Exhibit 4.10
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WARRANT AGREEMENT
BY AND BETWEEN
DURA PHARMACEUTICALS, INC.
AND
CHASE MELLON SHAREHOLDER SERVICES, L.L.C.
DATED AS OF
_______, 2000
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WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of _________, 2000, by and between Dura
Pharmaceuticals, Inc., a Delaware corporation ("Dura"), and ChaseMellon
Shareholder Services, L.L.C., a New Jersey limited liability company, as warrant
agent (the "Warrant Agent"), in favor of each person who acquires from time to
time warrants (the "Warrants") to purchase shares of Dura's Common Stock, $.001
par value per share (the "Warrant Shares").
Section 1. APPOINTMENT OF WARRANT AGENT. Dura hereby appoints the
Warrant Agent to act as agent for Dura in accordance with the instructions set
forth herein, and the Warrant Agent hereby accepts such appointment, upon the
terms and conditions hereinafter set forth.
Section 2. CERTAIN DEFINITIONS. As used herein, the following terms
shall have the following meanings:
"CLOSING PRICE" means the closing price per share of Common Stock on
the principal national securities exchange on which the Common Stock is listed
or admitted to trading or, if not listed or traded on any such exchange, on the
Nasdaq National Market or if not listed or traded on any such exchange or the
Nasdaq National Market, the average of the last bid and asked prices per share
on the Nasdaq over-the-counter system or, if such quotations are not available,
the fair market value as reasonably determined by the board of directors of Dura
or any committee of such board.
"COMMISSION" means the Securities and Exchange Commission or any
successor governmental organization or entity responsible for administration of
the Securities Act.
"COMMON STOCK" means (i) the class of stock designated as the Common
Stock, $.001 par value per share, of Dura, on the date hereof or (ii) any other
class of stock resulting from successive changes or reclassifications of such
shares consisting solely of changes in par value, or from par value to no par
value, or from no par value to par value. Unless the context requires otherwise,
all references to Common Stock and Warrant Shares in this Agreement and in the
Warrant Certificates shall, in the event of an adjustment pursuant to Section 12
hereof, be deemed to refer also to any other securities or property then
issuable upon exercise of the Warrants as a result of such adjustment.
"ELIGIBLE INSTITUTION" shall have the meaning set forth in Section 8(b)
hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXERCISE PRICE" shall have the meaning set forth in Section 5(b)
hereof.
"EXERCISE PERIOD" means the period during which the Warrants may be
exercised as set forth in Section 5(a) hereof.
"EXPIRATION DATE" shall have the meaning set forth in Section 5(a)
hereof.
"HOLDERS" shall have the meaning set forth in Section 4(b) hereof.
"NASD" means the National Association of Securities Dealers, Inc.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"WARRANT CERTIFICATE" shall have the meaning set forth in Section 3(a)
hereof.
"WARRANT REGISTER" means the books and records kept by the Warrant
Agent for the registration, and the registration of transfer, of the Warrant
Certificates in which shall be registered the names and addresses of Holders of
Warrants evidenced by Warrant Certificates in registered form and the
certificate numbers and denominations of such Warrant Certificates.
Section 3. FORM OF WARRANT CERTIFICATE.
(a) The certificates evidencing the Warrants (the "Warrant
Certificates"), and the forms of election to purchase Warrant Shares and of
assignment to be printed on the reverse thereof, shall be substantially in the
form set forth in EXHIBIT A hereto and may have such letters, numbers or other
marks of identification or designation and such legends, summaries or
endorsements printed, lithographed or engraved thereon as Dura reasonably deems
appropriate, which do not affect the duties or responsibilities of the Warrant
Agent, and as are not inconsistent with the provisions of this Agreement, or as
may be required to comply with any law, any rule or regulation related thereto,
or with any rule or regulation of the NASD, the Nasdaq National Market or any
securities exchange on which the Warrants may from time to time be listed.
(b) Each Warrant shall entitle the Holder thereof to purchase
____________ of a Warrant Share upon the exercise thereof at the applicable
Exercise Price, subject to adjustment as provided in Section 12 hereof, during
the Exercise Period; PROVIDED, HOWEVER, that the Warrants are exercisable only
for whole shares; cash will be paid in lieu of fractional shares in accordance
with Section 5(e) hereof. Each Warrant Certificate shall be executed on behalf
of Dura by the manual or facsimile signature of the present or any future
President or any officer of Dura, under its corporate seal, affixed or in
facsimile, attested by the manual or facsimile signature of the present or any
future Secretary or Assistant Secretary of Dura. Warrants shall be dated as of
the date of their initial issue.
Section 4. REGISTRATION AND COUNTERSIGNATURE.
(a) The Warrant Agent shall maintain the Warrant Register. The
Warrant Certificates shall be countersigned by the Warrant Agent and shall not
be valid for any purpose unless so countersigned. The Warrant Certificates shall
be so countersigned, however, by the Warrant Agent and shall be delivered by the
Warrant Agent, notwithstanding whether the persons whose manual or facsimile
signatures appear thereon as proper officers of Dura shall have ceased to be
such officers at the time of such countersignature or delivery.
(b) Prior to due presentment for registration or transfer of the
Warrant Certificates, Dura and the Warrant Agent shall deem and treat the
registered holder (a "Holder") thereof as the absolute owner of the Warrant
Certificates (notwithstanding any notation of ownership or other writing made
thereon by anyone other than Dura or the Warrant Agent), for
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the purpose of any exercise thereof and for all other purposes, and neither Dura
nor the Warrant Agent shall be affected by any notice to the contrary.
Section 5. DURATION AND EXERCISE OF WARRANTS.
(a) Warrants may be exercised at any time or from time to time
on or after the date hereof and will expire at 5:00 p.m., New York City time, on
______, 2005, (the "Expiration Date"). Upon the Expiration Date, all rights
evidenced by the Warrants shall cease and the Warrants shall become void.
(b) Subject to the provisions of this Agreement, the Holder of
each Warrant shall have the right to purchase from Dura (and Dura shall issue
and sell to such Holder) the number of fully paid and nonassessable Warrant
Shares set forth on such Holder's Warrant Certificate (or such number of Warrant
Shares as may result from adjustments made from time to time as provided in this
Agreement) at the price of $________ per Warrant Share in lawful money of the
United States of America (such exercise price per Warrant Share, as adjusted
from time to time as provided herein, being referred to herein as the "Exercise
Price"), upon (i) surrender of the Warrant Certificates to Dura at the office of
the Warrant Agent designated by the Warrant Agent for such purpose with the
exercise form on the reverse thereof duly and properly completed and signed by
the Holder or Holders thereof or by a duly appointed legal representative
thereof or by a duly authorized attorney, such signature to be guaranteed by an
Eligible Institution (as defined in Section 8(b) hereof) if such guarantee is
required by the terms of the Warrant Certificate, and (ii) payment, in lawful
money of the United States of America, of the Exercise Price for the Warrant
Share or Warrant Shares in respect of which such Warrant is then exercised. The
Exercise Price payable upon exercise of any Warrant may be paid only by
certified or, at the option of the Holder, official bank check payable to the
order of Dura. Upon surrender of the Warrant Certificate, and payment of the
Exercise Price, Dura shall issue and cause to be delivered with all reasonable
dispatch to or upon the written order of the Holder of such Warrant and in such
name or names as such Holder may designate, a certificate or certificates for
the number of Warrant Shares so purchased upon the exercise of such Warrants,
together with cash or check, at Dura's option, in respect of any fraction of a
Warrant Share issuable upon such surrender pursuant to Section 5(e) hereof. The
Warrant Agent shall deliver on a weekly basis all funds received upon exercise
of the Warrants to Dura, 7475 Lusk Boulevard, San Diego, California 92121,
Attention: Senior Vice President and Chief Financial Officer.
(c) Each person in whose name any certificate for Warrant Shares
is issued upon the exercise of Warrants shall for all purposes be deemed to have
become the holder of record of the Warrant Shares represented thereby, and such
certificate shall be dated the date upon which the Warrant Certificate
evidencing such Warrants was duly surrendered and payment of the Exercise Price
(and any applicable taxes pursuant to Section 9 hereof) was made; PROVIDED,
HOWEVER, that if the date of such surrender and payment is a date upon which the
Common Stock transfer books of Dura are closed, such person shall be deemed to
have become the record holder of such Warrant Shares on, and such certificate
shall be dated, the next succeeding business day on which the Common Stock
transfer books of Dura are open.
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(d) In the event that, during the Exercise Period, fewer than
all of the Warrants represented by a Warrant Certificate are exercised, a new
Warrant Certificate, duly executed by Dura, will be issued for the remaining
number of Warrants exercisable pursuant to the Warrant Certificate so
surrendered, and the Warrant Agent shall countersign and deliver such new
Warrant Certificate to the Holder of such unexercised Warrants pursuant to the
provisions of this Section 5 and of Section 4 hereof.
(e) No fractional shares of Common Stock or scrip shall be
issued to any Holder in connection with the exercise of a Warrant. Instead of
any fractional shares of Common Stock that would otherwise be issuable to such
Holder, Dura shall pay to such Holder a cash adjustment in respect of such
fractional interest in an amount equal to that fractional interest of the then
current Closing Price on the date of exercise per share of Common Stock.
(f) The number of Warrant Shares to be received upon the
exercise of a Warrant and the price to be paid for a Warrant Share are subject
to adjustment from time to time as hereinafter set forth.
(g) Warrants not exercised on or prior to the Expiration Date
shall become void and all rights in respect thereof shall cease as of such time.
Section 6. RESERVATION OF WARRANT SHARES; STOCK CERTIFICATES. Dura
shall at all times reserve, for issuance and delivery upon exercise of the
Warrants, such number of Warrant Shares or other shares of capital stock of Dura
as may be issuable from time to time upon exercise of the Warrants. All such
shares shall be duly authorized and, when issued upon such exercise and receipt
by Dura of payment in full of the Exercise Price, shall be validly issued, fully
paid and nonassessable, free and clear of all liens, security interests, charges
and other encumbrances or restrictions on sale and free and clear of all
preemptive rights. The Warrant Agent is hereby irrevocably authorized to
requisition, from time to time from the transfer agent for the Common Stock,
stock certificates issuable upon exercise of outstanding Warrants. Dura will
supply such transfer agent with duly executed stock certificates for such
purpose. All Warrant Certificates surrendered upon exercise shall be cancelled
by the Warrant Agent and shall thereafter be delivered to Dura or otherwise
disposed of in a manner satisfactory to Dura. Unless all Warrants shall have
been exercised prior to 5:00 p.m., New York City time, on the Expiration Date,
the Warrant Agent shall certify to Dura, as of the close of business on the
Expiration Date, the total aggregate number of Warrants then outstanding, and
thereafter no shares of Common Stock shall be subject to reservation in respect
of such Warrants. Dura shall keep a copy of this Agreement on file with its
transfer agent and with every transfer agent for any shares of Common Stock.
Section 7. TRANSFER AND REGISTRATION OF THE WARRANTS AND WARRANT
SHARES.
(a) The Warrants and the Warrant Shares, and any interest in
either, may be sold, assigned, pledged, encumbered or in any other manner
transferred or disposed of, in whole or in part, only in accordance with Section
8 hereof and in compliance with applicable United States federal and state
securities laws and the terms and conditions hereof.
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(b) The Warrants and the Warrant Shares have been registered
under the Securities Act pursuant to a registration statement on Form S-4 (File
No. 333-_______) declared effective under the Securities Act (the "Registration
Statement"). Dura covenants and agrees:
(i) it will prepare and file with the Commission such
amendments and supplements to the Registration Statement and the prospectus used
in connection therewith as may be necessary to keep the Registration Statement
effective through the termination of the Exercise Period or until such earlier
time as no Warrants remain outstanding;
(ii) as expeditiously as possible, to register or qualify
the Warrants and the Warrant Shares under the securities or "Blue Sky" laws of
each jurisdiction in which such registration or qualification is necessary; and
(iii) to pay all expenses incurred by Dura in complying with
this Section 7(b), including, without limitation (A) all registration and filing
fees, (B) all printing expenses, (C) all fees and disbursements of counsel and
independent public accountants for Dura, (D) all NASD and "Blue Sky" fees and
expenses (including fees and expenses of counsel in connection with any "Blue
Sky" surveys) and (E) the entire expense of any special audits incident to or
required in connection with any such registration.
Section 8. EXCHANGE, TRANSFER OR ASSIGNMENT OF WARRANTS.
(a) Warrants may be exchanged, at the option of the Holder
thereof, upon presentation and surrender to the Warrant Agent of the Warrant
Certificate evidencing such Warrants, for other Warrant Certificates of
different denominations, entitling the Holder or Holders thereof to purchase in
the aggregate the same number of Warrant Shares as did such surrendered Warrant
Certificate. Subject to the preceding sentence, a Warrant Certificate may be
divided or combined with other Warrant Certificates that carry the same rights
upon presentation thereof at the office of the Warrant Agent, together with
written notice signed by the Holder or Holders thereof specifying the names and
denominations in which new Warrant Certificates are to be issued.
(b) Warrants may be assigned or transferred, at the option of
the Holder thereof, upon surrender of the Warrant Certificates evidencing such
Warrants to the Warrant Agent, accompanied (if so required by Dura) by a written
instrument or instruments of transfer in form satisfactory to Dura and the
Warrant Agent, duly executed by such Holder or by a duly authorized
representative or attorney, such signature to be guaranteed by a commercial bank
or trust company having an office in the United States, by a broker or a dealer
that is a member of the NASD or by a member of a national securities exchange
(any such entity, an "Eligible Institution"). Upon any such registration of
transfer, a new Warrant Certificate shall be issued to the transferee and the
surrendered Warrant Certificate shall be cancelled by the Warrant Agent. Warrant
Certificates so cancelled shall be delivered by the Warrant Agent to Dura from
time to time or otherwise disposed of by the Warrant Agent in a manner
satisfactory to Dura.
(c) Any transfer, exchange or assignment of Warrants (including
any new Warrants issued pursuant to Section 10 hereof) shall be without charge
(other than the cost of
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any transfer tax) to the Holder and any new Warrant or Warrants issued pursuant
to this Section 8 shall be dated the date hereof.
Section 9. PAYMENT OF TAXES. Dura shall pay all documentary stamp taxes
attributable to the original issuance of the Warrants and of Warrant Shares;
PROVIDED, HOWEVER, that Dura shall not be required to (a) pay any tax which may
be payable in respect of any transfer involving the transfer and delivery of
Warrant Certificates or the issuance or delivery of certificates for Warrant
Shares in a name other than that of the Holder of the Warrant Certificate
surrendered upon the exercise of a Warrant or (b) issue or deliver any
certificate for Warrant Shares upon the exercise of any Warrants until any such
tax required to be paid under clause (a) shall have been paid, all such tax
being payable by the Holder of such Warrant at the time of surrender.
Section 10. MUTILATED OR MISSING WARRANT CERTIFICATES. In the event
that any Warrant Certificate shall be mutilated, lost, stolen or destroyed, Dura
may in its sole discretion issue, and the Warrant Agent shall countersign and
deliver, upon the request of the Holder of the Warrants evidenced by such
Warrant Certificate, in exchange for and upon cancellation of any such mutilated
Warrant Certificate, or in substitution for any such lost, stolen or destroyed
Warrant Certificate, a new Warrant Certificate of like tenor and evidencing the
same number of Warrant Shares as were evidenced by such mutilated, lost, stolen
or destroyed Warrant Certificate, but only upon receipt of evidence satisfactory
to the Warrant Agent of such loss, theft or destruction of such Warrant
Certificate and an indemnity, if requested, reasonably satisfactory to it. An
applicant for such substitute Warrant Certificate shall also comply with such
other reasonable regulations and pay such other reasonable charges as Dura or
the Warrant Agent may prescribe. Any such new Warrant Certificate shall
constitute an original contractual obligation of Dura, whether or not the
allegedly mutilated, lost, stolen or destroyed Warrant Certificate shall be
enforceable by any person at any time thereafter.
Section 11. NO STOCK RIGHTS: LIMITATION OF LIABILITY. No Holder of any
Warrant shall, by virtue thereof, be entitled to the rights of a stockholder of
Dura, unless and until exercise of such Warrant has occurred. No provisions of
any Warrant or of this Agreement, in the absence of affirmative action by the
Holder of any such Warrant to exercise such Warrant, and no mere enumeration
herein of the rights or privileges of such Holder, shall give rise to any
liability of such Holder for the Exercise Price or as a stockholder of Dura,
whether such liability is asserted by Dura or by its creditors.
Section 12. ANTIDILUTION PROVISIONS.
(a) The Exercise Price and the number of Warrant Shares that may
be purchased upon the exercise of a Warrant shall be subject to change or
adjustment from time to time as follows:
(i) STOCK DIVIDENDS AND STOCK SPLITS. If at any time during
the Exercise Period (A) Dura shall fix a record date for the issuance of any
dividend payable in shares of Common Stock or (B) the number of shares of Common
Stock shall have been increased by a subdivision or split-up of shares of Common
Stock, then, on the record date fixed for the determination of holders of Common
Stock entitled to receive such dividend or
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immediately after the effective date of such subdivision or split-up, as the
case may be, the number of shares to be delivered upon exercise of any Warrant
will be appropriately increased so that each Holder thereafter will be entitled
to receive the number of shares of Common Stock that such Holder would have
owned immediately following such action had such Warrant been exercised
immediately prior thereto, and the Exercise Price will be appropriately
adjusted. The time of occurrence of an event giving rise to an adjustment made
pursuant to this Section 12(a)(i) shall, in the case of a stock dividend, be
deemed to be the record date thereof and shall, in the case of a subdivision or
split-up, be deemed to be the effective date thereof.
(ii) COMBINATION OF STOCK. If the number of shares of Common
Stock outstanding at any time during the Exercise Period is decreased by a
combination of the outstanding shares of Common Stock, then, immediately after
the effective date of such combination, the number of shares of Common Stock to
be delivered upon exercise of any Warrant shall be appropriately decreased so
that the Holder of such Warrant thereafter will be entitled to receive the
number of shares of Common Stock that such Holder would have owned immediately
following such action had such Warrant been exercised immediately prior thereto,
and the Exercise Price shall be appropriately adjusted.
(iii) REORGANIZATION. If, at any time during the Exercise
Period, any capital reorganization of Dura, or any reclassification of the
Common Stock, or any consolidation of Dura with, or merger of Dura with or into,
any other person or any sale, lease or other transfer of all or substantially
all of the assets of Dura to any other person (including any individual,
partnership, limited liability company, joint venture, corporation, trust or
group thereof) shall be effected in such a way that upon consummation of such
transaction the holders of the Common Stock shall be entitled to receive stock,
securities or assets with respect to or in exchange for Common Stock, then, upon
exercise of any Warrant in accordance with the terms of this Agreement and the
Warrant Certificate, the Holder of such Warrant shall have the right to receive
the kind and amount of stock, securities or assets receivable upon such
reorganization, reclassification, consolidation, merger or sale, lease or other
transfer by a holder of the number of shares of Common Stock that such Holder
would have been entitled to receive upon exercise of such Warrant pursuant to
Section 3 hereof had such Warrant been exercised immediately prior to such
reorganization, reclassification, consolidation, merger or sale, lease or other
transfer, subject to additional adjustments that shall be as nearly equivalent
as may be practicable to the adjustments provided for in this Section
12(a)(iii).
(iv) SPECIAL DIVIDENDS. If, at any time during the Exercise
Period (other than in a dissolution or liquidation), Dura shall distribute to
holders of Common Stock evidences of indebtedness of Dura, securities or other
assets (other than cash dividends payable out of retained earnings) by way of a
dividend on outstanding shares of Common Stock, then the Exercise Price shall be
adjusted so that immediately after the date fixed by Dura as the record date in
respect of such distribution, such Exercise Price shall equal the price
determined by multiplying the Exercise Price in effect immediately prior to the
close of business on the record date for the determination of the stockholders
entitled to receive such distribution by a fraction, (A) the numerator of which
shall be the Closing Price on such record date less the then fair market value
as determined reasonably and in good faith by the board of directors of Dura of
the portion of the securities or other assets distributed applicable to one
share of Common Stock and (B) the denominator of which shall be such Closing
Price. Such adjustment shall become
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effective on such record date. In such case, no adjustment shall be made to the
number of Warrant Shares to be received upon the exercise of a Warrant.
(v) RIGHTS OFFERING. If, at any time during the Exercise
Period, Dura shall issue or sell or fix a record date for the issuance of
rights, options, warrants or convertible or exchangeable securities to all
holders of Common Stock entitling the holders thereof to subscribe for or
purchase Common Stock (or securities convertible into or exchangeable for Common
Stock), in any such case, at a price per share (or having a conversion price per
share) that, together with the value (if for consideration other than cash, as
reasonably determined in good faith by the board of directors of Dura) of any
consideration paid for any such rights, options, warrants or convertible or
exchangeable securities, is greater than the Exercise Price and less than the
Closing Price on the date of such issuance or sale or on such record date, as
the case may be, then, immediately after the date of such issuance or sale or on
such record date, the number of shares to be delivered upon exercise of the
Warrants shall be appropriately increased so that the Holder, thereafter during
the Exercise Period, shall be entitled to receive the number of shares of Common
Stock determined by multiplying the number of shares such Holder would have been
entitled to receive immediately before the date of such issuance or sale or such
record date by a fraction, (A) the numerator of which shall be the number of
shares of Common Stock outstanding on such date plus the number of additional
shares of Common Stock offered for subscription or purchase (or into which the
convertible or exchangeable securities so offered are initially convertible or
exchangeable) and (B) the denominator of which shall be the number of shares of
Common Stock outstanding on such date plus the number of shares of Common Stock
that the aggregate offering price of the total number of shares so offered for
subscription or purchase (or the aggregate initial conversion price of the
convertible securities so offered) would purchase at such Closing Price, and the
Exercise Price shall be appropriately adjusted. The time of occurrence of an
event giving rise to an adjustment pursuant to this Section 12(a)(v) shall, in
the case of a dividend, be the record date and shall, in the case of an issuance
or sale, be the date of such issuance or sale.
(vi) NO ADJUSTMENTS TO EXERCISE PRICE. No adjustment of the
Exercise Price in accordance with the provisions of paragraph (i), (ii), (iii),
(iv) or (v) above shall be made in an amount of less than $0.01; PROVIDED,
HOWEVER, that the amount by which any adjustment is not made by reason of the
provisions of this Section shall be carried forward and taken into account at
the time of any subsequent adjustment in the Exercise Price.
(vii) READJUSTMENTS, ETC.. If an adjustment is made under
paragraph (i), (ii), (iii), (iv) or (v) above, and the event to which the
adjustment relates does not occur, then any adjustments in the Exercise Price or
Warrant Shares that were made in accordance with such paragraphs shall be
adjusted back to the Exercise Price and the number of Warrant Shares that were
in effect immediately prior to the record date for such event.
(b) NO IMPAIRMENT; CERTAIN EVENTS.
(i) Dura shall not, by amendment of its certificate of
incorporation or through any reorganization, reclassification, consolidation,
merger, sale, lease or transfer of assets, issuance or sale of securities or any
other action, avoid or seek to avoid the observance or performance of any of the
terms to be observed or performed under this Section 12 by Dura, but
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will at all times in good faith assist in the carrying out of all the provisions
of this Section 12 and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holders against impairment.
(ii) If any event occurs as to which the provisions of
paragraph (a) of this Section 12 are not strictly applicable but with respect to
which, in the reasonable, good faith opinion of Dura, an adjustment of the
Exercise Price, and the number of Warrant Shares issuable upon the exercise of a
Warrant, would fairly protect the exercise rights of the Holders in accordance
with the basic intent and principles of such provisions or as to which an
adjustment pursuant to such provisions, if strictly applied, would not fairly
protect the purchase rights of the Holders in accordance with the basic intent
and principles of such provisions, then Dura shall make any computation required
under this Section 12(b)(ii) with respect to any such adjustment on a basis
consistent with the basic intent and principles established by the provisions of
this Section 12, necessary to preserve, without dilution, the exercise rights of
the Holders. Dura shall appoint a firm of independent certified public
accountants (which may be the regular auditors of Dura) of recognized national
standing, which firm shall review the computation of Dura prepared pursuant to
this Section 12(b)(ii) and prepare a report signed by such firm, which shall be
provided to Dura and which shall acknowledge that the adjustment calculation
prepared by Dura is arithmetically correct. Such report shall be conclusive
evidence of the correctness of the computation made under this Section
12(b)(ii). Upon receipt of such report, Dura shall forthwith cause to be made,
or shall act to prevent, the adjustments described in such calculation.
Section 13. OFFICER'S CERTIFICATE. Whenever the number of Warrant
Shares that may be purchased upon exercise of the Warrant is adjusted as
required by the provisions of this Agreement, Dura shall file forthwith with the
Warrant Agent and with its Secretary or Assistant Secretary at its principal
office an officer's certificate indicating the adjusted number of Warrant Shares
that may be purchased upon exercise of a Warrant and the adjusted Exercise
Price, determined as herein provided, and setting forth in reasonable detail the
facts requiring such adjustment and the manner of computing such adjustment.
Each such officer's certificate shall be made available at all reasonable times
for inspection by the Holders. Dura shall, forthwith after each such adjustment,
cause a copy of such officer's certificate to be mailed to the Holders. The
Warrant Agent may rely on such certificate without further inquiry and shall not
be deemed to have knowledge of any adjustment unless and until it shall have
received such certificate.
Section 14. NOTICE OF CERTAIN EVENTS. In the event that, at any time
during the Exercise Period:
(a) Dura shall pay any dividend on Common Stock that is payable
in stock, or make any distribution (other than regular cash dividends) to the
holders of Common Stock;
(b) Dura authorizes the issuance to all holders of Common Stock
of rights or warrants to subscribe for or purchase shares of Common Stock or any
other subscription rights or warrants;
(c) Dura authorizes the distribution to all holders of Common
Stock of any of Dura's assets, including evidences of its indebtedness or assets
(other than cash dividends payable out of retained earnings);
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(d) there shall be any capital reorganization or
reclassification of the capital stock of Dura or consolidation or merger of Dura
with another person (other than a consolidation or merger of Dura with a
subsidiary of Dura in which Dura is the surviving or continuing corporation and
there is no change with respect to the Common Stock), or sale, conveyance or
transfer of all or substantially all of Dura's property and assets (other than a
sale, conveyance or transfer of such assets to an Affiliate (within the meaning
of the Securities Act));
(e) there shall be a voluntary or involuntary dissolution,
liquidation, bankruptcy, assignment for the benefit of creditors or winding up
of Dura; or
(f) Dura shall propose to take any other action, or any other
event occurs, that would require an adjustment pursuant to Section 12 hereof of
the Exercise Price or the number of Warrant Shares that may be purchased upon
the exercise of a Warrant; then Dura will cause to be mailed to the Holder and
the Warrant Agent by first-class mail addressed to the Warrant Agent at the
address set forth in Section 24(b) and such Holder at the address appearing in
the Warrant Register, at least twenty days (or ten days in any case specified in
clauses (a), (b) or (c) above) before the applicable record or effective date
hereinafter specified, a notice stating (A) the date as of which the holders of
Common Stock of record entitled to receive any such dividends, rights, warrants
or distributions are to be determined or (B) the date on which any such
consolidation, merger, conveyance, transfer, dissolution, liquidation or
winding-up is expected to become effective, and the date as of which it is
expected that holders of Common Stock of record will be entitled to exchange
their shares of Common Stock for securities or other property, if any,
deliverable upon such reorganization, reclassification, consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding-up.
Section 15. LISTING ON SECURITIES EXCHANGES. Dura will list on each
national securities exchange or, if not so listed, will list for quotation on
the Nasdaq National Market, or such other over-the-counter quotation system on
which any Common Stock may at any time be listed, all shares of the Common Stock
from time to time issuable upon the exercise of the Warrants, and will maintain
such listing so long as any other shares of Common Stock are so listed; and Dura
shall so list on each national securities exchange or the Nasdaq National
Market, or such other over-the-counter quotation system, and shall maintain such
listing of, any other shares of capital stock of Dura issuable upon the exercise
of the Warrants if and so long as any shares of capital stock of the same class
are listed on such national securities exchange or are traded on the Nasdaq
National Market or such over-the-counter quotation system. Any such listing or
quotation will be at Dura's expense.
Section 16. AVAILABILITY OF INFORMATION. Dura will comply with all
applicable periodic public information reporting requirements of the Commission
to which it may from time to time be subject.
Section 17. WARRANT AGENT.
(a) MERGER, CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT.
(i) Any entity into which the Warrant Agent may be merged or
with which it may be consolidated, or any entity resulting from any merger or
consolidation to which
10
the Warrant Agent shall be a party, or any entity succeeding to the business of
the Warrant Agent, shall be the successor to the Warrant Agent hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto; PROVIDED, HOWEVER, that such successor must be otherwise
eligible for appointment as a Warrant Agent hereunder. In the event that at the
time such successor to the Warrant Agent shall succeed to the agency created by
this Agreement any of the Warrant Certificates shall have been countersigned but
not delivered, any such successor to the Warrant Agent may adopt the
countersignature of such predecessor Warrant Agent and deliver such Warrant
Certificates so countersigned; and in the event that at the time of such
succession any of the Warrant Certificates shall not have been countersigned,
any such successor to the Warrant Agent may countersign such Warrant
Certificates either in the name of such predecessor Warrant Agent or in the name
of such successor Warrant Agent; and in any event, all such Warrant Certificates
shall have the full force and effect provided in such Warrant Certificates and
in this Agreement.
(ii) In the case that at any time the name of the Warrant
Agent shall be changed and at such time one or more of the Warrant Certificates
shall have been countersigned but not delivered, the Warrant Agent may adopt the
countersignature under its prior name and deliver Warrant Certificates so
countersigned; in the event that at that time one or more of the Warrant
Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its changed
name; and in all such cases such Warrant Certificates shall have the full force
and effect provided in such Warrant Certificates and in this Agreement.
(b) DUTIES OF WARRANT AGENT. The Warrant Agent undertakes only
the duties and obligations expressly imposed by this Agreement upon the
following terms and conditions, by which the Holders, by their acceptance of
Warrants, and Dura, shall be bound:
(i) The Warrant Agent shall not be responsible or liable for
any failure of Dura to comply with any of the covenants to be complied with by
Dura that are contained in this Agreement or in the Warrant Certificates.
(ii) The Warrant Agent may consult at any time with counsel
satisfactory thereto (who may be legal counsel to Dura), and the advice or
opinion of such counsel shall be full and complete authorization and protection
to the Warrant Agent (including, but not limited to, any liability or
responsibility to Dura or to any Holder) in respect of any action taken,
suffered or omitted by the Warrant Agent hereunder in good faith and in
accordance with the opinion or the advice of such counsel, provided that the
Warrant Agent shall have exercised reasonable care in the selection and
continued employment of such counsel.
(iii) The Warrant Agent shall incur no liability or
responsibility to Dura or to any Holder for any action taken in reliance on any
notice, resolution, waiver, consent, order, certificate or other paper, document
or instrument believed by the Warrant Agent to be genuine and to have been
signed, sent or presented by the party or parties thereto or otherwise upon the
advise of counsel as set forth in Section 17.
(iv) Dura shall (A) pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the execution,
preparation, delivery and
11
amendment of this Agreement (including, but not limited to, legal fees), (B)
reimburse the Warrant Agent for all expenses, taxes (other than taxes based on
such Warrant Agent's net income), governmental charges, and other charges of any
kind and nature, incurred by the Warrant Agent in the performance of this
Agreement, (C) advance to the Warrant Agent, upon request, funds to pay cash in
lieu of fractional shares of Common Stock issuable upon exercise of Warrants and
(D) indemnify the Warrant Agent and save it harmless against any and all losses,
expenses, damages, settlements, fines, penalties, claims, demands or
liabilities, including judgments, costs and counsel fees, arising out of or in
connection with its agency under this Agreement and the cost and expenses of
defending against any claim of liability arising therefrom, directly or
indirectly, except as a result of its gross negligence or bad faith, as finally
determined by a court of competent jurisdiction. Notwithstanding anything
contained herein, in no case shall the Warrant Agent be liable for special,
punitive, indirect, incidental or consequential loss or damage of any kind
whatsoever (including, but not limited to, lost profits), even if the Warrant
Agent has been advised of the likelihood of such loss or damage. The indemnity
provided herein shall survive the termination of this Warrant Agreement or the
resignation or discharge of the Warrant Agent, and the termination and the
expiration of the Warrants. The costs and expenses incurred in enforcing this
right of indemnification shall be paid by Dura. Any liability of the Warrant
Agent under this Warrant Agreement will be limited to the amount of fees paid by
Dura to the Warrant Agent.
(v) The Warrant Agent shall be under no obligation to
institute any action, suit or legal proceeding or to take any other action
likely to involve the incurrence by the Warrant Agent of expenses unless Dura or
one or more Holders shall have furnished the Warrant Agent with reasonable
security and indemnity for any costs and expenses which may be incurred. All
rights of action under this Agreement or under any of the Warrants may be
enforced by the Warrant Agent without the possession of any of the Warrants or
the production thereof at any trial or other proceeding relative thereto, and
any such action, suit or proceeding instituted by the Warrant Agent shall be
brought in its name as Warrant Agent, and any recovery of judgment shall be for
the ratable benefit of the Holders, as their respective rights or interests may
appear.
(vi) The Warrant Agent and any stockholder, director,
officer or employee of the Warrant Agent may buy, sell or deal in any of the
Warrants or other securities of Dura, or become peculiarly interested in any
transaction in which Dura may be interested or contract with or lend money or
otherwise act as fully and freely as though it were not the Warrant Agent under
this Agreement. Nothing herein shall preclude the Warrant Agent from acting in
any other capacity for Dura or for any other legal entity.
(vii) The Warrant Agent shall act hereunder solely as agent,
and its duties shall be determined solely by the provisions hereof. The Warrant
Agent shall not be liable or responsible for any actions which it may take or
refrain from taking, in connection with this Agreement, except as result from
its own gross negligence or bad faith and fairly determined by a court of
competent jurisdiction.
(viii) The Warrant Agent shall make copies of this Agreement
available for inspection at its offices designated for such purpose during
normal business hours and shall provide copies to Holders upon their written
request.
12
(c) CHANGE OF WARRANT AGENT. The Warrant Agent may resign and be
discharged from its duties under this Agreement by providing both (i) written
notice to Dura and (ii) written notice, sent at the Company's expense by
first-class mail, postage prepaid, to each Holder at such Holder's address
appearing in the Warrant Register, which notice shall specify a date when such
resignation shall take effect and shall be sent at least two weeks prior to the
date so specified. If the Warrant Agent shall resign or otherwise become
incapable of acting, Dura shall appoint a successor thereto. If Dura shall fail
to make such appointment within a period of thirty days after receiving written
notification of such resignation or incapacity by the Warrant Agent or by any
Holder (which Holder shall, with such notice, submit Warrant Certificates held
thereby for inspection by Dura), then any Holder may apply to any court of
competent jurisdiction for the appointment of a successor to the Warrant Agent.
Pending appointment of a successor to the Warrant Agent, either by Dura or by a
court, the duties of the Warrant Agent shall be carried out by Dura. After such
appointment, the successor Warrant Agent shall be vested with such powers,
rights, duties and responsibilities as such Warrant Agent would have been vested
had such Warrant Agent been named originally as Warrant Agent hereunder, without
further act or deed. The former Warrant Agent shall deliver and transfer to the
successor Warrant Agent any property at the time held by such former Warrant
Agent hereunder and shall execute and deliver any further assurance, conveyance,
act or deed necessary therefor. Failure to provide any notice called for in this
Section 17, however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Warrant Agent or the appointment
of a successor Warrant Agent.
Section 18. IDENTITY OF TRANSFER AGENT. Forthwith upon the appointment
after the date hereof of any transfer agent for the Common Stock, or of any
subsequent transfer agent for shares of the Common Stock, Dura will file with
the Warrant Agent a statement setting forth the name and address of such
transfer agent.
Section 19. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of Dura, the Warrant Agent or any of the Holders
shall bind and inure to the benefit of their respective successors, assigns,
heirs and personal representatives.
Section 20. TERMINATION. This Agreement shall terminate at 5:00 p.m.,
New York City time, on the Expiration Date or upon such earlier date on which
all Warrants have been exercised or redeemed, except that the Warrant Agent
shall account to Dura for all cash held by it at 5:00 p.m., New York City time,
on such Expiration Date or such other date.
Section 21. HEADINGS. The headings of sections of this Agreement have
been inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 22. AMENDMENTS. This Agreement may be amended only by both (i)
the written consent of Dura and (ii) the affirmative vote or the written consent
of Holders holding not less than two-thirds in interest of the then outstanding
Warrants; PROVIDED, HOWEVER, that, except as expressly provided herein, this
Agreement may not be amended to change (a) the Exercise Price, (b) the Exercise
Period, (c) the number or type of securities to be issued upon the exercise of
the Warrants or (d) the provisions of this Section 22, without the consent of
each Holder and, provided further, that this Agreement may not be amended to
change or increase the
13
Warrant Agent duties, liabilities or obligations, without the written consent of
the Warrant Agent.
Section 23. COUNTERPARTS. This Agreement may be executed in any number
of counterparts each of which when so executed shall be deemed to be an
original, but all of which taken together shall constitute one and the same
agreement.
Section 24. NOTICES.
(a) Any notice required by the provisions of this Agreement to
be provided to Dura by the Warrant Agent or by any Holder shall be deemed given
if deposited in the United States mail, first class postage prepaid, addressed
(until another address is filed in writing by Dura with the Warrant Agent) as
follows:
Dura Pharmaceuticals Inc.
7475 Lusk Boulevard
San Diego, CA 92121
Attention: Corporate Secretary
(b) Any notice required by the provisions of this Agreement to
be provided to the Warrant Agent by Dura or by any Holder shall be deemed given
if deposited in the United States mail, first class postage prepaid, addressed
(until another address is filed in writing by the Warrant Agent with Dura or
notice of the address of a successor Warrant Agent is provided pursuant to this
Agreement) as follows:
ChaseMellon Shareholder Services, L.L.C.
400 South Hope Street, Fourth Floor
Los Angeles, California 90071
Attn: Sharon Knepper
(c) Any notice required by the provisions of this Agreement to
be provided to any Holder by Dura or by the Warrant Agent shall be deemed given
if deposited in the United States mail, first class postage prepaid, addressed
to such Holder at its address set forth in the Warrant Register. Any notice
given in conformity with this Section 24 shall be deemed effective three days
after mailing.
Section 25. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall
be construed to give to any person or corporation, other than Dura, the Warrant
Agent and the Holders, any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and exclusive benefit of
Dura, the Warrant Agent and the Holders.
Section 26. GOVERNING LAW. This Agreement and each Warrant Certificate
shall be deemed to be a contract made under and governed by and construed in
accordance with the laws of the State of New York, including Section 5-1402 of
the New York General Obligations Law.
14
IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement
to be signed by its duly authorized officers.
DURA PHARMACEUTICALS, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
as Warrant Agent
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
EXHIBIT A
FORM OF WARRANT CERTIFICATE
VOID AFTER 5:00 P.M., Warrant No. ________
NEW YORK CITY TIME, Warrants ________
ON _______, 2005
CUSIP ________
Exhibit A-1
DURA PHARMACEUTICALS, INC.
Warrants to Purchase Shares of Common Stock
THIS CERTIFIES THAT, FOR VALUE RECEIVED, ________, or registered
assigns, is the registered holder of the number of Warrants (the "Warrants") set
forth above. Each Warrant entitles the holder thereof to purchase from Dura
Pharmaceuticals, Inc., a Delaware corporation ("Dura"), subject to the terms and
conditions hereinafter set forth and in the Warrant Agreement hereinafter
referred to, ______________ of one fully paid and nonassessable share of Common
Stock, par value $.001 per share, of Dura (the "Common Stock"). The Warrants may
be exercised at any time or from time to time on or after the date hereof and
will expire at 5:00 p.m., New York City time, on ______, 2005 (the "Expiration
Date"). Upon the Expiration Date, all rights evidenced by the Warrants shall
cease and the Warrants shall become void. Subject to the provisions of the
Warrant Agreement, the holder of each Warrant shall have the right to purchase
from Dura until the Expiration Date (and Dura shall issue and sell to such
holder of a Warrant) ______________ of one fully paid and nonassessable share of
Common Stock (a "Warrant Share") at an exercise price (the "Exercise Price") of
$_______ per share upon surrender of this Warrant Certificate to Dura at the
office of the Warrant Agent (as defined in the Warrant Agreement) designated by
the Warrant Agent for such purpose with the form of election to purchase
appearing on this Warrant Certificate duly completed and signed, together with
payment of the Exercise Price by certified or official bank check payable to the
order of Dura.
The Exercise Price and the number of Warrant Shares that may be
purchased upon the exercise of the Warrants and the number of Warrants
outstanding are subject to change or adjustment upon the occurrence of certain
events set forth in the Warrant Agreement.
REFERENCE IS MADE TO THE PROVISIONS OF THIS WARRANT CERTIFICATE SET FORTH ON THE
REVERSE SIDE HEREOF, AND SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS THOUGH FULLY SET FORTH ON THE FRONT OF THIS CERTIFICATE.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent.
This Warrant Certificate shall be deemed to be a contract made under,
governed by and construed in accordance with the laws of the State of New York,
including Section 5-1402 of the New York General Obligations Law.
Exhibit A-2
IN WITNESS WHEREOF, Dura has caused this Warrant Certificate to be
executed by its duly authorized officers.
Dated: , DURA PHARMACEUTICALS, INC.
-------- ------
By:
----------------------------------
Title:
-------------------------------
ATTEST:
By:
----------------------------
Title:
-------------------------
Countersigned:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
as Warrant Agent
By:
-------------------------------------
Authorized Signature
Exhibit A-3
[REVERSE SIDE]
DURA PHARMACEUTICALS, INC.
This Warrant Certificate is subject to all of the terms and conditions
of the Warrant Agreement, dated as of ________, 2000 (the "Warrant Agreement"),
by and between Dura and the Warrant Agent, to all of which terms and conditions
the registered holder of the Warrant consents by acceptance hereof. The Warrant
Agreement is incorporated herein by reference and made a part hereof and
reference is made to the Warrant Agreement for a full description of the rights,
limitations of rights, obligations, duties and immunities of the Warrant Agent,
Dura and the registered holders of Warrant Certificates. Copies of the Warrant
Agreement are available for inspection at the principal office of the Warrant
Agent or may be obtained upon written request addressed to the Warrant Agent at
its office designated for such purpose.
Dura shall not be required upon the exercise of the Warrants evidenced
by this Warrant Certificate to issue fractional shares, but shall make
adjustment therefore in cash on the basis of the current market value of any
fractional interest as provided in the Warrant Agreement.
Dura has agreed to cause a registration statement under the Securities
Act of 1933, as amended, covering the Warrants and Warrant Shares to be
effective through the termination of the Exercise Period (as defined in the
Warrant Agreement) or until such earlier time as no Warrants remain outstanding,
and to register or qualify the Warrants and the Warrant Shares to be delivered
upon exercise of the Warrants under the laws of each jurisdiction in which such
registration or qualification is necessary.
The Warrant Certificate may be exchanged, at the option of the holder
upon presentation and surrender hereof to the Warrant Agent, for other Warrant
Certificates of different denominations, entitling the holder hereof to purchase
in the aggregate the same number of Warrant Shares. The Warrants may be assigned
or transferred upon surrender of this Warrant Certificate to the Warrant Agent,
accompanied (if so required by Dura) by the form of assignment appearing on this
Warrant Certificate duly completed and signed, whereupon the Warrant Agent shall
execute and deliver to the transferee a new Warrant Certificate entitling the
transferee to purchase the same number of Warrant Shares. If the Warrants
evidenced by this Warrant Certificate shall be exercised in part, the holder
hereof shall be entitled to receive upon surrender hereof another Warrant
Certificate or Certificates evidencing the number of Warrants not so exercised.
The holder of this Warrant Certificate shall not, by virtue hereof, be
entitled to any of the rights of a stockholder in Dura, either at law or in
equity, and the rights of the holder are limited to those expressed in the
Warrant Agreement.
If this Warrant Certificate shall be surrendered for exercise within
any period during which the transfer books for the Common Stock are closed for
any purpose, Dura shall not be required to make delivery of certificates for
shares purchasable upon such transfer until the date of the reopening of said
transfer books.
Exhibit A-4
Each holder of this Warrant Certificate, by accepting the same,
consents and agrees with Dura, the Warrant Agent and with every other holder of
a Warrant Certificate that:
(a) this Warrant Certificate is transferable on the registry books of
the Warrant Agent only upon the terms and conditions set forth in the Warrant
Agreement; and
(b) Dura and the Warrant Agent shall deem and treat the person in whose
name this Warrant Certificate is registered as the absolute owner hereof
(notwithstanding any notation of ownership or other writing hereon made by
anyone other than Dura or the Warrant Agent) for all purposes whatever and
neither Dura nor the Warrant Agent shall be affected by any notice to the
contrary.
This Warrant Certificate shall not be valid or enforceable for any
purpose until it shall have been countersigned by the Warrant Agent.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations.
ABBREVIATION DEFINED TERM
TEN COM Tenants in common
JT TEN Joint tenants with right of survivorship and not as
tenants in common
CUST Custodian
U/B/M/A Uniform Gifts to Minors Act
Additional abbreviations may also be used though not in the above list.
Exhibit A-5
ELECTION TO PURCHASE
(To be executed upon exercise of Warrant)
Dated ________, ____
The undersigned hereby irrevocably exercises this Warrant to purchase
________ shares of Common Stock and herewith makes payment of $________ in
payment of the Exercise Price thereof on the terms and conditions specified in
this Warrant Certificate, surrenders this Warrant Certificate and all right,
title, and interest therein to Dura and directs that the Warrant Shares
deliverable upon the exercise of such Warrants be registered in the name and at
the address specified below and delivered thereto.
Name:
---------------------------------------------------------------------------
(Please Print)
Address:
------------------------------------------------------------------------
City, State and Zip Code:
-------------------------------------------------------
If such number of Warrant Shares is less than the aggregate number of
Warrant Shares purchasable hereunder, the undersigned requests that a new
Warrant Certificate representing the balance of such Warrant Shares to be
registered in the name and at the address specified below and delivered thereto.
Name:
---------------------------------------------------------------------------
(Please Print)
Address:
------------------------------------------------------------------------
City, State and Zip Code:
-------------------------------------------------------
Taxpayer's Identification or Social Security Number:
----------------------------
Signature(s)
----------------------------------------------
----------------------------------------------
Exhibit A-6
NOTE: The above signature(s) must correspond with the name as written upon the
face of this Warrant Certificate in every particular, without alteration or
enlargement or any change whatsoever. If the certificate representing the
Warrant Shares or any Warrant Certificate representing Warrants not exercised is
to be registered in a name other than that in which this Warrant Certificate is
registered, the signature of the holder hereof must be guaranteed.
Signature(s) Guaranteed:
- -------------------------------
Exhibit A-7
ASSIGNMENT
FOR VALUE RECEIVED, ________ hereby sells, assigns and transfers to:
Name:
---------------------------------------------------------------------------
(Please Print)
Address:
------------------------------------------------------------------------
City, State and Zip Code:
-------------------------------------------------------
Taxpayer's Identification or Social Security Number:
__________________________ the right to purchase up to ________ Warrant Shares
represented by this Warrant and does hereby irrevocably constitute and appoint
________ to transfer said Warrant with full power of substitution in the
premises.
Dated: ,
-------- ---- ------------------------------------------
------------------------------------------
Signature(s) of registered Holder
NOTE: The above signature(s) must correspond with the name as written upon the
face of this Warrant Certificate in every particular, without alteration or
enlargement or any change whatsoever.
Signature(s) Guaranteed:
- -----------------------------
Exhibit A-8