Exhibit 10.1

LIPIMETIX DEVELOPMENT, INC.

SERIES B PREFERRED STOCK
AND WARRANT PURCHASE AGREEMENT

TABLE OF CONTENTS

TABLE OF CONTENTS
(continued)

Exhibit A - SCHEDULE OF PURCHASERS

Exhibit B - FORM OF WARRANT

Exhibit C - FORM OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

Exhibit D - DISCLOSURE SCHEDULE

Exhibit E - RISK FACTORS

Exhibit F - FORM OF REGISTRATION RIGHTS AGREEMENT

Exhibit G - FORM OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT

SERIES B PREFERRED STOCK PURCHASE AGREEMENT

This Series B Preferred Stock AND WARRANT Purchase Agreement (this “Agreement”) is made and entered into as of August 25, 2016, by and among LipimetiX Development, Inc., a Delaware corporation (the “Company”), and the investors set forth on Exhibit A attached to this Agreement (each, a “Purchaser” and collectively, the “Purchasers”).

RECITALS

The Company desires to sell to the Purchasers, and the Purchasers desire to purchase from the Company, shares of the Company’s Series B-1 Preferred Stock, par value $0.00001 per share (the “ Series B-1 Preferred Stock ”) or Series B-2 Preferred Stock, par value $0.00001 per share (the “ Series B-2 Preferred Stock ,” and collectively with the Series B-1 Preferred Stock, the “ Series B Preferred Stock ”), on the terms and subject to the conditions set forth in this Agreement.

The Purchasers who purchase shares of Series B-1 Preferred Stock shall also acquire, without additional consideration, warrants to purchase up to an aggregate of 49,100 shares of Series B-1 Preferred Stock in the form of Exhibit B attached hereto (the “ Warrants ”).

AGREEMENT

The parties hereby agree as follows:

1.   Purchase and Sale of Preferred Stock and Warrants.

1.1       Sale and Issuance of Series B Preferred Stock and Warrants .

(a)                 The Company shall adopt and file with the Secretary of State of the State of Delaware on or before the Initial Closing (as defined below) the Amended and Restated Certificate of Incorporation in the form of Exhibit C attached to this Agreement (the “ Restated Certificate ”).

(b)                Subject to the terms and conditions of this Agreement, each Purchaser agrees to purchase at the Closing and the Company agrees to sell and issue to each Purchaser at the Closing that number of shares of Series B-1 Preferred Stock and Warrants or Series B-2 Preferred Stock set forth opposite each Purchaser’s name on Exhibit A , at the purchase price set forth on Exhibit A . The shares of Series B-1 Preferred Stock and Series B-2 Preferred Stock issued to the Purchasers pursuant to this Agreement (including any shares issued at the Initial Closing and any Additional Shares, as defined below) shall be referred to in this Agreement as the “ Shares .” The shares of Series B-1 Preferred Stock issuable upon exercise of the Warrants shall be referred to in this Agreement as the “ Warrant Shares .”

1.2       Closing; Delivery .

(a)                 The initial purchase and sale of the Shares and Warrants shall take place remotely via the exchange of documents and signatures, on August 25, 2016, or at such other time and place as the Company and the Purchasers mutually agree upon, orally or in writing (which time and place are designated as the “ Initial Closing ”). In the event there is more than one closing, the term “ Closing ” shall apply to each such closing unless otherwise specified.

(b)                At each Closing, the Company shall deliver to each Purchaser a certificate representing the Shares being purchased by such Purchaser at such Closing against payment of the purchase price therefor by check payable to the Company or by wire transfer to a bank account designated by the Company. In addition, the Company will issue to each Purchaser of Series B-1 Preferred Stock a Warrant to purchase the number of Warrant Shares set forth opposite such Purchaser’s name on Exhibit A .

1.3.     Sale of Additional Shares of Preferred Stock . After the Initial Closing, the Company may sell, on similar terms and conditions as those contained in this Agreement as determined by the Company, up to 45,640 additional shares of Series B-1 Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or similar recapitalization affecting such shares) and additional Warrants to purchase up to 15,975 shares of Series B-1 Preferred Stock, and up to 1,200,000 shares of Series B-2 Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or similar recapitalization affecting such shares) (the additional shares of Series B-1 Preferred Stock and Series B-2 Preferred Stock are referred to herein collectively as the “ Additional Shares ”), to one or more purchasers (the “ Additional Purchasers ”), provided that (i) such subsequent sale is consummated prior to December 31, 2016; and (ii) each Additional Purchaser shall become a party to the Transaction Agreements (as defined below), by executing and delivering a counterpart signature page to each of the Transaction Agreements. Exhibit A to this Agreement shall be updated to reflect the number of Additional Shares, and Warrants if applicable, purchased at each such Closing, the parties purchasing such Additional Shares, and Warrants if applicable, and the purchase price per share.

1.4.     Use of Proceeds . In accordance with the directions of the Company’s Board of Directors, the Company will use the proceeds from the sale of the Shares to provide working capital for the development and commercialization of AEM-28-14 and analogs, for other general corporate purposes, and to repay a revolving line of credit to Capstone Therapeutics Corp.

1.5.     Defined Terms Used in this Agreement . In addition to the terms defined above, the following terms used in this Agreement shall be construed to have the meanings set forth or referenced below.

(a)                 “ Accounting Services Agreement ” means that certain Accounting Services Agreement, effective as of August 3, 2012, as amended from time to time, by and between the Company and Capstone Therapeutics Corp.

(b)                “ Affiliate ” means, with respect to any specified Person, any other Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person, including, without limitation, any general partner, managing member, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company with, such Person.

(c)                 “ Amended and Restated Stockholders Agreement ” means that certain Amended and Restated Stockholders Agreement, dated as of the date hereof, by and among the Company and the stockholders party thereto.

(d)                “ Code ” means the Internal Revenue Code of 1986, as amended.

(e)                 “ Company Covered Person ” means, with respect to the Company as an “issuer” for purposes of Rule 506 promulgated under the Securities Act, any Person listed in the first paragraph of Rule 506(d)(1).

(f)                 “ Company Intellectual Property ” means all patents, patent applications, trademarks, trademark applications, service marks, service mark applications, tradenames, copyrights, trade secrets, domain names, mask works, information and proprietary rights and processes, similar or other intellectual property rights, subject matter of any of the foregoing, tangible embodiments of any of the foregoing, licenses in, to and under any of the foregoing, and any and all such cases that are owned or used by the Company in the conduct of the Company’s business as now conducted and as presently proposed to be conducted.

(g)                “ Key Consultants ” means any executive-level employee of Benu BioPharma, Inc., as well as any employee or consultant of Benu BioPharma, Inc. who either alone or in concert with others develops, invents, programs or designs any Company Intellectual Property pursuant to the Management Agreement.

(h)                “ Knowledge ” including the phrase “ to the Company’s knowledge ” shall mean the actual knowledge of the Company’s executive officers.

(i)                “ Management Agreement ” means that certain Management Agreement, dated as of August 3, 2012, by and among the Company, Benu BioPharma, Inc. and certain affiliates of Benu BioPharma, Inc., as amended from time to time.

(j)                “ Material Adverse Effect ” means a material adverse effect on the business, assets (including intangible assets), liabilities, financial condition, property, or results of operations of the Company.

(k)                “ Person ” means any individual, corporation, partnership, trust, limited liability company, association or other entity.

(l)                “ Purchaser ” means each of the Purchasers who is initially a party to this Agreement and any Additional Purchaser who becomes a party to this Agreement at a subsequent Closing under Subsection 1.2 (b).

(m)               “ Registration Rights Agreement ” means that certain Registration Rights Agreement, dated as of the date hereof, by and among the Company and the stockholders party thereto.

(n)                “ Securities ” means the Shares, the Warrants, the Warrant Shares, and the Common Stock issuable upon the conversion of the Shares.

(o)                “ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

(p)                “ Shares ” means the shares of Series B-1 Preferred Stock and Series B-2 Preferred Stock issued at the Initial Closing and any Additional Shares issued at a subsequent Closing under Subsection 1.2 (b).

(q)                “ Transaction Agreements ” means this Agreement, the Warrants, the Amended and Restated Stockholders Agreement, and the Registration Rights Agreement.

2.   Representations and Warranties of the Company . The Company hereby represents and warrants to each Purchaser that, except as set forth on the Disclosure Schedule attached as Exhibit D to this Agreement, which exceptions shall be deemed to be part of the representations and warranties made hereunder, the following representations are true and complete as of the date of the Initial Closing, except as otherwise indicated. The Disclosure Schedule shall be arranged in sections corresponding to the numbered and lettered sections and subsections contained in this Section 2 , and the disclosures in any section or subsection of the Disclosure Schedule shall qualify other sections and subsections in this Section 2 only to the extent it is readily apparent from a reading of the disclosure that such disclosure is applicable to such other sections and subsections.

2.1.     Organization, Good Standing, Corporate Power and Qualification . The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as presently conducted and as proposed to be conducted. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect.

2.2.     Capitalization .

(a)                 The authorized capital of the Company consists, immediately prior to the Initial Closing, of:

(i)          3,000,000 shares of Class A-1 and Class A-2 common stock, $.00001 par value per share (the “ Common Stock ”), 1,120,000 shares of which are issued and outstanding immediately prior to the Initial Closing. All of the outstanding shares of Common Stock have been duly authorized, are fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.

(ii)        5,000,000 shares of Series A Preferred Stock, $.00001 par value per share (the “Series A Preferred Stock” ) of which 3,500,000 shares are issued and outstanding immediately prior to the Initial Closing. The rights, privileges and preferences of the Preferred Stock are as stated in the Restated Certificate and as provided by the Delaware General Corporation Law.

(iii)      350,000 shares of Series B-1 Preferred Stock, $.00001 par value per share, none of which are issued and outstanding immediately prior to the Initial Closing, and 1,200,000 shares of Series B- 2 Preferred Stock, $.00001 par value per share, none of which are issued and outstanding immediately prior to the Initial Closing. The rights, privileges and preferences of the Preferred Stock are as stated in the Restated Certificate and as provided by the Delaware General Corporation Law.

(b)                The Company has adopted an equity incentive plan (the “ Stock Plan ”) and has reserved 71,500 shares of Class A-1 Common Stock, which represents six percent (6%) of the total outstanding shares of Common Stock on a fully diluted basis (prior to issuance of the Series B Preferred Shares pursuant hereto), for issuance to officers, directors, employees and consultants of the Company pursuant to the Stock Plan.

(c)                 Subsection 2.2(b) of the Disclosure Schedule sets forth the capitalization of the Company immediately following the Initial Closing including the number of shares of the following: (i) issued and outstanding Class A-1 Common Stock and Class A-2 Common Stock; (ii) granted stock options, including vesting schedule and exercise price; (iii) shares of Common Stock reserved for future award grants under the Stock Plan; (iv) each series of Preferred Stock; and (v) warrants or stock purchase rights, if any. Except for (A) the conversion privileges of the Shares to be issued under this Agreement, (B) the Warrants, (C) the rights provided in the Stockholders Agreement, and (D) the securities and rights described in Subsection 2.2(a)(iii) of this Agreement and Subsection 2.2(b) of the Disclosure Schedule, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Common Stock or Preferred Stock, or any securities convertible into or exchangeable for shares of Common Stock or Preferred Stock.

2.3.     Subsidiaries . The Company currently owns all of the outstanding equity of LipimetiX Australia Pty Ltd ( “LipimetiX Australia” ). The Company formed LipimetiX Australia in order to allow the Company to perform clinical trials in Australia and to participate in a program sponsored by the Australian government which may provide reimbursement to the Company of forty-five percent (45%) of allowable expenses incurred by the Company in Australia to perform such clinical trials. Except for LipimetiX Australia, the Company does not currently own or control, directly or indirectly, any interest in any other corporation, partnership, trust, joint venture, limited liability company, association, or other business entity.

2.4.     Authorization . All corporate action required to be taken by the Company’s Board of Directors and stockholders in order to authorize the Company to enter into the Transaction Agreements, and to issue the Shares and Warrants, as applicable, at the Closing, and to issue the Warrant Shares and the Common Stock issuable upon conversion of the Shares, has been taken or will be taken prior to the Closing. All action on the part of the officers of the Company necessary for the execution and delivery of the Transaction Agreements, the performance of all obligations of the Company under the Transaction Agreements to be performed as of the Closing, and the issuance and delivery of the Shares and Warrants has been taken or will be taken prior to the Closing. The Transaction Agreements, when executed and delivered by the Company, shall constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, or (iii) to the extent indemnification provisions contained in the Transaction Agreements may be limited by applicable federal or state securities laws.

2.5.     Valid Issuance of Shares .

(a)                 The Shares, when issued, sold and delivered in accordance with the terms and for the consideration set forth in this Agreement will be validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under the Transaction Agreements, applicable state and federal securities laws and liens or encumbrances created by or imposed by a Purchaser. Assuming the accuracy of the representations of the Purchasers in Section 3 of this Agreement and subject to the filings described in Subsection 2.5 (b) below, the Shares will be issued in compliance with all applicable federal and state securities laws. The Warrant Shares and the Common Stock issuable upon conversion of the Shares have been duly reserved for issuance, and upon issuance in accordance with the terms of the Restated Certificate, will be validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under the Transaction Agreements, applicable federal and state securities laws and liens or encumbrances created by or imposed by a Purchaser.

(b)                No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a “ Disqualification Event ”) is applicable to the Company or, to the Company’s knowledge, any Company Covered Person, except for a Disqualification Event as to which Rule 506(d)(2)(ii–iv) or (d)(3), is applicable.

2.6.     Governmental Consents and Filings . Assuming the accuracy of the representations made by the Purchasers in Section 3 of this Agreement, no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the part of the Company in connection with the consummation of the transactions contemplated by this Agreement, except for (i) the filing of the Restated Certificate, which will have been filed as of the Initial Closing, and (ii) filings pursuant to Regulation D of the Securities Act, and applicable state securities laws, which have been made or will be made in a timely manner.

2.7.     Litigation . There is no claim, action, suit, proceeding, arbitration, complaint, charge or investigation pending or to the Company’s knowledge, currently threatened in writing (i) against the Company; or (ii) to the Company’s knowledge, that questions the validity of the Transaction Agreements or the right of the Company to enter into them, or to consummate the transactions contemplated by the Transaction Agreements; or (iii) to the Company’s knowledge, that would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

2.8.     Intellectual Property . The Company possesses certain intellectual rights pursuant to the Exclusive License Agreement, dated August 26, 2011, between The UAB Research Foundation and LipimetiX Development, LLC, as amended and assigned to the Company, governing the license and exploitation of the Licensed Patents, as defined therein, relating to Apolipoprotein E mimetic peptides. The Company has also filed one formulation patent application with the United States Patent and Trademark Office.

2.9.     Compliance with Other Instruments . The Company is not in violation or default (i) of any provisions of its Restated Certificate or Bylaws, (ii) of any instrument, judgment, order, writ or decree, (iii) under any note, indenture or mortgage, or (iv) under any lease, agreement, contract or purchase order to which it is a party or by which it is bound that is required to be listed on the Disclosure Schedule, or (v) to its knowledge, of any provision of federal or state statute, rule or regulation applicable to the Company, the violation of which would have a Material Adverse Effect. The execution, delivery and performance of the Transaction Agreements and the consummation of the transactions contemplated by the Transaction Agreements will not result in any such violation or be in conflict with or constitute, with or without the passage of time and giving of notice, either (i) a default under any such provision, instrument, judgment, order, writ, decree, contract or agreement, or (ii) an event which results in the creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, forfeiture, or nonrenewal of any material permit or license applicable to the Company.

2.10.      Agreements; Actions .

(a)                 Except for the Transaction Agreements, the Exclusive License Agreement, the Management Agreement and the Accounting Services Agreement, there are no agreements, understandings, instruments, contracts or proposed transactions to which the Company is a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $1,000,000, (ii) the license of any patent, copyright, trademark, trade secret or other proprietary right to or from the Company, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other Person that limit the Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, or (iv) indemnification by the Company with respect to infringements of proprietary rights.

(b)                The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed other than indebtedness in the aggregate principal amount of approximately $1,500,000 owed to Capstone Therapeutics Corp., or indebtedness incurred in the ordinary course of business, (iii) made any loans or advances to any Person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. For the purposes of (a) and (b) of this Subsection 2.9 , all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same Person (including Persons the Company has reason to believe are affiliated with each other) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection.

(c)                 The Company is not a guarantor or indemnitor of any indebtedness of any other Person.

2.11.                 Certain Transactions . The Company is not indebted, directly or indirectly, to any of its directors, officers or employees or to their respective spouses or children or to any Affiliate of any of the foregoing, other than in connection with expenses or advances of expenses incurred in the ordinary course of business or employee relocation expenses and for other customary employee benefits made generally available to all employees. None of the Company’s directors, officers or employees, or any members of their immediate families, or any Affiliate of the foregoing are, directly or indirectly, indebted to the Company.

2.12.                 Tax Returns and Payments . There are no federal, state, county, local or foreign taxes due and payable by the Company which have not been timely paid. There are no accrued and unpaid federal, state, country, local or foreign taxes of the Company which are due, whether or not assessed or disputed. There have been no examinations or audits of any tax returns or reports by any applicable federal, state, local or foreign governmental agency. The Company has duly and timely filed all federal, state, county, local and foreign tax returns required to have been filed by it and there are in effect no waivers of applicable statutes of limitations with respect to taxes for any year.

2.13.                 Permits . The Company has all franchises, permits, licenses and any similar authority necessary for the conduct of its business, the lack of which could reasonably be expected to have a Material Adverse Effect. The Company is not in default in any material respect under any of such franchises, permits, licenses or other similar authority.

2.14.                 Disclosure . The Company has made available to the Purchasers all the information reasonably available to the Company that the Purchasers have requested for deciding whether to acquire the Shares, including a PowerPoint presentation regarding proposed pharmaceutical development operations (the “ Operating Plan ”). No representation or warranty of the Company contained in this Agreement, as qualified by the Disclosure Schedule, and no certificate furnished or to be furnished to Purchasers at the Closing contains any untrue statement of a material fact or, to the Company’s knowledge, omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which they were made. The Operating Plan was prepared in good faith; however, the Company does not warrant that it will achieve any results projected in the Operating Plan. It is understood that this representation is qualified by the fact that the Company has not delivered to the Purchasers, and has not been requested to deliver, a private placement or similar memorandum or any written disclosure of the types of information customarily furnished to purchasers of securities.

3.   Representations, Warranties and Covenants of the Purchasers . Each Purchaser hereby represents and warrants to the Company, severally and not jointly, that:

3.1.     Authorization . The Purchaser has full power and authority to enter into the Transaction Agreements. The Transaction Agreements to which the Purchaser is a party, when executed and delivered by the Purchaser, will constitute valid and legally binding obligations of the Purchaser, enforceable in accordance with their terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and any other laws of general application affecting enforcement of creditors’ rights generally, and as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies, or (b) to the extent the indemnification provisions contained in the Transaction Agreements may be limited by applicable federal or state securities laws.

3.2.     Purchase Entirely for Own Account . This Agreement is made with the Purchaser in reliance upon the Purchaser’s representation to the Company, which by the Purchaser’s execution of this Agreement, the Purchaser hereby confirms, that the Shares, Warrants, and Warrant Shares, as applicable, to be acquired by the Purchaser will be acquired for investment for the Purchaser’s own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that the Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same. By executing this Agreement, the Purchaser further represents that the Purchaser does not presently have any contract, undertaking, agreement or arrangement with any Person to sell, transfer or grant participations to such Person or to any third Person, with respect to any of the Shares, Warrants or Warrant Shares. The Purchaser has not been formed for the specific purpose of acquiring the Shares, Warrants or Warrant Shares.

3.3.     Disclosure of Information . The Purchaser has had an opportunity to discuss the Company’s business, management, financial affairs and the terms and conditions of the offering of the Shares with the Company’s management and has had an opportunity to review the Company’s facilities. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2 of this Agreement or the right of the Purchasers to rely thereon.

3.4.     Restricted Securities; No Public Market . The Purchaser understands that the Securities have not been, and will not be, registered under the Securities Act, by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of the Purchaser’s representations as expressed herein. The Purchaser understands that the Shares and Warrants are, and the Warrant Shares and Common Stock issuable upon conversion of the Shares will be, “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these laws, the Purchaser must hold the Securities indefinitely unless they are registered with the Securities and Exchange Commission and qualified by state authorities, or an exemption from such registration and qualification requirements is available. The Purchaser acknowledges that the Company has no obligation to register or qualify the Securities for resale except as set forth in the Registration Rights Agreement. The Purchaser further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Securities, and on requirements relating to the Company which are outside of the Purchaser’s control, and which the Company is under no obligation and may not be able to satisfy. The Purchaser understands that no public market now exists for the Securities, and that the Company has made no assurances that a public market will ever exist for the Securities.

3.5.     High Degree of Risk; Reliance on Own Advisors . The Purchaser acknowledges that an investment in the Securities involves a high degree of risk and there can be no assurance regarding the current or future economic value of the Securities or the performance of the Company or its business operations. The Purchaser has carefully read the Risk Factors attached to this Agreement as Exhibit E and incorporated into this Agreement by this reference (“Risk Factors”), has had an opportunity to review the Risk Factors with the officers of the Company and their representatives, and to ask questions and receive answers from them regarding such matters. The Purchaser further acknowledges that the Purchaser has relied on his, her or its own analysis and evaluation of the merits of acquiring the Shares and Warrants, as applicable, and has reviewed with his, her or its own tax advisors the U.S. federal, state, local and any applicable foreign tax consequences of acquiring the Shares and Warrants, as applicable. With respect to such matters, the Purchaser relies solely on such advisors and not on any statements or representations of the Company or any of its officers or agents, written or oral.

3.6.     Legends . The Purchaser understands that the Shares and the Warrant Shares and any securities issued in respect of or exchange for the Shares or the Warrant Shares, may be notated with one or all of the following legends:

“THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH TRANSFER MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.”

(a)                 Any legend set forth in, or required by, the other Transaction Agreements.

(b)                Any legend required by the securities laws of any state to the extent such laws are applicable to the Shares or Warrant Shares represented by the certificate, instrument, or book entry so legended.

3.7.     Accredited Investor . The Purchaser is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act.

3.8.     Foreign Investors . If the Purchaser is not a United States person (as defined by Section 7701(a)(30) of the Code), the Purchaser hereby represents that it has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any invitation to subscribe for the Shares or any use of this Agreement, including (i) the legal requirements within its jurisdiction for the purchase of the Shares, (ii) any foreign exchange restrictions applicable to such purchase, (iii) any governmental or other consents that may need to be obtained, and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale, or transfer of the Shares. The Purchaser’s subscription and payment for and continued beneficial ownership of the Shares will not violate any applicable securities or other laws of the Purchaser’s jurisdiction.

3.9.     No General Solicitation . Neither the Purchaser, nor any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including, through a broker or finder (a) engaged in any general solicitation, or (b) published any advertisement in connection with the offer and sale of the Shares or Warrants.

3.10.                 Exculpation Among Purchasers . The Purchaser acknowledges that it is not relying upon any Person, other than the Company and its officers and directors, in making its investment or decision to invest in the Company.

3.11.                 Residence . If the Purchaser is an individual, then the Purchaser resides in the state or province identified in the address of the Purchaser set forth on Exhibit A ; if the Purchaser is a partnership, corporation, limited liability company or other entity, then the office or offices of the Purchaser in which its principal place of business is identified in the address or addresses of the Purchaser set forth on Exhibit A .

3.12.                 Acknowledgment Regarding Contracts and Plan . The Purchaser hereby acknowledges that (i) the Company is party to the Management Agreement, pursuant to which Benu Biopharma, Inc., an Affiliate of certain of the stockholders of the Company, is contracted to manage all aspects of AEM-28 and analogs development, which Management Agreement provides for a monthly fee to Benu Biopharma for such services, as referenced in the Disclosure Schedule, and (ii) the Company is party to the Accounting Services Agreement, pursuant to which Capstone Therapeutics Corp., on a monthly fee basis, provides all cash management, accounting and contract administration to the Company, and management of LipimetiX Australia, as referenced in the Disclosure Schedule. The Purchaser also acknowledges that the Company may increase the number of shares available under the Stock Plan, and does hereby consent to and approve any amendment to increase such number of shares subject to the Stock Plan, and agrees to vote in favor thereof if presented to the stockholders of the Company for approval.

4.    Conditions to the Purchasers’ Obligations at Closing . The obligations of each Purchaser to purchase Shares and Warrants at the Initial Closing or any subsequent Closing are subject to the fulfillment, on or before such Closing, of each of the following conditions, unless otherwise waived:

4.1       Representations and Warranties . The representations and warranties of the Company contained in Section 2 shall be true and correct in all respects as of such Closing.

4.2       Performance . The Company shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by the Company on or before such Closing.

4.3       Compliance Certificate . The President of the Company shall deliver to the Purchasers at such Closing a certificate certifying that the conditions specified in Subsections 4.1 and 4.2 have been fulfilled.

4.4       Qualifications . All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Shares and the Warrants pursuant to this Agreement shall be obtained and effective as of such Closing.

4.5       Registration Rights Agreement . The Company and each Purchaser (other than the Purchaser relying upon this condition to excuse such Purchaser’s performance hereunder) and the other stockholders of the Company named as parties thereto shall have executed and delivered the Registration Rights Agreement, substantially in the form of Exhibit F hereto.

4.6       Amended and Restated Stockholders Agreement . The Company, each Purchaser (other than the Purchaser relying upon this condition to excuse such Purchaser’s performance hereunder), and the other stockholders of the Company named as parties thereto shall have executed and delivered the Amended and Restated Stockholders Agreement, substantially in the form of Exhibit G hereto.

4.7       Amended and Restated Certificate . The Company shall have filed the Restated Certificate with the Secretary of State of Delaware on or prior to the Closing, which shall continue to be in full force and effect as of the Closing .

4.8       Secretary’s Certificate . The Secretary of the Company shall have delivered to the Purchasers at the Closing a certificate certifying (i) the Bylaws of the Company, (ii) resolutions of the Board of Directors of the Company approving the Transaction Agreements and the transactions contemplated under the Transaction Agreements, and (iii) resolutions of the stockholders of the Company approving the Restated Certificate.

4.9       Proceedings and Documents . All corporate and other proceedings in connection with the transactions contemplated at the Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to each Purchaser, and each Purchaser (or its counsel) shall have received all such counterpart original and certified or other copies of such documents as reasonably requested. Such documents may include good standing certificates.

4.10   Preemptive Rights . The Company shall have fully satisfied (including with respect to rights of timely notification) or obtained enforceable waivers in respect of any preemptive or similar rights directly or indirectly affecting any of its securities.

5.   Conditions of the Company’s Obligations at Closing . The obligations of the Company to sell Shares and Warrants to the Purchasers at the Initial Closing or any subsequent Closing are subject to the fulfillment, on or before the Closing, of each of the following conditions, unless otherwise waived:

5.1       Representations and Warranties . The representations and warranties of each Purchaser contained in Section 3 shall be true and correct in all respects as of such Closing.

5.2       Performance . The Purchasers shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by them on or before such Closing.

5.3       Qualifications . All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Shares and Warrants, as applicable, pursuant to this Agreement shall be obtained and effective as of the Closing.

5.4       Registration Rights Agreement . Each Purchaser shall have executed and delivered the Registration Rights Agreement, substantially in the form of Exhibit E hereto.

5.5       Amended and Restated Stockholders Agreement . Each Purchaser and the other stockholders of the Company named as parties thereto shall have executed and delivered the Amended and Restated Stockholders Agreement, substantially in the form of Exhibit F hereto. 

6.   Miscellaneous . 

6.1       Survival of Warranties . Unless otherwise set forth in this Agreement, the representations and warranties of the Company and the Purchasers contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing and shall in no way be affected by any investigation or knowledge of the subject matter thereof made by or on behalf of the Purchasers or the Company.

6.2       Successors and Assigns . The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

6.3       Governing Law . This Agreement shall be governed by the internal law of the State of Delaware.

6.4       Counterparts . This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g. , www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

6.5       Titles and Subtitles . The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

6.6       Notices . All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt, or (a) personal delivery to the party to be notified, (b) when sent, if sent by electronic mail or facsimile during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their address as set forth on the signature page or Exhibit A , or to such e-mail address, facsimile number or address as subsequently modified by written notice given in accordance with this Subsection 6.6 .

6.7       No Finder’s Fees . Each party represents that it neither is nor will be obligated for any finder’s fee or commission in connection with the Initial Closing of the sale of the Series B Preferred Stock to the initial Purchasers listed on Exhibit A hereto. Each Purchaser agrees to indemnify and to hold harmless the Company from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which each Purchaser or any of its officers, employees or representatives is responsible. The Company agrees to indemnify and hold harmless each Purchaser from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which the Company or any of its officers, employees or representatives is responsible.

6.8       Intentionally Omitted .

6.9       Attorneys’ Fees . If any action at law or in equity (including, arbitration) is necessary to enforce or interpret the terms of any of the Transaction Agreements or the Warrants, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.

6.10   Amendments and Waivers . Except as set forth in Subsection 1.2 (b) of this Agreement, any term of this Agreement may be amended, terminated or waived only with the written consent of the Company and the holders of at least fifty percent (50%) of the outstanding shares of Common Stock (assuming conversion of all outstanding Series B Preferred Stock). Any amendment or waiver effected in accordance with this Subsection 6.10 shall be binding upon the Purchasers and each transferee of the Securities, each future holder of all such Securities, and the Company.

6.11   Severability . The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision.

6.12   Delays or Omissions . No delay or omission to exercise any right, power or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power or remedy of such non-breaching or non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.

6.13   Entire Agreement . This Agreement (including the Exhibits hereto), the Restated Certificate, the Warrants, and the other Transaction Agreements constitute the full and entire understanding and agreement between the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties are expressly canceled.

6.14   Corporate Securities Law . THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO THE QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON THE QUALIFICATION BEING OBTAINED UNLESS THE SALE IS SO EXEMPT.

6.15   Dispute Resolution . The parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of Arizona and to the jurisdiction of the United States District Court for the District of Arizona for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the state courts of Arizona or the United States District Court for the District of Arizona, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.

Waiver of Jury Trial : EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.

[Signature Pages Follow.]

IN WITNESS WHEREOF, the parties have executed this Series B Preferred Stock and Warrant Purchase Agreement as of the date first written above.

[Signature Page to Stock Purchase Agreement]

[Signature Page to Stock Purchase Agreement]

EXHIBIT A

SCHEDULE OF PURCHASERS

EXHIBIT B

FORM OF WARRANT

EXHIBIT C

FORM OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

EXHIBIT D

DISCLOSURE SCHEDULE

Capstone Revolving Line of Credit

At June 30, 2016, the outstanding balance of the Revolving Line of Credit “(Line”) extended to LipimetiX Development, Inc. (“JV” or “LipimetiX”) by Capstone Therapeutics Corp. was $1,553,000. The Line bears interest at 5% and is due December 31, 2016.

Benu BioPharma Management Services Agreement

The JV entered into a Management Services Agreement with Benu BioPharma, Inc. (“Benu”) to manage JV development activities. Benu is composed of Dennis I. Goldberg, Ph.D., Phillip M. Friden, Ph.D., and Eric M. Morrel, Ph.D.   The current monthly management fee is $80,000. However, no Management fees are due or payable except to the extent funding is available, as unanimously approved by members of the JV Board of Directors and as reflected in the approved operating budget in effect at that time.  Following the Series B-1 closing, Benu will be paid $50,000 per month for six months as a stated use of Series B-1 proceeds.

Capstone Accounting Services Agreement

The JV entered into an Accounting Services Agreement with Capstone Therapeutics Corp. to manage JV accounting and administrative functions. The current monthly accounting services fee is $10,000. However, no Accounting Services fees are due or payable except to the extent funding is available, as unanimously approved by members of the JV Board of Directors and as reflected in the approved operating budget in effect at that time.  Following the Series B-1 closing, Capstone Therapeutics Corp. will be paid $10,000 per month for six months as a stated use of Series B-1 proceeds.

LipimetiX Stock Plan

The LipimetiX Stock Plan was approved by the LipimetiX board and a majority of shareholders on June 10, 2016 for the purpose of incentivizing key management, board and consultants who contribute to the success of LipimetiX. On that date, the board authorized a pool of 71,500 common shares (6% of fully-diluted shares outstanding prior to the Series B-1 financing) for potential grant.  At the same meeting, the board granted a total of 67,026 options to Dr. Goldberg, Dr. Friden, Dr. Morell, Dr. Anantharamaiah, Dr. Steer, Dr. Garber, Mr. Taeger and Mr. Holliman, recognizing past and future service to LipimetiX.  The options are priced at 10% of the price per share of the Series B-1 or $1.07 per share and are 50% vested as of grant with remaining vesting on a monthly linear basis over 24 months.

EXHIBIT E

RISK FACTORS

An investment in the Shares should be considered highly speculative and involves a number of risks regarding our business, including without limitation those described below, as well as risks regarding the terms of the investment as set forth in this Agreement, the Certificate and the other Transaction Agreements. You should conduct your own due diligence prior to investing, and should also make such inquiries of the Company as you deem appropriate. You should also consult with your own legal, tax and financial advisors. If any of the following risks actually occur, the Company’s business, financial condition, results of operation, or even its continued existence could be harmed. Additional risks and uncertainties not presently known to the Company, or that it currently thinks are immaterial, may also impair the Company’s business operations. Among the risk components that you should consider and discuss with your advisors are the following:

1. We are a biopharmaceutical company with no revenue generating operations and high investment costs. Therefore, we will require additional funding to realize revenue from any of our product candidates, and we may never realize any revenue if our product candidates cannot be commercialized.

Our current level of funds is not sufficient to support continued research to develop our product candidates, and the proceeds of this offering will not be sufficient to fund all the research expenses necessary to achieve commercialization of any of our product candidates. We will require substantial additional capital, and/or a development partner, to complete the clinical trials and supporting research and production efforts necessary to obtain FDA or comparable foreign agencies’ approval, if any, for our product candidates. We may not receive any revenue from our product candidates until we receive regulatory approval and begin commercialization of our product candidates. We cannot predict whether, or when, that might occur. We can give no assurances regarding how much further development of our product candidates the proceeds will fund before more funding is necessary. There is no assurance that we can obtain needed funding from third parties on terms acceptable to us, or at all. New sources of funds, including raising capital through the sales of our debt or equity securities, joint venture or other forms of joint development arrangements, sales of development rights, or licensing agreements, may not be available or may only be available on terms that would have a material adverse impact on our existing stockholders’ interests.

Our future cash expenditure levels are difficult to forecast because the forecast is based on assumptions about the level of future operations, including the number of research projects we pursue, the pace at which we pursue them, the quality of the data collected and the requests of the FDA or comparable foreign agencies to expand, narrow or conduct additional clinical trials and analyze data. Changes in any of these assumptions can change significantly our estimated cash expenditure levels.

2. Our business is subject to stringent regulation, and if we do not obtain regulatory approval for our product candidates, we will not be able to generate revenue.

Our research, development, pre-clinical and clinical trial activities and the manufacture and marketing of any products that we may successfully develop are subject to an extensive regulatory approval process by the FDA and other regulatory agencies in the United States and abroad. The process of obtaining required regulatory approvals for pharmaceutical products is lengthy, expensive and uncertain, and any such regulatory approvals may entail limitations on the indicated usage of a product, which may reduce the product’s market potential. None of our product candidates has been approved for sale.

If we experience delays in our clinical trials, we will incur additional costs and our opportunities to monetize product candidates will be deferred. Delays could occur for many reasons, including the following:

Consequently, we cannot assure that we will make submissions to the FDA or comparable foreign agencies in the timeframe that we have planned, or at all, or that our submissions will be approved by the FDA or comparable foreign agencies. Even if regulatory clearance is obtained, post-market evaluation of our future products, if required, could result in restrictions on a product’s marketing or withdrawal of a product from the market as well as possible civil and criminal sanctions.

3. If our product candidates do not gain market acceptance or our competitors develop and market products that are more effective than our product candidates, our commercial opportunities will be reduced or eliminated.

Even if we bring one or more products to market, there is no assurance that we will be able to successfully manufacture or market the products or that potential customers will buy them. Market acceptance will depend on our ability to demonstrate to physicians and patients the benefits of the future products in terms of safety, efficacy, and convenience, ease of administration and cost effectiveness, as well as on our ability to continue to develop product candidates to respond to competitive and technological changes. In addition, we believe that market acceptance depends on the effectiveness of our marketing strategy, the pricing of our future products and the reimbursement policies of government and third-party payors. Physicians may not prescribe our future products, and patients may determine, for any reason, that our product is not useful to them. Insurance companies and other third party payors may determine not to reimburse for the cost of the product.

Competition in the pharmaceutical and biotechnology industries is intense and is expected to increase. Several biotechnology and pharmaceutical companies, as well as academic laboratories, universities and other research institutions, are involved in research and/or product development for indications targeted for use by our Apo E mimetic peptide molecule, AEM-28 (“AEM-28”), and its analogs. Most of our competitors have significantly greater research and development capabilities, experience in obtaining regulatory approvals and manufacturing, marketing, financial and managerial resources than we have.

Our competitors may succeed in developing products that are more effective than the ones we have under development or that render our proposed products or technologies noncompetitive or obsolete. In addition, certain of our competitors may achieve product commercialization before we do. If any of our competitors develops a product that is more effective than one that we are developing or plans to develop, or is able to obtain FDA or comparable foreign agencies’ approval for commercialization before we do, we may not be able to achieve significant market acceptance for certain of our products, which would have a material adverse effect on our business.

4. If we cannot protect our AEM-28 and other patents, or our intellectual property generally, our ability to develop and commercialize our future products will be severely limited.

Our success will depend in part on our ability to maintain and enforce patent protection for AEM-28 and its analogs and each resulting product. Without patent protection, other companies could offer substantially identical products for sale without incurring the sizable discovery, development and licensing costs that we have incurred. Our ability to recover these expenditures and realize profits upon the sale of products would then be diminished.

AEM-28 is patented and patent applications for the AEM-28 analogs have be filed. There have been no successful challenges to the patents. However, if there were to be a challenge to these patents or any of the patents for product candidates, a court may determine that the patents are invalid or unenforceable. Even if the validity or enforceability of a patent is upheld by a court, a court may not prevent alleged infringement on the grounds that such activity is not covered by the patent claims. Any litigation to enforce our rights to use our or our licensors’ patents will be costly, time consuming and may distract management from other important tasks.

As is commonplace in the biotechnology and pharmaceutical industries, we employ, or engage as consultants, individuals who were previously employed at other biotechnology or pharmaceutical companies, including our competitors or potential competitors. To the extent our employees are involved in research areas which are similar to those areas in which they were involved at their former employers, we may be subject to claims that such employees and/or we have inadvertently or otherwise used or disclosed the alleged trade secrets or other proprietary information of the former employers. Litigation may be necessary to defend against such claims, which could result in substantial costs and be a distraction to management and which may have a material adverse effect on us, even if we are successful in defending such claims.

We also rely on trade secrets, know-how and other proprietary information. We seek to protect this information, in part, through the use of confidentiality agreements with employees, consultants, advisors and others. Nonetheless, we cannot assure that those agreements will provide adequate protection for our trade secrets, know-how or other proprietary information and prevent their unauthorized use or disclosure. The risk that other parties may breach confidentiality agreements or that our trade secrets become known or independently discovered by competitors, could adversely affect us by enabling our competitors, who may have greater experience and financial resources, to copy or use our trade secrets and other proprietary information in the advancement of their products, methods or technologies.

5. Our success also depends on our ability to operate and commercialize products without infringing on the patents or proprietary rights of others.

Third parties may claim that we or our licensors or suppliers are infringing their patents or are misappropriating their proprietary information. In the event of a successful claim against us or our licensors or suppliers for infringement of the patents or proprietary rights of others, we may be required to, among other things:

·         pay substantial damages;

·         stop using our technologies;

·         stop certain research and development efforts;

·         develop non-infringing products or methods; and

·         obtain one or more licenses from third parties.

A license required under any such patents or proprietary rights may not be available to us, or may not be available on acceptable terms. If we or our licensors or suppliers are sued for infringement, we could encounter substantial delays in, or be prohibited from, developing, manufacturing and commercializing our product candidates.

6. Our reliance on third party clinical research organizations and other consultants could have a material effect on our ability to conduct clinical trials and perform research and development. Product development costs to us and our potential collaborators will increase, and our business may be negatively impacted, if we experience delays in testing or approvals or if we need to perform more or larger clinical trials than planned .

To obtain regulatory approvals for new products, we must, among other things, initiate and successfully complete multiple clinical trials demonstrating to the satisfaction of the FDA or other regulatory authority that our product candidates are sufficiently safe and effective for a particular indication. We currently rely on third party clinical research organizations and other consultants to assist us in designing, administering and assessing the results of those trials and to perform research and development with respect to product candidates. In relying on those third parties, we are dependent upon them to timely and accurately perform their services. If third party organizations do not accurately collect and assess the trial data, we may discontinue development of viable product candidates or continue allocating resources to the development and marketing of product candidates that are not efficacious. ither outcome could result in significant financial harm to us.

7. The loss of key management and scientific personnel may hinder our ability to execute our business plan .

As a small company our success depends on the continuing contributions of our management team and scientific consultants, and maintaining relationships with the network of medical and academic centers in the United States and centers that conduct our clinical trials. If we are not successful in retaining the services of these individuals, it could materially adversely affect our business prospects, including our ability to explore partnering or development activities.

We are managed under contract by Benu BioPharma Inc., which is comprised of three individuals (Dennis I. Goldberg, Ph.D., Phillip M. Friden, Ph.D., and Eric M. Morrel, Ph.D.) who are our minority stockholders. Although there is a services contract with Benu BioPharma Inc., there is no direct agreement with these individuals for continued services, and they are under no legal obligation to remain with Benu BioPharma Inc. We can give no assurance that all or any of these individuals will continue to provide services to us. Should any of these individuals not continue to provide services to us, it could have a material adverse effect on our ability or cost to develop AEM-28 and its analogs.

8. Possible side effects of our product candidates may be serious and life threatening. If one of our product candidates reveals safety or fundamental efficacy issues in clinical trials, it could adversely impact the development path for our other current product candidates for that peptide. We face an inherent risk of liability in the event that the use or misuse of our future products results in personal injury or death.

The occurrence of any unacceptable side effects during or after pre-clinical and clinical testing of our product candidates, or the perception or possibility that our product candidates cause or could cause such side effects, could delay or prevent approval of our products and negatively impact our business. The use of our product candidates in clinical trials may expose us to product liability claims, which could result in financial losses. Our clinical liability insurance coverage may not be sufficient to cover claims that may be made against us. In addition, we may not be able to maintain insurance coverage at a reasonable cost or in sufficient amounts or scope to protect us against losses. Any claims against us, regardless of their merit, could severely harm our financial condition, strain our management and other resources and adversely impact or eliminate the prospects for commercialization of the product which is the subject of any such claim.

EXHIBIT F

FORM OF REGISTRATION RIGHTS AGREEMENT

EXHIBIT G

FORM OF AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT

Exhibit 10.2

Exhibit 10.2 - Series B Preferred Stock and Warrant Purchase Agreement - Exhibit B – Form of Warrants

THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE REPRESENTED THEREBY, AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR UNLESS THE CORPORATION HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.

LIPIMETIX DEVELOPMENT, INC.

WARRANT TO PURCHASE SERIES B-1 PREFERRED STOCK

Void after August 24, 2026.

THIS CERTIFIES THAT, for value received, the receipt and sufficiency of which are hereby acknowledged, ______________________, a _______________ ______________, or its registered assigns (as the case may be, the “ Holder ”), is entitled, subject to the terms and conditions set forth herein, to purchase from LipimetiX Development, Inc., a Delaware corporation (the “ Company ”), up to __________________ (_________) (the “ Warrant Number ”) duly authorized, validly issued, fully-paid and non-assessable shares (the “ Warrant Shares ”) of the Company’s Series B-1 Preferred Stock, par value $.00001 per share (the “ Warrant Stock ”), subject to adjustment as provided herein, at a purchase price equal to $10.70 per share (the “ Exercise Price ”), subject to adjustment as provided herein. This Warrant is issued pursuant to that certain Series B Preferred Stock and Warrant Purchase Agreement, dated as of the date hereof, by and among the Company and the Investors party thereto (the “ Purchase Agreement ”). The term “ Warrant ” as used herein shall mean this warrant, and any warrants delivered in substitution or exchange therefor as provided herein. All capitalized terms used but not otherwise defined herein, including in Section 8 hereof, shall have the meaning set forth in the Purchase Agreement.

The following is a statement of the rights of the Holder and the conditions to which this Warrant is subject, and to which the Company and the Holder hereof, by the acceptance of this Warrant, agrees:

1.                   Term of Warrant . Subject to the terms and conditions set forth herein, this Warrant shall be exercisable, in whole or in part, during the term commencing on August 25, 2016 and ending on August 24, 2026 (subject to extension as provided below, the “ Exercise Period ”); provided, however, that in the event that the expiration date of this Warrant shall fall on a Saturday, Sunday or United States federally recognized holiday, the expiration date for this Warrant shall be extended to the first business day following such Saturday, Sunday or recognized holiday.

2.                   Exercise of Warrant .

(a)                 Manner of Exercise . This Warrant may be exercised by the Holder, in whole or in part, at any time and from time to time during the Exercise Period, by (i) the surrender of this Warrant to the Company, with the Notice of Exercise attached hereto as Annex A duly completed and executed on behalf of the Holder, at the principal office of the Company or such other office or agency of the Company as it may designate by notice in writing to the Holder (the “ Principal Office ”), and (ii) the delivery of payment to the Company of the Exercise Price for the number of Warrant Shares specified in the Notice of Exercise in any manner specified in subsection (c) or (d) of this Section 2. Notwithstanding the foregoing, this Warrant shall automatically be deemed to have been exercised immediately prior to, and conditioned upon, the closing of a Qualified Public Offering or a Corporate Liquidity Transaction, on a Net Issue Exercise basis as set forth in Section 2(d) below, provided that the initial public offering price or the Fair Market Value per Warrant Share (after giving effect to such Corporate Liquidity Transaction), as the case may be, is greater than the Exercise Price.

(b)                Issuance of Warrant Shares . The Warrant Shares issuable upon any exercise of this Warrant shall be deemed to be issued to the Holder as the record holder of such Warrant Shares as of the close of business on the date on which this Warrant shall have been surrendered and payment made for such Warrant Shares as aforesaid. As promptly as practicable thereafter, but in any event within ten (10) days, the Company shall deliver to the Holder, at the Company’s expense, a stock certificate or certificates for the Warrant Shares specified in the Notice of Exercise. If this Warrant shall have been exercised only in part, the Company shall, at the time of delivery of the stock certificate or certificates, also deliver to the Holder, at the Company’s expense, a new Warrant evidencing the right to purchase the remaining number of Warrant Shares, which new Warrant shall in all other respects be identical to this Warrant.

(c)                 Payment of Exercise Price . Unless the Holder is exercising this Warrant pursuant to a Net Issue Exercise as set forth in Section 2(d) below, the Exercise Price shall be payable in cash or its equivalent, payable by wire transfer of immediately available funds to a bank account specified by the Company or by certified or bank cashiers’ check in lawful money of the United States of America.

(d)                Net Issue Exercise . In lieu of payment of the Exercise Price pursuant to Section 2(c), and exclusively in connection with a Corporate Liquidity Transaction, this Warrant may be exercised by the Holder by the surrender of this Warrant to the Company, with a duly executed Notice of Exercise marked to reflect Net Issue Exercise and specifying the number of Warrant Shares to be purchased, during normal business hours on any business day during the Exercise Period. The Company agrees that such Warrant Shares shall be deemed to be issued to the Holder as the record Holder of such Warrant Shares as of the close of business on the date on which this Warrant shall have been surrendered as aforesaid (or the date of the Corporate Liquidity Transaction, as applicable). Upon such exercise, the Holder shall be entitled to receive shares equal to the value of this Warrant (or the portion thereof being canceled) by surrender of this Warrant to the Company together with notice of such election in which event the Company shall issue to Holder a number of Warrant Shares computed as of the date of surrender of this Warrant to the Company (or the date of the Corporate Liquidity Transaction, as applicable) using the following formula:

Where X = the number of Warrant Shares to be issued to Holder under this Section 2(d);

Y = the number of Warrant Shares purchasable under this Warrant (as adjusted to the date of such calculation);

A = the Fair Market Value of one Warrant Share at the date of such calculation;

B = the Exercise Price (as adjusted to the date of such calculation).

(e)                 Joinder to Investment Agreements . Upon exercise of this Warrant, in whole or in part, the Holder shall become a party to each of the Investment Agreements as an “Investor” thereunder (or any successor term used therein to describe the Investors (as defined therein as of the date hereof)), and, if requested by the Company, shall execute counterpart signature pages to such Investment Agreements, in each case if and to the extent the Holder is not already a party thereto in such capacity.

(f)                 Fractional Shares . No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. In lieu of any fractional share to which the Holder would otherwise be entitled, the Company shall make a cash payment equal to the product of such fraction multiplied by the Fair Market Value of one Warrant Share as of the date of exercise.

3.                   Exchange and Replacement .

(a)                 Manner of Exchange and Replacement . This Warrant is exchangeable, upon surrender of the Warrant by the Holder to the Company at the Principal Office, for new Warrants of like tenor registered in the Holder’s name and representing in the aggregate the right to purchase the same number of Warrant Shares purchasable hereunder, each of such new Warrants to represent the right to purchase such number of Warrant Shares as shall be designated by the Holder at the time of surrender.

(b)                Issuance of New Warrant . Upon receipt by the Company of (i) evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant and (ii) (A) in the case of loss, theft or destruction, an indemnity agreement reasonably satisfactory in form and substance to the Company or (B) in the case of mutilation, this Warrant, the Company, at its expense, shall execute and deliver, in lieu of this Warrant, a new Warrant of like tenor and amount.

4.                   Rights of Stockholders . The Holder shall not be entitled to vote or receive dividends or be deemed the holder of the Warrant Shares or any other securities of the Company that may at any time be issuable upon the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the Holder, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any other matter submitted to the stockholders of the Company at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance or reclassification of capital stock, change of par value, or change of stock to no par value, consolidation, merger, conveyance or otherwise) or to receive notice of meetings, or to receive dividends or subscription rights or otherwise until the Warrant shall have been exercised as provided herein.

5.                   ADJUSTMENTs . The Exercise Price and the Warrant Number shall be subject to adjustment from time to time as provided in this Section 5.

(a)                 Reclassification, etc. If the Company, at any time while this Warrant, or any portion hereof, remains outstanding and unexpired by reclassification of securities or otherwise, shall change any of the securities as to which purchase rights under this Warrant exist into the same or a different number of securities of any other class or classes, this Warrant shall thereafter represent the right to acquire such number and kind of securities as would have been issuable as the result of such change with respect to the securities that were subject to the purchase rights under this Warrant immediately prior to such reclassification or other change and the Exercise Price therefor shall be appropriately adjusted, all subject to further adjustment as provided in this Section 5.

(b)                Split, Subdivision or Combination of Shares. If the Company at any time while this Warrant, or any portion hereof, remains outstanding and unexpired shall split, subdivide or combine the securities as to which purchase rights under this Warrant exist, into a different number of securities of the same class, then (i) in the case of a split or subdivision, the Exercise Price for such securities shall be proportionately decreased and the Warrant Number shall be proportionately increased, and (ii) in the case of a combination, the Exercise Price for such securities shall be proportionately increased and the Warrant Number shall be proportionately decreased.

(c)                 Mergers or Consolidations . If at any time there shall be a merger or consolidation of the Company with or into another corporation, other than a Corporate Liquidity Transaction, provision shall be made so that the Warrant Holder shall thereafter be entitled to receive upon exercise of this Warrant, during the period specified in this Warrant and upon payment of the Exercise Price, the number of Equity Securities or other securities or property of the Company or the successor corporation resulting from such merger or consolidation to which a holder of the Warrant Shares deliverable upon exercise of this Warrant would have been entitled under the provisions of the agreement in such merger or consolidation if this Warrant had been exercised immediately before such merger or consolidation occurs. In any such case, appropriate adjustment (as determined in good faith by the Board) shall be made in the application of the provisions of this Warrant with respect to the rights and interests of the Warrant Holder after the merger or consolidation to the end that the provisions of this Warrant (including adjustment of the Exercise Price then in effect and the Warrant Number) shall be applicable after that event, as near as reasonably may be, in relation to any shares or other property deliverable after that event upon exercise of this Warrant.

(d)                Adjustment to Purchase Price and Warrant Number Upon Certain Series B Issuances . If the Company shall, at any time or from time to time after the date hereof, issue or sell any shares of Series B-2 Preferred Stock for consideration per share (the “ Dilutive Issuance Price ”) less than the Exercise Price in effect immediately prior to such issuance or sale (the “ Dilutive Issuance Price ”), then immediately upon such issuance or sale the Exercise Price in effect immediately prior to such issuance or sale shall be reduced (and in no event increased) to the Dilutive Issuance Price and the Warrant Number shall be proportionately increased to that number determined by dividing the product of the original Warrant Number and the original Exercise Price by the new Dilutive Issuance Price. In addition, for purposes of clarity, it is agreed that the Warrant Shares issuable upon conversion hereof shall be entitled to the benefit of any conversion price adjustments applicable to such Series B-1 Shares under the Restated Certificate, as amended or restated from time to time, as though such Warrant Shares were outstanding as of the date hereof.

(e)                 Certificate as to Adjustment .

(i)                  As promptly as reasonably practicable following any adjustment of the Exercise Price, but in any event not later than 20 business days thereafter, the Company shall furnish to the Holder a certificate of an executive officer setting forth in reasonable detail such adjustment and the facts upon which it is based and certifying the calculation thereof.

(ii)                As promptly as reasonably practicable following the receipt by the Company of a written request by the Holder, but in any event not later than ten Business Days thereafter, the Company shall furnish to the Holder a certificate of an executive officer certifying the Exercise Price then in effect and the number of Warrant Shares or the amount, if any, of other shares of stock, securities or assets then issuable upon exercise of the Warrant.

6.                   Transfer of Warrant .

(a)                 Non-Transferability . This Warrant may not be assigned or transferred without the prior written consent of the Company. In the event that the Company agrees to such transfer, and subject to the further restrictions on transfer set forth in subsection (b) of this Section 6, this Warrant may be transferred by the Holder by (i) surrender of this Warrant to the Company, with the Assignment Form attached hereto as Annex B duly completed and executed on behalf of the Holder, at the Principal Office, and (ii) delivery of funds sufficient to pay any transfer tax arising as a result of such transfer. As promptly as practicable thereafter, but in any event within ten (10) days, the Company shall execute and deliver, at the Company’s expense, a new Warrant registered in the name of the assignee, and for the number of Warrant Shares, specified in the Assignment Form, which new Warrant shall in all other respects be identical to this Warrant. If this Warrant shall have been transferred only in part, the Company shall, at the time of delivery of the new Warrant to the assignee, also deliver to the Holder, at the Company’s expense, a new Warrant evidencing the right to purchase the remaining number of Warrant Shares, which new Warrant shall in all other respects be identical to this Warrant.

(b)                Compliance with Securities Laws .

(i)                  The Holder of this Warrant, by acceptance hereof, acknowledges that, in addition to the requirements set forth above, the transfer of this Warrant and the Warrant Shares is subject to the Holder’s compliance with the provisions of the Securities Act and any applicable state securities laws in respect of any such transfer.

(ii)                The certificate or certificates representing any Warrant Shares acquired upon exercise of this Warrant, and any securities issued in respect of such Warrant Shares upon the conversion thereof or any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall be stamped or otherwise imprinted with the following legend (unless such a legend is no longer required under the Securities Act):

THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE REPRESENTED HEREBY, AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR UNLESS THE CORPORATION HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.

7.                   Notices .

(a)                 Events Requiring Notice to Holder . In the event of (i) any taking by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividends or other distribution, or any right to subscribe for, purchase or otherwise acquire any Equity Securities or other property; (ii) any capital reorganization of the Company, any reclassification or recapitalization of the capital stock of the Company, any Corporate Transaction or any other merger or consolidation of the Company; or (iii) any voluntary or involuntary dissolution, liquidation, winding up or bankruptcy of the Company (each, a “ Record Event ”), then and in each such Record Event, the Company shall give the Holder a notice specifying (A) the date on which any such record is to be taken for the purpose of such dividend, distribution or right and a description of such dividend, distribution or right; (B) the date on which any such reorganization, reclassification, recapitalization, Corporate Transaction, merger, consolidation, dissolution, liquidation, winding up or bankruptcy is expected to become effective; and (C) the time, if any, that is to be fixed as to when the holders of record of Common Stock, Warrant Stock or other Equity Securities shall be entitled to exchange their shares of Common Stock, Warrant Stock or other Equity Securities for cash, securities or other property deliverable upon such reorganization, reclassification, recapitalization, Corporate Transaction, merger, consolidation, dissolution, liquidation, winding up or bankruptcy. In each such Record Event, the notice required by this Section 7(a) shall be delivered at least fifteen (15) days prior to the date specified in such notice; provided, however, that neither the failure to give such notice nor any defect therein shall affect the legality or validity of the proceedings described in clauses (i) through (iii) hereof.

(b)                Manner of Notice . Whenever a notice is required to be given to the Holder pursuant to this Warrant (including, without limitation, any notice required by Section 8(a) above), such notice shall be delivered to the Holder’s address of record as shown on the books of the Company and shall be deemed effectively given upon the earlier of actual receipt or: (i) personal delivery to Holder, (ii) when sent, if sent by electronic mail or facsimile during normal business hours of the Holder, and if not sent during normal business hours, then on the Holder’s next business day, (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt.

8.                   DEFINITIONS . The following definitions shall apply for all purposes of this Warrant:

(a)                 “ Board ” shall mean the Board of Directors of the Company.

(b)                “ Capstone Entity ” means Capstone Therapeutics Corp. or any Affiliate of Capstone Therapeutics Corp.

(c)                 “ Corporate Liquidity Transaction ” shall mean any consolidation or merger of the Company with or into any other corporation or other Person, other than a Capstone Entity (including any merger or consolidation in which a subsidiary of the Company is a constituent party and the Company issues shares of its capital stock pursuant to such merger or consolidation other than a transaction involving a Capstone Entity), other than any such consolidation or merger in which the stockholders of the Company immediately prior to such consolidation or merger, continue to hold at least a majority of the voting power of the surviving entity in substantially the same proportions and with substantially the same rights, preference and privileges (or, if the surviving entity is a wholly owned subsidiary, its parent) immediately after such consolidation or merger.

(d)                “Equity Securities ” shall mean (i) any Common Stock or other capital stock of the Company, (ii) any security convertible, with or without consideration, into any Common Stock or other capital stock of the Company (including any option, warrant or other right to subscribe for or purchase such a security), (iii) any security carrying any option, warrant or other right to subscribe for or purchase any Common Stock or other capital stock of the Company, or (iv) any such option, warrant or other right.

(e)                 “ Fair Market Value ” shall mean (i) if the Warrant Stock or the Common Stock or other Equity Securities into which the Warrant Stock is convertible is traded on a securities exchange, the average of the closing prices of such securities on such exchange over the thirty (30) day period ending one day before the exercise date; (ii) if the Warrant Stock or the Common Stock or other Equity Securities into which the Warrant Stock is convertible is actively traded over-the-counter, the average of the closing bid or sales prices (whichever is applicable) of such securities over the thirty (30) day period ending one day before the exercise date; (iii) if the Warrant is being exercised in connection with a Corporate Liquidity Transaction, the consideration to be paid for the Warrant Stock or the Common Stock or other Equity Securities into which the Warrant Stock is convertible in connection with such Corporate Transaction (for purposes of clarification, in any case in which the price or value of the Common Stock or other Equity Securities into which the Warrant Stock is convertible is determined pursuant to any of the foregoing clauses (i) through (iii), such price or value shall be adjusted, and the Fair Market Value of the Warrant Stock shall be based upon, the number of shares of Common Stock or such other Equity Securities into which one share of Warrant Stock is then convertible); and (iv) in all other cases, as determined in good faith by the Board.

(f)                 “ Investment Agreements ” shall mean (i) the Amended and Restated Stockholders Agreement, dated as of August 25, 2016, by and among the Company and the Stockholders (as defined therein), as heretofore or hereafter amended, restated, supplemented or otherwise modified from time to time; (ii) the Registration Rights Agreement, dated as of August 25, 2016, by and among the Company and the Investors and Common Holders (as defined therein), as heretofore or hereafter amended, restated, supplemented or otherwise modified from time to time; and (iii) the Purchase Agreement, as heretofore or hereafter amended, restated, supplemented or otherwise modified from time to time.

(g)                “ Person ” shall mean any individual, corporation, partnership, trust, limited liability company, association or other entity.

(h)                “ Qualified Public Offering ” shall mean any public offering of the Company’s securities which would result in a mandatory conversion of the Series B-1 Shares under the Restated Certificate, as amended or restated from time to time.

(i)                  “ Securities Act ” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

9.                   Miscellaneous .

(a)                 Governing Law . This Warrant and any controversy arising out of or relating to this Warrant shall be governed by and construed in accordance with the General Corporation Law of the State of Delaware as to matters within the scope thereof, and as to all other matters shall be governed by and construed in accordance with the internal laws of the State of Delaware, without regard to conflict of law principles that would result in the application of any law other than the law of the State of Delaware.

(b)                Prevailing Party’s Costs and Expenses . If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Warrant, the prevailing party shall be entitled to recover from the non-prevailing party all costs and expenses, reasonable attorneys’ fees, incurred in such action, in addition to any other relief to which such party may be entitled.

(c)                 Delays or Omissions . Except where a time period is specified, no delay on the part of any party in the exercise of any right, power, privilege or remedy hereunder shall operate as a waiver thereof, nor shall any exercise or partial exercise of any such right, power, privilege or remedy preclude any further exercise thereof or the exercise of any other right, power, privilege or remedy.

(d)                Amendment and Waiver . No provision of this Warrant may be amended, modified or waived except upon the written consent of the party against whom such amendment, modification or waiver is to be enforced. The failure of any party to enforce any of the provisions of this Warrant shall in no way be construed as a waiver of such provisions and shall not affect the right of such party thereafter to enforce each and every provision of this Warrant in accordance with its terms.

(e)                 Binding Effect . This Warrant shall be binding upon and inure to the benefit of all of the parties and, to the extent permitted by this Warrant, their successors, legal representatives and assigns.

(f)                 Severability . In the event one or more of the provisions of this Warrant should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this Warrant, and this Warrant shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

(g)                Construction . Whenever the context requires, the gender of any word used in this Warrant includes the masculine, feminine or neuter, and the number of any word includes the singular or plural. Unless the context otherwise requires, all references to articles and sections refer to articles and sections of this Warrant, and all references to schedules are to schedules attached hereto, each of which is made a part hereof for all purposes.

(h)                Headings . The headings and subheadings in this Warrant are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this Warrant or any provision hereof.

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IN WITNESS WHEREOF, the Company has executed this Warrant as of the date first above stated.

ANNEX A

NOTICE OF EXERCISE

To: LIPIMETIX DEVELOPMENT, INC. (the “ Company ”)

1.   The undersigned hereby elects to purchase _______________ Warrant Shares pursuant to the terms of the attached Warrant, and tenders herewith payment of the purchase price for such shares in full in the following manner:

2.   In exercising this Warrant, the undersigned hereby confirms and acknowledges that the Warrant Shares to be issued upon exercise are being acquired solely for the account of the undersigned and not as a nominee for any other party, or for investment, and that the undersigned will not offer, sell or otherwise dispose of any such Warrant Shares except under circumstances that will not result in a violation of the registration provisions of the Securities Act of 1933, as amended, or any applicable state securities laws.

ANNEX B

ASSIGNMENT FORM

FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby sells, assigns and transfers unto the Assignee named below all of the rights of the undersigned under the within Warrant, with respect to the number of Warrant Shares set forth below:

and does hereby irrevocably constitute and appoint Attorney __________________ to make such transfer on the books of LIPIMETIX DEVELOPMENT, INC., maintained for the purpose, with full power of substitution in the premises.

The Assignee represents that, by its acceptance hereof, the Assignee acknowledges that this Warrant and the Warrant Shares to be issued upon exercise hereof are being acquired for investment and that the Assignee will not offer, sell or otherwise dispose of this Warrant or any Warrant Shares to be issued upon exercise hereof except under circumstances that will not result in a violation of the registration provisions of the Securities Act of 1933, as amended, or any applicable state securities laws.

Exhibit 10.3

Exhibit 10.3 – Series B Preferred Stock and Warrant Purchase Agreement - Exhibit C – Form of Amended and Restated Certificate of Incorporation of LipimetiX Development, Inc.

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION
OF
LIPIMETIX DEVELOPMENT, INC.

(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)

LipimetiX Development, Inc., a corporation organized and existing under and by virtue of the provisions of the General Corporation Law of the State of Delaware (the “ General Corporation Law ”),

DOES HEREBY CERTIFY:

1.                   That the name of this corporation is LipimetiX Development, Inc., and that this corporation was originally incorporated pursuant to the General Corporation Law on June 23, 2015 under the name LipimetiX Development, Inc.

2.                   That the Board of Directors duly adopted resolutions proposing to amend and restate the Certificate of Incorporation of this corporation, declaring said amendment and restatement to be advisable and in the best interests of this corporation and its stockholders, and authorizing the appropriate officers of this corporation to solicit the consent of the stockholders therefor, which resolution setting forth the proposed amendment and restatement is as follows:

RESOLVED , that the Certificate of Incorporation of this corporation be amended and restated in its entirety to read as follows:

First: The name of this corporation is LipimetiX Development, Inc. (the “ Corporation ”).

Second: The address of the registered office of the Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.

Third: The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law.

Fourth: The total number of shares of all classes of stock which the Corporation shall have authority to issue is (i) 3,000,000 shares of Common Stock, $.00001 par value per share (“ Common Stock ”), 2,920,000 of which shall be designated Class A-1 Common Stock (“ Class A-1 Common Stock ”) and 80,000 of which shall be designated Class A-2 Common Stock (“ Class A-2 Common Stock ”); and (ii) 10,000,000 shares of Preferred Stock, $.00001 par value per share (“ Preferred Stock ”), 5,000,000 of which shall be designated Series A Preferred Stock (“ Series A Preferred Stock ”), 350,000 of which shall be designated Series B-1 Preferred Stock (“ Series B-1 Preferred Stock ”), and 1,200,000 of which shall be designated Series B-2 Preferred Stock (“ Series B-2 Preferred Stock ”). The Series B-1 Preferred Stock and the Series B-2 Preferred Stock are referred to herein collectively as the “ Series B Preferred Stock .”

The following is a statement of the designations and the powers, privileges and rights, and the qualifications, limitations or restrictions thereof in respect of each class of capital stock of the Corporation.

A.                 COMMON STOCK

1.          General . The Class A-1 Common Stock and Class A-2 Common Stock shall be identical in all respects, except as to dividends and distributions on liquidation as set forth in Section A.3 below, and shall vote together as one class. The voting, dividend and liquidation rights of the holders of the Common Stock are subject to and qualified by the rights, powers and preferences of the holders of the Preferred Stock set forth herein.

2.          Voting . The holders of the Common Stock are entitled to one vote for each share of Common Stock held at all meetings of stockholders (and written actions in lieu of meetings). There shall be no cumulative voting. The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by (in addition to any vote of the holders of one or more series of Preferred Stock that may be required by the terms of the Certificate of Incorporation) the affirmative vote of the holders of shares of capital stock of the Corporation representing a majority of the votes represented by all outstanding shares of capital stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law.

3.          Dividends; Distributions upon Liquidation .

(a) The holders of Common Stock will be entitled to receive such dividends as the Board of Directors of the Corporation may declare from time to time from funds legally available therefor, subject to any preferential dividend rights of the Preferred Stock as described in Section B below. Any dividends declared or payable with respect to the Common Stock shall be payable pro rata to the holders of the Common Stock based on the number of shares of Common Stock held by each such holder; provided , however , that all amounts in excess of One Hundred Thousand Dollars ($100,000) paid to any holder of Class A-2 Common Stock pursuant to Sections 5.8, 5.9 and 5.11 of that certain Exclusive License Agreement dated August 26, 2011, between The UAB Research Foundation and LipimetiX, LLC, a Delaware limited liability company, as amended on August 3, 2012 and December 15, 2014, and as amended from time to time (such excess amounts being the “ Excess Payments ”) shall be taken into account for, and shall reduce on a dollar-for-dollar basis, the dividends that would otherwise be payable to the holders of Class A-2 Common Stock hereunder.

(b) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, after the payment of all preferential amounts required to be paid to the holders of shares of Preferred Stock, the remaining assets of the Corporation available for distribution to its stockholders shall be distributed as set forth in Section B.2.2 below; provided , however , that all Excess Payments not already offset against dividends otherwise payable to the holders of Class A-2 Common Stock pursuant to Section A.3.(a) above shall be taken into account for, and shall reduce on a dollar-for-dollar basis, the distributions that would otherwise be payable to the holders of Class A-2 Common Stock hereunder.

B.                  PREFERRED STOCK

The Preferred Stock shall have the following rights, preferences, powers, privileges and restrictions, qualifications and limitations. Unless otherwise indicated, references to “sections” or “subsections” in this Part B of this Article Fourth refer to sections and subsections of Part B of this Article Fourth.

1.          Dividends .

1.1            Series A Preferred Stock . From and after the date of the issuance of any shares of Series A Preferred Stock, the Corporation shall not declare, pay or set aside any dividends on shares of the Common Stock or the Series B Preferred Stock of the Corporation (other than dividends on shares of Common Stock payable in shares of Common Stock) unless (in addition to the obtaining of any consents required elsewhere in the Certificate of Incorporation) the holders of the Series A Preferred Stock then outstanding shall have previously received, or simultaneously receive, aggregate dividends on each outstanding share of Series A Preferred Stock in an amount at least equal to the Series A Original Issue Price (the “ Dividend Preferential Payment ”). The “ Series A Original Issue Price ” shall mean $1.00 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series A Preferred Stock. Once the Dividend Preferential Payment has been paid in full, the holders of the Series A Preferred Stock shall not be entitled to receive any further dividends or liquidating distributions pursuant to Section 2.1 hereof, and the Corporation shall not declare, pay or set aside any dividends on the shares of Series A Preferred Stock.

1.2            Series B Preferred Stock . From and after the date of the issuance of any shares of Series B Preferred Stock, dividends at the rate per annum per share equal to five percent (5%) of the Series B-2 Original Issue Price shall accrue on each share of Series B Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock) (the “ Accruing Dividends ”). Accruing Dividends shall accrue from day to day, whether or not declared, and shall be cumulative; provided , however , that except as set forth in the following sentence of this Section 1 and except as set forth in Section 2.1 , such Accruing Dividends shall be payable only when, as, and if declared by the Board of Directors and the Corporation shall be under no obligation to pay such Accruing Dividends. The Corporation shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock of the Corporation (other than the Series A Preferred Stock or dividends on shares of Common Stock payable in shares of Common Stock) unless (in addition to the obtaining of any consents required elsewhere in the Certificate of Incorporation) the holders of the Series B Preferred Stock then outstanding shall first receive, or simultaneously receive, a dividend on each outstanding share of Series B Preferred Stock in an amount at least equal to the greater of: (i) the amount of the aggregate Accruing Dividends then accrued on such share of Series B Preferred Stock and not previously paid; and (ii) that dividend per share of Series B Preferred Stock as would equal the product of (1) the dividend payable on each share of Common Stock and (2) the number of shares of Common Stock issuable upon conversion of a share of Series B Preferred Stock, in each case calculated on the record date for determination of holders entitled to receive such dividend.

2.          Liquidation, Dissolution or Winding Up; Certain Mergers, Consolidations and Asset Sales .

2.1              Preferential Payments to Holders of Preferred Stock . In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, the holders of shares of Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders before any payment shall be made to the holders of Common Stock by reason of their ownership thereof, the respective amounts set forth below: (i) the holders of the Series A Preferred Stock shall be entitled to receive an amount per share equal to the Series A Original Issue Price, less any dividends paid with respect to such share pursuant to Section B.1. above (the amount payable pursuant to this sentence is hereinafter referred to as the “ Series A Liquidation Amoun t”); (ii) the holders of the Series B-1 Preferred Stock shall be entitled to receive an amount per share equal to the Series B-1 Original Issue Price, plus any accrued but unpaid dividends thereon (the amount payable pursuant to this sentence is hereinafter referred to as the “ Series B-1 Liquidation Amoun t”); and (iii) the holders of the Series B-2 Preferred Stock shall be entitled to receive an amount per share equal to the Series B-2 Original Issue Price, plus any accrued but unpaid dividends thereon (the amount payable pursuant to this sentence is hereinafter referred to as the “ Series B-2 Liquidation Amoun t”). The “ Series B-1 Original Issue Price ” shall mean $10.70 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock. The “ Series B-2 Original Issue Price ” shall mean the original purchase price per share of the Series B-2 Preferred Stock as determined by the Board of Directors of the Corporation, and identified as the Series B-2 Original Issue Price in the minutes or resolutions of the Board of Directors of the Corporation approving the issuance of such Shares, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock. If upon any such liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of shares of Preferred Stock the full amount to which they shall be entitled under this Subsection 2.1 , the holders of shares of Preferred Stock shall share ratably in any distribution of the assets available for distribution to the holders of the Preferred Stock in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full.

2.2              Payments to Holders of Common Stock . In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, after the payment in full of the Series A Liquidation Amount, the Series B-1 Liquidation Amount and the Series B-2 Liquidation Amount, the remaining assets of the Corporation available for distribution to its stockholders shall be distributed among the holders of shares of Series B Preferred Stock and Common Stock pro rata based on the number of shares held by each such holder, treating for this purpose all such securities as if they had been converted to Common Stock pursuant to the terms of this Amended and Restated Certificate of Incorporation immediately prior to such liquidation, dissolution or winding up of the Corporation.

2.3               Deemed Liquidation Events .

2.3.1         Definition . Each of the following events shall be considered a “Deemed Liquidation Event ” unless the holders of at least fifty percent (50%) of the outstanding shares of Preferred Stock elect otherwise by written notice sent to the Corporation at least five (5) days prior to the effective date of any such event:

(a)                 a merger or consolidation in which

(i)        the Corporation is a constituent party or

(ii)        a subsidiary of the Corporation is a constituent party and the Corporation issues shares of its capital stock pursuant to such merger or consolidation,

except any such merger or consolidation involving the Corporation or a subsidiary in which the shares of capital stock of the Corporation outstanding immediately prior to such merger or consolidation continue to represent, or are converted into or exchanged for shares of capital stock that represent, immediately following such merger or consolidation, at least a majority, by voting power, of the capital stock of (1) the surviving or resulting corporation; or (2) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation; or

(b)                the sale or transfer, in a single transaction or series of related transactions, by the Corporation or any subsidiary of the Corporation of all or substantially all the assets of the Corporation and its subsidiaries taken as a whole or the sale or disposition (whether by merger, consolidation or otherwise) of one or more subsidiaries of the Corporation if substantially all of the assets of the Corporation and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale or transfer is to a wholly owned subsidiary of the Corporation.

2.3.2         Effecting a Deemed Liquidation Event .

(a)                 The Corporation shall not have the power to effect a Deemed Liquidation Event referred to in Subsection 2.3.1(a)(i) unless the agreement or plan of merger or consolidation for such transaction (the “ Merger Agreement ”) provides that the consideration payable to the stockholders of the Corporation shall be allocated among the holders of capital stock of the Corporation in accordance with Subsections 2.1 and 2.2 .

(b)                In the event of a Deemed Liquidation Event referred to in Subsection 2.3.1(a)(ii) or 2.3.1(b) , if the Corporation does not effect a dissolution of the Corporation under the General Corporation Law within ninety (90) days after such Deemed Liquidation Event, then (i) the Corporation shall send a written notice to each holder of Series A Preferred Stock and Series B Preferred Stock no later than the ninetieth (90 ^th ) day after the Deemed Liquidation Event advising the holders of the Series A Preferred Stock and Series B Preferred Stock of their right (and the requirements to be met to secure such right) to demand a redemption of their shares as set forth in this subsection (b). If the holders of a majority of the then outstanding shares of Series A Preferred Stock so request in a written instrument delivered to the Corporation not later than one hundred five (105) days after such Deemed Liquidation Event, the Corporation shall use the consideration received by the Corporation from such Deemed Liquidation Event (net of any retained liabilities associated with the assets sold or technology licensed, as determined in good faith by the Board of Directors of the Corporation) (the “ Deemed Liquidation Net Proceeds ”), to the extent legally available therefore, on the one hundred twentieth (120 ^th ) day after the consummation of such Deemed Liquidation Event, to redeem all outstanding shares of Series A Preferred Stock at a price per share equal to the Series A Liquidation Amount. If the holders of a majority of the then outstanding shares of Series B Preferred Stock so request in a written instrument delivered to the Corporation not later than one hundred five (105) days after such Deemed Liquidation Event, the Corporation shall use the Deemed Liquidation Net Proceeds, to the extent legally available therefore, on the one hundred twentieth (120 ^th ) day after the consummation of such Deemed Liquidation Event, to redeem all outstanding shares of Series B Preferred Stock at a price per share equal to the Series B-1 Liquidation Amount or Series B-2 Liquidation Amount, as applicable.

Notwithstanding the foregoing, in the event of a redemption pursuant to the preceding sentence, if the Deemed Liquidation Net Proceeds are not sufficient to redeem all outstanding shares of each series of Preferred Stock requesting such redemption, the Corporation shall ratably redeem each such holder’s shares of Preferred Stock to the fullest extent of such Deemed Liquidation Net Proceeds, and shall redeem the remaining shares as soon as it may lawfully do so under Delaware law governing distributions to stockholders. Prior to the distribution or redemption provided for in this Subsection 2.3.2(b) , the Corporation shall not expend or dissipate the consideration received for such Deemed Liquidation Event, except to discharge expenses incurred in connection with such Deemed Liquidation Event.

For purposes of clarity nothing in this Subsection 2.3.3 shall limit any right of a holder of Series B Preferred Stock to convert any shares of Series B Preferred Stock pursuant to the provisions of

Subsection 4 hereof.

2.3.3         Amount Deemed Paid or Distributed . The amount deemed paid or distributed to the holders of capital stock of the Corporation upon any such merger, consolidation, sale, transfer, exclusive license, other disposition or redemption shall be the cash or the value of the property, rights or securities paid or distributed to such holders by the Corporation or the acquiring person, firm or other entity.

2.3.4         Allocation of Escrow and Contingent Consideration . In the event of a Deemed Liquidation Event pursuant to Subsection 2.3.1(a)(i) , if any portion of the consideration payable to the stockholders of the Corporation is payable only upon satisfaction of contingencies (the “ Additional Consideration ”), the Merger Agreement shall provide that (a) the portion of such consideration that is not Additional Consideration (such portion, the “ Initial Consideration ”) shall be allocated among the holders of capital stock of the Corporation in accordance with Subsections 2.1 and 2.2 as if the Initial Consideration were the only consideration payable in connection with such Deemed Liquidation Event; and (b) any Additional Consideration which becomes payable to the stockholders of the Corporation upon satisfaction of such contingencies shall be allocated among the holders of capital stock of the Corporation in accordance with Subsections 2.1 and 2.2 after taking into account the previous payment of the Initial Consideration as part of the same transaction. For the purposes of this Subsection 2.3.4 , consideration placed into escrow or retained as holdback to be available for satisfaction of indemnification or similar obligations in connection with such Deemed Liquidation Event shall be deemed to be Initial Consideration.

3.                   Voting .

3.1               General . Except as specifically set forth herein (including Subsection 3.2 below) or as otherwise required by applicable law, the shares of the Series A Preferred Stock shall not entitle the holders of such shares to vote on matters brought to the stockholder for a vote. On any matter presented to the stockholders of the Corporation (or by written consent of stockholders in lieu of meeting), each holder of outstanding shares of Series B Preferred Stock shall be entitled to cast the number of votes equal to the number of whole shares of Common Stock into which the shares of Series B Preferred Stock held by such holder are convertible as of the record date for determining stockholders entitled to vote on such matter. Except as provided by law or by the other provisions of the Certificate of Incorporation, holders of Series B Preferred Stock shall vote together with the holders of Common Stock as a single class.

3.2               Series A Preferred Stock Protective Provisions . At any time when shares of Series A Preferred Stock are outstanding, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, do any of the following without (in addition to any other vote required by law or the Certificate of Incorporation) the written consent or affirmative vote of the holders of at least a majority of the then outstanding shares of Series A Preferred Stock, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class:

(a)         liquidate, dissolve or wind-up the business and affairs of the Corporation, effect any Deemed Liquidation Event, or consent to any of the foregoing;

(b) amend, alter or repeal any provision of the Certificate of Incorporation or Bylaws of the Corporation;

(c) create, or authorize the creation of, or issue or obligate itself to issue shares of, any additional class or series of capital stock, or increase the authorized number of shares of Series A Preferred Stock or increase the authorized number of shares of any additional class or series of capital stock;

(d) (i) reclassify, alter or amend any existing security of the Corporation that is pari passu with the Series A Preferred Stock in respect of the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to the Series A Preferred Stock in respect of any such right, preference or privilege, or (ii) reclassify, alter or amend any existing security of the Corporation that is junior to the Series A Preferred Stock in respect of the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to or pari passu with the Series A Preferred Stock in respect of any such right, preference or privilege; or

(e) increase or decrease the authorized number of directors constituting the Board of Directors.

3.3                Series B Preferred Stock Protective Provisions . At any time when shares of Series B Preferred Stock are outstanding, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, do any of the following without (in addition to any other vote required by law or the Certificate of Incorporation) the written consent or affirmative vote of the holders of at least a majority of the then outstanding shares of Series B Preferred Stock, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class:

(a) except for any amendments to the Certificate of Incorporation made in connection with the sale of additional shares of Series B-2 Preferred Stock pursuant to that certain Series B Preferred Stock and Warrant Purchase Agreement, dated on or about August 22, 2016, by and among the Corporation and the Purchasers named therein (the “Series B Preferred Stock Purchase Agreement” ), amend, alter or repeal any provision of the Certificate of Incorporation or Bylaws of the Corporation in a manner that materially adversely affects the powers, preferences or rights of the Series B Preferred Stock;

(b) create, or authorize the creation of, or issue or obligate itself to issue shares of, any additional class or series of capital stock that ranks senior to the Series B Preferred Stock with respect to the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends and rights of redemption, or increase the authorized number of shares of Series B Preferred Stock or increase the authorized number of shares of any additional class or series of capital stock that ranks senior to the Series B Preferred Stock; or

(c) (i) reclassify, alter or amend any existing security of the Corporation that is pari passu with the Series B Preferred Stock in respect of the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to the Series B Preferred Stock in respect of any such right, preference or privilege, or (ii) reclassify, alter or amend any existing security of the Corporation that is junior to the Series B Preferred Stock in respect of the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to the Series B Preferred Stock in respect of any such right, preference or privilege; or

(d) a material change in the line of business in which the Corporation is engaged, as determined in good faith by the Corporation.

4.           Optional Conversion . The holders of the Series B Preferred Stock shall have conversion rights as set forth below (the “ Conversion Rights ”). For purposes of this Section 4, references herein to “Common Stock” shall refer to “Class A-1 Common Stock”. References to the “Series B Conversion Price” shall refer to the “Series B-1 Conversion Price” with respect to the shares of Series B-1 Preferred Stock and to the “Series B-2 Conversion Price” with respect to shares of Series B-2 Preferred Stock.

4.1               Right to Convert .

4.1.1                 Conversion Ratio . Each share of Series B-2 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 B Base Price (as defined below) by the Series B-2 Conversion Price (as defined below) in effect at the time of conversion. Each share of Series B-1 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 B Base Price by the Series B-1 Conversion Price (as defined below) in effect at the time of conversion. The “ Series B Base Price ” shall be equal to the initial Series B-2 Original Issue Price, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock. The “ Series B-1 Conversion Price ” shall initially be equal to $10.70. The “ Series B-2 Conversion Price ” shall initially be equal to the initial Series B-2 Original Issue Price. Such initial Series B-1 Conversion Price and Series B-2 Conversion Price shall be subject to adjustment as provided below. In connection therewith, references to the “Series B Conversion Price” shall refer to the “Series B-1 Conversion Price” with respect to the shares of Series B-1 Preferred Stock, and to the “Series B-2 Conversion Price” with respect to shares of Series B-2 Preferred Stock.

4.1.2                 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 B Preferred Stock.

4.2               Fractional Shares . No fractional shares of Common Stock shall be issued upon conversion of the Series B 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 B 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.

4.3               Mechanics of Conversion .

4.3.1                 Notice of Conversion . In order for a holder of Series B Preferred Stock to voluntarily convert shares of Series B 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 B 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 B 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 B 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 B 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 B 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 B Preferred Stock represented by the surrendered certificate that were not converted into Common Stock, (ii) pay in cash such amount as provided in Subsection 4.2 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 B Preferred Stock converted.

4.3.2                 Reservation of Shares . The Corporation shall at all times when the Series B 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 B 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 B 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 B 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 B Conversion Price below the then par value of the shares of Common Stock issuable upon conversion of the Series B 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 B Conversion Price.

4.3.3                 Effect of Conversion . All shares of Series B 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 4.2 . Any shares of Series B 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 B Preferred Stock accordingly.

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

4.3.5                 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 B Preferred Stock pursuant to this Section 4 . 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 B 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.

4.4               Adjustments to Series B Conversion Price for Diluting Issues .

4.4.1                 Special Definitions . For purposes of this Article Fourth, the following definitions shall apply:

(a)                 “ Option ” shall mean rights, options or warrants to subscribe for, purchase or otherwise acquire Common Stock or Convertible Securities.

(b)                “ Series B Original Issue Date ” shall mean the date on which the first share of Series B Preferred Stock was issued.

(c)                 “ Convertible Securities ” shall mean any evidences of indebtedness, shares or other securities directly or indirectly convertible into or exchangeable for Common Stock, but excluding Options.

(d)                “ Additional Shares of Common Stock ” shall mean all shares of Common Stock issued (or, pursuant to Subsection 4.4.3 below, deemed to be issued) by the Corporation after the Series B Original Issue Date, other than (1) the following shares of Common Stock and (2) shares of Common Stock deemed issued pursuant to the following Options and Convertible Securities (clauses (1) and (2), collectively, “ Exempted Securities ”):

(i)                shares of Common Stock, Options or Convertible Securities issued as a dividend or distribution on Series A Preferred Stock;

(ii)               shares of Common Stock, Options or Convertible Securities issued by reason of a dividend, stock split, split-up or other distribution on shares of Common Stock that is covered by Subsection 4.5 , 4.6 , 4.7 or 4.8 ;

(iii)              shares of Common Stock or Options issued to employees or directors of, or consultants or advisors to, the Corporation or any of its subsidiaries pursuant to a plan, agreement or arrangement approved by the Board of Directors of the Corporation;

(iv)              shares of Common Stock or Convertible Securities actually issued upon the exercise of Options or shares of Common Stock actually issued upon the conversion or exchange of Convertible Securities, in each case provided such issuance is pursuant to the terms of such Option or Convertible Security;

(v)               shares of Common Stock, Options or Convertible Securities issued to banks, equipment lessors or other financial institutions, or to real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction approved by the Board of Directors of the Corporation;

(vi)             shares of Common Stock, Options or Convertible Securities issued to suppliers or third party service providers in connection with the provision of goods or services pursuant to transactions approved by the Board of Directors of the Corporation, including without limitation any investment banking or other financial services;

(vii)            shares of Common Stock, Options or Convertible Securities issued pursuant to the acquisition of another corporation by the Corporation by merger, purchase of substantially all of the assets or other reorganization or to a joint venture agreement, provided that such issuances are approved by the Board of Directors of the Corporation;

(viii)          s hares of Common Stock, Options or Convertible Securities issued in connection with sponsored research, collaboration, technology license, development, OEM, marketing or other similar agreements or strategic partnerships approved by the Board of Directors of the Corporation; or

(ix)             shares of Series B Preferred Stock or warrants to purchase shares of Series B Preferred Stock.

4.4.2                 No Adjustment of Series B Conversion Price . No adjustment in the Series B Conversion Price shall be made as the result of the issuance or deemed issuance of Additional Shares of Common Stock if the Corporation receives written notice from the holders of at least fifty percent (50%) of the then outstanding shares of Series B Preferred Stock agreeing that no such adjustment shall be made as the result of the issuance or deemed issuance of such Additional Shares of Common Stock.

4.4.3                 Deemed Issue of Additional Shares of Common Stock .

(a)                 If the Corporation at any time or from time to time after the Series B Original Issue Date shall issue any Options or Convertible Securities (excluding Options or Convertible Securities which are themselves Exempted Securities) or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares of Common Stock (as set forth in the instrument relating thereto, assuming the satisfaction of any conditions to exercisability, convertibility or exchangeability but without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be Additional Shares of Common Stock issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date.

(b)                If the terms of any Option or Convertible Security, the issuance of which resulted in an adjustment to the Series B Conversion Price pursuant to the terms of Subsection 4.4.4 , are revised as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible Security (but excluding automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security) to provide for either (1) any increase or decrease in the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any such Option or Convertible Security or (2) any increase or decrease in the consideration payable to the Corporation upon such exercise, conversion and/or exchange, then, effective upon such increase or decrease becoming effective, the Series B Conversion Price computed upon the original issue of such Option or Convertible Security (or upon the occurrence of a record date with respect thereto) shall be readjusted to such Series B Conversion Price as would have obtained had such revised terms been in effect upon the original date of issuance of such Option or Convertible Security. Notwithstanding the foregoing, no readjustment pursuant to this clause (b) shall have the effect of increasing the Series B Conversion Price to an amount which exceeds the lower of (i) the Series B Conversion Price in effect immediately prior to the original adjustment made as a result of the issuance of such Option or Convertible Security, or (ii) the Series B Conversion Price that would have resulted from any issuances of Additional Shares of Common Stock (other than deemed issuances of Additional Shares of Common Stock as a result of the issuance of such Option or Convertible Security) between the original adjustment date and such readjustment date.

(c)                 If the terms of any Option or Convertible Security (excluding Options or Convertible Securities which are themselves Exempted Securities), the issuance of which did not result in an adjustment to the Series B Conversion Price pursuant to the terms of Subsection 4.4.4 (either because the consideration per share (determined pursuant to Subsection 4.4.5 ) of the Additional Shares of Common Stock subject thereto was equal to or greater than the Series B Conversion Price then in effect, or because such Option or Convertible Security was issued before the Series B Original Issue Date), are revised after the Series B Original Issue Date as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible Security (but excluding automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security) to provide for either (1) any increase in the number of shares of Common Stock issuable upon the exercise, conversion or exchange of any such Option or Convertible Security or (2) any decrease in the consideration payable to the Corporation upon such exercise, conversion or exchange, then such Option or Convertible Security, as so amended or adjusted, and the Additional Shares of Common Stock subject thereto (determined in the manner provided in Subsection 4.4.3(a) shall be deemed to have been issued effective upon such increase or decrease becoming effective.

(d)                Upon the expiration or termination of any unexercised Option or unconverted or unexchanged Convertible Security (or portion thereof) which resulted (either upon its original issuance or upon a revision of its terms) in an adjustment to the Series B Conversion Price pursuant to the terms of Subsection 4.4.4 , the Series B Conversion Price shall be readjusted to such Series B Conversion Price as would have obtained had such Option or Convertible Security (or portion thereof) never been issued.

(e)                 If the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any Option or Convertible Security, or the consideration payable to the Corporation upon such exercise, conversion and/or exchange, is calculable at the time such Option or Convertible Security is issued or amended but is subject to adjustment based upon subsequent events, any adjustment to the Series B Conversion Price provided for in this Subsection 4.4.3 shall be effected at the time of such issuance or amendment based on such number of shares or amount of consideration without regard to any provisions for subsequent adjustments (and any subsequent adjustments shall be treated as provided in clauses (b) and (c) of this Subsection 4.4.3 ). If the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any Option or Convertible Security, or the consideration payable to the Corporation upon such exercise, conversion and/or exchange, cannot be calculated at all at the time such Option or Convertible Security is issued or amended, any adjustment to the Series B Conversion Price that would result under the terms of this Subsection 4.4.3 at the time of such issuance or amendment shall instead be effected at the time such number of shares and/or amount of consideration is first calculable (even if subject to subsequent adjustments), assuming for purposes of calculating such adjustment to the Series A Conversion Price that such issuance or amendment took place at the time such calculation can first be made.

4.4.4                 Adjustment of Series B Conversion Price Upon Issuance of Additional Shares of Common Stock . In the event the Corporation shall at any time after the Series B Original Issue Date issue Additional Shares of Common Stock (including Additional Shares of Common Stock deemed to be issued pursuant to Subsection 4.4.3 ), without consideration or for a consideration per share less than the Series B Conversion Price in effect immediately prior to such issue, then the Series B Conversion Price shall be reduced, concurrently with such issue, to a price (calculated to the nearest one-hundredth of a cent) determined in accordance with the following formula:

CP ₂ = CP ₁ * (A + B) ÷ (A + C).

For purposes of the foregoing formula, the following definitions shall apply:

(a)                 “CP ₂ ” shall mean the Series B Conversion Price in effect immediately after such issue of Additional Shares of Common Stock

(b)                “CP ₁ ” shall mean the Series B Conversion Price in effect immediately prior to such issue of Additional Shares of Common Stock;

(c)                 “A” shall mean the number of shares of Common Stock outstanding immediately prior to such issue of Additional Shares of Common Stock (treating for this purpose as outstanding all shares of Common Stock issuable upon exercise of Options outstanding immediately prior to such issue or upon conversion or exchange of Convertible Securities (including the Series B Preferred Stock) outstanding (assuming exercise of any outstanding Options therefor) immediately prior to such issue);

(d)                “B” shall mean the number of shares of Common Stock that would have been issued if such Additional Shares of Common Stock had been issued at a price per share equal to CP ₁ (determined by dividing the aggregate consideration received by the Corporation in respect of such issue by CP ₁ ); and

(e)                 “C” shall mean the number of such Additional Shares of Common Stock issued in such transaction.

4.4.5                 Determination of Consideration . For purposes of this Subsection 4.4 , the consideration received by the Corporation for the issue of any Additional Shares of Common Stock shall be computed as follows:

(a)                 Cash and Property : Such consideration shall:

(i)                 insofar as it consists of cash, be computed at the aggregate amount of cash received by the Corporation, excluding amounts paid or payable for accrued interest;

(ii)                insofar as it consists of property other than cash, be computed at the fair market value thereof at the time of such issue, as determined in good faith by the Board of Directors of the Corporation; and

(iii)              in the event Additional Shares of Common Stock are issued together with other shares or securities or other assets of the Corporation for consideration which covers both, be the proportion of such consideration so received, computed as provided in clauses (i) and (ii) above, as determined in good faith by the Board of Directors of the Corporation.

(b)                Options and Convertible Securities . The consideration per share received by the Corporation for Additional Shares of Common Stock deemed to have been issued pursuant to Subsection 4.4.3 , relating to Options and Convertible Securities, shall be determined by dividing:

(i)                  The total amount, if any, received or receivable by the Corporation as consideration for the issue of such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Corporation upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities, by

(ii)                the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities.

4.4.6                 Multiple Closing Dates . In the event the Corporation shall issue on more than one date Additional Shares of Common Stock that are a part of one transaction or a series of related transactions and that would result in an adjustment to the Series B Conversion Price pursuant to the terms of Subsection 4.4.4 , and such issuance dates occur within a period of no more than ninety (90) days from the first such issuance to the final such issuance, then, upon the final such issuance, the Series B Conversion Price shall be readjusted to give effect to all such issuances as if they occurred on the date of the first such issuance (and without giving effect to any additional adjustments as a result of any such subsequent issuances within such period).

4.4.7                 Special Adjustment of Series B-1 Conversion Price Upon Certain Issuances of Series B-2 Preferred Stock . Notwithstanding the provisions of Section 4.4.1 hereof, in the event that the Corporation shall, at any time after the Series B Original Issue Date, issue any shares of Series B-2 Preferred Stock for a consideration per share less than the Series B-1 Conversion Price in effect immediately prior to such issue (the “ Dilutive Price ”), then the Series B-1 Conversion Price shall be reduced, concurrently with each such issue, to the Dilutive Price.

4.5               Adjustment for Stock Splits and Combinations . If the Corporation shall at any time or from time to time after the Series B Original Issue Date effect a subdivision of the outstanding Common Stock, the Series B Conversion Price in effect immediately before that subdivision shall be proportionately decreased so that the number of shares of Common Stock issuable on conversion of each share of such series shall be increased in proportion to such increase in the aggregate number of shares of Common Stock outstanding. If the Corporation shall at any time or from time to time after the Series B Original Issue Date combine the outstanding shares of Common Stock, the Series B Conversion Price in effect immediately before the combination shall be proportionately increased so that the number of shares of Common Stock issuable on conversion of each share of such series shall be decreased in proportion to such decrease in the aggregate number of shares of Common Stock outstanding. Any adjustment under this subsection shall become effective at the close of business on the date the subdivision or combination becomes effective.

4.6               Adjustment for Certain Dividends and Distributions . In the event the Corporation at any time or from time to time after the Series B Original Issue Date shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable on the Common Stock in additional shares of Common Stock, then and in each such event the Series B Conversion Price in effect immediately before such event shall be decreased as of the time of such issuance or, in the event such a record date shall have been fixed, as of the close of business on such record date, by multiplying the Series B Conversion Price then in effect by a fraction:

(1)        the numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date, and

(2)        the denominator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date plus the number of shares of Common Stock issuable in payment of such dividend or distribution.

Notwithstanding the foregoing (a) if such record date shall have been fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the Series B Conversion Price shall be recomputed accordingly as of the close of business on such record date and thereafter the Series B Conversion Price shall be adjusted pursuant to this subsection as of the time of actual payment of such dividends or distributions; and (b) that no such adjustment shall be made if the holders of Series B Preferred Stock simultaneously receive a dividend or other distribution of shares of Common Stock in a number equal to the number of shares of Common Stock as they would have received if all outstanding shares of Series B Preferred Stock had been converted into Common Stock on the date of such event.

4.7               Adjustments for Other Dividends and Distributions . In the event the Corporation at any time or from time to time after the Series B Original Issue Date shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable in securities of the Corporation (other than a distribution of shares of Common Stock in respect of outstanding shares of Common Stock) or in other property and the provisions of Section 1 do not apply to such dividend or distribution, then and in each such event the holders of Series B Preferred Stock shall receive, simultaneously with the distribution to the holders of Common Stock, a dividend or other distribution of such securities or other property in an amount equal to the amount of such securities or other property as they would have received if all outstanding shares of Series B Preferred Stock had been converted into Common Stock on the date of such event.

4.8               Adjustment for Merger or Reorganization, etc . Subject to the provisions of Subsection 2.3 , if there shall occur any reorganization, recapitalization, reclassification, consolidation or merger involving the Corporation in which the Common Stock (but not the Series B Preferred Stock) is converted into or exchanged for securities, cash or other property (other than a transaction covered by Subsections 4.4 , 4.6 or 4.7 ), then, following any such reorganization, recapitalization, reclassification, consolidation or merger, each share of Series B 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 B 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 4 with respect to the rights and interests thereafter of the holders of the Series B Preferred Stock, to the end that the provisions set forth in this Section 4 (including provisions with respect to changes in and other adjustments of the Series B Conversion Price) 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 B Preferred Stock.

4.9               Certificate as to Adjustments . Upon the occurrence of each adjustment or readjustment of the Series B Conversion Price pursuant to this Section 4 , 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 B 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 B 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 B 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 B 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 B Preferred Stock.

4.10           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 B 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 B 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 B 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 B 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.

5.           Mandatory Conversion .

5.1               Trigger Events . Upon either (a) the closing of the sale of shares of Common Stock to the public at a price of at least $30.00 per share (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Common Stock), in a firm-commitment underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended, resulting in at least $25,000,000 of proceeds, net of the underwriting discount and commissions, to the Corporation or (b) the date and time, or the occurrence of an event, specified by vote or written consent of the holders of at least fifty percent (50%) of the then outstanding shares of Series B Preferred Stock (the time of such closing or the date and time specified or the time of the event specified in such vote or written consent is referred to herein as the “ Mandatory Conversion Time ”), then (i) all outstanding shares of Series B Preferred Stock shall automatically be converted into shares of Common Stock, at the then effective conversion rate as calculated pursuant to Subsection 4.1.1 , and (ii) such shares may not be reissued by the Corporation.

5.2               Procedural Requirements . All holders of record of shares of Series B Preferred Stock shall be sent written notice of the Mandatory Conversion Time and the place designated for mandatory conversion of all such shares of Series B Preferred Stock pursuant to this Section 5 . Such notice need not be sent in advance of the occurrence of the Mandatory Conversion Time. Upon receipt of such notice, each holder of shares of Series B Preferred Stock in certificated form shall surrender his, her or its certificate or certificates for all such shares (or, if such 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) to the Corporation at the place designated in such notice. If so required by the Corporation, any certificates surrendered for conversion shall be endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or by his, her or its attorney duly authorized in writing. All rights with respect to the Series B Preferred Stock converted pursuant to Subsection 5.1 , including the rights, if any, to receive notices and vote (other than as a holder of Common Stock), will terminate at the Mandatory Conversion Time (notwithstanding the failure of the holder or holders thereof to surrender any certificates at or prior to such time), except only the rights of the holders thereof, upon surrender of any certificate or certificates of such holders (or lost certificate affidavit and agreement) therefor, to receive the items provided for in the next sentence of this Subsection 5.2 . As soon as practicable after the Mandatory Conversion Time and, if applicable, the surrender of any certificate or certificates (or lost certificate affidavit and agreement) for Series A Preferred Stock, the Corporation shall (a) issue and deliver to such holder, or to his, her or its nominees, a certificate or certificates for the number of full shares of Common Stock issuable on such conversion in accordance with the provisions hereof and (b)pay cash as provided in Subsection 4.2 in lieu of any fraction of a share of Common Stock otherwise issuable upon such conversion and the payment of any declared but unpaid dividends on the shares of Series B Preferred Stock converted. Such converted Series B Preferred Stock 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 B Preferred Stock accordingly.

6.             Redemption of Series A Preferred Stock .

6.1               Mandatory Retirement . In the event that the holders of the Series A Preferred then outstanding shall at any time have received aggregate dividends in an amount per share equal to the Series A Original Issue Price, the Preferred Stock may be redeemed at the election of the Corporation (a “ Mandatory Redemption ”) out of funds lawfully available therefor at a price equal to $.001 per share (the “ Mandatory Redemption Price ”).

6.2               Optional Redemption Upon Liquidity Trigger Event . In the event of a Liquidity Trigger Event (as defined below) (other than a Deemed Liquidation Event, which shall be governed by the provisions of Section 2.3 hereof), the Corporation shall send a written notice to each holder of Series A Preferred Stock no later than the ninetieth (90th) day after the Liquidity Trigger Event (the “ Notice of Trigger Event ”) advising such holders of their right pursuant to the terms of this Section 4 to require the redemption of such shares of Series A Preferred Stock as set forth herein (a “ Liquidity Event Redemption ”). If the holders of at least fifty percent (50%) of the then outstanding shares of Series A Preferred Stock so request in a written instrument delivered to the Corporation not later than one hundred twenty (120) days after receipt of the Notice of Trigger Event, the Corporation shall use the Net Cash Proceeds (as defined below) received by the Corporation as part of such Liquidity Trigger Event, to the extent permitted by Delaware law governing distributions to stockholders (the “ Available Redemption Proceeds ”), to redeem that number of shares of Series A Preferred Stock equal to the largest whole number (the “ Redemption Shares ”) determined by dividing the Available Redemption Proceeds by the Series A Liquidation Amount, and disregarding any fractional shares. The redemption price for each of the Redemption Shares to be redeemed pursuant hereto shall be the Series A Liquidation Amount (the “ Liquidity Event Redemption Price ”, and together with the Mandatory Redemption Price, the “ Redemption Price ”). As used herein, the term “ Liquidity Trigger Event ” shall mean either of the following (except to the extent that such events constitute a Deemed Liquidation Event): (i) the sale or issuance of any equity or debt securities of the Corporation, or any other incurrence of indebtedness by the Corporation, that results in Net Cash Proceeds of at least $5,000,000 (other than the sale of Series B Preferred Stock and warrants pursuant to the Series B Preferred Stock Purchase Agreement); or (ii) the sale, license, or other disposition of any of the assets or property of the Corporation that results in Net Cash Proceeds of at least $5,000,000. As used herein, the term “ Net Cash Proceeds ” shall mean the aggregate cash proceeds received by the Corporation as a result of the Liquidity Trigger Event, less the costs and expenses of the Corporation incurred in connection with such Liquidity Trigger Event.

6.3               Redemption Notice . The Corporation shall send written notice of the Mandatory Redemption or the Liquidity Event Redemption, as applicable (the “ Redemption Notice ”), to each holder of record of Series A Preferred Stock not less than 40 days prior to the date for such redemption (the “ Redemption Date ”). Each Redemption Notice shall state:

(a) the number of shares of Series A Preferred Stock held by the holder that the Corporation shall redeem on the Redemption Date specified in the Redemption Notice;

(b) the Redemption Date and the Redemption Price; and

(c) that the holder is to surrender to the Corporation, in the manner and at the place designated, his, her or its certificate or certificates representing the shares of Series A Preferred Stock to be redeemed.

6.4               Surrender of Certificates; Payment . On or before the applicable Redemption Date, each holder of shares of Series A Preferred Stock to be redeemed on such Redemption Date, shall surrender the certificate or certificates representing such shares (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) to the Corporation, in the manner and at the place designated in the Redemption Notice, and thereupon the Redemption Price for such shares shall be payable to the order of the person whose name appears on such certificate or certificates as the owner thereof.

6.5               Rights Subsequent to Redemption . If the Redemption Notice shall have been duly given, and if on the applicable Redemption Date the Redemption Price payable upon redemption of the shares of Series A Preferred Stock to be redeemed on such Redemption Date is paid or tendered for payment or deposited with an independent payment agent so as to be available therefor in a timely manner, then notwithstanding that the certificates evidencing any of the shares of Series A Preferred Stock so called for redemption shall not have been surrendered, all rights with respect to such shares shall forthwith after the Redemption Date terminate, except only the right of the holders to receive the Redemption Price without interest upon surrender of their certificate or certificates therefor.

7.                   Redeemed or Otherwise Acquired Shares . Any shares of Series A Preferred Stock that are redeemed or otherwise acquired by the Corporation or any of its subsidiaries shall be automatically and immediately cancelled and retired and shall not be reissued, sold or transferred.

8.                   Waiver . Any of the rights, powers, preferences and other terms of the Series A Preferred Stock set forth herein may be waived on behalf of all holders of Series A Preferred Stock by the affirmative written consent or vote of the holders of at least fifty percentage (50%) of the shares of Series A Preferred Stock then outstanding. Any of the rights, powers, preferences and other terms of the Series B Preferred Stock set forth herein may be waived on behalf of all holders of Series B Preferred Stock by the affirmative written consent or vote of the holders of at least fifty percentage (50%) of the shares of Series B Preferred Stock then outstanding.

9.                   Notices . Any notice required or permitted by the provisions of this Article Fourth to be given to a holder of shares of Preferred Stock shall be mailed, postage prepaid, to the post office address last shown on the records of the Corporation, or given by electronic communication in compliance with the provisions of the General Corporation Law, and shall be deemed sent upon such mailing or electronic transmission. Any notice to the Company shall be sent to the person and address set forth in Article Fifth below, with a copy to Leslie M. Taeger, Senior Vice President & Chief Financial Officer, Capstone Therapeutics Corp., 1275 W. Washington St., Suite 104, Tempe, AZ 85281, or to such other person or persons and addresses as the Company shall designate in a notice provided to the holders of the Preferred Stock.

Fifth: The name and mailing address of the incorporator is as follows:

Sixth: Subject to any additional vote required by the Certificate of Incorporation or Bylaws, in furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, repeal, alter, amend and rescind any or all of the Bylaws of the Corporation.

Seventh: Subject to any additional vote required by the Certificate of Incorporation, the number of directors of the Corporation shall be determined in the manner set forth in the Bylaws of the Corporation.

Eighth: Elections of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide.

Ninth: Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws of the Corporation may provide. The books of the Corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of the Corporation.

Tenth: To the fullest extent permitted by law, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. If the General Corporation Law or any other law of the State of Delaware is amended after approval by the stockholders of this Article Tenth to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended.

Any repeal or modification of the foregoing provisions of this Article Tenth by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of, or increase the liability of any director of the Corporation with respect to any acts or omissions of such director occurring prior to, such repeal or modification.

Eleventh: To the fullest extent permitted by applicable law, the Corporation is authorized to provide indemnification of (and advancement of expenses to) directors, officers, managers and agents of the Corporation (and any other persons to which General Corporation Law permits the Corporation to provide indemnification) through Bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the General Corporation Law.

Any amendment, repeal or modification of the foregoing provisions of this Article Eleventh shall not adversely affect any right or protection of any director, officer or other agent of the Corporation existing at the time of such amendment, repeal or modification.

Twelfth: The Corporation renounces, to the fullest extent permitted by law, any interest or expectancy of the Corporation in, or in being offered an opportunity to participate in, any Excluded Opportunity. An “ Excluded Opportunity ” is any matter, transaction or interest that is presented to, or acquired, created or developed by, or which otherwise comes into the possession of any holder of Series A Preferred Stock or any partner, member, director, stockholder, employee or agent of any such holder, or any person serving as a director or manager of the Corporation at the request of such Holder, other than someone who is an employee of the Corporation or any of its subsidiaries (collectively, “ Covered Persons ”), unless such matter, transaction or interest is presented to, or acquired, created or developed by, or otherwise comes into the possession of, a Covered Person expressly and solely in such Covered Person’s capacity as a director of the Corporation.

* * *

IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation has been executed by a duly authorized officer of the Corporation on this 24th day of August, 2016.

[Signature Page to Amended and Restated Certificate of Incorporation]

Exhibit 10.4

Exhibit 10.4 -Series B Preferred Stock and Warrant Purchase Agreement - Exhibit F – Form of Registration Rights Agreement

REGISTRATION RIGHTS AGREEMENT

THIS REGISTRATION RIGHTS AGREEMENT (this “ Agreement ”), is made as of the 25th day of August, 2016, by and among LipimetiX Development, Inc., a Delaware corporation (the “ Company ”), and each of the investors listed on Schedule A hereto, each of which is referred to in this Agreement as an “ Investor ”, and each of the stockholders listed on Schedule B hereto, each of whom is referred to herein as a “ Common Holder ” and any Additional Purchaser (as defined in the Purchase Agreement) that becomes a party to this Agreement in accordance with Section 3.9 hereof.

RECITALS

WHEREAS , the Company and the Investors are parties to the Series B Preferred Stock and Warrant Purchase Agreement, dated as of the date herewith (the “ Purchase Agreement ”); and

WHEREAS , in order to induce the Company to enter into the Purchase Agreement and to induce the Investors to invest funds in the Company pursuant to the Purchase Agreement, the Investors and the Company hereby agree that this Agreement shall govern the rights of the Investors to cause the Company to register shares of Common Stock issuable to the Investors, as set forth in this Agreement.

NOW, THEREFORE , the parties hereby agree as follows:

1.   Definitions . For purposes of this Agreement:

1.1              “ Affiliate ” means, with respect to any specified Person, any other Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person, including without limitation any general partner, managing member, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company with, such Person.

1.2              “ Common Holder Registrable Securities ” means (i) the 1,120,000 shares of Common Stock held by the Common Holders, and (ii) any Common Stock issued as (or issuable upon the conversion or exercise of any warrant, right, or other security that is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of such shares.

1.3              “ Common Stock ” means shares of the Company’s Class A-1 Common Stock, par value $0.00001 per share and Class A-2 Common Stock, par value $0.00001 per share.

1.4              “ Damages ” means any loss, damage, claim or liability (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act, or other federal or state law, insofar as such loss, damage, claim or liability (or any action in respect thereof) arises out of or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in any registration statement of the Company, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto; (ii) an omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or (iii) any violation or alleged violation by the indemnifying party (or any of its agents or Affiliates) of the Securities Act, the Exchange Act, any state securities law, or any rule or regulation promulgated under the Securities Act, the Exchange Act, or any state securities law.

1.5              “ Derivative Securities ” means any securities or rights convertible into, or exercisable or exchangeable for (in each case, directly or indirectly) , Common Stock, including options and warrants.

1.6              “ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

1.7              “ Excluded Registration ” means (i) a registration relating to the sale of securities to employees of the Company or a subsidiary pursuant to a stock option, stock purchase, or similar plan; (ii) a registration relating to an SEC Rule 145 transaction; (iii) a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities; or (iv) a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered.

1.8              “ Form S-3 ” means such form under the Securities Act as in effect on the date hereof or any registration form under the Securities Act subsequently adopted by the SEC that permits incorporation of substantial information by reference to other documents filed by the Company with the SEC.

1.10              “ Holder ” means any holder of Registrable Securities who is a party to this Agreement.

1.11              “ Immediate Family Member ” means a child , stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including, adoptive relationships, of a natural person referred to herein.

1.12              “ Initiating Holders ” means, collectively, Holders who properly initiate a registration request under this Agreement.

1.13              “ IPO ” means the Company’s first underwritten public offering of its Common Stock under the Securities Act.

1.14              “ Person ” means any individual, corporation, partnership, trust, limited liability company, association or other entity .

1.15              “ Preferred Stock ” means, collectively, shares of the Company’s Series A Preferred Stock and Series B Preferred Stock .

1.16              “ Registrable Securities ” means (i) the Common Stock issuable or issued upon conversion of the Series B Preferred Stock; (ii) any Common Stock , or any Common Stock issued or issuable (directly or indirectly) upon conversion and/or exercise of any other securities of the Company, acquired by the Investors prior to, on, or after the date hereof; (iii) the Common Holder Registrable Securities; and (iv) any Common Stock issued as (or issuable upon the conversion or exercise of any warrant, right, or other security that is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, the shares referenced in clauses (i) and (ii) above; excluding in all cases, however, any Registrable Securities sold by a Person in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Subsection 3.1 , and excluding for purposes of Section 2 any shares for which registration rights have terminated pursuant to Subsection 2.11 of this Agreement.

1.17              “ Registrable Securities then outstanding ” means the number of shares determined by adding the number of shares of outstanding Common Stock that are Registrable Securities and the number of shares of Common Stock issuable (directly or indirectly) pursuant to then exercisable and/ or convertible securities that are Registrable Securities.

1.18              “ SEC ” means the Securities and Exchange Commission.

1.19              “ SEC Rule 144 ” means Rule 144 promulgated by the SEC under the Securities Act.

1.20              “ SEC Rule 145 ” means Rule 145 promulgated by the SEC under the Securities Act.

1.21              “ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

1.22              “ Selling Expenses ” means all underwriting discounts, selling commissions, and stock transfer taxes applicable to the sale of Registrable Securities, and fees and disbursements of counsel for any Holder, except for the fees and disbursements of the Selling Holder Counsel borne and paid by the Company as provided in Subsection 2.6 .

1.23              “ Series B Preferred Stock ” means shares of the Company’s Series B-1 Preferred Stock, par value $0.00001 per share and Series B-2 Preferred Stock, par value $0.00001 per share.

2.   Registration Rights . The Company covenants and agrees as follows:

2.1 Form S-3 Demand Registration .

(a)                 If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least fifty percent (50%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $15 million, then the Company shall (i) within ten (10) days after the date such request is given, give a notice thereof (a “ Demand Notice ”) to all Holders other than the Initiating Holders; and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Subsections 2.1(b) and 2.3 .

(b)                Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Subsection 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than one hundred twenty (120) days after the request of the Initiating Holders is given; provided , however , that the Company may not invoke this right more than twice in any twelve (12) month period.

(c)                 The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (ii) if the Company has effected one registration pursuant to Subsection 2.1(a) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Subsection 2.1(c) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.6 , in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Subsection 2.1(c) .

2.2 Company Registration . If the Company proposes to register (including, for this purpose, a registration effected by the Company for stockholders other than the Holders) any of its Common Stock under the Securities Act in connection with the public offering of such securities solely for cash (other than in an Excluded Registration), the Company shall, at such time, promptly give each Holder notice of such registration. Upon the request of each Holder given within twenty (20) days after such notice is given by the Company, the Company shall, subject to the provisions of Subsection 2.3 , cause to be registered all of the Registrable Securities that each such Holder has requested to be included in such registration. The Company shall have the right to terminate or withdraw any registration initiated by it under this Subsection 2.2 before the effective date of such registration, whether or not any Holder has elected to include Registrable Securities in such registration. The expenses (other than Selling Expenses) of such withdrawn registration shall be borne by the Company in accordance with Subsection 2.6 .

2.3 Underwriting Requirements .

(a)                 If, pursuant to Subsection 2.1 , the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Subsection 2.1 , and the Company shall include such information in the Demand Notice. The underwriter (s) will be selected by the Company and shall be reasonably acceptable to a majority in interest of the Initiating Holders. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Subsection 2.4(e) ) enter into an underwriting agreement in customary form with the underwriter(s) selected for such underwriting. Notwithstanding any other provision of this Subsection 2.3 , if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities that otherwise would be underwritten pursuant hereto, and the number of Registrable Securities that may be included in the underwriting shall be allocated among such Holders of Registrable Securities, including the Initiating Holders, in proportion (as nearly as practicable) to the number of Registrable Securities owned by each Holder or in such other proportion as shall mutually be agreed to by all such selling Holders ; provided , however , that the number of Registrable Securities held by the Holders to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest one hundred (100) shares.

(b)                In connection with any offering involving an underwriting of shares of the Company’s capital stock pursuant to Subsection 2.2 , the Company shall not be required to include any of the Holders’ Registrable Securities in such underwriting unless the Holders accept the terms of the underwriting as agreed upon between the Company and its underwriters, and then only in such quantity as the underwriters in their sole discretion determine will not jeopardize the success of the offering by the Company. If the total number of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the number of securities to be sold (other than by the Company) that the underwriters in their reasonable discretion determine is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the underwriters and the Company in their sole discretion determine will not jeopardize the success of the offering. If the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated among the selling Holders in proportion (as nearly as practicable to) the number of Registrable Securities owned by each selling Holder or in such other proportions as shall mutually be agreed to by all such selling Holders. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest one hundred (100) shares. For purposes of the provision in this Subsection 2.3 (b) concerning apportionment, for any selling Holder that is a partnership, limited liability company, or corporation, the partners, members, retired partners, retired members, stockholders, and Affiliates of such Holder, or the estates and Immediate Family Members of any such partners, retired partners, members, and retired members and any trusts for the benefit of any of the foregoing Persons, shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate number of Registrable Securities owned by all Persons included in such “selling Holder,” as defined in this sentence.

(c)                 For purposes of Subsection 2.1 , a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Subsection 2.3 (a) , fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included.

2.4 Obligations of the Company . Whenever required under this Section 2 to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible:

(a)                 prepare and file with the SEC a registration statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such registration statement to become effective and, upon the request of the Holders of a majority of the Registrable Securities registered thereunder, keep such registration statement effective for a period of up to one hundred twenty (120) days or, if earlier, until the distribution contemplated in the registration statement has been completed; provided , however , that (i) such one hundred twenty (120) day period shall be extended for a period of time equal to the period the Holder refrains, at the request of an underwriter of Common Stock (or other securities) of the Company, from selling any securities included in such registration, and (ii) in the case of any registration of Registrable Securities on Form S-3 that are intended to be offered on a continuous or delayed basis, subject to compliance with applicable SEC rules, such one hundred twenty (120) day period shall be extended for up to sixty (60) days, if necessary, to keep the registration statement effective until all such Registrable Securities are sold;

(b)                prepare and file with the SEC such amendments and supplements to such registration statement, and the prospectus used in connection with such registration statement, as may be necessary to comply with the Securities Act in order to enable the disposition of all securities covered by such registration statement;

(c)                 furnish to the selling Holders such numbers of copies of a prospectus, including a preliminary prospectus, as required by the Securities Act, and such other documents as the Holders may reasonably request in order to facilitate their disposition of their Registrable Securities;

(d)                use its commercially reasonable efforts to register and qualify the securities covered by such registration statement under such other securities or blue-sky laws of such jurisdictions as shall be reasonably requested by the selling Holders; provided that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;

(e)                 in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the underwriter (s) of such offering;

(f)                 use its commercially reasonable efforts to cause all such Registrable Securities covered by such registration statement to be listed on a national securities exchange or trading system and each securities exchange and trading system (if any) on which similar securities issued by the Company are then listed;

(g)                provide a transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement and provide a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration;

(h)                promptly make available for inspection by the selling Holders, any [managing] underwriter (s) participating in any disposition pursuant to such registration statement, and any attorney or accountant or other agent retained by any such underwriter or selected by the selling Holders, all financial and other records, pertinent corporate documents, and properties of the Company, and cause the Company’s officers, directors, employees, and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant, or agent , in each case, as necessary or advisable to verify the accuracy of the information in such registration statement and to conduct appropriate due diligence in connection therewith ;

(i) notify each selling Holder, promptly after the Company receives notice thereof, of the time when such registration statement has been declared effective or a supplement to any prospectus forming a part of such registration statement has been filed; and

(j) after such registration statement becomes effective, notify each selling Holder of any request by the SEC that the Company amend or supplement such registration statement or prospectus.

In addition, the Company shall ensure that, at all times after any registration statement covering a public offering of securities of the Company under the Securities Act shall have become effective, its insider trading policy shall provide that the Company’s directors may implement a trading program under Rule 10b5-1 of the Exchange Act.

2.5 Furnish Information . It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 2 with respect to the Registrable Securities of any selling Holder that such Holder shall furnish to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as is reasonably required to effect the registration of such Holder’s Registrable Securities.

2.6 Expenses of Registration . All expenses (other than Selling Expenses) incurred in connection with registrations, filings, or qualifications pursuant to Section 2 , including all registration, filing, and qualification fees; printers’ and accounting fees; fees and disbursements of counsel for the Company; and the reasonable fees and disbursements of one counsel for the selling Holders (“ Selling Holder Counsel ”) , shall be borne and paid by the Company; provided , however , that the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to Subsection 2.1 if the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered (in which case all selling Holders shall bear such expenses pro rata based upon the number of Registrable Securities that were to be included in the withdrawn registration), unless the Holders of a majority of the Registrable Securities agree to forfeit their right to the registration pursuant to Subsection 2.1(a) . All Selling Expenses relating to Registrable Securities registered pursuant to this Section 2 shall be borne and paid by the Holders pro rata on the basis of the number of Registrable Securities registered on their behalf.

2.7 Delay of Registration . No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any registration pursuant to this Agreement as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 2 .

2.8 Indemnification . If any Registrable Securities are included in a registration statement under this Section 2 :

(a)                 To the extent permitted by law, the Company will indemnify and hold harmless each selling Holder, and the partners, members, officers, directors, and stockholders of each such Holder; legal counsel and accountants for each such Holder; any underwriter (as defined in the Securities Act) for each such Holder; and each Person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Damages, and the Company will pay to each such Holder, underwriter, controlling Person, or other aforementioned Person any legal or other expenses reasonably incurred thereby in connection with investigating or defending any claim or proceeding from which Damages may result, as such expenses are incurred; provided , however , that the indemnity agreement contained in this Subsection 2.8 (a) shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld, nor shall the Company be liable for any Damages to the extent that they arise out of or are based upon actions or omissions made in reliance upon and in conformity with written information furnished by or on behalf of any such Holder, underwriter, controlling Person, or other aforementioned Person expressly for use in connection with such registration.

(b)                To the extent permitted by law, each selling Holder, severally and not jointly, will indemnify and hold harmless the Company, and each of its directors, each of its officers who has signed the registration statement, each Person (if any), who controls the Company within the meaning of the Securities Act, legal counsel and accountants for the Company, any underwriter (as defined in the Securities Act), any other Holder selling securities in such registration statement, and any controlling Person of any such underwriter or other Holder, against any Damages, in each case only to the extent that such Damages arise out of or are based upon actions or omissions made in reliance upon and in conformity with written information furnished by or on behalf of such selling Holder expressly for use in connection with such registration; and each such selling Holder will pay to the Company and each other aforementioned Person any legal or other expenses reasonably incurred thereby in connection with investigating or defending any claim or proceeding from which Damages may result, as such expenses are incurred; provided , however , that the indemnity agreement contained in this Subsection 2.8 (b) shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld; and provided further that in no event shall the aggregate amounts payable by any Holder by way of indemnity or contribution under Subsections 2.8 (b) and 2.8(d) exceed the proceeds from the offering received by such Holder (net of any Selling Expenses paid by such Holder ), except in the case of fraud or willful misconduct by such Holder.

(c)                 Promptly after receipt by an indemnified party under this Subsection 2.8 of notice of the commencement of any action (including any governmental action) for which a party may be entitled to indemnification hereunder, such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Subsection 2.8 , give the indemnifying party notice of the commencement thereof. The indemnifying party shall have the right to participate in such action and, to the extent the indemnifying party so desires, participate jointly with any other indemnifying party to which notice has been given, and to assume the defense thereof with counsel mutually satisfactory to the parties; provided , however , that an indemnified party (together with all other indemnified parties that may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such action.

(d)                To provide for just and equitable contribution to joint liability under the Securities Act in any case in which either: (i) any party otherwise entitled to indemnification hereunder makes a claim for indemnification pursuant to this Subsection 2.8 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case, notwithstanding the fact that this Subsection 2.8 provides for indemnification in such case, or (ii) contribution under the Securities Act may be required on the part of any party hereto for which indemnification is provided under this Subsection 2.8 , then, and in each such case, such parties will contribute to the aggregate losses, claims, damages, liabilities, or expenses to which they may be subject (after contribution from others) in such proportion as is appropriate to reflect the relative fault of each of the indemnifying party and the indemnified party in connection with the statements, omissions, or other actions that resulted in such loss, claim, damage, liability, or expense, as well as to reflect any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or allegedly untrue statement of a material fact, or the omission or alleged omission of a material fact, relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission; provided , however , that, in any such case (x) no Holder will be required to contribute any amount in excess of the public offering price of all such Registrable Securities offered and sold by such Holder pursuant to such registration statement, and (y) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation; and provided further that in no event shall a Holder’s liability pursuant to this Subsection 2.8 (d) , when combined with the amounts paid or payable by such Holder pursuant to Subsection 2.8 (b) , exceed the proceeds from the offering received by such Holder (net of any Selling Expenses paid by such Holder ) , except in the case of willful misconduct or fraud by such Holder.

(e)                 Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control.

(f)                 Unless otherwise superseded by an underwriting agreement entered into in connection with the underwritten public offering, the obligations of the Company and Holders under this Subsection 2.8 shall survive the completion of any offering of Registrable Securities in a registration under this Section 2 , and otherwise shall survive the termination of this Agreement.

2.9 Reports Under Exchange Act . With a view to making available to the Holders the benefits of SEC Rule 144 and any other rule or regulation of the SEC that may at any time permit a Holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3, the Company shall:

(a)                 make and keep available adequate current public information, as those terms are understood and defined in SEC Rule 144, at all times after the effective date of the registration statement filed by the Company for the IPO;

(b)                use commercially reasonable efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act (at any time after the Company has become subject to such reporting requirements); and

(c)                 furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith upon request (i) to the extent accurate, a written statement by the Company that it has complied with the reporting requirements of SEC Rule 144 (at any time after ninety (90) days after the effective date of the registration statement filed by the Company for the IPO), the Securities Act, and the Exchange Act (at any time after the Company has become subject to such reporting requirements), or that it qualifies as a registrant whose securities may be resold pursuant to Form S-3 (at any time after the Company so qualifies); (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company; and (iii) such other information as may be reasonably requested in availing any Holder of any rule or regulation of the SEC that permits the selling of any such securities without registration (at any time after the Company has become subject to the reporting requirements under the Exchange Act) or pursuant to Form S-3 (at any time after the Company so qualifies to use such form).

2.10              “Market Stand-off” Agreement . Each Holder hereby agrees that it will not, without the prior written consent of the managing underwriter, during the period commencing on the date of the final prospectus relating to the registration by the Company of shares of its Common Stock or any other equity securities under the Securities Act on a registration statement on Form S-1 or Form S-3, and ending on the date specified by the Company and the managing underwriter (such period not to exceed one hundred eighty (180) days in the case of the IPO, or such other period as may be requested by the Company or an underwriter to accommodate regulatory restrictions on (1) the publication or other distribution of research reports, and (2) analyst recommendations and opinions, including, but not limited to, the restrictions contained in FINRA Rule 2711(f)(4) or NYSE Rule 472(f)(4), or any successor provisions or amendments thereto), or ninety (90) days in the case of any registration other than the IPO, or such other period as may be requested by the Company or an underwriter to accommodate regulatory restrictions on (1) the publication or other distribution of research reports and (2) analyst recommendations and opinions, including, but not limited to, the restrictions contained in FINRA Rule 2711(f)(4) or NYSE Rule 472(f)(4), or any successor provisions or amendments thereto), (i) lend; offer; pledge; sell; contract to sell; sell any option or contract to purchase; purchase any option or contract to sell; grant any option, right, or warrant to purchase; or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable (directly or indirectly) for Common Stock (whether such shares or any such securities are then owned by the Holder or are thereafter acquired) or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of such securities , whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash, or otherwise. The foregoing provisions of this Subsection 2.10 shall not apply to the sale of any shares to an underwriter pursuant to an underwriting agreement, and shall be applicable to the Holders only if all officers and directors are subject to the same restrictions. The underwriters in connection with such registration are intended third-party beneficiaries of this Subsection 2.10 and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. Each Holder further agrees to execute such agreements as may be reasonably requested by the underwriters in connection with such registration that are consistent with this Subsection 2.10 or that are necessary to give further effect thereto.

2.11              Termination of Registration Rights . The right of any Holder to request registration or inclusion of Registrable Securities in any registration pursuant to Subsections 2.1 or 2.2 shall terminate upon the earliest to occur of:

(a)                 the closing of a Deemed Liquidation Event, as such term is defined in the Company’s Certificate of Incorporation;

(b)                such time as Rule 144 or another similar exemption under the Securities Act is available for the sale of all of such Holder’s shares without limitation during a three-month period without registration; and

(c)                 the third anniversary of the IPO.

3.   Miscellaneous .

3.1 Successors and Assigns . The rights under this Agreement may be assigned ( but only with all related obligations ) by a Holder to a transferee of Registrable Securities that (i) is an Affiliate of a Holder; (ii) is a Holder’s Immediate Family Member or trust for the benefit of an individual Holder or one or more of such Holder’s Immediate Family Members; or (iii) after such transfer, holds at least five percent (5%) shares of Registrable Securities (subject to appropriate adjustment for stock splits, stock dividends, combinations, and other recapitalizations); provided , however , that (x) the Company is, within a reasonable time after such transfer, furnished with written notice of the name and address of such transferee and the Registrable Securities with respect to which such rights are being transferred; and (y) such transferee agrees in a written instrument delivered to the Company to be bound by and subject to the terms and conditions of this Agreement, including the provisions of Subsection 2.10 . For the purposes of determining the number of shares of Registrable Securities held by a transferee, the holdings of a transferee (1) that is an Affiliate or stockholder of a Holder; (2) who is a Holder’s Immediate Family Member; or (3) that is a trust for the benefit of an individual Holder or such Holder’s Immediate Family Member shall be aggregated together and with those of the transferring Holder; provided further that all transferees who would not qualify individually for assignment of rights shall have a single attorney-in-fact for the purpose of exercising any rights, receiving notices, or taking any action under this Agreement. The terms and conditions of this Agreement inure to the benefit of and are binding upon the respective successors and permitted assignees of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assignees any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided herein.

3.2 Governing Law . This Agreement shall be governed by the internal law of the State of Delaware.

3.3 Counterparts . This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g. , www.docusign.com ) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes .

3.4 Titles and Subtitles . The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.

3.5 Notices . All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or (i) personal delivery to the party to be notified; (ii) when sent, if sent by electronic mail or facsimile during the recipient’s normal business hours, and if not sent during normal business hours, then on the recipient’s next business day; (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) business day after the business day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next-day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their addresses as set forth on Schedule A or Schedule B (as applicable) hereto, or to the principal office of the Company and to the attention of the Chief Executive Officer, in the case of the Company, or to such email address, facsimile number, or address as subsequently modified by written notice given in accordance with this Subsection 3.5 .

3.6 Amendments and Waivers . Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of the Company and the holders of a majority of the Registrable Securities then outstanding; provided that any provision hereof may be waived by any waiving party on such party’s own behalf, without the consent of any other party . The Company shall give prompt notice of any amendment or termination hereof or waiver hereunder to any party hereto that did not consent in writing to such amendment, termination, or waiver. Any amendment, termination, or waiver effected in accordance with this Subsection 3.6 shall be binding on all parties hereto, regardless of whether any such party has consented thereto. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.

3.7 Severability . In case any one or more of the provisions contained in this Agreement is for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and such invalid, illegal, or unenforceable provision shall be reformed and construed so that it will be valid, legal, and enforceable to the maximum extent permitted by law.

3.8 Aggregation of Stock . All shares of Registrable Securities held or acquired by Affiliates shall be aggregated together for the purpose of determining the availability of any rights under this Agreement and such Affiliated persons may apportion such rights as among themselves in any manner they deem appropriate.

3.9 Additional Investors . Notwithstanding anything to the contrary contained herein, if the Company issues additional shares of the Company’s Series B Preferred Stock after the date hereof, any purchaser of such shares of Series B Preferred Stock may become a party to this Agreement by executing and delivering an additional counterpart signature page to this Agreement, and thereafter shall be deemed an “Investor” for all purposes hereunder. No action or consent by the Investors shall be required for such joinder to this Agreement by such additional Investor , so long as such additional Investor has agreed in writing to be bound by all of the obligations as an “Investor” hereunder.

3.10   Entire Agreement . This Agreement (including any Schedules and Exhibits hereto) constitutes the full and entire understanding and agreement among the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties is expressly canceled.

3.11   Dispute Resolution . The parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of Arizona and to the jurisdiction of the United States District Court for the District of Arizona for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the state courts of Arizona or the United States District Court for the District of Arizona, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.

Waiver of Jury Trial : EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.

The prevailing party shall be entitled to reasonable attorney’s fees, costs, and necessary disbursements in addition to any other relief to which such party may be entitled. Each of the parties to this Agreement consents to personal jurisdiction for any equitable action sought in the U.S. District Court for the District of Arizona or any court of the State of Arizona.

3.12   Delays or Omissions . No delay or omission to exercise any right, power, or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power, or remedy of such nonbreaching or nondefaulting party, nor shall it be construed to be a waiver of or acquiescence to any such breach or default, or to any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. All remedies, whether under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.

[Remainder of Page Intentionally Left Blank]

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

[Signature Page to Registration Rights Agreement]

[Signature Page to Registration Rights Agreement]

SCHEDULE A

Investors

SCHEDULE B

Common Holders

Exhibit 10.5

Exhibit 10.5 -Series B Preferred Stock and Warrant Purchase Agreement - Exhibit G Form of Amended and Restated Stockholders Agreement among LipimetiX Development, Inc. and The Stockholders Named Herein

AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT

among

LIPIMETIX DEVELOPMENT, INC.

and

THE STOCKHOLDERS NAMED HEREIN

Dated as of August 25, 2016

LIPIMETIX DEVELOPMENT, INC.

AMENDED AND RESTATED STOCKHOLDERS AGREEMENT

ThiS AMENDED AND RESTATED Stockholders Agreement (this “ Agreement ”) is made and entered into as of August 25, 2016 by and among LipimetiX Development, Inc., a Delaware corporation (the “ Company ”), Capstone Therapeutics Corp., a Delaware corporation (“ CAPS ”), each of the stockholders listed on the signature page hereto as the LX Stockholders (collectively, the “ LX Stockholders ”), The UAB Research Foundation (“ UABRF ”), each of the holders of Series B Preferred Stock listed on Schedule 1 hereto and any subsequent purchasers of the Series B Preferred Stock who become parties to this Agreement pursuant to the terms hereof (collectively, the “ Series B Investors ”), and any other subsequent stockholders of the Company who become parties to this Agreement pursuant to the terms hereof (each a “ Stockholder ” and, collectively, the “ Stockholders ”). CAPS, the LX Stockholders and UABRF are sometimes referred to herein collectively as the “ Original Stockholders .”

WITNESSETH:

WHEREAS, the Company and the original Stockholders are parties to that certain Stockholders Agreement dated as of June 23, 2015 (the “ Original Stockholders’ Agreement ”);

WHEREAS, Section 11.1 of the Original Stockholders Agreement permits amendments to the Original Stockholders’ Agreement only upon written approval of Stockholders holding at least 75% of the Common Shares held by all of the Stockholders;

WHEREAS, the original Stockholders signing below own all of the shares of the Company’s Common Stock, par value $0.0001 per share (the “ Common Stock ”);

WHEREAS, concurrently herewith, the Company is entering into that certain Series B Preferred Stock and Warrant Purchase Agreement (the “ Series B Purchase Agreement ”) pursuant to which the Company may issue and sell to the Series B Investors an aggregate of up to 1,340,176 shares (the “ 2016 Series B Preferred Shares ”) of its Series B Preferred Stock, together with Warrants (the “ Series B Warrants ”) to purchase up to an aggregate of 49,062 shares of its Series B Preferred Stock (the “ Warrant Shares ,” and together with the 2016 Series B Preferred Shares, the “ Series B Preferred Shares ”);

WHEREAS, the Series B Preferred Shares are convertible at any time and from time to time into shares of Class A-1 Common Stock of the Company at the option of the holder of record thereof, and are subject to mandatory conversion under certain circumstances;

WHEREAS, the Stockholders and the Company have agreed that it is in their mutual best interests and in the best interest of the Company to amend and restate the Original Stockholders Agreement as set forth herein; and

WHEREAS, this Amended and Restated Stockholders Agreement amends, restates, and supersedes in its entirety the Original Stockholders Agreement.

NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the parties agree as follows:

AGREEMENT:

In consideration of the foregoing and the mutual promises contained in this Agreement, the parties agree as follows:

1.                   Definitions .

1.1               Defined Terms . As used in this Agreement:

“ Accounting Services Agreement ” means that certain Accounting Services Agreement by and between the Company and CAPS dated as of August 3, 2012, as amended from time to time.

“ Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person; provided that no securityholder of the Company shall be deemed an Affiliate of any other securityholder solely by reason of any investment in the Company. For the purpose of this definition, the term “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

“ Allocation Ratio ” means with respect to any Stockholder the fraction (a) the numerator of which is the number of outstanding Common Shares owned by such Stockholder (assuming conversion of all outstanding shares of Series B Preferred Stock) and (b) the denominator of which is the number of then outstanding shares of Common Shares (assuming conversion of all outstanding shares of Series B Preferred Stock).

“ Benu Management Agreement ” means that certain Management Agreement by and between the Company and Benu BioPharma, Inc., dated as of August 3, 2012, as amended from time to time.

“ Board ” means the board of directors of the Company.

“ Business Day ” means any day except a Saturday, Sunday or other day on which commercial banks in New York City are authorized by law to close.

“ Bylaws ” means the Bylaws of the Company, as amended from time to time.

“ Capital Stock ” means (a) Common Shares (whether now outstanding or hereafter issued in any context), (b) shares of Series A Preferred Stock (whether now outstanding or hereafter issued in any context), (c) shares of Series B Preferred Stock (whether now outstanding or hereafter issued in any context), (d) shares of any Other Stock, or (e) any option, warrant or right to receive any Common Shares, Series A Preferred Stock, Series B Preferred Stock or Other Stock other than options issued under the Company’s stock option plan(s) in effect from time to time (but any Common Shares, Series A Preferred Stock, Series B Preferred Stock or Other Stock issued upon exercise of such options shall be Capital Stock).

“ CAPS Majority Holders ” means the holders of a majority of the Common Shares held by CAPS and/or any of its Permitted Transferees.

“ CAPS Stockholders ” means CAPS and each of its Permitted Transferees holding Common Shares.

“ Certificate of Incorporation ” means the Amended and Restated Certificate of Incorporation of the Company, as filed with the Secretary of State of the State of Delaware and in effect as of the date of this Agreement, as amended from time to time, including amendments made through a certificate of designations filed with the Secretary of State of the State of Delaware.

“ Change of Control ” means: (a) the sale of all or substantially all of the consolidated assets of the Company and the Company Subsidiaries, if any, to a Third Party Purchaser; (b) a sale resulting in no less than a majority of the Common Shares being held by a Third Party Purchaser; or (c) a merger, consolidation, recapitalization or reorganization of the Company with or into a Third Party Purchaser that results in the inability of the Stockholders to designate or elect a majority of the board of directors (or its equivalent)) of the resulting entity or its parent company.

“ Class A-1 Common Shares ” means shares of Class A-1 Common Stock, par value $0.00001 per share, of the Company and any stock into which such Class A-1 Common Shares may hereafter be converted or changed.

“ Class A-2 Common Shares ” means shares of Class A-2 Common Stock, par value $0.00001 per share, of the Company and any stock into which such Class A-2 Common Shares may hereafter be converted or changed.

“ Common Shares ” means shares of Class A-1 Common Shares and Class A-2 Common Shares.

“ Company Breach Event ” means either of: (i) the failure of the Company during any calendar year to operate substantially in accordance with the Budget for such year or to achieve any of the Milestones for such year; or (ii) the failure of the Company to perform any of its obligations hereunder, including any of the provisions of Sections 4.4, 4.5, or 4.6 hereof.

“ Company Competitor ” means any Person who is engaged in the commercial development, sale or distribution of pharmaceutical products, or any person who owns, directly or indirectly, an ownership interest in any such Person (other than a passive ownership of less than one percent (1%) of the outstanding stock of any entity whose stock is traded on an established stock exchange).

“ Company Subsidiary ” means a Subsidiary of the Company.

“ Governmental Authority ” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of law), or any arbitrator, court or tribunal of competent jurisdiction.

“ Holder ” means any Stockholder.

“ License Agreement ” means that certain Exclusive License Agreement dated August 26, 2011 between UABRF and LipimetiX, LLC (“ LX ”), as amended on August 3, 2012 and December 15, 2014 by and among UABRF, LX and the Company with LX assigning its interest therein to the Company in connection therewith, as further amended from time to time.

“ LX Majority Holders ” means the holders of a majority of the Common Shares held by the LX Stockholders and/or any of their respective Permitted Transferees.

“ LX Stockholders ” has the meaning set forth in the Preamble to this Agreement.

“ Majority in Interest of the Stockholders ” means one or more Stockholders who own, collectively, Shares of the of the Company representing at least a majority of the Voting Power (without giving effect to the conversion of any convertible Shares or the exercise of any options, warrants or other rights to acquire Shares).

“ New Shares ” means any Capital Stock other than (a) any Capital Stock issued pursuant to an offering of the securities of the Company pursuant to a registration statement filed pursuant to the Securities Act of 1933, as amended, (b) Common Shares issuable upon the exercise of options, warrants or other rights to purchase such shares issued or issuable pursuant to the Company’s stock option plan(s) in effect from time to time, or upon the conversion of shares of Series B Preferred Stock, (c) Common Shares or options, warrants or other rights to purchase Common Shares that are issued or issuable to directors or employees, or other service providers or contractors (including without limitation any investment bankers or other financial service providers) of the Company for compensatory purposes and are approved by the Board, and the Common Shares issuable upon the exercise of any such options, warrants or other rights, (d) Capital Stock issued to the Company’s stockholders in connection with any stock split, stock dividend, reverse stock split, recapitalization, reclassification or similar event in which new Capital Stock is issued only to the Persons who were stockholders of the Company immediately prior to such issuance and in which the allocation of such new Capital Stock is based upon the proportionate ownership of Capital Stock immediately prior to such issuance, (e) Capital Stock issued in connection with a lender financing transaction approved by the Board, (f) Capital Stock issued as consideration for the acquisition of all or a portion of the business or assets of a Person or all or a portion of the equity securities of a Person, regardless of the structure of such transaction, provided such Person is not Affiliated with any Investor immediately prior to such acquisition and such issuance is approved by the Board, (g) Capital Stock issued in connection with the formation of a joint venture or similar arrangement between the Company and a Person, provided such Person is not Affiliated with any Stockholder immediately prior to such formation and such issuance is approved by the Board, and (h) the Series B Preferred Shares and the Warrants.

“ Other Stock ” means any class or series of capital stock of the Company (other than Common Shares, Series A Preferred Stock or Series B Preferred Stock) that may hereafter be authorized.

“ Permitted Transfer ” means a Transfer of Shares carried out pursuant to Section 3.2 or Section 3.3.

“ Permitted Transferee ” means a recipient of a Permitted Transfer.

“ Person ” means an individual, corporation, limited liability company, partnership, association, trust (revocable or irrevocable) or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

“ Preferred Shares ” means any Series A Preferred Stock, Series B Preferred Stock or Other Stock that is designated as a class or series of preferred stock of the Company.

“ Proportionate Share ” means with respect to each Stockholder, the fraction whose numerator is the number of Common Shares owned by such Stockholder at the date with respect to which such amount is being calculated and the denominator of which is the sum of the number of Common Shares outstanding at such date, in each case assuming conversion of all outstanding shares of Series B Preferred Stock.

“ Representative ” means, with respect to any Person, any and all directors, officers, managers, employees, consultants, financial advisors, counsel, accountants and other agents of such Person.

“ Securities Act ” means the Securities Act of 1933, as amended.

“ Series A Preferred Stock ” means shares of Series A Preferred Stock, par value $0.0001 per share, of the Company.

“ Series B Majority Holders ” means the holders of a majority of the Common Shares held by the Series B Investors assuming conversion of all outstanding shares of Series B Preferred Stock.

“ Series B-1 Majority Holders ” means the holders of a majority of the Common Shares held by the holders of the Series B-1 Preferred Stock assuming conversion of all outstanding shares of Series B-1 Preferred Stock.

“ Series B-2 Majority Holders ” means the holders of a majority of the Common Shares held by the holders of the Series B-2 Preferred Stock assuming conversion of all outstanding shares of Series B-2 Preferred Stock.

“ Series B Preferred Stock ” means shares of Series B-1 Preferred Stock and Series B-2 Preferred Stock.

“ Series B-1 Preferred Stock ” means shares of Series B-1 Preferred Stock, par value $0.0001 per share, of the Company.

“ Series B-2 Preferred Stock ” means shares of Series B-2 Preferred Stock, par value $0.0001 per share, of the Company.

“ Shares ” means the Common Shares and the Preferred Shares.

“ Subsidiary ” means, with respect to any Person, any other Person of which a majority of the outstanding shares or other equity interests having the power to vote for directors or comparable managers or other governing body are owned, directly or indirectly, by the first Person.

“ Supermajority in Interest of the Stockholders ” means one or more Stockholders who own, collectively, at least sixty percent (60%) or more of the Common Shares held by all of the Stockholders entitled to vote on or consent to the matter under consideration, assuming conversion of all outstanding shares of Series B Preferred Stock.

“ Third Party Purchaser ” means any Person who, immediately prior to the contemplated transaction, (a) does not directly or indirectly own or have the right to acquire any outstanding Shares or (b) is not a Permitted Transferee of any Person who directly or indirectly owns or has the right to acquire any Shares.

“ Transfer ” means to, directly or indirectly, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, by operation of law or otherwise, or to enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of, any Shares owned by a Person or any interest (including a beneficial interest) in any Shares owned by a Person. “ Transfer ” when used as a noun shall have a correlative meaning.

“ UABRF Shares ” means those certain Common Shares held by UABRF.

“ Voting Power ” means the power to cast votes in a vote of the stockholders of the Company in accordance with the Certificate of Incorporation and shall refer to the total number of votes entitled to be cast in any such matter on which the stockholders are entitled to vote as a single class.

1.2               Cross-Reference of Defined Terms . Each of the following terms is defined in the Section set forth opposite such term:

2.                   Board of Directors .

2.1               Board of Directors; Composition; Vacancies . Each Stockholder shall vote (in person, by proxy or by action by written consent, as applicable) all of such Stockholder’s Capital Stock, whether now owned or hereafter acquired or which such Stockholder may be empowered to vote, from time to time and at all times, in whatever manner shall be necessary to ensure that the number of directors who comprise the Board shall be seven (7) and the members of the Board shall consist of the following:

(a)                 Subject to the provisions of Section 2.1(e) below, the Board shall be comprised as follows: (i) provided that the LX Stockholders continue to hold any Shares, three (3) individuals designated in writing by the LX Majority Holders (the “ LX Directors ”), who shall initially be Dennis I. Goldberg, Ph.D., Philip M. Friden, Ph.D. and Eric Morrel, Ph.D.; (ii) provided that the CAPS Stockholders continue to hold any Shares, two (2) individuals designated in writing by the CAPS Majority Holders (the “ CAPS Directors ”), who shall initially be J.M. Holliman, III and Randy Steer; (iii) provided that the Series B Investors continue to hold any shares of Series B-1 Preferred Stock, one individual, provided such individual constitutes a Qualified Designee as defined below, designated in writing by the Series B-1 Majority Holders (the “ Series B-1 Director ”), who shall initially be Randall R. Lunn; and (iv) provided that the Series B Investors continue to hold any shares of Series B-2 Preferred Stock, one individual, provided such individual constitutes a Qualified Designee as defined below, designated in writing by the Series B- 2 Majority Holders (the “ Series B- 2 Director ”, and together with the Series B-1 Director, the “ Series B Directors ” ), who shall initially be ____________. To the extent that any of the clauses in (i) through (iv) shall not be applicable because the LX Stockholders, CAPS Stockholders or Series B Investors, as applicable, no longer hold any of the applicable shares of the Company, any members of the Board who would otherwise have been designated in accordance with the terms thereof shall instead be voted upon by all of the stockholders of the Company entitled to vote thereon in accordance with, and pursuant to, the Certificate of Incorporation.

(b)                In the event that a vacancy is created on the Board at any time due to the death, disability, retirement, resignation or removal of a LX Director and provided that the LX Majority Holders are still entitled to designate the LX Directors pursuant to Section 2.1(a) above, then the LX Majority Holders shall have the right to designate an individual to fill such vacancy, provided that such individual constitutes a Qualified Designee, and the Company and each Stockholder hereby agree to take such actions as may be required to ensure the election or appointment of such designee to fill such vacancy on the Board. In the event that the LX Majority Holders shall fail to designate in writing a representative to fill a vacant LX Director position on the Board, and such failure shall continue for more than fifteen (15) days after notice from any director to the LX Stockholders with respect to such failure, then the vacant position shall be filled by an individual designated by the LX Directors then in office; provided , however , that such individual shall be removed from such position if the LX Majority Holders so direct and simultaneously designate a new LX Director.

(c)                 In the event that a vacancy is created on the Board at any time due to the death, disability, retirement, resignation or removal of a CAPS Director and provided that the CAPS Majority Holders are still entitled to designate the CAPS Directors pursuant to Section 2.1(a) above, then the CAPS Majority Holders shall have the right to designate an individual to fill such vacancy, provided that such individual constitutes a Qualified Designee, and the Company and each Stockholder hereby agree to take such actions as may be required to ensure the election or appointment of such designee to fill such vacancy on the Board. In the event that the CAPS Majority Holders shall fail to designate in writing a representative to fill a vacant CAPS Director position on the Board, and such failure shall continue for more than fifteen (15) days after notice from any director to the CAPS Stockholders with respect to such failure, then the vacant position shall be filled by an individual designated by the CAPS Directors then in office; provided , however , that such individual shall be removed from such position if the CAPS Majority Holders so direct and simultaneously designate a new CAPS Director.

(d)                In the event that a vacancy is created on the Board at any time due to the death, disability, retirement, resignation or removal of a Series B Director and provided that the Series B-1 Majority Holders or Series B-2 Majority Holders, as appropriate, are still entitled to designate the applicable Series B Director pursuant to Section 2.1(a) above, then the Series B-1 Majority Holders or Series B-2 Majority Holders, as applicable, shall have the right to designate an individual to fill such vacancy, provided that such individual constitutes a Qualified Designee, and the Company and each Stockholder hereby agree to take such actions as may be required to ensure the election or appointment of such designee to fill such vacancy on the Board. In the event that the Series B-1 Majority Holders or Series B-2 Majority Holders, as applicable, shall fail to designate in writing a representative to fill the applicable vacant Series B Director position on the Board, and such failure shall continue for more than fifteen (15) days after notice from any director to the Series B Investors with respect to such failure, then the vacant position shall be filled by an individual designated by the other Series B Director then in office; provided , however , that such individual shall be removed from such position if the applicable Series B Majority Holders so direct and simultaneously designate a new Series B Director.

(e)                 As used herein, a “ Qualified Designee ” shall mean a designee for election to the Board that satisfies the following requirements:

(i)          none of the “bad actor” disqualifying events described in Rule 506(d)(1)(i)-(viii) promulgated under the Securities Act of 1933, as amended (each, a “ Disqualification Event ”) shall be applicable to such designee; and

(ii)        Such designee shall not be employed by, provide services to, or otherwise be affiliated with a Directly Competitive Business.

2.2               Removal; Resignation .

(a)                 Subject to the provisions of Section 2.2(f) below, a LX Director may be removed or replaced at any time from the Board, without cause, upon, and only upon, the written request of the LX Majority Holders, provided that the LX Majority Holders are still entitled to designate the LX Directors pursuant to Section 2.1(a) above.

(b)                Subject to the provisions of Section 2.2(f) below, a CAPS Director may be removed or replaced at any time from the Board, without cause, upon, and only upon, the written request of the CAPS Majority Holders, provided that the CAPS Majority Holders are still entitled to designate the CAPS Directors pursuant to Section 2.1(a) above.

(c)                 Subject to the provisions of Section 2.2(f) below, a Series B Director may be removed or replaced at any time from the Board, without cause, upon, and only upon, the written request of the Series B Majority Holders, provided that the Series B Majority Holders are still entitled to designate the Series B Directors pursuant to Section 2.1(a) above.

(d)                A director may resign at any time from the Board by delivering his written resignation to the Board and the Stockholder(s) appointing such director as provided in Section 2.1. Any such resignation shall be effective upon receipt thereof unless it is specified to be effective at some other time or upon the occurrence of some other event. The Board’s or any Stockholder’s acceptance of a resignation shall not be necessary to make it effective.

(e)                 Each Stockholder shall vote (in person, by proxy or by action by written consent, as applicable) all of such Stockholder’s Capital Stock, whether now owned or hereafter acquired or which such Stockholder may be empowered to vote, from time to time and at all times, in whatever manner shall be necessary to ensure that (a) no director designated pursuant to Section 2.1 may be removed from such office unless such removal is directed or approved in writing by the Stockholders entitled to designate such director, and (b) any vacancy created by the resignation, removal or death of a director designated pursuant to Section 2.1 shall be filled with a director designated by the Stockholders entitled to designate such director.

(f)                 Anything to the contrary in Section 2.1 or 2.2 notwithstanding, any director may be removed for cause by a Majority in Interest of the Stockholders, and if so removed, may only be replaced thereafter by the Board or by the stockholders of the Company entitled to vote thereon in accordance with, and pursuant to, the Certificate of Incorporation. In the event of such removal, such member of the Board shall thereafter be voted upon by all of the stockholders of the Company entitled to vote thereon in accordance with, and pursuant to, the Certificate of Incorporation, rather than selected in accordance with the provisions of Section 2.1 (a), and the number of Directors that the persons who designated the removed Director shall thereafter be entitled to designate shall be reduced by one. For purposes hereof, cause shall include, without limitation, gross negligence, malfeasance or intentional misconduct in the performance of such person's duties as a director, a breach of such person's fiduciary duties to the Company, a Bad Actor Disqualification Event becoming applicable to such person, or such person's conviction of, or the entering of a guilty plea or plea of no contest with respect to, a felony.

(a)                 Each Stockholder acknowledges and agrees that such Stockholder (or any Permitted Transferee of such Stockholder) shall not Transfer any Shares except as may be approved by a Majority in Interest of the Stockholders (which consent shall not be unreasonably withheld), as permitted pursuant to Section 3.2 or Section 3.3, or in accordance with the procedures described in Section 3.4 or Section 3.5, as applicable. No Transfer other than pursuant to Section 3.4 may be made unless the prospective Transferee has executed and delivered to the Company a counterpart signature or joinder to this Agreement, agreeing to be bound by the terms hereof, in a form acceptable to a Majority in Interest of the Stockholders.

(b)                Notwithstanding any other provision of this Agreement to the contrary (including Section 3.2 and Section 3.3), each Stockholder agrees that it will not, directly or indirectly, Transfer any of its Shares, and the Company agrees that it shall not issue any Shares or otherwise approve the Transfer of any Shares:

(i)          except as permitted under the Securities Act and other applicable federal or state securities or blue sky laws, and then, with respect to a Transfer of Shares, if requested by the Company, only upon delivery to the Company of an opinion of counsel in form and substance satisfactory to the Company to the effect that such Transfer may be effected without registration under the Securities Act;

(ii)        if such Transfer or issuance would cause the Company or any of the Company Subsidiaries, if any, to be required to register as an investment company under the Investment Company Act of 1940, as amended; or

(iii)      if such Transfer or issuance would cause the assets of the Company or any of the Company Subsidiaries to be deemed “Plan Assets” as defined under the Employee Retirement Income Security Act of 1974 or its accompanying regulations or result in any “prohibited transaction” thereunder involving the Company or any Company Subsidiary, if any.

A Majority in Interest of the Stockholders may refuse: (i) the Transfer of any Shares to any Person if such Transfer would have a material adverse effect on the Company as a result of any regulatory or other restrictions imposed by any Governmental Authority; or (ii) the Transfer of any Shares to any Company Competitor. No Transfer described in (i) or (ii) of the preceding sentence may be effected without the prior written consent of a Majority in Interest of the Stockholders.

(c)                 Any Transfer or attempted Transfer of any Shares in violation of this Agreement shall be null and void, no such Transfer shall be recorded on the Company’s books and the purported transferee in any such Transfer shall not be treated (and the purported transferor shall continue be treated) as the owner of such Shares for all purposes of this Agreement.

3.2               CAPS Permitted Transfers . The provisions of Section 3.1(a) (other than the last sentence of such section), Section 3.4 (with respect to the Dragging Stockholders only) and Section 3.5 shall not apply to any of the following Transfers by CAPS of any of its Shares: (i) a Transfer to an Affiliate of CAPS and (ii) in the event of a liquidation, dissolution or winding up of CAPS, a Transfer to its shareholders in accordance with its constitutive documents. Notwithstanding the foregoing, each of the foregoing Transfers of Shares shall be subject to Sections 3.1(b) and 3.1(c), and the last sentence of Section 3.1(a).

3.3               LX and Series B Investors Permitted Transfers . The provisions of Section 3.1(a) (other than the last sentence of such section), Section 3.4 (with respect to the Dragging Stockholders only) and Section 3.5 shall not apply to any of the following Transfers by LX Stockholders or the Series B Investors of any of their Shares: (i) a Transfer to an Affiliate of the transferor, provided that all Shares held by the transferor are so transferred or a Transfer in connection with the death of an LX Stockholder or a Series B Investor who is a natural person; and (ii) in the event of a liquidation, dissolution or winding up of a LX Stockholder or a Series B Investor who is a corporation or limited liability company, a Transfer to such entity’s shareholders or members in accordance with its constitutive documents. Notwithstanding the foregoing, each of the foregoing Transfers of Shares shall be subject to Sections 3.1(b) and 3.1(c), and the last sentence of Section 3.1(a).

3.4               Drag-along Rights .

(a)                 Participation . If one or more Stockholders (together with their respective Permitted Transferees) holding no less than a majority of all the Common Shares (assuming conversion of all outstanding shares of Series B Preferred Stock) (such Stockholders, the “ Dragging Stockholders ”), propose to consummate, in one transaction or a series of related transactions, a Change of Control (a “ Drag-along Sale ”), the Dragging Stockholders shall have the right, after delivering the Drag-along Notice in accordance with Section 3.4(c) and subject to compliance with Section 3.4(d), to require that each other Stockholder (each, a “ Drag-along Stockholder ”) participate in such sale in the manner set forth in Section 3.4(b).

(b)                Sale of Shares . Subject to compliance with Section 3.4(d):

(i)          If the Drag-along Sale is structured as a sale resulting in a majority of the Common Shares being held by a Third Party Purchaser, then each Drag-along Stockholder shall sell, with respect to each class or series of Shares proposed by the Dragging Stockholders to be included in the Drag-along Sale, the number of Shares of such class or series equal to the product obtained by multiplying (A) the number of applicable Shares held by such Drag-along Stockholder by (B) a fraction (x) the numerator of which is equal to the number of applicable Shares that the Dragging Stockholders proposes to sell in the Drag-along Sale and (y) the denominator of which is equal to the number of applicable Shares held by the Dragging Stockholders at such time; and

(ii)        If the Drag-along Sale is structured as a sale of all or substantially all of the assets of the Company or as a merger, consolidation, recapitalization, or reorganization of the Company or other transaction requiring the consent or approval of a Majority in Interest of the Stockholders or of other Stockholders, then notwithstanding anything to the contrary in this Agreement, each Drag-along Stockholder shall vote in favor of the transaction and otherwise consent to and raise no objection to such transaction, and shall take all actions to waive any dissenters’, appraisal or other similar rights that it may have in connection with such transaction.

(c)                 Sale Notice . The Dragging Stockholders shall exercise their rights pursuant to this Section 3.4 by delivering a written notice (the “Drag-along Notice ”) to the Company and each Drag-along Stockholder no more than ten (10) Business Days after the execution and delivery by all of the parties thereto of the definitive agreement entered into with respect to the Drag-along Sale and, in any event, no later than twenty (20) Business Days prior to the closing date of such Drag-along Sale. The Drag-along Notice shall make reference to the Dragging Stockholders’ rights and obligations hereunder and shall describe in reasonable detail: (i) the name of the Person to whom such Shares are proposed to be sold; (ii) the proposed date, time and location of the closing of the sale; (iii) the number of each class or series of Shares to be sold by the Dragging Stockholders, the proposed amount of consideration for the Drag-along Sale and the other material terms and conditions of the Drag-along Sale, including a description of any non-cash consideration in sufficient detail to permit the valuation thereof and including, if available, the purchase price per Share of each applicable class or series; and (iv) a copy of any form of agreement proposed to be executed in connection therewith.

(d)                Conditions of Sale . The obligations of the Drag-along Stockholders in respect of a Drag-along Sale under this Section 3.4 are subject to the satisfaction of the following conditions:

(i)          The consideration to be received by each Drag-along Stockholder shall be the same form and amount of consideration to be received by the Dragging Stockholders per Share of each applicable class or series and the terms and conditions of such sale shall, except as otherwise provided in Section 3.4(d)(ii), be the same as those upon which the Dragging Stockholders sells its Shares;

(ii)        If the Dragging Stockholders or any Drag-along Stockholder is given an option as to the form and amount of consideration to be received, the same option shall be given to all Drag-along Stockholders; and

(iii)      Each Drag-along Stockholder shall execute the applicable purchase agreement, if applicable, and make or provide the same representations, warranties, covenants, indemnities and agreements as the Dragging Stockholders make or provide in connection with the Drag-along Sale; provided , however , that each Drag-along Stockholder shall only be obligated to make individual representations and warranties with respect to its title to and ownership of the applicable Shares, authorization, execution and delivery of relevant documents, enforceability of such documents against the Drag-along Stockholder, and other matters relating to such Drag-along Stockholder, but not with respect to any of the foregoing with respect to any other Stockholders or their Shares; provided , further , however , that all representations, warranties, covenants and indemnities shall be made by the Dragging Stockholders and each Drag-along Stockholder severally and not jointly and any indemnification obligation shall be pro rata based on the consideration received by the Dragging Stockholders and each Drag-along Stockholder, in each case in an amount not to exceed the aggregate proceeds received by the Dragging Stockholders and each such Drag-along Stockholder in connection with the Drag-along Sale.

(e)                 Cooperation .

(i)          Each Drag-along Stockholder shall take all actions as may be reasonably necessary to consummate the Drag-along Sale, including, without limitation, entering into agreements and delivering certificates and instruments, in each case, consistent with the agreements being entered into and the certificates being delivered by the Dragging Stockholders, but subject to Section 3.4(d)(ii).

(ii)        If a Drag-Along Stockholder fails, for any reason, to execute any agreements or other documents, or to take any other action necessary to satisfy its obligations set forth in this Section 3.4, such Drag-along Stockholder: (A) to the extent applicable, shall be deemed to have assigned all of its right, title and interest in and to its Shares to the Third party Purchaser and the Third party Purchaser shall have the right to receive all distributions with respect to such Shares, (B) shall be deemed to have given the Dragging Stockholders an irrevocable proxy, coupled with an interest, to vote its Shares on all matters submitted on which such Drag-along Stockholder is entitled to a vote, (C) shall be deemed to have given the Dragging Stockholders an irrevocable power of attorney solely to execute and deliver in such Drag-along Stockholder’s name and stead all documents, agreements and instruments necessary and appropriate to effectuate the Drag-along Sale, and (D) shall cease to have any rights with respect to such Shares except to only the right to receive the respective amounts for such Drag-along Stockholder’s Shares as computed pursuant to this Section 3.4 upon the closing of the Drag-along Sale as set forth in this Section 3.4. This remedy is in addition to any other remedies allowed by law or by this Agreement.

(f)                 Expenses . The fees and expenses of the Dragging Stockholders incurred in connection with a Drag-along Sale and for the benefit of all Drag-along Stockholders (it being understood that costs incurred by or on behalf of Dragging Stockholders for their sole benefit will not be considered to be for the benefit of all Drag-along Stockholders), to the extent not paid or reimbursed by the Company or the Third party Purchaser, shall be shared by the Dragging Stockholder and all the Drag-along Stockholders on a pro rata basis, based on the consideration received by each such Stockholder; provided , however , that no Drag-along Stockholder shall be obligated to make any out-of-pocket expenditure prior to the consummation of the Drag-along Sale.

3.5               Tag-along Rights .

(a)                 Participation . Subject to the terms and conditions specified in Section 3.1 and Section 3.2, if any Stockholder (the “ Selling Stockholder ”) proposes to Transfer any of its Common Shares to any Person (a “ Proposed Transferee ”), each other Stockholder (each, a “ Tag-along Stockholder ”) shall be permitted to participate in such sale (a “ Tag-along Sale ”) on the terms and conditions set forth in this Section 3.5.

(b)                Application of Transfer Restrictions . The provisions of this Section 3.5 shall not apply to Transfers in which the Dragging Stockholders have elected to exercise their drag-along right under Section 3.4.

(c)                 Sale Notice . Prior to the consummation of any Transfer of Common Shares qualifying under Section 3.5(a), the Selling Stockholder shall deliver to the Company and each other Stockholder holding Common Shares of the class or series proposed to be Transferred a written notice (a “ Sale Notice ”) of the proposed Tag-along Sale. The Sale Notice shall make reference to the Tag-along Stockholders’ rights hereunder and shall describe in reasonable detail: (i) the aggregate number of Common Shares the Proposed Transferee has offered or otherwise agreed to purchase; (ii) the identity of the Proposed Transferee; (iii) the proposed date, time and location of the closing of the Tag-along Sale; (iv) the purchase price per applicable Common Share (which shall be payable solely in cash) and the other material terms and conditions of the Transfer; and (v) a copy of any form of agreement proposed to be executed in connection therewith.

(d)                Exercise of Tag-along Right .

(i)          The Selling Stockholder and each Tag-along Stockholder timely electing to participate in the Tag-along Sale pursuant to Section 3.5(d)(ii) shall have the right to Transfer in the Tag-along Sale the number of Common Shares equal to the product of (A) the aggregate number of Common Shares that the Proposed Transferee proposes or has otherwise agreed to buy as stated in the Sale Notice and (B) a fraction (x) the numerator of which is equal to the number of Common Shares then held by the applicable Stockholder, and (y) the denominator of which is equal to the number of Common Shares then held by the Selling Stockholder and all of the Tag-along Stockholders timely electing to participate in the Tag-along Sale pursuant to Section 3.5(d)(ii) (such amount with respect to the Common Shares, the “ Tag-along Portion ”).

(ii)        Each Tag-along Stockholder shall exercise its right to participate in a Tag-along Sale by delivering to the Selling Stockholder a written notice (a “ Tag-along Notice ”) stating its election to do so and specifying the number of Common Shares (up to its Tag-along Portion) to be Transferred by it no later than ten (10) days after receipt of the Sale Notice (the “ Tag-along Period ”).

(iii)      The offer of each Tag-along Stockholder set forth in a Tag-along Notice shall be irrevocable, and, to the extent such offer is accepted, such Tag-along Stockholder shall be bound and obligated to consummate the Transfer on the terms and conditions set forth in this Section 3.5.

(e)                 Remaining Portions .

(i)          If any Tag-along Stockholder declines to exercise its right under Section 3.5(d) or elects to exercise it with respect to less than its full Tag-Along Portion (the aggregate amount of Common Shares resulting from all such unexercised Tag-Along Portions, the “ Remaining Portion ”), the Selling Stockholder shall promptly deliver a written notice (a “ Remaining Portion Notice ”) to those Tag-along Stockholders who have elected to Transfer their Tag-Along Portion in full (each, a “ Fully Participating Tag-along Stockholder ”). The Selling Stockholder and each Fully Participating Tag-along Stockholder (with respect to any Remaining Portion) shall be entitled to Transfer, in addition to any applicable Common Shares already being Transferred, a number of Common Shares, held by it equal to the product of (A) the Remaining Portion and (B) a fraction (x) the numerator of which is equal to the number of Common Shares then held by the applicable Stockholder, and (y) the denominator of which is equal to the number of Common Shares then held by the Selling Stockholder and all Fully Participating Tag-along Stockholders.

(ii)        Each Fully Participating Tag-along Stockholder shall exercise its right to participate in the Transfer described in Section 3.5(e) by delivering to the Selling Stockholder a written notice (a “ Remaining Tag-along Notice ”) stating its election to do so and specifying the number of Common Shares (up to the amounts it may Transfer pursuant to Section 3.5(e)), to be Transferred by it no later than five (5) Business Days after receipt of the Remaining Portion Notice.

(iii)      The offer of each Fully Participating Tag-along Stockholder set forth in a Remaining Tag-along Notice shall be irrevocable, and, to the extent such offer is accepted, such Stockholder shall be bound and obligated to consummate the Transfer on the terms and conditions set forth in this Section 3.5.

(f)                 Waiver . Each Tag-along Stockholder who does not deliver a Tag-along Notice in compliance with Section 3.5(d)(ii) shall be deemed to have waived all of such Tag-along Stockholder’s rights to participate in the Tag-along Sale with respect to the Common Shares owned by such Tag-along Stockholder, and the Selling Stockholder shall (subject to the rights of any other participating Tag-along Stockholder and the requirements of Section 3.1) thereafter be free to sell to the Proposed Transferee the Common Shares identified in the Sale Notice at a per Common Share price that is no greater than the applicable per Common Share price set forth in the Sale Notice and on other terms and conditions which are not in the aggregate materially more favorable to the Selling Stockholder than those set forth in the Sale Notice, without any further obligation to the non-accepting Tag-along Stockholders.

(g)                Conditions of Sale .

(i)          Each Stockholder participating in the Tag-along Sale shall receive the same consideration per Common Share after deduction of such Stockholder’s proportionate share of the related expenses in accordance with Section 3.5(i) below.

(ii)        Each Tag-along Stockholder shall make or provide the same representations, warranties, covenants, indemnities and agreements as the Selling Stockholder makes or provides in connection with the Tag-along Sale; provided , however , that each Tag-along Stockholder shall only be obligated to make individual representations and warranties with respect to its title to and ownership of the applicable Common Shares, authorization, execution and delivery of relevant documents, enforceability of such documents against the Tag-along Stockholder, and other matters relating to such Tag-along Stockholder, but not with respect to any of the foregoing with respect to any other Stockholders or their Common Shares; provided , further , however , that all representations, warranties, covenants and indemnities shall be made by the Selling Stockholder and each Tag-along Stockholder severally and not jointly and any indemnification obligation shall be pro rata based on the consideration received by the Selling Stockholder and each Tag-along Stockholder, in each case in an amount not to exceed the aggregate proceeds received by the Selling Stockholder and each such Tag-along Stockholder in connection with the Tag-along Sale.

(h)                Cooperation . Each Tag-along Stockholder shall take all actions as may be reasonably necessary to consummate the Tag-along Sale, including, without limitation, entering into agreements and delivering certificates and instruments, in each case, consistent with the agreements being entered into and the certificates being delivered by the Selling Stockholder, but subject to Section 3.5(g)(ii).

(i)                  Expenses . The fees and expenses of the Selling Stockholder incurred in connection with a Tag-along Sale and for the benefit of all Tag-along Stockholders (it being understood that costs incurred by or on behalf of a Selling Stockholder for its sole benefit will not be considered to be for the benefit of all Tag-along Stockholders), to the extent not paid or reimbursed by the Company or the Proposed Transferee, shall be shared by the Selling Stockholder and all the participating Tag-along Stockholders on a pro rata basis, based on the consideration received by each such Stockholder; provided , however , that no Tag-along Stockholder shall be obligated to make any out-of-pocket expenditure prior to the consummation of the Tag-along Sale.

(j)                  Consummation of Sale . The Selling Stockholder shall have thirty (30) days following the expiration of the Tag-along Period in which to consummate the Tag-along Sale, on terms not more favorable to the Selling Stockholder than those set forth in the Tag-along Notice (which 30-day period may be extended for a reasonable time not to exceed forty-five (45) days to the extent reasonably necessary to obtain required approvals or consents from any governmental authority). If at the end of such period the Selling Stockholder has not completed the Tag-along Sale, the Selling Stockholder may not then effect a Transfer that is subject to this Section 3.5 without again fully complying with the provisions of this Section 3.5.

(k)                Transfers in Violation of the Tag-along Right . If the Selling Stockholder sells or otherwise Transfers to the Proposed Transferee any of its Common Shares in breach of this Section 3.5, then each Tag-along Stockholder shall have the right to sell to the Selling Stockholder, and the Selling Stockholder undertakes to purchase from each Tag-along Stockholder, the number of Common Shares of each applicable class or series that such Tag-along Stockholder would have had the right to sell to the Proposed Transferee pursuant to this Section 3.5, for a per Common Share amount and form of consideration and upon the terms and conditions on which the Proposed Transferee bought such Common Shares from the Selling Stockholder, but without indemnity being granted by any Tag-along Stockholder to the Selling Stockholder; provided , however , that nothing contained in this Section 3.5(k) shall preclude any Stockholder from seeking alternative remedies against such Selling Stockholder as a result of its breach of this Section 3.5. The Selling Stockholder shall also reimburse each Tag-along Stockholder for any and all reasonable and documented out-of-pocket fees and expenses, including reasonable legal fees and expenses, incurred pursuant to the exercise or the attempted exercise of the Tag-along Stockholders’ rights under this Section 3.5(k).

4.                   Special Shareholder Matters .

4.1               Protective Provisions . In addition to those actions for which this Agreement specifically requires the consent of one or more Stockholders, neither the Company, the Board nor the Stockholders shall take any of the following actions on behalf of the Company without first obtaining the written consent of the Stockholders as provided in this Section 4.1:

(a)                 Issue Shares or any other Capital Stock or securities in the Company or allow or cause any Company Subsidiary, if any, to do the same;

(b)                Authorize or pay any dividends or other distributions to the Stockholders;

(c)                 Enter into or amend any sale, license or partnering agreements relating to AEM-28 or any other compound then under development by the Company including, without limitation, the License Agreement;

(d)                Enter into, amend or terminate any related party transaction or agreement, including the Benu Management Agreement or the Accounting Services Agreement;

(e)                 Enter into or amend any material contract outside the ordinary course of the Company’s business;

(f)                 Except as otherwise provided in Section 4.2 below, liquidate or dissolve the Company or any Company Subsidiary;

(g)                Merge or consolidate the Company with or into one or more Persons as permitted in the Act;

(h)                Sell, lease, exchange, or otherwise dispose of all or any portion of Company’s property in a single transaction or a series of related transactions other than in the ordinary course of the Company’s business;

(i)                  Make an assignment for the benefit of creditors of the Company, file a voluntary petition in bankruptcy, consent to the appointment of a receiver for the Company or its assets, or engage in any other similar event or act; or

(j)                  Amend the Company’s Certificate of Incorporation or Bylaws.

Consent of the Stockholders for purposes of this Section 4.1 shall mean the following:

(i)          The written consent of a Supermajority in Interest of the Stockholders; or

(ii)        The affirmative vote of a Majority in Interest of the Stockholders at a duly noticed meeting in accordance with the following procedure: if a Majority in Interest of the Stockholders wish to consent to some action, such Majority in Interest of the Stockholders may provide written notice thereof to the Board (the “ Request Notice ”), whereupon the Board shall call a meeting of the Stockholders on a date specified by the Majority in Interest of the Stockholders that is not less than 15 days after the date of the Request Notice; provided, that if the action of the Company is necessary before 15 days after the date of the Request Notice due to the requirements of law or contract or to prevent or avoid material harm to the Company, the Stockholders may consent to such action by the written consent of a Majority in Interest of the Stockholders without regard to the procedures in this paragraph (ii); or

(iii)      The written consent of a Majority in Interest of the Stockholders delivered to the Company and effective no earlier than the date following the date of the Stockholder meeting specified by the Majority in Interest of the Stockholders in the Request Notice.

4.2               Dissolution . The parties agree that the Company shall not be dissolved without the written consent of the holders of a Super Majority in Interest of the Stockholders. At the request of the holders of a Super Majority in Interest of the Stockholders, the Company agrees to take all actions required to effect the dissolution of the Company.

4.3               Special Voting Provision . The parties acknowledge and agree that the Common Shares and the Series B Preferred Stock are entitled to vote together as a single class. If for any reason, the holders of the Class A-2 Shares become entitled to vote as a separate class, under applicable corporate law or otherwise, the holders of the Class A-2 Shares agree to vote all of their Shares in the same manner as voted by a majority of the Class A-1 Shares.

4.4               Accounting and Tax Services . The Company and CAPS have previously entered into the Accounting Services Agreement. The Company agrees to maintain such Accounting Services Agreement in full force and effect and not to terminate, amend, modify or fail to renew such agreement, without the written consent of CAPS. Without limiting the forgoing, the Company agrees that CAPS shall at all times have full and exclusive authority, unless otherwise agreed by CAPS, to provide, direct and manage all accounting, treasury, funds management and finance functions for the Company, including without limitation, maintaining the Company’s books and records, managing the Company’s funds, including receipts and disbursements, overseeing the preparation of tax returns, and preparing financial statements. The Company agrees that CAPS shall have full access to all Company records and information requested by CAPS in connection therewith.

4.5               Budget/Milestones . On or before January 15 of each year, the Company shall prepare a written budget and operational plan (the “ Budget ”) for the upcoming calendar year that is acceptable to, and approved by, a majority of the CAPS Directors, containing operational and other milestones (the “ Milestones ”) acceptable to, and approved by, a majority of the CAPS Directors. The Company shall use best efforts to cause the Company to be operated in accordance with the Budget and to achieve the Milestones.

4.6               Covenants . Upon the written request of a Majority in Interest of the Stockholders, the Company agrees to take the following actions:

(a)                 declare dividends on the capital stock of the Company out of funds legally available therefor, in such amounts and with respect to such classes of stock as the Majority in Interest of the Stockholders shall direct, subject to the preferential rights of the Preferred Stock as set forth in the Company’s Certificate of Incorporation; and

(b)                offer, sell and issue New Shares (subject to Section 5.1 below) of the Company on such terms and conditions as may be directed by a Majority in Interest of the Stockholders.

(a)                 In the event a Majority in Interest of the Stockholders desires to issue any New Shares, the Company shall first deliver to each Stockholder (each such Stockholder being referred to in this Section 5 as a “ New Share Offeree ”) a written notice (the “ Notice of Proposed Issuance ”) specifying in reasonable detail the total number of such New Shares which the Company then desires to issue (the “ Offered New Shares ”), the preferences, powers, rights and privileges of such Offered New Shares, the price per share for the Offered New Shares and the proposed purchaser(s) of such Offered New Shares (collectively, the “ Proposed Purchasers ”; individually, a “ Proposed Purchaser ”), and stating that the New Share Offerees shall have the right to purchase the Offered New Shares in the manner specified in this Section 5.1 at the price and in accordance with the terms and conditions specified in such Notice of Proposed Issuance.

(b)                During the twenty (20) day period commencing on the date on which the Notice of Proposed Issuance has been delivered to all of the New Share Offerees (the “ Twenty Day Period ”), the New Share Offerees shall have the option to purchase Offered New Shares at the price and pursuant to the terms specified in the Notice of Proposed Issuance. Each New Share Offeree electing to purchase Offered New Shares must give written notice of such election to the Company during such Twenty Day Period. Each New Share Offeree shall have the right to purchase that number of the Offered New Shares as shall be equal to the total number of the Offered New Shares multiplied by such New Share Offeree’s Proportionate Share at the date the Notice of Proposed Issuance is given. If, at the termination of such Twenty Day Period any New Share Offeree shall not have delivered a notice to the Company exercising such New Share Offeree’s right to purchase Offered New Shares, such New Share Offeree shall be deemed to have waived all of its rights under this Section 5 with respect to the purchase of such Offered New Shares.

(c)                 If each New Share Offeree does not elect to purchase its full proportionate share of any Offered New Shares pursuant to Section 5.1(b ) during the Twenty Day Period applicable to such Offered New Shares, then the Company shall, within two (2) Business Days after the expiration of such Twenty Day Period, send written notice to those New Share Offerees who fully exercised their options within such Twenty Day Period (the “ Exercising Buyers ”), indicating the number of remaining Offered New Shares. Each Exercising Buyer shall have an additional option to purchase all or any part of the balance of such remaining Offered New Shares. To exercise such option, an Exercising Buyer must deliver notice of such additional exercise to the Company within five (5) Business Days after receipt of such notice from the Company stating the number of such remaining Offered New Shares such Exercising Buyer elects to purchase. In the event the Exercising Buyers in the aggregate exercise such option for a total number of remaining Offered New Shares in excess of the number available, such Offered New Shares will be allocated as follows: first, each Exercising Buyer who elects to purchase a number of additional Offered New Shares which is less than the number of additional Offered New Shares multiplied by the Allocation Ratio applicable to such Exercising Buyer, will purchase the amount of such Offered New Shares such Exercising Buyer has elected to purchase; and second, the remaining Offered New Shares will be allocated among the Exercising Buyers who have exercised their option pursuant to this Section 5.1(c) in proportion to their respective Allocation Ratios.

(d)                The Company shall have the right, until the expiration of one hundred eighty (180) days commencing on the first day immediately following the expiration of the option period provided in Section 5.1(c) with respect to such Offered New Shares, to issue the remaining Offered New Shares to the Proposed Purchaser(s) at a price not less than, and on other terms and conditions no more favorable to the Proposed Purchaser(s) than, the price and other terms and conditions specified in the Notice of Proposed Issuance. If for any reason the Offered New Shares are not issued within such period and at such price and on such terms and conditions, the right to issue such Offered New Shares in accordance with the Notice of Proposed Issuance shall expire and the provisions of this Agreement shall continue to be applicable to the Offered New Shares.

5.2               Price . The purchase price for the Offered New Shares shall, unless otherwise agreed in writing by the parties to such transaction, be paid in cash or by certified check on the date of the closing.

5.3               Closing . The closing of the purchase and sale of the Offered New Shares shall occur at the same time and on the same date but shall not be earlier than thirty (30) days following the last day of the applicable Twenty Day Period. At such closing, the New Share Offerees or the Proposed Purchaser(s), as the case may be, shall deliver the consideration required by Section 5.2 and the Company shall deliver certificates representing the Offered New Shares.

5.4               No Obligation to Sell . Except as may be required by Section 4.6(b) hereof, the Company shall not be obligated to consummate any proposed issuance of New Shares, nor be liable to any Stockholder if the Company has not consummated any proposed issuance of New Shares pursuant to this Section 5 for any reason, regardless of whether it shall have delivered a Notice of Proposed Issuance or received any notice of exercise in respect of such proposed issuance.

5.5               Alternative Procedures . If the Board determines that the Company requires additional funds from the sale of New Shares prior to the time such funds would be available if the provisions of this Section 5 were complied with in full, the Board may authorize the Company to accept subscriptions for, and issue, New Shares from some or all of the Stockholders without compliance in full with the procedures provided in this Section 5 ; provided , however , that the Company concurrently establishes an alternative procedure whereby each Investor, as soon as practicable after such issuance, is provided a purchase right with respect to such New Shares equivalent to, and providing substantially the same overall effect of, the rights provided in this Section 5 .

(a)                 The Company shall deliver the following to each Stockholder who owns at least two percent (2%) of the outstanding Common Shares (assuming conversion of all outstanding shares of Series B Preferred Stock):

(i)          Annual Financial Statements . As soon as available, and in any event within one hundred twenty (120) days after the end of each fiscal year, unaudited consolidated balance sheets of the Company and Company Subsidiaries, if any, as at the end of each such Fiscal Year and unaudited consolidated statements of income, cash flows and Stockholders’ equity for such Fiscal Year, in each case setting forth in comparative form the figures for the previous Fiscal Year, all in reasonable detail and all prepared in accordance with GAAP, consistently applied (subject to normal year-end audit adjustments and the absence of notes thereto) The parties agree, however, that for so long as CAPS has no material sources of revenue other than from, or as a result of, the operations of the Company, delivery of the unaudited consolidated financial statements of CAPS shall be deemed to satisfy the foregoing requirements.

(ii)        Quarterly Financial Statements . As soon as available, and in any event within forty-five (45) days after the end of each quarterly accounting period in each Fiscal Year (other than the last fiscal quarter of the Fiscal Year), unaudited consolidated balance sheets of the Company and Company Subsidiaries, if any, as at the end of each such fiscal quarter and for the current Fiscal Year to date and unaudited consolidated statements of income, cash flows and Stockholders’ equity for such fiscal quarter and for the current Fiscal Year to date, in each case setting forth in comparative form the figures for the corresponding periods of the previous fiscal quarter, all in reasonable detail and all prepared in accordance with GAAP, consistently applied (subject to normal year-end audit adjustments and the absence of notes thereto). The parties agree, however, that for so long as CAPS has no material sources of revenue other than from, or as a result of, the operations of the Company, delivery of the unaudited consolidated financial statements of CAPS shall be deemed to satisfy the foregoing requirements.

(b)                Unless earlier terminated, the rights granted pursuant to this Section 6.1 shall terminate if the Company becomes subject to the periodic reporting requirements of Section 12(g) or 15(d) of the Exchange Act.

6.2               Inspection Rights . Upon reasonable notice from a Stockholder, the Company shall, and shall afford each Stockholder and its Representatives reasonable access during normal business hours to (a) the Company’s and the Company Subsidiaries’, if any, properties, offices, plants and other facilities, (b) the corporate, financial and similar records, reports and documents of the Company and the Company Subsidiaries, if any, including, without limitation, all books and records, minutes of proceedings, internal management documents, reports of operations, reports of adverse developments, copies of any management letters and communications with the Company, and to permit each Stockholder and its Representatives to examine such documents and make copies thereof, and (c) the Company’s and the Company Subsidiaries’, if any, officers, senior employees and public accountants, and to afford each Stockholder and its Representatives the opportunity to discuss and advise on the affairs, finances and accounts of the Company and the Company Subsidiaries, if any, with their officers, senior employees and public accountants (and the Company hereby authorizes said accountants to discuss with such Stockholder and its Representatives such affairs, finances and accounts).

6.3               Budget . The Board shall use best efforts to operate the Company in all material respects in accordance with the Budget.

6.4               Confidentiality and Use of Information .

(a)                 Each Stockholder (a “ Company Person ”) acknowledges that during the term of this Agreement, it will have access to and become acquainted with trade secrets, proprietary information and confidential information belonging to the Company, the Company Subsidiaries, if any, and their Affiliates that are not generally known to the public, including, but not limited to, information concerning business plans, financial statements and other information provided pursuant to this Agreement, operating practices and methods, expansion plans, strategic plans, marketing plans, contracts, customer lists or other business documents which the Company treats as confidential, in any format whatsoever (including oral, written, electronic or any other form or medium) (collectively, “ Confidential Information ”). In addition, each Company Person acknowledges that: (i) the Company has invested, and continues to invest, substantial time, expense and specialized knowledge in developing its Confidential Information; (ii) the Confidential Information provides the Company with a competitive advantage over others in the marketplace; and (iii) the Company would be irreparably harmed if the Confidential Information were disclosed to competitors or made available to the public. Without limiting the applicability of any other agreement to which any Company Person is subject, no Company Person shall, directly or indirectly, whether through such Company Person’s agents, employees contractors, affiliates or otherwise, disclose or use (other than solely for the purposes of such Company Person monitoring and analyzing his investment in the Company or performing his duties as a director, manager, officer, employee, consultant or other service provider of the Company) at any time, including, without limitation, use for personal, commercial or proprietary advantage or profit, either during his membership, association or employment with the Company or thereafter, any Confidential Information of which such Company Person is or becomes aware. Each Company Person in possession of Confidential Information shall take all appropriate steps to safeguard such information and to protect it against disclosure, misuse, espionage, loss and theft.

(b)                Nothing contained in Section 6.4 shall prevent any Company Person from disclosing Confidential Information: (i) upon the order of any court or administrative agency; (ii) upon the request or demand of any regulatory agency or authority having jurisdiction over such Company Person; (iii) to the extent compelled by legal process or required or requested pursuant to subpoena, interrogatories or other discovery requests; (iv) to the extent necessary in connection with the exercise of any remedy hereunder; (v) to other directors or other Stockholders; (vi) to a Stockholder’s Representatives who, in the reasonable judgment of such Company Person, needs to know such Confidential Information; or (vii) to any potential Permitted Transferee in connection with a proposed Transfer of Shares from a Stockholder, as long as such Transferee agrees to be bound by the provisions of this Section 6.4 as if a Stockholder; provided , however , that in the case of clause (i), (ii) or (iii), such Company Person shall notify the Company, the other directors, and the other Stockholders of the proposed disclosure as far in advance of such disclosure as practicable (but in no event make any such disclosure before notifying the Company, the other directors, and the other Stockholders) and use reasonable efforts to ensure that any Confidential Information so disclosed is accorded confidential treatment satisfactory to the Company, when and if available.

(c)                 The restrictions of Section 6.4 shall not apply to Confidential Information that: (i) is or becomes generally available to the public other than as a result of a disclosure by a Company Person in violation of this Agreement; (ii) is or becomes available to a Company Person or any of its Representatives on a non-confidential basis prior to its disclosure to the receiving Company Person and any of its Representatives in compliance with this Agreement; (iii) is or has been independently developed or conceived by such Company Person without use of Confidential Information; or (iv) becomes available to the receiving Company Person or any of its Representatives on a non-confidential basis from a source other than the Company, any other Company Person or any of their respective Representatives; provided , however , that such source is not known by the recipient of the Confidential Information to be bound by a confidentiality agreement with the disclosing Company Person or any of its Representatives.

(d)                Each Company Person agrees that upon the Transfer of his or her ownership of all of his or her Shares for any reason whatsoever, such Company Person shall surrender to the Company in good condition any record or records kept by such Company Person containing Confidential Information. Upon request of a Majority in Interest of the Stockholders, such Company Person shall certify in writing to the Company that he or she has complied with the foregoing, and that he or she has not retained any Confidential Information in hard or soft copy, or any other form.

6.5               Other Business Activities . The parties hereto expressly acknowledge and agree that, subject to all confidentiality provisions contained in Section 6.4 and subject at all times to this Agreement: (i) UABRF, CAPS and their Affiliates are permitted to have, and may presently or in the future have, investments or other business relationships, ventures, agreements or arrangements with entities engaged in the business of the Company, other than through the Company and the Company Subsidiaries (an “ Other Business ”); provided , however , that no such Other Businesses shall be a Directly Competitive Business (as defined below), provided , further , that UABRF may engage in an Other Business or have presently or in the future investments in an Other Business including a Directly Competitive Business as long as UABRF does not directly engage in partnering with or investing in a business that develops, sells or manufactures the Apo E Mimetic molecules, including AEM-28 and AEM-18 and analogs licensed pursuant to the License Agreement; (ii) none of UABRF, CAPS or their Affiliates will be obligated to inform the Company or any Stockholder of any business opportunity, relationship or investment (a “ Company Opportunity ”) or to present any Company Opportunity to the Company, and the Company hereby renounces any interest in a Company Opportunity and any expectancy that a Company Opportunity will be offered to it; (iii) nothing contained herein shall limit, prohibit or restrict any Manager appointed by the CAPS Majority Holders from serving on the board of directors or other governing body of any Other Business; and (iv) the Stockholders will not acquire, be provided with an option or opportunity to acquire, or be entitled to any interest or participation in any Other Business as a result of the participation therein of any of UABRF, CAPS or their Affiliates. The parties hereto expressly authorize and consent to the involvement of CAPS and/or its Affiliates in any Other Business subject to the terms contained in this Section 6.5; provided , however , that any transactions between the Company and/or the Company Subsidiaries, if any, and an Other Business will be on terms no less favorable to the Company and/or any Company Subsidiaries, if any, than would be obtainable in a comparable arm’s-length transaction. For purposes of this Section 6.5, a “ Directly Competitive Business ” is a business that engages in the development, manufacture or sale of any molecules for the treatment of hypercholesterolemia, hyperlipidemia, acute coronary syndrome, obesity and diabetes.

7.                   Legend on Capital Stock .

7.1               Legend . In addition to any other legend that may be required by law or another agreement between the Company and a Stockholder, each certificate representing shares of Capital Stock held by a Stockholder or issued to any subsequent transferee of such shares shall be endorsed with a legend in substantially the following form:

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT THERETO UNDER SUCH ACT AND SUCH STATE LAWS OR A WRITTEN OPINION OF COUNSEL OR OTHER EVIDENCE REASONABLY SATISFACTORY TO THE COMPANY THAT AN EXEMPTION FROM REGISTRATION FOR SUCH SALE, OFFER, TRANSFER, PLEDGE, HYPOTHECATION OR OTHER ASSIGNMENT IS AVAILABLE UNDER SUCH ACT AND SUCH STATE LAWS.

THE VOTING, SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO, AND IN CERTAIN CASES PROHIBITED BY, THE TERMS AND CONDITIONS OF A CERTAIN STOCKHOLDERS AGREEMENT BY AND AMONG THE STOCKHOLDER, THE COMPANY AND CERTAIN OTHER HOLDERS OF STOCK OF THE COMPANY. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY.

7.2               Stop Transfer Order . Each Stockholder agrees that, in order to ensure compliance with the restrictions referred to herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.

8.                   Exculpation and Indemnification .

8.1               Exculpation and Covered Persons .

(a)                 Covered Persons . As used herein, the term “ Covered Person ” shall mean (i) each Stockholder, (ii) each officer, director, shareholder, partner, member, controlling Affiliate, employee, agent or representative of each Stockholder, and each of their controlling Affiliates, and (iii) each director, officer, employee, agent, manager, or representative of the Company.

(b)                Standard of Care . No Covered Person shall be liable to the Company or any other Covered Person for any loss, damage or claim incurred by reason of any action taken or omitted to be taken by such Covered Person in good faith and with the belief that such action or omission is in, or not opposed to, the best interest of the Company, so long as such action or omission does not constitute fraud, gross negligence or willful misconduct by such Covered Person.

(c)                 Good Faith Reliance . A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements (including financial statements and information, opinions, reports or statements as to the value or amount of the assets, liabilities, net income or net losses of the Company or any facts pertinent to the existence and amount of assets from which dividends or other might properly be paid) of the following Persons or groups: (i) another director; (ii) one or more Officers or employees of the Company; (iii) any attorney, independent accountant, appraiser or other expert or professional employed or engaged by or on behalf of the Company; or (iv) any other Person selected in good faith by or on behalf of the Company, in each case as to matters that such relying Person reasonably believes to be within such other Person’s professional or expert competence.

8.2               Liabilities and Duties of Covered Persons .

(a)                 Limitation of Liability . This Agreement is not intended to, and does not, create or impose any fiduciary duty on any Covered Person. Furthermore, each of the Stockholders and the Company hereby waives any and all fiduciary duties that, absent such waiver, may be implied by Applicable Law, and in doing so, acknowledges and agrees that the duties and obligation of each Covered Person to each other and to the Company are only as expressly set forth in this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Stockholders to replace such other duties and liabilities of such Covered Person. To the extent that, at law or in equity, any Covered Person has duties and liabilities related thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for such Covered Person’s good faith reliance on the provisions of this Agreement.

(b)                Duties . Whenever in this Agreement a Covered Person is permitted or required to make a decision (including a decision that is in such Covered Person’s “discretion” or under a grant of similar authority or latitude), the Covered Person shall be entitled to consider only such interests and factors as such Covered Person desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Person. Whenever in this Agreement a Covered Person is permitted or required to make a decision in such Covered Person’s “good faith” or under another express standard, the Covered Person shall act under such express standard and shall not be subject to any other or different standard imposed by this Agreement or any other Applicable Law.

8.3               Indemnification .

(a)                 General . To the fullest extent permitted by the Act, as the same now exists or may hereafter be amended, substituted or replaced (but, in the case of any such amendment, substitution or replacement only to the extent that such amendment, substitution or replacement permits the Company to provide broader indemnification rights than the Act permitted the Company to provide prior to such amendment, substitution or replacement), the Company shall indemnify, hold harmless, defend, pay and reimburse any Covered Person against any and all losses, claims, damages, judgments, fines or liabilities, including reasonable legal fees or other expenses incurred in investigating or defending against such losses, claims, damages, judgments, fines or liabilities, and any amounts expended in settlement of any claims (collectively, “ Losses ”) to which such Covered Person may become subject by reason of:

(i)          Any act or omission or alleged act or omission performed or omitted to be performed on behalf of the Company, any Stockholder or any direct or indirect Subsidiary of the foregoing in connection with the business of the Company; or

(ii)        The fact that such Covered Person is or was acting in connection with the business of the Company as a partner, member, stockholder, controlling Affiliate, manager, director, officer, employee or agent of the Company, any Stockholder, or any of their respective controlling Affiliates, or that such Covered Person is or was serving at the request of the Company as a partner, member, manager, director, officer, employee or agent of any Person including the Company or any Company Subsidiary; provided , however , that (A) such Covered Person acted in good faith and in a manner believed by such Covered Person to be in, or not opposed to, the best interests of the Company and, with respect to any criminal proceeding, had no reasonable cause to believe his conduct was unlawful, and (B) such Covered Person’s conduct did not constitute fraud, gross negligence or willful misconduct, in either case as determined by a final, nonappealable order of a court of competent jurisdiction. In connection with the foregoing, the termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Covered Person did not act in good faith or, with respect to any criminal proceeding, had reasonable cause to believe that such Covered Person’s conduct was unlawful, or that the Covered Person’s conduct constituted fraud, gross negligence or willful misconduct.

(b)                Reimbursement . The Company shall promptly reimburse (and/or advance to the extent reasonably required) each Covered Person for reasonable legal or other expenses (as incurred) of such Covered Person in connection with investigating, preparing to defend or defending any claim, lawsuit or other proceeding relating to any Losses for which such Covered Person may be indemnified pursuant to this Section 8.3; provided , however , that if it is finally judicially determined that such Covered Person is not entitled to the indemnification provided by this Section 8.3, then such Covered Person shall promptly reimburse the Company for any reimbursed or advanced expenses.

(c)                 Entitlement to Indemnity . The indemnification provided by this Section 8.3 shall not be deemed exclusive of any other rights to indemnification to which those seeking indemnification may be entitled under any agreement or otherwise. The provisions of this Section 8.3 shall continue to afford protection to each Covered Person regardless of whether such Covered Person remains in the position or capacity pursuant to which such Covered Person became entitled to indemnification under this Section 8.3 and shall inure to the benefit of the executors, administrators, legatees and distributees of such Covered Person.

(d)                Insurance . To the extent available on commercially reasonable terms, the Company may purchase, at its expense, insurance to cover Losses covered by the foregoing indemnification provisions and to otherwise cover Losses for any breach or alleged breach by any Covered Person of such Covered Person’s duties in such amount and with such deductibles as the Board may determine; provided , however , that the failure to obtain such insurance shall not affect the right to indemnification of any Covered Person under the indemnification provisions contained herein, including the right to be reimbursed or advanced expenses or otherwise indemnified for Losses hereunder. If any Covered Person recovers any amounts in respect of any Losses from any insurance coverage, then such Covered Person shall, to the extent that such recovery is duplicative, reimburse the Company for any amounts previously paid to such Covered Person by the Company in respect of such Losses.

(e)                 Funding of Indemnification Obligation . Notwithstanding anything contained herein to the contrary, any indemnity by the Company relating to the matters covered in this Section 8.3 shall be provided out of and to the extent of Company assets only, and no Stockholder (unless such Stockholder otherwise agrees in writing) shall have personal liability on account thereof.

(f)                 Savings Clause . If this Section 8.3 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Covered Person pursuant to this Section 8.3 to the fullest extent permitted by any applicable portion of this Section 8.3 that shall not have been invalidated and to the fullest extent permitted by applicable law.

(g)                Amendment . The provisions of this Section 8.3 shall be a contract between the Company, on the one hand, and each Covered Person who served in such capacity at any time while this Section 8.3 is in effect, on the other hand, pursuant to which the Company and each such Covered Person intend to be legally bound. No amendment, modification or repeal of this Section 8.3 that adversely affects the rights of a Covered Person to indemnification for Losses incurred or relating to a state of facts existing prior to such amendment, modification or repeal shall apply in such a way as to eliminate or reduce such Covered Person’s entitlement to indemnification for such Losses without the Covered Person’s prior written consent.

8.4               Survival . The provisions of Section 8.3 shall survive the dissolution, liquidation, winding up and termination of the Company.

9.                   Term . This Agreement shall be effective as of the date hereof and shall continue in effect until and shall terminate upon the earlier to occur of:

(a)                 the written agreement of Stockholders whose outstanding shares of Capital Stock are sufficient to amend this Agreement pursuant to Section 11.1;

(b)                the voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company (whether pursuant to a proceeding under the United States bankruptcy code or any similar law, Federal or state, whether now or hereafter existing), or the general assignment by the Company of all or substantially all of its property for the benefit of creditors; or

(c)                 the merger of the Company into or the consolidation of the Company with one or more corporations not Affiliated with (i) the Company or (ii) Stockholders then owning a majority of the Voting Power if, as a result of such merger or consolidation, the Stockholders holding a majority of the Voting Power immediately prior to such merger or consolidation do not own a majority of the Voting Power (or a majority of the voting power of the surviving entity if the Company is not the surviving entity) immediately after such merger or consolidation.

10.               Specific Enforcement . Each party acknowledges and agrees that each other party will be irreparably damaged in the event any of the provisions of this Agreement are not performed by the parties in accordance with their specific terms and conditions or are otherwise breached. Accordingly, it is agreed that each of the Company and the Stockholders shall be entitled to an injunction to prevent breaches of this Agreement and to specific enforcement of this Agreement and its provisions, in addition to any other remedy to which a party may be entitled at law or in equity (without the posting of any bond or other security and without having to prove actual damages), and if any action shall be brought in equity to enforce any of the provisions of this Agreement, none of the parties shall raise the defense that there is an adequate remedy at law.

(a)                 This Agreement may be amended or modified and the observance of any provision hereof may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a written instrument executed by a Supermajority in Interest of the Stockholders.

(b)                Any amendment, modification or waiver effected in accordance herewith shall be binding upon each party and each of their respective successors and permitted assigns, regardless of whether such Person entered into or approved such amendment, modification or waiver. The Company shall give written notice of any amendment or modification of this Agreement or any waiver under this Agreement to any party that did not consent in writing to such amendment, modification or waiver after such amendment, modification or waiver becomes effective.

11.2           Successors and Assigns . Except as otherwise expressly provided herein, and subject to the restrictions on Transfer set forth herein, the provisions of this Agreement shall inure to the benefit of and be binding upon the respective successors, permitted assigns, heirs, executors and administrators of the parties.

11.3           No Third Party Beneficiaries . Except as expressly provided in this Agreement, nothing in this Agreement is intended to confer upon any Person, other than the parties or their respective successors and permitted assigns, any rights or remedies under or by reason of this Agreement. Each Person entitled to indemnification under Section 8 shall be entitled to the benefits thereof and authorized to enforce the terms thereof that are for its benefit, even if such Person is not a party.

11.4           Notices . All notices and other communications given or made pursuant to this Agreement shall be in writing, shall be transmitted to the appropriate party by hand delivery, by registered or certified mail, return receipt requested, postage prepaid or by overnight delivery by an internationally recognized overnight courier and shall be addressed to such party at his, her or its address shown on the signature page hereto, provided a copy of any notice provided to the Company shall also be provided to Leslie M. Taeger, Senior Vice President & Chief Financial Officer, Capstone Therapeutics Corp., 1275 W. Washington St., Suite 104, Tempe, AZ 85281. Any party may designate by written notice given to all parties a new address to which any notice, demand or other communication hereunder shall thereafter be given. Each notice or other communication transmitted in the manner described in this Section 11.4 shall be deemed to have been given and received for all purposes: (a) upon personal delivery to the party to be notified, (b) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (c) two (2) days after deposit with an internationally recognized overnight courier, with written verification of receipt.

11.5           Further Assurances . Each party agrees to execute such additional documents or instruments as may be reasonably necessary or desirable in order to carry out the provisions of this Agreement. Without limiting the foregoing, each Stockholder shall vote (in person, by proxy or by action by written consent, as applicable) all of such Stockholder’s Capital Stock, whether now owned or hereafter acquired or which such Stockholder may be empowered to vote, from time to time and at all times, in whatever manner shall be necessary to increase the number of authorized Common Shares from time to time to ensure that there will be sufficient Common Shares available for conversion of all of the shares of Preferred Stock outstanding at any given time.

11.6           Severability . The determination by a court of competent jurisdiction that any provision of this Agreement is invalid or unenforceable shall in no way affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect in the same manner and to the same extent as if the invalid or unenforceable provision had not been contained in this Agreement. If any such invalidity or unenforceability of a provision of this Agreement becomes known or apparent to any of the parties, the parties shall negotiate promptly and in good faith in an attempt to make appropriate changes and adjustments to such provisions specifically and this Agreement generally to achieve as closely as possible, consistent with applicable law, the intent and spirit of such provision specifically and this Agreement generally.

11.7           Waiver . No delay or omission in exercising, or failure to exercise, any right, power or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power or remedy of such non-breaching or non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.

11.8           Entire Agreement . This Agreement (including the Schedules and Exhibits hereto) contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes any prior communications, understandings or agreements of the parties with respect to the subject matter hereof. This Agreement, however, does not supersede any obligations of confidentiality that may exist among the parties pursuant to any other agreements between or among them.

11.9           Governing Law . All issues and questions concerning the application, construction, validity, interpretation and enforcement of this Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Delaware.

11.10       Arbitration . All claims, disputes and other matters in controversy (a “ Dispute ”) regarding any matter set forth in this Agreement shall be resolved exclusively according to the procedures set forth in this Section 11.10.

(a)                 If a Dispute arises relating to any matter set forth herein between or among the parties hereto, it is expected that the parties will attempt in good faith to resolve any such dispute in an amicable and mutually satisfactory manner.

(b)                In the event such efforts are unsuccessful, any party may serve a notice of arbitration (“ Notice of Arbitration ”) on any other party. The Notice of Arbitration shall be dated, and without prejudice to any right under the applicable rules of arbitration permitting subsequent modifications, shall specify the claims or issues that are to be subjected to arbitration.

(c)                 THE PARTIES AGREE THAT IN ORDER TO PROMOTE TO THE FULLEST EXTENT REASONABLY POSSIBLE A MUTUALLY AMICABLE RESOLUTION OF THE DISPUTE IN A TIMELY, EFFICIENT AND COST-EFFECTIVE MANNER, THEY WILL WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY AND SETTLE THEIR DISPUTE BY SUBMITTING THE CONTROVERSY TO ARBITRATION TO AN ARBITRATOR OR ARBITRATION PANEL, AS APPLICABLE, SELECTED IN ACCORDANCE HEREWITH FOR PROCEEDINGS GOVERNED BY THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION (A.A.A.) EXCEPT THAT ALL PARTIES SHALL BE ENTITLED TO ALL DISCOVERY RIGHTS ALLOWED UNDER THE DELAWARE RULES OF CIVIL PROCEDURE.

(d)                The parties shall attempt to select a mutually agreeable arbitrator. If no agreement is reached within ten (10) Business Days of the Notice of Arbitration, then each party shall select one Person to act as arbitrator, and the two so selected shall, within fifteen (15) calendar days of their selection, select a third arbitrator. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator within the allotted time, the each party shall replace the Person selected to act as arbitrator, and the two so replacement arbitrators shall, within fifteen (15) calendar days of their selection, select a third arbitrator. This process shall be repeated until a three person arbitration panel is selected. All arbitrators shall serve as neutral, independent and impartial arbitrators. In all cases, it shall be a condition of such appointment that the arbitrator(s) can conduct all proceedings and render a decision within sixty (60) days after selection of the arbitrator or arbitrator panel, as applicable.

(e)                 The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §1 et seq ., and the judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. Any party may elect to participate in the arbitration telephonically. Any substantive or procedural rights other than the enforceability of the arbitration agreement shall be governed by Delaware law, without regards to Delaware’s conflict of laws principles.

(f)                 The parties further expressly agree that (i) the arbitrator(s) shall only reach his or her decision by applying strict rules of law to the facts, (ii) the arbitration shall be conducted in the English language, in Maricopa County, Arizona, (iii) the party in whose favor the arbitration award is rendered shall be entitled to recover costs and expenses of the arbitration including, but not limited to, attorneys’ fees and the cost and expense of administration of the arbitration proceedings, and any costs and attorney’s fees incurred in executing on or enforcing the arbitration award or, if the decision is not clearly in favor of one party or other, such costs and expenses shall be borne as determined by the arbitrator, and (iv) the arbitral award shall be issued in Maricopa County, Arizona.

(g)                Except as provided in the following sentences, no party shall be entitled to commence or maintain any action in a court of law upon any matter in dispute until such matter shall have been submitted and determined as provided herein and then only for the enforcement of such arbitration award. Provided that, notwithstanding this dispute resolution policy, either party may apply to the United States District Court for the District of Delaware or the Court of Chancery of the State of Delaware, to seek injunctive relief before or after the pendency of any arbitration proceeding. The institution of any action for injunctive relief shall not constitute a waiver of the right or obligation of any party to submit any claim seeking relief other than injunctive relief to arbitration. Judgment upon the award may be entered by the United States District Court for the District of Delaware or the Court of Chancery of the State of Delaware, or application may be made to any such court for the judicial acceptance of the award and order of enforcement, as the case may be, if the Arbitrator’s award or decision is not complied with within seven (7) Business Days of the Arbitrator’s decision.

(h)                Arbitration shall be the sole and exclusive procedure for resolution of disputes between the parties, including any disputes that might arise after termination of this Agreement, except as set forth otherwise herein with respect to equitable remedies.

11.11       Equitable Remedies . Each party hereto acknowledges that a breach or threatened breach by such party of any of its obligations under this Agreement would give rise to irreparable harm to the other parties, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by such party of any such obligations, each of the other parties hereto shall, in addition to any and all other rights and remedies that may be available to them in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).

11.12       Attorneys’ Fees . In the event that any party hereto institutes any legal suit, action or proceeding, including arbitration, against another party in respect of a matter arising out of or relating to this Agreement, the prevailing party in the suit, action or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs.

11.13       Remedies Cumulative . The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise, except to the extent expressly provided in this Agreement to the contrary.

11.14       Titles and Subtitles . The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

11.15       Counterparts . This Agreement may be executed in one or more counterparts, all of which will be considered one and the same agreement and will become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, regardless of whether all of the parties have executed the same counterpart. Counterparts may be delivered via facsimile, electronic mail (including pdf) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

11.16       Stock Splits, Stock Dividends, etc . In the event of any issuance of Capital Stock after the date of this Agreement to the Stockholders (including in connection with any stock split, stock dividend, recapitalization, reorganization, or the like), such Capital Stock shall become subject to this Agreement and shall be endorsed with the legend set forth in Section 7.1 herein.

11.17       Spousal Consent . If any Stockholder has a spouse on the date on which such Stockholder enters into this Agreement, such Stockholder’s spouse shall execute and deliver to the Company a Consent of Spouse, effective as of such date, unless waived by the Company. If any Stockholder should marry or remarry subsequent to the date on which such Stockholder enters into this Agreement, such Stockholder shall within thirty (30) days thereafter obtain his or her new spouse’s acknowledgment of and consent to the provisions of this Agreement by causing such new spouse to execute and deliver to the Company a Consent of Spouse, unless waived by the Company. Notwithstanding the execution and delivery thereof, no Consent of Spouse shall be deemed to confer on or convey to a spouse any rights in such Stockholder’s Capital Stock or any interest therein.

11.18       Construction . The parties agree that this Agreement is the product of negotiations between sophisticated Persons, all of whom were represented by counsel, and each of whom had an opportunity to participate in, and did participate in, the drafting of each provision hereof. Accordingly, ambiguities in this Agreement, if any, shall not be construed strictly or in favor of or against any party but rather shall be given fair and reasonable construction without regard to the rule of contra proferentem . As used in this Agreement, the masculine gender shall include the feminine and neuter gender. The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified or the context otherwise requires, (a) references made in this Agreement to an Article, Section, Clause, Schedule or an Exhibit are to a Section, Clause, Schedule or an Exhibit of or to this Agreement, (b) the term “or” has the inclusive meaning represented by the term “and/or”. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation,” whether or not they are in fact followed by those words or words of like import. References to any Person include the successors and permitted assigns of that Person. References to “$” or dollar amounts are to lawful currency of the United States of America, unless otherwise expressly stated.

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IN WITNESS WHEREOF, the parties have executed this Amended and Restated Stockholders Agreement as of the date first above written.

[Signature Page to Amended and Restated Stockholders Agreement]

[Signature Page to Amended and Restated Stockholders Agreement]