MANNKIND CORPORATION and , As Warrant Agent FORM OF COMMON STOCK WARRANT AGREEMENT Dated As Of
Exhibit 4.5
MANNKIND CORPORATION
and
, As Warrant Agent
FORM OF COMMON STOCK
WARRANT AGREEMENT
WARRANT AGREEMENT
Dated As Of
MANNKIND CORPORATION
Form of Common Stock Warrant Agreement
COMMON STOCK WARRANT AGREEMENT (this “Agreement”), dated as of between MANNKIND
CORPORATION, a Delaware corporation (the “Company”) and , a
[corporation] [national banking association] organized and existing under the laws of
and having a corporate trust office in , as warrant agent (the
“Warrant Agent”).
WHEREAS, the Company proposes to sell [if Warrants are sold with other securities — [title of
such other securities being offered] (the “Other Securities”) with] warrant certificates evidencing
one or more warrants (the “Warrants” or individually a “Warrant”) representing the right to
purchase Common Stock of the Company, par value $0.01 per share (the “Warrant Securities”), such
warrant certificates and other warrant certificates issued pursuant to this Agreement being herein
called the “Warrant Certificates”; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the
Warrant Agent is willing so to act, in connection with the issuance, registration, transfer,
exchange, exercise and replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, registered, transferred, exchanged, exercised and replaced.
NOW THEREFORE, in consideration of the premises and of the mutual agreements herein contained,
the parties hereto agree as follows:
ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
DELIVERY OF WARRANT CERTIFICATES
1.1 Issuance of Warrants. [If Warrants alone — Upon
issuance, each Warrant Certificate shall evidence one or more Warrants.] [If Other Securities and
Warrants — Warrant Certificates shall be [initially] issued in connection with the issuance of the
Other Securities [but shall be separately transferable on and after
(the “Detachable Date”)] [and shall not be separately
transferable] and each Warrant Certificate shall evidence one or more Warrants.] Each Warrant
evidenced thereby shall represent the right, subject to the provisions contained herein and
therein, to purchase one Warrant Security. [If Other Securities and Warrants — Warrant
Certificates shall be initially issued in units with the Other Securities and each Warrant
Certificate included in such a unit shall evidence Warrants for each [$
principal amount] [ shares] of Other Securities included in such unit.]
1.2 Execution and Delivery of Warrant Certificates.Each Warrant Certificate, whenever issued, shall be in registered form substantially in the form
set forth in Exhibit A hereto, shall be dated the date of its countersignature by the Warrant Agent
and may have such letters, numbers, or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the officers of the Company
executing the same may approve (execution thereof to be conclusive evidence of such approval) and
as are not inconsistent with the provisions of this Agreement, or as may be required to comply with
any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which the Warrants may be listed, or to conform to usage. The Warrant
Certificates shall be signed on behalf of the Company by any of its present or future chief
executive officers, presidents, senior vice presidents, vice presidents, chief financial officers,
chief legal officers, treasurers, assistant treasurers, controllers, assistant controllers,
secretaries or assistant secretaries under its corporate seal reproduced thereon. Such signatures
may be manual or facsimile signatures of such authorized officers and may be imprinted or otherwise
reproduced on the Warrant Certificates. The seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant evidenced thereby shall
be exercisable, until such Warrant Certificate has been countersigned by the manual signature of
the Warrant Agent.
Such signature by the Warrant Agent upon any Warrant Certificate executed by the Company shall be conclusive evidence that the Warrant Certificate so countersigned has been
duly issued hereunder.
In case any officer of the Company who shall have signed any of the Warrant Certificates
either manually or by facsimile signature shall cease to be such officer before the Warrant
Certificates so signed shall have been countersigned and delivered by the Warrant Agent, such
Warrant Certificates may be countersigned and delivered notwithstanding that the person who signed
Warrant Certificates ceased to be such officer of the Company; and any Warrant Certificate may be
signed on behalf of the Company by such persons as, at the actual date of the execution of such
Warrant Certificate, shall be the proper officers of the Company, although at the date of the
execution of this Agreement any such person was not such officer.
The term “holder” or “holder of a Warrant Certificate” as used herein shall mean any person in
whose name at the time any Warrant Certificate shall be registered upon the books to be maintained
by the Warrant Agent for that purpose [If Other Securities and Warrants are not immediately
detachable — or upon the registration of the Other Securities prior to the Detachable Date. Prior
to the Detachable Date, the Company will, or will cause the registrar of the Other Securities to,
make available at all times to the Warrant Agent such information as to holders of the Other
Securities as may be necessary to keep the Warrant Agent’s records up to date].
1.3 Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase Warrant Securities may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Agreement or from time to time
thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates duly executed on behalf
of the Company, countersign such Warrant Certificates and shall deliver such Warrant Certificates
to or upon the order of the Company.
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
2.1 Warrant Price. During the period specified in Section 2.2, each Warrant shall, subject to the terms of this Agreement and the applicable Warrant
Certificate, entitle the holder thereof to purchase the number of Warrant Securities specified in
the applicable Warrant Certificate at an exercise price of $ per Warrant Security, subject to
adjustment upon the occurrence of certain events, as hereinafter provided. Such purchase price per
Warrant Security is referred to in this Agreement as the “Warrant Price.”
2.2 Duration of Warrants. Each Warrant may be
exercised in whole or in part at any time, as specified herein, on or after [the date thereof] [
] and at or before [ ] p.m., [City] time, on or such
later date as the Company may designate by notice to the Warrant Agent and the holders of Warrant
Certificates mailed to their addresses as set forth in the record books of the Warrant Agent (the
“Expiration Date”). Each Warrant not exercised at or before [ ] p.m., [City] time,
on the Expiration Date shall become void, and all rights of the holder of the Warrant Certificate
evidencing such Warrant under this Agreement shall cease.
2.3 Exercise of Warrants.
(a) During the period specified in Section 2.2, the
Warrants may be exercised to purchase a whole number of Warrant Securities in registered form by
providing certain information as set forth on the reverse side of the Warrant Certificate and by
paying in full, in lawful money of the United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire transfer in immediately
available funds] the Warrant Price for each Warrant Security with respect to which a Warrant is
being exercised to the Warrant Agent at its corporate trust office, provided that such exercise is
subject to receipt within five business days of such payment by the Warrant Agent of the Warrant
Certificate with the form of election to purchase Warrant Securities set forth on the reverse side
of the Warrant Certificate properly completed and duly executed. The date on which payment in full
of the Warrant Price is received by the Warrant Agent shall, subject to receipt of the
Warrant Certificate as aforesaid, be deemed to be the date on which the Warrant is exercised;
provided, however, that if, at the date of receipt of such Warrant Certificates and payment in full
of the Warrant Price, the transfer books for the Warrant Securities purchasable upon the exercise
of such Warrants shall be closed, no such receipt of such
Warrant Certificates and no such payment of such Warrant Price shall be effective to constitute the person so designated to be named as the
holder of record of such Warrant Securities on such date, but shall be effective to constitute such
person as the holder of record of such Warrant Securities for all purposes at the opening of
business on the next succeeding day on which the transfer books for the Warrant Securities
purchasable upon the exercise of such Warrants shall be opened, and the certificates for the
Warrant Securities in respect of which such Warrants are then exercised shall be issuable as of the
date on such next succeeding day on which the transfer books shall next be opened, and until such
date the Company shall be under no duty to deliver any certificate for such Warrant Securities.
The Warrant Agent shall deposit all funds received by it in payment of the Warrant Price in an
account of the Company maintained with it and shall advise the Company by telephone at the end of
each day on which a payment for the exercise of Warrants is received of the amount so deposited to
its account. The Warrant Agent shall promptly confirm such telephone advice to the Company in
writing.
(b) The Warrant Agent shall, from time to time, as
promptly as practicable, advise the Company of (i) the number of Warrant Securities with respect to
which Warrants were exercised, (ii) the instructions of each holder of the Warrant Certificates
evidencing such Warrants with respect to delivery of the Warrant Securities to which such holder is
entitled upon such exercise, (iii) delivery of Warrant Certificates evidencing the balance, if any,
of the Warrants for the remaining Warrant Securities after such exercise, and (iv) such other
information as the Company shall reasonably require.
(c) As soon as practicable after the exercise of any
Warrant, the Company shall issue to or upon the order of the holder of the Warrant Certificate
evidencing such Warrant the Warrant Securities to which such holder is entitled, in fully
registered form, registered in such name or names as may be directed by such holder. If fewer than
all of the Warrants evidenced by such Warrant Certificate are exercised, the Company shall execute,
and an authorized officer of the Warrant Agent shall manually countersign and deliver, a new
Warrant Certificate evidencing Warrants for the number of Warrant Securities remaining unexercised.
(d) The Company shall not be required to pay any
stamp or other tax or other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities, and in the event that any such transfer is
involved, the Company shall not be required to issue or deliver any Warrant Security until such tax
or other charge shall have been paid or it has been established to the Company’s satisfaction that
no such tax or other charge is due.
(e) Prior to the issuance of any Warrants there
shall have been reserved, and the Company shall at all times through the Expiration Date keep
reserved, out of its authorized but unissued Warrant Securities, a number of shares sufficient to
provide for the exercise of the Warrants.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
OF HOLDERS OF WARRANT CERTIFICATES
3.1 No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby shall
entitle the holder thereof to any of the rights of a holder of Warrant Securities, including,
without limitation, the right to receive the payment of dividends or distributions, if any, on the
Warrant Securities or to exercise any voting rights, except to the extent expressly set forth in
this Agreement or the applicable Warrant Certificate.
3.2 Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it and the
Company of the ownership of and the loss, theft, destruction or mutilation of any Warrant
Certificate and/or indemnity reasonably satisfactory to the Warrant Agent and the Company and, in
the case of mutilation, upon surrender of the mutilated Warrant Certificate to the Warrant Agent
for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company shall execute, and an
authorized officer of the Warrant Agent shall manually countersign and deliver, in exchange for or
in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate
of the same tenor and evidencing Warrants for a like number of Warrant Securities. Upon the
issuance of any new Warrant Certificate under this Section 3.2, the Company may
require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and delivered pursuant to this Section
3.2 in lieu of any lost, stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost, stolen or destroyed Warrant
Certificate shall be at any time enforceable by anyone, and shall be entitled to the benefits of
this Agreement equally and proportionately with any and all other Warrant Certificates duly
executed and delivered hereunder. The provisions of this Section 3.2 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to the replacement of
mutilated, lost, stolen or destroyed Warrant Certificates.
3.3 Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant Certificate,
without the consent of the Warrant Agent, the holder of any Warrant Securities or the holder of any
other Warrant Certificate, may, in such holder’s own behalf and for such holder’s own benefit,
enforce, and may institute and maintain any suit, action or proceeding against the Company suitable
to enforce, or otherwise in respect of, such holder’s right to exercise the Warrants evidenced by
such holder’s Warrant Certificate in the manner provided in such holder’s Warrant Certificate and
in this Agreement.
3.4 Adjustments.
(a) In case the Company shall at any time subdivide
its outstanding shares of Common Stock into a greater number of shares, the Warrant Price in effect
immediately prior to such subdivision shall be proportionately reduced and the number of Warrant
Securities purchasable under the Warrants shall be proportionately increased. Conversely, in case
the outstanding shares of Common Stock of the Company shall be combined into a smaller number of
shares, the Warrant Price in effect immediately prior to such combination shall be proportionately
increased and the number of Warrant Securities purchasable under the Warrants shall be
proportionately decreased.
(b) If at any time or from time to time the holders
of Common Stock (or any shares of stock or other securities at the time receivable upon the
exercise of the Warrants) shall have received or become entitled to receive, without payment
therefore,
(i) Common Stock or any shares of stock or other
securities which are at any time directly or indirectly convertible into or exchangeable for Common
Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the
foregoing by way of dividend or other distribution;
(ii) any cash paid or payable otherwise than as a cash
dividend paid or payable out of the Company’s current or retained earnings;
(iii) any evidence of the Company’s indebtedness or rights
to subscribe for or purchase the Company’s indebtedness; or
(iv) Common Stock or additional stock or other
securities or property (including cash) by way of spinoff, split-up, reclassification, combination
of shares or similar corporate rearrangement (other than shares of Common Stock issued as a stock
split or adjustments in respect of which shall be covered by the terms of Section 3.4(a) above),
then and in each such case, the holder of each Warrant shall, upon the exercise of the Warrant, be
entitled to receive, in addition to the number of Warrant Securities receivable thereupon, and
without payment of any additional consideration therefore, the amount of stock and other securities
and property (including cash and indebtedness (or rights to subscribe for or purchase indebtedness) which such holder would hold on the date of such
exercise had such holder been the holder of record of such Warrant Securities as of the date on
which holders of Common Stock received or became entitled to receive such shares or all other
additional stock and other securities and property.
(c) In case of (i) any reclassification, capital
reorganization, or change in the Common Stock of the Company (other than as a result of a
subdivision, combination, or stock dividend provided for in Section 3.4(a) or Section 3.4(b)
above), (ii) share exchange, merger or similar transaction of the Company with or
into another person or entity (other than a share exchange, merger or similar transaction in which the Company
is the acquiring or surviving corporation and which does not result in any change in the Common
Stock other than the issuance of additional shares of Common Stock) or (iii) the sale, exchange,
lease, transfer or other disposition of all or substantially all of the properties and assets of
the Company as an entirety (in any such case, a “Reorganization Event”), then, as a condition of
such Reorganization Event, lawful provisions shall be made, and duly executed documents evidencing
the same from the Company or its successor shall be delivered to the holders of the Warrants, so
that the holders of the Warrants shall have the right at any time prior to the expiration of the
Warrants to purchase, at a total price equal to that payable upon the exercise of the Warrants, the
kind and amount of shares of stock and other securities and property receivable in connection with
such Reorganization Event by a holder of the same number of Warrant Securities as were purchasable
by the holders of the Warrants immediately prior to such Reorganization Event. In any such case
appropriate provisions shall be made with respect to the rights and interests of the holders of the
Warrants so that the provisions hereof shall thereafter be applicable with respect to any shares of
stock or other securities and property deliverable upon exercise the Warrants, and appropriate
adjustments shall be made to the Warrant Price payable hereunder provided the aggregate purchase
price shall remain the same. In the case of any transaction described in clauses (ii) and (iii)
above, the Company shall thereupon be relieved of any further obligation hereunder or under the
Warrants, and the Company as the predecessor corporation may thereupon or at any time thereafter be
dissolved, wound up or liquidated. Such successor or assuming entity thereupon may cause to be
signed, and may issue either in its own name or in the name of the Company, any or all of the
Warrants issuable hereunder which heretofore shall not have been signed by the Company, and may
execute and deliver securities in its own name, in fulfillment of its obligations to deliver
Warrant Securities upon exercise of the Warrants. All the Warrants so issued shall in all respects
have the same legal rank and benefit under this Agreement as the Warrants theretofore or thereafter
issued in accordance with the terms of this Agreement as though all of such Warrants had been
issued at the date of the execution hereof. In any case of any such Reorganization Event, such
changes in phraseology and form (but not in substance) may be made in the Warrants thereafter to be
issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel as conclusive evidence that
any such Reorganization Event complies with the provisions of this Section 3.4.
(d) The Company may, at its option, at any time
until the Expiration Date, reduce the then current Warrant Price to any amount deemed appropriate
by the Board of Directors of the Company for any period not exceeding twenty consecutive days (as
evidenced in a resolution adopted by such Board of Directors), but only upon giving the notices
required by Section 3.5 at least ten days prior to taking such action.
(e) Except as herein otherwise expressly provided,
no adjustment in the Warrant Price shall be made by reason of the issuance of shares of Common
Stock, or securities convertible into or exchangeable for shares of Common Stock, or securities
carrying the right to purchase any of the foregoing or for any other reason whatsoever.
(f) No fractional Warrant Securities shall be
issued upon the exercise of Warrants. If more than one Warrant shall be exercised at one time by
the same holder, the number of full Warrant Securities which shall be issuable upon such exercise
shall be computed on the basis of the aggregate number of Warrant Securities purchased pursuant to
the Warrants so exercised. Instead of any fractional Warrant Security which would otherwise be
issuable upon exercise of any Warrant, the Company shall pay a cash adjustment in respect of such
fraction in an amount equal to the same fraction of the last reported sale price (or bid price if
there were no sales) per Warrant Security, in either case as reported on the principal registered
national securities exchange on which the Warrant Securities are listed or admitted to trading on
the business day that next precedes the day of exercise or, if the Warrant Securities are not then
listed or admitted to trading on any registered national securities exchange, the average of the closing high bid and low asked prices as reported on the OTC Bulletin Board
Service (the “OTC Bulletin Board”) operated by the Financial Industry Regulatory Authority, Inc.
(“FINRA”) or, if not available on the OTC Bulletin Board, then the average of the closing high bid
and low asked prices as reported on any other U.S. quotation medium or inter-dealer quotation
system on such date, or if on any such date the Warrant Securities are not listed or admitted to
trading on a registered national securities exchange, are not included in the OTC Bulletin Board,
and are not quoted on any other U.S. quotation medium or inter-dealer quotation system, an amount
equal to the same fraction of the average of the closing bid and asked prices as furnished by any
FINRA member firm
selected from time to time by the Company for that purpose at the close of
business on the business day that next precedes the day of exercise.
(g) Whenever the Warrant Price then in effect is
adjusted as herein provided, the Company shall mail to each holder of the Warrants at such holder’s
address as it shall appear on the books of the Company a statement setting forth the adjusted
Warrant Price then and thereafter effective under the provisions hereof, together with the facts,
in reasonable detail, upon which such adjustment is based.
3.5 Notice to Warrantholders. In case the Company
shall (a) effect any dividend or distribution described in Section 3.4(b), (b) effect any
Reorganization Event, (c) make any distribution on or in respect of the Common Stock in connection
with the dissolution, liquidation or winding up of the Company, or (d) reduce the then current
Warrant Price pursuant to Section 3.4(d), then the Company shall mail to each holder of Warrants at
such holder’s address as it shall appear on the books of the Warrant Agent, at least ten days prior
to the applicable date hereinafter specified, a notice stating (x) the record date for such
dividend or distribution, or, if a record is not to be taken, the date as of which the holders of
record of Common Stock that will be entitled to such dividend or distribution are to be determined,
(y) the date on which such Reorganization Event, 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
shall be entitled to exchange their shares of Common Stock for securities or other property
deliverable upon such Reorganization Event, dissolution, liquidation or winding up, or (z) the
first date on which the then current Warrant Price shall be reduced pursuant to Section 3.4(d). No
failure to mail such notice nor any defect therein or in the mailing thereof shall affect any such
transaction or any adjustment in the Warrant Price required by Section 3.4.
3.6 [If the Warrants are subject to acceleration by the
Company, insert—Acceleration of Warrants by the Company.
(a) At any time on or after ,
the Company shall have the right to accelerate any or all Warrants at any time by causing them to
expire at the close of business on the day next preceding a specified date (the “Acceleration
Date”), if the Market Price (as hereinafter defined) of
the Common Stock equals or exceeds percent ( %) of the then effective Warrant Price on any twenty Trading
Days (as hereinafter defined) within a period of thirty consecutive Trading Days ending no more
than five Trading Days prior to the date on which the Company gives notice to the Warrant Agent of
its election to accelerate the Warrants.
(b) “Market Price” for each Trading Day shall be, if
the Common Stock is listed or admitted to trading on any registered national securities exchange,
the last reported sale price, regular way (or, if no such price is reported, the average of the
reported closing bid and asked prices, regular way) of Common Stock, in either case as reported on
the principal registered national securities exchange on which the Common Stock is listed or
admitted to trading or, if not listed or admitted to trading on any registered national securities
exchange, the average of the closing high bid and low asked prices as reported on the OTC Bulletin
Board operated by FINRA, or if not available on the OTC Bulletin Board, then the average of the
closing high bid and low asked prices as reported on any other U.S. quotation medium or
inter-dealer quotation system, or if on any such date the shares of Common Stock are not listed or
admitted to trading on a registered national securities exchange, are not included in the OTC
Bulletin Board, and are not quoted on any other U.S. quotation medium or inter-dealer quotation
system, the average of the closing bid and asked prices as furnished by any FINRA member firm
selected from time to time by the Company for that purpose. “Trading Day” shall be each Monday
through Friday, other than any day on which securities are not traded in the system or on the
exchange that is the principal market for the Common Stock, as determined by the Board of Directors
of the Company.
(c) In the event of an acceleration of less than all
of the Warrants, the Warrant Agent shall select the Warrants to be accelerated by lot, pro rata or
in such other manner as it deems, in its discretion, to be fair and appropriate.
(d) Notice of an acceleration specifying the
Acceleration Date shall be sent by mail first class, postage prepaid, to each registered holder of
a Warrant Certificate representing a Warrant accelerated at such holder’s address appearing on the
books of the Warrant Agent not more than sixty days nor less than thirty days before the
Acceleration Date. Such notice of an acceleration also shall be given no more than twenty days,
and no
less than ten days, prior to the mailing of notice to registered holders of Warrants
pursuant to this Section 3.6, by publication at least once in a newspaper of general circulation in
the City of New York.
(e) Any Warrant accelerated may be exercised until [
] p.m., [City] time, on the business day next preceding the Acceleration Date. The
Warrant Price shall be payable as provided in Section 2.]
ARTICLE 4
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
4.1 Exchange and Transfer of Warrant Certificates. [If
Other Securities with Warrants which are immediately detachable — Upon] [If Other Securities with
Warrants which are not immediately detachable — Prior to the Detachable Date, a Warrant Certificate
may be exchanged or transferred only together with the Other Security to which the Warrant
Certificate was initially attached, and only for the purpose of effecting or in conjunction with an
exchange or transfer of such Other Security. Prior to any Detachable Date, each transfer of the
Other Security shall operate also to transfer the related Warrant Certificates. After the
Detachable Date, upon] surrender at the corporate trust office of the Warrant Agent, Warrant
Certificates evidencing Warrants may be exchanged for Warrant Certificates in other denominations
evidencing such Warrants or the transfer thereof may be registered in whole or in part; provided
that such other Warrant Certificates evidence Warrants for the same aggregate number of Warrant
Securities as the Warrant Certificates so surrendered. The Warrant Agent shall keep, at its
corporate trust office, books in which, subject to such reasonable regulations as it may prescribe,
it shall register Warrant Certificates and exchanges and transfers of outstanding Warrant
Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at its corporate
trust office for exchange or registration of transfer, properly endorsed or accompanied by
appropriate instruments of registration of transfer and written instructions for transfer, all in
form satisfactory to the Company and the Warrant Agent. No service charge shall be made for any
exchange or registration of transfer of Warrant Certificates, but the Company may require payment
of a sum sufficient to cover any stamp or other tax or other governmental charge that may be
imposed in connection with any such exchange or registration of transfer. Whenever any Warrant
Certificates are so surrendered for exchange or registration of transfer, an authorized officer of
the Warrant Agent shall manually countersign and deliver to the person or persons entitled thereto
a Warrant Certificate or Warrant Certificates duly authorized and executed by the Company, as so
requested. The Warrant Agent shall not be required to effect any exchange or registration of
transfer which will result in the issuance of a Warrant Certificate evidencing a Warrant for a
fraction of a Warrant Security or a number of Warrants for a whole number of Warrant Securities and
a fraction of a Warrant Security. All Warrant Certificates issued upon any exchange or
registration of transfer of Warrant Certificates shall be the valid obligations of the Company,
evidencing the same obligations and entitled to the same benefits under this Agreement as the
Warrant Certificate surrendered for such exchange or registration of transfer.
4.2 Treatment of Holders of Warrant Certificates. [If
Other Securities and Warrants are not immediately detachable — Prior to the Detachable Date, the
Company, the Warrant Agent and all other persons may treat the owner of the Other Security as the
owner of the Warrant Certificates initially attached thereto for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced by such Warrant Certificates,
any notice to the contrary notwithstanding. After the Detachable Date and prior to due presentment
of a Warrant Certificate for registration of transfer, the] [T]he Company, the Warrant Agent and
all other persons may treat the registered holder of a Warrant Certificate as the absolute owner
thereof for any purpose and as the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary notwithstanding.
4.3 Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exchange, registration of transfer or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the Warrant Agent and all
Warrant Certificates surrendered or so delivered to the Warrant Agent shall be promptly canceled by
the Warrant Agent and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange therefor or in lieu thereof. The
Warrant Agent shall deliver to the Company from time to time or otherwise dispose of canceled
Warrant Certificates in a manner satisfactory to the Company.
ARTICLE 5
CONCERNING THE WARRANT AGENT
5.1 Warrant Agent. The Company hereby appoints
as Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth, and
hereby accepts such appointment. The Warrant Agent shall have the powers and authority
granted to and conferred upon it in the Warrant Certificates and hereby and such further powers and
authority to act on behalf of the Company as the Company may hereafter grant to or confer upon it.
All of the terms and provisions with respect to such powers and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions hereof.
5.2 Conditions of Warrant Agent’s Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof,
including the following to all of which the Company agrees and to all of which the rights hereunder
of the holders from time to time of the Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company
agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable
out-of-pocket expenses (including reasonable counsel fees) incurred without negligence, bad faith
or willful misconduct by the Warrant Agent in connection with the services rendered hereunder by
the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it
harmless against, any loss, liability or expense incurred without negligence, bad faith or willful
misconduct on the part of the Warrant Agent, arising out of or in connection with its acting as
Warrant Agent hereunder, including the reasonable costs and expenses of defending against any claim
of such liability.
(b) Agent for the Company. In acting under this
Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting solely as
agent of the Company and does not assume any obligations or relationship of agency or trust for or
with any of the holders of Warrant Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with
counsel satisfactory to it, which may include counsel for the Company, and the written advice of
such counsel shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in accordance with the advice of such
counsel.
(d) Documents. The Warrant Agent shall be protected
and shall incur no liability for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or
other paper or document reasonably believed by it to be genuine and to have been presented or
signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and
its officers, directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the Warrant Agent
hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested
in any financial or other transaction with the Company and may act on, or as depositary, trustee or
agent for, any committee or body of holders of Warrant Securities or other obligations of the
Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent
the Warrant Agent from acting as trustee under any indenture to which the Company is a party.
(f) No Liability for Interest. Unless otherwise
agreed with the Company, the Warrant Agent shall have no liability for interest on any monies at
any time received by it pursuant to any of the provisions of this Agreement or of the Warrant
Certificates.
(g) No Liability for Invalidity. The Warrant Agent
shall have no liability with respect to any invalidity of this Agreement or any of the Warrant
Certificates (except as to the Warrant Agent’s countersignature thereon).
(h) No Responsibility for Representations. The
Warrant Agent shall not be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent’s countersignature thereon), all of which are
made solely by the Company.
(i) No Implied Obligations. The Warrant Agent
shall be obligated to perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into this Agreement or
the Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be under any
obligation to take any action hereunder which may tend to involve it in any expense or liability,
the payment of which within a reasonable time is not, in its reasonable opinion, assured to it.
The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the
Company of any of the Warrant Certificates authenticated by the Warrant Agent and delivered by it
to the Company pursuant to this Agreement or for the application by the Company of the proceeds of
the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any
default by the Company in the performance of its covenants or agreements contained herein or in the
Warrant Certificates or in the case of the receipt of any written demand from a holder of a Warrant
Certificate with respect to such default, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.2 hereof, to make any demand upon the Company.
5.3 Resignation, Removal and Appointment of Successors.
(a) The Company agrees, for the benefit of the
holders from time to time of the Warrant Certificates, that there shall at all times be a Warrant
Agent hereunder until all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as
agent by giving written notice to the Company of such intention on its part, specifying the date on
which its desired resignation shall become effective; provided that such date shall not be less
than three months after the date on which such notice is given unless the Company otherwise agrees.
The Warrant Agent hereunder may be removed at any time by the filing with it of an instrument in
writing signed by or on behalf of the Company and specifying such removal and the intended date
when it shall become effective. Such resignation or removal shall take effect upon the appointment
by the Company, as hereinafter provided, of a successor Warrant Agent (which shall be a bank or
trust company authorized under the laws of the jurisdiction of its organization to exercise
corporate trust powers) and the acceptance of such appointment by such successor Warrant Agent.
The obligation of the Company under Section 5.2(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall
resign, or shall be removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or shall commence a voluntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or under any other applicable Federal or state bankruptcy, insolvency or
similar law or shall consent to the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or other similar official) of the Warrant Agent or its
property or affairs, or shall make an assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they become due, or shall take corporate action
in furtherance of any such action, or a decree or order for relief by a court having jurisdiction
in the premises shall have been entered in respect of the Warrant Agent in an involuntary
case under the Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or state bankruptcy, insolvency or similar law, or a decree or order by a court
having jurisdiction in the premises shall have been entered for the appointment of a receiver,
custodian, liquidator, assignee, trustee, sequestrator (or similar official) of the Warrant Agent
or of its property or affairs, or any public officer shall take charge or control of the Warrant
Agent or of its property or affairs for the purpose of rehabilitation, conservation, winding up or
liquidation, a successor Warrant Agent, qualified as aforesaid, shall be appointed by the Company
by an instrument in writing, filed with the successor Warrant Agent. Upon the appointment as
aforesaid of a successor Warrant Agent and acceptance by the successor Warrant Agent of such
appointment, the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder
shall execute, acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any
further act, deed or conveyance, shall become vested with all the
authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally
named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver and pay over, and
such successor Warrant Agent shall be entitled to receive, all monies, securities and other
property on deposit with or held by such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent
hereunder may be merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Warrant Agent shall be a party, or any corporation to which the Warrant Agent shall sell or
otherwise transfer all or substantially all the assets and business of the Warrant Agent, provided
that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this Agreement
without the execution or filing of any paper or any further act on the part of any of the parties
hereto.
ARTICLE 6
MISCELLANEOUS
6.1 Amendment. This Agreement may be amended by the
parties hereto, without the consent of the holder of any Warrant Certificate, for the purpose of
curing any ambiguity, or of curing, correcting or supplementing any defective provision contained
herein, or making any other provisions with respect to matters or questions arising under this
Agreement as the Company and the Warrant Agent may deem necessary or desirable; provided that such
action shall not materially adversely affect the interests of the holders of the Warrant
Certificates.
6.2 Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the Company by the
holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant
Agent shall promptly forward such notice or demand to the Company.
6.3 Addresses. Any communication from the Company to
the Warrant Agent with respect to this Agreement shall be addressed to
, Attention: and any communication from the Warrant Agent to the Company
with respect to this Agreement shall be addressed to MannKind Corporation, 00000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Secretary (or such other address as shall be
specified in writing by the Warrant Agent or by the Company).
6.4 Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be governed by and construed in accordance with the laws of the
State of New York.
6.5 Delivery of Prospectus. The Company shall furnish
to the Warrant Agent sufficient copies of a prospectus meeting the requirements of the Securities
Act of 1933, as amended, relating to the Warrant Securities deliverable upon exercise of the
Warrants (the “Prospectus”), and the Warrant Agent agrees that upon the exercise of any Warrant,
the Warrant Agent will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon such exercise, a
Prospectus. The Warrant Agent shall not, by reason of any such delivery, assume any responsibility for the
accuracy or adequacy of such Prospectus.
6.6 Obtaining of Governmental Approvals. The Company
will from time to time take all action which may be necessary to obtain and keep effective any and
all permits, consents and approvals of governmental agencies and authorities and securities act
filings under United States Federal and state laws (including without limitation a registration
statement in respect of the Warrants and Warrant Securities under the Securities Act of 1933, as
amended), which may be or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrants, the issuance, sale,
transfer and delivery of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
6.7 Persons Having Rights Under Warrant Agreement.
Nothing in this Agreement shall give to any person other than the Company, the Warrant Agent and
the holders of the Warrant Certificates any right, remedy or claim under or by reason of this
Agreement.
6.8 Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
6.9 Counterparts. This Agreement may be executed in
any number of counterparts, each of which as so executed shall be deemed to be an original, but
such counterparts shall together constitute but one and the same instrument.
6.10 Inspection of Agreement. A copy of this Agreement shall
be available at all reasonable times at the principal corporate trust office of the Warrant Agent
for inspection by the holder of any Warrant Certificate. The Warrant Agent may require such holder
to submit such holder’s Warrant Certificate for inspection by it.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, all as
of the day and year first above written.
| MANNKIND CORPORATION | ||||||
| By | ||||||
| Its | ||||||
Attest: |
||||||
| WARRANT AGENT | ||||||
| By | ||||||
| Its | ||||||
Attest: |
||||||
[SIGNATURE PAGE TO COMMON STOCK WARRANT AGREEMENT]
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Face of Warrant Certificate]
[Form if Warrants are attached
to Other Securities and are not
immediately detachable.
|
Prior to , this Warrant Certificate cannot be transferred or exchanged unless attached to a [Title of Other Securities].] | |
[Form of Legend if Warrants are
not immediately exercisable.
|
Prior to , Warrants evidenced by this Warrant Certificate cannot be exercised.] |
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
AGENT AS PROVIDED HEREIN
VOID AFTER [ ] P.M., [CITY] TIME, ON ,
MANNKIND CORPORATION
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
COMMON STOCK, PAR VALUE $0.01 PER SHARE
WARRANTS TO PURCHASE
COMMON STOCK, PAR VALUE $0.01 PER SHARE
No.
|
Warrants |
This certifies that or registered assigns is the registered
owner of the above indicated number of Warrants, each Warrant entitling such owner [if Warrants are
attached to Other Securities and are not immediately detachable — , subject to the registered owner
qualifying as a “Holder” of this Warrant Certificate, as hereinafter defined),] to purchase, at any
time [after [ ] p.m., [City] time, on and] on or before [ ]
p.m., [City] time, on , shares of Common Stock, par value
$0.01 per share (the “Warrant Securities”), of MannKind Corporation (the “Company”) on the
following basis: during the period from , through and including
, the exercise price per Warrant Security will be $ , subject to adjustment as provided in
the Warrant Agreement (as hereinafter defined) (the “Warrant Price”). The Holder may exercise the
Warrants evidenced hereby by providing certain information set forth on the back hereof and by
paying in full, in lawful money of the United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire transfer in immediately
available funds], the Warrant Price for each Warrant Security with respect to which this Warrant is
exercised to the Warrant Agent (as hereinafter defined) and by surrendering this Warrant
Certificate, with the purchase form on the back hereof duly executed, at the corporate trust office
of [name of Warrant Agent], or its successor as warrant agent (the “Warrant Agent”), which is, on
the date hereof, at the address specified on the reverse hereof, and upon compliance with and
subject to the conditions set forth herein and in the Warrant Agreement (as hereinafter defined).
The term “Holder” as used herein shall mean [if Warrants are attached to Other Securities and
are not immediately detachable — prior to , (the “Detachable Date”),
the registered owner of the Company’s [title of Other Securities] to which this Warrant Certificate
was initially attached, and after such Detachable Date,] the person in whose name at the time this
Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for
that purpose pursuant to Section 4 of the Warrant Agreement.
The Warrants evidenced by this Warrant Certificate may be exercised to purchase a whole number
of Warrant Securities in registered form. Upon any exercise of fewer than all of the Warrants
evidenced by this Warrant Certificate, there shall be issued to the Holder hereof a new Warrant
Certificate evidencing Warrants for the number of Warrant Securities remaining unexercised.
This Warrant Certificate is issued under and in accordance with the Warrant Agreement dated as
of , (the “Warrant Agreement”), between the Company and the Warrant
Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all of
which terms and provisions the Holder of
this
Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement are on file at the above-mentioned office of the Warrant Agent.
[If Warrants are attached to Other Securities and are not immediately detachable — Prior to
the Detachable Date, this Warrant Certificate may be exchanged or transferred only together with
the [Title of Other Securities] (the “Other Securities”) to which this Warrant Certificate was
initially attached, and only for the purpose of effecting or in conjunction with, an exchange or
transfer of such Other Security. Additionally, on or prior to the Detachable Date, each transfer
of such Other Security on the register of the Other Securities shall operate also to transfer this
Warrant Certificate. After such date, transfer of this] [If Warrants are attached to Other
Securities and are immediately detachable — Transfer of this] Warrant Certificate may be
registered when this Warrant Certificate is surrendered at the corporate trust office of the
Warrant Agent by the registered owner or such owner’s assigns, in the manner and subject to the
limitations provided in the Warrant Agreement.
[If Other Securities with Warrants which are not immediately detachable — Except as provided
in the immediately preceding paragraph, after] [If Other Securities with Warrants which are
immediately detachable or Warrants alone — After] countersignature by the Warrant Agent and prior
to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged at the
corporate trust office of the Warrant Agent for Warrant Certificates representing Warrants for the
same aggregate number of Warrant Securities.
This Warrant Certificate shall not entitle the Holder hereof to any of the rights of a holder
of the Warrant Securities, including, without limitation, the right to receive payments of
dividends or distributions, if any, on the Warrant Securities (except to the extent set forth in
the Warrant Agreement) or to exercise any voting rights.
Reference is hereby made to the further provisions of this Warrant Certificate set forth on
the reverse hereof, which further provisions shall for all purposes have the same effect as if set
forth at this place.
This Warrant Certificate shall not be valid or obligatory for any purpose until countersigned
by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed in its name and on its
behalf by the facsimile signatures of its duly authorized officers.
| Dated: | MANNKIND CORPORATION | |||||||
| By | ||||||||
| Its | ||||||||
Attest: |
||||||||
| Countersigned: | ||||||||
| As Warrant Agent | ||||||||
| By | ||||
| Authorized Signature | ||||
[REVERSE OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrant)
To exercise any Warrants evidenced hereby for Warrant Securities (as hereinafter defined), the
Holder must pay, in lawful money of the United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire transfer in immediately
available funds], the Warrant Price in full for Warrants exercised, to [Warrant Agent] [address of
Warrant Agent], Attn: , which payment must specify the name of the
Holder and the number of Warrants exercised by such Holder. In addition, the Holder must complete
the information required below and present this Warrant Certificate in person or by mail (certified
or registered mail is recommended) to the Warrant Agent at the appropriate address set forth above.
This Warrant Certificate, completed and duly executed, must be received by the Warrant Agent
within five business days of the payment.
(To be executed upon exercise of Warrants)
The undersigned hereby irrevocably elects to exercise Warrants, evidenced
by this Warrant Certificate, to purchase shares of the Common Stock, par value
$0.01 per share (the “Warrant Securities”), of MannKind Corporation and represents that the
undersigned has tendered payment for such Warrant Securities, in lawful money of the United States
of America, [in cash or by certified check or official bank check in New York Clearing House funds]
[by bank wire transfer in immediately available funds], to the order of MannKind Corporation, c/o
[insert name and address of Warrant Agent], in the amount of $ in accordance with the terms hereof.
The undersigned requests that said Warrant Securities be in fully registered form in the
authorized denominations, registered in such names and delivered all as specified in accordance
with the instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants evidenced hereby, the
undersigned requests that a new Warrant Certificate evidencing the Warrants for the number of
Warrant Securities remaining unexercised be issued and delivered to the undersigned unless
otherwise specified in the instructions below.
Dated
|
Name | |||||||||
| (Please Print) | ||||||||||
| Address | ||||||||||
| (Insert Social Security or Other Identifying Number of Holder) | ||
Signature Guaranteed |
||
| Signature | ||
| (Signature must conform in all respects to name of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a bank, trust company or member broker of the New York, Midwest or Pacific Stock Exchange) |
This Warrant may be exercised at the following addresses:
By hand at
|
||||
By mail at
|
||||
[Instructions as to form and delivery of Warrant Securities and, if applicable, Warrant
Certificates evidencing Warrants for the number of Warrant Securities remaining unexercised —
complete as appropriate.]
ASSIGNMENT
[Form of assignment to be executed if
Warrant Holder desires to transfer Warrant]
Warrant Holder desires to transfer Warrant]
FOR VALUE RECEIVED,
|
hereby sells, assigns and transfers unto: | |
(Please print name and address including zip code)
|
Please print Social Security or other identifying number |
the right represented by the within Warrant to purchase shares of [Title of Warrant
Securities] of MannKind Corporation to which the within Warrant relates and appoints
attorney to transfer such right on the books of the Warrant Agent with full power of
substitution in the premises.
Dated |
||||||
| Signature | ||||||
| (Signature must conform in all respects to name of holder as specified on the face of the Warrant) | ||||||
| Signature Guaranteed | ||||||
