Exhibit 4.11





Exhibit 4.11




SECOND AMENDMENT TO THE SECOND AMENDED AND RESTATED 

REGISTRATION RIGHTS AGREEMENT




THIS SECOND AMENDMENT TO THE SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
“Second Amendment”), dated as of November 15, 2010, is made and entered into by and among
VIA PHARMACEUTICALS, INC., a Delaware corporation (the “Company”), and each of the parties
listed on Exhibit A hereto, as such Exhibit A may be amended from time to time
(collectively, the “Stockholders”). For the purposes of this Agreement, the term “Company”
shall be deemed to include and refer to any successor in interest to the Company, whether by means
of statutory conversion, merger, consolidation, recapitalization, reorganization or otherwise.



RECITALS




WHEREAS, certain of the Stockholders are parties to the 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”), pursuant to which the Company has granted
certain registration rights under the Securities Act with respect to shares of Common Stock held by
such Stockholders;



WHEREAS, the Company and certain Stockholders party hereto are entering into an amendment (the
“Amendment”) to that certain Note and Warrant Purchase Agreement dated as of March 26, 2010
(the “Purchase Agreement”) and are amending and restated those certain Promissory Notes of
the Company, each dated March 26, 2010 (the “Promissory Notes”), and as an inducement and
partial consideration for such Stockholders entering into the Amendment and amending and restating
the Promissory Notes, the Company is issuing to such Stockholders Warrants to Purchase Common Stock
of VIA Pharmaceuticals, Inc. (collectively, the “Additional 2010 Warrants”), dated
as of the date hereof, pursuant to which the Company is granting to such Stockholders the right to
purchase from the Company an aggregate of 42,253,521 shares of Common Stock on the terms and
conditions set forth in the Additional 2010 Warrants;



WHEREAS, in accordance with the terms of the Purchase Agreement, as amended by the Amendment
(as so amended, the “Amended Purchase Agreement”) and the Additional 2010 Warrants, the
Company desires to amend the Registration Rights Agreement to provide certain registration rights
to the Stockholders party to the Additional 2010 Warrants with respect to the shares of Common
Stock underlying the Additional 2010 Warrants;



WHEREAS, the provisions of the Registration Rights Agreement may be amended or waived at any
time by written agreement of the Company and the Stockholders of at least a majority of the
Registrable Common Stock (as defined in the Registration Rights Agreement); and



WHEREAS, the Company and the Stockholders of at least a majority of the Registrable Common
Stock (as defined in the Registration Rights Agreement) desire to amend the Registration Rights
Agreement to provide for such registration rights to the Stockholders with respect to the shares of
Common Stock underlying the Additional 2010 Warrants.


 


 









 





NOW, THEREFORE, in consideration of the recitals and the mutual premises, covenants and
agreements herein contained and other good and valid consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Second Amendment hereby agree as follows:




1. Amendment. The Registration Rights Agreement shall be amended as follows:




(a) The following definition shall be added to Section 1 of the Registration Rights Agreement:




‘“Additional 2010 Warrants” shall mean the warrants to purchase (in
the aggregate) 42,253,521 shares of Common Stock of the Company issued
pursuant to each Warrant to Purchase Common Stock of VIA Pharmaceuticals,
Inc., as dated November 15, 2010.’




(b) The definition of “Warrants” shall be deleted and replaced with the following:




‘“Warrants” shall mean the 2009 Warrants, the 2010 Warrants, and the
Additional 2010 Warrants.’



2. Effective Time and Remainder of Agreement. This Second Amendment shall be effective as of
the date hereof and, except as set forth herein, the Registration Rights Agreement shall remain in
full force and effect and shall be otherwise unaffected hereby.




3. Miscellaneous.



(a) This Second Amendment and the rights and duties of the parties shall be governed by the
laws of the State of Delaware (without regard to conflicts of laws principles).



(b) This Second Amendment may be executed in any number of counterparts (including by
facsimile) and by different parties hereto in separate counterparts, with the same effect as if all
parties had signed the same document. All such counterparts shall be deemed an original, shall be
construed together and shall constitute one and the same instrument. This Second Amendment shall
become effective when each party hereto shall have received counterparts hereof signed by all of
the other parties hereto.



(c) The headings and other captions in this Second Amendment are for convenience and reference
only and shall not be used in interpreting, construing or enforcing any provision of this Second
Amendment.



(d) If any term, provision, covenant or restriction of this Second Amendment is held by a
court of competent jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Second Amendment shall
remain in full force and effect and shall in no way be affected, impaired or invalidated so long as
the economic or legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such a determination, the parties shall negotiate in
good faith to modify this Second Amendment so as to affect the original intent of the parties as
closely as possible in an acceptable manner in order that the transactions contemplated hereby
be consummated as originally contemplated to the fullest extent possible.



[Signature Pages Follow]




 


 









 







IN WITNESS WHEREOF, this Second Amendment to the Second Amended and Restated Registration
Rights Agreement has been duly executed by each of the parties hereto as of the date first written
above.



	 	 	 	 	 	 	 
	VIA PHARMACEUTICALS, INC.	 	 
	 
	 	 	 	 	 	 
	By:
	 	/s/ Lawrence K. Cohen	 	 
	 	 	 	 	 
	 

	 	Name:	 	Lawrence K. Cohen	 	 
	 

	 	Title:
	 	President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	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	 	 
	 
	 	 	 	 	 	 
	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	 	 






[Signature Page to Second Amendment to the Second Amended and Restated Registration Rights Agreement]



 


 









 







Exhibit A




STOCKHOLDERS




	 	 	 	 	 
	Name/Address:	 	 	 
	 
	 	 	 	 
	Bay City Capital Fund IV, L.P.
	 	 	 	 
	Bay City Capital Fund IV Co-Investment Fund, L.P.
	 	 	 	 
	750 Battery Street
	 	 	 	 
	Suite 400
	 	 	 	 
	San Francisco, CA 94111
	 	 	 	 
	 
	 	 	 	 
	Thomas Quertermous
	 	 	 	 
	810 Lathrop Drive
	 	 	 	 
	Stanford, CA 94305
	 	 	 	 
	 
	 	 	 	 
	Adeoye Olukotun
	 	 	 	 
	125 Hopewell-Wertsville Road
	 	 	 	 
	Hopewell, NJ 08525
	 	 	 	 
	 
	 	 	 	 
	Douglass and Kim Given Revocable Trust
	 	 	 	 
	133 Burns Avenue
	 	 	 	 
	Atherton, CA 94027
	 	 	 	 
	 
	 	 	 	 
	Lawrence Cohen
	 	 	 	 
	10065 Broadway Terrace
	 	 	 	 
	Oakland, CA 94611
	 	 	 	 
	 
	 	 	 	 
	Raymond Tabibiazar
	 	 	 	 
	2150 Sterling Avenue
	 	 	 	 
	Menlo Park, CA 94025