EXHIBIT 10.4


 


CERTIFICATE OF AMENDMENT


OF


AMENDED AND RESTATED


CERTIFICATE OF INCORPORATION


OF


LIPIMETIX DEVELOPMENT, INC.


 


LIPIMETIX DEVELOPMENT, INC., a corporation organized
and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”),
hereby certifies as follows:


 


 First: The name of the Corporation is LipimetiX Development, Inc.




 


Second:       The
Amended and Restated Certificate of Incorporation of the Corporation is hereby amended by adding a new Section 7 of Part B of Article
Fourth to read in its entirety as set forth below, and renumbering each of current Sections 7 and 8 to be Sections 8 and 9 respectively:


 


7.       Optional
Conversion of Series A Preferred. The holders of the Series A Preferred Stock shall have conversion rights as set forth below
(the “Conversion Rights”). For purposes of this Section 7, references herein to “Common Stock” shall refer
to “Class A-1 Common Stock”. 


 


7.1       Right
to Convert. 


 


7.1.1       Conversion
Ratio. Each share of Series A Preferred Stock shall be convertible, at the option of the holder thereof, at any time and from
time to time, and without the payment of additional consideration by the holder thereof, into such number of fully paid and non-assessable
shares of Common Stock as is determined by dividing the Series A Issue Value (as defined below) by the Series A Conversion Price
(as defined below) in effect at the time of conversion. The Series A Issue Value shall be the Series A Original Issue Price less
the aggregate dividends paid with respect to each share of Series A Preferred Stock. The Series A Conversion Price will be equal
to the lesser of the Series B-1 Conversion Price or the price per share of the shares issued in the next equity financing of the
Corporation with proceeds of at least One Million Dollars ($1,000,000), as determined by the Board of Directors of the Corporation
and identified as such in the minutes or resolutions of the Board of Directors of the Corporation approving the issuance of such
equity.


 


7.1.2       Termination
of Conversion Rights. In the event of a liquidation, dissolution or winding up of the Corporation or a Deemed Liquidation Event,
the Conversion Rights shall terminate at the close of business on the last full day preceding the date fixed for the payment of
any such amounts distributable on such event to the holders of Series A Preferred Stock.


 






     


     


    

7.2       Fractional
Shares. No fractional shares of Common Stock shall be issued upon conversion of the Series A Preferred Stock. In lieu of any
fractional shares to which the holder would otherwise be entitled, the Corporation shall pay cash equal to such fraction multiplied
by the fair market value of a share of Common Stock as determined in good faith by the Board of Directors of the Corporation. Whether
or not fractional shares would be issuable upon such conversion shall be determined on the basis of the total number of shares
of Series A Preferred Stock the holder is at the time converting into Common Stock and the aggregate number of shares of Common
Stock issuable upon such conversion.


 


7.3       Mechanics
of Conversion.


 


7.3.1       Notice
of Conversion. In order for a holder of Series A Preferred Stock to voluntarily convert shares of Series A Preferred Stock
into shares of Common Stock, such holder shall (a) provide written notice to the Corporation’s transfer agent at the office
of the transfer agent for the Series A Preferred Stock (or at the principal office of the Corporation if the Corporation serves
as its own transfer agent) that such holder elects to convert all or any number of such holder’s shares of Series A Preferred
Stock and, if applicable, any event on which such conversion is contingent and (b), if such holder’s shares are certificated,
surrender the certificate or certificates for such shares of Series A Preferred Stock (or, if such registered holder alleges that
such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation
to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or
destruction of such certificate), at the office of the transfer agent for the Series A Preferred Stock (or at the principal office
of the Corporation if the Corporation serves as its own transfer agent). Such notice shall state such holder’s name or the
names of the nominees in which such holder wishes the shares of Common Stock to be issued. If required by the Corporation, any
certificates surrendered for conversion shall be endorsed or accompanied by a written instrument or instruments of transfer, in
form satisfactory to the Corporation, duly executed by the registered holder or his, her or its attorney duly authorized in writing.
The close of business on the date of receipt by the transfer agent (or by the Corporation if the Corporation serves as its own
transfer agent) of such notice and, if applicable, certificates (or lost certificate affidavit and agreement) shall be the time
of conversion (the “Conversion Time”), and the shares of Common Stock issuable upon conversion of the specified shares
shall be deemed to be outstanding of record as of such date. The Corporation shall, as soon as practicable after the Conversion
Time (i) issue and deliver to such holder of Series A Preferred Stock, or to his, her or its nominees, a certificate or certificates
for the number of full shares of Common Stock issuable upon such conversion in accordance with the provisions hereof and a certificate
for the number (if any) of the shares of Series A Preferred Stock represented by the surrendered certificate that were not converted
into Common Stock, (ii) pay in cash such amount as provided in Subsection 7.2 in lieu of any fraction of a share of
Common Stock otherwise issuable upon such conversion and (iii) pay all declared but unpaid dividends on the shares of Series A
Preferred Stock converted.


 






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7.3.2       Reservation
of Shares. The Corporation shall at all times when the Series A Preferred Stock shall be outstanding, reserve and keep available
out of its authorized but unissued capital stock, for the purpose of effecting the conversion of the Series A Preferred Stock,
such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion of
all outstanding Series A Preferred Stock; and if at any time the number of authorized but unissued shares of Common Stock shall
not be sufficient to effect the conversion of all then outstanding shares of the Series A Preferred Stock, the Corporation shall
take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of
shares as shall be sufficient for such purposes, including, without limitation, engaging in best efforts to obtain the requisite
stockholder approval of any necessary amendment to the Certificate of Incorporation. Before taking any action which would cause
an adjustment reducing the Series A Conversion Price below the then par value of the shares of Common Stock issuable upon conversion
of the Series A Preferred Stock, the Corporation will take any corporate action which may, in the opinion of its counsel, be necessary
in order that the Corporation may validly and legally issue fully paid and non-assessable shares of Common Stock at such adjusted
Series A Conversion Price.


 


7.3.3       Effect
of Conversion. All shares of Series A Preferred Stock which shall have been surrendered for conversion as herein provided shall
no longer be deemed to be outstanding and all rights with respect to such shares shall immediately cease and terminate at the Conversion
Time, except only the right of the holders thereof to receive shares of Common Stock in exchange therefor, to receive payment in
lieu of any fraction of a share otherwise issuable upon such conversion as provided in Subsection 7.2. Any shares of
Series A Preferred Stock so converted shall be retired and cancelled and may not be reissued as shares of such series, and the
Corporation may thereafter take such appropriate action (without the need for stockholder action) as may be necessary to reduce
the authorized number of shares of Series A Preferred Stock accordingly. 


 


7.3.4       No
Further Adjustment. Upon any such conversion, no adjustment to the Series A Conversion Price shall be made for any declared
but unpaid dividends on the Series A Preferred Stock surrendered for conversion or on the Common Stock delivered upon conversion.


 


7.3.5       Taxes.
The Corporation shall pay any and all issue and other similar taxes that may be payable in respect of any issuance or delivery
of shares of Common Stock upon conversion of shares of Series A Preferred Stock pursuant to this Section 7. The Corporation
shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery
of shares of Common Stock in a name other than that in which the shares of Series A Preferred Stock so converted were registered,
and no such issuance or delivery shall be made unless and until the person or entity requesting such issuance has paid to the Corporation
the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid.


 






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7.4       Adjustment
for Merger or Reorganization, etc. Subject to the provisions of Subsection 7.3, if there shall occur any reorganization,
recapitalization, reclassification, consolidation or merger involving the Corporation in which the Common Stock (but not the Series
A Preferred Stock) is converted into or exchanged for securities, cash or other property (other than a transaction resulting in
an adjustment of the Series A Conversion Price), then, following any such reorganization, recapitalization, reclassification, consolidation
or merger, each share of Series A Preferred Stock shall thereafter be convertible in lieu of the Common Stock into which it was
convertible prior to such event into the kind and amount of securities, cash or other property which a holder of the number of
shares of Common Stock of the Corporation issuable upon conversion of one share of Series A Preferred Stock immediately prior to
such reorganization, recapitalization, reclassification, consolidation or merger would have been entitled to receive pursuant to
such transaction; and, in such case, appropriate adjustment (as determined in good faith by the Board of Directors of the Corporation)
shall be made in the application of the provisions in this Section 7 with respect to the rights and interests thereafter
of the holders of the Series A Preferred Stock, to the end that the provisions set forth in this Section 7 shall thereafter
be applicable, as nearly as reasonably may be, in relation to any securities or other property thereafter deliverable upon the
conversion of the Series A Preferred Stock.


 


7.5       Certificate
as to Adjustments. Upon the occurrence of each adjustment or readjustment of the Series A Conversion Price, the Corporation
at its expense shall, as promptly as reasonably practicable but in any event not later than ten (10) days thereafter, compute such
adjustment or readjustment in accordance with the terms hereof and furnish to each holder of Series A Preferred Stock a certificate
setting forth such adjustment or readjustment (including the kind and amount of securities, cash or other property into which the
Series A Preferred Stock is convertible) and showing in detail the facts upon which such adjustment or readjustment is based. The
Corporation shall, as promptly as reasonably practicable after the written request at any time of any holder of Series A Preferred
Stock (but in any event not later than ten (10) days thereafter), furnish or cause to be furnished to such holder a certificate
setting forth (i) the Series A Conversion Price then in effect, and (ii) the number of shares of Common Stock and the amount, if
any, of other securities, cash or property which then would be received upon the conversion of Series A Preferred Stock.


 






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7.6       Notice
of Record Date. In the event:


 


(a)       the
Corporation shall take a record of the holders of its Common Stock (or other capital stock or securities at the time issuable upon
conversion of the Series A Preferred Stock) for the purpose of entitling or enabling them to receive any dividend or other distribution,
or to receive any right to subscribe for or purchase any shares of capital stock of any class or any other securities, or to receive
any other security; or


 


(b)       of
any capital reorganization of the Corporation, any reclassification of the Common Stock of the Corporation, or any Deemed Liquidation
Event; or


 


(c)       of
the voluntary or involuntary dissolution, liquidation or winding-up of the Corporation,


 


then, and in each such case, the Corporation will send or cause
to be sent to the holders of the Series A Preferred Stock a notice specifying, as the case may be, (i) the record date for such
dividend, distribution or right, and the amount and character of such dividend, distribution or right, or (ii) the effective date
on which such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up is proposed
to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock (or such other capital stock
or securities at the time issuable upon the conversion of the Series A Preferred Stock) shall be entitled to exchange their shares
of Common Stock (or such other capital stock or securities) for securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up, and the amount per share and character
of such exchange applicable to the Series A Preferred Stock and the Common Stock. Such notice shall be sent at least fifteen (15)
days prior to the record date or effective date for the event specified in such notice.


 


Third:       The
foregoing amendment of the Certificate of Incorporation of the Corporation, as amended, herein certified has been duly adopted
in accordance with the provisions of Sections 228 and 242 of the General Corporation Law of the State of Delaware.


 






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In
Witness Whereof, the undersigned authorized officer of LipimetiX Development, Inc. has caused this Certificate of Amendment
of Certificate of Incorporation to be signed this _11th____ day of ___August___, 2017.


 


LIPIMETIX DEVELOPMENT, INC.


 


 


	 	
        By: /s/ Dennis I. Goldberg, Ph.D.         

         

        Name: Dennis I. Goldberg, Ph.D.          

        Title: President & CEO                           

         

         



 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


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