SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS SECOND
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “
Agreement ”), dated as of March 12, 2009, is made
and entered into by and among VIA PHARMACEUTICALS, INC., a Delaware
corporation (the “ Company ”), and each of the
parties listed on Exhibit A hereto, as such
Exhibit A may be amended from time to time
(collectively, the “ Stockholders ”). For the
purposes of this Agreement, the term “Company” shall be
deemed to include and refer to any successor in interest to the
Company, whether by means of statutory conversion, merger,
consolidation, recapitalization, reorganization or
otherwise.
WHEREAS, certain
of the Stockholders are parties to the Amended and Restated
Registration Rights Agreement, dated as of June 5, 2007 (the
“ Prior Registration Rights Agreement ”),
pursuant to which the Company has granted certain registration
rights under the Securities Act with respect to shares of Common
Stock held by such Stockholders;
WHEREAS, the
Company and certain Stockholders party hereto are entering into a
Note and Warrant Purchase Agreement (the “ Purchase
Agreement ”) and Promissory Notes (the “
Promissory Notes ”), each dated the date hereof, and
as an inducement and partial consideration for such Stockholders
entering into such Purchase Agreement and Promissory Notes, the
Company is issuing to such Stockholders Warrants to Purchase Common
Stock of VIA Pharmaceuticals, Inc. (collectively, the “
Warrants ”), dated as of the date hereof, pursuant to
which the Company is granting to such Stockholders the right to
purchase from the Company an aggregate of 83,333,333 shares of
Common Stock on the terms and conditions set forth in the
Warrants;
WHEREAS, in
accordance with the terms of the Purchase Agreement and the
Warrants, the Company desires to grant certain registration rights
to the Stockholders party to the Warrants with respect to the
shares of Common Stock underlying the Warrants;
WHEREAS, the
provisions of the Prior Registration Rights Agreement may be
amended or waived at any time by written agreement of the Company
and the Stockholders of at least a majority of the Registrable
Securities (as defined in the Prior Registration Rights Agreement);
and
WHEREAS, the
Company and the Stockholders of at least a majority of the
Registrable Securities (as defined in the Prior Registration Rights
Agreement) desire to amend and restate the Prior Registration
Rights Agreement in its entirety to provide for such registration
rights to the Stockholders party to the Warrants.
NOW, THEREFORE, in
consideration of the recitals and the mutual premises, covenants
and agreements herein contained and other good and valid
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement hereby agree as
follows:
In addition to the
terms defined elsewhere in this Agreement, the following terms
shall have the following meanings:
“
Affiliate ” of any Person means any other Person that
directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with,
such Person. The term “control” (including the terms
“controlling,” “controlled by” and
“under common control with”) as used with respect to
any Person means the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by
contract or otherwise.
“
Agreement ” means this Second Amended and Restated
Registration Rights Agreement, including all amendments,
modifications and supplements and any exhibits or schedules to any
of the foregoing, and shall refer to this Second Amended and
Restated Registration Rights Agreement as the same may be in effect
at the time such reference becomes operative.
“
Business Day ” means any day, except a Saturday,
Sunday or legal holiday on which banking institutions in the city
of San Francisco, California are authorized or obligated by law or
executive order to close.
“ Common
Stock ” means the common stock, par value $0.001 per
share, of the Company.
“
Exchange Act ” means the Securities Exchange Act of
1934, as amended, or any successor federal statute, and the rule
and regulations of the SEC thereunder, as the same shall be in
effect from time to time.
“
FINRA ” means the Financial Industry Regulatory
Authority.
“
Person ” means any individual, sole proprietorship,
partnership, limited liability company, joint venture, trust,
unincorporated organization, association, corporation, institution,
public benefit corporation, governmental entity or any department,
agency or political subdivision thereof.
“
Prospectus ” means the prospectus or prospectuses
forming a part of, or deemed to form a part of, or included in, or
deemed included in, any Registration Statement, as amended or
supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Common Stock
covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective
amendments and all material incorporated by reference in such
prospectus or prospectuses.
“
Registrable Common Stock ” means at any time, any of
the following owned by any equity holder of the Company party to
this Agreement: (i) Common Stock or other equity securities of
the Company in which the Common Stock then outstanding shall be
reclassified or changed, including by reason of a merger,
consolidation, reorganization, recapitalization or statutory
conversion; (ii) Common Stock issuable upon exercise of the
Warrant; and (iii) any equity securities of the Company then
outstanding which were issued as, or were issued
directly
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or indirectly
upon the conversion, exchange or exercise of other equity
securities issued or issuable as a dividend, stock split or other
distribution with respect or in replacement of any equity
securities referred to in (i) or (ii) of this definition;
provided, however , that Registrable Common Stock shall not
include any shares of Common Stock (A) which have previously
been registered or which have been sold to the public either
pursuant to a registration statement or Rule 144, or
(B) which, in the opinion of counsel to the Company, are
eligible for resale by the Stockholder under Rule 144 without
volume or manner-of-sale restrictions.
“
Registration Statement ” means any registration
statement of the Company that covers any of the Registrable Common
Stock pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such Registration
Statement, including post-effective amendments, all exhibits and
all materials incorporated by reference in such Registration
Statement.
“
Rule 144 ” means Rule 144 promulgated by the
SEC pursuant to the Securities Act, as such rule may be amended
from time to time, or any similar rule or regulation hereafter
adopted by the SEC as a replacement thereto having substantially
the same effect as such rule.
“
Rule 415 ” means Rule 415 promulgated by the
SEC pursuant to the Securities Act, as such rule may be amended
from time to time, or any similar rule or regulation hereafter
adopted by the SEC as a replacement thereto having substantially
the same effect as such rule.
“ SEC
” means the Securities and Exchange Commission.
“
Securities Act ” means the Securities Act of 1933, as
amended, or any successor federal statute, and the rule and
regulations of the SEC thereunder, as the same shall be in effect
from time to time.
“
underwritten registration or underwritten offering ”
means an offering in which securities of the Company are sold to
one or more underwriters (as defined in Section 2(a)(11) of
the Securities Act) for resale to the public.
(a)
Requests for Registration . Subject to the terms of this
Agreement, at any time beginning after the date hereof, the
Stockholders may request registration under the Securities Act of
all or part of their then outstanding Registrable Common Stock and
upon request, the Company shall use its reasonable best efforts to
promptly file a registration statement on Form S-1 or any similar
long-form registration (“ Long-Form Registration
”) or, if available, on Form S-3 or any similar short-form
registration statement (“ Short-Form Registration
”). All registrations requested pursuant to
Section 2 are referred herein as “ Demand
Registrations .” Each request for a Demand Registration
shall specify the number of Registrable Common Stock requested to
be registered. Demand Registrations shall be underwritten
registrations if so requested and the selling Stockholders shall
enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwritten
registrations by the Company (subject to the approval of the
Stockholders of a majority of the Registrable Common Stock
requesting the Demand Registration, which approval shall not be
unreasonably withheld or delayed).
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Within
10 days after receipt of any written request pursuant to this
Section 2 , the Company will give written notice of
such request to all other Stockholders of Registrable Common Stock
and will use its reasonable best efforts to include in such
registration all Registrable Common Stock with respect to which the
Company has received written requests for inclusion within
20 days after delivery of the Company’s
notice.
(b)
Long-Form Registrations . The Stockholders of at least
a majority of the Registrable Common Stock then outstanding will be
entitled to request an unlimited number of
Long-Form Registrations; provided , however ,
that with respect to any requests under this
Section 2(b) , (i) the anticipated aggregate
offering amount of the Registrable Common Stock covered by such
registration exceeds $1,000,000 (net of underwriting discounts and
commissions) and (ii) the Company is not eligible at the time
of the request to file a Short-Form Registration that would
register the amount of Registrable Common Stock included in such
request. The Company shall not be obligated to effect, or to take
any action to effect, any Long-Form Registration during the
period starting with the date 90 days prior to the
Company’s good faith estimate of the date of filing of, and
ending on a date 180 days after the effective date of, a
registration subject to Section 4 hereof.
(c)
Short-Form Registrations . In addition to the
Long-Form Registrations provided pursuant to
Section 2(b) above, the Stockholders of at least 25% of
the Registrable Common Stock then outstanding will be entitled to
request an unlimited number of Short-Form Registrations;
provided , however , that with respect to any
requests under this Section 2(c) , (i) the Company
is eligible to register securities issued by it on a
Short-Form Registration and (ii) the anticipated
aggregate offering amount of the Registrable Common Stock covered
by such registration exceeds $1,000,000 (net of underwriting
discounts and commissions). Demand Registrations will be
Short-Form Registrations whenever the Company is permitted to
use any applicable short-form that would register the amount of
Registrable Common Stock included in such request. If a Short-Form
Registration is to be an underwritten offering, and if the
underwriters for marketing or other reasons request the inclusion
in the Registration Statement of information which is not required
under the Securities Act to be included in a registration statement
on the applicable form for the Short-Form Registration, the
Company will provide such information as may be reasonably
requested for inclusion by the underwriters in the
Short-Form Registration.
(d)
Priority on Demand Registrations . If a Demand Registration
is an underwritten offering and the managing underwriters advise
the Company in writing that in their opinion the inclusion of the
number of Registrable Common Stock and other securities requested
to be included exceeds the number of securities which can be sold
in the offering without adversely affecting the marketability of
such offering, then the managing underwriter may exclude securities
(including Registrable Common Stock) from the registration and the
underwriting and the number of securities that may be included in
such registration and underwriting shall include first , the
Registrable Common Stock requested to be included in such
registration, pro rata among the Stockholders on the basis of the
total number of Registrable Common Stock owned by each such
Stockholder and second , other equity securities requested
to be included in such registration to be allocated pro rata among
the holders thereof on the basis of the number of such equity
securities owned by each such holder.
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(e)
Restrictions on Demand Registrations . The Company will not
be obligated to effect (i) any Long-Form Registration
within 180 days after the effective date of a previous
Long-Form Registration or within 90 days after the effective
date of a previous Short-Form Registration and (ii) any
Short-Form Registration within 90 days after the
effective date of a previous Short-Form Registration or
Long-Form Registration. With respect to any Demand
Registration, if (i) the Board of Directors of the Company
reasonably and in good faith determines that such filing would be
seriously detrimental to the Company or its stockholders, or would
require a disclosure of a material fact that might reasonably be
expected to have a material adverse effect on the Company or any
plan or proposal by the Company or any of its subsidiaries to
engage in any acquisition or disposition of assets or equity
securities (other than in the ordinary course of business) or any
merger, consolidation, tender offer, material financing or other
significant transaction and (ii) the Company shall furnish the
Stockholders who have requested a Demand Registration a certificate
signed by an executive officer of the Company to such effect, the
Company may postpone for up to 90 days the filing or the
effectiveness of a Registration Statement for a Demand
Registration; provided , however , that such
90 day time period may be extended to 120 days with the
consent of the Stockholders holding at least a majority of the
Registrable Common Stock then outstanding; and provided ,
further , that the Company may not postpone the filing or
effectiveness of a Registration Statement for a Demand Registration
for more than 90 days (or 120 days if extended as
provided above) during any 12-month period.
(a) Right
to Shelf Registration . Subject to the terms of this Agreement,
the Stockholders of at least a majority of the Registrable Common
Stock then outstanding shall be entitled to make a request for a
Demand Registration, pursuant to which the Company files a shelf
registration statement with respect to all or part of their
Registrable Common Stock pursuant to Rule 415, on either Form
S-1 or Form S-3 (including the Prospectus, amendments and
supplements to the shelf registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto
and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such shelf registration
statement, the “ Shelf Registration Statement
”). The Company shall use its reasonable best efforts to
cause the Shelf Registration Statement to be declared effective by
the SEC as soon as practicable after such filing, and shall use its
reasonable best efforts to keep the Shelf Registration Statement
effective and updated, from the date such Shelf Registration
Statement is declared effective until the earliest to occur of
(i) such time as the Stockholder requesting the Shelf
Registration Statement has sold all of its Registrable Securities
registered pursuant to the Shelf Registration Statement, and
(ii) a period of three years in the aggregate plus the
duration of any Blackout Period. Notwithstanding anything contained
herein to the contrary, in the event that the SEC limits the amount
of Registrable Common Stock that may be included and sold by
Stockholders in the Shelf Registration Statement pursuant to
Rule 415, or any other basis, the Company may reduce the
number of Registrable Common Stock included in the Shelf
Registration Statement on behalf of the Stockholders (in case of an
exclusion as to a portion of such Registrable Common Stock, such
portion to be allocated pro rata among the Stockholders on the
basis of the total number of Registrable Common Stock owned by each
such Stockholder). The Company will then use its reasonable best
efforts at the first opportunity that is permitted by the SEC, but
in no event later than 180 days from the date the Shelf
Registration Statement was declared effective, to register the
Registrable Common Stock that have been excluded from being
registered.
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(b)
Restrictions on Shelf Registrations . With respect to any
Shelf Registration Statement, if (i) the Board of Directors of
the Company reasonably and in good faith determines that such
filing would be seriously detrimental to the Company or its
stockholders, or require a disclosure of a material fact that might
reasonably be expected to have a material adverse effect on the
Company or any plan or proposal by the Company or any of its
subsidiaries to engage in any acquisition or disposition of assets
or equity securities (other than in the ordinary course of
business) or any merger, consolidation, tender offer, material
financing or other significant transaction and (ii) the
Company shall furnish the Stockholders who have requested a Shelf
Registration a certificate signed by an executive officer of the
Company to such effect, the Company may postpone for up to
90 days the filing or the effectiveness of a Registration
Statement for a Shelf Registration; provided ,
however , that such 90 day time period may be extended
to 120 days with the consent of the Stockholders holding at least a
majority of the Registrable Common Stock then outstanding; and
provided , further , that the Company may not
postpone the filing or effectiveness of a Registration Statement
for a Shelf Registration for more than 90 days (or 120 days if
extended as provided above) during any 12-month period.
4. Piggyback Registrations.
(a) Right
to Piggyback . Whenever the Company proposes to register for
sale any of its equity securities (or securities that are
convertible into equity securities) pursuant to a registration
statement (a “ Piggyback Registration Statement
”) under the Securities Act (other than a registration
statement on Form S-8 or on Form S-4 or any similar successor forms
thereto), whether for its own account or otherwise (a “
Piggyback Registration ”), the Company shall give
prompt written notice to the Stockholders of its intention to
effect such registration and, subject to Section 4(b)
and Section 4(c) , will use reasonable best efforts to
include in such transaction all Registrable Common Stock with
respect to which the Company has received written requests for
inclusion specifying the number of equity securities desired to be
registered, which request shall be delivered within 20 days
after the delivery of the Company’s notice; provided ,
however , that with respect to any Piggyback Registration,
the Stockholders of a majority of Registrable Common Stock shall
have the right to waive and forego, as against themselves and all
other Stockholders of Registrable Common Stock, the right to
include any Registrable Common Stock in such Piggyback
Registration. The Company may postpone or withdraw the filing or
the effectiveness of a Piggyback Registration at any time in its
sole discretion.
(b)
Priority on Primary Registrations . If a Piggyback
Registration is initiated as an underwritten primary registration
on behalf of the Company where the primary use of proceeds does not
include the repurchase, redemption, acquisition or retirement of
capital stock of the Company (a “ Stock Repurchase
”), and the managing underwriter advises the Company in
writing that in its opinion the number of securities requested to
be included in such registration exceeds the number that can be
sold in such offering without having an adverse effect on such
offering, including the price at which such securities can be sold,
then the Company shall include in such registration the maximum
number of shares that such underwriter advises can be so
sold
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without having
such effect, allocated (i) first, to the securities the
Company proposes to sell, (ii) second, to the Registrable
Common Stock requested to be included in such registration by the
Stockholders, pro rata among the Stockholders on the basis of the
total number of Registrable Common Stock owned by each such
Stockholder and (iii) third, among other equity securities
requested to be included in such registration by other stockholders
of the Company to be allocated pro rata among the holders thereof
on the basis of the number of such equity securities owned by each
such holder.
(c)
Priority on Secondary Registrations . If a Piggyback
Registration is initiated as an underwritten secondary registration
on behalf of holders of the Company’s securities (other than
Registrable Common Stock) or on behalf of the Company where the use
of proceeds includes a Stock Repurchase, and the managing
underwriter advises the Company in writing that in its opinion the
number of securities requested to be included in such registration
exceeds the number that can be sold in such offering without having
an adverse effect on such offering, including the price at which
such securities can be sold, then the Company shall include in such
registration the maximum number of shares that such underwriter
advises can be so sold without having such effect, allocated
(i) first, to the securities requested to be included therein
by the holders of such securities, pro rata among such holders and
the Company on the basis of the number of securities owned by each
such holder and the Company and (ii) second, to the
Registrable Common Stock requested to be included in such
registration by the Stockholders, pro rata among the Stockholders
on the basis of the total number of Registrable Common Stock owned
by each such Stockholder.
(d)
Selection of Underwriters . In connection with any Piggyback
Registration that is an underwritten registration, the Company will
have the right to select the managing underwriters of such
underwritten offering.
The Company shall
not grant to any Person the right, other than as set forth herein
and except to employees of the Company with respect to
registrations on Form S-8 or on Form S-4 (or any successor forms
thereto), to request the Compa
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