MANNKIND CORPORATION COMMON STOCK PURCHASE AGREEMENT
Exhibit 99.2
This COMMON STOCK PURCHASE AGREEMENT (this “Agreement”) is made as of the 2nd day of October,
2007 by and between MannKind Corporation, a Delaware corporation (the “Company”), and Xxxxxx X.
Xxxx as trustee of the Xxxxxx X. Xxxx Living Trust (the “Investor”).
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
1.1 Sale and Issuance of Common Stock. On the basis of the representations and warranties
herein, and upon the terms and subject to the conditions hereof, at the Closing (as defined below)
the Investor agrees to purchase and the Company agrees to sell 15,940,489 shares (the “Stock”) of
the Company’s common stock, $0.01 par value (the “Common Stock”) at a purchase price of $9.41 per
share for an aggregate amount of $150,000,001.49 (the “Consideration”).
1.2 Closing. Subject to the satisfaction or waiver of the conditions set forth herein, the
purchase and sale of the Stock shall take place at the offices of Xxxxxx Godward Kronish LLP
located at 0000 Xxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx at 10:00 A.M. (Pacific time), on October 5,
2007, or at such other time and place as the Company and the Investor may mutually agree upon in
writing (the closing of such purchase and sale is designated as the “Closing” and the date of such
Closing is hereinafter referred to as the “Closing Date”). At the Closing, the Company shall cause
its transfer agent to deliver to the Investor, via electronic book-entry, the Stock against payment
of the Consideration 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
2. Representations and Warranties of the Company. The Company hereby represents and warrants to
the Investor that:
(a) The Company meets the requirements for the 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 Form S-3 (Registration File No. 333-145282), which
became effective as of August 15, 2007. Such registration statement meets the requirements set
forth in Rule 415(a)(1)(x) under the Securities Act and fully complies with said Rule. Within one
day after the date hereof (and in any event prior to the Closing), the Company will file with the
Commission pursuant to Rule 424(b) under the
1.
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 to the Investor and the plan
of distribution thereof. The Company is permitted under the Rules and Regulations to offer and
sell the Stock to the Investor pursuant to the Registration Statement as supplemented by the
Prospectus Supplement, and the Stock will be sold to the Investor pursuant to the Registration
Statement as supplemented by the Prospectus Supplement. 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) as described above (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 contains all exhibits and schedules required to be included in
the Registration Statement 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. 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
2.
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 the Investors Information (as defined in Section 4.1),
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. 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 the 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 the Investor 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 or 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 of the Investor. The Investor hereby represents and warrants to
the Company that:
(a) Xxxxxx Xxxx has full right, power and authority, on behalf of the 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 may be limited by (a) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally and (b) equitable principles of general applicability
relating to the availability of specific performance, injunctive relief or other equitable
remedies.
(c) The Investor understands that nothing in this Agreement or any other materials presented
to the Investor in connection with the purchase and sale of the Stock constitutes legal, tax or
investment advice. The Investor has consulted such legal, tax and
3.
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 to
be contained under the heading “Plan of Distribution” in the Prospectus Supplement.
4.2 Successors and Assigns. This Agreement may not be assigned by either party without the
prior written consent of the other party, except that the Investor may assign this Agreement to any
of its affiliates. Subject to the preceding sentence, this Agreement will be binding upon the
parties and their respective successors and assigns. For purposes of this Agreement, the term
“affiliate” shall mean any entity controlling, controlled by or under the common control with the
named party.
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 facsimile transmission and by courier service (with proof of service), or by
registered or certified mail (return receipt requested and first-class postage prepaid) and
addressed to the party to be notified at the 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. The Investor 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 the Investor or any of its officers, partners, employees, or
representatives is responsible. The Company agrees to indemnify and hold harmless each Investor
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
4.
instance and either retroactively or prospectively), only with the written consent of both the
Company and the Investor.
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 |
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| By: | /s/ Xxxxxxx Xxxxxxxx | |||
| Xxxxxxx Xxxxxxxx | ||||
| Chief Financial Officer | ||||
| Address: | 00000 Xxxxx Xxxxxx Xxxxx Xxxxxxxx, Xxxxxxxxxx 00000 |
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| Investor |
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| /s/ Xxxxxx X. Xxxx | ||||
| Xxxxxx X. Xxxx as trustee of the Xxxxxx X. Xxxx Living Trust | ||||
| Address: | 00000 Xxx Xxxxxx Xxxx Xxxxxxxx, Xxxxxxxxxx 00000 |
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[Signature Page to Common Stock Purchase Agreement]
