AGREEMENT AND PLAN OF MERGER AND REORGANIZATION

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER AND REORGANIZATION

among:

CORAUTUS GENETICS INC.,

a Delaware corporation;

RESURGENS MERGER CORP.,

a Delaware corporation;

and

VIA PHARMACEUTICALS, INC.,

a Delaware corporation.

Dated as of February 7, 2007

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AGREEMENT AND PLAN OF MERGER AND REORGANIZATION

THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this " Agreement ") is made and entered into as of this 7 ^th day of February, 2007 ( " Execution Date " ), by and among CORAUTUS GENETICS INC., a Delaware corporation (" Corautus "); RESURGENS MERGER CORP., a Delaware corporation and wholly-owned subsidiary of Corautus (" Merger Sub "); and VIA PHARMACEUTICALS, INC. , a Delaware corporation (" VIA "). Certain capitalized terms used in this Agreement are defined in Exhibit A .

RECITALS

A. Corautus and VIA intend to effect a merger of Merger Sub with and into VIA (the " Merger ") in accordance with and subject to the terms of this Agreement and the DGCL. Upon consummation of the Merger, Merger Sub will cease to exist, and VIA will become a wholly-owned subsidiary of Corautus.

B. Corautus, Merger Sub and VIA intend to adopt this Agreement as a plan of reorganization and for the Merger to qualify as a reorganization within the meaning of Section 368(a) of the Code and the Treasury Regulations promulgated thereunder.

C. The Board of Directors of Corautus (i) has determined that the Merger is advisable, fair to, and in the best interests of, Corautus and its stockholders, (ii) has approved this Agreement, the Merger, the issuance of shares of Corautus Common Stock to the stockholders of VIA pursuant to the terms of this Agreement, the Change of Control, the Corautus Charter Amendment, the Corautus Name Change Amendment and the other actions contemplated by this Agreement and has deemed this Agreement advisable, and (iii) has determined to recommend that the stockholders of Corautus vote to approve the issuance of shares of Corautus Common Stock to the stockholders of VIA pursuant to the terms of this Agreement and the Change of Control, and the adoption of the Corautus Charter Amendment, the Corautus Name Change Amendment and such other actions as contemplated by this Agreement.

D. The Board of Directors of Merger Sub (i) has determined that the Merger is advisable and fair to, and in the best interests of, Merger Sub and its sole stockholder, (ii) has approved this Agreement, the Merger and the other actions contemplated by this Agreement and has deemed this Agreement advisable, and (iii) has determined to recommend that Corautus, in its capacity as the sole stockholder of Merger Sub, vote to adopt this Agreement and approve the Merger, and such other actions as contemplated by this Agreement.

E. The Board of Directors of VIA (i) has determined that the Merger is advisable and fair to, and in the best interests of, VIA and its stockholders, (ii) has approved this Agreement, the Merger and the other transactions contemplated by this Agreement, and has deemed this Agreement advisable, and (iii) has determined to recommend that the stockholders of VIA vote to adopt this Agreement and approve the Merger and such other actions as contemplated by this Agreement.

F. In order to induce Corautus to enter into this Agreement and to cause the Merger to be consummated, the stockholders of VIA listed on Schedule 1 hereto are executing voting agreements and irrevocable proxies in favor of Corautus concurrently with the execution and

delivery of this Agreement in the form substantially attached hereto as Exhibit B (the " VIA Stockholder Voting Agreements ").

G. In order to induce VIA to enter into this Agreement and to cause the Merger to be consummated, the stockholders of Corautus listed on Schedule 2 hereto are executing voting agreements and irrevocable proxies in favor of VIA concurrently with the execution and delivery of this Agreement in the form substantially attached hereto as Exhibit C (the " Corautus Stockholder Voting Agreements ").

AGREEMENT

The parties to this Agreement, intending to be legally bound, agree as follows:

Section 1. THE MERGER

1.1 Merger of Merger Sub into VIA . Upon the terms and subject to the conditions set forth in this Agreement and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into VIA, and the separate existence of Merger Sub shall cease. VIA will continue as the surviving corporation following the Merger (the " Surviving Corporation ").

1.2 Effects of the Merger . The Merger shall have the effects set forth in this Agreement and the applicable provisions of the DGCL. As a result of the Merger, VIA will become a wholly-owned subsidiary of Corautus. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the property, rights, privileges, powers and franchises of VIA and Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities and duties of VIA and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation.

1.3 Closing; Effective Time . Unless this Agreement is earlier terminated pursuant to the provisions of Section 9.1 of this Agreement, and subject to the satisfaction or waiver of the conditions set forth in Sections 6 , 7 and 8 of this Agreement, the consummation of the Merger (the "Closing") shall take place at the offices of Latham & Watkins LLP, 233 South Wacker Drive, Chicago, Illinois, as promptly as practicable (but in no event later than the fifth Business Day following the satisfaction or waiver of the last to be satisfied or waived of the conditions set forth in Sections 6 , 7 and 8 , other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of each of such conditions), or at such other time, date and place as Corautus and VIA may mutually agree in writing. The date on which the Closing actually takes place is referred to as the " Closing Date ." At the Closing, subject to the terms and conditions of this Agreement, the parties hereto shall cause the Merger to be consummated by executing and filing with the Secretary of State of the State of Delaware a Certificate of Merger with respect to the Merger, satisfying the applicable requirements of the DGCL and in a form reasonably acceptable to Corautus and VIA. The Merger shall become effective at the time of the filing of such Certificate of Merger with the Secretary of State of the State of Delaware or at such later time as may be specified in such Certificate of Merger as agreed to by the Parties (the time as of which the Merger becomes effective being referred to as the " Effective Time ").

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1.4 Certificate of Incorporation and Bylaws; Directors and Officers . At the Effective Time:

• (a) the Certificate of Incorporation of VIA, as in effect immediately prior to the Effective Time, shall be amended in the Merger to read in its entirety as set forth on Exhibit D hereto and, as so amended, shall be the Certificate of Incorporation of the Surviving Corporation until thereafter amended as provided by the DGCL and such Certificate of Incorporation;

  (b) the Bylaws of VIA, as in effect immediately prior to the Effective Time, shall be the Bylaws of the Surviving Corporation, until thereafter amended as provided by the DGCL and such Bylaws; and

  (c) the directors of VIA immediately prior to the Effective Time shall be the initial directors of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation; and

  (d) the officers of VIA immediately prior to the Effective Time shall be the initial officers of the Surviving Corporation, in each case until their respective successors are duly elected or appointed and qualified, or until their earlier death, resignation or removal.

1.5 Reverse Split of Corautus Common Stock; Conversion of Corautus Preferred Stock .

• (a) Immediately prior to the Effective Time, and subject to receipt of the requisite stockholder approval at the Corautus Stockholder Meeting, Corautus shall cause to be filed a Certificate of Amendment to its Restated Certificate of Incorporation (the " Corautus Charter Amendment "), whereby without any further action on the part of Corautus, VIA or any stockholder of Corautus:

  • • (i) each share of Corautus Common Stock issued and outstanding immediately prior to the filing of the Corautus Charter Amendment shall be reclassified and combined into and become a fractional number of fully paid and nonassessable shares of Corautus Common Stock to be mutually agreed upon by Corautus and VIA (the " Reverse Stock Split ");

      (ii) any shares of Corautus Common Stock held as treasury stock or held or owned by Corautus immediately prior to the filing of the Corautus Charter Amendment shall each be reclassified and combined into and become an identical fractional number of shares of Corautus Common Stock as determined by the Board of Directors of Corautus in connection with Section 1.5(a)(i) above; and

      (iii) the authorized shares of Corautus Common Stock shall be increased to 200,000,000 shares.

  (b) No fractional shares of Corautus Common Stock shall be issued in connection with the Reverse Stock Split, and no certificates or scrip representing such fractional shares shall be issued. Any holder of Corautus Common Stock who would otherwise be entitled

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• to receive a fraction of a share of Corautus Common Stock (after aggregating all fractional shares of Corautus Common Stock issuable to such holder) shall, in lieu of such fraction of a share and upon surrender of such holder’s certificate representing such fractional shares of Corautus Common Stock, be paid in cash the dollar amount (provided to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Corautus Common Stock on the NASDAQ Capital Market (or such other market (e.g. , bulletin board or pink sheets) on which the Corautus Common Stock then trades) on the date immediately preceding the effective date of the Reverse Stock Split.

  (c) The Exchange Ratio set forth herein shall be appropriately adjusted, if needed, at the Effective Time to account for the effect of the Reverse Stock Split without enlarging or diluting the relative rights and ownership of the stockholders of VIA and Corautus resulting from such Exchange Ratios.

  (d) Corautus shall use its commercially reasonable efforts to cause all issued and outstanding shares of Corautus Preferred Stock to be converted into Corautus Common Stock at or prior to the Effective Time; provided, however , in the exercise of such efforts Corautus shall not be required to agree to the conversion of the Series C Preferred Stock into shares of Corautus Common Stock in excess of the number referred to in Section 1.7(a)(v)(ii) ; provided, further in connection with any conversion of Corautus Preferred Stock on or prior to the Effective Time, Corautus shall be entitled to grant registration rights as to the Corautus Common Stock to be issued in such conversion on terms and conditions reasonably satisfactory to VIA.

1.6 Shares to Be Issued; Effect on Capital Stock . Subject to the terms and conditions of this Agreement, at the Effective Time, by virtue of the Merger and without any action on the part of Corautus, Merger Sub, VIA or any stockholder of VIA, the following shall occur:

• (a) Conversion of VIA Common Stock . Subject to the terms of Section 1.6(h) , each share of VIA Common Stock issued and outstanding immediately prior to the Effective Time (other than any shares of VIA Common Stock to be canceled pursuant to Section 1.6(c) , if any, and excluding any Dissenting Shares (as defined and to the extent provided in Section 1.10(a) )) will be converted automatically into the right to receive that number of shares of Corautus Common Stock equal to the Exchange Ratio.

  (b) Conversion of VIA Preferred Stock . Subject to the terms of Section 1.6(h) , each share of VIA Preferred Stock issued and outstanding immediately prior to the Effective Time (other than any shares of VIA Preferred Stock which are to be canceled pursuant to Section 1.6(c) , if any, and excluding any Dissenting Shares (as defined and to the extent provided in Section 1.10(a) )) will be converted automatically into the right to receive that number of shares of Corautus Common Stock equal to the Exchange Ratio.

  (c) Cancellation of Treasury Shares . Any shares of VIA Capital Stock held as treasury stock or held or owned by VIA immediately prior to the Effective Time shall be canceled and shall cease to exist, and no consideration shall be delivered in exchange therefor.

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• (d) VIA Stock Options . All options to purchase VIA Common Stock then outstanding immediately prior to the Effective Time under the VIA Pharmaceuticals, Inc. 2004 Stock Plan (as amended, the " VIA Stock Plan ") shall be exchanged for options to purchase Corautus Common Stock in accordance with Section 5.5(a) .

  (e) VIA Restricted Stock . If any shares of VIA Common Stock issued and outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option or the risk of forfeiture or under any applicable restricted stock purchase agreement or other agreement with VIA (such shares, the " VIA Restricted Stock "), then the shares of Corautus Common Stock issued in exchange for such shares of VIA Restricted Stock pursuant to Section 1.6(a) will to the same extent be unvested and subject to the same repurchase option or risk of forfeiture, and the certificates representing such shares of Corautus Common Stock shall accordingly be marked with appropriate legends. VIA and Corautus shall take all action that may be necessary to ensure that, from and after the Effective Time, Corautus is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase agreement or other agreement.

  (f) Capital Stock of Merger Sub . Each share of common stock, par value $0.001 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall automatically be converted into and exchanged for one validly issued, fully paid and nonassessable share of common stock, par value $0.001 per share, of the Surviving Corporation. Each stock certificate of Merger Sub evidencing ownership of any such shares shall, as of the Effective Time, evidence ownership of such shares of common stock of the Surviving Corporation.

  (g) Adjustments to Exchange Ratio . If, between the date of this Agreement and the Effective Time, any outstanding shares of VIA Common Stock, VIA Preferred Stock or Corautus Common Stock shall have been changed into, or exchanged for, a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, reverse split, combination or exchange of shares (including the Reverse Stock Split), the Exchange Ratio shall be correspondingly adjusted to provide the holders of VIA Common Stock (including VIA Restricted Stock), VIA Preferred Stock and VIA Options the same economic effect as contemplated by this Agreement prior to such event.

  (h) No Fractional Shares . No fractional shares of Corautus Common Stock shall be issued in connection with the Merger, and no certificates or scrip representing such fractional shares shall be issued. The number of shares of Corautus Common Stock received by a holder of shares of VIA Common Stock who would otherwise be entitled to receive a fraction of a share of Corautus Common Stock (after aggregating all fractional shares of Corautus Common Stock to be received by such holder) shall, in lieu of such faction of a share and upon surrender of such holder’s VIA Stock Certificate, paid in cash the dollar amount (provided to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Corautus Common Stock on the NASDAQ Capital Market (or such other market ( e.g. , bulletin board or pink sheets) on which the Corautus Common Stock then trades) on the date the Merger becomes effective.

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1.7 Calculation of Exchange Ratio; Certain Definitions; Net Cash .

• (a) Exchange Ratio . For the purposes of this Agreement, the " Exchange Ratio " shall mean the product of (i) the quotient obtained by dividing the Corautus Aggregate Share Number by the VIA Aggregate Share Number, multiplied by (ii) the Net Cash Adjustment Factor.

  (b) Certain Definitions . For the purposes of this Agreement, the following terms used in connection with the calculation of the Exchange Ratio shall have the meanings specified below:

  • • (i) " Closing Net Cash Amount " shall mean the amount of Corautus Net Cash immediately prior to the Effective Time as determined in accordance with Section 1.7(c) .

      (ii) " Corautus Aggregate Share Number " shall mean that number, determined in accordance with Section 1.7(d) , equal to the sum of: (A) the aggregate number of shares of Corautus Common Stock issued and outstanding immediately prior to the Effective Time, plus (B) the Series C Preferred Stock Conversion Share Number, plus (C) to the extent the holder of the Series D Preferred Stock and the Series E Preferred Stock has not converted its shares of either the Series D Preferred Stock or the Series E Preferred Stock at or prior to the Effective Time of the Merger, the aggregate number of shares of Corautus Common Stock issuable upon the conversion of all shares of Corautus Series D Preferred Stock and Series E Preferred Stock issued and outstanding immediately prior to the Effective Time as determined in accordance with the Certificate of Designation of Preferences and Rights of Series D Preferred Stock and the Certificate of Designation of Preferences and Rights of Series E Preferred Stock, in each case as amended and in effect as of the date of determination, and with respect to the Series E Preferred Stock, subject to any caps on the maximum number of shares of Corautus Common Stock so issuable under the Recapitalization Agreement, plus (D) the aggregate number of Corautus Common Stock issuable upon the exercise of all outstanding Corautus Warrants immediately prior to the Effective Time (determined without regard to whether or not such Corautus Warrants are then exercisable or the exercise price therefor), plus (E) the aggregate number of shares of Corautus Common Stock issuable upon the exercise of all outstanding Corautus Options immediately prior to the Effective Time (determined without regard to whether or not such Corautus Options are then exercisable, vested or unvested, or the exercise price therefor), plus (F) the aggregate number of Corautus Common Stock issuable upon the exercise of all other convertible securities, options, warrants or rights not reflected in (A) – (E) above outstanding immediately prior to the Effective Time (determined without regard to whether or not such securities are then exercisable or the exercise price therefor, as applicable). For the avoidance of doubt, to the extent the holders of any series of Corautus Preferred Stock convert their shares of Corautus Preferred Stock into shares of Corautus Common Stock at or prior to the Effective Time of the Merger, all shares of Corautus Common Stock issuable to such holders of Corautus Preferred Stock upon such conversion shall be included in the calculation of (A) above and not in the calculation of (B) and/or (C) above.

      (iii) "Net Cash " shall mean, as of any particular date (actual or future), without repetition, (a) the sum of Corautus’s cash and cash equivalents and short-term

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• • • investments, in each case as of such date and determined in accordance with GAAP, minus (b) the sum of Corautus’s total outstanding liabilities as determined in accordance with GAAP (including, without limitation, all liabilities of the types identified on Corautus’s unaudited consolidated balance sheets at December 31, 2006), minus (c) the sum of Corautus’s total outstanding contractual obligations, liabilities and commitments, including without limitation, any outstanding purchase orders, the cash cost of any termination payments under any Contracts, the cash costs of the wind-down of clinical trials performed by Corautus prior to the Effective Time, and any known costs or expenses arising out of or resulting from the activities of Corautus with respect to any period prior to the Effective Time (regardless of when such amounts are paid or payable), minus (d) the remaining cash cost of restructuring accruals as of such date determined in a manner substantially consistent with the manner in which such item was determined for Corautus’s Unaudited Balance Sheet, minus (e) the cash cost of any change of control payments, severance payments or payments under Section 280G of the Code that become due to any employee of Corautus solely as a result of the Merger and the Contemplated Transactions and the cash cost of any accrued and unpaid retention payments due to any Corautus employee as of such date, minus (f) the cash cost of any and all accrued and unpaid Taxes (including amounts estimated in connection with any audit that may be underway at the Effective Time) for which Corautus is liable in respect of any period ending on or before such date, minus (g) any remaining fees and expenses as of such date for which Corautus is liable pursuant to this Agreement incurred by Corautus in connection with this Agreement and the Contemplated Transactions, minus (h) any net amounts required to be paid by Corautus in connection with purchasing "tail" insurance coverage pursuant to Section 5.7(d) , minus (i) the Section 1.7(b)(iii) Amount, plus (j) $75,000. Notwithstanding anything to the contrary herein, Net Cash shall not be reduced by any amounts paid or payable in connection Sections 5.7(c) or 5.7(e) .

      (iv) " Net Cash Adjustment Factor " shall mean the amount specified on Schedule 1.7(b)(iv) hereto based on the applicable Closing Net Cash Amount.

      (v) " Series C Preferred Stock Conversion Share Number " shall mean either (i) the number of shares of Corautus Common Stock into which all outstanding shares of Series C Preferred Stock shall convert at or prior to the Effective Time as determined and mutually agreed upon by the holder of Series C Preferred Stock and Corautus, or (ii) to the extent the Series C Preferred Stock does not convert into shares of Corautus Common Stock at or prior to the Effective Time and remains issued and outstanding, that number of shares of Corautus Common Stock set forth on Schedule 1.7(b)(v) hereto. For the avoidance of doubt, if the Series C Preferred Stock converts into Corautus Common Stock at or prior to the Effective Time, the Series C Preferred Stock Conversion Share Number shall be the number of shares of Corautus Common Stock actually issued to the holder of Series C Preferred Stock in exchange for all of such holder’s shares of Series C Preferred Stock.

      (vi) " VIA Aggregate Share Number " shall mean a number of shares equal to the sum of (A) the aggregate number of shares of VIA Common Stock (including all shares of VIA Restricted Stock and including all Dissenting Shares) issued and outstanding immediately prior to the Effective Time, plus (B) the aggregate number of shares of VIA Common Stock issuable upon the conversion of all shares of VIA Preferred Stock issued and outstanding immediately prior to the Effective Time as determined in accordance with the

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• • • Certificate of Designations, Preferences and Rights of Series A Convertible Preferred Stock of VIA Pharmaceuticals, Inc., as amended, plus (C) the aggregate number of shares of VIA Common Stock issuable upon the exercise of all outstanding VIA Options immediately prior to the Effective Time, plus (D) the aggregate number of shares issuable but not outstanding under the VIA Stock Plan immediately prior to the Effective Time, plus (E) the aggregate number of shares of VIA Common Stock issuable upon the exercise of all other convertible securities, options, warrants or rights not reflected in (A) – (D) above outstanding immediately prior to the Effective Time (determined without regard to whether or not such securities are then exercisable or the exercise price therefor, as applicable). For avoidance of doubt the VIA Aggregate Share Number shall be computed as if no shareholder has exercised Appraisal Rights under Section 1.10 .

  (c) Calculation of Closing Net Cash Amount .

  • • (i) Corautus and VIA shall agree upon an anticipated date for Closing (the " First Anticipated Closing Date ") at least ten Business Days prior to the Corautus Stockholder Meeting. At least five Business Days prior to the First Anticipated Closing Date, but not more than ten Business Days prior to such date, Corautus shall deliver to VIA a schedule (a " Net Cash Schedule ") setting forth, in reasonable detail, Corautus’s estimate of Net Cash (the " Net Cash Estimation ") as of the First Anticipated Closing Date. Corautus shall make the work papers and back-up materials used in preparing the applicable Net Cash Schedule available to VIA and its accountants, counsel and other advisors at reasonable times and upon reasonable notice.

      (ii) Within ten Business Days after Corautus delivers a Net Cash Schedule (a " Lapse Date "), VIA shall have the right to dispute any part of such Net Cash Schedule by delivering a written notice to that effect to Corautus (a " Dispute Notice "). Any Dispute Notice shall identify in reasonable detail the nature of any proposed revisions to the applicable Net Cash Estimation.

      (iii) If (1) on or prior to any Lapse Date VIA notifies Corautus that it has no objections to the applicable Net Cash Estimation or (2) VIA fails to deliver a Dispute Notice as provided above prior to the applicable Lapse Date, then the Net Cash Estimation as set forth in the Net Cash Schedule shall be deemed, on the date of such notification (in the case of (1) above) or on the applicable Lapse Date (in the case of (2) above) (the applicable date being referred to herein as the " Non-Dispute Net Cash Determination Date "), to have been finally determined for purposes of this Agreement and to represent the Closing Net Cash Amount for purposes of calculating the values pursuant to Sections 1.7(a) and 8.7 hereto, so long as Closing occurs within five Business Days after the applicable Non-Dispute Net Cash Determination Date.

      (iv) If VIA delivers a Dispute Notice on or prior to the applicable Lapse Date, then Corautus and VIA shall promptly meet and attempt in good faith to resolve the disputed item(s) and negotiate an agreed-upon determination of Net Cash as of a particular date to be agreed to by Corautus and VIA, which Net Cash amount shall be deemed, on the date of agreement between Corautus and VIA as to such amount (a " Dispute Net Cash Determination Date "), as the final determination for purposes of this Agreement of the Closing Net Cash

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• • • Amount for purposes of calculating the values pursuant to Sections 1.7(a) and 8.7 hereto, so long as Closing occurs within five Business Days after the applicable Dispute Net Cash Determination Date.

      (v) If Corautus and VIA are unable to negotiate an agreed-upon determination of Net Cash as of a particular date pursuant to Section 1.7(c)(vi) within five Business Days after delivery of the Dispute Notice (or such other period as Corautus and VIA may mutually agree upon), then Corautus and VIA shall jointly select an independent auditor of recognized national standing (the " Accounting Firm ") to resolve any remaining disagreements as to the Net Cash Estimation. Corautus shall promptly deliver to the Accounting Firm the work papers and back-up materials used in preparing the applicable Net Cash Schedule and Net Cash Estimation, and Corautus and VIA shall use their commercially reasonable efforts to cause the Accounting Firm to make its determination within fifteen Business Days of accepting its selection. VIA and Corautus shall be afforded the opportunity to present to the Accounting Firm any material related to the unresolved disputes and to discuss the issues with the Accounting Firm; provided , however , that no such presentation or discussion shall occur without the presence of each of VIA and Corautus (or their applicable Representatives). The determination of the Accounting Firm shall be limited to the disagreements submitted to the Accounting Firm. The determination of the amount of Net Cash as of a particular date set and (an " Accountant Resolved Net Cash Determination Date ") made by the Accounting Firm shall be deemed to have been finally determined for purposes of this Agreement and to represent the Closing Net Cash Amount for purposes of calculating the values pursuant to Sections 1.7 and 8.7 hereto, so long as Closing occurs within five Business Days after the applicable Accountant Resolved Net Cash Determination Date. The fees and expenses of the Accounting Firm shall be allocated between Corautus and VIA in the same proportion that the disputed amount of the Net Cash that was unsuccessfully disputed by such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of the Net Cash amount.

      (vi) If the Closing does not occur within five Business Days after a Non-Dispute Net Cash Determination Date, Dispute Net Cash Determination Date or an Accountant Resolved Net Cash Determination Date, as applicable, then Corautus and VIA shall agree upon an additional anticipated date for Closing (a " Subsequent Anticipated Closing Date ") and thereafter follow the procedures set forth in Sections 1.7(c)(i) through (v)  above as many times as necessary (and replacing the First Anticipated Closing Date with the Subsequent Anticipated Closing Date in each instance) until the Closing Net Cash Amount for purposes of Sections 1.7(a) , and 8.7 hereto is or is deemed to have been finally determined for purposes of this Agreement pursuant to this Section 1.7(c) .

  (d) Calculation of Corautus Aggregate Share Number .

  • • (i) At least five Business Days prior to the First Anticipated Closing Date, Corautus shall deliver to VIA a schedule (a " Corautus Aggregate Share Number Schedule ") setting forth, in reasonable detail, Corautus’s calculation of the Corautus Aggregate Share Number (the " Preliminary Corautus Aggregate Share Number "). Corautus shall make the work papers and back-up materials used in preparing the Corautus Aggregate Share Number Schedule and calculating the Preliminary Corautus Aggregate Share Number available to VIA and its accountants, counsel and other advisors at reasonable times and upon reasonable notice.

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• • • (ii) Within two Business Days after Corautus delivers the Corautus Aggregate Share Number Schedule (the " VIA Review Period " ), VIA shall have the right to dispute any part of such Corautus Aggregate Share Number Schedule by delivering a written notice to that effect to Corautus (a " CASN Dispute Notice "). Any CASN Dispute Notice shall identify in reasonable detail the nature of any proposed revisions to the Preliminary Corautus Aggregate Share Number.

      (iii) If (1) on or prior to the expiration of the VIA Review Period VIA notifies Corautus that it has no objections to the Preliminary Corautus Aggregate Share Number or (2) VIA fails to deliver a CASN Dispute Notice as provided above before the termination of the VIA Review Period, then the Preliminary Corautus Aggregate Share Number as set forth on the Corautus Aggregate Share Number Schedule shall be deemed, on the date of such notification (in the case of (1) above) or on the expiration of the VIA Review Period (in the case of (2) above) (the applicable date being referred to herein as the " Non-Dispute Corautus Aggregate Share Number Determination Date "), to have been finally determined, subject to Section 1.7(d)(vi) below, for purposes of this Agreement and to represent the Corautus Aggregate Share Number for purposes of Section 1.7 hereto.

      (iv) If VIA delivers a CASN Dispute Notice on or prior to the expiration of the VIA Review Period, then Corautus and VIA shall promptly meet and attempt in good faith to resolve the disputed item(s) and negotiate an agreed-upon determination of the Corautus Aggregate Share Number, which Corautus Aggregate Share Number amount shall be deemed, on the date of agreement between Corautus and VIA as to such amount (a " Dispute Corautus Aggregate Share Number Determination Date "), as the final determination, subject to Section 1.7(d)(vi) below, for purposes of this Agreement of the Corautus Aggregate Share Number for purposes of Section 1.7 hereto.

      (v) If Corautus and VIA are unable to negotiate an agreed-upon determination of the Corautus Aggregate Share Number pursuant to Section 1.7(d)(iv) within five Business Days after delivery of the CASN Dispute Notice (or such other period as Corautus and VIA may mutually agree upon), then Corautus and VIA shall jointly select an Accounting Firm to resolve any remaining disagreements as to the Corautus Aggregate Share Number. Corautus shall promptly deliver to the Accounting Firm the work papers and back-up materials used in preparing the Corautus Aggregate Share Number Schedule and Preliminary Corautus Aggregate Share Number, and Corautus and VIA shall use their commercially reasonable efforts to cause the Accounting Firm to make its determination within fifteen Business Days of accepting its selection. VIA and Corautus shall be afforded the opportunity to present to the Accounting Firm any material related to the unresolved disputes and to discuss the issues with the Accounting Firm; provided, however, that no such presentation or discussion shall occur without the presence of each of VIA and Corautus (or their applicable Representatives). The determination of the Accounting Firm shall be limited to the disagreements submitted to the Accounting Firm. The determination of the Corautus Aggregate Share Number as of a particular date set (such date being referred to herein as an " Accountant Resolved Corautus Aggregate Share Number Determination Date ") and made by the Accounting Firm shall be deemed to have been finally determined for purposes of this Agreement and to represent the Corautus Aggregate Share Number for purposes of Section 1.7 hereto, so long as the Closing occurs within five (5) Business Days following the Accountant Resolved Corautus Aggregate Share

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• • • Number Determination Date. Corautus and VIA shall each bear fifty percent (50%) of the fees and expenses of the Accounting Firm.

      (vi) Notwithstanding anything to the contrary contained herein, in the event that a holder of Series C Preferred Stock, Series D Preferred Stock or Series E Preferred Stock elects to convert its shares of Series C Preferred Stock, Series D Preferred Stock or Series E Preferred Stock, as applicable, into shares of Corautus Common Stock at or prior to the Effective Time, and such election is made by such holder(s) of Corautus Preferred Stock after the time Corautus has delivered the Corautus Aggregate Share Number Schedule and calculated the Preliminary Corautus Aggregate Share Number, the number of shares of Corautus Common Stock issued or to be issued to such holders of Corautus Preferred Stock at or prior to the Effective Time shall be factored into the determination of the Corautus Aggregate Share Number in lieu of the number of shares previously reserved for the Corautus Preferred Stock so converted.

      (vii) If the Closing does not occur on the First Anticipated Closing Date, then Corautus and VIA shall follow the procedures set forth in Sections 1.7(d)(i) through (vi)  above as many times as necessary for each Subsequent Anticipated Closing Date (and replacing the First Anticipated Closing Date with the Subsequent Anticipated Closing Date in each instance) until the Corautus Aggregate Share Number for purposes of Section 1.7 is or is deemed to have been finally determined for purposes of this Agreement pursuant to this Section 1.7(d)

      (viii) Attached hereto as Schedule 1.7(d) is a sample calculation of the Corautus Aggregate Share Number as of January 31, 2007.

  (e) Calculation of VIA Aggregate Share Number .

  • • (i) At least five Business Days prior to the First Anticipated Closing Date, VIA shall deliver to Corautus a schedule (a " VIA Aggregate Share Number Schedule ") setting forth, in reasonable detail, VIA’s calculation of the VIA Aggregate Share Number (the " Preliminary VIA Aggregate Share Number "). VIA shall make the work papers and back-up materials used in preparing the VIA Aggregate Share Number Schedule and calculating the Preliminary VIA Aggregate Share Number available to Corautus and its accountants, counsel and other advisors at reasonable times and upon reasonable notice.

      (ii) Within two Business Days after VIA delivers the VIA Aggregate Share Number Schedule (the "Corautus Review Period" ), Corautus shall have the right to dispute any part of such VIA Aggregate Share Number Schedule by delivering a written notice to that effect to VIA (a " VASN Dispute Notice "). Any VASN Dispute Notice shall identify in reasonable detail the nature of any proposed revisions to the Preliminary VIA Aggregate Share Number.

      (iii) If (1) on or prior to the expiration of the Corautus Review Period Corautus notifies VIA that it has no objections to the Preliminary VIA Aggregate Share Number or (2) Corautus fails to deliver a VASN Dispute Notice as provided above prior to the expiration of the Corautus Review Period, then the Preliminary VIA Aggregate Share Number as set forth

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• • • on the VIA Aggregate Share Number Schedule shall be deemed, on the date of such notification (in the case of (1) above) or on the expiration of the Corautus Review Period (in the case of (2) above) (the applicable date being referred to herein as the " Non-Dispute VIA Aggregate Share Number Determination Date "), to have been finally determined, subject to Section 1.7(e)(vi) below, for purposes of this Agreement and to represent the VIA Aggregate Share Number for purposes of Section 1.7 hereto.

      (iv) Subject to Section 1.7(e)(v) , if Corautus delivers a VASN Dispute Notice on or prior to the expiration of the Corautus Review Period, then VIA and Corautus shall promptly meet and attempt in good faith to resolve the disputed item(s) and negotiate an agreed-upon determination of the VIA Aggregate Share Number, which VIA Aggregate Share Number amount shall be deemed, on the date of agreement between VIA and Corautus as to such amount (a " Dispute VIA Aggregate Share Number Determination Date "), as the final determination, subject to Section 1.7(e)(vi) below, for purposes of this Agreement of the VIA Aggregate Share Number for purposes of Section 1.7 hereto.

      (v) If VIA and Corautus are unable to negotiate an agreed-upon determination of the VIA Aggregate Share Number pursuant to Section 1.7(e)(iv) within five Business Days after delivery of the VASN Dispute Notice (or such other period as VIA and Corautus may mutually agree upon), then VIA and Corautus shall jointly select an Accounting Firm to resolve any remaining disagreements as to the VIA Aggregate Share Number. VIA shall promptly deliver to the Accounting Firm the work papers and back-up materials used in preparing the VIA Aggregate Share Number Schedule and Preliminary VIA Aggregate Share Number, and VIA and Corautus shall use their commercially reasonable efforts to cause the Accounting Firm to make its determination within fifteen Business Days of accepting its selection. VIA and Corautus shall be afforded the opportunity to present to the Accounting Firm any material related to the unresolved disputes and to discuss the issues with the Accounting Firm; provided, however, that no such presentation or discussion shall occur without the presence of each of VIA and Corautus (or their applicable Representatives). The determination of the Accounting Firm shall be limited to the disagreements submitted to the Accounting Firm. The determination of the VIA Aggregate Share Number (such date being referred to herein as an " Accountant Resolved VIA Aggregate Share Number Determination Date ") made by the Accounting Firm shall be deemed to have been finally determined for purposes of this Agreement and to represent the VIA Aggregate Share Number for purposes of Section 1.7 hereto, so long as the Closing occurs within five (5) Business Days following the Accountant Resolved VIA Aggregate Share Number Determination Date. VIA and Corautus shall each bear fifty percent (50%) of the fees and expenses of the Accounting Firm.

      (vi) Notwithstanding anything to the contrary contained herein, in the event that a holder of VIA Preferred Stock elects to convert its shares of VIA Preferred Stock into shares of VIA Common Stock at or prior to the Effective Time, and such election is made by such holder(s) of VIA Preferred Stock after the time VIA has delivered the VIA Aggregate Share Number Schedule and calculated the Preliminary VIA Aggregate Share Number, the number of shares of VIA Common Stock issued or to be issued to such holders of VIA Preferred Stock at or prior to the Effective Time, shall be factored into the determination of the VIA Aggregate Share Number in lieu of the number of shares previously reserved for the VIA Preferred Stock so converted.

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• (vii) If the Closing does not occur on the First Anticipated Closing Date, then VIA and Corautus shall follow the procedures set forth in Sections 1.7(e)(i) through (vi)  above as many times as necessary for each Subsequent Anticipated Closing Date (and replacing the First Anticipated Closing Date with the Subsequent Anticipated Closing Date in each instance) until the VIA Aggregate Share Number for purposes of Section 1.7 is or is deemed to have been finally determined for purposes of this Agreement pursuant to this Section 1.7(e) .

  (viii) Attached hereto as Schedule 1.7(e) is a sample calculation of the VIA Aggregate Share Number as of February 2, 2007.

1.8 Closing of VIA’s Transfer Books . At the Effective Time: (a) all shares of VIA Common Stock and VIA Preferred Stock outstanding immediately prior to the Effective Time shall automatically be canceled and shall cease to exist, and all holders of certificates representing shares of VIA Common Stock and VIA Preferred Stock that were outstanding immediately prior to the Effective Time shall cease to have any rights as stockholders of VIA except as otherwise provided herein; and (b) the stock transfer books of VIA shall be closed with respect to all shares of VIA Common Stock and VIA Preferred Stock outstanding immediately prior to the Effective Time. No further transfer of any such shares of VIA Common Stock or VIA Preferred Stock shall be made on such stock transfer books after the Effective Time. If, after the Effective Time, a valid certificate previously representing any shares of VIA Common Stock or VIA Preferred Stock outstanding immediately prior to the Effective Time (a " VIA Stock Certificate ") is presented to the Exchange Agent or to the Surviving Corporation, such VIA Stock Certificate shall be canceled and shall be exchanged as provided in Section 1.6 .

1.9 Surrender of Certificates .

• (a) On or prior to the Closing Date, Corautus shall designate a reputable bank, transfer agent, trust company or other Person to act as exchange agent in the Merger (the " Exchange Agent "). At the Effective Time, Corautus shall deliver or otherwise make available to Exchange Agent shares of Corautus Common Stock issuable pursuant to Section 1.6 . The shares of Corautus Common Stock so delivered or made available to the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect to such shares, are referred to collectively as the " Exchange Fund ."

  (b) Promptly after the Effective Time, but in no event more than five (5) Business Days after the Effective Time, the Parties shall cause the Exchange Agent to mail to the Persons who were record holders of VIA Stock Certificates immediately prior to the Effective Time: (i) a letter of transmittal in customary form and containing such provisions as Corautus may reasonably specify (including a provision confirming that delivery of VIA Stock Certificates shall be effected, and risk of loss and title to VIA Stock Certificates shall pass, only upon delivery of such VIA Stock Certificates to the Exchange Agent); and (ii) instructions for use in effecting the surrender of VIA Stock Certificates in exchange for certificates representing shares of Corautus Common Stock. Upon surrender of a VIA Stock Certificate to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or Corautus: (A) the holder of such VIA Stock Certificate shall be entitled to receive in exchange therefor a certificate representing the

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• number of whole shares of Corautus Common Stock that such holder has the right to receive pursuant to the provisions of Section 1.6 ; and (B) the VIA Stock Certificate so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.9(b) , each VIA Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Corautus Common Stock, as contemplated by Section 1.6 . If any VIA Stock Certificate shall have been lost, stolen or destroyed, Corautus may, in its discretion and as a condition precedent to the delivery of any shares of Corautus Common Stock, require the owner of such lost, stolen or destroyed VIA Stock Certificate to provide an applicable affidavit with respect to such VIA Stock Certificate and post a bond indemnifying Corautus against any claim suffered by Corautus related to the lost, stolen or destroyed VIA Stock Certificate or any Corautus Common Stock issued in exchange therefor as Corautus may reasonably request.

  (c) No dividends or other distributions declared or made with respect to Corautus Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered VIA Stock Certificate with respect to the shares of Corautus Common Stock that such holder has the right to receive pursuant to the Merger until such holder surrenders such VIA Stock Certificate in accordance with this Section 1.9 (at which time such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar laws, to receive all such dividends and distributions, without interest).

  (d) If applicable, to the extent any portion of the Exchange Fund that remains undistributed to holders of VIA Stock Certificates as of the date one hundred eighty (180) days after the Closing Date shall be delivered to Corautus upon demand, and any holders of VIA Stock Certificates who have not theretofore surrendered their VIA Stock Certificates in accordance with this Section 1.9 shall thereafter look only to Corautus for satisfaction of their claims for Corautus Common Stock and any dividends or distributions with respect to shares of Corautus Common Stock.

  (e) Each of the Exchange Agent and Corautus shall be entitled to deduct and withhold from any consideration deliverable pursuant to this Agreement to any holder of any VIA Stock Certificate such amounts as Corautus determines in good faith are required to be deducted or withheld from such consideration under the Code or any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.

  (f) No party to this Agreement, nor the Exchange Agent, shall be liable to any holder of any VIA Stock Certificate or to any other Person with respect to any shares of Corautus Common Stock (or dividends or distributions with respect thereto), or for any cash amounts, delivered to any public official pursuant to any applicable abandoned property law, escheat law or similar Legal Requirement.

1.10 Appraisal Rights .

• (a) Notwithstanding any provision of this Agreement to the contrary, shares of VIA Capital Stock that are issued and outstanding immediately prior to the Effective Time and that are held by stockholders who shall not have voted to adopt this Agreement and who

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• properly demand appraisal for such shares of VIA Capital Stock in accordance with the DGCL (collectively, the " Dissenting Shares ") shall not be converted into or represent the right to receive the per share amount of the merger consideration described in Section 1.6 attributable to such Dissenting Shares. Such Dissenting Shares shall be converted into the right to receive such consideration as may be determined to be due to them in accordance with the DGCL, unless and until the holders of such Dissenting Shares fail to perfect or effectively withdraw or otherwise lose their appraisal rights under the DGCL. All Dissenting Shares held by stockholders who shall have failed to perfect or who effectively shall have withdrawn or lost their right to appraisal of such shares of VIA Capital Stock under the DGCL shall thereupon be deemed to be converted into, as of the Effective Time, the right to receive the per share amount of the merger consideration described in Section 1.6 attributable to such Dissenting Shares upon their surrender in the manner provided in Section 1.9 .

  (b) VIA shall give Corautus (i) prompt written notice of any demands by holders of Dissenting Shares received by VIA, withdrawals of such demands and any other instruments served on VIA and any material correspondence received by VIA in connection with such demands; and (ii) the opportunity to participate in all negotiations and proceedings with respect to demands for appraisal under DGCL. VIA shall not, except with the prior written consent of Corautus (which consent shall not be unreasonably withheld, delayed or conditioned), voluntarily make any payment with respect to any demands for appraisal of capital stock of VIA or offer to settle or settle any such demands.

1.11 Further Action . If, at any time after the Effective Time, any further action is determined by the Surviving Corporation to be necessary or desirable to carry out the purposes of this Agreement or to vest the Surviving Corporation with full right, title and possession of and to all rights and property of VIA, then the officers and directors of the Surviving Corporation shall be fully authorized, and shall use their commercially reasonable efforts (in the name of VIA, in the name of Merger Sub and otherwise) to take such action.

1.12 Tax Consequences . For federal income tax purposes, the Merger is intended to constitute a reorganization within the meaning of Section 368(a) of the Code and the Treasury Regulations promulgated thereunder. The parties to this Agreement adopt this Agreement as a "plan of reorganization" within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the Treasury Regulations.

Section 2. REPRESENTATIONS AND WARRANTIES OF VIA

VIA represents and warrants to Corautus and Merger Sub that, except as set forth in the written disclosure schedule delivered by VIA to Corautus and attached hereto (the " VIA Disclosure Schedule "), the following representations and warranties are true and correct as of the Execution Date and, subject to the materiality qualifier set forth in Section 7.1 below, shall be true and correct as of the Closing Date. The VIA Disclosure Schedule shall be arranged in sections and subsections corresponding to the numbered and lettered sections and subsections contained in this Section 2 . The disclosures in any section or subsection of the VIA Disclosure Schedule shall qualify other sections and subsections in this Section 2 only to the extent it is reasonably clear from a reading of the disclosure that such disclosure is applicable to such other sections and subsections. The inclusion of any information in the VIA Disclosure Schedule (or

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any update thereto) shall not be deemed to be an admission or acknowledgment, in and of itself, that such information is required by the terms hereof to be disclosed, is material, has resulted in or would result in a VIA Material Adverse Effect, or is outside the Ordinary Course of Business.

2.1 Subsidiaries; Due Organization .

• (a) VIA has no Subsidiaries, except for the Entities identified in Section 2.1(a) of the VIA Disclosure Schedule . Neither VIA nor any of the other Entities identified in Section 2.1(a) of the VIA Disclosure Schedule owns any capital stock of, or any equity interest of any nature in, any other Entity, other than the Entities identified in Section 2.1(a) of the VIA Disclosure Schedule . VIA has not agreed nor is obligated to make, nor is bound by any Contract under which it may become obligated to make, any future investment in or capital contribution to any other Entity. VIA has not, at any time, been a general partner of, or has otherwise been liable for any of the debts or other obligations of, any general partnership, limited partnership or other Entity.

  (b) Each of VIA and the VIA Subsidiaries is a corporation duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all necessary power and authority: (i) to conduct its business in the manner in which its business is currently being conducted; (ii) to own and use its assets in the manner in which its assets are currently owned and used; and (iii) to perform its obligations under all Contracts by which it is bound.

  (c) Each of VIA and the VIA Subsidiaries is qualified to do business as a foreign corporation, and is in good standing, under the laws of all jurisdictions where the nature of its business requires such qualification other than in jurisdictions where the failure to be so qualified, individually or in the aggregate, would not be reasonably expected to have a VIA Material Adverse Effect.

2.2 Certificate of Incorporation; Bylaws . VIA has delivered to Corautus accurate and complete copies of the certificate of incorporation, bylaws and other charter and organizational documents, including all amendments thereto for VIA and each VIA Subsidiary.

2.3 Capitalization, Etc .

• (a) The authorized capital stock of VIA consists of (i) 150,000,000 shares of common stock, par value $0.001 per share (the " VIA Common Stock "), of which 2,044,208 shares have been issued and are outstanding as of the date of this Agreement, and (ii) 50,000,000 shares of Preferred Stock, par value $0.001 per share (the " VIA Preferred Stock "), of which 18,226,942 shares have been designated as Series A Convertible Preferred Stock, all of which are outstanding as of the date of this Agreement. VIA does not hold any shares of its capital stock in its treasury. All of the outstanding shares of VIA Common Stock and VIA Preferred Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth in Section 2.3(a) of the VIA Disclosure Schedule , none of the outstanding shares of VIA Common Stock or VIA Preferred Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right and none of the outstanding shares of VIA Common Stock or VIA Preferred Stock is subject to any right of first refusal.

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• Except as contemplated herein or as set forth in Section 2.3(a) of the VIA Disclosure Schedule , there is no VIA Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of VIA Common Stock or VIA Preferred Stock. Except as set forth in Section 7.3(c) of the VIA Disclosure Schedule, VIA is not under any obligation, nor is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of VIA Common Stock or other securities. Section 2.3(a) of the VIA Disclosure Schedule accurately and completely describes all repurchase rights held by VIA with respect to shares of VIA Common Stock (including shares of VIA Restricted Stock) and VIA Preferred Stock.

  (b) Except for the VIA Stock Plan, VIA does not have any stock option plan or any other plan, program, agreement or arrangement providing for any equity or equity-based compensation for any Person. VIA has reserved 3,150,000 shares of VIA Common Stock for issuance under the VIA Stock Plan, of which, as of the date hereof, (i) VIA has granted options to purchase an aggregate of 1,946,125 shares of VIA Common Stock (500 of which have been cancelled), and (ii) 1,204,375 shares of VIA Common Stock are reserved for future issuance pursuant to stock options or other awards not yet granted under the VIA Stock Plan. VIA has made available to Corautus accurate and complete copies of the VIA Stock Plan and the forms of all stock option agreements evidencing options granted under the VIA Stock Plan.

  (c) VIA does not have any outstanding bonds, debentures, notes or other obligations to which the holders have the right to vote (or are convertible into or exchangeable for securities having the right to vote) on any matter.

  (d) There is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of VIA; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of VIA; (iii) stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which VIA is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of any VIA. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or other similar rights with respect to VIA.

  (e) All outstanding shares of VIA Common Stock, VIA Preferred Stock, VIA Options and other securities of VIA have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in VIA’s certificate of incorporation, bylaws and other applicable Contracts.

  (f) All of the outstanding shares of capital stock of each of VIA’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof, and are owned beneficially and of record by VIA, free and clear of any Encumbrances.

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2.4 Financial Statements .

• (a) Attached hereto as Section 2.4(a) of the VIA Disclosure Schedule are the unaudited balance sheets of VIA as of December 31, 2004, 2005 and 2006, and the related unaudited statements of operations, statements of stockholders’ equity and statements of cash flows of VIA for the periods ended December 31, 2004, 2005 and 2006 (collectively, the " VIA Financial Statements ") (the unaudited balance sheet of VIA as of December 31, 2006 is referred to herein as the " VIA Unaudited Balance Sheet "). The VIA Financial Statements (i) were prepared in accordance with United States general accepted accounting principles (" GAAP ") applied on a consistent basis unless otherwise noted therein throughout the periods indicated (except as may be indicated in the footnotes to such VIA Financial Statements and that unaudited financial statements do not have notes thereto and other presentation items that may be required by GAAP) and (ii) fairly present, in all material respects, the financial condition and operating results of VIA, and, as applicable, its Subsidiaries, as of the dates and for the periods indicated therein.

  (b) Each of VIA and its Subsidiaries maintains a system of internal accounting controls designed to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. VIA maintains internal control over financial reporting that provides reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP.

  (c) The financial estimates, forecasts and projections prepared by VIA and delivered to Corautus and identified on Section 2.4(c) of the VIA Disclosure Schedule were prepared in good faith by, and represent the best estimates and reasonable judgment of, VIA’s management as of the Execution Date as to the expected future financial performance and condition of VIA.

2.5 Absence of Changes . Except as set forth on Section 2.5 of the VIA Disclosure Schedule , since the date of the VIA Unaudited Balance Sheet, neither VIA nor any VIA Subsidiary has:

• (a) suffered any VIA Material Adverse Effect;

  (b) suffered any material loss, damage or destruction to, or any material interruption in the use of, any of the assets or business of VIA or any VIA Subsidiary (whether or not covered by insurance);

  (c) (i) declared, accrued, set aside or paid any dividend or made any other distribution in respect of any shares of capital stock; or (ii) repurchased, redeemed or otherwise reacquired any shares of capital stock or other securities;

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• (d) sold, issued, granted, or authorized the issuance of: (i) any capital stock or other security (except for VIA Common Stock issued upon the valid exercise of outstanding VIA Options); (ii) any option, warrant or right to acquire any capital stock or any other security (except for VIA Options); or (iii) any instrument convertible into or exchangeable for any capital stock or other security;

  (e) amended or waived any of its rights under, or exercised its discretion to permit the acceleration of vesting under any provision of: (i) the VIA Stock Plan; (ii) any VIA Option; (iii) any restricted stock purchase agreement; or (iv) any other Contract evidencing or relating to any equity award (whether payable in cash or stock);

  (f) amended the certificate of incorporation, bylaws or other charter or organizational documents of VIA or any VIA Subsidiary, and neither VIA nor any VIA Subsidiary has effected or been a party to any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction;

  (g) formed any Subsidiary or acquired any equity interest or other interest in any other Entity;

  (h) (i) lent money to any Person; (ii) incurred or guaranteed any indebtedness; (iii) issued or sold any debt securities or options, warrants, calls or other rights to acquire any debt securities; (iv) guaranteed any debt securities of others; or (v) made any capital expenditure or commitment, individually or in the aggregate, in excess of $50,000;

  (i) (i) adopted, established or entered into any VIA Employee Plan; (ii) caused or permitted any VIA Employee Plan to be amended, other than as required by law; or (iii) paid any bonus or made any profit-sharing or similar payment to, or increased the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors or employees;

  (j) changed any of its methods of accounting or accounting practices;

  (k) made any Tax election, filed any material amendment to any Tax Return, adopted or changed any accounting method in respect of Taxes, entered into any or closing agreement relating to any material Tax, settled or compromised any claim, notice, audit report or assessment in respect of Taxes, or consented to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment;

  (l) commenced, threatened or settled any Legal Proceeding;

  (m) entered into any new line of business;

  (n) adopted a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization;

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• (o) acquired any material assets nor sold, leased or otherwise irrevocably disposed of any of its material assets or properties, nor has any Encumbrance been granted with respect to such assets or properties, except in the Ordinary Course of Business;

  (p) entered into, amended or terminated any VIA Material Contract;

  (q) effected or entered into any (i) material change in pricing or royalties or other payments set or charged by VIA or any VIA Subsidiary to its customers or licensees, (ii) agreement by VIA or any VIA Subsidiary to change pricing or royalties or other payments set or charged by persons who have licensed Intellectual Property to VIA or any VIA Subsidiary, or (iii) as of the date of this Agreement, material change in pricing or royalties or other payments set or charged by persons who have licensed Intellectual Property to VIA or any VIA Subsidiary;

  (r) licensed, sold, transferred, pledged, encumbered modified, disclosed, abandoned, failed to maintain or otherwise disposed of any Intellectual Property, except in the Ordinary Course of Business;

  (s) pledged any of its assets or otherwise permitted any of its assets to become subject to any Encumbrance;

  (t) entered into any transaction or taken any other action outside of the Ordinary Course of Business, other than entering into this Agreement and the Contemplated Transactions; and

  (u) has negotiated, agreed or committed to take any of the actions referred to in clauses "(c)" through "(t)" above (other than negotiations between the Parties to enter into this Agreement).

2.6 Title to Assets . Each of VIA and the VIA Subsidiaries owns, and has good and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all tangible properties or assets and equipment used or held for use in its business or operations or purported to be owned by it, including: (a) all assets reflected on the VIA Unaudited Balance Sheet (except for inventory sold or otherwise disposed of in the Ordinary Course of Business since the date of the VIA Unaudited Balance Sheet); and (b) all other assets reflected in the books and records of VIA or any VIA Subsidiary as being owned by VIA or such VIA Subsidiary. All of said assets are owned by VIA or a VIA Subsidiary free and clear of any Encumbrances, except for: (i) any lien for current taxes not yet due and payable; and (ii) minor liens that have arisen in the Ordinary Course of Business and that do not, individually or in the aggregate, materially detract from the value of the assets subject thereto or materially impair the operations of VIA.

2.7 Real Property; Leasehold .

• (a) All items of equipment and other tangible assets owned by or leased to VIA or any VIA Subsidiary (i) are adequate for the uses to which they are being put, and (ii) are adequate for the conduct of its business in the manner in which such business is currently being conducted.

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• (b) Neither VIA nor any VIA Subsidiary owns any real property or any interest in real property, except for the leasehold interest created under the real property leases identified in Section 2.7(b) of the VIA Disclosure Schedule . All premises leased or subleased by VIA or a VIA Subsidiary are supplied with utilities and other services necessary for the operation of its businesses.

2.8 Intellectual Property .

• (a) Section 2.8(a) of the VIA Disclosure Schedule sets forth all (i) patents and patent applications, (ii) trademark and service mark registrations and applications for registration thereof, (iii) copyright registrations and applications for registration thereof, and (iv) internet domain name registrations and applications and reservations therefor, in each case that are owned by VIA, including for each item listed in (i) through (iii) above, as applicable, the owner, the jurisdiction, the serial/application number, the patent/registration number, the filing date, and the issuance/registration date, and for each item listed in (iv), the registrant, the registrar and the expiration date. With respect to each item of Intellectual Property required to be listed on Section 2.8(a) of the VIA Disclosure Schedule , (i) VIA is the sole owner and possesses all right, title and interest in and to the item, free and clear of any Encumbrances, and (ii) no action, suit, proceeding, hearing, investigation, charge, complaint, claim or demand is pending or, to the Knowledge of VIA, is threatened that challenges the legality, validity, enforceability, registration, use or ownership of the item.

  (b) To the Knowledge of VIA, VIA has not infringed, misappropriated, diluted or otherwise violated any Intellectual Property rights of third parties, VIA has not received any written charge, complaint, claim, demand or notice during the past two (2) years (or earlier, if presently not resolved), alleging any such infringement, misappropriation, dilution or other violation.

  (c) To the Knowledge of VIA, during the past two (2) years (or earlier, if not presently resolved), no third party has infringed, misappropriated, diluted or otherwise violated any Intellectual Property rights of VIA.

  (d) VIA owns or has the right to use pursuant to validly and binding license or similar agreements listed on Section 2.8(e) of the VIA Disclosure Schedule all Intellectual Property necessary in the operation of the Business of VIA as currently conducted.

  (e) Set forth on Section 2.8(e) of the VIA Disclosure Schedule are all items of Intellectual Property of any third party that VIA uses pursuant to license, sublicense, agreement or permission. VIA has delivered to Corautus correct and complete copies of all such licenses, sublicenses, agreements and permissions (as amended to date)(other than "off-the-shelf" software agreements commercially available on reasonable terms to the public generally). With respect to each item of Intellectual Property required to be identified on Section 2.8(e) of the VIA Disclosure Schedule : (i) the license, sublicense, agreement or permission covering the item is legal, valid, binding, enforceable and in full force and effect; (ii) VIA is not in breach or default of such license, sublicense, agreement or permission, and no event has occurred that with notice or lapse of time would constitute a breach or default or permit termination, modification or acceleration thereunder; and (iii) the execution, delivery and performance by VIA of this

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• Agreement, the Merger and the Contemplated Transactions will not result in a default under or the loss or impairment of, or give rise to any right of any third party to modify or terminate, any such license, sublicense, agreement or permission or any Intellectual Property rights granted thereunder, nor require the consent of any third party.

  (f) VIA has taken all actions that it reasonably believes are necessary to maintain and protect all Intellectual Property of VIA, consistent with practices that are customary in the industry in which VIA operates.

  (g) Except as may be set forth in the Contracts listed on Sections 2.8(g) of the VIA Disclosure Schedule , VIA is not bound by any Contract to indemnify, defend, hold harmless, or reimburse any other Person with respect to any Intellectual Property infringement, misappropriation or similar claim. VIA has never assumed, or agreed to discharge or otherwise take responsibility for, any existing or potential liability of another Person for infringement, misappropriation, or violation of any Intellectual Property right.

2.9 Agreements, Contracts and Commitments . Section 2.9 of the VIA Disclosure Schedule identifies, as of the date of this Agreement:

• (a) each VIA Contract relating to any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;

  (b) each VIA Contract relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, not terminable by VIA or its Subsidiaries on ninety (90) days notice without liability, except to the extent general principles of wrongful termination law may limit VIA’s or VIA’s Subsidiaries’ ability to terminate employees at will;

  (c) each VIA Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;

  (d) each VIA Contract relating to any agreement of indemnification or guaranty other than indemnification agreements between VIA and any of its respective officers or directors;

  (e) each VIA Contract relating to any agreement, contract or commitment containing any covenant limiting the freedom of VIA or its Subsidiaries (or, following the Merger, the Surviving Corporation or any of its Subsidiaries) to engage in any line of business or compete with any Person;

  (f) each VIA Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations after the date of this Agreement, individually or in the aggregate, in excess of $25,000 and not cancelable without penalty;

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• (g) each VIA Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;

  (h) each VIA Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, individually or in the aggregate, in excess of $25,000 or creating any Encumbrances with respect to any assets of VIA or any VIA Subsidiary (or, following the Merger, the Surviving Corporation or any of its Subsidiaries) or any loans or debt obligations with officers or directors of VIA;

  (i) each VIA Contract relating to (i) any distribution, license or supply agreement (identifying any that contain exclusivity provisions); (ii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of VIA or any VIA Subsidiary; (iii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which VIA or its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which VIA or its Subsidiaries has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by VIA or such VIA Subsidiary; or (iv) any agreement, contract or commitment to license any third party to manufacture or produce any product, service or technology or any agreement, contract or commitment currently in force to sell, distribute or commercialize any products or service except agreements with distributors or sales representatives in the Ordinary Course of Business;

  (j) each VIA Contract relating to development, ownership, licensing or use of any Intellectual Property, (other than "off-the-shelf" software agreements commercially available on reasonable terms to the public generally);

  (k) each VIA Contract with any Person, including without limitation any financial advisor, broker, finder, investment banker or other Person, providing advisory services to VIA or any VIA Subsidiary in connection with the Contemplated Transactions; or

  (l) any other agreement, Contract or commitment (i) which involves payment or receipt by VIA or its Subsidiaries under any such agreement, contract or commitment of $50,000 or more, individually or in the aggregate, or obligations after the date of this Agreement in excess of $50,000, individually or in the aggregate, or (ii) that is material to the business or operations of VIA and its Subsidiaries, taken as a whole.

VIA has delivered or made available to Corautus accurate and complete copies of all material written VIA Contracts, including all amendments thereto. There are no VIA Contracts that are not in written form. Except as set forth on Section 2.9 of the VIA Disclosure Schedule , neither VIA nor any of its Subsidiaries has, nor to VIA’s Knowledge, as of the date of this Agreement has any other party to a VIA Material Contract (as defined below), breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which VIA or its Subsidiaries is a party or by which it is bound of the type described in clauses (a) through (k) above (any such agreement, contract or commitment, a " VIA Material Contract ") in such

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manner as would permit any other party to cancel or terminate any such VIA Material Contract, or would permit any other party to seek damages or other remedies which would reasonably be expected to have a VIA Material Adverse Effect. As to VIA and its Subsidiaries, as of the date of this Agreement, each VIA Material Contract is valid, binding, enforceable and in full force and effect, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. The consummation of the Contemplated Transactions shall not (either alone or upon the occurrence of additional acts or events) result in any payment or payments becoming due from VIA, any VIA Subsidiary, the Surviving Corporation, any Surviving Corporation Subsidiary, Corautus or any Corautus Subsidiary to any Person under any VIA Contract or give any Person the right to terminate or alter the provisions of any VIA Contract. No Person is renegotiating, or has a right pursuant to the terms of any VIA Material Contract to renegotiate, any amount paid or payable to VIA under any VIA Material Contract or any other material term or provision of any VIA Material Contract. Section 2.9 of the VIA Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by VIA that if entered into by VIA or any VIA Subsidiary would be a VIA Material Contract.

2.10 Liabilities . As of the date hereof, neither VIA nor any VIA Subsidiary has any liability, indebtedness, obligation, expense, claim, deficiency, guaranty or endorsement of any kind, whether accrued, absolute, contingent, matured, unmatured or other (whether or not required to be reflected in the financial statements in accordance with GAAP) (each a " Liability "), individually or in the aggregate, except for: (a) Liabilities identified as such on the VIA Unaudited Balance Sheet; (b) normal and recurring current Liabilities that have been incurred by VIA or its Subsidiaries since the date of the VIA Unaudited Balance Sheet in the Ordinary Course of Business; and (c) Liabilities for performance of obligations of VIA or any VIA Subsidiary under VIA Contracts.

2.11 Compliance; Permits; Restrictions .

• (a) VIA and each VIA Subsidiary are, and have been, in compliance in all material respects with all applicable Legal Requirements and has not received any written notice of violation or alleged violation of any applicable Legal Requirements. No investigation, claim, suit, proceeding, audit or other action by any Governmental Body or authority is pending or, to the Knowledge of VIA, threatened against VIA or any VIA Subsidiary, nor has any Governmental Body or authority indicated to VIA an intention to conduct the same. There is no agreement, judgment, injunction, order or decree binding upon VIA or any VIA Subsidiary which has had or would reasonably be expected to have a VIA Material Adverse Effect.

  (b) VIA and the VIA Subsidiaries hold all Governmental Authorizations which are material to the operation of the business of VIA (collectively, the " VIA Permits "). Section 2.11(b) of the VIA Disclosure Schedule identifies each VIA Permit, each of which is in full force and effect. Each of VIA and each VIA Subsidiary is in compliance with the terms of the VIA Permits. No action, proceeding, revocation proceeding, amendment procedure, writ, injunction or claim is pending or, to the Knowledge of VIA, threatened, which seeks to revoke, limit, suspend, or materially modify any VIA Permit. The rights and benefits of each material VIA Permit will be available to the Surviving Corporation immediately after the Effective Time

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• on terms substantially identical to those enjoyed by VIA and its Subsidiaries as of the date of this Agreement and immediately prior to the Effective Time.

  (c) There are no proceedings pending or threatened with respect to an alleged violation by VIA or any of its Subsidiaries of the Federal Food, Drug, and Cosmetic Act (" FDCA "), Food and Drug Administration (" FDA ") regulations adopted thereunder, the Controlled Substance Act, the Public Health Service Act or any other similar Legal Requirements promulgated by the FDA or other comparable Governmental Body responsible for regulation of the development, clinical testing, manufacturing, sale, marketing, distribution and importation or exportation of drug products (" Drug Regulatory Agency ").

  (d) Except for such Governmental Authorizations listed in Section 2.11(d) of the VIA Disclosure Schedule , VIA and its Subsidiaries holds all Governmental Authorizations issuable by any Drug Regulatory Agency necessary for the conduct of the business as currently conducted and development, clinical testing, manufacturing, marketing, distribution and importation or exportation, as currently conducted, of any of its existing products (the " VIA Products ") (the " VIA Regulatory Permits ") and no such VIA Regulatory Permit has been (i) revoked, withdrawn, suspended, cancelled or terminated or (ii) modified in any adverse manner, other than immaterial adverse modifications. VIA and each of its Subsidiaries is in compliance in all material respects with the VIA Regulatory Permits and has not received any written notice or other written communication from any Drug Regulatory Agency regarding (A) any actual or possible violation of or failure to comply with any term or requirement of any VIA Regulatory Permit or (B) any actual or possible revocation, withdrawal, suspension, cancellation, termination or material modification of any VIA Regulatory Permit. Except for the information and files identified in Section 2.11(d) of the VIA Disclosure Schedule , VIA has made available to Corautus all information in its possession or control relating to the VIA Products and the development, clinical testing, manufacturing, importation and exportation of the VIA Products, including without limitation, complete and correct copies of the following (to the extent there are any): (x) adverse event reports; clinical study reports and material study data; and inspection reports, notices of adverse findings, warning letters, filings and letters and other correspondence to and from any Drug Regulatory Agency; and meeting minutes with any Drug Regulatory Agency; and (y) similar reports, study data, notices, letters, filings, correspondence and meeting minutes with any other Governmental Authority.

  (e) All clinical, pre-clinical and other studies and tests conducted by or on behalf of, or sponsored by, VIA or any VIA Subsidiary or in which VIA or any VIA Subsidiary or its current products or product candidates, including the VIA Products, have participated (the " VIA Studies ") were and, if still pending, are being conducted in all material respects in accordance with standard medical and scientific research procedures and in compliance with the applicable regulations of the Drug Regulatory Agencies and other applicable Legal Requirements, including, without limitation, 21 C.F.R. Parts 50, 54, 56, 58 and 312. Except for such notices listed in Section 2.11(e) of the VIA Disclosure Schedule , neither VIA nor any VIA Subsidiary has received any notices, correspondence, or other communications from any Drug Regulatory Agency requiring the termination, suspension or material modification of any clinical studies conducted by or on behalf of, or sponsored by, VIA or its Subsidiaries or in which its current products or product candidates, including the VIA Products, have participated. Except for such material obligations listed in Section 2.11(e) of the VIA Disclosure Schedule , VIA and

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• its Subsidiaries have fulfilled and performed all of their material obligations with respect to the VIA Studies, and no event has occurred which causes, or after notice or lapse of time would reasonably be expected to cause, a VIA Material Adverse Effect.

2.12 Tax Matters .

• (a) Except as set forth on in Section 2.12(a) of the VIA Disclosure Schedule , VIA and each VIA Subsidiary have timely filed all Tax Returns that they were required to file under applicable Legal Requirements. All such Tax Returns were correct and complete in all material respects and have been prepared in material compliance with all applicable Legal Requirements. Neither VIA nor any VIA Subsidiary are currently the beneficiaries of any extension of time within which to file any Tax Return. No claim has ever been made by an authority in a jurisdiction where VIA or any VIA Subsidiary does not file Tax Returns that it is or may be subject to taxation by that jurisdiction.

  (b) All Taxes due and owing by VIA or any VIA Subsidiary on or before the date hereof (whether or not shown on any Tax Return) have been paid. The unpaid Taxes of VIA and any VIA Subsidiary (A) did not, as of the date of the VIA Unaudited Balance Sheet, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the VIA Unaudited Balance Sheet (rather than any notes thereto), and (B) will not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of VIA in filing its Tax Returns. Since the date of the VIA Unaudited Balance Sheet, neither VIA nor any VIA Subsidiary has incurred any Liability for Taxes outside the Ordinary Course of Business or otherwise inconsistent with past custom and practice.

  (c) VIA and each VIA Subsidiary have withheld and paid all Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party.

  (d) There are no Encumbrances for Taxes (other than Taxes not yet due and payable) upon any of the assets of VIA or any VIA Subsidiary.

  (e) Neither VIA nor any VIA Subsidiary has received from any Governmental Body any (i) notice indicating an intent to open an audit or other review, (ii) request for information related to Tax matters, or (iii) notice of deficiency or proposed adjustment of or any amount of Tax proposed, asserted, or assessed by any Governmental Body against VIA or any VIA Subsidiary. No proceedings are pending or being conducted with respect to any Tax matter and no power of attorney (other than powers of attorney authorizing employees of VIA to act on behalf of VIA) with respect to any Taxes of VIA or any VIA Subsidiary has been filed or executed with any Governmental Body. There are no matters under discussion with any Governmental Body, or known to VIA or any VIA Subsidiary with respect to Taxes that are likely to result in an additional Liability for Taxes with respect to VIA or any VIA Subsidiary. VIA has delivered or made available to Corautus complete and accurate copies of all Tax Returns of VIA and each VIA Subsidiary (and predecessors of each) for the years ended December 31, 2004 and 2005, and complete and accurate copies of all examination reports and statements of deficiencies assessed against or agreed to by VIA and each VIA Subsidiary since

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• December 31, 2004. Neither VIA nor any VIA Subsidiary has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency nor has any request been made in writing for any such extension or waiver.

  (f) VIA (and any VIA Subsidiary) (i) has not consented at any time under former Section 341(f)(1) of the Code to have the provisions of former Section 341(f)(2) of the Code apply to any disposition of the assets of VIA or any VIA Subsidiary; (ii) has not agreed, nor is VIA or any VIA Subsidiary required, to make any adjustment under Section 481(a) of the Code by reason of a change in accounting method or otherwise; (iii) has not made an election, nor is VIA or any VIA Subsidiary required, to treat any of its assets as owned by another Person for Tax purposes or as a tax-exempt bond financed property or tax-exempt use property within the meaning of Section 168 of the Code; (iv) has not acquired nor owns any assets that directly or indirectly secure any debt the interest on which is tax exempt under Section 103(a) of the Code; and (v) has not elected at any time to be treated as an S corporation within the meaning of Sections 1361 or 1362 of the Code; and (vii) has not made any of the foregoing elections nor is required to apply any of the foregoing rules under any comparable state or local Tax provision.

  (g) VIA has not been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.

  (h) Neither VIA nor any VIA Subsidiary is a party to any Tax allocation, Tax sharing or similar agreement (including indemnity agreements other than employee tax equalization agreements).

  (i) Neither VIA nor any VIA Subsidiary has ever been a member of an affiliated group filing a consolidated, combined or unitary Tax Return (other than a group the common parent of which is VIA) for federal, state, local or foreign Tax purposes. Neither VIA nor any VIA Subsidiary have any Liability for the Taxes of any Person (other than VIA and any VIA Subsidiary) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.

  (j) Neither VIA nor any VIA Subsidiary has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 of the Code or Section 361 of the Code.

  (k) Except as set forth on in Section 2.12(k) of the VIA Disclosure Schedule , neither VIA nor any VIA Subsidiary (i) is a partner for Tax purposes with respect to any joint venture, partnership, or other arrangement or contract which is treated as a partnership for Tax purposes, (ii) owns a single member limited liability company which is treated as a disregarded entity, (iii) is a stockholder of a "controlled foreign corporation" as defined in Section 957 of the Code (or any similar provision of state, local or foreign law), (iv) is a "personal holding company" as defined in Section 542 of the Code (or any similar provision of state, local or foreign law), or (v) is a "passive foreign investment company" within the meaning of Section 1297 of the Code.

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• (l) Neither VIA nor any VIA Subsidiary has participated in or entered into (i) any transaction identified as a "listed transaction" for purposes of Treasury Regulations Sections 1.6011-4(b)(2) or 301.6111-2(b)(2), or (ii) any confidential corporate tax shelter within the meaning of Code Section 6111(d) and Treasury Regulation Section 301.6111-2, as in effect prior to the American Job Creation Act of 2004.

  (m) Neither VIA nor any VIA Subsidiary has taken any action, or has any Knowledge of any fact or circumstance, that could reasonably be expected to prevent the transactions contemplated hereby, including the Merger, from qualifying as a reorganization within the meaning of Section 368(a) of the Code.

2.13 Labor Matters; Benefit Plans .

• (a) Neither VIA nor any VIA Subsidiary is a party to, bound by, nor has a duty to bargain under, any collective bargaining agreement or other Contract with a labor organization representing any of its employees, and there are no labor organizations representing, purporting to represent or, to the Knowledge of VIA, seeking to represent any employees of VIA or any VIA Subsidiary.

  (b) There has never been, nor has there been any threat of, any strike, slowdown, work stoppage, lockout, job action, union, organizing activity, question concerning representation or any similar activity or dispute, affecting VIA or any VIA Subsidiary or any of its employees. No event has occurred, and no condition or circumstance exists, that might directly or indirectly be likely to give rise to or provide a basis for the commencement of any such strike, slowdown, work stoppage, lockout, job action, union organizing activity, question concerning representation or any similar activity or dispute.

  (c) Neither VIA nor any VIA Subsidiary is or has been engaged in any unfair labor practice within the meaning of the National Labor Relations Act. There is no Legal Proceeding, claim, labor dispute or grievance pending or, to the Knowledge of VIA, threatened or reasonably anticipated relating to any employment contract, privacy right, labor dispute, wages and hours, leave of absence, plant closing notification, workers’ compensation policy, long-term disability policy, harassment, retaliation, immigration, employment statute or regulation, safety or discrimination matter involving any VIA employee, including charges of unfair labor practices or discrimination complaints, except for routine claims and disputes in the Ordinary Course of Business.

  (d) Section 2.13(d) of the VIA Disclosure Schedule lists all written and describes all non-written employee benefit plans (as defined in Section 3(3) of ERISA) and all bonus, equity-based, incentive, deferred compensation and benefit plans, programs or arrangements, which are currently in effect relating to any present or former employee or director of VIA or any VIA Subsidiary or which is maintained by, administered or contributed to by, or required to be contributed to by, VIA, any VIA Subsidiary or under which VIA or any VIA Subsidiary has incurred or may incur any liability (each, a " VIA Employee Plan ").

  (e) With respect to each VIA Employee Plan, VIA has made available to Corautus a true and complete copy of, to the extent applicable, (i) such VIA Employee Plan,

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• (ii) the three (3) most recent annual reports (Form 5500) as filed with the Internal Revenue Service, (iii) each currently effective trust agreement related to such VIA Employee Plan, (iv) the most recent summary plan description for each VIA Employee Plan for which such description is required, along with all summaries of material modifications, amendments, resolutions and all other material plan documentation related thereto in the possession of VIA, and (v) the most recent Internal Revenue Service determination or opinion letter.

  (f) To the Knowledge of VIA, nothing has occurred that would reasonably be expected to adversely affect the qualified status of any such VIA Employee Plan or the exempt status of any related trust.

  (g) Each VIA Employee Plan has been maintained in compliance, in all material respects, with its terms and, both as to form and operation, with all applicable Legal Requirements, including without limitation, the Code and ERISA.

  (h) Neither VIA nor any VIA Subsidiary has engaged in any transaction in violation of Sections 404 or 406 of ERISA or any "prohibited transaction," as defined in Section 4975(c)(1) of the Code, for which no exemption exists under Section 408 of ERISA or Section 4975(c)(2) or (d) of the Code, or has otherwise violated the provisions of Part 4 of Title I, Subtitle B of ERISA. Neither VIA nor any VIA Subsidiary has knowingly participated in a violation of Part 4 of Title I, Subtitle B of ERISA by any plan fiduciary of any VIA Employee Plan subject to ERISA and neither VIA nor any VIA Subsidiary has been assessed any civil penalty under Section 502(l) of ERISA.

  (i) Except as would not reasonably be expected to result in any material liability, either individually or in the aggregate, to VIA or any VIA Subsidiary, all contributions required to be made under the terms of each VIA Employee Plan as of the date of this Agreement have been timely made or, if not yet due, have been properly reflected (to the extent required by GAAP) on the most recent consolidated balance sheet filed.

  (j) Except as would not reasonably be expected to result in any material liability, either individually or in the aggregate, to VIA or any VIA Subsidiary, there is no action, order, writ, injunction, judgment or decree outstanding or claim, suit, litigation, proceeding, arbitral action, governmental audit or investigation relating to or seeking benefits under any VIA Employee Plan (excluding claims for benefits incurred in the ordinary course of business) that is pending or to the Knowledge of VIA threatened against VIA, any VIA Subsidiary or any VIA Employee Plan, and neither VIA nor any VIA Subsidiary has received any notice of, an audit or investigation of any VIA Employee Plan by the Internal Revenue Service or Department of Labor.

  (k) No VIA Employee Plan is subject to Title IV or Section 302 of ERISA or Section 412 of the Code, and neither VIA nor any VIA Subsidiary has ever maintained, contributed to or partially or completely withdrawn from, or incurred any obligation or liability with respect to, any such plan. No VIA Employee Plan is a Multiemployer Plan, and neither VIA nor any VIA Subsidiary has ever contributed to or had an obligation to contribute, or incurred any liability in respect of a contribution, to any Multiemployer Plan. No VIA Employee Plan is a Multiple Employer Plan.

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• (l) Neither VIA nor any VIA Subsidiary is a party to any Contract that has resulted or would reasonably be expected to result, separately or in the aggregate, in the payment of any "excess parachute payment" within the meaning of section 280G of the Code.

2.14 Environmental Matters . VIA and each VIA Subsidiary is in compliance in all material respects with all applicable Environmental Legal Requirements, which compliance includes the possession by VIA of all permits and other Governmental Authorizations required under applicable Environmental Legal Requirements and compliance with the terms and conditions thereof. Neither VIA nor any VIA Subsidiary has received, since VIA’s formation, any written notice or other communication (in writing or otherwise), whether from a Governmental Body, citizens group, employee or otherwise, that alleges that VIA or any VIA Subsidiary is not in compliance with any Environmental Legal Requirement, and, to the Knowledge of VIA, there are no circumstances that may prevent or interfere with VIA’s compliance with any Environmental Legal Requirement in the future. To the Knowledge of VIA: (i) no current or prior owner of any property leased or controlled by VIA has received, since VIA’s formation, any written notice or other communication relating to property owned or leased at any time by VIA, whether from a Governmental Body, citizens group, employee or otherwise, that alleges that such current or prior owner or VIA is not in compliance with or violated any Environmental Legal Requirement relating to such property and (ii) it has no material liability under any Environmental Legal Requirement.

2.15 Insurance .

• (a) Section 2.15(a) of the VIA Disclosure Schedule sets forth a list of all current insurance policies and coverages maintained by VIA and each VIA Subsidiary, including names of carriers, types and amounts of coverage and premiums therefor. VIA has heretofore made available to Corautus copies of all insurance policies listed on Section 2.15(a) of the VIA Disclosure Schedule . All such policies are in full force and effect, all premiums due and payable in respect thereof have been paid, and all such policies provide insurance coverage in the amounts and against the risks required to comply with the applicable Legal Requirements and/or any contractual or other obligations and customary for a business similar to the business of VIA and each VIA Subsidiary.

  (b) Since the respective dates of the policies set forth on Section 2.15(a) of the VIA Disclosure Schedule , no notice of cancellation or non-renewal with respect to any such policy has been received by VIA or any VIA Subsidiary. Other than as set forth on Section 2.15(b) of the VIA Disclosure Schedule , since its inception, VIA has maintained, with no lapses, insurance coverage in the amounts and against the risks required to comply with the applicable Legal Requirements and/or any contractual or other obligations and customary for a business similar to the business of VIA.

  (c) Neither VIA nor any VIA Subsidiary has received any notice or other communication from an insurance carrier in which such insurance carrier (i) reserved any rights to deny or limit coverage, (ii) suggested the existence of any basis to deny or limit coverage, or (iii) reflected an intent to explore the existence of any basis to deny or limit coverage.

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• (d) There is no pending workers’ compensation or other claim under or based upon any insurance policy of VIA or any VIA Subsidiary. All information provided to insurance carriers (in applications and otherwise) on behalf of VIA and each VIA Subsidiary is accurate and complete. VIA and each VIA Subsidiary have provided timely written notice to the appropriate insurance carrier(s) of each Legal Proceeding pending or threatened against VIA or any VIA Subsidiary.

2.16 Legal Proceedings; Orders .

• (a) There is no pending Legal Proceeding, and, to the Knowledge of VIA, no Person has threatened to commence any Legal Proceeding: (i) that involves VIA or any of its Subsidiaries, or any of the material assets owned or used by VIA or its Subsidiaries; or (ii) that would reasonably be expected to result in a VIA Material Adverse Effect. To the Knowledge of VIA, no event has occurred, and no claim, dispute or other condition or circumstance exists, that will, or that would reasonably be expected to, give rise to or serve as a basis for the commencement of any such Legal Proceeding.

  (b) There is no order, writ, injunction, judgment or decree to which VIA or any VIA Subsidiary, or any of the assets owned or used by VIA or any VIA Subsidiary, is subject. To the Knowledge of VIA, no officer or other Key Employee of VIA or any VIA Subsidiary is subject to any order, writ, injunction, judgment or decree that prohibits such officer or other employee from engaging in or continuing any conduct, activity or practice relating to the business of VIA or any VIA Subsidiary or to any material assets owned or used by VIA or any VIA Subsidiary.

2.17 Authority; Binding Nature of Agreement . VIA and each VIA Subsidiary has all necessary corporate power and authority to enter into and to perform its obligations under this Agreement and, subject to obtaining the Required VIA Stockholder Vote, to consummate the Contemplated Transactions. The Board of Directors of VIA (at one or more meetings duly called and held) has: (a) determined that this Agreement and the Merger is advisable and fair to and in the best interests of VIA and its stockholders; (b) duly authorized and approved by all necessary corporate action, the execution, delivery and performance of this Agreement and the Contemplated Transactions, including the Merger; and (c) recommended the adoption of this Agreement by the holders of VIA Common Stock and VIA Preferred Stock and directed that this Agreement be submitted for consideration by VIA’s stockholders at the VIA Stockholder Meeting. This Agreement has been duly executed and delivered by VIA and assuming the due authorization, execution and delivery by Corautus and Merger Sub, constitutes the legal, valid and binding obligation of VIA, enforceable against VIA in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Prior to the execution of the VIA Stockholder Voting Agreements, the Board of Directors of VIA approved the VIA Stockholder Voting Agreements and the transactions contemplated thereby.

2.18 Inapplicability of Anti-takeover Statutes . VIA is not subject to Section 203 of the DGCL and no other state takeover statute or similar Legal Requirement applies or purports to apply to the Merger, this Agreement, the VIA Stockholder Voting Agreements or any of the other Contemplated Transactions.

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2.19 Vote Required . The affirmative vote (the " VIA Stockholder Approval ") of the holders of (i) the holders of a majority in voting power of the shares of VIA Common Stock and VIA Preferred Stock outstanding on the record date for the VIA Stockholder Meeting and entitled to vote thereon, voting as a single class, and (ii) a majority in voting power of the shares of VIA Preferred Stock then outstanding (collectively, the " Required VIA Stockholder Vote ") are the only votes of the holders of any class or series of VIA Capital Stock necessary to adopt this Agreement.

2.20 Non-Contravention; Consents . Subject to compliance with the HSR Act, obtaining the Required VIA Stockholder Vote and the filing of the Certificate of Merger required by the DGCL, neither (x) the execution, delivery or performance of this Agreement by VIA, nor (y) the consummation of the Merger or any of the other Contemplated Transactions, will directly or indirectly (with or without notice or lapse of time):

• (a) contravene, conflict with or result in a violation of (i) any of the provisions of the certificate of incorporation, bylaws or other charter or organizational documents of VIA or any VIA Subsidiary, or (ii) any resolution adopted by the stockholders, the Board of Directors or any committee of the Board of Directors of VIA;

  (b) contravene, conflict with or result in a violation of, or give any Governmental Body or other Person the right to challenge the Merger or any of the other Contemplated Transactions or to exercise any remedy or obtain any relief under, any Legal Requirement or any order, writ, injunction, judgment or decree to which VIA or its Subsidiaries, or any of the assets owned or used by VIA or its Subsidiaries, is subject;

  (c) contravene, conflict with or result in a violation of any of the terms or requirements of, or give any Governmental Body the right to revoke, withdraw, suspend, cancel, terminate or modify, any Governmental Authorization that is held by VIA or its Subsidiaries or that otherwise relates to the business of VIA or its Subsidiaries or to any of the assets owned or used by VIA or its Subsidiaries;

  (d) contravene, conflict with or result in a violation or breach of, or result in a default under, any provision of any VIA Contract, or give any Person the right to: (i) declare a default or exercise any remedy under any VIA Contract; (ii) a rebate, chargeback, penalty or change in delivery schedule under any such VIA Contract; (iii) accelerate the maturity or performance of any VIA Contract; or (iv) cancel, terminate or modify any term of any VIA Contract, except, in the case of any VIA Material Contract, any non-material breach, default, penalty or modification and, in the case of all other VIA Contracts, any breach, default, penalty or modification that would not result in a VIA Material Adverse Effect;

  (e) result in the imposition or creation of any Encumbrance upon or with respect to any asset owned or used by VIA or its Subsidiaries (except for minor liens that will not, in any case or in the aggregate, materially detract from the value of the assets subject thereto or materially impair the operations of VIA); or

  (f) result in, or increase the likelihood of, the transfer of any material asset of VIA or its Subsidiaries to any Person.

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Except (i) for the approval of this Agreement by VIA’s stockholders, (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware pursuant to the DGCL, (iii) any required filings under the HSR Act, and (iv) such consents, waivers, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable federal and state securities laws, neither VIA nor any of its Subsidiaries was, is, nor will be required to make any filing with or give any notice to, or to obtain any Consent from, any Person in connection with (x) the execution, delivery or performance of this Agreement, or (y) the consummation of the Merger or any of the other Contemplated Transactions.

2.21 Certain Payments . Neither VIA, any VIA Subsidiary, nor to VIA’s Knowledge any officer, employee, agent or other Person associated with or acting for or on behalf of VIA, has at any time, directly or indirectly:

• (a) used any corporate funds (i) to make any unlawful political contribution or gift or for any other unlawful purpose relating to any political activity, (ii) to make any unlawful payment to any governmental official or employee, or (iii) to establish or maintain any unlawful or unrecorded fund or account of any nature;

  (b) made any false or fictitious entry, or failed to make any entry that should have been made, in any of the books of account or other records of VIA;

  (c) made any payoff, influence payment, bribe, rebate, kickback or unlawful payment to any Person;

  (d) performed any favor or given any gift which was not deductible for federal income tax purposes;

  (e) made any payment (whether or not lawful) to any Person, or provided (whether lawfully or unlawfully) any favor or anything of value (whether in the form of property or services, or in any other form) to any Person, for the purpose of obtaining or paying for (i) favorable treatment in securing business, or (ii) any other special concession; or

  (f) agreed or committed to take any of the actions described in clauses "(a)" through "(e)" above.

2.22 No Financial Advisor . Except for as set forth on Section 2.22 of the VIA Disclosure Schedule , no broker, finder or investment banker is entitled to any brokerage fee, finder’s fee, opinion fee, success fee, transaction fee or other fee or commission in connection with the Merger or any of the other Contemplated Transactions based upon arrangements made by or on behalf of VIA or any of its Subsidiaries.

2.23 Information; Securities Offerings .

• (a) The information to be supplied by or on behalf of VIA for inclusion in the Proxy Statement (which shall expressly exclude any and all information supplied by or on behalf of Corautus and Merger Sub), shall not, on the date the Proxy Statement is first mailed to stockholders of Corautus or at the time of the Corautus Stockholder Meeting, contain any statement which, at such time and in light of the circumstances under which it shall be made, is

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• false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Corautus Stockholder Meeting which has become false or misleading.

  (b) Each private placement of VIA securities since its inception has been made pursuant to an effective registration of securities or a valid exemption from registration.

Section 3. REPRESENTATIONS AND WARRANTIES OF CORAUTUS AND MERGER SUB

Corautus and Merger Sub, jointly and severally, represent and warrant to VIA that, except as set forth in the written disclosure schedule delivered by Corautus to VIA and attached hereto (the " Corautus Disclosure Schedule "), the following are true and correct as of the Execution Date and, subject to the materiality qualifier set forth in Section 8.1 below, shall be true and correct as of the Closing Date. The Corautus Disclosure Schedule shall be arranged in sections and subsections corresponding to the numbered and lettered sections and subsections contained in this Section 3 . The disclosures in any section or subsection of the Corautus Disclosure Schedule shall qualify other sections and subsections in this Section 3 only to the extent it is reasonably clear from a reading of the disclosure that such disclosure is applicable to such other sections and subsections. The inclusion of any information in the Corautus Disclosure Schedule (or any update thereto) shall not be deemed to be an admission or acknowledgment, in and of itself, that such information is required by the terms hereof to be disclosed, is material, has resulted in or would result in a Corautus Material Adverse Effect, or is outside the Ordinary Course of Business. For the avoidance of doubt, the use of the term " Subsidiary " with respect to Corautus shall include, without limitation, Merger Sub.

3.1 Subsidiaries; Due Organization; Etc .

• (a) Corautus has no Subsidiaries, except for Merger Sub and the Entities identified in Section 3.1(a) of the Corautus Disclosure Schedule . Neither Corautus nor any of the other Entities identified in Section 3.1(a) of the Corautus Disclosure Schedule owns any capital stock of, or any equity interest of any nature in, any other Entity, other than Merger Sub and the Entities identified in Section 3.1(a) of the Corautus Disclosure Schedule . Corautus has not agreed nor is obligated to make, nor is bound by any Contract under which it may become obligated to make, any future investment in or capital contribution to any other Entity. Corautus has not, at any time, been a general partner of, or has otherwise been liable for any of the debts or other obligations of, any general partnership, limited partnership or other Entity.

  (b) Each of Corautus and the Corautus Subsidiaries is a corporation duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all necessary power and authority: (i) to conduct its business in the manner in which its business is currently being conducted; (ii) to own and use its assets in the manner in which its assets are currently owned and used; and (iii) to perform its obligations under all Contracts by which it is bound.

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• (c) Each of Corautus and the Corautus Subsidiaries is qualified to do business as a foreign corporation, and is in good standing, under the laws of all jurisdictions where the nature of its business requires such qualification other than in jurisdictions where the failure to be so qualified individually, or in the aggregate, would not be reasonably expected to have a Corautus Material Adverse Effect.

3.2 Certificate of Incorporation; Bylaws; Charters and Codes of Conduct . Corautus (i) has delivered to VIA accurate and complete copies of the certificate of incorporation, bylaws and other charter and organizational documents, including all amendments thereto, for Corautus and each Corautus Subsidiary, and (ii) has delivered to VIA or otherwise made available the charters of all committees of Corautus’s Board of Directors, any code of conduct or similar policy adopted by Corautus or by the Board of Directors, or any committee of the Board of Directors, of Corautus.

3.3 Capitalization, Etc .

• (a) The authorized capital stock of Corautus consists of (i) 100,000,000 shares of common stock, par value $0.001 per share (the " Corautus Common Stock "), of which, as of the date hereof, 19,728,854 shares have been issued and are outstanding as of the date of this Agreement, and (ii) 5,000,000 shares of preferred stock, par value $0.001 per share, of which: (a) 40,000 shares have been designated as Series A Preferred Stock, no shares of which are outstanding as of the date of this Agreement; (b) 13,000 shares have been designated as Series B Preferred Stock, no shares of which are outstanding as of the date of this Agreement; (c) 17,000 shares have been designated as Series C Preferred Stock, 2,000 shares of which have been issued or are outstanding as of the date of this Agreement; (d) 1,400,000 shares have been designated as Series D Preferred Stock, 1,385,377 shares of which have been issued or are outstanding as of the date of this Agreement; (e) 3,500,000 shares have been designated as Series E Preferred Stock, 2,475,659 shares of which have been issued or are outstanding as of the date of this Agreement (the Corautus Series C Preferred Stock, the Series D Preferred Stock and the Series E Preferred Stock is referred to herein, collectively, as the " Corautus Preferred Stock "). Corautus holds 30,224 shares of its common stock in its treasury. All of the outstanding shares of Corautus Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except as set forth on Section 3.3(a)(i) of the Corautus Disclosure Schedule , none of the outstanding shares of Corautus Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right. None of the outstanding shares of Corautus Common Stock is subject to any right of first refusal in favor of Corautus. Except as contemplated herein and except as identified on Section 3.3(a)(i) of the Corautus Disclosure Schedule there is no Corautus Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Corautus Common Stock. Corautus is not under any obligation, nor is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Corautus Common Stock or other securities. Section 3.3(a)(ii) of the Corautus Disclosure Schedule accurately and completely describes all repurchase rights held by Corautus with respect to shares of Corautus Common Stock (including shares issued pursuant to the exercise of stock options) and specifies which of those repurchase rights are currently exercisable.

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• (b) Except for the Corautus 2002 Stock Option Plan, as amended (the " Corautus Stock Plan ") and as set forth on Section 3.3(b) of the Corautus Disclosure Schedule , Corautus does not have any stock option plan or any other plan, program, agreement or arrangement providing for any equity or equity-based compensation for any Person. As of the date of this Agreement: (i) 5,366,059 shares of Corautus Common Stock are subject to issuance pursuant to stock options granted and outstanding under the Corautus Stock Plan, of which 96,377 must be exercised or will expire by their terms on or prior to April 1, 2007; (ii) 752,744 shares of Corautus Common Stock are reserved for future issuance pursuant to stock options or other awards not yet granted under the Corautus Stock Plan; and (iii) 1,169,024 shares of Corautus Common Stock are reserved for future issuance pursuant to warrants to purchase Corautus Common Stock (" Corautus Warrants "). Corautus has made available to VIA accurate and complete copies of the Corautus Stock Plan and the forms of all stock option agreements evidencing any options granted under the Corautus Stock Plan.

  (c) Each grant of a Corautus Option was duly authorized no later than the date on which the Grant of such option was by its terms to be effective (the " Grant Date ") by all necessary corporate action, including, as applicable, approval by the Board of Directors of Corautus (or a duly constituted and authorized committee thereof) and any required stockholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto, each such grant was made in accordance with the terms of the applicable compensation plan or arrangement of the Exchange Act and all other applicable Legal Requirements, the per share exercise price of each Corautus Option was equal to the fair market value of a share of Corautus Common Stock on the applicable Grant Date and each such grant was properly accounted for in all material respects in accordance with GAAP in the financial statements (including the related notes) of Corautus and disclosed in the Corautus SEC Documents in accordance with the Exchange Act and all other applicable Legal Requirements.

  (d) Except for the outstanding shares of Corautus Preferred Stock, Corautus Warrants, Corautus Options, or as set forth on Section 3.3(d) of the Corautus Disclosure Schedule , there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Corautus; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Corautus; (iii) stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Corautus Contract under which Corautus is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Corautus (it being agreed that any assertions or claims in respect of not more than an aggregate of 250,000 shares of Corautus Common Stock shall not be deemed a breach of this representation if, and solely to the extent that, the maximum amount shares subject to such assertions or claims are included in the Corautus Aggregate Share Number for the purposes of calculating the Exchange Ratio under Section 1.7 ). There are no outstanding or authorized stock appreciation, phantom stock, profit participating or other similar rights with respect to Corautus. Except for the Corautus Preferred Stock or as set forth on Section 3.3(d) of the Corautus Disclosure Schedule , Corautus does not have any outstanding bonds, debentures, notes or other obligations to which the holders have the right to vote (or are convertible into or exchangeable for securities having the right to vote) on any matter.

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• (e) All outstanding shares of Corautus Common Stock, Corautus Options, Corautus Warrants and other securities of Corautus have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in Corautus’s certificate of incorporation, bylaws and other applicable Contracts. Corautus has delivered to VIA accurate and complete copies of all Corautus Warrants.

  (f) All of the outstanding shares of capital stock of each of Corautus’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof, and are owned beneficially and of record by Corautus, free and clear of any Encumbrances.

3.4 SEC Filings; Financial Statements .

• (a) Since February 4, 2003, Corautus has made all filings with the SEC required under the applicable requirements of the Securities Act and the Exchange Act. Corautus has delivered or otherwise made available to VIA accurate and complete copies of each report, schedule, registration statement, proxy statement, Certification (as defined below) and other statements, reports, schedules, forms and other documents, including all exhibits, amendments and supplements thereto required to be filed by Corautus with the SEC since February 4, 2003 (the " Corautus SEC Documents "). Except as set forth on Section 3.4(a) of the Corautus Disclosure Schedule , all statements, reports, schedules, forms and other documents required to have been filed by Corautus or its officers with the SEC since February 4, 2003 have been so filed on a timely basis. None of Corautus’s Subsidiaries is required to file any documents with the SEC. Corautus has resolved with the staff of the SEC any comments it may have received since February 4, 2003 and prior to the date of this Agreement in comment letters to Corautus from the staff of the SEC or, to the extent such comments are unresolved, has disclosed such unresolved comments in the Corautus SEC Documents. All Corautus SEC Documents (w) at the time filed (or, if amended or superseded by a later filing prior to the date of this Agreement, than on the date of such later filing), complied in all material respects with the applicable requirements of the Securities Act or the Exchange Act (as the case may be), the rules and regulations of the SEC thereunder applicable to such Corautus SEC Documents (x) were filed on a timely basis, (y) at the time filed (or, if amended or superseded by a later filing prior to the date of this Agreement, than on the date of such later filing), were prepared in compliance in all material respects with the applicable requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Corautus SEC Documents, and (z) did not at the time they were filed contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading. As used in this Section 3 , the term "file" and variations thereof shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.

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• (b) Corautus is in compliance in all material respects with the applicable provisions of the Sarbanes-Oxley Act and the rules and regulations of the SEC promulgated thereunder. The certifications and statements required by (A) Rule 13a-14 under the Exchange Act and (B) 18 U.S.C. §1350 (Section 906 of the Sarbanes-Oxley Act) relating to the Corautus SEC Documents (collectively, the " Certifications ") are accurate and complete and comply as to form and content with all applicable Legal Requirements.

  (c) Corautus maintains a system of internal controls and procedures over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) sufficient to ensure (i) that Corautus and each of its Subsidiaries maintains records that in reasonable detail accurately and fairly reflect its transactions and dispositions of assets, (ii) that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, (iii) that receipts and expenditures are executed only in accordance with authorizations of management and the Board of Directors of Corautus and each of its Subsidiaries and (iv) regarding prevention of timely detection of the unauthorized acquisition, use or disposition of Corautus’s and each of its Subsidiaries’ assets that could have a material effect on Corautus’s consolidated financial statements. Except as disclosed in Corautus’s SEC Documents, neither Corautus nor any of its Subsidiaries has identified any material weaknesses or significant deficiencies in the design or operation of Corautus’s and each of its Subsidiaries internal controls and procedures over financial reporting. There are no internal investigations and, to Corautus’s Knowledge, there are no SEC inquiries or investigations or other governmental inquiries or investigations pending or threatened in each case regarding any accounting practices of Corautus or any of its Subsidiaries, any malfeasance by any director or executive officer of Corautus or any of its Subsidiaries or any other actions of Corautus or any of its Subsidiaries or their respective Representatives relating to any possible violation of any Legal Requirement. Section 3.4(c) of the Corautus Disclosure Schedule sets forth in reasonable detail all internal investigations conducted by Corautus and all SEC inquiries or investigations or other governmental inquiries or investigations conducted or threatened in each case regarding any accounting practices of Corautus or any of its Subsidiaries, any malfeasance by any director or executive officer of Corautus or any of its Subsidiaries or any other actions of Corautus or any of its Subsidiaries or their respective Representatives relating to any possible violation of any Legal Requirement. Corautus has made available to VIA copies of all SEC comment letters addressed to Corautus since February 4, 2003.

  (d) Except as set forth on Section 3.4(d) of the Corautus Disclosure Schedule , (i) to the Knowledge of Corautus, Corautus is in compliance with the applicable listing and other rules and regulations of the NASDAQ Capital Market, and (ii) Corautus has not received any notice from the NASDAQ Capital Market asserting any non-compliance with such rules and regulations.

  (e) The consolidated financial statements (including any related notes) contained or incorporated by reference in the Corautus SEC Documents: (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with GAAP (except as may be indicated in the notes to such financial statements or, in the case of unaudited financial statements, as permitted by Form 10-Q of the SEC, and except that the unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments that are not reasonably expected to be

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• material in amount) applied on a consistent basis unless otherwise noted therein throughout the periods indicated; and (iii) fairly present, in all material respects, the consolidated financial position of Corautus and its consolidated Subsidiaries as of the respective dates thereof and the consolidated results of operations and cash flows of Corautus and its consolidated Subsidiaries for the periods covered thereby.

  (f) To the Knowledge of Corautus, Corautus’s auditor has at all times since the date of enactment of the Sarbanes-Oxley Act been: (i) a registered public accounting firm (as defined in Section 2(a)(12) of the Sarbanes-Oxley Act); (ii) "independent" with respect to Corautus and its Subsidiaries within the meaning of Regulation S-X under the Exchange Act; and (iii) in compliance with subsections (g) through (l) of Section 10A of the Exchange Act and the rules and regulations promulgated by the SEC and the Public Company Accounting Oversight Board thereunder. Section 3.4(f) of the Corautus Disclosure Schedule contains an accurate and complete description of all non-audit services performed by Corautus’s auditors for Corautus and its Subsidiaries since July 30, 2002 and the fees paid for such services. All such non-audit services were approved as required by Section 202 of the Sarbanes-Oxley Act.

  (g) Each of Corautus and its Subsidiaries maintains a system of internal accounting controls designed to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Corautus maintains internal control over financial reporting that provides reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP.

  (h) Except as set forth in Section 3.4(h) of the Corautus Disclosure Schedule Corautus has not, since July 30, 2002, extended or maintained credit, arranged for the extension of credit, modified or renewed an extension of credit, in the form of a personal loan or otherwise, to or for any director or executive officer of Corautus.

  (i) Section 3.4(i) of the Corautus Disclosure Schedule lists, and Corautus has delivered to VIA accurate and complete copies of the documentation creating or governing, all securitization transactions and "off-balance sheet arrangements" (as defined in Item 303(c) of Regulation S-K under the Exchange Act) effected by Corautus since February 4, 2003.

  (j) From January 1, 2006 through the date hereof, Corautus has not received any comment letter from the SEC or the staff thereof relating to the delisting or maintenance of listing of the Corautus Common Stock on the NASDAQ Capital Market. The SEC has informed Corautus that it has no further comments with regard to the unresolved comments noted in the Corautus SEC Documents.

  (k) There have been no formal internal investigations regarding financial reporting or accounting policies and practices discussed with, reviewed by or initiated at the direction of the chief executive officer, chief financial officer or general counsel of Corautus,

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• Corautus’s Board of Director or any committee thereof, other than ordinary course audits or reviews of accounting policies and practices or internal controls required by the Sarbanes-Oxley Act.

  (l) The information to be supplied by or on behalf of Corautus for inclusion in the Proxy Statement, which shall expressly exclude any and all information supplied by or on behalf of VIA, shall not, on the date the Proxy Statement is first mailed to stockholders of Corautus or at the time of the Corautus Stockholder Meeting, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Corautus Stockholder Meeting which has become false or misleading.

  (m) In connection with each private placement of Corautus equity securities since February 4, 2003 (each, a " Private Placement ") (i) Corautus has filed all registration statements required to be filed with the SEC by Corautus pursuant to the agreement between Corautus and the investors in such Private Placement (each a " Private Placement Agreement ") within the time period required by such Private Placement Agreement and each such registration statement was declared effective by the SEC within the time period required by the Private Placement Agreement and (ii) Corautus has caused each such registration statement to remain effective for the time period required by the Private Placement Agreement. Corautus has not incurred any penalty for failure to comply with any requirement under any Private Placement Agreement.

3.5 Absence of Changes . Except as set forth on Section 3.5 of the Corautus Disclosure Schedule , since the date of the Corautus Unaudited Balance Sheet, neither Corautus nor any Corautus Subsidiary has:

• (a) suffered any Corautus Material Adverse Effect;

  (b) suffered any material loss, damage or destruction to, or any material interruption in the use of, any of the assets or business of Corautus or any Corautus Subsidiary (whether or not covered by insurance);

  (c) (i) declared, accrued, set aside or paid any dividend or made any other distribution in respect of any shares of capital stock; or (ii) repurchased, redeemed or otherwise reacquired any shares of capital stock or other securities;

  (d) sold, issued, granted, or authorized the issuance of: (i) any capital stock or other security (except for Corautus Common Stock issued upon the valid exercise of outstanding Corautus Options and Corautus Warrants); (ii) any option, warrant or right to acquire any capital stock or any other security (except for Corautus Options and Corautus Warrants); or (iii) any instrument convertible into or exchangeable for any capital stock or other security;

  (e) amended or waived any of its rights under, or exercised its discretion to permit the acceleration of vesting under any provision of: (i) the Corautus Stock Plan; (ii) any

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• Corautus Option or Corautus Warrant; (iii) any restricted stock purchase agreement; or (iv) any other Contract evidencing or relating to any equity award (whether payable in cash or stock);

  (f) amended the certificate of incorporation, bylaws or other charter or organizational documents of Corautus or any Corautus Subsidiary, and neither Corautus nor any Corautus Subsidiary has effected or been a party to any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction;

  (g) formed any Subsidiary or acquired any equity interest or other interest in any other Entity;

  (h) (i) lent money to any Person; (ii) incurred or guaranteed any indebtedness; (iii) issued or sold any debt securities or options, warrants, calls or other rights to acquire any debt securities; (iv) guaranteed any debt securities of others; or (v) made any capital expenditure or commitment, individually or in the aggregate, in excess of $50,000;

  (i) other than in the Ordinary Course of Business: (i) adopted, established or entered into any Corautus Employee Plan; (ii) caused or permitted any Corautus Employee Plan to be amended, other than as required by law; or (iii) paid any bonus or made any profit-sharing or similar payment to, or increased the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors or employees;

  (j) changed any of its methods of accounting or accounting practices;

  (k) made any Tax election, filed any material amendment to any Tax Return, adopted or changed any accounting method in respect of Taxes, entered into any or closing agreement relating to any material Tax, settled or compromised any claim, notice, audit report or assessment in respect of Taxes, or consented to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment;

  (l) commenced, threatened or settled any Legal Proceeding;

  (m) entered into any new line of business;

  (n) adopted a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization;

  (o) acquired any material assets nor sold, leased or otherwise irrevocably disposed of any of its material assets or properties, nor has any Encumbrance been granted with respect to such assets or properties, except in the Ordinary Course of Business;

  (p) entered into, amended or terminated any Corautus Material Contract;

  (q) effected or entered into any (i) material change in pricing or royalties or other payments set or charged by Corautus or any Corautus Subsidiary to its customers or licensees, (ii) agreement by Corautus or any Corautus Subsidiary to change pricing or royalties or other payments set or charged by persons who have licensed Intellectual Property to Corautus

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• or any Corautus Subsidiary, or (iii) as of the date of this Agreement, material change in pricing or royalties or other payments set or charged by persons who have licensed Intellectual Property to Corautus or any Corautus Subsidiary;

  (r) licensed, sold, transferred, pledged, encumbered modified, disclosed, abandoned, failed to maintain or otherwise disposed of any Intellectual Property, except in the Ordinary Course of Business;

  (s) pledged any of its assets or otherwise permitted any of its assets to become subject to any Encumbrance;

  (t) entered into any transaction or taken any other action outside of the Ordinary Course of Business, other than entering into this Agreement and the Contemplated Transactions; and

  (u) has negotiated, agreed or committed to take any of the actions referred to in clauses "(c)" through "(t)" above (other than negotiations between the Parties to enter into this Agreement).

3.6 Title to Assets . Except as set forth on Section 3.6 of the Corautus Disclosure Schedule , each of Corautus and the Corautus Subsidiaries owns and has good and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all tangible properties or assets and equipment used or held for use in its business or operations or purported to be owned by it, including: (a) all assets reflected on the Corautus Unaudited Balance Sheet (except for inventory sold or otherwise disposed of in the Ordinary Course of Business since the date of the Corautus Unaudited Balance Sheet); and (b) all other assets reflected in the books and records of Corautus or any Corautus Subsidiary as being owned by Corautus or such Corautus Subsidiary. All of said assets are owned by Corautus or a Corautus Subsidiary free and clear of any Encumbrances, except for: (i) any lien for current taxes not yet due and payable; (ii) minor liens that have arisen in the Ordinary Course