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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
Current
Report
Pursuant
to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): January 30, 2024
RESPIRERX
PHARMACEUTICALS INC.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
1-16467 |
|
33-0303583 |
(State
or other jurisdiction
of
incorporation) |
|
(Commission
File
Number) |
|
(I.R.S
Employer
Identification
No.) |
126
Valley Road, Suite C
Glen
Rock, New Jersey |
|
07452 |
| (Address
of principal executive offices) |
|
(Zip
Code) |
Registrant’s
telephone number, including area code: (201) 444-4947
(Former
name or former address, if changed since last report.)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
| ☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| |
|
| ☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| |
|
| ☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| |
|
| ☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
| Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
| N/A |
|
N/A |
|
N/A |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
1.01 Entry into a Material Definitive Agreement.
Debt
Settlement Agreements and related Amended and Restated Notes
Debt
Settlement Agreements
On
January 30, 2024, RespireRx Pharmaceuticals Inc. (“RespireRx” or the “Company” and an institutional investor
entered into three substantially similar debt settlement agreements (individually, each a “Debt Settlement Agreement” and
collectively, the “Debt Settlement Agreements”) that related to the assignment of three notes held by Dr. James Manuso, a
former Chief Executive Officer and a former President of the Company (“Former Officer Notes”) to the institutional investor,
which Former Officer Notes, in the aggregate, inclusive of principal and accrued unpaid, as of September 30, 2023, totaled $242,628
and which continued to accrue interest through January 30, 2024. The Debt Settlement Agreements occurred on the same date that Dr. Manuso
assigned his notes to the institutional investor.
The
Debt Settlement Agreements were related to the Former Officer Notes with an aggregate original principal amount of $127,600.
Each
of the Debt Settlement Agreements related to one Former Officer Note.
The
Debt Settlement Agreements are summarized in the table below:
| Date of Former Officer Note (on or about) | |
Original Principal Amount | | |
Amended and Restated Convertible Note included Principal | | |
Amended and Restated Convertible Note included Interest | | |
Total of Amended and Restated Convertible Note dated January 30, 2024, due January 30, 2025 | |
| | |
| | |
| | |
| | |
| |
| February 2, 2016 | |
$ | 52,600 | | |
$ | 52,600 | | |
$ | 32,900 | | |
$ | 85,500 | |
| September 22, 2016 | |
$ | 25,000 | | |
$ | 25,000 | | |
$ | 15,500 | | |
$ | 40,500 | |
| April 10, 2018 | |
$ | 50,000 | | |
$ | 50,000 | | |
$ | 4,000 | | |
$ | 54,000 | |
| | |
| | | |
| | | |
| | | |
| | |
| Total | |
$ | 127,600 | | |
$ | 127,600 | | |
$ | 52,400 | | |
$ | 180,000 | |
The
holder (“Holder”) will forgive any remaining accrued interest, penalties and defaults.
The
Holder will renounce its rights to any collateral related to the Former Officer Notes.
No
additional consideration will be paid by the Holder, RespireRx, or any third party with respect to the transactions associated with each
Debt Settlement Agreement.
Amended
and Restated Convertible Notes
On
January 30, 2024, the Company entered into three substantially similar Amended and Restated Convertible Notes (each an “Amended
and Restated Note” and collectively, the “Amended and Restated Notes”) that replaced in the entirety, the Former Officer
Notes. The issue date and the maturity date of each Amended and Restated Note are January 30, 2024 and January 30, 2025, respectively.
The Amended and Restated Notes amend and restate each of the Former Officer Notes it their entirety and releases and removes any collateral,
lien, security or other interests in such notes. The Amended and Restated Notes are the same in all material respects except as to amounts
of each Amended and Restated Note and the reference to which Former Officer Note each amends and restates.
The
amount of each Amended and Restated Note and the aggregate amount of all such notes appears in the table above.
Each
of the Amended and Restated Notes contains a restrictive legend indicating that the note and the shares into which the Amended and Restated
Note may convert have not been registered under the Securities Act of 1933 (the “Act”), as amended, or any state securities
laws. The Amended and Restated Notes and the shares into which they may convert may not be sold, offered for sale, pledged or hypothecated
in the absence of an effective registration statement under the Act and any applicable state securities laws or an opinion of counsel
(which counsel shall be selected by Holder), in a generally acceptable form that registration is not required under the Act.
The
coupon interest rate of each of the Amended and Restated Notes is zero percent (0%).
Payment
of the aggregate principal amount outstanding under the Amended and Restated Notes together with all accrued interest thereon shall be
made on the Maturity Date if not earlier paid.
The
Amended and Restated Notes have an optional conversion feature pursuant to which the Holder has the right, but not the obligation, at
any time until the maturity date, or thereafter in the event of default, as defined in each Amended and Restated Note, to convert all
or any portion of the principal amount, accrued interest and fees due and payable into fully paid and nonassessable shares of the Company’s
common stock (“Common Stock”), par value $0.001 at the conversion price of $0.0015 per share of Common Stock. The conversion
price shall be subject to adjustment only for splits, reverse splits, Common Stock dividends and similar recapitalizations, but shall
not be subject to any other anti-dilution protections, including but not limited to dilution due to financings. The Amended and Restated
Notes also contain “blocker provisions” prohibiting, with certain exceptions, the Holder from converting an amount that would
result in ownership in excess of 4.99% of the outstanding shares of Common Stock of the Company. RespireRx has represented that upon
issuance, the shares issued upon conversion will be duly and validly issued, fully paid and non-assessable. The Company is also required
to reserve from its authorized and unissued shares of Common Stock a sufficient number of shares to provide for the issuance of the conversion
shares which initially shall be an aggregate of 120,000,000 shares of Common Stock. The Amended and Restated Notes describe a number
of events of default. In the case of a default, the interest rate shall automatically be raised to 18% per annum, effective as of the
date of default and conversion privileges shall remain in effect. A default amount equal to 25% of the then outstanding principal plus
accrued but unpaid interest, including any default interest and all other fees then remaining unpaid and all other amounts payable is
then to be added to the total amount outstanding.
The
Amended and Restated Notes 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.
The
above are summaries of what the Company believes are the key provisions of the Debt Settlement Agreements and the Amended and
Restated Notes. A copy of the entirety of each is filed as Exhibits 10.1-10.6 to this Current Report on Form 8-K. The above summary is
qualified in its entirety by this Current Report on Form 8-K including the copies of the Debt Settlement Agreements and the Amended and
Restated Notes between RespireRx Pharmaceuticals Inc. and the institutional investor dated January 30, 2024 filed as Exhibits
10.1-10.6 to such report.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits.
A
list of exhibits that are filed as part of this report is set forth in the Exhibit Index, which follows, and is incorporated herein by
reference.
EXHIBIT
INDEX
| Exhibit
Number |
|
Exhibit
Description |
| 10.1* |
|
Debt Settlement Agreement in the amount of $85,500 dated January 30, 2024 related to Former Officer Noted dated on or about February 2, 2016 |
| 10.2* |
|
Debt Settlement Agreement in the amount of $40,500 dated January 30, 2024 related to Former Officer Noted dated on or about September 22, 2016 |
| 10.3* |
|
Debt Settlement Agreement in the amount of $54,000 dated January 30, 2024 related to Former Officer Noted dated on or about April 10, 2018 |
| 10.4* |
|
Amended and Restated Convertible Note due January 30, 2025 in the amount of $85,500 between RespireRx Pharmaceuticals Inc. and one Institutional Investor |
| 10.5* |
|
Amended and Restated Convertible Note due January 30, 2025 in the amount of $40,500 between RespireRx Pharmaceuticals Inc. and one Institutional Investor |
| 10.6* |
|
Amended and Restated Convertible Note due January 30, 2025 in the amount of $54,000 between RespireRx Pharmaceuticals Inc. and one Institutional Investor |
| 104 |
|
Cover
Page Interactive Data File (embedded within the Inline XBRL document) |
*
Filed herewith.
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
| Date:
February 2, 2024 |
RESPIRERX
PHARMACEUTICALS INC. |
| |
(Registrant) |
| |
|
| |
By: |
/s/
Jeff E. Margolis |
| |
|
Jeff
E. Margolis |
| |
|
SVP,
CFO, Secretary and Treasurer |
Exhibit
10.1
DEBT
SETTLEMENT AGREEMENT
This
DEBT SETTLEMENT AGREEMENT (the “Agreement”), is made this 30th day of January 2024, by and between RespireRx Pharmaceuticals
Inc (“Borrower”), and [xxx] (“Holder”):
WHEREAS,
the Borrower issued a Promissory Note to James S. Manuso on or about February 2, 2016 in the principal amount of $52,600 (the “Note”),
as evidenced by the Promissory Note attached hereto as Exhibit A.
WHEREAS,
the entire principal amount of the Promissory Note and all accrued interest thereon remains outstanding as of the date hereof.
WHEREAS
the Holder acquired the Note from James S Manuso on January 30, 2024, as evidenced the Assignment Agreement attached hereto as Exhibit
B.
NOW,
THEREFORE, in consideration of these premises and the mutual agreements contained in this Agreement, the parties hereto, intending to
be legally bound, hereby agree as follows:
| |
1. |
Borrower
will issue an Amended and Restated Convertible Promissory Note to the Holder in the principal amount of $85,500 (the “Amended
Note”). The $85,500 includes the original $52,600 principal plus $32,900 in accrued interest. The Amended Note shall be convertible
at a fixed price of $0.0015 per share. |
| |
|
|
| |
2. |
Holder
will forgive any remaining accrued interest, penalties and defaults. |
| |
|
|
| |
3. |
Holder
will renounce its rights to any collateral related to the Note. |
| |
|
|
| |
4. |
No
additional consideration will be paid to the Holder, Borrower, or any third party with respect to these tranasactions. |
IN
WITNESS WHEREOF, the Assignor has executed this agreement on the date first stated above.
| [xxx] |
|
| |
|
|
| By: |
/s/ [xxx] |
|
| Name: |
[xxx] |
|
| RespireRx
Pharmaceuticals Inc. |
|
| |
|
| By: |
/s/
Jeff Eliot Margolis |
|
| Name:
|
Jeff
Eliot Margolis |
|
| Title:
|
SVP,
CFO, Treasurer, Secretary |
|
Exhibit
10.2
DEBT
SETTLEMENT AGREEMENT
This
DEBT SETTLEMENT AGREEMENT (the “Agreement”), is made this 30th day of January 2024, by and between RespireRx Pharmaceuticals
Inc (“Borrower”), and [xxx] (“Holder”):
WHEREAS,
the Borrower issued a Promissory Note to James S. Manuso on or about September 22, 2016 in the principal amount of $25,000 (the “Note”),
as evidenced by the Promissory Note attached hereto as Exhibit A.
WHEREAS,
the entire principal amount of the Promissory Note and all accrued interest thereon remains outstanding as of the date hereof.
WHEREAS
the Holder acquired the Note from James S Manuso on January 30, 2024, as evidenced the Assignment Agreement attached hereto as Exhibit
B.
NOW,
THEREFORE, in consideration of these premises and the mutual agreements contained in this Agreement, the parties hereto, intending to
be legally bound, hereby agree as follows:
| |
1. |
Borrower
will issue an Amended and Restated Convertible Promissory Note to the Holder in the principal amount of $40,500 (the “Amended
Note”). The $40,500 includes the original $25,000 principal plus $15,500 in accrued interest. The Amended Note shall be convertible
at a fixed price of $0.0015 per share. |
| |
|
|
| |
2. |
Holder
will forgive any remaining accrued interest, penalties and defaults. |
| |
|
|
| |
3. |
Holder
will renounce its rights to any collateral related to the Note. |
| |
|
|
| |
4. |
No
additional consideration will be paid to the Holder, Borrower, or any third party with respect to these tranasactions. |
IN
WITNESS WHEREOF, the Assignor has executed this agreement on the date first stated above.
| [xxx] |
|
| |
|
|
| By: |
/s/
[xxx] |
|
| Name: |
[xxx] |
|
| RespireRx
Pharmaceuticals Inc. |
|
| |
|
| By: |
/s/
Jeff Eliot Margolis |
|
| Name:
|
Jeff
Eliot Margolis |
|
| Title:
|
SVP,
CFO, Treasurer, Secretary |
|
Exhibit
10.3
DEBT
SETTLEMENT AGREEMENT
This
DEBT SETTLEMENT AGREEMENT (the “Agreement”), is made this 30th day of January 2024, by and between RespireRx Pharmaceuticals
Inc (“Borrower”), and [xxx] (“Holder”):
WHEREAS,
the Borrower issued a Promissory Note to James S. Manuso on or about April 10, 2018 in the principal amount of $50,000 (the “Note”),
as evidenced by the Promissory Note attached hereto as Exhibit A.
WHEREAS,
the entire principal amount of the Promissory Note and all accrued interest thereon remains outstanding as of the date hereof.
WHEREAS
the Holder acquired the Note from James S Manuso on January 30, 2024, as evidenced the Assignment Agreement attached hereto as Exhibit
B.
NOW,
THEREFORE, in consideration of these premises and the mutual agreements contained in this Agreement, the parties hereto, intending to
be legally bound, hereby agree as follows:
| |
1.
|
Borrower
will issue an Amended and Restated Convertible Promissory Note to the Holder in the principal amount of $54,000 (the “Amended
Note”). The $54,000 includes the original $50,000 principal plus $4,000 in accrued interest. The Amended Note shall be convertible
at a fixed price of $0.0015 per share. |
| |
|
|
| |
2.
|
Holder
will forgive any remaining accrued interest, penalties and defaults. |
| |
|
|
| |
3.
|
Holder
will renounce its rights to any collateral related to the Note. |
| |
|
|
| |
4.
|
No
additional consideration will be paid to the Holder, Borrower, or any third party with respect to these tranasactions. |
IN
WITNESS WHEREOF, the Assignor has executed this agreement on the date first stated above.
| [xxx] |
|
| |
|
|
| By: |
/s/
[xxx] |
|
| Name:
|
|
|
| RespireRx Pharmaceuticals Inc. |
|
| |
|
|
| By: |
/s/
Jeff Eliot Margolis |
|
| Name:
|
Jeff
Eliot Margolis |
|
| Title:
|
SVP,
CFO, Treasurer, Secretary |
|
Exhibit
10.4
THIS
NOTE AND THE CONVERSION SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THIS
NOTE AND THE CONVERSION SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THIS NOTE AND THE CONVERSION SHARES UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL
(WHICH COUNSEL SHALL BE SELECTED BY HOLDER), IN A GENERALLY ACCEPTABLE FORM THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
| Issue Date: January 30, 2024 |
$85,500.00 |
RESPIRERX
PHARMACEUTICALS INC
AMENDED
AND RESTATED CONVERTIBLE NOTE
DUE
JANUARY 30, 2025
FOR
VALUE RECEIVED, RespireRx Pharmaceuticals Inc. a Delaware corporation (the “Borrower” or the “Company”),
promises to pay to [xxx] (the “Holder”) or its registered assigns or successors in interest, the sum of Eighty-Five
Thousand Five Hundred Dollars and no cents ($85,500.00), together with all accrued interest and other amounts due thereon, on January
30, 2025 (the “Maturity Date”), if not sooner paid.
WHEREAS,
the note that this note amends and restates was originally issued to James S. Manuso on February 2, 2016, (as amended from time to time,
the “Original Note”), and was subsequently sold to [xxx] on the date hereof.
WHEREAS,
this Amended and Restated Note, as defined below, amends and restates the Original Note in its entirety and releases and removes any
collateral, lien, security or similar interests in the Original Note.
The
following terms and conditions shall apply to this 0% Convertible Note due January 30, 2025 (the “Amended and Restated Note”):
ARTICLE
I
INTEREST
& AMORTIZATION
1.1
Contract Rate. Subject to Section 4.1 hereof, interest payable on this Amended and Restated Note shall accrue at a rate per annum
equal to zero percent (0%) and shall be computed on the basis of a 365-day year.
1.2
Payments. Payment of the aggregate principal amount outstanding under this Amended and Restated Note (the “Principal
Amount”), together with all accrued interest thereon shall be made on the Maturity Date if not earlier paid.
ARTICLE
II
CONVERSION
REPAYMENT
2.1 Optional
Conversion. Subject to the terms of this Article II, the Holder shall have the right, but not the obligation, at any time until the
Maturity Date, or thereafter during an Event of Default, to convert all or any portion of the outstanding Principal Amount, accrued interest
and fees due and payable thereon into fully paid and nonassessable shares of Common Stock, par value $0.001 of the Borrower (the “Common
Stock”) at the Conversion Price (as defined below). The shares of Common Stock to be issued upon such conversion are herein
referred to as the “Conversion Shares.”
2.2 Calculation
of Conversion Price. The conversion price (the “Conversion Price”) shall be $0.0015 and shall be subject to adjustment
only for splits, reverse splits, Common Stock dividends and similar recapitalizations, but shall not be subject to any other anti-dilution
protections, including but not limited to dilution due to financings.
2.3 Conversion
Limitation. Notwithstanding anything contained herein to the contrary, the Holder shall not be entitled to convert pursuant to the
terms of this Amended and Restated Note an amount that would be convertible into that number of Conversion Shares which would exceed
the difference between the number of shares of Common Stock beneficially owned by such Holder and 4.99% of the outstanding shares of
Common Stock of Borrower. 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 conversion of this Amended and Restated Note 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) conversion of the remaining, nonconverted portion of this Amended and Restated Note 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 notes) 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, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended.
To the extent that the limitation contained in this Section applies, the determination of whether this Amended and Restated Note is convertible
(in relation to other securities owned by the Holder) and of which a portion of this Amended and Restated Note is convertible shall be
in the sole discretion of such Holder. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company
each time it delivers a notice of conversion (“Notice of Conversion”) substantially in the form attached hereto as
Appendix A, that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no
obligation to verify or confirm the accuracy of such determination. For purposes of this Section 2.3, 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 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 Common Stock shall be determined after giving effect
to the conversion or exercise of securities of the Company, including this Amended and Restated Note, 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 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 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).
2.4
Mechanics of Holder’s Conversion. Subject to Section 2.2, this Amended and Restated Note may be converted by the Holder
in part from time to time after the Issue Date, by submitting to the Borrower a Notice of Conversion (whether by facsimile, as a Portable
Document (PDF) file sent by electronic mail or other reasonable means of communication dispatched on the Conversion Date prior to 8:00
p.m., New York, New York time). On each Conversion Date (as hereinafter defined) and in accordance with its Notice of Conversion, the
Holder shall make the appropriate reduction to the Principal Amount, accrued interest and fees as entered in its records and shall provide
written notice thereof to the Borrower on the Conversion Date. Each date on which a Notice of Conversion is delivered or telecopied to
Borrower in accordance with the provisions hereof shall be deemed a Conversion Date (the “Conversion Date”). A form
of Notice of Conversion to be employed by the Holder is annexed hereto as Exhibit A. Pursuant to the terms of the Notice of Conversion,
Borrower will issue instructions to the transfer agent within two (2) business days of the Conversion Date accompanied by an opinion
of counsel to Borrower of the Notice of Conversion and shall cause the transfer agent to transmit the certificates representing the Conversion
Shares to the Holder by physical delivery or crediting the account of the Holder’s designated broker with the Depository Trust
Corporation (“DTC”) through its Deposit Withdrawal Agent Commission (“DWAC”) system within
five (5) business days after receipt by Borrower of the Notice of Conversion (the “Delivery Date”). In the case of
the exercise of the conversion rights set forth herein, the conversion privilege shall be deemed to have been exercised, and the Conversion
Shares issuable upon such conversion shall be deemed to have been issued, upon the date of receipt by Borrower of the Notice of Conversion.
The Holder shall be treated for all purposes as the record holder of such Common Stock, unless the Holder provides Borrower written instructions
to the contrary.
2.5 Late
Notices. The Borrower understands that a delay in the delivery of the instructions to the transfer agent during the timeframe required
pursuant to this Article that results in a delay of the Conversion Shares beyond the Delivery Date could result in economic loss to the
Holder. As compensation to the Holder for such loss, the Borrower agrees to pay late fees to the Holder for the late issuance of such
transfer agent instructions an additional amount equal to $500.00 per day commencing on the third day of the Conversion Date. The Borrower
shall pay any fees incurred under this Section, in addition to any amounts due hereunder, in immediately available funds upon demand
and such fees shall also be eligible to be converted into Conversion Shares as set forth in this Article II.
2.6 Conversion
Mechanics. The number of shares of Common Stock to be issued upon each conversion of this Amended and Restated Note shall be determined
by dividing that portion of the Principal Amount and interest and fees to be converted, if any, by the then applicable Conversion Price.
2.7 Issuance
of New Note. The unconverted principal and any unconverted accrued and unpaid interest shall represent an automatic adjustment to
this Amended and Restated Note without causing the need to issue a further amended and restated note. Although not required to be requested
by the Holder, upon any partial conversion of this Amended and Restated Note, a new note (“New Note”) containing the
same date and provisions of this Amended and Restated Note shall, at the request of the Holder, be issued by the Borrower to the Holder
for the principal balance of the New Note and interest which shall not have been converted or paid. Subject to the provisions of Article
III, the Borrower will pay no costs, fees or any other consideration to the Holder for the production and issuance of a New Note.
2.8 Authorized
and Reserved Shares. The Borrower represents that upon issuance, the Conversion Shares will be duly and validly issued, fully paid
and non-assessable. The Borrower agrees that its issuance of this Amended and Restated Note shall constitute full authority to its officers
and agents who are charged with the duty of executing stock certificates to execute and issue the necessary certificates for shares of
Common Stock in accordance with the terms and conditions of this Amended and Restated Note. At all times during which this Amended and
Restated Note is outstanding, the Borrower shall reserve from its authorized and unissued shares of Common Stock a sufficient number
of shares to provide for the issuance of the Conversion Shares. Initially the Borrower shall reserve 57,000,000 Shares for conversion
of this Amended and Restated Note.
2.9 Fractional
Shares. No fractional shares shall be issued upon the conversion of this Amended and Restated Note. As to any fraction of a share
which Holder would otherwise be entitled to upon such conversion, the Borrower shall round up to the next whole share.
ARTICLE
III
EVENTS
OF DEFAULT
The
occurrence of any of the following events set forth in Sections 3.1 through 3.14, inclusive, shall be an “Event of Default”:
3.1 Failure
to Pay Principal, Interest or Other Fees. Borrower fails to pay principal, interest or other fees hereon and such failure shall continue
for a period of five (5) days following the date upon which any such payment was due.
3.2 Breach
of Covenant. Borrower breaches any covenant or other term or condition of this Note in any material respect and such breach, if subject
to cure, continues for a period of five (5) days after the occurrence thereof.
3.3 Breach
of Representations and Warranties. Any representation or warranty of Borrower made herein shall be false or misleading in any material
respect.
3.4 SEC
Filings. Borrower fails to timely file, when due, a post-effective amendment to a Form S-1 Registration Statement or SEC report (e.g.,
Forms 8-K, 10-Q or 10-K, or Schedules 14A, 14C or 14(f)).
3.5 Stop
Trade. An SEC stop trade order or Principal Market trading suspension of the Common Stock shall be in effect for five (5) consecutive
days or five (5) days during a period of 10 consecutive days, provided that Borrower shall not have been able to cure such trading suspension
within 30 days of the notice thereof or list the Common Stock on another Principal Market within 60 days of such notice. The “Principal
Market” for the Common Stock shall include the OTC Pink Market, the OTC QB, the OTC QX, NASDAQ Capital Market, NASDAQ Global Market,
NASDAQ Global Select Market, NYSE Amex, or New York Stock Exchange (whichever of the foregoing is at the time the principal trading exchange
or market for the Common Stock), or any securities exchange or other securities market on which the Common Stock is then being listed
or traded.
3.6 Failure
to Deliver Common Stock or Replacement Note. Except in the event Borrower does not have a sufficient number of shares of Common Stock
authorized but unissued upon a conversion hereunder, Borrower’s failure to timely deliver Common Stock to the Holder pursuant to
and in the form required by this Amended and Restated Note, if such failure to timely deliver Common Stock shall not be cured within
five (5) days. If Borrower is required to issue a replacement Amended and Restated Note to Holder and Borrower shall fail to deliver
such replacement Amended and Restated Note within seven (7) Business Days.
3.7 DTC
Eligibility. The Borrower shall lose its status as “DTC Eligible” or the Borrower’s shareholders shall lose the
ability to deposit (either electronically or by physical certificates, or otherwise) shares into the DTC System.
3.8 Transfer Agent Fees. Failure of the Borrower to maintain a Transfer Agent of record.
ARTICLE
IV
DEFAULT
RELATED PROVISIONS AND OTHER PRIVILEGES
4.1 Default
Interest Rate. Following the occurrence and during the continuance of an Event of Default, interest on this Amended and Restated
Note shall automatically be 18% per annum, effective as of the date of the Event of Default, which interest shall be payable in cash
or Common Stock, at the option of the Borrower.
4.2 Conversion
Privileges. The conversion privileges set forth in Article II shall remain in full force and effect immediately from the date hereof
and until this Amended and Restated Note is paid in full.
4.3 Cumulative
Remedies. The remedies under this Amended and Restated Note shall be cumulative.
4.4 Default
Amount. If an Event of Default occurs and is continuing beyond any applicable grace period, the Holder, at its option, may elect,
in addition to all rights and remedies of Holder to require the Borrower to add a default amount to then outstanding principal amount
of the Amended and Restated Note plus accrued but unpaid interest, including any default interest, and all other fees then remaining
unpaid, and all other amounts payable (“Default Amount”). The Default Payment shall be the then outstanding principal
amount of the Amended and Restated Note plus accrued but unpaid interest, including any default interest, and all other fees then remaining
unpaid, and all other amounts payable hereunder multiplied by 25% and which amount shall be added to the then outstanding principal amount
of the Amended and Restated Note plus accrued but unpaid interest, including any default interest, and all other fees then remaining
unpaid, and all other amounts payable. The sum of the then outstanding principal amount of the Amended and Restated Note plus accrued
but unpaid interest, including any default interest, and all other fees then remaining unpaid, and all other amounts payable and the
Default Amount shall be default payment amount and shall be the entire amount due and payable. The Default Payment shall be applied first
to any fees due and payable to Holder pursuant to the Amended and Restated Note, then to accrued and unpaid interest due on the Amended
and Restated Note and then to outstanding principal balance of the Note.
4.5 Default
Payment Date. The Default Payment shall be due and payable immediately on the date that the Holder has exercised its rights pursuant
to Section 4.1 hereof.
ARTICLE
V
MISCELLANEOUS
5.1 Failure
or Indulgence Not Waiver. No failure or delay on the part of the Holder hereof in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege. All rights and remedies existing hereunder are cumulative to, and not exclusive
of, any rights or remedies otherwise available.
5.2
Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be
in writing and, unless otherwise specified herein, shall be transmitted by mail, hand delivery, telegram, emails or facsimile, addressed
as set forth below. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon
hand delivery or delivery by email or facsimile, with accurate confirmation generated by the transmitting facsimile machine, at the address
or number designated below (if delivered on a business day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a business day during normal business hours where such notice
is to be received) or (b) on the next business day following the date of mailing by express courier service, fully prepaid, addressed
to such address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for such communications shall be:
If
to the Borrower, to:
RespireRx
Pharmaceuticals Inc.
126
Valley Road Suite C
Glen
Rock, NJ 07452
jmargolis@respirerx.com
If
to the Holder:
[xxx]
[xxx]
No
change in any of such addresses shall be effective insofar as notices under this Section 5.2 are concerned unless such changed address
is located in the United States of America and notice of such change shall have been given to such other party hereto as provided in
this Section 5.2.
5.3 Amendment
Provision. Any term of this Amended and Restated Note may be amended only with the written consent of the Holder and the Borrower.
The term “Amended and Restated Note” and all reference thereto, as used throughout this instrument, shall mean this instrument
as originally executed as of the effective date, or if later amended or supplemented, then as so amended or supplemented, and any successor
instrument as it may be amended or supplemented.
5.4 Assignability.
This Amended and Restated Note shall be binding upon the Borrower and its successors and assigns, and shall inure to the benefit of the
Holder and its successors and assigns, and may not be assigned by the Borrower without the prior written consent of the Holder, which
consent may not be unreasonably withheld.
55 Prevailing
Party and Costs. In the event any attorney is employed by any party with regard to any legal or equitable action, arbitration or
other proceeding brought by such party for the enforcement of this Amended and Restated Note or because of an alleged dispute, breach,
default or misrepresentation in connection with any of the provisions of this Amended and Restated Note, the prevailing party in such
proceeding will be entitled to recover from the other party reasonable attorneys’ fees and other costs and expenses incurred, in
addition to any other relief to which the prevailing party may be entitled.
5.6 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Amended and Restated Note 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 any of the transaction documents (whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, employees or agents) shall be commenced in the State of New York (the “NY Courts”).
Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the NY Courts 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, or such NY Courts are improper or inconvenient venue for
such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit,
action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to
such party at the address in effect for notices to it under this Amended and Restated Note 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 Amended and Restated Note or the transactions
contemplated hereby. If either party shall commence an action or proceeding to enforce any provisions of this Amended and Restated Note,
then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorney fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
5.7 Maximum
Payments. Nothing contained herein shall be deemed to establish or require the payment of a rate of interest or other charges in
excess of the maximum permitted by applicable law. In the event that the rate of interest required to be paid or other charges hereunder
exceed the maximum permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by Borrower to
the Holder and thus refunded to the Borrower.
5.8 Construction.
Borrower stipulates that the rule of construction that ambiguities are to be resolved against the drafting party shall not be applied
in the interpretation of this Amended and Restated Note to favor any party against the other.
IN
WITNESS WHEREOF, Borrower has caused this Amended and Restated Note to be signed in its name effective as of the 30th
day of January, 2024
| |
BORROWER: |
| |
|
|
| |
RespireRx
Pharmaceuticals Inc. |
| |
|
| |
By: |
/s/
Jeff Eliot Margolis |
| |
Name:
|
Jeff
Eliot Margolis |
| |
Title:
|
SVP,
CFO, Treasurer, Secretary |
APPENDIX
A
Notice
of Conversion
(To
be executed by the Holder in order to convert all or part of the convertible promissory note between [xxx] and RespireRx Pharmaceuticals
Inc. into Common Stock)
RespireRx
Pharmaceuticals Inc.
126
Valley Road, Suite C
Glen
Rock, NJ 07452
The
undersigned hereby converts $____ of the principal due under the Amended and Restated Convertible Note issued by RespireRx Pharmaceuticals
Inc. (Borrower) dated as of January 30, 2024 by delivery of Common Stock of Borrower on and subject to the conditions set forth in such
Note. Whereas the Note was originally issued to James S Manuso, and [xxx] acquired the Note on January 30, 2024
| 1. |
Date
of Conversion |
_______ |
| 2. |
Shares
To Be Delivered: |
_______ |
| 3. |
Price
of Conversion: |
$0.0015 |
Exhibit
10.5
THIS
NOTE AND THE CONVERSION SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THIS
NOTE AND THE CONVERSION SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THIS NOTE AND THE CONVERSION SHARES UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL
(WHICH COUNSEL SHALL BE SELECTED BY HOLDER), IN A GENERALLY ACCEPTABLE FORM THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
| Issue
Date: January 30, 2024 |
$40,500.00 |
RESPIRERX
PHARMACEUTICALS INC
AMENDED
AND RESTATED CONVERTIBLE NOTE
DUE
JANUARY 30, 2025
FOR
VALUE RECEIVED, RespireRx Pharmaceuticals Inc. a Delaware corporation (the “Borrower” or the “Company”),
promises to pay to [xxx] (the “Holder”) or its registered assigns or successors in interest, the sum of Forty Thousand
Five Hundred Dollars and no cents ($40,500.00), together with all accrued interest and other amounts due thereon, on January 30, 2025
(the “Maturity Date”), if not sooner paid.
WHEREAS,
the note that this note amends and restates was originally issued to James S. Manuso on September 22, 2016, (as amended from time to
time, the “Original Note”), and was subsequently sold to [xxx] on the date hereof.
WHEREAS,
this Amended and Restated Note, as defined below, amends and restates the Original Note in its entirety and releases and removes any
collateral, lien, security or similar interests in the Original Note.
The
following terms and conditions shall apply to this 0% Convertible Note due January 30, 2025 (the “Amended and Restated Note”):
ARTICLE
I
INTEREST
& AMORTIZATION
1.1
Contract Rate. Subject to Section 4.1 hereof, interest payable on this Amended and Restated Note shall accrue at a rate per annum
equal to zero percent (0%) and shall be computed on the basis of a 365-day year.
1.2
Payments. Payment of the aggregate principal amount outstanding under this Amended and Restated Note (the “Principal
Amount”), together with all accrued interest thereon shall be made on the Maturity Date if not earlier paid.
ARTICLE
II
CONVERSION
REPAYMENT
2.1
Optional Conversion. Subject to the terms of this Article II, the Holder shall have the right, but not the obligation, at any
time until the Maturity Date, or thereafter during an Event of Default, to convert all or any portion of the outstanding Principal Amount,
accrued interest and fees due and payable thereon into fully paid and nonassessable shares of Common Stock, par value $0.001 of the Borrower
(the “Common Stock”) at the Conversion Price (as defined below). The shares of Common Stock to be issued upon such
conversion are herein referred to as the “Conversion Shares.”
2.2
Calculation of Conversion Price. The conversion price (the “Conversion Price”) shall be $0.0015 and shall be
subject to adjustment only for splits, reverse splits, Common Stock dividends and similar recapitalizations, but shall not be subject
to any other anti-dilution protections, including but not limited to dilution due to financings.
2.3
Conversion Limitation. Notwithstanding anything contained herein to the contrary, the Holder shall not be entitled to convert
pursuant to the terms of this Amended and Restated Note an amount that would be convertible into that number of Conversion Shares which
would exceed the difference between the number of shares of Common Stock beneficially owned by such Holder and 4.99% of the outstanding
shares of Common Stock of Borrower. 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 conversion of this Amended and Restated
Note 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) conversion of the remaining, nonconverted portion of this Amended and Restated Note 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 notes) 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, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended. To the extent that the limitation contained in this Section applies, the determination of whether this Amended and Restated
Note is convertible (in relation to other securities owned by the Holder) and of which a portion of this Amended and Restated Note is
convertible shall be in the sole discretion of such Holder. To ensure compliance with this restriction, the Holder will be deemed to
represent to the Company each time it delivers a notice of conversion (“Notice of Conversion”) substantially in the
form attached hereto as Appendix A, that such Notice of Conversion has not violated the restrictions set forth in this paragraph and
the Company shall have no obligation to verify or confirm the accuracy of such determination. For purposes of this Section 2.3, 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 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 Common Stock shall be determined
after giving effect to the conversion or exercise of securities of the Company, including this Amended and Restated Note, 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
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 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).
2.4
Mechanics of Holder’s Conversion. Subject to Section 2.2, this Amended and Restated Note may be converted by the Holder
in part from time to time after the Issue Date, by submitting to the Borrower a Notice of Conversion (whether by facsimile, as a Portable
Document (PDF) file sent by electronic mail or other reasonable means of communication dispatched on the Conversion Date prior to 8:00
p.m., New York, New York time). On each Conversion Date (as hereinafter defined) and in accordance with its Notice of Conversion, the
Holder shall make the appropriate reduction to the Principal Amount, accrued interest and fees as entered in its records and shall provide
written notice thereof to the Borrower on the Conversion Date. Each date on which a Notice of Conversion is delivered or telecopied to
Borrower in accordance with the provisions hereof shall be deemed a Conversion Date (the “Conversion Date”). A form
of Notice of Conversion to be employed by the Holder is annexed hereto as Exhibit A. Pursuant to the terms of the Notice of Conversion,
Borrower will issue instructions to the transfer agent within two (2) business days of the Conversion Date accompanied by an opinion
of counsel to Borrower of the Notice of Conversion and shall cause the transfer agent to transmit the certificates representing the Conversion
Shares to the Holder by physical delivery or crediting the account of the Holder’s designated broker with the Depository Trust
Corporation (“DTC”) through its Deposit Withdrawal Agent Commission (“DWAC”) system within
five (5) business days after receipt by Borrower of the Notice of Conversion (the “Delivery Date”). In the case of
the exercise of the conversion rights set forth herein, the conversion privilege shall be deemed to have been exercised, and the Conversion
Shares issuable upon such conversion shall be deemed to have been issued, upon the date of receipt by Borrower of the Notice of Conversion.
The Holder shall be treated for all purposes as the record holder of such Common Stock, unless the Holder provides Borrower written instructions
to the contrary.
2.5
Late Notices. The Borrower understands that a delay in the delivery of the instructions to the transfer agent during the timeframe
required pursuant to this Article that results in a delay of the Conversion Shares beyond the Delivery Date could result in economic
loss to the Holder. As compensation to the Holder for such loss, the Borrower agrees to pay late fees to the Holder for the late issuance
of such transfer agent instructions an additional amount equal to $500.00 per day commencing on the third day of the Conversion Date.
The Borrower shall pay any fees incurred under this Section, in addition to any amounts due hereunder, in immediately available funds
upon demand and such fees shall also be eligible to be converted into Conversion Shares as set forth in this Article II.
2.6
Conversion Mechanics. The number of shares of Common Stock to be issued upon each conversion of this Amended and Restated Note
shall be determined by dividing that portion of the Principal Amount and interest and fees to be converted, if any, by the then applicable
Conversion Price.
2.7
Issuance of New Note. The unconverted principal and any unconverted accrued and unpaid interest shall represent an automatic adjustment
to this Amended and Restated Note without causing the need to issue a further amended and restated note. Although not required to be
requested by the Holder, upon any partial conversion of this Amended and Restated Note, a new note (“New Note”) containing
the same date and provisions of this Amended and Restated Note shall, at the request of the Holder, be issued by the Borrower to the
Holder for the principal balance of the New Note and interest which shall not have been converted or paid. Subject to the provisions
of Article III, the Borrower will pay no costs, fees or any other consideration to the Holder for the production and issuance of a New
Note.
2.8
Authorized and Reserved Shares. The Borrower represents that upon issuance, the Conversion Shares will be duly and validly issued,
fully paid and non-assessable. The Borrower agrees that its issuance of this Amended and Restated Note shall constitute full authority
to its officers and agents who are charged with the duty of executing stock certificates to execute and issue the necessary certificates
for shares of Common Stock in accordance with the terms and conditions of this Amended and Restated Note. At all times during which this
Amended and Restated Note is outstanding, the Borrower shall reserve from its authorized and unissued shares of Common Stock a sufficient
number of shares to provide for the issuance of the Conversion Shares. Initially the Borrower shall reserve 27,000,000 Shares for conversion
of this Amended and Restated Note.
2.9
Fractional Shares. No fractional shares shall be issued upon the conversion of this Amended and Restated Note. As to any fraction
of a share which Holder would otherwise be entitled to upon such conversion, the Borrower shall round up to the next whole share.
ARTICLE
III
EVENTS
OF DEFAULT
The
occurrence of any of the following events set forth in Sections 3.1 through 3.14, inclusive, shall be an “Event of Default”:
3.1
Failure to Pay Principal, Interest or Other Fees. Borrower fails to pay principal, interest or other fees hereon and such failure
shall continue for a period of five (5) days following the date upon which any such payment was due.
3.2
Breach of Covenant. Borrower breaches any covenant or other term or condition of this Note in any material respect and such breach,
if subject to cure, continues for a period of five (5) days after the occurrence thereof.
3.3
Breach of Representations and Warranties. Any representation or warranty of Borrower made herein shall be false or misleading
in any material respect.
3.4
SEC Filings. Borrower fails to timely file, when due, a post-effective amendment to a Form S-1 Registration Statement or SEC report
(e.g., Forms 8-K, 10-Q or 10-K, or Schedules 14A, 14C or 14(f)).
3.5
Stop Trade. An SEC stop trade order or Principal Market trading suspension of the Common Stock shall be in effect for five (5)
consecutive days or five (5) days during a period of 10 consecutive days, provided that Borrower shall not have been able to cure such
trading suspension within 30 days of the notice thereof or list the Common Stock on another Principal Market within 60 days of such notice.
The “Principal Market” for the Common Stock shall include the OTC Pink Market, the OTC QB, the OTC QX, NASDAQ Capital Market,
NASDAQ Global Market, NASDAQ Global Select Market, NYSE Amex, or New York Stock Exchange (whichever of the foregoing is at the time the
principal trading exchange or market for the Common Stock), or any securities exchange or other securities market on which the Common
Stock is then being listed or traded.
3.6
Failure to Deliver Common Stock or Replacement Note. Except in the event Borrower does not have a sufficient number of shares
of Common Stock authorized but unissued upon a conversion hereunder, Borrower’s failure to timely deliver Common Stock to the Holder
pursuant to and in the form required by this Amended and Restated Note, if such failure to timely deliver Common Stock shall not be cured
within five (5) days. If Borrower is required to issue a replacement Amended and Restated Note to Holder and Borrower shall fail to deliver
such replacement Amended and Restated Note within seven (7) Business Days.
3.7
DTC Eligibility. The Borrower shall lose its status as “DTC Eligible” or the Borrower’s shareholders shall lose
the ability to deposit (either electronically or by physical certificates, or otherwise) shares into the DTC System.
3.8
Transfer Agent Fees. Failure of the Borrower to maintain a Transfer Agent of record.
ARTICLE
IV
DEFAULT
RELATED PROVISIONS AND OTHER PRIVILEGES
4.1
Default Interest Rate. Following the occurrence and during the continuance of an Event of Default, interest on this Amended and
Restated Note shall automatically be 18% per annum, effective as of the date of the Event of Default, which interest shall be payable
in cash or Common Stock, at the option of the Borrower.
4.2
Conversion Privileges. The conversion privileges set forth in Article II shall remain in full force and effect immediately from
the date hereof and until this Amended and Restated Note is paid in full.
4.3
Cumulative Remedies. The remedies under this Amended and Restated Note shall be cumulative.
4.4
Default Amount. If an Event of Default occurs and is continuing beyond any applicable grace period, the Holder, at its option,
may elect, in addition to all rights and remedies of Holder to require the Borrower to add a default amount to then outstanding principal
amount of the Amended and Restated Note plus accrued but unpaid interest, including any default interest, and all other fees then remaining
unpaid, and all other amounts payable (“Default Amount”). The Default Payment shall be the then outstanding principal
amount of the Amended and Restated Note plus accrued but unpaid interest, including any default interest, and all other fees then remaining
unpaid, and all other amounts payable hereunder multiplied by 25% and which amount shall be added to the then outstanding principal amount
of the Amended and Restated Note plus accrued but unpaid interest, including any default interest, and all other fees then remaining
unpaid, and all other amounts payable. The sum of the then outstanding principal amount of the Amended and Restated Note plus accrued
but unpaid interest, including any default interest, and all other fees then remaining unpaid, and all other amounts payable and the
Default Amount shall be default payment amount and shall be the entire amount due and payable. The Default Payment shall be applied first
to any fees due and payable to Holder pursuant to the Amended and Restated Note, then to accrued and unpaid interest due on the Amended
and Restated Note and then to outstanding principal balance of the Note.
4.5
Default Payment Date. The Default Payment shall be due and payable immediately on the date that the Holder has exercised its rights
pursuant to Section 4.1 hereof.
ARTICLE
V
MISCELLANEOUS
5.1
Failure or Indulgence Not Waiver. No failure or delay on the part of the Holder hereof in the exercise of any power, right or
privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other right, power or privilege. All rights and remedies existing hereunder are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
5.2
Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be
in writing and, unless otherwise specified herein, shall be transmitted by mail, hand delivery, telegram, emails or facsimile, addressed
as set forth below. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon
hand delivery or delivery by email or facsimile, with accurate confirmation generated by the transmitting facsimile machine, at the address
or number designated below (if delivered on a business day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a business day during normal business hours where such notice
is to be received) or (b) on the next business day following the date of mailing by express courier service, fully prepaid, addressed
to such address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for such communications shall be:
If
to the Borrower, to:
RespireRx
Pharmaceuticals Inc.
126
Valley Road Suite C
Glen
Rock, NJ 07452
jmargolis@respirerx.com
If
to the Holder:
[xxx]
[xxx]
No
change in any of such addresses shall be effective insofar as notices under this Section 5.2 are concerned unless such changed address
is located in the United States of America and notice of such change shall have been given to such other party hereto as provided in
this Section 5.2.
5.3
Amendment Provision. Any term of this Amended and Restated Note may be amended only with the written consent of the Holder and
the Borrower. The term “Amended and Restated Note” and all reference thereto, as used throughout this instrument, shall mean
this instrument as originally executed as of the effective date, or if later amended or supplemented, then as so amended or supplemented,
and any successor instrument as it may be amended or supplemented.
5.4
Assignability. This Amended and Restated Note shall be binding upon the Borrower and its successors and assigns, and shall inure
to the benefit of the Holder and its successors and assigns, and may not be assigned by the Borrower without the prior written consent
of the Holder, which consent may not be unreasonably withheld.
55
Prevailing Party and Costs. In the event any attorney is employed by any party with regard to any legal or equitable action, arbitration
or other proceeding brought by such party for the enforcement of this Amended and Restated Note or because of an alleged dispute, breach,
default or misrepresentation in connection with any of the provisions of this Amended and Restated Note, the prevailing party in such
proceeding will be entitled to recover from the other party reasonable attorneys’ fees and other costs and expenses incurred, in
addition to any other relief to which the prevailing party may be entitled.
5.6
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Amended and Restated
Note 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 any of the transaction documents (whether brought against a party hereto or its respective
affiliates, directors, officers, shareholders, employees or agents) shall be commenced in the State of New York (the “NY Courts”).
Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the NY Courts 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, or such NY Courts are improper or inconvenient venue for
such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit,
action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to
such party at the address in effect for notices to it under this Amended and Restated Note 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 Amended and Restated Note or the transactions
contemplated hereby. If either party shall commence an action or proceeding to enforce any provisions of this Amended and Restated Note,
then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorney fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
5.7
Maximum Payments. Nothing contained herein shall be deemed to establish or require the payment of a rate of interest or other
charges in excess of the maximum permitted by applicable law. In the event that the rate of interest required to be paid or other charges
hereunder exceed the maximum permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by
Borrower to the Holder and thus refunded to the Borrower.
5.8
Construction. Borrower stipulates that the rule of construction that ambiguities are to be resolved against the drafting party
shall not be applied in the interpretation of this Amended and Restated Note to favor any party against the other.
IN
WITNESS WHEREOF, Borrower has caused this Amended and Restated Note to be signed in its name effective as of the 30th
day of January, 2024
| |
BORROWER:
|
| |
|
|
| |
RespireRx
Pharmaceuticals Inc. |
| |
|
|
| |
By: |
/s/
Jeff Eliot Margolis |
| |
Name:
|
Jeff
Eliot Margolis |
| |
Title:
|
SVP,
CFO, Treasurer, Secretary |
APPENDIX
A
Notice
of Conversion
(To
be executed by the Holder in order to convert all or part of the convertible promissory note between [xxx] and RespireRx Pharmaceuticals
Inc. into Common Stock)
RespireRx
Pharmaceuticals Inc.
126
Valley Road, Suite C
Glen
Rock, NJ 07452
The
undersigned hereby converts $____ of the principal due under the Amended and Restated Convertible Note issued by RespireRx Pharmaceuticals
Inc. (Borrower) dated as of January 30, 2024 by delivery of Common Stock of Borrower on and subject to the conditions set forth in such
Note. Whereas the Note was originally issued to James S Manuso, and [xxx] acquired the Note on January 30, 2024
| 1. |
Date
of Conversion |
_______
|
| 2. |
Shares
To Be Delivered: |
_______
|
| 3. |
Price
of Conversion: |
$0.0015
|
Exhibit
10.6
THIS
NOTE AND THE CONVERSION SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THIS
NOTE AND THE CONVERSION SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THIS NOTE AND THE CONVERSION SHARES UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL
(WHICH COUNSEL SHALL BE SELECTED BY HOLDER), IN A GENERALLY ACCEPTABLE FORM THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
| Issue
Date: January 30, 2024 |
$54,000.00 |
RESPIRERX
PHARMACEUTICALS INC
AMENDED
AND RESTATED CONVERTIBLE NOTE
DUE
JANUARY 30, 2025
FOR
VALUE RECEIVED, RespireRx Pharmaceuticals Inc. a Delaware corporation (the “Borrower” or the “Company”),
promises to pay to [xxx] (the “Holder”) or its registered assigns or successors in interest, the sum of Fifty-Four
Thousand Dollars and no cents ($54,000.00), together with all accrued interest and other amounts due thereon, on January 30, 2025 (the
“Maturity Date”), if not sooner paid.
WHEREAS,
the note that this note amends and restates was originally issued to James S. Manuso on April 10, 2018, (as amended from time to time,
the “Original Note”), and was subsequently sold to [xxx] on the date hereof.
WHEREAS,
this Amended and Restated Note, as defined below, amends and restates the Original Note in its entirety and releases and removes any
collateral, lien, security or similar interests in the Original Note.
The
following terms and conditions shall apply to this 0% Convertible Note due January 30, 2025 (the “Amended and Restated Note”):
ARTICLE
I
INTEREST
& AMORTIZATION
1.1
Contract Rate. Subject to Section 4.1 hereof, interest payable on this Amended and Restated Note shall accrue at a rate per annum
equal to zero percent (0%) and shall be computed on the basis of a 365-day year.
1.2
Payments. Payment of the aggregate principal amount outstanding under this Amended and Restated Note (the “Principal
Amount”), together with all accrued interest thereon shall be made on the Maturity Date if not earlier paid.
ARTICLE
II
CONVERSION
REPAYMENT
2.1
Optional Conversion. Subject to the terms of this Article II, the Holder shall have the right, but not the obligation, at any
time until the Maturity Date, or thereafter during an Event of Default, to convert all or any portion of the outstanding Principal Amount,
accrued interest and fees due and payable thereon into fully paid and nonassessable shares of Common Stock, par value $0.001 of the Borrower
(the “Common Stock”) at the Conversion Price (as defined below). The shares of Common Stock to be issued upon such
conversion are herein referred to as the “Conversion Shares.”
2.2
Calculation of Conversion Price. The conversion price (the “Conversion Price”) shall be $0.0015 and shall be
subject to adjustment only for splits, reverse splits, Common Stock dividends and similar recapitalizations, but shall not be subject
to any other anti-dilution protections, including but not limited to dilution due to financings.
2.3
Conversion Limitation. Notwithstanding anything contained herein to the contrary, the Holder shall not be entitled to convert
pursuant to the terms of this Amended and Restated Note an amount that would be convertible into that number of Conversion Shares which
would exceed the difference between the number of shares of Common Stock beneficially owned by such Holder and 4.99% of the outstanding
shares of Common Stock of Borrower. 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 conversion of this Amended and Restated
Note 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) conversion of the remaining, nonconverted portion of this Amended and Restated Note 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 notes) 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, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended. To the extent that the limitation contained in this Section applies, the determination of whether this Amended and Restated
Note is convertible (in relation to other securities owned by the Holder) and of which a portion of this Amended and Restated Note is
convertible shall be in the sole discretion of such Holder. To ensure compliance with this restriction, the Holder will be deemed to
represent to the Company each time it delivers a notice of conversion (“Notice of Conversion”) substantially in the
form attached hereto as Appendix A, that such Notice of Conversion has not violated the restrictions set forth in this paragraph and
the Company shall have no obligation to verify or confirm the accuracy of such determination. For purposes of this Section 2.3, 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 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 Common Stock shall be determined
after giving effect to the conversion or exercise of securities of the Company, including this Amended and Restated Note, 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
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 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).
2.4
Mechanics of Holder’s Conversion. Subject to Section 2.2, this Amended and Restated Note may be converted by the Holder
in part from time to time after the Issue Date, by submitting to the Borrower a Notice of Conversion (whether by facsimile, as a Portable
Document (PDF) file sent by electronic mail or other reasonable means of communication dispatched on the Conversion Date prior to 8:00
p.m., New York, New York time). On each Conversion Date (as hereinafter defined) and in accordance with its Notice of Conversion, the
Holder shall make the appropriate reduction to the Principal Amount, accrued interest and fees as entered in its records and shall provide
written notice thereof to the Borrower on the Conversion Date. Each date on which a Notice of Conversion is delivered or telecopied to
Borrower in accordance with the provisions hereof shall be deemed a Conversion Date (the “Conversion Date”). A form
of Notice of Conversion to be employed by the Holder is annexed hereto as Exhibit A. Pursuant to the terms of the Notice of Conversion,
Borrower will issue instructions to the transfer agent within two (2) business days of the Conversion Date accompanied by an opinion
of counsel to Borrower of the Notice of Conversion and shall cause the transfer agent to transmit the certificates representing the Conversion
Shares to the Holder by physical delivery or crediting the account of the Holder’s designated broker with the Depository Trust
Corporation (“DTC”) through its Deposit Withdrawal Agent Commission (“DWAC”) system within
five (5) business days after receipt by Borrower of the Notice of Conversion (the “Delivery Date”). In the case of
the exercise of the conversion rights set forth herein, the conversion privilege shall be deemed to have been exercised, and the Conversion
Shares issuable upon such conversion shall be deemed to have been issued, upon the date of receipt by Borrower of the Notice of Conversion.
The Holder shall be treated for all purposes as the record holder of such Common Stock, unless the Holder provides Borrower written instructions
to the contrary.
2.5
Late Notices. The Borrower understands that a delay in the delivery of the instructions to the transfer agent during the timeframe
required pursuant to this Article that results in a delay of the Conversion Shares beyond the Delivery Date could result in economic
loss to the Holder. As compensation to the Holder for such loss, the Borrower agrees to pay late fees to the Holder for the late issuance
of such transfer agent instructions an additional amount equal to $500.00 per day commencing on the third day of the Conversion Date.
The Borrower shall pay any fees incurred under this Section, in addition to any amounts due hereunder, in immediately available funds
upon demand and such fees shall also be eligible to be converted into Conversion Shares as set forth in this Article II.
2.6
Conversion Mechanics. The number of shares of Common Stock to be issued upon each conversion of this Amended and Restated Note
shall be determined by dividing that portion of the Principal Amount and interest and fees to be converted, if any, by the then applicable
Conversion Price.
2.7
Issuance of New Note. The unconverted principal and any unconverted accrued and unpaid interest shall represent an automatic adjustment
to this Amended and Restated Note without causing the need to issue a further amended and restated note. Although not required to be
requested by the Holder, upon any partial conversion of this Amended and Restated Note, a new note (“New Note”) containing
the same date and provisions of this Amended and Restated Note shall, at the request of the Holder, be issued by the Borrower to the
Holder for the principal balance of the New Note and interest which shall not have been converted or paid. Subject to the provisions
of Article III, the Borrower will pay no costs, fees or any other consideration to the Holder for the production and issuance of a New
Note.
2.8
Authorized and Reserved Shares. The Borrower represents that upon issuance, the Conversion Shares will be duly and validly issued,
fully paid and non-assessable. The Borrower agrees that its issuance of this Amended and Restated Note shall constitute full authority
to its officers and agents who are charged with the duty of executing stock certificates to execute and issue the necessary certificates
for shares of Common Stock in accordance with the terms and conditions of this Amended and Restated Note. At all times during which this
Amended and Restated Note is outstanding, the Borrower shall reserve from its authorized and unissued shares of Common Stock a sufficient
number of shares to provide for the issuance of the Conversion Shares. Initially the Borrower shall reserve 36,000,000 Shares for conversion
of this Amended and Restated Note.
2.9
Fractional Shares. No fractional shares shall be issued upon the conversion of this Amended and Restated Note. As to any fraction
of a share which Holder would otherwise be entitled to upon such conversion, the Borrower shall round up to the next whole share.
ARTICLE
III
EVENTS
OF DEFAULT
The
occurrence of any of the following events set forth in Sections 3.1 through 3.14, inclusive, shall be an “Event of Default”:
3.1
Failure to Pay Principal, Interest or Other Fees. Borrower fails to pay principal, interest or other fees hereon and such failure
shall continue for a period of five (5) days following the date upon which any such payment was due.
3.2
Breach of Covenant. Borrower breaches any covenant or other term or condition of this Note in any material respect and such breach,
if subject to cure, continues for a period of five (5) days after the occurrence thereof.
3.3
Breach of Representations and Warranties. Any representation or warranty of Borrower made herein shall be false or misleading
in any material respect.
3.4
SEC Filings. Borrower fails to timely file, when due, a post-effective amendment to a Form S-1 Registration Statement or SEC report
(e.g., Forms 8-K, 10-Q or 10-K, or Schedules 14A, 14C or 14(f)).
3.5
Stop Trade. An SEC stop trade order or Principal Market trading suspension of the Common Stock shall be in effect for five (5)
consecutive days or five (5) days during a period of 10 consecutive days, provided that Borrower shall not have been able to cure such
trading suspension within 30 days of the notice thereof or list the Common Stock on another Principal Market within 60 days of such notice.
The “Principal Market” for the Common Stock shall include the OTC Pink Market, the OTC QB, the OTC QX, NASDAQ Capital Market,
NASDAQ Global Market, NASDAQ Global Select Market, NYSE Amex, or New York Stock Exchange (whichever of the foregoing is at the time the
principal trading exchange or market for the Common Stock), or any securities exchange or other securities market on which the Common
Stock is then being listed or traded.
3.6
Failure to Deliver Common Stock or Replacement Note. Except in the event Borrower does not have a sufficient number of shares
of Common Stock authorized but unissued upon a conversion hereunder, Borrower’s failure to timely deliver Common Stock to the Holder
pursuant to and in the form required by this Amended and Restated Note, if such failure to timely deliver Common Stock shall not be cured
within five (5) days. If Borrower is required to issue a replacement Amended and Restated Note to Holder and Borrower shall fail to deliver
such replacement Amended and Restated Note within seven (7) Business Days.
3.7
DTC Eligibility. The Borrower shall lose its status as “DTC Eligible” or the Borrower’s shareholders shall lose
the ability to deposit (either electronically or by physical certificates, or otherwise) shares into the DTC System.
3.8
Transfer Agent Fees. Failure of the Borrower to maintain a Transfer Agent of record.
ARTICLE
IV
DEFAULT
RELATED PROVISIONS AND OTHER PRIVILEGES
4.1
Default Interest Rate. Following the occurrence and during the continuance of an Event of Default, interest on this Amended and
Restated Note shall automatically be 18% per annum, effective as of the date of the Event of Default, which interest shall be payable
in cash or Common Stock, at the option of the Borrower.
4.2
Conversion Privileges. The conversion privileges set forth in Article II shall remain in full force and effect immediately from
the date hereof and until this Amended and Restated Note is paid in full.
4.3
Cumulative Remedies. The remedies under this Amended and Restated Note shall be cumulative.
4.4
Default Amount. If an Event of Default occurs and is continuing beyond any applicable grace period, the Holder, at its option,
may elect, in addition to all rights and remedies of Holder to require the Borrower to add a default amount to then outstanding principal
amount of the Amended and Restated Note plus accrued but unpaid interest, including any default interest, and all other fees then remaining
unpaid, and all other amounts payable (“Default Amount”). The Default Payment shall be the then outstanding principal
amount of the Amended and Restated Note plus accrued but unpaid interest, including any default interest, and all other fees then remaining
unpaid, and all other amounts payable hereunder multiplied by 25% and which amount shall be added to the then outstanding principal amount
of the Amended and Restated Note plus accrued but unpaid interest, including any default interest, and all other fees then remaining
unpaid, and all other amounts payable. The sum of the then outstanding principal amount of the Amended and Restated Note plus accrued
but unpaid interest, including any default interest, and all other fees then remaining unpaid, and all other amounts payable and the
Default Amount shall be default payment amount and shall be the entire amount due and payable. The Default Payment shall be applied first
to any fees due and payable to Holder pursuant to the Amended and Restated Note, then to accrued and unpaid interest due on the Amended
and Restated Note and then to outstanding principal balance of the Note.
4.5
Default Payment Date. The Default Payment shall be due and payable immediately on the date that the Holder has exercised its rights
pursuant to Section 4.1 hereof.
ARTICLE
V
MISCELLANEOUS
5.1
Failure or Indulgence Not Waiver. No failure or delay on the part of the Holder hereof in the exercise of any power, right or
privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other right, power or privilege. All rights and remedies existing hereunder are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
5.2
Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be
in writing and, unless otherwise specified herein, shall be transmitted by mail, hand delivery, telegram, emails or facsimile, addressed
as set forth below. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon
hand delivery or delivery by email or facsimile, with accurate confirmation generated by the transmitting facsimile machine, at the address
or number designated below (if delivered on a business day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a business day during normal business hours where such notice
is to be received) or (b) on the next business day following the date of mailing by express courier service, fully prepaid, addressed
to such address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for such communications shall be:
If
to the Borrower, to:
RespireRx
Pharmaceuticals Inc.
126
Valley Road Suite C
Glen
Rock, NJ 07452
jmargolis@respirerx.com
If
to the Holder:
[xxx]
[xxx]
No
change in any of such addresses shall be effective insofar as notices under this Section 5.2 are concerned unless such changed address
is located in the United States of America and notice of such change shall have been given to such other party hereto as provided in
this Section 5.2.
5.3
Amendment Provision. Any term of this Amended and Restated Note may be amended only with the written consent of the Holder and
the Borrower. The term “Amended and Restated Note” and all reference thereto, as used throughout this instrument, shall mean
this instrument as originally executed as of the effective date, or if later amended or supplemented, then as so amended or supplemented,
and any successor instrument as it may be amended or supplemented.
5.4
Assignability. This Amended and Restated Note shall be binding upon the Borrower and its successors and assigns, and shall inure
to the benefit of the Holder and its successors and assigns, and may not be assigned by the Borrower without the prior written consent
of the Holder, which consent may not be unreasonably withheld.
55
Prevailing Party and Costs. In the event any attorney is employed by any party with regard to any legal or equitable action, arbitration
or other proceeding brought by such party for the enforcement of this Amended and Restated Note or because of an alleged dispute, breach,
default or misrepresentation in connection with any of the provisions of this Amended and Restated Note, the prevailing party in such
proceeding will be entitled to recover from the other party reasonable attorneys’ fees and other costs and expenses incurred, in
addition to any other relief to which the prevailing party may be entitled.
5.6
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Amended and Restated
Note 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 any of the transaction documents (whether brought against a party hereto or its respective
affiliates, directors, officers, shareholders, employees or agents) shall be commenced in the State of New York (the “NY Courts”).
Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the NY Courts 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, or such NY Courts are improper or inconvenient venue for
such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit,
action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to
such party at the address in effect for notices to it under this Amended and Restated Note 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 Amended and Restated Note or the transactions
contemplated hereby. If either party shall commence an action or proceeding to enforce any provisions of this Amended and Restated Note,
then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorney fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
5.7
Maximum Payments. Nothing contained herein shall be deemed to establish or require the payment of a rate of interest or other
charges in excess of the maximum permitted by applicable law. In the event that the rate of interest required to be paid or other charges
hereunder exceed the maximum permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by
Borrower to the Holder and thus refunded to the Borrower.
5.8
Construction. Borrower stipulates that the rule of construction that ambiguities are to be resolved against the drafting party
shall not be applied in the interpretation of this Amended and Restated Note to favor any party against the other.
IN
WITNESS WHEREOF, Borrower has caused this Amended and Restated Note to be signed in its name effective as of the 30th
day of January, 2024
| |
BORROWER: |
| |
|
| |
RespireRx
Pharmaceuticals Inc. |
| |
|
| |
By: |
/s/
Jeff Eliot Margolis |
| |
Name:
|
Jeff
Eliot Margolis |
| |
Title:
|
SVP,
CFO, Treasurer, Secretary |
APPENDIX
A
Notice
of Conversion
(To
be executed by the Holder in order to convert all or part of the convertible promissory note between [xxx] and RespireRx Pharmaceuticals
Inc. into Common Stock)
RespireRx
Pharmaceuticals Inc.
126
Valley Road, Suite C
Glen
Rock, NJ 07452
The
undersigned hereby converts $____ of the principal due under the Amended and Restated Convertible Note issued by RespireRx Pharmaceuticals
Inc. (Borrower) dated as of January 30, 2024 by delivery of Common Stock of Borrower on and subject to the conditions set forth in such
Note. Whereas the Note was originally issued to James S Manuso, and [xxx] acquired the Note on January 30, 2024
| 1. |
Date
of Conversion |
|
| 2. |
Shares
To Be Delivered: |
|
| 3. |
Price
of Conversion: |
$0.0015
|
v3.24.0.1
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RespireRx Pharmaceuticals (CE) (USOTC:RSPI)
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