exv4w3






Exhibit 4.3




SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT




     THIS SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”),
dated as of March 12, 2009, 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 Amended and Restated Registration
Rights Agreement, dated as of June 5, 2007 (the “Prior 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 a Note and
Warrant Purchase Agreement (the “Purchase Agreement”) and Promissory Notes (the
“Promissory Notes”), each dated the date hereof, and as an inducement and partial
consideration for such Stockholders entering into such Purchase Agreement and Promissory Notes, the
Company is issuing to such Stockholders Warrants to Purchase Common Stock of VIA Pharmaceuticals,
Inc. (collectively, the “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
83,333,333 shares of Common Stock on the terms and conditions set forth in the Warrants;



     WHEREAS, in accordance with the terms of the Purchase Agreement and the Warrants, the Company
desires to grant certain registration rights to the Stockholders party to the Warrants with respect
to the shares of Common Stock underlying the Warrants;



     WHEREAS, the provisions of the Prior 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 Securities (as defined in the Prior Registration Rights Agreement); and



     WHEREAS, the Company and the Stockholders of at least a majority of the Registrable Securities
(as defined in the Prior Registration Rights Agreement) desire to amend and restate the Prior
Registration Rights Agreement in its entirety to provide for such registration rights to the
Stockholders party to the 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 Agreement hereby agree as follows:



 









 





     1. Certain Definitions.



     In addition to the terms defined elsewhere in this Agreement, the following terms shall have
the following meanings:



     “Affiliate” of any Person means any other Person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common control with, such
Person. The term “control” (including the terms “controlling,” “controlled by” and “under common
control with”) as used with respect to any Person means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.



     “Agreement” means this Second Amended and Restated Registration Rights Agreement,
including all amendments, modifications and supplements and any exhibits or schedules to any of the
foregoing, and shall refer to this Second Amended and Restated Registration Rights Agreement as the
same may be in effect at the time such reference becomes operative.



     “Business Day” means any day, except a Saturday, Sunday or legal holiday on which
banking institutions in the city of San Francisco, California are authorized or obligated by law or
executive order to close.



     “Common Stock” means the common stock, par value $0.001 per share, of the Company.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor
federal statute, and the rule and regulations of the SEC thereunder, as the same shall be in effect
from time to time.



     “FINRA” means the Financial Industry Regulatory Authority.



     “Person” means any individual, sole proprietorship, partnership, limited liability
company, joint venture, trust, unincorporated organization, association, corporation, institution,
public benefit corporation, governmental entity or any department, agency or political subdivision
thereof.



     “Prospectus” means the prospectus or prospectuses forming a part of, or deemed to form
a part of, or included in, or deemed included in, any Registration Statement, as amended or
supplemented by any prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Common Stock covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and all material
incorporated by reference in such prospectus or prospectuses.



     “Registrable Common Stock” means at any time, any of the following owned by any equity
holder of the Company party to this Agreement: (i) Common Stock or other equity securities of the
Company in which the Common Stock then outstanding shall be reclassified or changed, including by
reason of a merger, consolidation, reorganization, recapitalization or statutory conversion; (ii)
Common Stock issuable upon exercise of the Warrant; and (iii) any equity securities of the Company
then outstanding which were issued as, or were issued directly



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or indirectly upon the conversion, exchange or exercise of other equity securities issued or
issuable as a dividend, stock split or other distribution with respect or in replacement of any
equity securities referred to in (i) or (ii) of this definition; provided, however, that
Registrable Common Stock shall not include any shares of Common Stock (A) which have previously
been registered or which have been sold to the public either pursuant to a registration statement
or Rule 144, or (B) which, in the opinion of counsel to the Company, are eligible for resale by the
Stockholder under Rule 144 without volume or manner-of-sale restrictions.



     “Registration Statement” means any registration statement of the Company that covers
any of the Registrable Common Stock pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such Registration Statement, including post-effective
amendments, all exhibits and all materials incorporated by reference in such Registration
Statement.



     “Rule 144” means Rule 144 promulgated by the SEC pursuant to the Securities Act, as
such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the SEC as a replacement thereto having substantially the same effect as such rule.



     “Rule 415” means Rule 415 promulgated by the SEC pursuant to the Securities Act, as
such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the SEC as a replacement thereto having substantially the same effect as such rule.



     “SEC” means the Securities and Exchange Commission.



     “Securities Act” means the Securities Act of 1933, as amended, or any successor
federal statute, and the rule and regulations of the SEC thereunder, as the same shall be in effect
from time to time.



     “underwritten registration or underwritten offering” means an offering in which
securities of the Company are sold to one or more underwriters (as defined in Section 2(a)(11) of
the Securities Act) for resale to the public.



     2. Demand Registrations.



     (a) Requests for Registration. Subject to the terms of this Agreement, at any time
beginning after the date hereof, the Stockholders may request registration under the Securities Act
of all or part of their then outstanding Registrable Common Stock and upon request, the Company
shall use its reasonable best efforts to promptly file a registration statement on Form S-1 or any
similar long-form registration (“Long-Form Registration”) or, if available, on Form S-3 or
any similar short-form registration statement (“Short-Form Registration”). All
registrations requested pursuant to Section 2 are referred herein as “Demand
Registrations.” Each request for a Demand Registration shall specify the number of Registrable
Common Stock requested to be registered. Demand Registrations shall be underwritten registrations
if so requested and the selling Stockholders shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such underwritten registrations by
the Company (subject to the approval of the Stockholders of a majority of the Registrable Common Stock requesting the
Demand Registration, which approval shall not be unreasonably withheld or delayed).



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Within 10 days after receipt of any written request pursuant to this Section 2, the Company will give
written notice of such request to all other Stockholders of Registrable Common Stock and will use
its reasonable best efforts to include in such registration all Registrable Common Stock with
respect to which the Company has received written requests for inclusion within 20 days after
delivery of the Company’s notice.



     (b) Long-Form Registrations. The Stockholders of at least a majority of the
Registrable Common Stock then outstanding will be entitled to request an unlimited number of
Long-Form Registrations; provided, however, that with respect to any requests under this
Section 2(b), (i) the anticipated aggregate offering amount of the Registrable Common Stock
covered by such registration exceeds $1,000,000 (net of underwriting discounts and commissions) and
(ii) the Company is not eligible at the time of the request to file a Short-Form Registration that
would register the amount of Registrable Common Stock included in such request. The Company shall
not be obligated to effect, or to take any action to effect, any Long-Form Registration during the
period starting with the date 90 days prior to the Company’s good faith estimate of the date of
filing of, and ending on a date 180 days after the effective date of, a registration subject to
Section 4 hereof.



     (c) Short-Form Registrations. In addition to the Long-Form Registrations provided
pursuant to Section 2(b) above, the Stockholders of at least 25% of the Registrable Common
Stock then outstanding will be entitled to request an unlimited number of Short-Form Registrations;
provided, however, that with respect to any requests under this Section 2(c), (i) the
Company is eligible to register securities issued by it on a Short-Form Registration and (ii) the
anticipated aggregate offering amount of the Registrable Common Stock covered by such registration
exceeds $1,000,000 (net of underwriting discounts and commissions). Demand Registrations will be
Short-Form Registrations whenever the Company is permitted to use any applicable short-form that
would register the amount of Registrable Common Stock included in such request. If a Short-Form
Registration is to be an underwritten offering, and if the underwriters for marketing or other
reasons request the inclusion in the Registration Statement of information which is not required
under the Securities Act to be included in a registration statement on the applicable form for the
Short-Form Registration, the Company will provide such information as may be reasonably requested
for inclusion by the underwriters in the Short-Form Registration.



     (d) Priority on Demand Registrations. If a Demand Registration is an underwritten
offering and the managing underwriters advise the Company in writing that in their opinion the
inclusion of the number of Registrable Common Stock and other securities requested to be included
exceeds the number of securities which can be sold in the offering without adversely affecting the
marketability of such offering, then the managing underwriter may exclude securities (including
Registrable Common Stock) from the registration and the underwriting and the number of securities
that may be included in such registration and underwriting shall include first, the
Registrable Common Stock requested to be included in such registration, pro rata among the
Stockholders on the basis of the total number of Registrable Common Stock owned by each such
Stockholder and second, other equity securities requested to be included in such
registration to be allocated pro rata among the holders thereof on the basis of the number of
such equity securities owned by each such holder.



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     (e) Restrictions on Demand Registrations. The Company will not be obligated to effect
(i) any Long-Form Registration within 180 days after the effective date of a previous Long-Form
Registration or within 90 days after the effective date of a previous Short-Form Registration and
(ii) any Short-Form Registration within 90 days after the effective date of a previous Short-Form
Registration or Long-Form Registration. With respect to any Demand Registration, if (i) the Board
of Directors of the Company reasonably and in good faith determines that such filing would be
seriously detrimental to the Company or its stockholders, or would require a disclosure of a
material fact that might reasonably be expected to have a material adverse effect on the Company or
any plan or proposal by the Company or any of its subsidiaries to engage in any acquisition or
disposition of assets or equity securities (other than in the ordinary course of business) or any
merger, consolidation, tender offer, material financing or other significant transaction and (ii)
the Company shall furnish the Stockholders who have requested a Demand Registration a certificate
signed by an executive officer of the Company to such effect, the Company may postpone for up to 90
days the filing or the effectiveness of a Registration Statement for a Demand Registration;
provided, however, that such 90 day time period may be extended to 120 days with the consent of the
Stockholders holding at least a majority of the Registrable Common Stock then outstanding; and
provided, further, that the Company may not postpone the filing or effectiveness of a Registration
Statement for a Demand Registration for more than 90 days (or 120 days if extended as provided
above) during any 12-month period.



     3. Shelf Registrations.



     (a) Right to Shelf Registration. Subject to the terms of this Agreement, the
Stockholders of at least a majority of the Registrable Common Stock then outstanding shall be
entitled to make a request for a Demand Registration, pursuant to which the Company files a shelf
registration statement with respect to all or part of their Registrable Common Stock pursuant to
Rule 415, on either Form S-1 or Form S-3 (including the Prospectus, amendments and supplements to
the shelf registration statement or Prospectus, including pre- and post-effective amendments, all
exhibits thereto and all material incorporated by reference or deemed to be incorporated by
reference, if any, in such shelf registration statement, the “Shelf Registration
Statement”). The Company shall use its reasonable best efforts to cause the Shelf Registration
Statement to be declared effective by the SEC as soon as practicable after such filing, and shall
use its reasonable best efforts to keep the Shelf Registration Statement effective and updated,
from the date such Shelf Registration Statement is declared effective until the earliest to occur
of (i) such time as the Stockholder requesting the Shelf Registration Statement has sold all of its
Registrable Securities registered pursuant to the Shelf Registration Statement, and (ii) a period
of three years in the aggregate plus the duration of any Blackout Period. Notwithstanding anything
contained herein to the contrary, in the event that the SEC limits the amount of Registrable Common
Stock that may be included and sold by Stockholders in the Shelf Registration Statement pursuant to
Rule 415, or any other basis, the Company may reduce the number of Registrable Common Stock
included in the Shelf Registration Statement on behalf of the Stockholders (in case of an exclusion
as to a portion of such Registrable Common Stock, such portion to be allocated pro rata among the Stockholders on the basis of the total number of
Registrable Common Stock owned by each such Stockholder). The Company will then use its reasonable
best efforts at the first opportunity that is permitted by the SEC, but in no event later than 180
days from the date the Shelf Registration Statement was declared effective, to register the
Registrable Common Stock that have been excluded from being registered.



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     (b) Restrictions on Shelf Registrations. With respect to any Shelf Registration
Statement, if (i) the Board of Directors of the Company reasonably and in good faith determines
that such filing would be seriously detrimental to the Company or its stockholders, or require a
disclosure of a material fact that might reasonably be expected to have a material adverse effect
on the Company or any plan or proposal by the Company or any of its subsidiaries to engage in any
acquisition or disposition of assets or equity securities (other than in the ordinary course of
business) or any merger, consolidation, tender offer, material financing or other significant
transaction and (ii) the Company shall furnish the Stockholders who have requested a Shelf
Registration a certificate signed by an executive officer of the Company to such effect, the
Company may postpone for up to 90 days the filing or the effectiveness of a Registration Statement
for a Shelf Registration; provided, however, that such 90 day time period may be extended to 120
days with the consent of the Stockholders holding at least a majority of the Registrable Common
Stock then outstanding; and provided, further, that the Company may not postpone the filing or
effectiveness of a Registration Statement for a Shelf Registration for more than 90 days (or 120
days if extended as provided above) during any 12-month period.



     4. Piggyback Registrations.



     (a) Right to Piggyback. Whenever the Company proposes to register for sale any of its
equity securities (or securities that are convertible into equity securities) pursuant to a
registration statement (a “Piggyback Registration Statement”) under the Securities Act
(other than a registration statement on Form S-8 or on Form S-4 or any similar successor forms
thereto), whether for its own account or otherwise (a “Piggyback Registration”), the
Company shall give prompt written notice to the Stockholders of its intention to effect such
registration and, subject to Section 4(b) and Section 4(c), will use reasonable
best efforts to include in such transaction all Registrable Common Stock with respect to which the
Company has received written requests for inclusion specifying the number of equity securities
desired to be registered, which request shall be delivered within 20 days after the delivery of the
Company’s notice; provided, however, that with respect to any Piggyback Registration, the
Stockholders of a majority of Registrable Common Stock shall have the right to waive and forego, as
against themselves and all other Stockholders of Registrable Common Stock, the right to include any
Registrable Common Stock in such Piggyback Registration. The Company may postpone or withdraw the
filing or the effectiveness of a Piggyback Registration at any time in its sole discretion.



     (b) Priority on Primary Registrations. If a Piggyback Registration is initiated as an
underwritten primary registration on behalf of the Company where the primary use of proceeds does
not include the repurchase,
redemption, acquisition or retirement of capital stock of the Company (a “Stock
Repurchase”), and the managing underwriter advises the Company in writing that in its opinion
the number of securities requested to be included in such registration exceeds the number that can
be sold in such offering without having an adverse effect on such offering, including the price at
which such securities can be sold, then the Company shall include in such registration the maximum
number of shares that such underwriter advises can be so sold



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without having such effect, allocated (i) first, to the securities the Company proposes to sell, (ii) second, to the Registrable Common
Stock requested to be included in such registration by the Stockholders, pro rata among the
Stockholders on the basis of the total number of Registrable Common Stock owned by each such
Stockholder and (iii) third, among other equity securities requested to be included in such
registration by other stockholders of the Company to be allocated pro rata among the holders
thereof on the basis of the number of such equity securities owned by each such holder.



     (c) Priority on Secondary Registrations. If a Piggyback Registration is initiated as an
underwritten secondary registration on behalf of holders of the Company’s securities (other than
Registrable Common Stock) or on behalf of the Company where the use of proceeds includes a Stock
Repurchase, and the managing underwriter advises the Company in writing that in its opinion the
number of securities requested to be included in such registration exceeds the number that can be
sold in such offering without having an adverse effect on such offering, including the price at
which such securities can be sold, then the Company shall include in such registration the maximum
number of shares that such underwriter advises can be so sold without having such effect, allocated
(i) first, to the securities requested to be included therein by the holders of such securities,
pro rata among such holders and the Company on the basis of the number of securities owned by each
such holder and the Company and (ii) second, to the Registrable Common Stock requested to be
included in such registration by the Stockholders, pro rata among the Stockholders on the basis of
the total number of Registrable Common Stock owned by each such Stockholder.



     (d) Selection of Underwriters. In connection with any Piggyback Registration that is
an underwritten registration, the Company will have the right to select the managing underwriters
of such underwritten offering.



     5. Other Registrations.



     The Company shall not grant to any Person the right, other than as set forth herein and except
to employees of the Company with respect to registrations on Form S-8 or on Form S-4 (or any
successor forms thereto), to request the Company to register any securities of the Company except
such rights as are not more favorable than the rights granted to the Stockholders hereunder.



     6. Holdback Agreements.



     Each Stockholder of Registrable Common Stock whose Registrable Common Stock is included in a
Piggyback Registration Statement pursuant to Section 4 hereof and the Company agree not to,
and the Company shall use its reasonable best efforts to obtain agreements (in the underwriters’
customary form) from its directors, executive officers and beneficial owners of 5%
or more of the Company’s outstanding voting stock not to, directly or indirectly offer, sell,
pledge, contract to sell, (including any short sale), grant any option to purchase or otherwise
dispose of any equity securities of the Company or enter into any hedging transaction relating to
any equity securities of the Company during the shorter of 90 days or such period of time advised
by the underwriters (plus a 17 day extension period, if required by the underwriter(s) to



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comply with FINRA conduct rules regarding research), beginning on the effective date of any underwritten
Piggyback Registration Statement or the pricing date of any underwritten offering pursuant to any
Registration Statement (except as part of such underwritten offering or pursuant to registrations
on Form S-8 or S-4 or any successor forms thereto).



     7. Registration Procedures.



     (a) Whenever the Stockholders have requested that any Registrable Common Stock be registered
pursuant to this Agreement, the Company will use its reasonable best efforts to effect the
registration and sale of such Registrable Common Stock in accordance with the intended method of
disposition thereof and, pursuant thereto, the Company will as expeditiously as possible:




     (i) prepare and, as soon as practicable after the end of the period within
which requests for registration may be given to the Company, file with the SEC a
Registration Statement with respect to such Registrable Common Stock and use its
reasonable best efforts to cause such Registration Statement to become effective as
soon as practicable thereafter; and before filing a Registration Statement or
Prospectus or any amendments or supplements thereto (including any prospectus
supplement for a shelf takedown), will furnish copies of all such documents proposed
to be filed to one counsel designated by the Stockholders of a majority of the
Registrable Common Stock covered by such Registration Statement;




     (ii) prepare and file with the SEC such amendments and supplements to such
Registration Statement and the Prospectus used in connection therewith as may be
necessary to keep such Registration Statement effective for an aggregate of three
years, in the case of a Shelf Registration Statement (plus, the duration of any
Blackout Period), or such shorter period as is necessary to complete the
distribution of the securities covered by such Registration Statement and comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during such period in accordance
with the intended methods of disposition by the Stockholders thereof set forth in
such Registration Statement and, in the case of the Shelf Registration Statement,
prepare such prospectus supplements containing such disclosures as may be reasonably
requested by the Stockholders in connection with each shelf takedown;




     (iii) furnish to each selling Stockholder such number of copies of such
Registration Statement, each amendment and supplement thereto, each Prospectus
(including each preliminary Prospectus and Prospectus supplement) and such
other documents as the selling Stockholder may reasonably request in order to
facilitate the disposition of the Registrable Common Stock, provided,
however, that the Company shall have no such obligation to furnish copies of
a final prospectus if the conditions of Rule 172(c) under the Securities Act are
satisfied by the Company;



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     (iv) use its reasonable best efforts to register or qualify such Registrable
Common Stock under such other securities or blue sky laws of such jurisdictions
(domestic or foreign) as each selling Stockholder reasonably requests and do any and
all other acts and things that may be reasonably necessary or advisable to enable
each selling Stockholder to consummate the disposition in such jurisdictions of the
Registrable Common Stock (provided, that the Company will not be required to (1)
qualify generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 7(a)(iv), (2) subject itself to
taxation in any such jurisdiction or (3) consent to general service of process in
any such jurisdiction);




     (v) notify each selling Stockholder, at any time when a Prospectus relating
thereto is required to be delivered under the Securities Act, of the occurrence of
any event as a result of which any Prospectus contains an untrue statement of a
material fact or omits any material fact necessary to make the statements therein
not misleading, and, at the request of any such selling Stockholder, the Company
shall prepare a supplement or amendment to such Prospectus so that, as thereafter
supplemented and/or amended, such Prospectus shall not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein not misleading;




     (vi) in the case of an underwritten offering, (i) enter into such agreements
(including underwriting agreements in customary form) and (ii) take all such other
actions as the Stockholders of a majority of the Registrable Common Stock being sold
or the underwriters, if any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Common Stock;




     (vii) make available for inspection by any selling Stockholder, any underwriter
participating in any disposition pursuant to a Registration Statement, and any
attorney, accountant or other agent retained by the Stockholder or underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company, and cause the Company’s officers, directors, employees and independent
accountants to supply all information reasonably requested by any such selling
Stockholder, underwriter, attorney, accountant or agent in connection with such
Registration Statement; provided, however, that any records, information or
documents that are furnished by the Company and that are non-public shall be used
only in connection with such registration and shall be kept strictly confidential by
any selling Stockholder of Registrable Common Stock except to the extent disclosure
of such records, information or documents is required by written order of a court or other governmental authority having
jurisdiction;




     (viii) use its reasonable best efforts to cause all such Registrable Common
Stock to be listed on each securities exchange on which securities of the same class
issued by the Company are then listed;



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     (ix) provide a transfer agent and registrar for all such Registrable Common
Stock not later than the effective date of such Registration Statement;




     (x) if requested, use its reasonable best efforts to cause to be delivered,
immediately prior to the pricing of any underwritten offering, immediately prior to
effectiveness of each Registration Statement (and, in the case of an underwritten
offering, at the time of closing of the sale of Registrable Common Stock pursuant
thereto), letters from the Company’s independent registered public accountants
addressed to the selling Stockholders and each underwriter, if any, stating that
such accountants are independent public accountants within the meaning of the
Securities Act and the applicable rules and regulations adopted by the SEC
thereunder, and otherwise in customary form and covering such financial and
accounting matters as are customarily covered by letters of the independent
registered public accountants delivered in connection with primary underwritten
public offerings;




     (xi) make generally available to its stockholders a consolidated earnings
statement (which need not be audited) for the 12 months beginning after the
effective date of a Registration Statement as soon as reasonably practicable after
the end of such period, which earnings statement shall satisfy the requirements of
an earning statement under Section 11(a) of the Securities Act;




     (xii) make senior executives of the Company reasonably available to assist the
underwriter(s) with respect to, and accompany the underwriter(s) on, the so-called
“road show” in connection with the marketing efforts for, and the distribution and
sale of Registrable Common Stock pursuant to a Registration Statement; and




     (xiii) notify each selling Stockholder and the underwriter(s), if any:




(1) when the Registration Statement, any pre-effective amendment, the
Prospectus or any Prospectus supplement or post-effective amendment
to the Registration Statement has been filed and, with respect to the
Registration Statement or any post-effective amendment, when the same
has become effective;




(2) of the notification to the Company by the SEC of its initiation
of any proceeding with respect to the issuance by the SEC of any stop
order suspending the effectiveness of the Registration Statement; and




(3) of the receipt by the Company of any notification with respect to
the suspension of the qualification of any Registrable Common Stock
for sale under the applicable securities or blue sky laws of any
jurisdiction.



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     (b) The Company shall make available to each selling Stockholder, upon request, (i) one copy
of each Registration Statement and any amendment thereto, each preliminary Prospectus and
Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the
Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or
other body having jurisdiction, including any domestic or foreign securities exchange), and each
item of correspondence from the SEC or the staff of the SEC (or other governmental agency or
self-regulatory body or other body having jurisdiction, including any domestic or foreign
securities exchange), in each case relating to such Registration Statement or to any of the
documents incorporated by reference therein, and (ii) such number of copies of each Prospectus,
including a preliminary Prospectus, and all amendments and supplements thereto and such other
documents as the selling Stockholder or any underwriter may reasonably require in order to
facilitate the disposition of the Registrable Common Stock. The Company will notify each selling
Stockholder of the effectiveness of each Registration Statement or any post-effective amendment or
the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus
supplement. The Company will respond to any and all comments received from the SEC, with a view
towards causing each Registration Statement or any amendment thereto to be declared effective by
the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as
practicable following the resolution or clearance of all SEC comments or, if applicable, following
notification by the SEC that any such Registration Statement or any amendment thereto will not be
subject to review.



     (d) The Company may require each selling Stockholder to furnish to the Company any other
information regarding the Stockholder and the distribution of such securities as the Company
reasonably determines, based on the advice of counsel, is required to be included in any
Registration Statement.



     (e) The Stockholders agree that, upon notice from the Company of the happening of any event as
a result of which the Prospectus included (or deemed included) in such Registration Statement
contains an untrue statement of a material fact or omits any material fact necessary to make the
statements therein not misleading (a “Suspension Notice”), the Stockholders will forthwith
discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a
reasonable length of time not to exceed 20 days until the Stockholders are advised in writing by
the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or
amended Prospectus as contemplated by Section 9(a) hereof; provided, however, that such
postponement of sales of Registrable Common Stock by the Stockholders shall not exceed 60 days in
the aggregate in any 12 month period. If the Company shall give the Stockholders any Suspension
Notice, the Company shall extend the period of time during which the Company is required to
maintain the applicable Registration Statements effective pursuant to this Agreement by the number
of days during the period from and including the date of the giving of such Suspension Notice to
and including the date the Stockholders either are advised by the Company that the use of the
Prospectus may be resumed or receive the copies of the supplemented or amended Prospectus contemplated by Section 7(a) (a
“Blackout Period”). In any event, the Company shall not be entitled to deliver more than a
total of three Suspension Notices in any 12 month period.



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     8. Registration Expenses.



     (a) All expenses incident to the Company’s performance of or compliance with this Agreement,
including, without limitation, all registration and filing fees (including SEC registration fees
and FINRA filing fees), fees and expenses of compliance with securities or blue sky laws, listing
application fees, printing expenses, transfer agent’s and registrar’s fees, cost of distributing
Prospectuses in preliminary and final form as well as any supplements thereto, and fees and
disbursements of counsel for the Company and all accountants and other Persons retained by the
Company (all such expenses being herein called “Registration Expenses”) (but not including
any underwriting discounts or commissions or transfer taxes, if any, attributable to the sale of
Registrable Common Stock), shall be borne by the Company. In addition, the Company shall pay its
internal expenses (including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual audit or quarterly
review, the expense of any liability insurance and the expenses and fees for listing the securities
to be registered on each securities exchange on which they are to be listed.



     (b) In connection with each registration initiated hereunder (whether a Demand Registration,
Shelf Registration Statement or a Piggyback Registration), the Company shall pay, or shall
reimburse the Stockholders for, the reasonable fees and disbursements of one law firm chosen by the
Stockholders of a majority of the Registrable Common Stock included in such registration (to
represent all of the Stockholders of Registrable Common Stock included in any registration) as its
counsel in connection with each Registration Statement and sale of Registrable Common Stock
pursuant thereto; provided, however, that such reimbursement shall not exceed $50,000.



     (c) The obligation of the Company to bear the expenses described in Section 8(a) and
to pay or reimburse the Stockholders for the expenses described in Section 8(b) shall apply
irrespective of whether a registration, once properly requested becomes effective, is withdrawn or
suspended, is converted to another form of registration and irrespective of when any of the
foregoing shall occur or whether any sales of Registrable Common Stock ultimately take place.



     9. Indemnification.



     (a) The Company shall indemnify, to the fullest extent permitted by law, each Stockholder and
its officers, directors, employees and Affiliates and each Person who controls such Stockholder
(within the meaning of the Securities Act) against all losses, claims, damages, liabilities and
expenses arising out of or based upon any untrue or alleged untrue statement of material fact
contained in any Registration Statement, Prospectus, preliminary Prospectus or any “issuer free
writing prospectus” (as defined in Rule 433 under the Securities Act) or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading or any violation or alleged
violation by the Company of the Securities Act, the Exchange Act or applicable “blue sky” laws,
except insofar as the same are made in reliance and in conformity with information relating to each Stockholder furnished in writing to the Company by the
Stockholder expressly for use therein. In connection with an underwritten offering, the Company
shall indemnify such underwriter(s), their officers, employees and directors and each
Person who controls such underwriter(s) (within the meaning of the Securities Act) at least to the same extent
as provided above with respect to the indemnification of each Stockholder.



12









 





     (b) In connection with any Registration Statement in which a Stockholder is participating,
each Stockholder shall furnish to the Company in writing such information as the Company reasonably
determines, based on the advice of counsel, is required to be included in any such Registration
Statement or Prospectus and, each Stockholder agrees severally and not jointly to indemnify, to the
fullest extent permitted by law, the Company, its officers, employees, directors, Affiliates, and
each Person who controls the Company (within the meaning of the Securities Act) against all losses,
claims, damages, liabilities and expenses arising out of or based upon any untrue or alleged untrue
statement of material fact contained in the Registration Statement, Prospectus or preliminary
Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that the same are made in reliance and in conformity with
information relating to each Stockholder furnished in writing to the Company by the Stockholder
expressly for use therein and the liability of each such Stockholder shall not be greater than the
amount of gross proceeds received by such Stockholder upon such sale.



     (c) Any Person entitled to indemnification hereunder shall (i) give prompt written notice to
the indemnifying party of any claim with respect to which it seeks indemnification and (ii) unless
in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume
the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such
defense is assumed, the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent will not be unreasonably
withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a
claim shall not be obligated to pay the fees and expenses of more than one counsel (in addition to
any local counsel) for all parties indemnified by such indemnifying party with respect to such
claim, unless in the reasonable judgment of any indemnified party there may be one or more legal or
equitable defenses available to such indemnified party that are in addition to or may conflict with
those available to another indemnified party with respect to such claim. Failure to give prompt
written notice shall not release the indemnifying party from its obligations hereunder.



     (d) The indemnification provided for under this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified party or any
officer, director or controlling Person of such indemnified party and shall survive the transfer of
securities.



     (e) If the indemnification provided for in or pursuant to this Section 9 is due in
accordance with the terms hereof, but is held by a court to be unavailable or unenforceable in
respect of any losses, claims, damages, liabilities or expenses referred to herein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified Person as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of



13









 







the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that result in such losses, claims, damages,
liabilities or expenses as well as any other relevant equitable considerations. The relative fault
of the indemnifying party on the one hand and of the indemnified Person on the other shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party, and by such party’s relative
intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission. In no event shall the liability of each such Stockholder be greater in amount than the
amount of gross proceeds received by such Stockholder upon such sale.



     10. Rule 144.



     The Company agrees to use its reasonable best efforts to file with the SEC in a timely manner
all reports and other documents required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder, and it will take such
further action as the Stockholder may reasonably request to make available adequate current public
information with respect to the Company meeting the current public information requirements of Rule
144 to the extent required to enable each Stockholder to sell Registrable Common Stock without
registration under the Securities Act within the limitation of the exemptions provided by (i) Rule
144 as such Rule may be amended from time to time, or (ii) any similar rule or regulation hereafter
adopted by the SEC. Upon the request of a Stockholder, the Company will deliver to such
Stockholder a written statement as to whether it has complied with such information and
requirements.



     11. Transfer of Registration Rights.



     (a) Each Stockholder may transfer all or any portion of its then remaining rights under this
Agreement to any Person (each, a “transferee”). Any transfer of registration rights
pursuant to this Section 11 shall be effective upon receipt by the Company of (i) written
notice from each such Stockholder stating the name and address of any transferee and identifying
the amount of Registrable Common Stock with respect to which the rights under this Agreement are
being transferred and the nature of the rights so transferred and (ii) a written agreement from the
transferee to be bound by all of the terms of this Agreement. In connection with any such
transfer, the term “Stockholder” as used in this Agreement shall, where appropriate to assign such
rights to such transferee, be deemed to refer to the transferee holder of such Registrable Common
Stock. The Stockholders and such transferees may exercise the registration rights hereunder in
such proportion (not to exceed the then remaining rights hereunder) as they shall agree among
themselves.



     (b) After such transfer, such Stockholder shall retain its rights under this Agreement with
respect to all other Registrable Common Stock owned by the Stockholder.



14









 





     12. Termination.



     No Stockholder of Registrable Common Stock shall be entitled to exercise any registration
rights provided in this Agreement after the earlier of (i) March 12, 2014, or (ii) such time as
Rule 144 is available for the sale of all of such Stockholder’s shares of Common Stock without
volume or manner-of-sale restrictions.



     13. Miscellaneous.



     (a) Notices. All notices, requests, consents and other communications required or
permitted hereunder shall be in writing and shall be hand delivered, via facsimile transmission
(with confirmation) or mailed postage prepaid by registered or certified mail (return receipt
requested) to the following addresses, or such other address as any party hereto designates by
written notice to the Company, and shall be deemed to have been given upon delivery, if delivered
by hand or via facsimile, or three Business Days after mailing, if mailed:



          To the Company:



VIA Pharmaceuticals, Inc.

750 Battery Street, Suite 330

San Francisco, CA 94111

Attn: James G. Stewart

Facsimile No.: 415-283-2201




          with a copy to (which shall not constitute notice):



Latham & Watkins LLP

Sears Tower, Suite 5800

233 South Wacker Drive

Chicago, IL 60606

Attention: Michael Pucker

Facsimile No.: 312-993-9767




          To any Stockholder of Registrable Common Stock:





to the address of such Stockholder as the same appears
on Exhibit A hereto (with copies to any parties identified
thereon) or, otherwise on the books and records of the Company.



     (b) No Waivers. No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.



15









 





     (c) Amendments and Waivers. Except as otherwise provided in this Agreement, the
provisions of this Agreement may be amended or waived at any time only by the written agreement of
the Company and the Stockholders of at least a majority of the Registrable Common Stock; provided,
however, that the provisions of this Agreement may not be amended or waived without the consent of
a Stockholder if such amendment or waiver disproportionately and adversely affects such Stockholder
without similarly affecting the rights of all such Stockholders holding Registrable Common Stock.
Any waiver, permit, consent or approval of any kind or character on the part of any such
Stockholders of any provision or conditions of this Agreement must be made in writing and shall be
effective only to the extent specifically set forth in writing. Any amendment or waiver effected
in accordance with this Section 13(c) shall be binding upon each holder of Registrable
Common Stock and the Company.



     (d) Successors and Assigns. Except as otherwise provided in this Agreement, all covenants
and agreements contained in this Agreement by or on behalf of any of the parties hereto will bind
and inure to the benefit of the respective successors and assigns of the parties hereto, whether so
expressed or not.



     (e) Governing Law. This Agreement 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).



     (f) Disputed Matters. Except as otherwise provided in this Agreement, any controversy or
dispute arising out of this Agreement, interpretation of any of the provisions hereof, or the
action of the Stockholder hereunder shall be submitted to arbitration in San Francisco, California
before the American Arbitration Association under the commercial arbitration rules then obtaining
of such Association. Any award or decision obtained from any such arbitration proceeding shall be
final and binding on the parties, and judgment upon any award thus obtained may be entered in any
court having jurisdiction hereof. No action at law or in equity based upon any claim arising out
of or related to this Agreement shall be instituted in any court by the Stockholder except (i) an
action to compel arbitration pursuant to this Section 13(e) or (ii) an action to enforce an
award obtained in an arbitration proceeding in accordance with this Section 13(e), in which
case, the provisions of Section 13(g) and Section 13(h) shall apply. For the
avoidance of doubt, the provisions of Section 13(g) and Section 13(h) shall be
subordinate to and shall only apply in connection with an action at law or in equity based upon
clauses (i) and/or (ii) of the immediately preceding sentence of this Section 13(e).



     (g) Consent to Jurisdiction. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AGREES
THAT ANY SUIT, ACTION, PROCEEDING OR CLAIM AGAINST IT ARISING OUT OF OR IN ANY WAY RELATING TO THIS
AGREEMENT, OR ANY JUDGMENT ENTERED BY ANY COURT IN RESPECT THEREOF, MAY BE BROUGHT OR ENFORCED IN THE
STATE OR FEDERAL COURTS LOCATED IN SAN FRANCISCO, CALIFORNIA, AND EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY PROCEEDING BROUGHT IN SAN FRANCISCO, CALIFORNIA AND FURTHER
IRREVOCABLY WAIVES ANY CLAIMS THAT ANY SUCH PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.



16









 





     (h) Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT, POWER, OR REMEDY
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR UNDER OR IN CONNECTION WITH ANY AMENDMENT,
INSTRUMENT, DOCUMENT, OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREE
THAT ANY SUCH ACTION SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. THESE TERMS AND
PROVISIONS CONSTITUTE A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT.



     (i) Counterparts; Effectiveness. This Agreement 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 Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.



     (j) Entire Agreement. This Agreement, together with all other agreements entered into by
the parties hereto in connection therewith, constitutes the complete and final agreement of the
parties concerning the matters referred to herein, and supersedes all prior agreements and
understandings, including, without limitation, the Prior Registration Rights Agreement.



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



     (l) Severability. If any term, provision, covenant or restriction of this Agreement 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 Agreement 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 Agreement 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.



     (m) Aggregation of Stock. All Registrable Common Stock held by or acquired by any
Affiliate will be aggregated together for the purpose of determining the availability of any rights
under this Agreement.



     (n) Equitable Relief. The parties hereto agree that legal remedies may be inadequate to
enforce the provisions of this Agreement and that equitable relief, including specific performance
and injunctive relief, may be used to enforce the provisions of this Agreement.



[Signature Pages Follow]




17









 








     IN WITNESS WHEREOF, this 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 	 	 
	 



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




18









 








	 	 	 	 	 
	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 	 	 
	 
	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:  	Manager and Managing Director 	 	 



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




19









 








	 	 	 	 	 
	 	 	 
	/s/ Thomas Quertermous
 	 	 
	Thomas Quertermous 	 	 



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




20









 








	 	 	 	 	 
	 	 	 
	/s/ Adeoye Olukotun
 	 	 
	Adeoye Olukotun 	 	 



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




21









 








	 	 	 	 	 
	DOUGLASS AND KIM GIVEN REVOCABLE TRUST

 	 	 
	By:  	/s/ Douglass Given
 	 	 
	 	Douglass Given, not individually, but solely 	 	 
	 	in his capacity as trustee of the Trust 	 	 



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




22









 








	 	 	 	 	 
	 	 	 
	/s/ Lawrence Cohen
 	 	 
	Lawrence Cohen 	 	 



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




23









 








	 	 	 	 	 
	 	 	 
	/s/ Raymond Tabibiazar
 	 	 
	Raymond Tabibiazar 	 	 



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




24









 








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
	 	 	 	 







25