exv4w2






Exhibit 4.2



THIS WARRANT AND THE SHARES PURCHASABLE HEREUNDER HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE
SECURITIES LAWS. SUCH SECURITIES 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.



THIS WARRANT AND THE SHARES PURCHASABLE HEREUNDER ARE SUBJECT TO RESTRICTIONS ON TRANSFER CONTAINED
IN THAT CERTAIN NOTE AND WARRANT PURCHASE AGREEMENT, DATED AS OF MARCH 12, 2009, WHICH RESTRICTIONS
ON TRANSFER ARE INCORPORATED HEREIN BY REFERENCE.




Dated: March 12, 2009




WARRANT TO PURCHASE




COMMON STOCK OF




VIA PHARMACEUTICALS, INC.




     This certifies that Bay City Capital Fund IV Co-Investment Fund, L.P. or its assigns
(collectively, the “Holder”), for value received, is entitled to purchase, at a price of $0.12 per
share (the “Exercise Price”), from VIA Pharmaceuticals, Inc., a Delaware corporation (the
“Company”), up to 1,758,333 of fully paid and nonassessable shares of the Company’s Common Stock
(the “Warrant Shares”), par value $0.001 per share (the “Common Stock”).



     Reference is hereby made to that certain Note and Warrant Purchase Agreement (the “Agreement”)
dated as of March 12, 2009, by and between the Company and the investors set forth on Schedule A
thereto, pursuant to which the Company issued to Holder this Warrant and a certain Promissory Note
in the form attached as Exhibit A to the Agreement (the “Note”).



     The Warrant is vested and exercisable with respect to 175,833 Warrant Shares as of the date
hereof, and shall vest and become exercisable with respect to 175,833 Warrant Shares on April 26,
2009 if the Company has not completed a Financing (as defined in the Note) prior to such date.



     At each Drawdown (as defined in the Note), the Warrant shall vest and become exercisable (on a
cumulative basis) with respect to an additional number of Warrant Shares equal to the quotient of
(x) the principal amount of such Drawdown, divided by (y) the Exercise Price (with such quotient
being rounded down to the nearest whole number), in accordance with the following schedule:




	 	(i)	 	as to one half of such additional Warrant Shares, on the date
on which the Holder advances to the Company such Drawdown, and




 









 












	 	(ii)	 	as to the remaining one half of such additional Warrant Shares,
45 days after the date on which the Holder advances to the Company such
Drawdown if the Company has not completed a Financing (as defined in the Note)
prior to such 45th day.





     The Warrant Shares subject to this Warrant are set forth on Schedule I hereto, as
shall be appropriately and promptly updated by the Company upon the occurrence of each Drawdown.



     To the extent this Warrant is vested and exercisable with respect to any Warrant Shares
pursuant to the preceding paragraph, this Warrant shall be exercisable with respect to such Warrant
Shares at any time from time to time up to and including 5:00 p.m. (Pacific Time) on the five year
anniversary of the date hereof (such earlier time being referred to herein as the “Expiration
Date”), upon surrender to the Company at its principal office (or at such other location as the
Company may advise the Holder in writing) of this Warrant properly endorsed with (i) the Form of
Subscription attached hereto duly completed and executed and (ii) payment pursuant to Section 2 of
the aggregate Exercise Price for the number of shares for which this Warrant is being exercised
determined in accordance with the provisions hereof. The Exercise Price and the number of shares
purchasable hereunder are subject to adjustment as provided in Section 4 of this Warrant.



     1. Exercise; Issuance of Certificates; Acknowledgement. To the extent that this
Warrant is vested and exercisable with respect to any Warrant Shares, this Warrant shall be
exercisable at the option of the holder of record hereof, at any time or from time to time up to
the Expiration Date for all or any part of such Warrant Shares (but not for a fraction of a share)
for which this Warrant is vested and exercisable at such time. The Company agrees that the shares
of Common Stock purchased under this Warrant shall be and are deemed to be issued to the Holder
hereof as the record owner of such shares as of the close of business on the date on which this
Warrant shall have been surrendered, properly endorsed, the completed, executed Form of
Subscription delivered and payment made for such shares. Certificates for the shares of the Common
Stock so purchased, together with any other securities or property to which the Holder hereof is
entitled upon such exercise, shall be delivered to the Holder hereof by the Company at the
Company’s expense within three business days after the rights represented by this Warrant have been
so exercised, and may bear a restrictive legend in substantially the form set forth in Section 3.6
of the Agreement. Each certificate so delivered shall be in such denominations of the Warrant
Shares as may be requested by the Holder hereof and shall be registered in the name of such Holder.
In case of a purchase of less than all the Warrant Shares, the Company shall execute and deliver
to Holder within seven business days an Acknowledgement in the form attached hereto indicating the
number of Warrant Shares which remain subject to this Warrant, if any, and the number of Warrant
Shares for which this Warrant is vested and exercisable at such time, if any. Notwithstanding
anything to the contrary contained herein, unless the Holder otherwise notifies the Company or the
Exercise Price exceeds the fair market value of a Warrant Share (as determined in Section 2 below),
this Warrant shall be deemed to be automatically exercised using the Net Issuance Method pursuant
to Section 2 hereof immediately prior to the time on the Expiration Date at which this Warrant
ceases to be exercisable. In addition, the Holder may specify in its Form of Subscription
delivered to the Company (along with payment for the shares by cash or wire transfer) that the
Holder’s exercise of any portion of this Warrant is contingent upon the closing of a then-pending
Fundamental Transaction (as defined below).



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Upon any exercise of this Warrant, the Holder shall, if requested by the Company, confirm in
writing, in a form satisfactory to the Company, that the Warrant Shares so purchased are being
acquired solely for the Holder’s own account and not as a nominee for any other party, for
investment and not with a view toward distribution or resale and that such Holder is an “accredited
investor” as such term is defined in Rule 501(a)(1) of Regulation D promulgated by the Securities
and Exchange Commission under the Securities Act of 1933, as amended. If the Holder cannot make
such representations because they would be factually incorrect, it shall be a condition to such
Holder’s exercise of this Warrant that the Company receive such other representations as the
Company considers reasonably necessary to assure the Company that the issuance of its securities
upon exercise of this Warrant shall not violate any United States or state securities laws.



     2. Payment for Shares. The aggregate purchase price for Warrant Shares being
purchased hereunder may be paid either (i) by cash or wire transfer of immediately available funds,
(ii) if the fair market value of one (1) share of the Warrant Shares on the date of exercise is
greater than the Exercise Price, by surrender of a number of Warrant Shares which have a fair
market value equal to the aggregate purchase price of the Warrant Shares being purchased (“Net
Issuance”) as determined herein, or (iii) any combination of the foregoing. If the Holder elects
the Net Issuance method of payment, the Company shall issue to Holder upon exercise a number of
shares of Warrant Shares determined in accordance with the following formula:




	 	 	 	 	 	 	 
	 

	 	X=
	 	Y(A-B)
	 	 
	 	 	A	 	 







	 	where:  	X = 	the number of Warrant Shares to be issued to the Holder;
	 
	 	 	Y = 	the number of Warrant Shares with respect to which the Holder is exercising its purchase rights under this Warrant;
	 
	 	 	A = 	the fair market value of one (1) share of the Warrant Shares on the date of exercise; and
	 
	 	 	B = 	the Exercise Price.





     No fractional shares arising out of the above formula for determining the number of shares to
be issued to the Holder shall be issued, and the Company shall in lieu thereof make payment to the
Holder of cash in the amount of such fraction multiplied by the fair market value of one (1) share
of the Warrant Shares on the date of exercise. For purposes of the above calculation, the fair
market value of one (1) share of the Warrant Shares shall mean (a) if the Common Stock is then
traded on a securities exchange, the average of the closing prices of such Common Stock on such
exchange over the ten (10) calendar day period ending three (3) days prior to the date of exercise,
(b) if the Common Stock is then regularly traded over-the-counter, the average of the closing sale
prices or secondarily the closing bid of such Common Stock over the ten (10) calendar day period
ending three (3) days prior to the date of exercise, or (c) if there is no active public market for
the Common Stock, the fair market value of one share of the Warrant Shares as determined in good
faith by the Board of Directors of the Company.



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     3. Reservation of Shares; Shares to be Fully Paid. The Company covenants and agrees
that all shares of Common Stock which may be issued upon the exercise of the rights represented by
this Warrant will, upon issuance, be duly authorized, validly issued, fully paid and nonassessable
and free from all preemptive rights of any stockholder and free of all taxes, liens and charges
with respect to the issue thereof. The Company represents and warrants that it has reserved a
sufficient number of authorized but unissued shares of Common Stock to provide for the exercise of
the rights represented by this Warrant (assuming full vesting thereof).



     4. Adjustment of Exercise Price and Number of Shares. The Exercise Price and the
number of shares purchasable upon the exercise of this Warrant shall be subject to adjustment from
time to time upon the occurrence of certain events described in this Section 4. Upon each
adjustment of the Exercise Price, the Holder of this Warrant shall thereafter be entitled to
purchase, at the Exercise Price resulting from such adjustment, the number of shares obtained by
multiplying the Exercise Price in effect immediately prior to such adjustment by the number of
shares purchasable pursuant hereto immediately prior to such adjustment, and dividing the product
thereof by the Exercise Price resulting from such adjustment.



          4.1 Subdivisions, Combinations and Dividends. In case the Company shall at any time
subdivide its outstanding shares of Common Stock into a greater number of shares or pay a dividend
in Common Stock in respect of outstanding shares of Common Stock, the Exercise Price in effect
immediately prior to such subdivision or at the record date of such dividend shall be
proportionately reduced, and conversely, in case the outstanding shares of the Common Stock of the
Company shall be combined into a smaller number of shares, including by means of a reverse stock
split, the Exercise Price in effect immediately prior to such combination shall be proportionately
increased.




          4.2 Reclassification. If any reclassification of the capital stock of the Company
shall be effected in such a way that holders of Common Stock shall be entitled to receive stock,
securities, or other assets or property, then, as a condition of such reclassification, lawful and
adequate provisions shall be made whereby the Holder hereof shall thereafter have the right to
purchase and receive (in lieu of the shares of the Common Stock immediately theretofore purchasable
and receivable upon the exercise of the rights represented hereby) such shares of stock, securities
or other assets or property as may be issued or payable with respect to or in exchange for a number
of outstanding shares of such Common Stock equal to the number of shares of such Common Stock
immediately theretofore purchasable and receivable upon the exercise of the rights represented
hereby. In any reclassification described above, appropriate provision shall be made with respect
to the rights and interests of the Holder of this Warrant to the end that the provisions hereof
(including, without limitation, provisions for adjustments of the Exercise Price and of the number
of shares purchasable and receivable upon the exercise of this Warrant) shall thereafter be
applicable, as nearly as may be, in relation to any shares of stock, securities or assets
thereafter deliverable upon the exercise hereof.




          4.3 Notice of Adjustment. Upon any adjustment of the Exercise Price or any increase
or decrease in the number of shares purchasable upon the exercise of this Warrant, the Company
shall give written notice thereof, by first class mail postage prepaid, addressed to the registered
Holder of this Warrant at the address of such Holder as shown on the books of the Company. The
notice shall be signed by the Company’s chief financial officer and shall state the




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Exercise Price resulting from such adjustment and the increase or decrease, if any, in the
number of shares purchasable at such price upon the exercise of this Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which such calculation is based.




     5. No Voting or Dividend Rights. Nothing contained in this Warrant shall be construed
as conferring upon the Holder hereof the right to vote or to consent to receive notice as a
stockholder of the Company or any other matters or any rights whatsoever as a stockholder of the
Company. No dividends or interest shall be payable or accrued in respect of this Warrant or the
interest represented hereby or the shares purchasable hereunder until, and only to the extent that,
this Warrant shall have been exercised.



     6. Fundamental Transaction. If, at any time while this Warrant is outstanding, (A) the
Company effects any merger or consolidation of the Company with or into another entity or person,
(B) the Company effects any sale of all or substantially all of its assets (including but not
limited to an exclusive license of all or substantially all of the intellectual property of the
Company) in one or a series of related transactions, (C) any tender offer or exchange offer
(whether by the Company or another entity) is completed pursuant to which holders of Common Stock
are permitted to tender or exchange their shares for other securities, cash or property, or (D) the
Company effects any reclassification of the Common Stock or any compulsory share exchange pursuant
to which the Common Stock is effectively converted into or exchanged for other securities, cash or
property (in any such case, a “Fundamental Transaction”), then, upon any subsequent
exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that
would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental
Transaction (without regard to any limitations on exercise contained herein), upon exercise of this
Warrant, the number of shares of Common Stock of the successor or acquiring corporation or of the
Company, if it is the surviving corporation, and/or any other consideration (the “New
Consideration”), in each case that the Holder would have received upon or as a result of such
Fundamental Transaction if the Holder had exercised this Warrant immediately prior to such event
(without regard to any limitations on exercise contained herein). For purposes of any such
exercise, the determination of the Exercise Price shall be appropriately adjusted to reflect the
amount of New Consideration issuable in respect of one share of Common Stock in such Fundamental
Transaction, and the Company shall apportion the Exercise Price among the New Consideration in a
reasonable manner reflecting the relative value of any different components of the New
Consideration. If holders of Common Stock are given any choice as to the securities, cash or
property to be received in a Fundamental Transaction, then the Holder shall be given the same
choice as to the New Consideration it receives upon any exercise of this Warrant following such
Fundamental Transaction. To the extent necessary to effectuate the foregoing provisions, any
successor to the Company or surviving entity in such Fundamental Transaction shall issue to the
Holder a new warrant consistent with the foregoing provisions and evidencing the Holder’s right to
exercise such warrant into the New Consideration. The terms of any agreement pursuant to which a
Fundamental Transaction is effected shall include terms requiring any such successor or surviving
entity to comply with the provisions of this Section 6 and insuring that this Warrant (or any such
replacement security) will be similarly adjusted upon any subsequent transaction analogous to a
Fundamental Transaction.



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     7. Warrants Transferable. Subject to compliance with applicable federal and state
securities laws and the transfer restrictions set forth in Sections 3.4, 3.5 and
3.6 of the Agreement under which this Warrant was issued, this Warrant and all rights
hereunder may be transferred, in whole or in part, without charge to the holder hereof (except for
transfer taxes), upon surrender of this Warrant properly endorsed and in compliance with the
provisions of the Agreement. Each taker and holder of this Warrant, by taking or holding the same,
consents and agrees that this Warrant, when endorsed in blank, shall be deemed negotiable, and that
the holder hereof, when this Warrant shall have been so endorsed, may be treated by the Company, at
the Company’s option, and all other persons dealing with this Warrant as the absolute owner hereof
for any purpose and as the person entitled to exercise the rights represented by this Warrant, or
to the transfer hereof on the books of the Company and notice to the contrary notwithstanding; but
until such transfer on such books, the Company may treat the registered owner hereof as the owner
for all purposes.



     8. Lost Warrants. Upon receipt of evidence reasonably satisfactory to the Company of
the loss, theft, destruction, or mutilation of this Warrant and, in the case of any such loss,
theft or destruction, upon receipt of an indemnity reasonably satisfactory to the Company, or in
the case of any such mutilation upon surrender and cancellation of such Warrant, the Company, at
its expense, will make and deliver a new Warrant, of like tenor, in lieu of the lost, stolen,
destroyed or mutilated Warrant.



     9. Modification and Waiver. Any term of this Warrant may be amended and the
observance of any term of this Warrant may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written consent of the Company and the
Holder.



     10. Notices. Except as may be otherwise provided herein, all notices, requests,
waivers and other communications made pursuant to this Warrant shall be made in accordance with
Section 5.6 of the Agreement.



     11. Governing Law; Jury Trial Waiver. This Warrant is to be construed in accordance
with and governed by the laws of the State of Delaware. THE HOLDER AND THE COMPANY HEREBY
KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
WARRANT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE HOLDER’S ACQUISITION OF THIS WARRANT.



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



	 	 	 	 	 
	 	VIA PHARMACEUTICALS, INC.

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



[Signature page to Warrant for BCC Co-Investment Fund]




7









 








SCHEDULE I



Warrant Shares subject to Warrant issued to Bay City Capital Fund IV Co-Investment Fund, L.P.




March 12, 2009 Drawdown




Warrant Shares Immediately Exercisable: 175,833



Warrant Shares Exercisable After April 26, 2009 (if no Financing is completed prior to such date):
175,833




 









 








FORM OF SUBSCRIPTION




(To be signed only upon exercise of Warrant)




To: VIA Pharmaceuticals, Inc.





     The undersigned, the holder of a right to purchase shares of Common Stock of VIA
Pharmaceuticals, Inc., a Delaware corporation (the “Company”), pursuant to that certain Warrant to
Purchase Common Stock of VIA Pharmaceuticals, Inc. (the “Warrant”), dated as of March 12, 2009,
hereby irrevocably elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder,                                          (                    ) shares of Common Stock of the Company
and herewith makes payment of                                          Dollars ($                    ) therefor by the
following method:


(Check one of the following):




	 	 	 
	o (check if applicable)

	 	The undersigned hereby elects to make payment of
                     Dollars ($                    ) therefor in cash.
	 
	 	 
	o (check if applicable)

	 	The undersigned hereby elects to make payment for the aggregate
exercise price of this exercise using the Net Issuance method pursuant to Section 2 of the
Warrant.






     The undersigned represents that it is acquiring such securities for its own account for
investment and not with a view to or for sale in connection with any distribution thereof and in
order to induce the issuance of such securities makes to the Company, as of the date hereof, the
representations and warranties set forth in Section 3 of the Note and Warrant Purchase
Agreement, dated as of March 12, 2009, by and among the Company and the investors set forth on
Schedule A thereto.



DATED: ________________




	 	 	 	 	 
	 	[                                                            ]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Its: 	 	 



 









 






	 	 	 	 	 



ACKNOWLEDGMENT



To: Bay City Capital Fund IV Co-Investment Fund, L.P.





     The undersigned hereby acknowledges that as of the date hereof,                                         
(                    ) shares of Common Stock remain subject to the right of purchase in favor of Bay City
Capital Fund IV Co-Investment Fund, L.P. pursuant to that certain Warrant to Purchase Common Stock
of VIA Pharmaceuticals, Inc., dated as of March ___, 2009.



DATED: ________________




	 	 	 	 	 
	 	VIA PHARMACEUTICALS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: