Exhibit 10.2





Exhibit 10.2




OMNIBUS AMENDMENT




THIS OMNIBUS AMENDMENT (this “Amendment”) is entered into as of November 15, 2010 by and among
BAY CITY CAPITAL FUND IV, L.P. and BAY CITY CAPITAL FUND IV CO-INVESTMENT FUND, L.P. (each, an
“Investor” and collectively, the “Investors”), BAY CITY CAPITAL LLC, a Delaware limited liability
company (“BCC”), and VIA PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Investors,
BCC and the Company are sometimes referred to in this Amendment, individually, as a “Party” and,
collectively, as the “Parties.”



RECITALS





A. On March 26, 2010, the Investors and the Company entered into a Note and Warrant Purchase
Agreement (the “Purchase Agreement”).




B. Pursuant to those certain Promissory Notes, dated March 26, 2010, made and issued by the
Company under the Purchase Agreement (the “Notes”), the Investors agreed to lend to the
Company, from time to time, an aggregate principal amount not to exceed $3,000,000 (the
“Loan”).




C. In order to induce the Investors to make the Loan, the Company issued to each Investor a
Warrant to Purchase Common Stock of Via Pharmaceuticals, Inc. (collectively, the “Prior
Warrants”) representing the right, subject to the terms of the Prior Warrants and the
Purchase Agreement, to purchase in the aggregate up to the number of shares of Common Stock,
as defined in the Prior Warrants, of the Company set forth on Schedule A attached to the
Purchase Agreement.




D. To secure the Company’s obligations to the Investors under the Notes, the Company agreed,
under that certain Security Agreement, dated as of March 26, 2010, by and between the
Company and BCC (as amended or restated from time to time, including without limitation
pursuant to the Amendment to Security Agreement by and between the Company and BCC dated as
of November 1, 2010, the “Security Agreement”), to grant a lien on all of the Company’s
assets to BCC, in its capacity as Collateral Agent for the Investors under that Collateral
Agency Agreement, dated as of March 26, 2010, by and among BCC and the Investors (the
“Collateral Agency Agreement”).




E. In connection with the Security Agreement, the Company granted to BCC, as administrative
agent for the Investors, under that certain Collateral Assignment of Patents, dated as of
March 26, 2010 (the “Collateral Assignment of Patents”), a lien on the Company’s rights to
the patents, applications for patents, registrations and recordings described therein.




F. To allow the Company to grant a security interest in the Loan under the Security
Agreement and the Collateral Assignment of Patents, the Investors, having previously loaned
to the Company an aggregate principal amount of Ten Million Dollars ($10,000,000) under a
Note and Warrant Purchase Agreement dated as of March 12, 2009 (the “2009 Purchase
Agreement”), granted to the Company a limited waiver of certain provisions of the promissory
notes issued under the 2009 Purchase Agreement
and the security agreement related thereto under the Limited Waiver dated as of March 26,
2010 (the “Limited Waiver”, and together with the Purchase Agreement, the Security
Agreement, the Collateral Agency Agreement, the Collateral Assignment of Patents and the
Prior Warrants, the “Loan Documents”).


 


 









 






G. The Investors and the Company desire to amend the Loan Documents to increase the maximum
aggregate principal amount of the Loan to $6,000,000, to amend and restate the Notes into
the form attached as Exhibit A hereto (as so amended and restated, the “Amended and
Restated Notes”), and to issue to the Investors additional warrants to purchase the
Company’s Common Stock, dated the date hereof, in the form attached as Exhibit B to the
Purchase Agreement, with such adjustments (including with respect to the Exercise Price
thereof) as appropriate to reflect the issuance of such Warrants on the date hereof (the
“Additional Warrants”).




H. On October 29, 2010, the Company issued to Bay City Capital Fund IV, L.P. a secured
promissory note, in the original principal amount of $200,000 (the “Bridge Note”), an
interest in which was transferred to Bay City Capital Fund IV Co-Investment Fund, L.P.
pursuant to an internal transfer. The unpaid principal amount and accrued and unpaid
interest under the Bridge Note, by the terms of the Bridge Note, is intended to (and by its
terms automatically will) convert into obligations of the Company to the Investors under the
Loan Documents, as amended, as advances under the Amended and Restated Notes.



AMENDMENT





NOW, THEREFORE, the Parties agree as follows:




	1.	 	Amendment of Purchase Agreement. The Purchase Agreement is hereby amended as
follows:






	 	(a)	 	Each reference in the Purchase Agreement to the “Principal Amount” shall refer to the
amount set forth opposite each Investor’s name beneath the caption “Total Aggregate
Principal Amount” on Schedule A attached hereto.






	 	(b)	 	Schedule A to the Purchase Agreement is hereby deleted in its entirety and replaced
with Schedule A attached hereto.






	 	(c)	 	Exhibit A to the Purchase Agreement is hereby deleted in its entirety and replaced with
Exhibit A attached hereto.





 


2









 










	 	(d)	 	Section 1.2 of the Purchase Agreement is hereby deleted in its entirety and replaced
with the following Section 1.2:






“Subject to the terms and conditions of this Agreement, at the Initial Closing, and
upon the date of any amendment hereto in which the Company agrees to issue a warrant
under this Agreement, the Company shall issue to each Investor a warrant (each such
warrant, the “Warrant” and collectively, the “Warrants”), in the form attached
hereto as Exhibit B (in the case of Warrants issued pursuant to
amendments hereto, with such adjustments as appropriate to reflect the issuance of
such Warrants subsequent to the Initial Closing), representing the right, subject to
the terms of the Warrant, to purchase in the aggregate up to the number of shares of
Common Stock of the Company (as adjusted for stock splits, recapitalizations or
other similar events) set forth opposite such Investor’s name beneath the caption
“Initial No. of Warrant Shares” on Schedule A attached hereto. Upon the
issuance of Warrants in connection with a Subsequent Closing (“Additional
Warrants”), the attached Schedule A shall be amended to reflect the
aggregate number of shares of Common Stock of the Company that the Investors have
the right to buy under all outstanding Warrants. Each Warrant shall, unless sooner
terminated as provided therein, have a term of five years from the date of the
Initial Closing, or, in the case of an Additional Warrant, from the date of the
Subsequent Closing at which such Additional Warrant was issued, and shall be
exercisable (subject to the terms of the Warrant) at an exercise price (subject to
adjustment as set forth in the Warrant) equal to the Exercise Price.”




	 	(e)	 	Section 1.3 of the Purchase Agreement is hereby deleted in its entirety and replaced
with the following Section 1.3:






“Exercise Price. For purposes of this Agreement, “Exercise Price” shall
mean (a) with respect to Warrants issued at the Initial Closing, $0.17 per share,
and (b) with respect to Warrants issued at a Subsequent Closing, the closing price
per share of the Company’s Common Stock on the date prior to the
Business Day of issuance of
such Additional Warrant, as set forth in such Additional Warrant.”




	2.	 	Amendment of Loan Documents. Each Loan Documents is hereby amended as follows:






	 	(a)	 	Each reference in each of the Loan Documents to the Loan shall refer to the Loan as
increased hereunder, in the maximum aggregate principal amount of $6,000,000.






	 	(b)	 	Each reference in each of the Loan Documents to any Loan Document shall refer to such
Loan Document as amended or restated from time to time, including (without limitation) by
this Amendment.






	 	(c)	 	Each reference in each of the Loan Documents to the Note or Notes shall refer to the
Amended and Restated Note or Notes.






	 	(d)	 	Each reference in each of the Loan Documents to the Warrants shall include the
Additional Warrants issued hereunder.





 


3









 










	3.	 	Conditions to Effectiveness. The Investors’ and BCC’s entry into this Amendment and
the effectiveness hereof is subject to the prior or concurrent satisfaction (or waiver by the
Investors and BCC, in their sole discretion) of each of the conditions precedent set forth in
this Section 3 (capitalized terms used in this Section and not defined in this
Amendment shall have the meaning given in the Amended and Restated Notes):






	 	(a)	 	Delivery by the Company to the Investors of an effective amendment to that certain
Second Amended and Restated Registration Rights Agreement dated as of March 12,
2009, as amended by the First Amendment to the Second Amended and Restated Registration
Rights Agreement dated as of March 26, 2010 (as so amended, the “Registration Rights
Agreement”), in the form attached hereto as Exhibit B (the “Registration Rights
Agreement Amendment”, pursuant to which amendment the Registration Rights Agreement shall be
amended to provide the Investors with registration rights with respect to the Additional
Warrants;






	 	(b)	 	The Investors shall have received (i) a certificate, dated the date hereof, of an
authorized signatory of the Company certifying (A) copies of the resolutions and other
actions taken or adopted by the Company authorizing the execution, delivery and performance
of this amendment, the Amended and Restated Notes, the Additional Warrants, and the
Registration Rights Agreement Amendment (and confirming that no resolutions or actions
contrary to such resolutions or actions have been taken) and (B) the Certificate of
Incorporation of the Company (which shall also be certified by the Secretary of State of
the state in which the Company is organized or formed) and Bylaws of the Company, (ii) a
good standing certificate with respect to the Company as of a date recently prior to the
date of hereof from the Secretary of the State of the state in which the Company is
organized or formed, and (iii) evidence of qualification of the Company to do business in
each jurisdiction where the nature of its properties or the conduct of its business
requires it to be so qualified to do business as of a recent date and where the failure so
to qualify could result in a Material Adverse Effect;






	 	(c)	 	No claim, litigation, arbitration, governmental investigation, injunction, order,
proceeding or inquiry shall be pending or threatened which: (i) seeks to enjoin or would be
reasonably be expected to materially delay, impose material limitations on, or otherwise
prevent the consummation of, or to recover any damages or obtain relief as a result of, the
transactions contemplated by or in connection with the Loan Documents or this Amendment; or
(ii) would otherwise be adverse to any of the parties hereto in any material respect with
respect to the transactions contemplated hereby;






	 	(d)	 	The Investors shall have received a certificate, dated as of the date hereof, of an
authorized signatory of the Company to the effect that: (i) all conditions precedent set
forth in this Section 3 have been satisfied; (ii) all representations and
warranties set forth in Section 4 of the Purchase Agreement are true and correct in all
material respects (except for representations or warranties already qualified by
materiality, which shall be true and correct in all respects) as of the date hereof; and
(iii) all representations and warranties set forth in any other documents entered into in
connection herewith are true and correct in all material respects (except for
representations or warranties already qualified by materiality, which shall be true and
correct in all respects); and




 


4









 











	 	(e)	 	The Investors shall have received a certificate, dated the date hereof, of an
authorized signatory of the Company to the effect that the Company has obtained and
maintains in full force and effect each and every consent, approval, filing and
registration by or with any Person, including, without limitation, any Governmental
Authority, necessary to authorize or permit (i) the execution, delivery or performance of
the Loan Documents, this Amendment, and the Registration Rights Agreement Amendment, (ii)
the issuance of the Amended and Restated Notes and the Additional Warrants (including any
approval,
consent, filing and registration required under Federal or State securities laws), (iii) the
validity or enforceability of the documents specified in clauses (i) and (ii), or (iv) the
consummation of the transactions contemplated by the Loan Documents and hereby.






	4.	 	Amendment and Restatement of Notes. Each Note is hereby amended and restated into
the form attached hereto as Exhibit A.






	5.	 	Conversion of Bridge Note. The obligations of the Company under Bridge Note are
hereby converted into obligations of the Company under the Amended and Restated Notes, with
the unpaid principal amount and accrued and unpaid interest under the Bridge Note converted
into advances under the Amended and Restated Notes. Such advances shall be reflected on
Schedule 1 to each Amended and Restated Note as a drawdown hereunder on the date hereof.
Promptly following the execution hereof, the Investors shall deliver the Bridge Note to the
Company to reflect such conversion and cancellation.






	6.	 	Issuance of Additional Warrants. Pursuant to Section 1.2 of the Purchase Agreement,
as amended hereby, the Company shall issue to the Investors the Additional Warrants dated as
of the date hereof.






	7.	 	Expenses. The Company shall reimburse the reasonable expenses of the Investors
(including the fees of one special counsel for both the Investors) with respect to the
negotiation, execution and delivery of this Amendment and the other Loan Documents amended
hereunder, the Amended and Restated Notes, the Additional Warrants, the Bridge Note and the
Amendment to Security Agreement by and between the Company and BCC dated as of November 2,
2010, in an amount not to exceed $30,000 in the aggregate.






	8.	 	Survival. Except as expressly modified hereby, all of the provisions of the Purchase
Agreement remain in full force and effect and shall be unaffected by this Amendment.






	9.	 	Execution in Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but all of which together will
constitute one and the same instrument. This Amendment or any counterpart may be executed and
delivered by facsimile or email with scan attachment copies or pdf, each of which shall be
deemed an original.






	10.	 	Consent of Parties to this Amendment. Each Party hereto shall be deemed to have
consented to only the amendments described hereunder that amend Loan Documents to which such
Party is a party.




 


5









 





IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date first above
written.



	 	 	 	 	 	 	 	 	 
	 	 	COMPANY:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	VIA PHARMACEUTICALS, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Karen S. Wright	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Karen S. Wright	 	 
	 

	 	 	 	Title:
	 	Vice President, 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	 	 






[Signature page to Omnibus Amendment]



 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	INVESTORS:	 	 
	 
	 	 	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:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Address:	 	 
	 	 	Bay City Capital Fund IV, L.P.	 	 
	 	 	750 Battery Street, Suite 400	 	 
	 	 	San Francisco, California 94111	 	 
	 	 	Attention: Managing Director	 	 
	 	 	Facsimile:	 	 
	 	 	Electronic mail:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BAY CITY CAPITAL FUND IV CO-INVESTMENT FUND, 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:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Address:	 	 
	 	 	Bay City Capital Fund IV, L.P.	 	 
	 	 	750 Battery Street, Suite 400	 	 
	 	 	San Francisco, California 94111	 	 
	 	 	Attention: Managing Director	 	 
	 	 	Facsimile:	 	 
	 	 	Electronic mail:	 	 






[Signature page to Omnibus Amendment]




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	BCC:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BAY CITY CAPITAL LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Fred Craves	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Fred Craves	 	 
	 

	 	 	 	Title:
	 	Manager and Managing Director	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Address:	 	 
	 	 	Bay City Capital, LLC	 	 
	 	 	750 Battery Street, Suite 400	 	 
	 	 	San Francisco, California 94111	 	 
	 	 	Attention: Manager and Managing Director	 	 
	 	 	Facsimile: (415) 835-5569	 	 







[Signature page to Omnibus Amendment]




 


 









 







Schedule A




SCHEDULE OF INVESTORS




As amended and restated on November 15, 2010




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal	 	 	Principal	 	 	 	 	 	 	 	 	 	 	 
	 	 	Principal	 	 	Amount of	 	 	Amount	 	 	Total	 	 	 	 	 	 	Aggregate	 
	 	 	Amount	 	 	Drawdown on	 	 	Available on	 	 	Aggregate	 	 	Initial No. of	 	 	No. of	 
	 	 	of Initial	 	 	November 15,	 	 	November 15,	 	 	Principal	 	 	Warrant	 	 	Warrant	 
	Name	 	Advance	 	 	2010	 	 	2010	 	 	Amount	 	 	Shares	 	 	Shares	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bay City Capital
Fund IV, L.P.
	 	$	1,223,625	 	 	$	197,148	 	 	$	2,739,552	 	 	$	5,873,400	 	 	 	17,274,706	 	 	 	58,636,678	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bay City Capital
Fund IV
Co-Investment Fund,
L.P.
	 	 	26,375	 	 	$	4,249	 	 	$	59,051	 	 	 	126,600	 	 	 	372,353	 	 	 	1,263,902	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TOTAL
	 	$	1,250,000	 	 	$	201,397	 	 	$	2,798,603	 	 	$	6,000,000	 	 	 	17,647,059	 	 	 	59,900,580	 







 


 









 







Exhibit A



FORM OF AMENDED AND RESTATED PROMISSORY NOTE





 


 









 







Exhibit B



FORM OF SECOND AMENDMENT TO

SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT