holder a certificate or certificates representing the Warrant Shares pursuant to this Section 3(a) by the close of
business on the third Trading Day after the date of exercise, then the Holder will have the right to rescind such exercise. In addition to any other rights available to the Holder, if the Company fails to deliver to the Holder a certificate or
certificates representing the Warrant Shares pursuant to an exercise by the close of business on the third Trading Day after the date of exercise, and if after such third Trading Day the Holder is required by its broker to purchase (in an open
market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (1) pay
in cash to the Holder the amount by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the 

  

 2 







 
amount obtained by multiplying (A) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at
issue times (B) the price at which the sell order giving rise to such purchase obligation was executed, and (2) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise
was not honored or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common Stock having
a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (1) of the immediately preceding
sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In, together with applicable confirmations and other evidence
reasonably requested by the Company. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive
relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof. 
  
 (b) If this Warrant shall have been exercised in part, the
Company shall, at the time of delivery of the certificate or certificates representing Warrant Shares, deliver to Holder a new Warrant evidencing the rights of Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new
Warrant shall in all other respects be identical with this Warrant. 
  
 (c) The Holder shall not have the right to exercise any portion of this Warrant, pursuant to Section 3(a) or otherwise, to the extent that after giving effect to such issuance after exercise, the Holder (together with
the Holder’s Affiliates), as set forth on the applicable Notice of Exercise, would beneficially own in excess of 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to such issuance. For purposes of the
foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which the determination of such
sentence is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (A) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates and (B)
exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Warrants) subject to a limitation on conversion or exercise analogous to the limitation contained
herein beneficially owned by the Holder or any of its Affiliates. Except as set forth in the preceding sentence, for purposes of this Section 3(c), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act. For
purposes of this Section 3(c), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Form 10-Q or Form 10-K, as the
case may be, (y) a more recent public announcement by the Company or (z) any other notice by the Company or 

  

 3 







 
the Company’s Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of the Holder, the Company
shall within two Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Company Common Stock shall be determined after giving effect to the
conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The provisions of this Section 3(c) may be waived
by the Holder upon, at the election of the Holder, not less than 61 days’ prior notice to the Company, and the provisions of this Section 3(c) shall continue to apply until such 61st day (or such later date, as determined by the Holder, as may be specified in such notice of waiver). 
  
 (d) If, but only if, at any time after one year from the
date of issuance of this Warrant there is no effective Registration Statement registering the resale of the Warrant Shares by the Holder, this Warrant may also be exercised at such time by means of a “cashless exercise” in which the Holder
shall be entitled to receive a certificate for the number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where: 
  
 (A) = the Closing Price on the Trading Day preceding the date of such election; 
  
 (B) = the Exercise Price of the Warrants, as adjusted; and 
  
 (X) = the number of Warrant Shares issuable upon exercise of the Warrants in accordance with the terms of this Warrant.

  
 (e) Subject to the provisions of this Section
3, if after the first anniversary of the Effective Date the Closing Price for each of any thirteen consecutive Trading Days (the “Measurement Price”, which period shall not have commenced until after such anniversary date) exceeds
$7.50 (the “Threshold Price”), subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement, then the
Company may, on one occasion and within two Trading Days of such period, call for cancellation of all or any portion of this Warrant for which a Notice of Exercise has not yet been delivered (such right, a “Call”). To exercise this
right, the Company must deliver to the Holder an irrevocable written notice (a “Call Notice”), indicating therein the portion of unexercised portion of this Warrant to which such notice applies. If the conditions set forth below for
such Call are satisfied from the period from the date of the Call Notice through and including the Call Date (as defined below), then any portion of this Warrant subject to such Call Notice for which a Notice of Exercise shall not have been received
from and after the date of the Call Notice will be cancelled at 6:30 p.m. (New York City time) on the twentieth Trading Day after the date the Call Notice is received by the Holder (such date, the “Call Date”). Any unexercised
portion of this Warrant to which the Call Notice does not pertain will be unaffected by such Call Notice. In furtherance thereof, the Company covenants and agrees that it will honor all Notices of Exercise with respect to Warrant Shares subject to a
Call Notice that are tendered from the time of delivery of the Call Notice through 6:30 p.m. (New York City time) on the 

  

 4 







 
Call Date. The parties agree that any Notice of Exercise delivered following a Call Notice shall first reduce to zero the number of Warrant Shares subject to
such Call Notice prior to reducing the remaining Warrant Shares available for purchase under this Warrant. For example, if (x) this Warrant then permits the Holder to acquire 100 Warrant Shares, (y) a Call Notice pertains to 75 Warrant Shares, and
(z) prior to 6:30 p.m. (New York City time) on the Call Date the Holder tenders a Notice of Exercise in respect of 50 Warrant Shares, then (1) on the Call Date the right under this Warrant to acquire 25 Warrant Shares will be automatically
cancelled, (2) the Company, in the time and manner required under this Warrant, will have issued and delivered to the Holder 50 Warrant Shares in respect of the exercises following receipt of the Call Notice, and (3) the Holder may, until the
Termination Date, exercise this Warrant for 25 Warrant Shares (subject to adjustment as herein provided and subject to subsequent Call Notices). Subject again to the provisions of this Section 10, the Company may deliver subsequent Call Notices for
any portion of this Warrant for which the Holder shall not have delivered a Notice of Exercise. Notwithstanding anything to the contrary set forth in this Warrant, the Company may not deliver a Call Notice or require the cancellation of this Warrant
(and any Call Notice will be void), unless, from the beginning of the 13 consecutive Trading Days used to determine whether the Common Stock has achieved the Threshold Price through the Call Date, (i) the Company shall have honored in accordance
with the terms of this Warrant all Notices of Exercise delivered by 6:30 p.m. (New York City time) on the Call Date, (ii) the Registration Statement shall be effective as to all Warrant Shares and the prospectus thereunder available for use by the
Holder for the resale all such Warrant Shares and (iii) the Common Stock shall be listed or quoted for trading on the Trading Market. The Company’s right to Call the Warrant shall be exercised ratably among the Purchasers based on each
Purchaser’s initial purchase of Common Stock pursuant to the Purchase Agreement. 
  
 4. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share which Holder would otherwise be
entitled to purchase upon such exercise, the Company shall pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price. 
  
 5. Charges, Taxes and Expenses. Issuance of certificates for Warrant Shares shall be made without charge to the
Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such certificate, all of which taxes and expenses shall be paid by the Company, and such certificates shall be issued in the name of the Holder or in such
name or names as may be directed by the Holder; provided, however, that in the event certificates for Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by the Holder; and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. 
  

 5 







 6. Closing of Books. The Company will not close its stockholder books or records in any manner
which prevents the timely exercise of this Warrant, pursuant to the terms hereof. 
  
 7. Transfer, Division and Combination. 
  
 (a) Subject to compliance with any applicable securities laws and the conditions set forth in Sections 1 and 7(e) hereof and to the provisions of Section 4.1 of the Purchase Agreement, this Warrant and all rights
hereunder are transferable, in whole or in part, so long as the amount of Warrant Shares transferred is equal to at least 50,000 shares (on a as-exercised basis) upon surrender of this Warrant at the principal office of the Company, together with a
written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if
required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a
new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. A Warrant, if properly assigned, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant
issued. 
  
 (b) This Warrant may be divided or
combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or
attorney. Subject to compliance with Section 7(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or
combined in accordance with such notice. 
  
 (c)
The Company shall prepare, issue and deliver at its own expense (other than transfer taxes) the new Warrant or Warrants under this Section 7. 
  
 (d) The Company agrees to maintain, at its aforesaid office, books for the registration and the registration of transfer of the Warrants.

  
 (e) If, at the time of the surrender of this
Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not be registered pursuant to an effective registration statement under the Securities Act and under applicable state securities or blue sky laws, the
Company may require, as a condition of allowing such transfer (i) that the Holder or transferee of this Warrant, as the case may be, furnish to the Company a written opinion of counsel (which opinion shall be in form, substance and scope customary
for opinions of counsel in comparable transactions) to the effect that such transfer may be made without registration under the Securities Act and under applicable state securities or blue sky laws, (ii) that the holder or transferee execute and
deliver to the Company an investment letter in form and substance acceptable to the Company and (iii) that the transferee be an “accredited investor” as defined in Rule 501(a) promulgated under the Securities Act. 
  

 6 







 8. No Rights as Shareholder until Exercise. This Warrant does not entitle the Holder to any voting
rights or other rights as a shareholder of the Company prior to the exercise hereof. Upon the surrender of this Warrant and the payment of the aggregate Exercise Price (or by means of a cashless exercise), the Warrant Shares so purchased shall be
and be deemed to be issued to such Holder as the record owner of such shares as of the close of business on the later of the date of such surrender or payment. 
  

9. Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it and upon surrender and
cancellation of such Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate. 
  
 10. Saturdays, Sundays, Holidays, etc. If the last or appointed day
for the taking of any action or the expiration of any right required or granted herein shall be a Saturday, Sunday or a legal holiday, then such action may be taken or such right may be exercised on the next succeeding day not a Saturday, Sunday or
legal holiday. 
  
 11. Adjustments of Exercise Price and Number
of Warrant Shares. The number and kind of securities purchasable upon the exercise of this Warrant and the Exercise Price shall be subject to adjustment from time to time upon the happening of any of the following. In case the Company shall (i)
pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock to holders of its outstanding Common Stock, (ii) subdivide its outstanding shares of Common Stock into a greater number of shares, (iii) combine its
outstanding shares of Common Stock into a smaller number of shares of Common Stock, or (iv) issue any shares of its capital stock in a reclassification of the Common Stock, then the number of Warrant Shares purchasable upon exercise of this Warrant
immediately prior thereto shall be adjusted so that the Holder shall be entitled to receive the kind and number of Warrant Shares or other securities of the Company which it would have owned or have been entitled to receive had such Warrant been
exercised in advance thereof. Upon each such adjustment of the kind and number of Warrant Shares or other securities of the Company which are purchasable hereunder, the Holder shall thereafter be entitled to purchase the number of Warrant Shares or
other securities resulting from such adjustment at an Exercise Price per Warrant Share or other security obtained by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of Warrant Shares purchasable pursuant
hereto immediately prior to such adjustment and dividing by the number of Warrant Shares or other securities of the Company resulting from such adjustment. An adjustment made pursuant to this paragraph shall become effective immediately after the
effective date of such event retroactive to the record date, if any, for such event. 
  
 12. Reorganization, Reclassification, Merger, Consolidation or Disposition of Assets. In case the Company shall reorganize its capital, reclassify its capital stock, consolidate or merge with or into another
corporation (where the Company is not the surviving corporation or where there is a change in or distribution with respect to the Common Stock of the Company), or sell, transfer or otherwise dispose of all or substantially all its property, assets
or business to 

  

 7 







 
another corporation and, pursuant to the terms of such reorganization, reclassification, merger, consolidation or disposition of assets, shares of common
stock of the successor or acquiring corporation, or any cash, shares of stock or other securities or property of any nature whatsoever (including warrants or other subscription or purchase rights) in addition to or in lieu of common stock of the
successor or acquiring corporation (“Other Property”), are to be received by or distributed to the holders of Common Stock of the Company, then the Holder shall have the right thereafter to receive upon exercise of this Warrant, the
number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and Other Property receivable upon or as a result of such reorganization, reclassification, merger, consolidation or
disposition of assets by a Holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such event. In case of any such reorganization, reclassification, merger, consolidation or disposition of assets,
the successor or acquiring corporation (if other than the Company) shall expressly assume the due and punctual observance and performance of each and every covenant and condition of this Warrant to be performed and observed by the Company and all
the obligations and liabilities hereunder, subject to such modifications as may be deemed appropriate (as determined in good faith by resolution of the Board of Directors of the Company) in order to provide for adjustments of Warrant Shares for
which this Warrant is exercisable which shall be as nearly equivalent as practicable to the adjustments provided for in this Section 12. For purposes of this Section 12, “common stock of the successor or acquiring corporation” shall
include stock of such corporation of any class which is not preferred as to dividends or assets over any other class of stock of such corporation and which is not subject to redemption and shall also include any evidences of indebtedness, shares of
stock or other securities which are convertible into or exchangeable for any such stock, either immediately or upon the arrival of a specified date or the happening of a specified event and any warrants or other rights to subscribe for or purchase
any such stock. The foregoing provisions of this Section 12 shall similarly apply to successive reorganizations, reclassifications, mergers, consolidations or disposition of assets. 
  
 13. Voluntary Adjustment by the Company. The Company may at any time during the term of this Warrant reduce the then
current Exercise Price to any amount and for any period of time deemed appropriate by the Board of Directors of the Company. 
  
 14. Notice of Adjustment. Whenever the number of Warrant Shares or number or kind of securities or other property purchasable upon the exercise of
this Warrant or the Exercise Price is adjusted, as herein provided, the Company shall give notice thereof to the Holder, which notice shall state the number of Warrant Shares (and other securities or property) purchasable upon the exercise of this
Warrant and the Exercise Price of such Warrant Shares (and other securities or property) after such adjustment, setting forth a brief statement of the facts requiring such adjustment and setting forth the computation by which such adjustment was
made. 
  
 15. Notice of Corporate Action. If at any time:

  
 (a) the Company shall take a record of the
holders of its Common Stock for the purpose of entitling them to receive a dividend or other distribution, or any right to subscribe for or purchase any evidences of its indebtedness, any shares of stock of any class or any other securities or
property, or to receive any other right, or 
  

 8 







 (b) there shall be any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any consolidation or merger of the Company with, or any sale, transfer or other disposition of all or substantially all the property, assets or business of the Company to, another corporation
or, 
  
 (c) there shall be a voluntary or
involuntary dissolution, liquidation or winding up of the Company; 
  
 then, in
any one or more of such cases, the Company shall give to Holder (i) at least 15 days’ prior written notice of the date on which a record date shall be selected for such dividend, distribution or right or for determining rights to vote in
respect of any such reorganization, reclassification, merger, consolidation, sale, transfer, disposition, liquidation or winding up, and (ii) in the case of any such reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up, at least 15 days’ prior written notice of the date when the same shall take place. Such notice in accordance with the foregoing clause also shall specify (i) the date on which any such record
is to be taken for the purpose of such dividend, distribution or right, the date on which the holders of Common Stock shall be entitled to any such dividend, distribution or right, and the amount and character thereof, and (ii) the date on which any
such reorganization, reclassification, merger, consolidation, sale, transfer, disposition, dissolution, liquidation or winding up is to take place and the time, if any such time is to be fixed, as of which the holders of Common Stock shall be
entitled to exchange their Warrant Shares for securities or other property deliverable upon such disposition, dissolution, liquidation or winding up. Each such written notice shall be sufficiently given if addressed to Holder at the last address of
Holder appearing on the books of the Company and delivered in accordance with Section 17(d). Failure to provide such notice shall not affect the validity of any action taken in connection with such dividend, distribution, subscription or purchase
rights, or proposed reorganization, reclassification, recapitalization, merger, consolidation, sale, transfer, disposition, conveyance, dissolution, liquidation or winding up. 
  
 16. Authorized Shares. The Company covenants that during the period the Warrant is outstanding, it will reserve from
its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant
shall constitute full authority to its officers who are charged with the duty of executing stock certificates to execute and issue the necessary certificates for the Warrant Shares upon the exercise of the purchase rights under this Warrant. The
Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the
Common Stock may be listed. 
  
 Except and to the extent as
waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such
actions as may be 

  

 9 







 
necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing,
the Company will (a) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (b) take all such action as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant, and (c) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory
body having jurisdiction thereof as may be necessary to enable the Company to perform its obligations under this Warrant. 
  
 Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise
Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof. 
  
 17. Miscellaneous. 
  
 (a) Jurisdiction. This Warrant shall constitute a
contract under the laws of New York, without regard to its conflict of law, principles or rules. 
  
 (b) Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered,
will have restrictions upon resale imposed by state and federal securities laws. 
  
 (c) Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder
shall operate as a waiver of such right or otherwise prejudice Holder’s rights, powers or remedies, notwithstanding all rights hereunder terminate on the Termination Date. If the Company willfully and knowingly fails to comply with any
provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees,
including those of appellate proceedings, incurred by Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder. 
  
 (d) Notices. Any notice, request or other document required or permitted to be given or delivered to
the Holder by the Company shall be delivered in accordance with the notice provisions of the Purchase Agreement; provided upon any permitted assignment of this Warrant, the assignee shall promptly provide the Company with its contact information.

  
 (e) Limitation of Liability. No
provision hereof, in the absence of any affirmative action by Holder to exercise this Warrant or purchase Warrant Shares, and no enumeration herein of the rights or privileges of Holder, shall give rise to any liability of Holder for the purchase
price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company. 
  

 10 







 (f) Remedies. Holder, in addition to being entitled to exercise all rights granted
by law, including recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Warrant and hereby agrees to waive the defense in any action for specific performance that a remedy at law would be adequate. 
  
 (g) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of all Holders from time to time of this Warrant
and shall be enforceable by any such Holder or holder of Warrant Shares. 
  
 (h) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder. 
  
 (i) Severability. Wherever possible, each provision of this Warrant shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of this Warrant. 
  
 (j) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant. 
  
 ******************** 
  

 11 







 IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly
authorized. 
  
 Dated: January     , 2004 

 

	CORTEX PHARMACEUTICALS, INC.
		
	 By:
	 	  


	 	 	 Name:

	 	 	 Title:



  

 12 







 NOTICE OF EXERCISE 
  
 To: Cortex Pharmaceuticals, Inc. 
  
 (1) The undersigned hereby elects to purchase              Warrant Shares of Cortex
Pharmaceuticals, Inc. pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any. 
  
 (2) Payment shall take the form of (check applicable box): 
  
  ̈ in lawful money of the United States; or 
  
  ̈ the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in
subsection 3(d), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 3(d). 
  
 (3) Please issue a certificate or certificates representing said Warrant Shares in the name of the undersigned or in such
other name as is specified below: 
  

	
	  	 

  
 The Warrant Shares shall be delivered
to the following: 
  

		
	
	  	 
		
	
	  	 
		
	
	  	 

  
 (4) Accredited
Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended. 
  

	 [PURCHASER]

		
	 By:
	 	  


	 	 	 Name:

	 	 	 Title:




		
	 Dated:
	 	  










 ASSIGNMENT FORM 
  
 (To assign the foregoing warrant, execute 
 this form and supply required information. 
 Do not use this form to exercise the warrant.) 
  
 FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby
are hereby assigned to 
  
 ______________________________________________whose
address is 
  
 _________________________________________________________________________. 
  
  

_________________________________________________________________________ 
  
 Dated:                     ,
             
  
 Holder’s Signature:     ____________________ 
  
 Holder’s Address:       ____________________ 
  
 ____________________ 
  
 Signature Guaranteed:    _______________________________ 
  
 NOTE: The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change
whatsoever, and must be guaranteed by a bank or trust company. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant. 






 CALL NOTICE 
  
 (To be delivered upon exercise of a Call) 
  
 Subject to the terms of the Warrant certificate, Cortex Pharmaceuticals, Inc., by signature of its authorized representative
below, hereby elects to exercise its right to Call the Warrant, as more particularly described in Section 3(e) of the Warrant Certificate, as to     % of the Warrant effective
                    , 200    , which shall be deemed the Call Date. 
  

	 Dated:
	 	  

	  	 Cortex Pharmaceuticals, Inc.

				
	 	 	 	  	 By:
	 	  


	 	 	 	  	 Its: