Exhibit 10.1





Exhibit 10.1




THIS SECURED PROMISSORY NOTE HAS BEEN ACQUIRED FOR INVESTMENT AND HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. THIS SECURED
PROMISSORY NOTE MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR QUALIFICATION
OR AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS.



SECURED PROMISSORY NOTE




			
	 	 	 
	$200,000
	 	October 29, 2010
	 
	 	San Francisco, California






FOR VALUE RECEIVED, VIA PHARMACEUTICALS, INC., a Delaware corporation (the “Company”) promises
to pay to Bay City Capital Fund IV, L.P., a Delaware limited partnership (“Investor”), or its
registered assigns, in lawful money of the United States of America, the principal sum of Two
Hundred Thousand Dollars ($200,000), or such lesser amount as shall equal the outstanding principal
amount hereof, together with interest from the date of this Secured Promissory Note (this “Note”)
on the unpaid principal balance at a rate equal to 15% per annum, compounded annually, computed on
the basis of the actual calendar days elapsed and a year of 365 days or, if less, at the highest
rate of interest then permitted under applicable law; provided, however, that from and after an
Event of Default (as defined below), the outstanding principal balance under this Note from time to
time shall accrue interest at the rate of eighteen percent (18%) per annum (computed on the basis
of actual calendar days elapsed and a year of 365 days) or, if less, at the highest rate permitted
by applicable law (the “Post-Default Rate”). Interest shall commence with the date hereof
and shall continue on the outstanding principal of this Note until paid. All unpaid principal,
together with any then unpaid and accrued interest and other amounts payable hereunder
(“Obligations”), shall be due and payable, if not earlier converted in accordance with the terms of
this Note, on November 30, 2010 (the “Maturity Date”). Notwithstanding the foregoing sentence, all
unpaid principal, together with any unpaid and accrued interest thereon and any other amounts
payable in accordance with the terms hereunder shall be due and payable immediately if, upon the
occurrence and during the continuance of an Event of Default, such amounts are declared due and
payable by Investor in accordance with Section 3 or made automatically due and payable upon the
occurrence of an Event of Default described in Section 2(d), in each case, in accordance with the
terms hereof.



The Company and the Investor, among other parties, intend to amend the Company’s existing Note and
Warrant Purchase Agreement, dated as of March 26, 2010, on terms and conditions satisfactory to
each such party (the “Future Note Financing”), and the Company and the Investor intend that amounts
due by the Company to the Investor pursuant to this Note may be converted into obligations of the
Company to the Investor in respect of the Future Note Financing.


 


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THE OBLIGATIONS DUE UNDER THIS NOTE ARE INTENDED BY THE COMPANY AND THE INVESTOR TO BE SECURED BY
THE SECURITY AGREEMENT (THE “SECURITY AGREEMENT”) DATED AS OF MARCH 26, 2010 AND EXECUTED BY THE
COMPANY FOR THE BENEFIT OF BAY CITY CAPITAL LLC AS COLLATERAL AGENT FOR THE INVESTOR, AND THE
OBLIGATIONS HEREUNDER SHALL CONSTITUTE “OBLIGATIONS” UNDER SUCH SECURITY AGREEMENT.



The following is a statement of the rights of Investor and the conditions to which this Note
is subject, and to which Investor, by the acceptance of this Note, agrees:



1. PAYMENT.




(a) Interest. Accrued and unpaid interest on this Note shall be due and payable on
the Maturity Date.



(b) Voluntary Prepayment. This Note may be prepaid at any time, in full or in part,
without penalty or premium upon five (5) days written notice to Investor.



(c) Conversion into Future Note Financing Obligations. Unless otherwise elected in
writing by the Investor, all amounts due and owing on this Note shall be converted into obligations
of the Company to the Investor pursuant to the Future Note Financing, contingent upon and
concurrently with the execution and delivery of documents with respect thereto.



2. EVENTS OF DEFAULT.





The occurrence of any of the following shall constitute an “Event of Default” under this Note:



(a) The Company shall fail to pay any principal or interest when due in accordance with the
terms hereunder;



(b) the Company shall (i) liquidate, wind up or dissolve (or suffer any liquidation, wind-up
or dissolution), (ii) suspend its operations other than in the ordinary course of business, or
(iii) take any action to authorize any of the actions or events set forth above in this Section
2(b);



(c) any final judgment or judgments for the payment of money aggregating in excess of $75,000
shall be rendered against the Company which judgments are not, within 30 days after the entry
thereof, bonded, discharged or stayed pending appeal, or are not discharged within 30 days after
the expiration of such stay; or



(d) the Company shall (i) apply for or consent to the appointment of a receiver, trustee,
custodian or liquidator of itself or any part of its property, (ii) become subject to the
appointment of a receiver, trustee, custodian or liquidator for itself or any part of its property
if such appointment is not terminated or dismissed within thirty (30) days, (iii) make an
assignment for the benefit of creditors, (iv) fail generally or admit in writing to its inability
to pay its debts as they become due, (v) institute any proceedings under


 


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the
United States Bankruptcy Code or any other federal or state bankruptcy, reorganization, receivership,
insolvency or other similar law affecting the rights of creditors generally, or file a petition or
answer seeking reorganization or an arrangement with creditors to take advantage of any insolvency
law, or file an answer admitting the material allegations of a bankruptcy, reorganization or
insolvency petition filed against it, or (vi) become subject to any involuntary proceedings under
the United States Bankruptcy Code or any other federal or state bankruptcy, reorganization,
receivership, insolvency or other similar law affecting the rights of creditors generally, which
proceeding is not dismissed within thirty (30) days of filing, or have an order for relief entered
against it in any proceeding under the United States Bankruptcy Code.



3. RIGHTS OF INVESTOR UPON DEFAULT. If any Event of Default shall occur for any reason, whether
voluntary or involuntary, and be continuing, Investor may, upon notice or demand, declare the
outstanding Obligations under this Note to be due and payable, whereupon the outstanding
Obligations under this Note shall be and become immediately due and payable, and the Company shall
immediately pay to Investor all such Obligations. Upon the occurrence of an actual or deemed entry
of an order for relief with respect to the Company under the United States Bankruptcy Code, then
all Obligations under this Note shall automatically be due immediately without notice of any kind.
The Company agrees to pay Investor all reasonable out-of-pocket costs and expenses incurred by
Investor in any effort to collect Obligations under this Note, including attorneys’ fees, and to
pay interest at the lesser of (A) the Post-Default Rate hereunder and (B) the highest rate
permitted by applicable law, on such costs and expenses to the extent not paid when demanded.
Investor shall also have any other rights which Investor may have been afforded under any contract
or agreement at any time and any other rights which Investor may have pursuant to applicable law.
Investor may exercise any and all of its remedies under the Security Agreement contemporaneously or
separately from the exercise of any other remedies hereunder or under applicable law.



4. GOVERNING LAW; FORUM. This Note is to be construed in accordance with and governed by the laws
of the State of California applicable to persons wholly resident within such state. Any dispute
relating to this Note or the enforcement thereof shall be heard exclusively by the state courts of
the State of California situated in San Francisco, California or the federal courts of the Northern
District of California.



5. AMENDMENT AND WAIVER. Any term of this Note may be amended only with the written consent of the
Company and Investor. The observance of any term of this Note may be waived (either generally or
in a particular instance and either retroactively or prospectively) only with the written consent
of Investor.



6. NOTICES. Any notice, consent, authorization, or other communication to be given hereunder shall
be in writing and shall be deemed duly given and received when delivered personally or transmitted
by facsimile or e-mail (in the case of e-mail, notice shall be considered effective only upon
receipt of written acknowledgement, which may be by e-mail), or, if sent by mail, three business
days after being mailed by first class mail, or one business day after being sent for next-day
delivery by a nationally recognized overnight delivery service, with the charges or postage having
been prepaid and with the notice having been properly addressed to the party to receive such notice
at the address or facsimile number specified below (or at such other
address as shall be specified by such party by like notice):


 


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if to Investor:




Bay City Capital Fund IV, L.P.

c/o Bay City Capital LLC

750 Battery Street, Suite 400

San Francisco, CA 94111

Attention: Operating Partner

Facsimile: (415) 837-0503




if to Company:




VIA Pharmaceuticals, Inc.

750 Battery Street, Suite 330

San Francisco, California 94111

Attention: Chief Financial Officer

Facsimile: (415) 283-2201



7. SEVERABILITY. If one or more provisions of this Note are held to be unenforceable under
applicable law, such provision shall be excluded from this Note and the balance of the Note shall
be interpreted as if such provision were so excluded and shall be enforceable in accordance with
its terms.



8. ASSIGNMENT. The Company shall not have the right to assign its rights and obligations hereunder
or any interest herein.



9. REMEDIES CUMULATIVE; FAILURE NOT A WAIVER. The remedies provided in this Note shall be
cumulative and in addition to all other remedies available under this Note and the Security
Agreement. No failure or delay on the part of Investor in the exercise of any power, right or
privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power, right or privilege preclude other or further exercise thereof or of any other
right, power or privilege.



10. PAYMENTS. Whenever any payment of cash is to be made by the Company to any person pursuant to
this Note, such payment shall be made in lawful money of the United States of America by a check
drawn on the account of the Company and sent via overnight courier service to such person at such
address as previously provided to the Company in writing (which address, in the case of Investor as
of the date of issuance hereof, shall initially be the address for Investor as set forth in this
Note); provided that Investor may elect to receive a payment of cash via wire transfer of
immediately available funds by providing the Company with prior written notice setting out such
request and Investor’s wire transfer instructions. Whenever any payment to be made shall otherwise
be due on a day which is not a business day in San Francisco, California, such payment shall be
made on the immediately succeeding business day and such extension of time shall be included in the
computation of accrued interest.


 


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11. EXCESSIVE INTEREST. Notwithstanding any other provision herein to the contrary, this Note is
hereby expressly limited so that the interest rate charged hereunder shall at no time exceed the
maximum rate permitted by applicable law. If, for any circumstance whatsoever, the interest rate
charged exceeds the maximum rate permitted by applicable law, the interest rate shall be reduced to
the maximum rate permitted, and if Investor shall have received an amount that would cause the
interest rate charged to be in excess of the maximum rate permitted, such amount that would be
excessive interest shall be applied to the reduction of the principal amount owing hereunder
(without charge for prepayment) and not to the payment of interest, or if such excessive interest
exceeds the unpaid balance of principal, such excess shall be refunded to the Company.



12. WAIVER OF NOTICE. To the extent permitted by law, the Company hereby waives demand, notice,
protest and all other demands and notices in connection with the delivery, acceptance, performance,
default or enforcement of this Note and/or the Security Agreement.



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


 


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IN WITNESS WHEREOF, the Company has caused this Note to be duly executed by its officers,
thereunto duly authorized as of the date first above written.



	 	 	 	 	 
	 	VIA PHARMACEUTICALS, INC.

 	 
	 	By:  	/s/ Karen S. Wright
 	 
	 	Name:  	Karen S. Wright 	 
	 	Title:  	VP Finance, Controller 	 
	 


Address:



VIA Pharmaceuticals, Inc.

750 Battery Street, Suite 330

San Francisco, California 94111

Attention: Vice President, Controller

Facsimile: (415) 283-2214

Electronic mail:

Karen.Wright@viapharmaceuticals.com





 


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