Full Press Release Details
MANNKIND CORPORATION
(par value $0.01 per
At Market Issuance Sales Agreement
FBR Capital Markets & Co.
1300 North 17th Street
North Arlington, Virginia 22209
Ladies and Gentlemen:
MannKind Corporation, a
Delaware corporation (the Company ), confirms its agreement (this Agreement ) with FBR Capital Markets & Co. ( FBR ), as follows:
1. Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and
subject to the conditions set forth herein, it may issue and sell through FBR, shares (the Placement Shares ) of the Company s common stock, par value $0.01 per share (the Common Stock ), up to an aggregate
offering price of $50,000,000, provided however, that in no event shall the Company issue or sell through FBR such number of Placement Shares that (a) would cause the Company to not satisfy the eligibility requirements for use of
Form S-3, (b) exceeds the number or dollar amount of shares of Common Stock registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made or (c) exceeds the number of authorized but unissued
shares of Common Stock (the lesser of (a), (b) and (c), the Maximum Amount ). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1
on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that FBR shall have no obligation in connection with such compliance. The issuance and sale of Placement Shares through
FBR will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the Commission ), although nothing in this Agreement shall be
construed as requiring the Company to use the Registration Statement to issue any Placement Shares.
The Company has filed, in accordance
with the provisions of the Securities Act of 1933, as amended (the Securities Act ), and the rules and regulations thereunder (the Securities Act Regulations ), with the Commission a shelf registration
statement as defined under Rule 405 of the Securities Act Regulations, on Form S-3 (File No. 333-210792), including a base prospectus, relating to certain securities to be issued from time to time by the Company, and which incorporates by
reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended (the Exchange Act ),
and the rules and regulations thereunder. Following the date that such registration statement is declared effective by the Commission, the Company will furnish to FBR, for use by FBR, copies
of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement (as defined below), relating to the Placement Shares. Except where the context otherwise requires, such registration statement,
including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities
Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the Registration Statement. The prospectus, as supplemented by the
Prospectus Supplement, relating to the Placement Shares, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented from time to time, in the form in which such prospectus and
Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, is herein called the Prospectus. The Company will prepare a
prospectus supplement to the prospectus included as part of the Registration Statement specifically relating to the Placement Shares (the Prospectus Supplement ). Any reference herein to the Registration Statement, the Prospectus
or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein, and any reference herein to the terms amend, amendment or supplement with respect to
the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein (the Incorporated
For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or
supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system when used by
the Commission (collectively, EDGAR ).
2. Placements. Each time that the Company wishes to issue and sell
Placement Shares hereunder (each, a Placement ), it will notify FBR by email notice (or other method mutually agreed to in writing by the parties) of the proposed terms of such Placement, which shall include at a minimum the number
of Placement Shares to be issued, the time period during which sales are requested to be made, any limitation on the number of Placement Shares that may be sold in any one day and any minimum price below which sales may not be made (a
Placement Notice ), the form of which is attached hereto as Schedule 1. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule 3 (with a copy to each of the other individuals
from the Company listed on such schedule), and shall be addressed to each of the individuals from FBR set forth on Schedule 3, as such Schedule 3 may be amended from time to time. The Placement Notice shall be effective unless and until
(i) FBR declines to accept the terms contained therein for any reason, in its sole discretion by email notice to the Company within one Business Day (as defined below) from the time the Placement Notice is received, (ii) the entire amount
of the Placement Shares thereunder have been sold, (iii) the Company suspends or terminates the Placement Notice or (iv) this Agreement has been terminated under the provisions of Section 13. The amount of any discount, commission or
other compensation to be paid by the Company to FBR in connection with the sale of the Placement
Shares shall be calculated in accordance with the terms set forth in Schedule 2. It is expressly acknowledged and agreed that neither the Company nor FBR will have any obligation whatsoever
with respect to a Placement or any Placement Shares unless and until the Company delivers a Placement Notice to FBR and FBR does not decline such Placement Notice pursuant to the terms set forth above, and then only upon the terms specified therein
and herein. In the event of a conflict between the terms of this Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control.
3. Sale of Placement Shares by FBR.
(a) Subject to the terms and conditions of this Agreement, for the period specified in the Placement Notice, FBR will use its commercially
reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules of the NASDAQ Global Market (the Exchange ), to sell the Placement Shares up to
the amount specified, and otherwise in accordance with the terms of such Placement Notice. FBR will provide written confirmation to the Company no later than the opening of the Trading Day (as defined below) immediately following the Trading
Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day, the compensation payable by the Company to FBR pursuant to Section 2 with respect to such sales, and the Net Proceeds (as
defined below) payable to the Company, with an itemization of the deductions made by FBR (as set forth in Section 5(b)) from the gross proceeds that it receives from such sales. Subject to the terms of a Placement Notice, FBR shall sell
Placement Shares only by methods deemed to be an at the market offering as defined in Rule 415 of the Securities Act Regulations, including without limitation sales made directly on the Exchange, on any other existing trading market
for the Common Stock or to or through a market maker. Subject to the terms of the Placement Notice and only with the Company s prior written consent, FBR may also sell Placement Shares by any other method permitted by law, including but
not limited to in negotiated transactions. Trading Day means any day on which shares of Common Stock are purchased and sold on the Exchange.
(b) During the term of this Agreement, neither FBR nor any of its affiliates or subsidiaries shall engage in (i) any short sale of any
security of the Company, (ii) any sale of any security of the Company that FBR does not own or any sale which is consummated by the delivery of a security of the Company borrowed by, or for the account of, FBR or (iii) any market making bidding,
stabilization or other trading activity with respect to the Common Stock or related derivative securities if such activity would be prohibited under Regulation M or other anti-manipulation rules under the Securities Act. Neither FBR nor any of
its affiliates or subsidiaries shall engage in any proprietary trading or trading for FBR s (or its affiliates or subsidiaries ) own account.
4. Suspension of Sales. The Company or FBR may, upon notice to the other party in writing (including by email correspondence to
each of the individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed
immediately by verifiable facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 3), suspend any sale of Placement Shares;
provided, however, that such suspension shall not affect or impair any party s obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. Each
of the parties agrees that no such notice under this Section 4 shall be effective against any other party unless it is made to one of the individuals named on Schedule 3 hereto, as such Schedule may be amended from time to time.
5. Sale and Delivery to FBR; Settlement.
(a) Sale of Placement Shares. On the basis of the representations and warranties herein contained and subject to the terms and
conditions herein set forth, unless FBR declines to accept the terms of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this
Agreement, FBR, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement Shares up to the amount specified in, and otherwise in
accordance with, the terms of such Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance that FBR will be successful in selling Placement Shares, (ii) FBR will incur no liability or obligation to the Company
or any other person or entity if it does not sell Placement Shares for any reason other than a failure by FBR to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to
sell such Placement Shares as required under this Agreement and (iii) FBR shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by FBR and the Company.
(b) Settlement of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of
Placement Shares will occur on the third (3rd) Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each, a Settlement Date ). The amount of
proceeds to be delivered to the Company on a Settlement Date against receipt of the Placement Shares sold (the Net Proceeds ) will be equal to the aggregate sales price received by FBR, after deduction for (i) FBR s
commission, discount or other compensation for such sales payable by the Company pursuant to Section 2 hereof, and (ii) any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales.
(c) Delivery of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to,
electronically transfer the Placement Shares being sold by crediting FBR s or its designee s account (provided FBR shall have given the Company written notice of such designee a reasonable period of time prior to the Settlement Date) at
The Depository Trust Company through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto which in all cases shall be freely tradable, transferable, registered shares
in good deliverable form. On each Settlement Date, FBR will deliver the related Net Proceeds in same day funds to an account designated by the Company on, or prior to, the Settlement Date. If the Company, or its transfer agent (if
applicable), defaults in its obligation to deliver Placement Shares on a Settlement Date through no fault of FBR, the Company agrees that in addition to and in no way limiting the rights and obligations set forth in Section 11(a) hereto, it will (i)
against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company or its transfer agent (if
applicable) and (ii) pay to FBR (without duplication) any commission, discount, or other compensation to which it would otherwise have been entitled absent such default.
(d) Limitations on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any
Placement Shares if, after giving effect to the sale of such Placement Shares, the aggregate gross sales proceeds of such Placement Shares would exceed the least of (A) together with all sales of Placement Shares under this Agreement, the
Maximum Amount, (B) the amount remaining available for offer and sale under the Registration Statement and (C) together with all sales of Placement Shares under this Agreement, the amount authorized from time to time to be issued and sold under
this Agreement by the Company s board of directors, a duly authorized committee thereof or a duly authorized executive officer, and notified to FBR in writing. Under no circumstances shall the Company cause or request the offer or sale of
any Placement Shares pursuant to this Agreement at a price lower than any minimum price authorized from time to time by the Company s board of directors, a duly authorized committee thereof or a duly authorized executive officer, and notified
6. Representations and Warranties of the Company. Except as disclosed in the Registration Statement or the
Prospectus (including the Incorporated Documents), the Company represents and warrants to, and agrees with FBR that as of the date of the Prospectus Supplement, and as of each Applicable Time (as defined below), unless such representation, warranty
or agreement specifies a different time:
(a) Registration Statement and Prospectus. The Company and, assuming no act or
omission on the part of FBR that would make such statement untrue, the transactions contemplated by this Agreement meet the requirements for and comply with the conditions for the use of Form S-3 under the Securities Act. The Registration
Statement has been filed with the Commission and has been declared effective under the Securities Act. The Prospectus Supplement will name FBR as the agent in the section entitled Plan of Distribution. The Company has not
received, and has no notice of, any order of the Commission preventing or suspending the use of the Registration Statement, or threatening or instituting proceedings for that purpose. The Registration Statement and the offer and sale of
Placement Shares as contemplated hereby meet the requirements of Rule 415 under the Securities Act and comply in all material respects with said Rule. Any statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement have been so described or filed. Copies of the Registration Statement, the Prospectus, and any such amendments or supplements and
all documents incorporated by reference therein that were filed with the Commission on or prior to the date of this Agreement have been delivered, or are available through EDGAR, to FBR and its counsel. The Company has not distributed and,
prior to the later to occur of each Settlement Date and completion of the distribution of the Placement Shares, will not distribute any offering material in connection with the offering or sale of the Placement Shares other than the Registration
Statement and the Prospectus and any Issuer Free Writing Prospectus (as defined below) to which FBR has consented, such consent not to be unreasonably withheld, conditioned
or delayed. The Common Stock is currently quoted on the Exchange under the trading symbol MNKD . The Company has not, in the 12 months preceding the date hereof, received
notice from the Exchange to the effect that the Company is not in compliance with the listing or maintenance requirements of the Exchange and the Company has no reason to believe, other than with respect to the Exchange s bid price
requirements, that it will not in the foreseeable future continue to be in compliance in all material respects with all such listing and maintenance requirements.