First Amendment to Securities Purchase Agreement, dated February 12, 2024, between the Company and Flagstaff International

Exhibit 10.4

FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT

This FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT (this “Amendment”) is dated effective as of February 12, 2024 (the “Amendment Effective Date”), by and between Neuraxis, Inc., a Delaware corporation (the “Company”) and Flagstaff International, LLC, a Delaware limited liability company (“Investor”). (the “Investor,” and together with the Company, the “Parties”).

RECITALS

WHEREAS, the Company and the Buyer entered into and executed that certain Securities Purchase Agreement, dated as of November 9, 2023 (such Securities Purchase Agreement, together with all amendments, modifications, substitutions, or replacements thereof, collectively referred to as the “SPA”);

WHEREAS, the Parties have agreed to amend the SPA as provided herein.

NOW, THEREFORE, in consideration of the premises and the mutual covenants of the parties hereinafter expressed and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, each intending to be legally bound, agree as follows:

1. Recitals. The recitations set forth in the preamble of this Amendment are true and correct and incorporated herein by this reference.

2. Capitalized Terms. All capitalized terms used in this Amendment shall have the same meaning ascribed to them in the SPA, except as otherwise specifically set forth herein.

3. Conflicts. In the event of any conflict or ambiguity by and between the terms and provisions of this Amendment and the terms and provisions of the SPA, the terms and provisions of this Amendment shall control, but only to the extent of any such conflict or ambiguity.

4. Amendments to SPA.

4.1. The SPA is hereby amended by deleting Article II thereof in its entirety and replacing it with the following:

“Section 2.01 Purchase and Sale. Subject to the terms and conditions set forth herein, at the Closing, the Company shall sell to Investor, and Investor shall purchase from the Company, a convertible promissory note in the form annexed hereto as Exhibit C (the “Note,” which shall be a Transaction Document) for an aggregate purchase price of Three Million Dollars ($3,000,0000) (the “Purchase Price”) for conversion into 1,260,504 shares of Series B Preferred Stock. Investor shall pay the Purchase Price to the Company in fifteen (15) equal monthly installments of Two Hundred Thousand Dollars ($200,000) each, commencing on January 10, 2024 and by the tenth day of each succeeding month, by wire transfer of immediately available funds to an account of the Company designated in writing by the Company to Investor. Notwithstanding the foregoing, at any time following the date on which (i) stockholder approval of an amendment to the Company’s Certificate of Incorporation to authorize the creation of the Series B Preferred Stock has been obtained and (ii) the Certificate of Designation has been filed with the Secretary of State of the State of Delaware, at the Company’s sole option, it shall have the right to sell a certain number of Shares each month in lieu of the Investor funding amounts under the Note to the Company for a purchase amount equal to Two Hundred Thousand Dollars ($200,000) for each monthly purchase.

Section 2.02 Transactions Effected at the Closing.

(a) At the Closing, Investor shall deliver to the Company:

(i) the Transaction Documents and all other agreements, documents, instruments, or certificates required to be delivered by Investor at or prior to the Closing pursuant to Section 5.03 of this Agreement.

(b) At the Closing, the Company shall deliver to Investor:

(i) the Note; and

(ii) the Transaction Documents and all other agreements, documents, instruments, or certificates required to be delivered by the Company at or prior to the Closing pursuant to Section 5.02 of this Agreement.

Section 2.03 Closing. Subject to the terms and conditions of this Agreement, the purchase and sale of the Note contemplated hereby shall take place at a closing (the “Closing”), on or before January 10, 2024, which Closing shall be held at 10:00 a.m., Eastern Time, remotely by electronic mail or at such other time or on such other date or at such other place or by such other method as the Company and Investor may mutually agree upon orally or in writing (the day on which the Closing takes place, the “Closing Date”).

Section 2.04 Use of Proceeds. The Company shall use the proceeds from the issuance of the Note solely for the Company’s working capital and general corporate purposes. The Company shall not use any of such proceeds to pay any dividends or distributions or to pay or advance any funds to any of its officers, directors or Affiliates.”

4.2. Appendix A is hereby added to the SPA as Exhibit C.

4.3. The SPA is hereby amended by deleting Section 5.02(e) through Section 5.02(i) in its entirety and replacing it with the following:

(e) “The Company shall have delivered to Investor a good standing certificate (or its equivalent) for the Company from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which the Company is organized.

(f) The Company shall have delivered, or caused to be delivered, to Investor such documents or instruments as Investor reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement.

(g) The Company shall have fully complied with, or obtained appropriate consents or waivers with respect to, its obligations under each of the agreements or other documents identified on Section 3.02(c) of the Disclosure Schedules, including with respect to any outstanding rights of first refusal, rights of first offer, pre-emptive rights or anti-dilution rights, or redemption or repurchase rights.

(h) The Company shall have paid the fees and expenses of Investor pursuant to the terms of Section 8.02.”

4.3. Appendix A is hereby added to the SPA as Exhibit C.

5. Effect on Agreement and Transaction Documents. Except as expressly amended by this Amendment, all of the terms and provisions of the SPA and the other Transaction Documents shall remain and continue in full force and effect after the execution of this Amendment, are hereby ratified and confirmed, and incorporated herein by this reference.

6. Execution. This Amendment may be executed in one or more counterparts, all of which taken together shall be deemed and considered one and the same Amendment. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf’ format file or other similar format file, such signature shall be deemed an original for all purposes and shall create a valid and binding obligation of the party executing same with the same force and effect as if such facsimile or “.pdf’ signature page was an original thereof.

[Signatures on the following page]

IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of the day and year first above written.

APPENDIX A

FORM OF CONVERTIBLE PROMISSORY NOTE