MANNKIND CORPORATION COMMON STOCK PURCHASE AGREEMENT
Exhibit 99.3
THIS COMMON STOCK PURCHASE AGREEMENT (the “Agreement”) is made as of the 2nd day of October,
2007 by and between MannKind Corporation, a Delaware corporation (the “Company”), and Xxxx Xxxxx
Capital Management, Inc. (“LMCM”), acting on behalf of and in its capacity as investment adviser to
certain investors (the “Investors”).
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
1.1 Sale and Issuance of Common Stock.
(a) On or prior to the Closing (as defined below), the Company shall have authorized the sale
and issuance to the Investors 7,024,696 shares of the Company’s common stock, $0.01 par value (the
“Common Stock”) at a purchase price of $9.03 per share (the “Per Share Purchase Price”) for an
aggregate amount of $63,433,004.88.
(b) Subject to the terms and conditions of this Agreement, LMCM, acting on behalf of the
Investors, agrees to purchase at the Closing and the Company agrees to sell and issue to the
Investors at the Closing an aggregate of 7,024,696 shares of Common Stock at the Per Share Purchase
Price (the “Stock”). The Stock shall be allocated among the Investors in accordance with
instructions delivered by LMCM in writing to the Company.
1.2 Closing. The purchase and sale of the Stock shall take place through the Depository Trust
Company at 10:00 A.M. (Pacific time), on or about October 5, 2007, or at such other time and place
as the Company and LMCM may mutually agree upon orally or in writing (which time and place are
designated as the “Closing”). Prior to the Closing, the Company shall deliver instructions to its
transfer agent regarding the delivery to each Investor, via electronic book-entry, of the Stock.
Upon receipt of the reference number(s) of the wire transfer referred to below, the Company shall
cause its transfer agent to execute the delivery instructions. Payment of the purchase price for
the Stock shall be made by wire transfer of immediately available funds to the following account:
Account Name: UBS Financial Services
Account No.: 101-WA-258641-000
ABA No.: 000000000
For further credit to:
MannKind Corporation
CP-72192-DE
Account No.: 101-WA-258641-000
ABA No.: 000000000
For further credit to:
MannKind Corporation
CP-72192-DE
1.
2. Representations and Warranties of the Company. The Company hereby represents and warrants to
each Investor that:
(a) The Company meets the requirements for use of Form S-3 under the Securities Act of 1933,
as amended (the “Securities Act”), and has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on such Form (Registration File No. 333-145282), which
became effective as of August 15, 2007, for the registration under the Securities Act of the Stock.
Such registration statement meets the requirements set forth in Rule 415(a)(1)(x) under the
Securities Act and complies with said Rule. The Company will file with the Commission pursuant to
Rule 424(b) under the Securities Act, and the rules and regulations (the “Rules and Regulations”)
of the Commission promulgated thereunder, a supplement to the form of prospectus included in such
registration statement relating to the offer to sell and proposed sale of the Stock and the plan of
distribution thereof. Such registration statement, including the exhibits thereto, as amended at
the date of this Agreement, is hereinafter called the “Registration Statement”; such prospectus in
the form in which it appears in the Registration Statement is hereinafter called the “Base
Prospectus”; and the supplemented form of prospectus, in the form in which it will be filed with
the Commission pursuant to Rule 424(b) (including the Base Prospectus as so supplemented) is
hereinafter called the “Prospectus Supplement.” Any reference herein to the Registration
Statement, the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include
the documents incorporated by reference therein (the “Incorporated Documents”) pursuant to Item 12
of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), on or before the date of this Agreement, or the issue date of the Base Prospectus or the
Prospectus Supplement, as the case may be; and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus or the
Prospectus Supplement shall be deemed to refer to and include the filing of any document under the
Exchange Act after the date of this Agreement, or the issue date of the Base Prospectus or the
Prospectus Supplement, as the case may be, deemed to be incorporated therein by reference. All
references in this Agreement to financial statements and schedules and other information which is
“contained,” “included,” “described,” “set forth” or “stated” in the Registration Statement, the
Base Prospectus or the Prospectus Supplement (and all other references of like import) shall be
deemed to mean and include all such financial statements and schedules and other information which
is or is deemed to be incorporated by reference in the Registration Statement, the Base Prospectus
or the Prospectus Supplement, as the case may be. No stop order suspending the effectiveness of
the Registration Statement or the use of the Base Prospectus or the Prospectus Supplement has been
issued, and no proceeding for any such purpose is pending or has been initiated or, to the
Company’s knowledge, is threatened by the Commission.
(b) The Registration Statement (and any further documents to be filed with the Commission)
contains all exhibits and schedules as required by the Securities Act. Each of the Registration
Statement and any post-effective amendment thereto, at the time it became effective, complied in
all material respects with the Securities Act and the Exchange Act and the applicable Rules and
Regulations and did not and, as amended or supplemented, if applicable, will not, contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. The Base Prospectus and the Prospectus
Supplement, each as of its respective date, comply in all material respects with the Securities Act
and the Exchange Act and the applicable Rules and Regulations.
2.
Each of the Base Prospectus and the Prospectus Supplement, as amended or supplemented, did not
and will not contain as of the date thereof any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Incorporated Documents, when they
were filed with the Commission, conformed in all material respects to the requirements of the
Exchange Act and the applicable Rules and Regulations; and any further documents so filed and
incorporated by reference in the Base Prospectus or Prospectus Supplement, when such documents are
filed with the Commission, will conform in all material respects to the requirements of the
Exchange Act and the applicable Rules and Regulations, as applicable. Notwithstanding the
foregoing, the Company makes no representations or warranties as to information, if any, contained
in or omitted from the Prospectus Supplement or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing to the Company by or on
behalf of the Investor specifically for use in the Registration Statement or the Prospectus
Supplement, which information the parties hereto agree is limited to the Investor’s Information as
defined in Section 4.1. No post-effective amendment to the Registration Statement reflecting any
facts or events arising after the date thereof which represent, individually or in the aggregate, a
fundamental change in the information set forth therein is required to be filed with the
Commission. There are no documents required to be filed with the Commission in connection with the
transaction contemplated hereby that have not been filed as required pursuant to the Securities Act
or will not be filed within the requisite time period. There are no contracts or other documents
required to be described in the Base Prospectus or Prospectus Supplement, or to be filed as
exhibits or schedules to the Registration Statement, which have not been described or filed as
required.
(c) The Company has delivered, or will as promptly as practicable deliver, to LMCM, on behalf
of each Investor, complete conformed copies of the Registration Statement and of each consent and
certificate of experts filed as a part thereof, and conformed copies of the Registration Statement
(without exhibits) and the Base Prospectus and the Prospectus Supplement, as amended or
supplemented, in such quantities and at such places as LMCM reasonably requests. The Company may
satisfy its obligations to furnish such material by filing it on the Commission’s electronic data
gathering and retrieval system (XXXXX). Neither the Company nor any of its directors and officers
has distributed and none of them will distribute, prior to the Closing, any offering material in
connection with the offering and sale of the Stock other than the Base Prospectus, the Prospectus
Supplement, the Registration Statement, copies of the documents incorporated by reference therein
and any other materials permitted by the Securities Act.
3. Representations and Warranties. LMCM represents and warrants to the Company that:
(a) It is an investment adviser registered with the Securities and Exchange Commission and has
full right, power and authority, on behalf of each Investor, to enter into this Agreement and to
consummate the transactions contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement.
(b) This Agreement constitutes a valid and binding obligation of the Investor enforceable
against the Investor in accordance with its terms, except as enforceability may be
3.
limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ and contracting parties’ rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(c) LMCM, in connection with its decision to purchase the Stock, relied only upon the Base
Prospectus, the Prospectus Supplement, the Incorporated Documents, and any representations and
warranties of the Company contained herein.
(d) LMCM acknowledges, represents and agrees that no action has been or will be taken in any
jurisdiction outside the United States by the Company that would permit an offering of the Stock,
or possession or distribution of offering materials in connection with the issue of the Stock in
any jurisdiction outside the United States where action for that purpose is required.
(e) LMCM understands that nothing in this Agreement or any other materials presented to it in
connection with the purchase and sale of the Stock constitutes legal, tax or investment advice.
LMCM has consulted such legal, tax and investment advisors as it, in its sole discretion, has
deemed necessary or appropriate in connection with its purchase of the Stock.
4. Miscellaneous.
4.1 Investor’s Information. The parties hereto acknowledge and agree that, for all purposes
of this Agreement, “Investor’s Information” means solely the statements concerning the Investor
contained under the heading “Plan of Distribution” in the Prospectus Supplement.
4.2 Successors and Assigns. Except as otherwise provided herein, the terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon
any party other than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement.
4.3 Governing Law. This Agreement shall be governed by and construed under the laws of the
State of California as applied to agreements among California residents entered into and to be
performed entirely within California.
4.4 Counterparts; Facsimile. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Facsimile signatures shall be as effective as original signatures.
4.5 Titles and Subtitles. The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this Agreement.
4.6 Notices. Unless otherwise provided, any notice required or permitted under this Agreement
shall be given in writing and shall be deemed effectively given upon personal delivery to the party
to be notified or upon deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified at the
4.
address indicated for such party on the signature page hereof, or at such other address as
such party may designate by 10 days’ advance written notice to the other parties.
4.7 Finder’s Fee. Each party represents that it neither is nor will be obligated for any
finders’ fee or commission in connection with this transaction. LMCM agrees to indemnify and to
hold harmless the Company from any liability for any commission or compensation in the nature of a
finders’ fee (and the costs and expenses of defending against such liability or asserted liability)
for which LMCM or any Investor or any of their respective officers, partners, employees, or
representatives is responsible. The Company agrees to indemnify and hold harmless LMCM and the
Investors from any liability for any commission or compensation in the nature of a finders’ fee
(and the costs and expenses of defending against such liability or asserted liability) for which
the Company or any of its officers, employees or representatives is responsible.
4.8 Amendments and Waivers. Any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company and LMCM.
4.9 Severability. If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement and the balance of the
Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
4.10 Entire Agreement. This Agreement and the other documents referred to herein constitute
the entire agreement among the parties and no party shall be liable or bound to any other party in
any manner by any warranties, representations, or covenants except as specifically set forth herein
or therein.
[Remainder of this Page Intentionally Left Blank]
5.
In Witness Whereof, the parties hereto have executed this Agreement as of the day and
year first above written.
MannKind Corporation
By:
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/s/ Xxxxxxx X. Xxxxxxxx | |||
Name:
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Xxxxxxx X. Xxxxxxxx | |||
Title:
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Corporate VP and CFO | |||
Address:
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00000 Xxxxx Xxxxxx Xxxxx | |||
| Xxxxxxxx, Xxxxxxxxxx 00000 |
Xxxx Xxxxx Capital Management, Inc.
By:
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/s/ Xxxxxxx X. XxXxxx | |||
Name:
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Xxxxxxx X. XxXxxx | |||
Title:
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General Counsel | |||
Address:
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000 Xxxxx Xxxxxx | |||
| Xxxxxxxxx XX 00000 |
[Signature Page to Common Stock Purchase Agreement]
