Filed Pursuant to Rule 424(b)(5)
Registration No. 333-206778
CALCULATION OF REGISTRATION FEE
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Title of Class of
Securities to be Registered |
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Number of Shares to be Registered |
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Proposed Maximum Offering Price Per Share(1) |
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Proposed Maximum Aggregate Offering Price(1) |
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Amount of Registration Fee(2) |
Common Stock, par value $0.01 per share |
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50,000,000 |
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$2.815 |
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$140,750,000 |
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$14,173.53 |
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(1) |
Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) under the Securities Act of 1933, as amended, based upon the average of the high and low reported sale prices of
the common stock on The NASDAQ Global Market on November 5, 2015. |
(2) |
The registration fee is calculated and being paid pursuant to Rule 457(r) under the Securities Act of 1933, as amended, and relates to the Registration Statement on Form S-3 (File No. 333-206778) filed by the
registrant on September 4, 2015. |
Prospectus Supplement
(To Prospectus dated September 4, 2015)
Up to 50,000,000 Shares
Common Stock
We are offering to sell up to
50,000,000 shares of our common stock, $0.01 par value, directly to selected investment funds in Israel that are required to hold securities included within certain stock indexes of the Tel Aviv Stock Exchange, or the TASE. We expect to offer the
shares at a price per share equal to 97% of the closing price of our common stock on the TASE on November 12, 2015, which is the trading day immediately preceding the first day on which our common stock will enter specified TASE stock indexes.
We refer to the foregoing investment funds in this prospectus supplement as the purchasers. All sales will be evidenced by separate common stock purchase agreements between us and the purchasers. Union Bank Trust Co. Ltd. will serve as
escrow agent for the deposit and disbursement of the purchase price of the shares sold in this offering. See Plan of Distribution on page S-8 of this prospectus supplement for more information regarding these arrangements.
We have engaged Sunrise Securities Corp. as our exclusive placement agent in connection with this offering and have agreed to pay the placement agent a fee
equal to 3.5% of the total purchase price of the shares of common stock sold in this offering. We have also agreed to issue the placement agent and/or its designee(s) one or more restricted warrant(s) concurrently with the closing of this offering
exercisable for a number of shares of common stock in the aggregate equal to 1.15% of the total number of shares sold in this offering at an exercise price per share equal to the price paid by the purchasers under the stock purchase agreements. The
warrant(s) and the underlying shares of common stock will be offered to the placement agent and/or its designee(s) in a separate private placement exempt from registration pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended,
or the Securities Act. We have agreed to register for resale the restricted shares of common stock issuable upon exercise of the warrant. See Plan of Distribution on page S-8 of this prospectus supplement for more information regarding
these arrangements.
Our common stock is listed on The NASDAQ Global Market and on the TASE under the symbol MNKD. The closing price of our
common stock on The NASDAQ Global Market on November 6, 2015 was $2.87.
Investing in our securities
involves significant risks. Before buying shares of our common stock, you should carefully consider the risk factors described in Risk Factors on page S-5 of this prospectus supplement and in the
documents incorporated by reference into this prospectus supplement and any free writing prospectus that we have authorized for use in connection with this offering.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this
prospectus supplement and the accompanying prospectus is accurate or complete. Any representation to the contrary is a criminal offense.
We currently
anticipate that the closing of this offering will take place on or about November 12, 2015. On the closing date, we will issue the shares of common stock to the purchasers and receive funds in the amount of the aggregate purchase price.
The date of this prospectus supplement is November 9, 2015
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS SUPPLEMENT
This prospectus supplement and the accompanying prospectus relate to an offering of our common stock. Before buying any shares of common stock that we are
offering, we urge you to carefully read this prospectus supplement and the accompanying prospectus, together with the information incorporated by reference as described under Where You Can Find More Information and Incorporation of
Certain Information by Reference in this prospectus supplement. These documents contain important information that you should consider when making your investment decision.
Unless the context requires otherwise, references in this prospectus supplement and the accompanying prospectus to MannKind, the
company, we, us and our refer to MannKind Corporation.
This document is in two parts. The first part is this
prospectus supplement, which describes the terms of this offering of common stock and also adds to, updates and changes information contained in the accompanying prospectus and the documents incorporated by reference. The second part is the
accompanying prospectus, which gives more general information. To the extent the information contained in this prospectus supplement differs from or conflicts with the information contained in the accompanying prospectus or any document incorporated
by reference, the information in this prospectus supplement will control. If any statement in one of these documents is inconsistent with a statement in another document having a later date for example, a document incorporated by reference
into the accompanying prospectus the statement in the document having the later date modifies or supersedes the earlier statement.
We have not
authorized anyone to provide you with information different from that which is contained in or incorporated by reference in this prospectus supplement, the accompanying prospectus and in any free writing prospectus that we have authorized for use in
connection with this offering. No one is making offers to sell or seeking offers to buy these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information contained in this prospectus supplement is
accurate as of the date on the front cover of this prospectus supplement only and that any information we have incorporated by reference or included in the accompanying prospectus is accurate only as of the date given in the document incorporated by
reference or as of the date of the prospectus, as applicable, regardless of the time of delivery of this prospectus supplement, the accompanying prospectus, any related free writing prospectus, or any sale of our common stock. Our business,
financial condition, results of operations and prospects may have changed since that date.
We further note that the representations, warranties and
covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference into this prospectus supplement or the accompanying prospectus were made solely for the benefit of the parties to such agreement,
including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate
only as of the date when made. Accordingly, such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
This prospectus supplement, the accompanying prospectus and the information incorporated herein and therein by reference include trademarks, servicemarks and
tradenames owned by us or other companies. AFREZZA®, MedTone®, Dreamboat® and
Technosphere® are our trademarks in the United States. We have also applied for other trademark registrations and have registered company trademarks in other jurisdictions, including Europe
and Japan. All trademarks, servicemarks and tradenames included or incorporated by reference in this prospectus supplement or the accompanying prospectus are the property of their respective owners.
S-1
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus supplement and the accompanying prospectus, including the documents that we incorporate by reference herein and therein, contain statements
that are not strictly historical in nature and are forward-looking statements within the meaning of Section 27A of the Securities Act and within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange
Act. These forward-looking statements are subject to the safe harbor created by Section 27A of the Securities Act and Section 21E of the Exchange Act and may include, but are not limited to, statements about:
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the number of shares that will be sold in this offering and the aggregate offering proceeds we will receive; |
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our anticipated use of proceeds from this offering; |
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our and our marketing partners ability to successfully market, commercialize and achieve market acceptance for AFREZZA or any other product candidates or therapies that we may develop, as well as our ability to
maintain our license and collaboration arrangements; |
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our ability to manufacture sufficient quantities of AFREZZA and obtain insulin supply as needed; |
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our ability to protect our intellectual property and operate our business without infringing upon the intellectual property rights of others; |
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our estimates regarding anticipated operating losses, future revenues, capital requirements and our needs for additional financing; |
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our estimates for future performance; and |
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scientific studies and the conclusions we draw from them. |
In some cases, you can identify forward-looking
statements by terms such as anticipate, believe, could, estimate, expect, goal, intends, may, plan, potential,
predicts, project, should, will, would, the negative of these words and words or similar expressions intended to identify forward-looking statements. These statements reflect our views as
of the date on which they were made with respect to future events and are based on assumptions and subject to risks and uncertainties. The underlying information and expectations are likely to change over time. Given these uncertainties, you should
not place undue reliance on these forward-looking statements as actual events or results may differ materially from those projected in the forward-looking statements due to various factors, including, but not limited to, those set forth under the
heading Risk Factors in this prospectus supplement, in the accompanying prospectus, and in our filings with the Securities and Exchange Commission, or SEC. These forward-looking statements represent our estimates and assumptions only as
of the date of the document containing the applicable statement.
You should understand that our actual future results may be materially different from
what we expect. We qualify all of the forward-looking statements in the foregoing documents by these cautionary statements. Unless required by law, we undertake no obligation to update or revise any forward-looking statements to reflect new
information or future events or developments. Thus, you should not assume that our silence over time means that actual events are bearing out as expressed or implied in such forward-looking statements. Before deciding to purchase our securities, you
should carefully consider the risk factors discussed or incorporated by reference herein, in addition to the other information set forth in this prospectus supplement, the accompanying prospectus and in the documents incorporated by reference.
S-2
PROSPECTUS SUPPLEMENT SUMMARY
This summary does not contain all the information that you should consider before investing in our common stock. You should carefully read the entire
prospectus supplement and the accompanying prospectus, including the Risk Factors sections, as well as the financial statements and the other information incorporated by reference herein and the information in any free writing prospectus
that we may authorize for use in connection with this offering before making an investment decision.
Overview
MannKind Corporation is a biopharmaceutical company focused on the discovery and development of therapeutic products for diseases such as diabetes. Our only
approved product, AFREZZA, is a rapid-acting inhaled insulin that was approved by the U.S. Food and Drug Administration, or FDA, on June 27, 2014 to improve glycemic control in adult patients with diabetes. According to the Centers for Disease
Control and Prevention, in the United States in 2012, approximately 29.1 million people had diabetes. Globally, the International Diabetes Federation has estimated that approximately 387.0 million people had diabetes in 2014 and
approximately 592.0 million people will have diabetes by 2035.
AFREZZA is a rapid-acting, inhaled insulin used to control high blood sugar in adults
with type 1 and type 2 diabetes. The product consists of a dry formulation of human insulin delivered from a small and portable inhaler. Administered at the beginning of a meal, AFREZZA dissolves rapidly upon inhalation to the lung and delivers
insulin quickly to the bloodstream. Peak insulin levels are achieved within 1215 minutes of administration.
AFREZZA utilizes our proprietary
Technosphere formulation technology; however, the application of this technology is not limited to insulin delivery. We believe it represents a versatile drug delivery platform that may allow the oral inhalation of a wide range of therapeutics.
We are party to a license and collaboration agreement with Sanofi-Aventis U.S. LLC, or Sanofi, pursuant to which Sanofi is responsible for global commercial,
regulatory and development activities for AFREZZA. We manufacture AFREZZA at our manufacturing facility in Danbury, Connecticut to supply Sanofis demand for the product. In February 2015, AFREZZA became available by prescription in United
States retail pharmacies. As of September 30, 2015, Sanofi had reported 5.0 million in year-to-date sales of AFREZZA.
Corporate Information
We were
incorporated in the State of Delaware on February 14, 1991. Our principal executive offices are located at 25134 Rye Canyon Loop, Suite 300, Valencia, California 91355, and our telephone number at that address is (661) 775-5300. MannKind
Corporation and the MannKind Corporation logo are our service marks. Our website address is http://www.mannkindcorp.com. The information contained in, and that can be accessed through, our website is not incorporated into and does not form a part of
this prospectus supplement.
S-3
The Offering
Common stock offered by us |
Up to 50,000,000 shares of our common stock. The number of shares that we will sell through this prospectus supplement will be based upon the number of shares of our common stock that the purchasers are required to hold upon our common stock
entering into specified TASE stock indexes, not to exceed 50,000,000 shares in the aggregate. See Plan of Distribution on page S-8. |
Use of Proceeds |
We intend to use the net proceeds from this offering for general corporate purposes, including manufacturing and other expenses to support the commercialization of AFREZZA as well as research and development expenses and general and
administrative expenses. See Use of Proceeds on page S-6. |
Risk Factors |
Investing in our common stock involves a high degree of risk. See the information contained in or incorporated by reference under the heading Risk Factors in this prospectus supplement, in the accompanying prospectus and in the
documents incorporated by reference into this prospectus supplement and any free writing prospectus that we have authorized for use in connection with this offering. |
Exchange Listings |
Our common stock is listed on The NASDAQ Global Market and on the TASE under the symbol MNKD. |
S-4
RISK FACTORS
Investing in our common stock involves a high degree of risk. You should carefully consider the risks described below and discussed under the section
captioned Risk Factors contained in our Quarterly Report on Form 10-Q for the quarter ended September 30, 2015, which is incorporated by reference in this prospectus supplement, and all
other information contained in this prospectus supplement and the accompanying prospectus and incorporated by reference in this prospectus supplement and the accompanying prospectus, and in any free writing prospectus that we have authorized for use
in connection with this offering, before purchasing shares in this offering. These risks and uncertainties are not the only ones facing us. Additional risks and uncertainties that we are unaware of, or that we currently deem immaterial, also may
become important factors that affect us. If any of such risks or the risks described below or in our filings with the SEC occur, our business, financial condition or results of operations could be materially and adversely affected. In that case, the
trading price of our common stock could decline, and you may lose some or all of your investment.
Risks Related to this Offering
Management will have broad discretion as to the use of the proceeds from this offering, and may not use the proceeds effectively.
Because we have not designated the amount of net proceeds from this offering to be used for any particular purpose, our management will have broad discretion
as to the application of the net proceeds from this offering and could use them for purposes other than those contemplated at the time of the offering. Our management may use the net proceeds for corporate purposes that may not improve our financial
condition or market value.
You may experience immediate and substantial dilution if you invest in this offering.
The offering price per share in this offering may exceed the net tangible book value per share of our common stock outstanding prior to this offering. Assuming
that an aggregate of 50,000,00 shares of our common stock are sold at a price of $2.87 per share, the last reported sale price of our common stock on The NASDAQ Global Market on November 6, 2015 for aggregate gross proceeds of approximately
$143.5 million, and after deducting estimated placement agent fees and estimated aggregate offering expenses payable by us, you will experience immediate dilution of $2.84 per share, representing the difference between our as adjusted net tangible
book value per share as of September 30, 2015 after giving effect to this offering at the assumed offering size and price. This does not take into consideration the shares of our common stock that may be issued upon exercise of the one or more
warrant(s) we have agreed to issue the placement agent and/or its designee(s) at the closing of this offering, and the exercise of outstanding stock options and other warrants may result in further dilution of your investment. See
Dilution on page S-7 of this prospectus supplement for a more detailed discussion of the dilution you will incur if you purchase shares in this offering.
You may experience future dilution as a result of future equity offerings.
In order to raise additional capital, we may in the future offer additional shares of our common stock or other securities convertible into or exchangeable for
our common stock at prices that may not be the same as the price per share in this offering. We may sell shares or other securities in any other offering at a price per share that is less than the price per share paid by purchasers in this offering,
and investors purchasing shares or other securities in the future could have rights superior to existing stockholders. The price per share at which we sell additional shares of our common stock, or securities convertible or exchangeable into common
stock, in future transactions may be higher or lower than the price per share paid by purchasers in this offering.
S-5
USE OF PROCEEDS
We intend to use the net proceeds from this offering for general corporate purposes, including manufacturing and other expenses to support the
commercialization of AFREZZA as well as research and development expenses and general and administrative expenses. We may also use a portion of the net proceeds to acquire or invest in complementary businesses, products and technologies. Although we
have no specific agreements, commitments or understandings with respect to any acquisition, we evaluate acquisition opportunities and engage in related discussions with other companies from time to time.
As of the date of this prospectus supplement, we cannot specify with certainty all of the particular uses of the proceeds, if any, from this offering.
Accordingly, we will retain broad discretion over the use of any such proceeds. Pending the use of the net proceeds, from this offering as described above, we intend to invest the net proceeds in investment-grade, interest-bearing instruments.
S-6
DILUTION
Our net tangible book deficit as of September 30, 2015 was approximately $(124.6) million, or $(0.30) per share. Net tangible book deficit per share
is determined by dividing our total tangible assets, less total liabilities, by the number of shares of our common stock outstanding as of September 30, 2015.
After giving effect to the sale of 50,000,000 shares of our common stock, which is the maximum number of shares offered by this prospectus supplement, at an
assumed offering price of $2.87 per share, the last reported sale price of our common stock on The NASDAQ Global Market on November 6, 2015, and after deducting estimated placement agent fees and offering expenses payable by us, our net
tangible book value as of September 30, 2015 would have been $13.8 million, or $0.03 per share of common stock. This represents an immediate increase in the net tangible book value per share of $0.33 to our existing stockholders and an
immediate dilution in net tangible book value of $2.84 per share to the purchasers in this offering. The following table illustrates this per share dilution:
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Assumed public offering price per share |
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$ |
2.87 |
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Net tangible book deficit per share as of September 30, 2015 |
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$ |
(0.30 |
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Increase in net tangible book value per share attributable to this offering |
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$ |
0.33 |
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As adjusted net tangible book value per share as of September 30, 2015, after giving effect to this offering |
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$ |
0.03 |
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Dilution per share to the purchasers purchasing shares in this offering |
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$ |
2.84 |
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The above discussion and table are based on assumptions and are for illustrative purposes only. The actual number of shares
sold in this offering and the offering price could differ materially from the assumptions reflected in the table above. See Plan of Distribution on page S-8 of this prospectus supplement for more information.
The above discussion and table are based on 418,263,814 shares issued and outstanding as of September 30, 2015 (including nine million shares
issued in connection with our August 2010 share lending arrangement, which were subsequently returned to us in October 2015) and excludes, as of such date:
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20.484,402 shares of common stock issuable upon the exercise of outstanding stock options with a weighted average exercise price of $4.55 per share; |
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1,924,783 shares of common stock issuable upon the settlement of outstanding restricted stock units; |
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4,072,809 shares of common stock issuable upon the conversion of our 5.75% convertible senior subordinated exchange notes due 2018 at a conversion price of approximately $6.80 per share and up to 747,101 shares issuable
as make-whole premiums if the notes are converted in connection with certain fundamental changes; |
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3,934,133 shares of common stock issuable upon the exercise of outstanding warrants at an exercise price of $2.40 per share; and |
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14,890,263 shares of common stock available for future grant under our 2013 equity incentive plan. |
To the
extent that outstanding options or warrants are exercised or outstanding restricted stock units are settled, you may experience further dilution. We may choose to raise additional capital due to market conditions or strategic considerations even if
at that time we believe we have sufficient funds for our current or future operating plans. To the extent that additional capital is raised through the sale of equity or convertible debt securities, the issuance of these securities could result in
further dilution to our stockholders.
S-7
PLAN OF DISTRIBUTION
We are offering to sell up to 50,000,000 shares of our common stock directly to selected investment funds in Israel that are required to hold securities
included within certain stock indexes of the TASE, which investment funds we refer to as the purchasers, at a price per share equal to 97% of the closing price of our common stock on the TASE on November 12, 2015, which is the trading day
immediately preceding the first day on which our common stock will enter specified TASE stock indexes. Sunrise Securities Corp., which we refer to as the placement agent, has agreed to act as the exclusive placement agent in connection with this
offering subject to the terms and conditions contained in our engagement agreement with Sunrise Securities Corp. The placement agent is not purchasing or selling any shares offered by this prospectus supplement or accompanying prospectus, nor is it
required to arrange for the purchase or sale of any specific number or dollar amount of shares. All sales will be evidenced by separate common stock purchase agreements between us and the purchasers.
Each stock purchase agreement will contain customary representations, warranties and covenants for transactions of this type. These representations,
warranties and covenants will be made solely for purposes of the stock purchase agreements and should not be relied upon by any of our other investors, nor should any investor rely upon any descriptions thereof as characterizations of the
actual state of facts or condition. Consummation of the sale of our common stock pursuant to the stock purchase agreements is subject to customary conditions for similar transactions. Union Bank Trust Co. Ltd. will serve as escrow agent for the
deposit and disbursement of the purchase price of the shares sold in this offering.
The actual number of shares that we will sell pursuant to this
prospectus supplement will be based on the number of shares of our common stock that the purchasers are required to hold upon our common stock entering into specified indexes of the TASE, subject to reduction on a pro rata basis among the purchasers
based on their respective purchase commitments if the aggregate number of shares sold in this offering would otherwise exceed 50,000,000 shares. We currently anticipate that the closing of this offering will take place on or about November 12,
2015. On the closing date, we will issue the shares of our common stock to the purchasers and receive funds in the amount of the aggregate purchase price, less the placement agent fee.
We will pay the placement agent a fee equal to 3.5% of the total purchase price of the shares of common stock sold in this offering. We have also agreed to
indemnify the placement agent against certain liabilities other than those arising from its negligence or willful misconduct. The following table shows the per share and total placement agent fees to be paid to the placement agent by us,
assuming the sale of 50,000,000 shares at the assumed public offering price of $2.87 per share:
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Per Share |
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Total |
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Placement agent fees |
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$ |
0.10 |
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$ |
5,022,500 |
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We have also agreed to issue the placement agent and/or its designee(s) one or more restricted warrant(s) concurrently with
the closing of this offering. The restricted warrant(s) will be exercisable for up to a number of restricted shares of common stock in the aggregate equal to 1.15% of the total number of shares sold pursuant to this prospectus supplement at an
exercise price per share equal to the price paid by the purchasers under the stock purchase agreements. The warrant(s) and the underlying shares of common stock will be offered to the placement agent and/or its designee(s) in a separate private
placement exempt from registration pursuant to Section 4(a)(2) of the Securities Act. We have agreed to register for resale the restricted shares of common stock issuable upon exercise of the warrant(s).
S-8
LEGAL MATTERS
Cooley LLP, San Diego, California, will pass upon the validity of the issuance of the shares being sold in this offering.
EXPERTS
The
consolidated financial statements incorporated in this prospectus supplement by reference from our Annual Report on Form 10-K for the year ended December 31, 2014, and the effectiveness of our internal control over financial reporting have been
audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports, which are incorporated herein by reference (which reports (1) express an unqualified opinion on the consolidated financial
statements and includes an explanatory paragraph relating to our ability to continue as a going concern and (2) express an unqualified opinion on the effectiveness of internal control over financial reporting). Such consolidated financial
statements have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus supplement and the accompanying prospectus are part of the registration statement on Form S-3 we filed with the SEC under the Securities Act
and do not contain all the information set forth in the registration statement. Whenever a reference is made in this prospectus supplement or the accompanying prospectus to any of our contracts, agreements or other documents, the reference may not
be complete and you should refer to the exhibits that are a part of the registration statement or the exhibits to the reports or other documents incorporated by reference in this prospectus supplement and the accompanying prospectus for a copy of
such contract, agreement or other document. Because we are subject to the information and reporting requirements of the Exchange Act, we file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings
are available to the public over the Internet at the SECs website at http://www.sec.gov. You may also read and copy any document we file at the SECs Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC
at 1-800-SEC-0330 for further information on the operation of the Public Reference Room.
INCORPORATION OF
CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference information from other documents that we file with it,
which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus supplement and the accompanying prospectus. Information
contained in this prospectus supplement and the accompanying prospectus and information that we file with the SEC in the future and incorporate by reference in this prospectus supplement and the accompanying prospectus will automatically update and
supersede this information. We incorporate by reference the documents listed below and any future filings (other than information in current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that
are related to such items) we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of the prospectus supplement and prior to the termination of the offering of the securities covered by this prospectus
supplement:
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our Annual Report on Form 10-K for the year ended December 31, 2014, filed with the SEC on March 2, 2015; |
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the information specifically incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, 2014 from our Definitive Proxy Statement on Schedule 14A, filed with the SEC on
April 10, 2015; |
S-9
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our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2015, June 30, 2015 and September 30, 2015, filed with the SEC on May 11, 2015, August 10, 2015 and November 9, 2015,
respectively; |
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our Current Reports on Form 8-K and Form 8-K/A, filed with the SEC on January 8, 2015, January 12, 2015, February 9, 2015, February 24, 2015, April 27,
2015, May 27, 2015, July 29, 2015, August 13, 2015, August 18, 2015 and September 4, 2015; and |
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the description of our common stock contained in our registration statement on Form 8-A, filed with the SEC on July 23, 2004, including all amendments and reports filed for the purpose of updating such description.
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We will furnish without charge to you, upon written or oral request, a copy of any or all of the documents incorporated by reference,
including exhibits to these documents. You should direct any requests for documents to:
Investor Relations
MannKind Corporation
25134 Rye
Canyon Loop, Suite 300
Valencia, CA 91355
(661) 775-5300
In accordance with Rule 412 of
the Securities Act, any statement contained in a document incorporated by reference herein shall be deemed modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed
to be incorporated by reference herein modifies or supersedes such statement.
S-10
PROSPECTUS
Common Stock
Common Stock Warrants
From time to
time, we may sell common stock or warrants to purchase common stock in amounts, at prices and on terms described in one or more supplements to this prospectus. We may also authorize one or more free writing prospectuses to be provided to you in
connection with these offerings.
Our common stock is traded on The NASDAQ Global Market under the trading symbol MNKD. On
September 2, 2015, the last reported sale price of our common stock on The NASDAQ Global Market was $3.85. The applicable prospectus supplement will contain information, where applicable, as to other listings, if any, on The NASDAQ Global
Market or other securities exchange of the securities covered by the prospectus supplement.
Our principal executive offices are located at
28903 North Avenue Paine, Valencia, California 91355, and our telephone number at that address is (661) 775-5300.
You should read
this prospectus and any prospectus supplement carefully before you invest.
INVESTING IN
OUR SECURITIES INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD REVIEW CAREFULLY THE RISKS AND UNCERTAINTIES REFERENCED UNDER THE HEADING RISK FACTORS ON PAGE 2 OF THIS PROSPECTUS AS WELL AS THOSE CONTAINED IN THE
APPLICABLE PROSPECTUS SUPPLEMENT AND ANY RELATED FREE WRITING PROSPECTUS, AND UNDER SIMILAR HEADINGS IN THE OTHER DOCUMENTS THAT ARE INCORPORATED BY REFERENCE INTO THIS PROSPECTUS.
This prospectus may not be used to offer or sell any securities unless accompanied by a prospectus supplement.
The securities may be sold directly by us to investors, through agents designated from time to time or to or through underwriters or dealers,
on a continuous or delayed basis. For additional information on the methods of sale, you should refer to the section entitled Plan of Distribution in this prospectus and in the applicable prospectus supplement. If any agents or
underwriters are involved in the sale of any securities with respect to which this prospectus is being delivered, the names of such agents or underwriters and any applicable fees, commissions, discounts and options to purchase additional securities
will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds that we expect to receive from such sale will also be set forth in a prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this
Prospectus is September 4, 2015.
TABLE OF CONTENTS
We have not authorized anyone to provide you with information different from the information contained in or incorporated by reference in this
prospectus, any applicable prospectus supplement and any related free writing prospectus that we may authorize to be provided to you. No dealer, salesperson or other person is authorized to give any information or to represent anything not contained
or incorporated by reference in this prospectus, any applicable prospectus supplement or any related free writing prospectus that we may authorize to be provided to you. This prospectus is an offer to sell only the securities offered hereby, but
only under circumstances and in jurisdictions where it is lawful to do so. You should assume that the information in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate only as of the date on the
front of the document and that any information we have incorporated by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus, any applicable prospectus supplement
or any related free writing prospectus, or any sale of our securities. Our business, financial condition, results of operations and prospects may have changed since that date.
AFREZZA®, MedTone®,
Dreamboat and Technosphere® are our trademarks in the United States. We have also applied for and have registered company trademarks in other jurisdictions, including Europe and Japan.
This document also contains trademarks and service marks of other companies that are the property of their respective owners.
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange
Commission, or SEC, using a shelf registration process as a well-known seasoned issuer, as defined in Rule 405 under the Securities Act of 1933, as amended, or the Securities Act. Under this shelf registration process, we may
offer and sell from time to time in one or more offerings the securities described in this prospectus. No limit exists on the aggregate number or amount of securities we may sell pursuant to the registration statement.
This prospectus provides you with a general description of the securities we may offer. Each time we offer securities under this prospectus,
we will provide a prospectus supplement that will contain more specific information about the terms of those securities and the offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material
information relating to these offerings. We may also add, update or change in the prospectus supplement (and in any related free writing prospectus that we may authorize to be provided to you) any of the information contained in this prospectus or
in the documents that we have incorporated by reference into this prospectus. We urge you to carefully read this prospectus, any applicable prospectus supplement and any related free writing prospectus, together with the information incorporated
herein by reference as described under the headings Where You Can Find More Information and Incorporation of Certain Information by Reference before buying any of the securities being offered.
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SUMMARY
The following summary highlights information contained elsewhere in this prospectus or incorporated by reference herein and does not
contain all the information that may be important to purchasers of our securities. You should carefully read this prospectus, all documents incorporated by reference, any prospectus supplement and any related free writing prospectus, and the
additional information described under the caption Where You Can Find More Information in this prospectus, before buying any of the securities being offered. References in this prospectus to MannKind, the Company,
we, us and our refer to MannKind Corporation and its subsidiaries, on a consolidated basis, unless the context requires otherwise.
MannKind Corporation
MannKind Corporation is a biopharmaceutical company focused on the discovery and development of therapeutic products for diseases such as
diabetes. Our only approved product, AFREZZA, is a rapid-acting inhaled insulin that was approved by the U.S. Food and Drug Administration, or FDA, on June 27, 2014 to improve glycemic control in adult patients with diabetes. According to the
Centers for Disease Control and Prevention, in the United States in 2012, approximately 29.1 million people had diabetes. Globally, the International Diabetes Federation has estimated that approximately 387.0 million people had diabetes in
2014 and approximately 592.0 million people will have diabetes by 2035.
AFREZZA is a rapid-acting, inhaled insulin used to control
high blood sugar in adults with type 1 and type 2 diabetes. The product consists of a dry formulation of human insulin delivered from a small and portable inhaler. Administered at the beginning of a meal, AFREZZA dissolves rapidly upon
inhalation to the lung and delivers insulin quickly to the bloodstream. Peak insulin levels are achieved within 1215 minutes of administration.
AFREZZA utilizes our proprietary Technosphere formulation technology; however, the application of this technology is not limited to insulin
delivery. We believe it represents a versatile drug delivery platform that may allow the oral inhalation of a wide range of therapeutics.
We are party to a license and collaboration agreement with Sanofi-Aventis U.S. LLC, or Sanofi, pursuant to which Sanofi is responsible for
global commercial, regulatory and development activities for AFREZZA. We manufacture AFREZZA at our manufacturing facility in Danbury, Connecticut to supply Sanofis demand for the product. In February 2015, AFREZZA became available by
prescription in United States retail pharmacies.
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Risk Factors
An investment in our securities involves a high degree of risk. Prior to making a decision about investing in our securities, you should
carefully consider the specific risk factors discussed in the sections entitled Risk Factors contained in any applicable prospectus supplement and our filings with the SEC, which are incorporated by reference in this prospectus, together
with all of the other information contained in this prospectus, any applicable prospectus supplement or free writing prospectus, or incorporated by reference in this prospectus. These risks and uncertainties are not the only risks and uncertainties
we face. Additional risks and uncertainties not presently known to us, or that we currently view as immaterial, may also impair our business. If any of the risks or uncertainties described in our SEC filings or any prospectus supplement or any
additional risks and uncertainties actually occur, our business, financial condition and results of operations could be materially and adversely affected. In that case, the trading price of our securities could decline and you might lose all or part
of your investment.
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The Securities We May Offer
We may offer shares of our common stock and/or warrants to purchase common stock from time to time under this prospectus at prices and on
terms to be determined by market conditions at the time of offering. No limit exists on the aggregate number or amount of shares of common stock or warrants we may sell pursuant to the registration statement to which this prospectus forms a part.
This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series of securities, we will provide a prospectus supplement that will describe the specific amounts, prices and other important
terms of the securities.
A prospectus supplement and any related free writing prospectus that we may authorize to be provided to you also
may add, update or change information contained in this prospectus or in documents we have incorporated by reference.
This prospectus
may not be used to offer or sell securities unless it is accompanied by a prospectus supplement.
We may sell the securities directly
to or through agents, underwriters or dealers. We, and our agents, dealers or underwriters, reserve the right to accept or reject all or part of any proposed purchase of securities. If we do offer securities through agents or underwriters, we will
include in the applicable prospectus supplement:
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the name of those agents or underwriters; |
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applicable fees, discounts and commissions to be paid to them; |
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details regarding options to purchase additional securities, if any; and |
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the net proceeds to us. |
Common Stock. We may issue shares of our common stock
from time to time. Holders of our common stock are entitled to one vote per share on all matters submitted to a vote of stockholders. Subject to any preferences of any of our preferred stock that may be outstanding, holders of our common stock are
entitled to dividends when and if declared by our board of directors.
Warrants. We may issue warrants for the purchase of
common stock in one or more series, from time to time. We may issue warrants independently or together with common stock, and the warrants may be attached to or separate from our common stock. In this prospectus, we have summarized certain general
features of the warrants. We urge you, however, to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the particular series of warrants being offered, as well as the
complete warrant agreements and warrant certificates that contain the terms of the warrants. Forms of the warrant agreements and forms of warrant certificates containing the terms of the warrants being offered have been filed as exhibits to the
registration statement of which this prospectus is a part, and supplemental warrant agreements and forms of warrant certificates will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by
reference from reports that we file with the SEC.
We will evidence each series of warrants by warrant certificates that we will issue.
Warrants may be issued under an applicable warrant agreement that we enter into with a warrant agent. We will indicate the name and address of the warrant agent, if applicable, in the prospectus supplement relating to the particular series of
warrants being offered.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Statements contained in this prospectus, in the documents incorporated by reference herein and in any prospectus supplement that are not
strictly historical in nature are forward-looking statements within the meaning of Section 27A of the Securities Act and within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. These
forward-looking statements are subject to the safe harbor created by Section 27A of the Securities Act and Section 21E of the Exchange Act and may include, but are not limited to, statements about:
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our and our marketing partners ability to successfully market, commercialize and achieve market acceptance for AFREZZA or any other product candidates or therapies that we may develop; |
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our ability to manufacture sufficient quantities of AFREZZA and obtain insulin supply as needed; |
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our ability to protect our intellectual property and operate our business without infringing upon the intellectual property rights of others; |
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our estimates regarding anticipated operating losses, future revenues, capital requirements and our needs for additional financing; |
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our estimates for future performance; |
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the terms under which an offering may be conducted and our anticipated use of proceeds from the sale of securities under this prospectus; and |
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scientific studies and the conclusions we draw from them. |
In some cases, you can identify
forward-looking statements by terms such as anticipates, believes, could, estimates, expects, goal, intends, may, plans,
potential, predicts, projects, should, will, would, the negative of these words and words or similar expressions intended to identify forward-looking statements. These
statements reflect our views as of the date on which they were made with respect to future events and are based on assumptions and subject to risks and uncertainties. The underlying information and expectations are likely to change over time. Given
these uncertainties, you should not place undue reliance on these forward-looking statements as actual events or results may differ materially from those projected in the forward-looking statements due to various factors, including, but not limited
to, those set forth under the heading Risk Factors in any applicable prospectus supplement or free writing prospectus and in our SEC filings. These forward-looking statements represent our estimates and assumptions only as of the date of
the document containing the applicable statement.
You should rely only on the information contained, or incorporated by reference, in
this prospectus, the registration statement of which this prospectus is a part, the documents incorporated by reference herein, and any applicable prospectus supplement or free writing prospectus and understand that our actual future results may be
materially different from what we expect. We qualify all of the forward-looking statements in the foregoing documents by these cautionary statements. Unless required by law, we undertake no obligation to update or revise any forward-looking
statements to reflect new information or future events or developments. Thus, you should not assume that our silence over time means that actual events are bearing out as expressed or implied in such forward-looking statements. Before deciding to
purchase our securities, you should carefully consider the risk factors discussed here or incorporated by reference, in addition to the other information set forth in this prospectus, any accompanying prospectus supplement or free writing prospectus
and in the documents incorporated by reference.
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USE OF PROCEEDS
Except as described in any prospectus supplement or in any related free writing prospectus that we may authorize to be provided to you, we
currently intend to use the net proceeds from the sale of securities under this prospectus for general corporate purposes, including manufacturing expenses, clinical trial expenses, research and development expenses, general and administrative
expenses, and other expenses to support the commercialization of AFREZZA. We may also use a portion of the net proceeds to in-license, invest in or acquire businesses or technologies that we believe are complementary to our own, although we have no
current plans, commitments or agreements with respect to any acquisitions. As of the date of this prospectus, we cannot specify with certainty all of the particular uses of the proceeds from the sale of securities under this prospectus. Accordingly,
we will retain broad discretion over the use of such proceeds. Pending the use of the net proceeds from the sale of securities under this prospectus as described above, we intend to invest the net proceeds in investment-grade, interest-bearing
instruments.
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DESCRIPTION OF CAPITAL STOCK
General
Our authorized capital stock
consists of 550,000,000 shares of common stock, $0.01 par value, and 10,000,000 shares of preferred stock, $0.01 par value. As of September 2, 2015, there were 414,757,416 shares of common stock outstanding and no shares of preferred stock
outstanding.
The following summary description of our capital stock is based on the provisions of our certificate of incorporation and
bylaws and the applicable provisions of the Delaware General Corporation Law, or DGCL. This information is qualified entirely by reference to the applicable provisions of our certificate of incorporation, bylaws and the DGCL. For information on how
to obtain copies of our certificate of incorporation and bylaws, which are exhibits to the registration statement of which this prospectus is a part, see Where You Can Find Additional Information and Incorporation of Certain
Information by Reference.
Common Stock
Voting Rights
Each holder
of our common stock is entitled to one vote for each share on all matters submitted to a vote of our stockholders, including the election of our directors. Under our certificate of incorporation and bylaws, our stockholders will not have cumulative
voting rights. Accordingly, the holders of a majority of our outstanding shares of common stock entitled to vote in any election of directors can elect all of the directors standing for election, if they should so choose. In all other matters, an
action by our common stockholders requires the affirmative vote of the holders of a majority of our outstanding shares of common stock entitled to vote.
Dividends
Subject to
preferences that may be applicable to any outstanding shares of our preferred stock, holders of our common stock are entitled to receive ratably any dividends our board of directors declares out of funds legally available for that purpose. Any
dividends on our common stock will be non-cumulative.
Liquidation, Dissolution or Winding Up
If we liquidate, dissolve or wind up, the holders of our common stock are entitled to share ratably in all assets legally available for
distribution to our stockholders after the payment of all of our debts and other liabilities and the satisfaction of any liquidation preference granted to the holders of any outstanding shares of our preferred stock.
Rights and Preferences
Our common stock has no preemptive, conversion or subscription rights. There are no redemption or sinking fund provisions applicable to our
common stock. The rights, preferences and privileges of the holders of our common stock are subject to, and may be adversely affected by, the rights of the holders of any outstanding shares of our of preferred stock, which we may designate and issue
in the future.
Preferred Stock
Pursuant to our certificate of incorporation, our board of directors has the authority, without further action by the stockholders (unless such
stockholder action is required by applicable law or NASDAQ rules), to designate and issue up to 10,000,000 shares of preferred stock in one or more series, to establish from time to time the number of shares to be included in each such series, to
fix the designations, voting powers, preferences and rights of the shares of each wholly unissued series, and any qualifications, limitations or restrictions thereof, and to increase or decrease the number of shares of any such series, but not below
the number of shares of such series then outstanding.
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Our board of directors may authorize the issuance of preferred stock with voting or conversion
rights that could adversely affect the voting power or other rights of the holders of our common stock. Preferred stock could be issued quickly with terms designed to delay or prevent a change in control of our company or make removal of management
more difficult. Additionally, the issuance of preferred stock may have the effect of decreasing the market price of our common stock.
Anti-Takeover
Effects of Provisions of Delaware Law and Our Certificate of Incorporation and Bylaws
Delaware takeover statute
We are subject to Section 203 of the DGCL, which regulates acquisitions of some Delaware corporations. In general, Section 203
prohibits, with some exceptions, a publicly held Delaware corporation from engaging in a business combination with an interested stockholder for a period of three years following the date of the transaction in which the
person became an interested stockholder, unless:
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the board of directors of the corporation approved the business combination or the other transaction in which the person became an interested stockholder prior to the date of the business combination or other
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upon consummation of the transaction that resulted in the person becoming an interested stockholder, the person owned at least 85% of the voting stock of the corporation outstanding at the time the transaction
commenced, excluding shares owned by persons who are directors and also officers of the corporation and shares issued under employee stock plans under which employee participants do not have the right to determine confidentially whether shares held
subject to the plan will be tendered in a tender or exchange offer; or |
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on or subsequent to the date the person became an interested stockholder, the board of directors of the corporation approved the business combination and the stockholders of the corporation authorized the business
combination at an annual or special meeting of stockholders by the affirmative vote of at least 66-2/3% of the outstanding stock of the corporation not owned by the interested stockholder. |
Section 203 of the DGCL generally defines a business combination to include any of the following:
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any merger or consolidation involving the corporation and the interested stockholder; |
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any sale, transfer, pledge or other disposition of 10% or more of the corporations assets or outstanding stock involving the interested stockholder; |
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in general, any transaction that results in the issuance or transfer by the corporation of any of its stock to the interested stockholder; |
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any transaction involving the corporation that has the effect of increasing the proportionate share of its stock owned by the interested stockholder; or |
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the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation. |
In general, Section 203 defines an interested stockholder as any person who, together with the persons affiliates and
associates, owns, or within three years prior to the determination of interested stockholder status did own, 15% or more of a corporations voting stock.
Section 203 of the DGCL could depress our stock price and delay, discourage or prohibit transactions not approved in advance by our board
of directors, such as takeover attempts that might otherwise involve the payment to our stockholders of a premium over the market price of our common stock.
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Certificate of incorporation and bylaw provisions
Our certificate of incorporation and bylaws include a number of provisions that may have the effect of deterring hostile takeovers or delaying
or preventing changes in our control or our management, including, but not limited to the following:
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Our board of directors can issue up to 10,000,000 shares of preferred stock with any rights or preferences, including the right to approve or not approve an acquisition or other change in our control. |
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Our certificate of incorporation and bylaws provide that all stockholder actions must be effected at a duly called meeting of holders and not by written consent. |
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Our bylaws provide that special meetings of the stockholders may be called only by the Chairman of our board of directors, by our Chief Executive Officer, by our board of directors upon a resolution adopted by a
majority of the total number of authorized directors or, under certain limited circumstances, by the holders of at least 5% of our outstanding voting stock. |
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Our bylaws provide that stockholders seeking to present proposals before a meeting of stockholders or to nominate candidates for election as directors at a meeting of stockholders must provide timely notice in writing
and also specify requirements as to the form and content of a stockholders notice. These provisions may delay or preclude stockholders from bringing matters before a meeting of our stockholders or from making nominations for directors at a
meeting of stockholders, which could delay or deter takeover attempts or changes in our management. |
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Our certificate of incorporation provides that, subject to the rights of the holders of any outstanding series of preferred stock, all vacancies, including newly created directorships, may, except as otherwise required
by law, be filled by the affirmative vote of a majority of directors then in office, even if less than a quorum. In addition, our certificate of incorporation provides that our board of directors may fix the number of directors by resolution.
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Our certificate of incorporation does not provide for cumulative voting for directors. The absence of cumulative voting may make it more difficult for stockholders who own an aggregate of less than a majority of our
voting stock to elect any directors to our board of directors. |
These and other provisions contained in our certificate of
incorporation and bylaws are expected to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our board of directors.
However, these provisions could delay or discourage transactions involving an actual or potential change in control of us or our management, including transactions in which our stockholders might otherwise receive a premium for their shares over the
prevailing market price of our stock and may limit the ability of stockholders to remove our current management or approve transactions that our stockholders may deem to be in their best interests and, therefore, could adversely affect the price of
our common stock.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare Shareowner Services. Its address is 480 Washington Boulevard, Jersey
City, New Jersey, 07310.
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DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of common stock in one or more series. We may issue warrants independently or together with common
stock, and the warrants may be attached to or separate from our common stock. While the terms summarized below will apply generally to any warrants that we may offer, we will describe the particular terms of any series of warrants in more detail in
the applicable prospectus supplement. The terms of any warrants offered under a prospectus supplement may differ from the terms described below.
We have filed forms of the warrant agreements and forms of warrant certificates containing the terms of the warrants being offered as exhibits
to the registration statement of which this prospectus is a part. We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of warrant
agreement, including a form of warrant certificate, that describes the terms of the particular series of warrants we are offering before the issuance of the related series of warrants. The following summaries of material provisions of the warrants
and the warrant agreements are subject to, and qualified in their entirety by reference to, all the provisions of the warrant agreement and warrant certificate applicable to the particular series of warrants that we may offer under this prospectus.
We urge you to read the applicable prospectus supplements related to the particular series of warrants that we may offer under this prospectus, as well as any related free writing prospectuses, and the complete warrant agreements and warrant
certificates that contain the terms of the warrants.
General
We will describe in the applicable prospectus supplement the terms of the series of warrants being offered, including:
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the offering price and aggregate number of warrants offered; |
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the currency for which the warrants may be purchased; |
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if applicable, the number of warrants issued with each share of common stock; |
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if applicable, the date on and after which the warrants and the related shares will be separately transferable; |
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the number of shares of common stock purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise; |
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants; |
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the terms of any rights to redeem or call the warrants; |
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any provisions for changes to or adjustments in the exercise price or number of shares issuable upon exercise of the warrants; |
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the dates on which the right to exercise the warrants will commence and expire; |
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the manner in which the warrant agreements and warrants may be modified; and |
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any other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
Before exercising their warrants, holders of warrants will not have any of the rights of holders of common stock purchasable upon such
exercise, including the right to receive dividends, if any, or, payments upon our liquidation, dissolution or winding up or to exercise voting rights:
Exercise of Warrants
Each warrant will
entitle the holder to purchase the number of shares of common stock that we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable prospectus
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supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that
we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
Holders of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together
with specified information, and paying the required amount to the warrant agent in immediately available funds, as provided in the applicable prospectus supplement. We will set forth on the reverse side of the warrant certificate and in the
applicable prospectus supplement the information that the holder of the warrant will be required to deliver to the warrant agent.
Upon
receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the
shares purchasable upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue a new warrant certificate for the remaining amount of warrants. If we so indicate in the applicable
prospectus supplement, holders of the warrants may surrender securities as all or part of the exercise price for warrants.
Governing Law
Unless we provide otherwise in the applicable prospectus supplement, the warrants and warrant agreements will be governed by and construed in
accordance with the laws of the State of New York.
Enforceability of Rights by Holders of Warrants
Each warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of
agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any
other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
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LEGAL OWNERSHIP OF SECURITIES
We can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater detail
below. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee, depository or warrant agent maintain for this purpose as the holders of those securities. These persons
are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as indirect holders of those securities.
As we discuss below, indirect holders are not legal holders, and investors in securities issued in book-entry form or in street name will be
indirect holders.
Book-Entry Holders
We may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be
represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions that participate in the depositarys book-entry system. These participating
institutions, which are referred to as participants, in turn hold beneficial interests in the securities on behalf of themselves or their customers.
Only the person in whose name a security is registered is recognized as the holder of that security. Securities issued in global form will be
registered in the name of the depositary or its participants. Consequently, for securities issued in global form, we will recognize only the depositary as the holder of the securities, and we will make all payments on the securities to the
depositary. The depositary passes along the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under agreements they have made
with one another or with their customers; they are not obligated to do so under the terms of the securities.
As a result, investors in a
book-entry security will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial institution that participates in the depositarys book-entry system or holds an
interest through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not holders, of the securities.
Street Name Holders
We may terminate a
global security or issue securities in non-global form. In these cases, investors may choose to hold their securities in their own names or in street name. Securities held by an investor in street name would be registered in the name of
a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through an account he or she maintains at that institution.
For securities held in street name, we will recognize only the intermediary banks, brokers and other financial institutions in whose names the
securities are registered as the holders of those securities, and we will make all payments on those securities to them. These institutions pass along the payments they receive to their customers who are the beneficial owners, but only because they
agree to do so in their customer agreements or because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not holders, of those securities.
Legal Holders
Our obligations, as well
as the obligations of any applicable trustee and of any third parties employed by us or a trustee, run only to the legal holders of the securities. We do not have obligations to investors who hold
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beneficial interests in global securities, in street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice
because we are issuing the securities only in global form.
For example, once we make a payment or give a notice to the holder, we have no
further responsibility for the payment or notice even if that holder is required, under agreements with depositary participants or customers or by law, to pass it along to the indirect holders but does not do so.
Special Considerations for Indirect Holders
If you hold securities through a bank, broker or other financial institution, either in book-entry form or in street name, you should check
with your own institution to find out:
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how it handles securities payments and notices; |
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whether it imposes fees or charges; |
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how it would handle a request for the holders consent, if ever required; |
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whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the future; |
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how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and |
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if the securities are in book-entry form, how the depositarys rules and procedures will affect these matters. |
Global Securities
A global security is a
security that represents one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global securities will have the same terms.
Each security issued in book-entry form will be represented by a global security that we deposit with and register in the name of a financial
institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the applicable prospectus supplement, the Depository Trust Company, or DTC, will be the
depositary for all securities issued in book-entry form.
A global security may not be transferred to or registered in the name of anyone
other than the depositary, its nominee or a successor depositary, unless special termination situations arise. We describe those situations below under Special Situations When a Global Security Will Be Terminated. As a result of these
arrangements, the depositary, or its nominee, will be the sole registered owner and holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial
interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by a global
security will not be a holder of the security, but only an indirect holder of a beneficial interest in the global security.
If the
prospectus supplement for a particular security indicates that the security will be issued in global form only, then the security will be represented by a global security at all times unless and until the global security is terminated. If
termination occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system.
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Special Considerations for Global Securities
As an indirect holder, an investors rights relating to a global security will be governed by the account rules of the investors
financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of securities and instead deal only with the depositary that holds the global security.
If securities are issued only in the form of a global security, an investor should be aware of the following:
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An investor cannot cause the securities to be registered in his or her name and cannot obtain non-global certificates for his or her interest in the securities, except in the special situations we describe below.
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An investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection of his or her legal rights relating to the securities, as we describe above.
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An investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form. |
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An investor may not be able to pledge his or her interest in a global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order
for the pledge to be effective. |
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The depositarys policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investors interest in a global security. We and any applicable
trustee have no responsibility for any aspect of the depositarys actions or for its records of ownership interests in a global security. We and the trustee also do not supervise the depositary in any way. |
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The depositary may, and we understand that DTC will, require that those who purchase and sell interests in a global security within its book-entry system use immediately available funds, and your broker or bank may
require you to do so as well. |
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Financial institutions that participate in the depositarys book-entry system, and through which an investor holds its interest in a global security, may also have their own policies affecting payments, notices and
other matters relating to the securities. There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries. |
Special Situations When a Global Security Will Be Terminated
In a few special situations described below, the global security will terminate, and interests in it will be exchanged for physical
certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests
in securities transferred to their own name, so that they will be direct holders. We have described the rights of holders and street name investors above.
The global security will terminate when the following special situations occur:
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if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security and we do not appoint another institution to act as depositary within 90 days;
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if we notify any applicable trustee that we wish to terminate that global security; or |
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if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived. |
The applicable prospectus supplement may also list additional situations for terminating a global security that would apply only to the
particular series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and not we or any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct
holders.
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PLAN OF DISTRIBUTION
We may sell our securities covered by this prospectus in any of three ways (or in any combination):
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to or through underwriters or dealers; |
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directly to one or more purchasers; or |
We may distribute the securities:
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from time to time in one or more transactions at a fixed price or prices, which may be changed from time to time; |
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at market prices prevailing at the time of sale; |
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at prices related to the prevailing market prices; or |
Each time we offer and sell securities covered by this prospectus, we
will provide a prospectus supplement or supplements that will describe the method of distribution and set forth the terms of the offering, including:
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the name or names of any underwriters, dealers or agents; |
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the amounts of securities underwritten or purchased by each of them; |
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the purchase price of securities and the proceeds we will receive from the sale; |
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any option under which underwriters may purchase additional securities from us; |
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any underwriting discounts or commissions or agency fees and other items constituting underwriters or agents compensation; |
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the public offering price of the securities; |
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any discounts, commissions or concessions allowed or reallowed or paid to dealers; and |
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any securities exchange or market on which the securities may be listed. |
Any public offering
price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time. We may determine the price or other terms of the securities offered under this prospectus by use of an electronic auction. We will
describe how any auction will determine the price or any other terms, how potential investors may participate in the auction and the nature of the obligations of the underwriter, dealer or agent in the applicable prospectus supplement.
Underwriters or dealers may offer and sell the offered securities from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined at the time of sale. If underwriters or dealers are used in the sale of any securities, the securities will be acquired by the underwriters or dealers for their own
account and may be resold from time to time in one or more transactions described above. The securities may be either offered to the public through underwriting syndicates represented by managing underwriters, or directly by underwriters or dealers.
Generally, the underwriters or dealers obligations to purchase the securities will be subject to certain conditions precedent. The underwriters or dealers will be obligated to purchase all of the securities if they purchase any of the
securities, unless otherwise specified in the prospectus supplement. We may use underwriters with whom we have a material relationship. We will describe the nature of any such relationship in the prospectus supplement, naming the underwriter.
We may sell the securities through agents from time to time. The prospectus supplement will name any agent involved in the offer or sale of
the securities and any commissions we pay to them. Generally, any agent
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will be acting on a best efforts basis for the period of its appointment. We may authorize underwriters, dealers or agents to solicit offers by certain purchasers to purchase the securities from
us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. The contracts will be subject only to those conditions set forth in
the prospectus supplement, and the prospectus supplement will set forth any commissions we pay for solicitation of these contracts.
Agents, dealers and underwriters may be entitled to indemnification by us against certain civil liabilities, including liabilities under the
Securities Act, or to contribution with respect to payments which the agents, dealers or underwriters may be required to make in respect thereof. Agents, dealers and underwriters may be customers of, engage in transactions with, or perform services
for us in the ordinary course of business.
All securities we may offer, other than common stock, will be new issues of securities with no
established trading market. Any underwriters may make a market in these securities, but will not be obligated to do so and may discontinue any market making at any time without notice. We cannot guarantee the liquidity of the trading markets for any
securities.
Any underwriter may engage in over-allotment, stabilizing transactions, short covering transactions and penalty bids in
accordance with Regulation M under the Exchange Act. Over-allotment involves sales in excess of the offering size, which create a short position. This short sales position may involve either covered short sales or naked short
sales. Covered short sales are short sales made in an amount not greater than the underwriters over-allotment option to purchase additional securities in the relevant offering. The underwriters may close out any covered short position either
by exercising their over-allotment option or by purchasing securities in the open market. To determine how they will close the covered short position, the underwriters will consider, among other things, the price of securities available for purchase
in the open market, as compared to the price at which they may purchase securities through the over-allotment option. Naked short sales are short sales in excess of the over-allotment option. The underwriters must close out any naked short position
by purchasing securities in the open market. A naked short position is more likely to be created if the underwriters are concerned that, in the open market after pricing, there may be downward pressure on the price of the securities that could
adversely affect investors who purchase securities in this offering. Stabilizing transactions permit bids to purchase the underlying security for the purpose of fixing the price of the security so long as the stabilizing bids do not exceed a
specified maximum. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions.
Any underwriters who are qualified market makers on The NASDAQ Global Market may engage in passive market making transactions in our common
stock and warrants, as applicable, on The NASDAQ Global Market in accordance with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the securities. Passive market
makers must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security; if
all independent bids are lowered below the passive market makers bid, however, the passive market makers bid must then be lowered when certain purchase limits are exceeded.
Similar to other purchase transactions, an underwriters purchase to cover the syndicate short sales or to stabilize the market price of
our securities may have the effect of raising or maintaining the market price of our securities or preventing or mitigating a decline in the market price of our securities. As a result, the price of our securities may be higher than the price that
might otherwise exist in the open market. The imposition of a penalty bid might also have an effect on the price of the securities if it discourages resales of the securities.
Neither we nor the underwriters makes any representation or prediction as to the effect that the transactions described above may have on the
price of the securities. If such transactions are commenced, they may be discontinued without notice at any time.
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LEGAL MATTERS
The validity of the securities being offered by this prospectus will be passed upon for us by Cooley LLP, San Diego, California.
EXPERTS
The consolidated financial statements incorporated in this prospectus by reference from our Annual Report on
Form 10-K for the year ended December 31, 2014, and the effectiveness of our internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered
public accounting firm, as stated in their reports, which are incorporated herein by reference (which reports (1) express an unqualified opinion on the consolidated financial statements and includes an explanatory paragraph relating to our
ability to continue as a going concern and (2) express an unqualified opinion on the effectiveness of internal control over financial reporting). Such consolidated financial statements have been so incorporated in reliance upon the reports of
such firm given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE
INFORMATION
We are a reporting company and file annual, quarterly and current reports, proxy statements and other information with
the SEC. We have filed with the SEC a registration statement on Form S-3 under the Securities Act with respect to the securities we are offering under this prospectus. This prospectus, which constitutes a part of the registration statement, does not
contain all of the information set forth in the registration statement or the exhibits which are part of the registration statement. For further information with respect to us and the securities we are offering under this prospectus, we refer you to
the registration statement and the exhibits and schedules filed as a part of the registration statement. You may read and copy any document we file with the SEC at the SECs Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549.
Please call the SEC at 1-800-SEC-0330 for more information about the operation of the Public Reference Room. Our SEC filings are also available at the SECs website at www.sec.gov. We maintain a website at www.mannkindcorp.com. Information
contained in our website does not constitute a part of this prospectus.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference information that we file with it, which means that we can disclose important
information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus. Information in this prospectus supersedes information incorporated by reference that we filed with the SEC
prior to the date of this prospectus, while information that we file later with the SEC will automatically update and supersede the information in this prospectus. We incorporate by reference into this registration statement and prospectus the
documents listed below, and any future filings we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the initial filing of the registration statement but prior to effectiveness of the registration
statement and after the date of this prospectus but prior to the termination of the offering of the securities covered by this prospectus (other than current reports or portions thereof furnished under Item 2.02 or Item 7.01 of Form 8-K
and exhibits filed on such form that are related to such items and other portions of documents that are furnished, but not filed, pursuant to applicable rules promulgated by the SEC):
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our Annual Report on Form 10-K for the year ended December 31, 2014, filed with the SEC on March 2, 2015; |
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the information specifically incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, 2014 from our Definitive Proxy Statement on Schedule 14A, filed with the SEC on
April 10, 2015; |
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our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2015 and June 30, 2015, filed with the SEC on May 11, 2015 and August 10, 2015, respectively; |
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our Current Reports on Form 8-K and Form 8-K/A, filed with the SEC on January 8, 2015, January 12, 2015, February 9, 2015, February 24, 2015, April 27,
2015, May 27, 2015, July 29, 2015, August 13, 2015 and August 18, 2015; and |
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the description of our common stock contained in our registration statement on Form 8-A, filed with the SEC on July 23, 2004, including all amendments and reports filed for the purpose of updating such description.
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We will furnish without charge to you, on written or oral request, a copy of any or all of the documents incorporated by
reference, including exhibits to these documents. You should direct any requests for documents to:
Investor Relations
MannKind Corporation
28903 North
Avenue Paine
Valencia, CA 91355
(661) 775-5300
In accordance
with Rule 412 of the Securities Act, any statement contained in a document incorporated by reference herein shall be deemed modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also
is or is deemed to be incorporated by reference herein modifies or supersedes such statement.
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Up to 50,000,000 Shares
Common Stock
Prospectus
Supplement
November 9, 2015
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