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EXHIBIT
10.11
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT (this “ Agreement
”), dated as of June 5, 2007, is made and entered into
by and among VIA PHARMACEUTICALS, INC., a Delaware corporation (the
“ Company ”), and each of the stockholders of
the Company listed on Exhibit A hereto, as such Exhibit
A may be amended from time to time (the “
Stockholders ”). For the purposes of this Agreement,
the term “Company” shall be deemed to include and refer
to any successor in interest to the Company, whether by means of
statutory conversion, merger, consolidation, recapitalization,
reorganization or otherwise.
R E C I T A L
S
WHEREAS, the parties hereto
are party to that certain Registration Rights Agreement, dated as
of March 31, 2006 (the “ Original Registration Rights
Agreement ”), pursuant to which the Company has agreed to
provide the signatories hereto with certain registration rights
under the Securities Act and applicable state securities
laws;
WHEREAS, the Company has
entered into that certain Agreement and Plan of Merger, dated as of
February 7, 2007 (the “ Merger Agreement
”), by and among the Company, Corautus Genetics Inc., a
Delaware corporation (“ Corautus ”), and
Resurgens Merger Corp., a Delaware corporation and a wholly-owned
subsidiary of Corautus (“ Resurgens
”);
WHEREAS, pursuant to the
terms of the Merger Agreement, at the Effective Time (as defined in
the Merger Agreement), Resurgens will merge with and into the
Company (the “ Merger ”) and the Company will be
the surviving corporation and become a wholly-owned subsidiary of
Corautus;
WHEREAS, at the Effective
Time (as defined in the Merger Agreement) of the Merger, pursuant
to the terms of the Merger Agreement, all outstanding shares of
Common Stock and Series A Preferred Stock of the Company will
automatically be converted into the right to receive shares of
common stock, par value $0.001 per share, of Corautus (“
Corautus Common Stock ”), and all outstanding options
to purchase shares of VIA Common Stock that have not been exercised
prior to the consummation of the Merger will be assumed by Corautus
and become options to purchase shares of Corautus Common
Stock;
WHEREAS, immediately
following the consummation of the Merger, Corautus will change its
name to “VIA Pharmaceuticals, Inc.”; and
WHEREAS, in connection with
the Merger, the parties hereto desire to amend and restate the
Original Registration Rights Agreement in its entirety pursuant to
the terms and conditions contained in this Agreement.
NOW, THEREFORE, in
consideration of the recitals and the mutual premises, covenants
and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
1. Definitions . In
addition to capitalized terms defined elsewhere in this Agreement,
the following capitalized terms shall have the following meanings
when used in this Agreement:
“ Business Day
” means each day other than a Saturday, a Sunday or any other
day on which banking institutions in the city of San Francisco,
California are authorized or obligated by law or executive order to
be closed.
“ Commission
” means the Securities and Exchange Commission and any
successor agency performing comparable functions.
“ Common Stock
” means the common stock, par value $0.001 per share, of the
Company.
“ Exchange Act
” means the Securities Exchange Act of 1934, as amended, or
any successor federal statute, and the rule and regulations of the
Commission thereunder, as the same shall be in effect from time to
time.
“ Immediate Family
Member ” means with respect to any holder of Registrable
Securities, the parents, siblings, spouse and issue, spouses of
issue and any trust for the benefit of, or the legal representative
of, any of the preceding Persons, or any partnership substantially
all of the partners of which are one or more of such Persons or the
holder of Registrable Securities or any limited liability company
substantially all of the members of which are one or more of such
Persons or the holder of Registrable Securities.
“ Person ”
means an individual, partnership, corporation, limited liability
company, association, joint stock company, trust, joint venture,
unincorporated organization or other entity, or a governmental
entity or any department, agency or political subdivision
thereof.
“ Public ”
means a corporation that has a class of securities registered
pursuant to Section 12 of the Exchange Act or which is
required to file reports pursuant to Section 15(d) of the
Exchange Act.
“ Public
Offering ” means any offering by the Company of its
equity securities to the public pursuant to an effective
registration statement under the Securities Act or any comparable
statement under any comparable federal statute then in effect
(other than any registration statement on Form S-8 or Form S-4 or
any successor forms thereto).
“ Qualified IPO
” means a firm commitment underwritten public offering of
Common Stock of the Company that yields net proceeds to the Company
of not less than $20,000,000 at an equivalent price per share of
Common Stock of not less than $3.00 (as adjusted for any stock
splits, stock dividends, in-kind equity distributions and
recapitalizations).
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“ Registrable
Securities ” means at any time, any of the following
owned by any equity holder of the Company party to this Agreement:
(i) Common Stock or other equity securities of the Company
into which the Common Stock then outstanding shall be reclassified
or changed, including by reason of a merger, consolidation,
reorganization, recapitalization or statutory conversion
(including, without limitation, Corautus Common Stock) which are
then owned by any Stockholder, including any other Person who is a
permitted transferee or assignee of such holder pursuant to
Section 13 hereof; (ii) the Series A Registrable
Securities; and (iii) any common equity securities of the
Company then outstanding which were issued as, or were issued
directly or indirectly upon the conversion, exchange or exercise of
other equity securities issued or issuable as a dividend, stock
split or other distribution with respect or in replacement of any
equity securities referred to in (i) or (ii) of this
definition; provided, however , that Registrable Securities
shall not include any equity securities which have been registered
pursuant to the Securities Act or which have been sold to the
public pursuant to Rule 144 of the Commission under the Securities
Act.
“ Securities Act
” means the Securities Act of 1933, as amended, or any
successor federal statute, and the rule and regulations of the
Commission thereunder, as the same shall be in effect from time to
time.
“ Series A
Registrable Securities ” means at any time, any of the
following owned by any equity holder of the Company party to this
Agreement: (i) any common equity securities of the Company
issuable upon conversion or exchange of the Series A Preferred
Stock, or issuable or issued upon conversion or exchange of other
equity securities of the Company into which the Series A Preferred
Stock shall be reclassified or changed, including by reason of a
merger, consolidation, reorganization, recapitalization or
statutory conversion then outstanding (including, without
limitation, Corautus Common Stock) which are then owned by any
Stockholder, including any other Person who is a permitted
transferee or assignee of such holder pursuant to
Section 13 hereof; and (ii) any common equity
securities of the Company then outstanding which were issued as, or
were issued directly or indirectly upon the conversion, exchange or
exercise of other equity securities issued or issuable as a
dividend, stock split or other distribution with respect or in
replacement of any equity securities referred to in (i) of
this definition.
“ Series A Preferred
Stock ” means the Series A convertible preferred stock,
par value $0.001 per share, of the Company.
“ Stockholder
Agreement ” means that certain First Amended and Restated
Stockholders’ Agreement, dated of even date herewith, among
the Company and each of the holders of shares of the
Company’s capital stock signatory thereto, as amended from
time to time.
2. Demand
Registration.
2.1 Long-Form
Registrations .
(a) Subject to the terms of
this Agreement, at any time after 180 days following the effective
date of a Qualified IPO or the Company becoming Public (as a result
of
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the Merger or otherwise), the holders of
at least a majority of the Series A Registrable Securities may
request registration under the Securities Act of all or part of
their then outstanding Registrable Securities represented by such
Series A Registrable Securities on Form S-1 or any similar
long-form registration; provided, that with respect to any
demands under this clause (a) the anticipated aggregate
offering price of the Registrable Securities covered by such
registration exceeds $2,000,000 (net of underwriting discounts and
commissions).
(b) Within ten (10) days
after receipt of any written request pursuant to this
Section 2.1 , the Company will give written notice of
such request to all other holders of Registrable Securities and
will use its reasonable best efforts to include in such
registration all Registrable Securities with respect to which the
Company has received written requests for inclusion within 20 days
after delivery of the Company’s notice, and, thereupon the
Company will use its reasonable best efforts to file as soon as
practicable, and in any event within 90 days of the receipt of such
request, a registration statement under the Securities Act covering
all Registrable Securities requested to be included in such
registration. All registrations requested pursuant to this
Section 2.1 are referred to herein as “
Long-Form Demand Registration .” The Company shall not
be obligated to effect, or to take any action to effect, more than
one (1) Long-Form Demand Registration pursuant to this
Section 2.1 . In addition, the Company shall not be
obligated to effect, or to take any action to effect, any Long-Form
Demand Registration during (i) the period starting with the
date 90 days prior to the Company’s good faith estimate of
the date of filing of, and ending on a date 90 days after the
effective date of, a registration subject to Section 4
hereof; provided , that the Company is actively employing in
good faith all reasonable efforts to cause such registration
statement to become effective; and (ii) the 180-day period
following the Company being Public (as a result of the Merger or
otherwise).
2.2 Short-Form
Registrations . In addition to the Long-Form Demand
Registration provided pursuant to Section 2.1 above,
commencing the date on which the Company becomes eligible to
register securities issued by it on a Form S-3 or any similar
short-form registration, the holders of at least twenty-five
percent (25%) of the Registrable Securities then outstanding
will be entitled to request registrations under the Securities Act
of all or part of their Registrable Securities on Form S-3, if
available to the Company, or any similar short-form registration
(“ Short-Form Demand Registrations ” and,
together with the Long-Form Demand Registration, “ Demand
Registrations ”); provided, however , that the
anticipated aggregate offering amount of the Registrable Securities
included in any such Short-Form Registration exceeds $1,000,000.
Promptly after receipt of any request pursuant to this
Section 2.2 , the Company will give written notice of
such request to all other holders of Registrable Securities and
will use reasonable best efforts to include in such registration
all Registrable Securities with respect to which the Company has
received written requests for inclusion within 15 days after
delivery of the Company’s notice. Once the Company has become
subject to the reporting requirements of the Exchange Act, the
Company will use its reasonable best efforts to make Short-Form
Demand Registrations available for the sale of Registrable
Securities. Demand Registrations will be Short-Form Demand
Registrations whenever the Company is permitted to use any
applicable short form. If a Short-Form Demand Registration is to be
an underwritten Public Offering, and if the underwriters for
marketing or other reasons request the inclusion in the
registration statement of information which is not required under
the Securities Act to be included in a registration statement on
the applicable form for the Short-Form Demand Registration, the
Company will provide such information as may be reasonably
requested for
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inclusion by the underwriters in the
Short-Form Demand Registration. The Company shall not be obligated
to effect more than two (2) Short-Form Demand Registrations in
any twelve month period pursuant to this Section 2.2
.
2.3 Payment of Expenses
for Demand Registrations . The Company will pay all
Registration Expenses (as defined in Section 7 below)
for the Demand Registrations permitted under Sections 2.1
and 2.2 (other than underwriting discounts and commissions
incurred by each holder of the Company’s securities
participating in the registration). A registration will not count
as a Demand Registration (i) unless a registration statement
with respect thereto has become effective and remained effective in
compliance with the provisions of the Securities Act with respect
to the disposition of all Registrable Securities covered by such
registration statement until the earlier of (x) such time as
all of such Registrable Securities have been disposed of in
accordance with the intended methods of disposition by the seller
or sellers thereof set forth in such registration statement and
(y) 120 days after the effective date of such registration
statement, (ii) if after it has become effective, such
registration is interfered with by any stop order, injunction or
other order or requirement of the Commission or other governmental
agency or court for any reason not attributable to the selling
holders and has not thereafter become effective, or (iii) if
the conditions to closing specified in the underwriting agreement,
if any, entered into in connection with such registration are not
satisfied or waived, other than by reason of a failure on the part
of the holders of the Registrable Securities to be registered
thereunder.
2.4 Priority . If a
Demand Registration is an underwritten Public Offering and the
managing underwriters advise the Company in writing that in their
opinion the inclusion of the number of Registrable Securities and
other securities requested to be included exceeds the number of
securities which can be sold in the offering without adversely
affecting the marketability of such offering, then the managing
underwriter may exclude securities (including Registrable
Securities) from the registration and the underwriting and the
number of securities that may be included in such registration and
underwriting shall include first , the Series A Registrable
Securities requested to be included in such registration, pro rata
among the holders of such Series A Registrable Securities on the
basis of the total number of Series A Registrable Securities owned
by each such holder, second , the Registrable Securities
(other than the Series A Registrable Securities) requested to be
included in such registration, pro rata among the holders of such
Registrable Securities on the basis of the total number of
Registrable Securities owned by each such holder, and third
, other equity securities requested to be included in such
registration to be allocated pro rata among the holders of thereof
on the basis of the number of such equity securities owned by each
such holder. In no event will a Demand Registration pursuant to
Section 2.1 count as a Long-Form Demand Registration
for purposes of Section 2.1 unless at least thirty
percent (30%) of all Registrable Securities requested to be
registered in such Demand Registration by the initiating holders
are, in fact, registered and sold in such registration.
2.5 Restrictions .
Except as contemplated by Section 2.2 hereof, the
Company will not be obligated to effect any Demand Registration
within 180 days after the effective date of a previous Demand
Registration. With respect to any Demand Registration, if
(a) the Board of Directors of the Company reasonably and in
good faith determines that such filing would be seriously
detrimental to the Company or its stockholders, or require a
disclosure of a material
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fact that might reasonably be expected
to have a material adverse effect on the Company or any plan or
proposal by the Company or any of its subsidiaries to engage in any
acquisition or disposition of assets or equity securities (other
than in the ordinary course of business) or any merger,
consolidation, tender offer, material financing or other
significant transaction and (b) the Company shall furnish the
holders of Registrable Securities who have requested a Demand
Registration a certificate signed by an executive officer of the
Company to such effect, the Company may postpone for up to 120 days
the filing or the effectiveness of a registration statement for a
Demand Registration; provided , that the Company may not
postpone the filing or effectiveness of a registration statement
for a Demand Registration for more than 120 days during any
12-month period.
2.6 Selection of
Underwriters. The holders of a majority of the Registrable
Securities initiating the Demand Registration shall have the right
to select the investment banker(s) and manager(s) to administer the
offering, subject to the Company’s approval which will not be
unreasonably withheld or delayed.
3. Shelf Registration
.
3.1 Right to Shelf
Registration . Subject to the terms of this Agreement, at any
time after 180 days following the effective date of a Qualified IPO
or the Company becoming Public (as a result of the Merger or
otherwise), the holders of at least a majority of the Series A
Registrable Securities shall be entitled to request that the
Company file a shelf registration statement with respect to all or
part of their Registrable Securities represented by such Series A
Registrable Securities pursuant to Rule 415 under the Securities
Act (the “ Shelf Registration ”). The Company
shall use its reasonable best efforts to have the Shelf
Registration declared effective as soon as practicable after such
filing, and shall use its reasonable best efforts to keep the Shelf
Registration effective and updated, from the date such Shelf
Registration is declared effective until the earliest to occur of
(a) such time as the holder requesting the Shelf Registration
has sold all of its Registrable Securities registered pursuant to
the Shelf Registration, and (b) two (2) years from the
date such Shelf Registration is declared effective (such period,
the “ Shelf Registration Effectiveness Period
”). The Company shall not be obligated to effect, or to take
any action to effect, more than one (1) Shelf Registration
pursuant to this Section 3.1 . In addition, the Company
shall not be obligated to effect, or to take any action to effect,
any Shelf Registration during (i) the period starting with the
date 90 days prior to the Company’s good faith estimate of
the date of filing of, and ending on a date 90 days after the
effective date of, a registration subject to Section 4
hereof; provided , that the Company is actively employing in
good faith all reasonable efforts to cause such registration
statement to become effective; and (ii) the 180-day period
following the Company being Public (as a result of the Merger or
otherwise).
3.2 Payment of Expenses
for Shelf Registration . The Company will pay all Registration
Expenses (as defined in Section 7 below) for the Shelf
Registration permitted under Section 3.1 (other than
underwriting discounts and commissions incurred by each holder of
the Company’s securities participating in the registration).
A registration will not count as a Shelf Registration
(i) unless a registration statement with respect thereto has
become effective and remained effective in compliance with the
provisions of the Securities Act with respect to the disposition of
all Registrable Securities covered by such registration statement
until the earlier of (x) such time as all of such Registrable
Securities have been disposed of in accordance with the
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intended methods of disposition by the
seller or sellers thereof set forth in such registration statement
and (y) 90 days after the effective date of such registration
statement, (ii) if after it has become effective, such
registration is interfered with by any stop order, injunction or
other order or requirement of the Commission or other governmental
agency or court for any reason not attributable to the selling
holders and has not thereafter become effective, or (iii) if
the conditions to closing specified in the underwriting agreement,
if any, entered into in connection with such registration are not
satisfied or waived, other than by reason of a failure on the part
of the holders of the Registrable Securities to be registered
thereunder.
3.3 Restrictions .
With respect to any Shelf Registration, if (a) the Board of
Directors of the Company reasonably and in good faith determines
that such filing would be seriously detrimental to the Company or
its stockholders, or require a disclosure of a material fact that
might reasonably be expected to have a material adverse effect on
the Company or any plan or proposal by the Company or any of its
subsidiaries to engage in any acquisition or disposition of assets
or equity securities (other than in the ordinary course of
business) or any merger, consolidation, tender offer, material
financing or other significant transaction and (b) the Company
shall furnish the holders of Series A Registrable Securities who
have requested a Shelf Registration a certificate signed by an
executive officer of the Company to such effect, the Company may
postpone for up to 120 days the filing or the effectiveness of a
registration statement for a Shelf Registration; provided ,
that the Company may not postpone the filing or effectiveness of a
registration statement for a Shelf Registration for more than 180
days during any 12-month period.
4. Piggyback
Registration.
4.1 Right to Piggyback
. At any time following a Qualified IPO or the Company becoming
Public (as a result of the Merger or otherwise), whenever the
Company proposes to register any of its equity securities (or
securities that are convertible into equity securities) under the
Securities Act for its own account or otherwise, and the
registration form to be used may be used for the registration of
any Registrable Securities (a “ Piggyback Registration
”) (except for the registrations on Form S-8 or Form S-4 or
any successor form thereto), the Company will promptly give written
notice to all holders of the Registrable Securities of its
intention to effect such a registration and will use reasonable
best efforts to include in such registration all Registrable
Securities (in accordance with the priorities set forth in
Sections 4.2 and 4.3 below) with respect to which the
Company has received written requests for inclusion specifying the
number of equity securities desired to be registered, which request
shall be delivered within 20 days after the delivery of the
Company’s notice; provided , that with respect to any
Piggyback Registration, the holders of a majority of Registrable
Securities shall have the right to waive and forego, as against
themselves and all other holders of Registrable Securities, the
right to include any Registrable Securities in such Piggyback
Registration.
4.2 Priority on Primary
Registrations . If a Piggyback Registration is an underwritten
primary registration on behalf of the Company and the managing
underwriters advise the Company in writing that in their opinion
the number of securities requested to be included in the
registration exceeds the number which can be sold in such offering
without adversely affecting the marketability of such offering,
then the managing underwriter may exclude securities (including
Registrable Securities) from the registration and the
underwriting,
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and the number of securities that may be
included in such registration and underwriting shall include
first , any securities that the Company proposes to sell,
second , the Series A Registrable Securities requested to be
included in such registration, pro rata among the holders of such
Series A Registrable Securities on the basis of the total number of
Registrable Securities owned by each such holder, third ,
the Registrable Securities (other than the Series A Registrable
Securities) requested to be included in such registration, pro rata
among the holders of such Registrable Securities on the basis of
the total number of Registrable Securities owned by each such
holder, and fourth , other equity securities requested to be
included in such registration to be allocated pro rata among the
holders thereof on the basis of the number of such equity
securities owned by each such holder.
4.3 Priority on Secondary
Registrations. If a Piggyback Registration is an underwritten
secondary registration on behalf of holders of the Company’s
securities and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to
be included in the registration exceeds the number which can be
sold in such offering without adversely affecting the marketability
of such offering, the Company will include in such registration
first , the equity securities requested to be included
therein by the holders requesting such registration and the Series
A Registrable Securities requested to be included in such
registration, pro rata among the holders of such equity securities
and Series A Registrable Securities on the basis of the total
number of equity securities and Series A Registrable Securities
owned by each such holder, second , the Registrable
Securities (other than the Series A Registrable Securities)
requested to be included in such registration, pro rata among the
holders of such Registrable Securities on the basis of the total
number Registrable Securities owned by each such holder, and
third , other equity securities requested to be included in
such registration to be allocated pro rata among the holders
thereof on the basis of the number of such equity securities owned
by each such holder.
4.4 Other
Registrations . If the Company has previously filed a
registration statement with respect to Registrable Securities
pursuant to this Section 4 , and if such previous
registration has not been withdrawn or abandoned, the Company will
not file or cause to be effected any other registration of any of
its equity securities or securities convertible or exchangeable
into or exercisable for its equity securities under the Securities
Act (except on Form S-8 or Form S-4 or any successor forms
thereto), whether on its own behalf or at the request of any holder
or holders of such securities, until a period of at least 180 days
has elapsed from the effective date of such previous
registration.
4.5 Selection of
Underwriters . In connection with any Piggyback Registration,
the Company will have such right to select the managing
underwriters (subject to the approval of the holders of a majority
of the Registrable Securities requested to be included in such
registration, which approval shall not be unreasonably withheld or
delayed).
5. Lock-Up Agreements
.
5.1 Holders’
Agreements . To the extent not inconsistent with applicable
law, each holder of Registrable Securities agrees that upon request
of the Company or the underwriters managing any underwritten
offering of the Company’s securities, it will (a) not
sell, make any short sale of, loan, grant any option for the
purchase of, otherwise dispose of, hedge or
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transfer any of the economic interest in
(or agree or commit to do any of the foregoing) any Registrable
Securities (other than those included in the registration, if any)
without the prior written consent of the Company or such
underwriters, as the case may be, (i) for up to 14 days prior
to, an
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