As filed
with the Securities and Exchange Commission on June 25,
2009 Registration No.
333-_______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
MannKind
Corporation
(Exact
name of registrant as specified in its charter)
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Delaware
|
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13-3607736
|
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(State
of Incorporation)
|
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(I.R.S.
Employer Identification No.)
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28903
North Avenue Paine
Valencia,
California 91355
(Address
of principal executive offices) (Zip Code)
2004
Equity Incentive Plan
(Full
title of the plans)
Alfred
E. Mann
Chief
Executive Officer and Chairman
MannKind
Corporation
28903
North Avenue Paine
Valencia,
California 91355
(661)
775-5300
(Name, and
address of agent for service) (Telephone number, including area code, of agent
for service)
Copies
to:
|
David
Thomson, Esq.
MannKind
Corporation
28903
North Avenue Paine
Valencia,
California 91355
(661)
775-5300
|
D.
Bradley Peck, Esq.
Ethan
E. Christensen, Esq.
Cooley
Godward Kronish LLP
4401
Eastgate Mall
San
Diego, California 92121
(858)
550-6000
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Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer ¨
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Accelerated
filer þ
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Non-accelerated
filer ¨ (Do not check if
a smaller reporting company)
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Smaller
reporting company ¨
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CALCULATION
OF REGISTRATION FEE
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Title
of each
Class
of Securities
to
be Registered
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Amount
to be Registered (1)
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Proposed
Maximum
Offering
Price
per Share (2)
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Proposed
Maximum
Aggregate
Offering
Price (2)
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Amount
of
Registration
Fee
|
|
Common
Stock issuable
under
the 2004 Equity
Incentive
Plan
(par
value $0.01 per share)
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5,000,000
shares
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$8.18
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$40,900,000.00
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$2,282.22
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(1)
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Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended, or
the Act, this Registration Statement shall also cover any additional
shares of our Common Stock that may become issuable under the 2004 Equity
Incentive Plan, as amended, or 2004 EIP, by reason of any stock dividend,
stock split, recapitalization or other similar transaction effected
without receipt of consideration that increases the number of outstanding
shares of our Common Stock.
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(2)
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This
estimate is made pursuant to Rule 457(c) and
Rule 457(h)(1) of the Act solely for purposes of calculating the
registration fee. The price per share and aggregate offering price
are based upon the average of the high and low prices of our Common Stock
on June 18, 2009, as reported on The Nasdaq Global
Market.
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INCORPORATION
BY REFERENCE OF CONTENTS OF REGISTRATION STATEMENTS
ON
FORM S-8 NO. 333-117811, NO. 333-127876, NO. 333-137332 and NO.
333-149049
This
Registration Statement is being filed for the purpose of increasing the number
of securities of the same class as other securities for which Registration
Statements of the Registrant on Form S-8 relating to the same employee
benefit plan are effective. The Registrant previously registered shares of its
Common Stock for issuance under the 2004 EIP, under Registration Statements on
Form S-8 filed with the Securities and Exchange Commission, or SEC, on July
30, 2004 (File No. 333-117811), August 26, 2005 (File No. 333-127876),
September 15, 2006 (File No. 333-137332) and February 5, 2008 (File No.
333-149049). Pursuant to General Instruction E to Form S-8, this
Registration Statement hereby incorporates by reference the contents of the
Registration Statements referenced above.
Item
8. Exhibits.
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Exhibit
Number
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4.1
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Amended
and Restated Certificate of Incorporation. (1)
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4.2
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Certificate
of Amendment of Amended and Restated Certificate of Incorporation.
(2)
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4.3
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Amended
and Restated Bylaws. (3)
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4.4
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Form
of Common Stock Certificate. (1)
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5.1
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Opinion
of Cooley Godward Kronish LLP.
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23.1
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Consent
of Independent Registered Public Accounting Firm.
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23.2
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Consent
of Cooley Godward Kronish LLP is contained in Exhibit 5.1 to this
Registration Statement.
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24.1
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Power
of Attorney is contained on the signature pages of this Registration
Statement.
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99.1
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MannKind
Corporation 2004 Equity Incentive Plan, as amended. (4)
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99.2
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Form
of Stock Option Agreement under the MannKind Corporation 2004 Equity
Incentive Plan, as amended. (1)
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99.3
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Form
of Phantom Stock Award Agreement under the 2004 Equity Incentive Plan, as
amended. (5)
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(1)
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Filed
as an exhibit to our Registration Statement on Form S-1 (File No.
333-115020) as amended, originally filed with the SEC on April 30, 2004,
and incorporated herein by
reference.
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(2)
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Filed
as an exhibit to our Quarterly Report on Form 10-Q for the quarter ended
June 30, 2007, and incorporated herein by
reference.
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(3)
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Filed
as an exhibit to our Current Report on Form 8-K dated November 19, 2007,
and incorporated herein by
reference.
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(4)
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Filed
as an exhibit to our Current Report on Form 8-K dated June 9, 2009, and
incorporated herein by reference.
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(5)
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Filed
as an exhibit to our Current Report on Form 8-K dated December 14, 2005,
and incorporated herein by
reference.
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SIGNATURES
Pursuant
to the requirements of the Act, the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on
Form S-8 and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Valencia, State of California on June 25, 2009.
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MannKind
Corporation
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By:
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/s/
Alfred E. Mann
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Alfred
E. Mann
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Chairman
of the Board of Directors and Chief
Executive Officer
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POWER
OF ATTORNEY
Know All
Persons By These Presents, that each person whose signature appears below
constitutes and appoints Hakan S. Edstrom, Matthew J. Pfeffer and David Thomson,
and each of them, as his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the SEC, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or either of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Act, this Registration Statement has been signed by
the following persons in the capacities and on the date indicated.
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Signature
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Title
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Date
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||
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||||
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/s/
Alfred E. Mann
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Chairman
of the Board of Directors and Chief
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June
25, 2009
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Alfred
E. Mann
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Executive
Officer (Principal
Executive
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Officer)
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/s/ Hakan
S. Edstrom
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President,
Chief Operating Officer and Director
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June
25, 2009
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Hakan
S. Edstrom
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/s/ Matthew
J. Pfeffer
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Corporate
Vice President and Chief Financial
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June
25, 2009
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Matthew
J. Pfeffer
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Officer (Principal
Financial and Accounting Officer)
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/s/ Abraham
E. Cohen
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Director
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June
25, 2009
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Abraham
E. Cohen
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|||||
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/s/ Ronald
J. Consiglio
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Director
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June
25, 2009
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Ronald
J. Consiglio
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|||||
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/s/ Michael
Friedman, M.D.
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Director
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June
25, 2009
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Michael
Friedman, M.D.
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|||||
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|||||
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/s/ Kent
Kresa
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Director
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June
25, 2009
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Kent
Kresa
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|||||
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|||||
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/s/ David
H. MacCallum
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Director
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June
25, 2009
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David
H. MacCallum
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|||||
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|||||
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/s/ Henry
L. Nordhoff
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Director
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June
25, 2009
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|||
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Henry
L. Nordhoff
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EXHIBIT INDEX
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Exhibit
Number
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4.1
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Amended
and Restated Certificate of Incorporation. (1)
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4.2
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Certificate
of Amendment of Amended and Restated Certificate of Incorporation.
(2)
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4.3
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Amended
and Restated Bylaws. (3)
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4.4
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Form
of Common Stock Certificate. (1)
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5.1
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Opinion
of Cooley Godward Kronish LLP.
|
|
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23.1
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Consent
of Independent Registered Public Accounting Firm.
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|
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23.2
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Consent
of Cooley Godward Kronish LLP is contained in Exhibit 5.1 to this
Registration Statement.
|
|
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24.1
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Power
of Attorney is contained on the signature pages of this Registration
Statement.
|
|
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99.1
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MannKind
Corporation 2004 Equity Incentive Plan, as amended. (4)
|
|
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99.2
|
Form
of Stock Option Agreement under the MannKind Corporation 2004 Equity
Incentive Plan, as amended. (1)
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99.3
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Form
of Phantom Stock Award Agreement under the 2004 Equity Incentive Plan, as
amended. (5)
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(1)
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Filed
as an exhibit to our Registration Statement on Form S-1 (File No.
333-115020) as amended, originally filed with the SEC on April 30, 2004,
and incorporated herein by
reference.
|
|
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(2)
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Filed
as an exhibit to our Quarterly Report on Form 10-Q for the quarter ended
June 30, 2007, and incorporated herein by
reference.
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(3)
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Filed
as an exhibit to our Current Report on Form 8-K dated November 19, 2007,
and incorporated herein by
reference.
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(4)
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Filed
as an exhibit to our Current Report on Form 8-K dated June 9, 2009, and
incorporated herein by reference.
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(5)
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Filed
as an exhibit to our Current Report on Form 8-K dated December 14, 2005,
and incorporated herein by
reference.
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D.
BRADLEY PECK
(858)
550-6012
bpeck@cooley.com
|
June 25,
2009
MannKind
Corporation
28903
North Avenue Paine
Valencia,
California 91355
Ladies
and Gentlemen:
You have requested our opinion with
respect to certain matters in connection with the filing by MannKind Corporation
(the “Company”) of a Registration Statement on Form S-8 (the “Registration
Statement”) with the Securities and Exchange Commission, covering the offering
of up to 5,000,000 shares of the Company’s Common Stock, $.01 par value (the
“Shares”), pursuant to the Company’s 2004 Equity Incentive Plan (the
“Plan”).
In
connection with this opinion, we have examined and relied upon the Registration
Statement and related prospectus, the Plan, the Company’s Amended and Restated
Certificate of Incorporation, as amended, its Amended and Restated Bylaws and
the originals or copies certified to our satisfaction of such records,
documents, certificates, memoranda and other instruments as in our judgment are
necessary or appropriate to enable us to render the opinion expressed
below. Our opinion is
expressed only with respect to the General Corporation Law of the State of
Delaware.
We have
assumed the genuineness and authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies thereof and the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness
thereof.
On the basis of the foregoing, and in
reliance thereon, we are of the opinion that the Shares, when sold and issued in
accordance with the Plan, the Registration Statement and related Prospectus,
will be validly issued, fully paid and nonassessable (except as to shares issued pursuant to
certain deferred payment arrangements, which will be fully paid and
nonassessable when such deferred payments are made in full).
We consent to the filing of this opinion
as an exhibit to the Registration Statement.
Very
truly yours,
Cooley
Godward Kronish LLP
By: /s/ D. Bradley
Peck
D. Bradley Peck
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement on Form
S-8 of our reports relating to the financial statements of MannKind Corporation
and the effectiveness of MannKind Corporation's internal control over financial
reporting dated February 27, 2009, appearing in the Annual Report on Form 10-K
of MannKind Corporation for the year ended December 31, 2008.
/s/
Deloitte & Touche LLP
Los
Angeles, California
June
25, 2009