exv10w1






Exhibit 10.1




SECOND AMENDMENT TO PROMISSORY NOTE




     THIS SECOND AMENDMENT TO PROMISSORY NOTE (this “Amendment”) is made and entered as of
October 30, 2009, by and between VIA Pharmaceuticals, Inc., a Delaware corporation (the
“Company”), and Bay City Capital Fund IV, L.P., or its registered assigns (the
“Holder”).



RECITALS




     1. The Holder agreed to lend to the Company in the aggregate up to $9,789,000.00 pursuant to
the terms of a Promissory Note dated March 12, 2009, as amended on September 11, 2009 (the
“Note”); and



     2. The Company and the Holder have agreed to amend certain provisions of the Note, subject to
terms and conditions set forth in this Amendment.



AGREEMENT




     NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby covenant and agree to be bound as follows:



     Section 1. Capitalized Terms. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to them in the Note, unless the context shall otherwise
require.



     Section 2. Amendments. Section 4 of the Note is hereby amended in its entirety to
read as follows:




     4. Maturity. Unless sooner paid, the entire unpaid principal amount and all
unpaid accrued interest shall become fully due and payable on the earliest of (i) December
31, 2009, and (ii) the acceleration of the maturity of this Note by Holder upon the
occurrence of an Event of Default (such earliest date, the “Maturity Date”).



     Section 3. No Other Amendments. Except as specifically amended hereby, the Note shall
continue in full force and effect as written.



     Section 4. Governing Law. This Amendment is made pursuant to and shall be governed
by, construed and enforced in accordance with the laws of the State of California, without regard
to the conflict of laws principles thereof.



     Section 5. Captions; Pronouns. All articles and section headings or captions
contained in this Amendment are inserted only as a matter of convenience and for reference and in
no way define, limit, extend or describe the scope of this Amendment or the intent of any provision
thereof. As used herein, all pronouns shall include the masculine, feminine, neuter, singular and
plural thereof wherever the context and facts require such construction.



 









 








     Section 6. Severability. If any provision of this Amendment or application to any
party or circumstance shall be determined by any court of competent jurisdiction to be invalid or
unenforceable to any extent, the remainder of this Amendment or the application of such provision
to any other party or circumstances shall not be affected thereby, and each provision shall be
valid and shall be enforced to the fullest extent permitted by law.



     Section 7. Counterparts; Effectiveness. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which, when taken together,
shall be deemed one agreement.



Signature page follows.




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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the
date first written above.



	 	 	 	 	 
	 	THE COMPANY:

VIA PHARMACEUTICALS, INC.

 	 
	 	By:  	          /s/ Lawrence K. Cohen
 	 
	 	 	Name:  	Lawrence K. Cohen 	 
	 	 	Title:  	President and Chief Executive Officer 	 
	 



	 	 	 	 	 
	 	THE HOLDER:

BAY CITY CAPITAL FUND IV, L.P.

By:     Bay City Capital Management IV LLC
Its:     General Partner

By:     Bay City Capital LLC
Its:     Manager

 	 
	 	By:  	             /s/ Fred Craves
 	 
	 	 	Name:  	Fred Craves 	 
	 	 	Title:  	Manager and Managing Director