exv4w6






Exhibit 4.6




MANNKIND CORPORATION




and



           , As Warrant Agent



FORM OF DEBT SECURITIES

WARRANT AGREEMENT




Dated As Of           






 









 








MANNKIND CORPORATION

Form of Debt Securities Warrant Agreement




     DEBT SECURITIES WARRANT AGREEMENT (this “Agreement”), dated as of            between
MANNKIND CORPORATION, a Delaware corporation (the “Company”) and      , a [corporation]
[national banking association] organized and existing under the laws of            and having a
corporate trust office in      , as warrant agent (the “Warrant Agent”).



     WHEREAS, the Company has entered into an indenture dated as of [    (the “Senior
Indenture”), with      , as trustee (such trustee, and any successors to such
trustee, herein called the “Senior Trustee”), providing for the issuance from time to time of its
unsubordinated debt securities, to be issued in one or more series as provided in the Senior
Indenture (the “Debt Securities”);] [    (the “Subordinated Indenture”), with
        , as trustee (such trustee, and any successors to such trustee, herein called the “Subordinated
Trustee”), providing for the issuance from time to time of its subordinated debt securities, to be
issued in one or more series as provided in the Subordinated Indenture (the “Debt Securities”);]



     WHEREAS, the Company proposes to sell [If Warrants are sold with other securities — title of
such other securities being offered (the “Other Securities”) with] warrant certificates evidencing
one or more warrants (the “Warrants” or, individually, a “Warrant”) representing the right to
purchase [title of Debt Securities purchasable through exercise of Warrants] (the “Warrant Debt
Securities”), such warrant certificates and other warrant certificates issued pursuant to this
Agreement being herein called the “Warrant Certificates”; and



     WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the
Warrant Agent is willing so to act, in connection with the issuance, registration, transfer,
exchange, exercise and replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, registered, transferred, exchanged, exercised and replaced;



     NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein
contained, the parties hereto agree as follows:



ARTICLE 1




ISSUANCE OF WARRANTS AND EXECUTION AND

DELIVERY OF WARRANT CERTIFICATES



     1.1 Issuance of Warrants. [If Warrants alone—Upon
issuance, each Warrant Certificate shall evidence one or more Warrants.] [If Other Securities and
Warrants—Warrant Certificates shall be [initially] issued in connection with the issuance of the
Other Securities [but shall be separately transferable on and after
(the “Detachable Date”)] [and shall not be separately transferable] and each Warrant
Certificate shall evidence one or more Warrants.] Each Warrant evidenced thereby shall represent
the right, subject to the provisions contained herein and therein, to purchase one Warrant Debt
Security. [If Other Securities and Warrants — Warrant Certificates shall be initially issued in
units with the Other Securities and each Warrant Certificate included in such a unit shall evidence       
Warrants for each [$        principal amount] [ shares] of Other Securities
included in such unit.].



     1.2 Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in registered form substantially in the form
set forth in Exhibit A hereto, shall be dated the date of its countersignature by the Warrant Agent
and may have such letters, numbers, or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the officers of the Company
executing the same may approve (execution thereof to be conclusive evidence of such approval) and
as are not inconsistent with the provisions of this Agreement, or as may be required to comply with
any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which the Warrants may be listed, or to conform to usage. The Warrant
Certificates shall be signed on behalf of the Company
by any of its present or future chief executive officers, presidents, senior vice presidents,
vice presidents, chief financial officers, chief legal officers, treasurers, assistant treasurers,
controllers, assistant controllers, secretaries or



 









 




assistant secretaries under its corporate seal
reproduced thereon. Such signatures may be manual or facsimile signatures of such authorized
officers and may be imprinted or otherwise reproduced on the Warrant Certificates. The seal of the
Company may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.




     No Warrant Certificate shall be valid for any purpose, and no Warrant evidenced thereby shall
be exercisable, until such Warrant Certificate has been countersigned by the manual signature of
the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed by
the Company shall be conclusive evidence that the Warrant Certificate so countersigned has been
duly issued hereunder.



     In case any officer of the Company who shall have signed any of the Warrant Certificates
either manually or by facsimile signature shall cease to be such officer before the Warrant
Certificates so signed shall have been countersigned and delivered by the Warrant Agent, such
Warrant Certificates may be countersigned and delivered notwithstanding that the person who signed
Warrant Certificates ceased to be such officer of the Company; and any Warrant Certificate may be
signed on behalf of the Company by such persons as, at the actual date of the execution of such
Warrant Certificate, shall be the proper officers of the Company, although at the date of the
execution of this Agreement any such person was not such officer.



     The term “holder” or “holder of a Warrant Certificate” as used herein shall mean any person in
whose name at the time any Warrant Certificate shall be registered upon the books to be maintained
by the Warrant Agent for that purpose [If Other Securities and Warrants are not immediately
detachable — or upon the registration of the Other Securities prior to the Detachable Date. Prior
to the Detachable Date, the Company will, or will cause the registrar of the Other Securities to,
make available at all times to the Warrant Agent such information as to holders of the Other
Securities as may be necessary to keep the Warrant Agent’s records up to date].



     1.3 Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase Warrant Debt Securities may be executed by the
Company and delivered to the Warrant Agent upon the execution of this Agreement or from time to
time thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates duly executed on
behalf of the Company, countersign such Warrant Certificates and shall deliver such Warrant
Certificates to or upon the order of the Company.



ARTICLE 2




WARRANT PRICE, DURATION AND

EXERCISE OF WARRANTS



     2.1 Warrant Price. During the period specified in
Section 2.2, each Warrant shall, subject to the terms of this Agreement and the applicable Warrant
Certificate, entitle the holder thereof, to purchase the principal amount of Warrant Debt
Securities specified in the applicable Warrant Certificate at an exercise price of      % of
the principal amount thereof [plus accrued amortization, if any, of the original issue discount of
the Warrant Debt Securities] [plus accrued interest, if any, from the most recent date from which
interest shall have been paid on the Warrant Debt Securities or, if no interest shall have been
paid on the Warrant Debt Securities, from the date of their initial issuance.] [The original issue
discount ($       for each $1,000 principal amount of Warrant Debt Securities) will be amortized at a
% annual rate, computed on a[n] [semi-] annual basis [using a 360-day year consisting of
twelve 30-day months].] Such purchase price for the Warrant Debt Securities is referred to in this
Agreement as the “Warrant Price.”



     2.2 Duration of Warrants. Each Warrant may be
exercised in whole or in part at any time, as specified herein, on or after [the date thereof] [       
] and at or before [        ] p.m., [City] time, on            or such later date as
the Company may designate by notice to the Warrant Agent and the holders of Warrant Certificates
mailed to their addresses as set forth in the record books of the Warrant Agent (the “Expiration
Date”).
Each Warrant not exercised at or before [        ] p.m., [City] time, on the Expiration
Date shall become void, and all rights of the holder of the Warrant Certificate evidencing such
Warrant under this Agreement shall cease.



     2.3 Exercise of Warrants.



 









 





          (a) During the period specified in Section 2.2, the
Warrants may be exercised to purchase a whole number of Warrant Debt Securities in registered form
by providing certain information as set forth on the reverse side of the Warrant Certificate and by
paying in full, in lawful money of the United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire transfer in immediately
available funds] the Warrant Price for each Warrant Debt Security with respect to which a Warrant
is being exercised to the Warrant Agent at its corporate trust office, provided that such exercise
is subject to receipt within five business days of such payment by the Warrant Agent of the Warrant
Certificate with the form of election to purchase Warrant Debt Securities set forth on the reverse
side of the Warrant Certificate properly completed and duly executed. The date on which payment in
full of the Warrant Price is received by the Warrant Agent shall, subject to receipt of the Warrant
Certificate as aforesaid, be deemed to be the date on which the Warrant is exercised; provided,
however, that if, at the date of receipt of such Warrant Certificates and payment in full of the
Warrant Price, the transfer books for the Warrant Debt Securities purchasable upon the exercise of
such Warrants shall be closed, no such receipt of such Warrant Certificates and no such payment of
such Warrant Price shall be effective to constitute the person so designated to be named as the
holder of record of such Warrant Debt Securities on such date, but shall be effective to constitute
such person as the holder of record of such Warrant Debt Securities for all purposes at the opening
of business on the next succeeding day on which the transfer books for the Warrant Debt Securities
purchasable upon the exercise of such Warrants shall be opened, and the certificates for the
Warrant Debt Securities in respect of which such Warrants are then exercised shall be issuable as
of the date on such next succeeding day on which the transfer books shall next be opened, and until
such date the Company shall be under no duty to deliver any certificate for such Warrant Debt
Securities. The Warrant Agent shall deposit all funds received by it in payment of the Warrant
Price in an account of the Company maintained with it and shall advise the Company by telephone at
the end of each day on which a payment for the exercise of Warrants is received of the amount so
deposited to its account. The Warrant Agent shall promptly confirm such telephone advice to the
Company in writing.




          (b) The Warrant Agent shall, from time to time, as
promptly as practicable, advise the Company of (i) the number of Warrant Debt Securities with
respect to which Warrants were exercised, (ii) the instructions of each holder of the Warrant
Certificates evidencing such Warrants with respect to delivery of the Warrant Debt Securities to
which such holder is entitled upon such exercise, (iii) delivery of Warrant Certificates evidencing
the balance, if any, of the Warrants for the remaining Warrant Debt Securities after such exercise,
and (iv) such other information as the Company or the [Senior] [Subordinated] Trustee shall
reasonably require.




          (c) As soon as practicable after the exercise of any
Warrant, the Company shall issue, pursuant to the Indenture, in authorized denominations, to or
upon the order of the holder of the Warrant Certificate evidencing such Warrant, the Warrant Debt
Securities to which such holder is entitled, in fully registered form, registered in such name or
names as may be directed by such holder. If fewer than all of the Warrants evidenced by such
Warrant Certificate are exercised, the Company shall execute, and an authorized officer of the
Warrant Agent shall manually countersign and deliver, a new Warrant Certificate evidencing Warrants
for the number of Warrant Debt Securities remaining unexercised.




          (d) The Company shall not be required to pay any
stamp or other tax or other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Debt Securities, and in the event that any such transfer is
involved, the Company shall not be required to issue or deliver any Warrant Debt Securities until
such tax or other charge shall have been paid or it has been established to the Company’s
satisfaction that no such tax or other charge is due.




          (e) Prior to the issuance of any Warrants there shall have been reserved, and the Company
shall at all times through the Expiration Date keep reserved, out of its authorized but unissued
Warrant Debt Securities, a number of shares sufficient to provide for the exercise of the Warrants.




ARTICLE 3




OTHER PROVISIONS RELATING TO RIGHTS OF

HOLDERS OF WARRANT CERTIFICATES



 









 





     3.1 No Rights as Holders of Warrant Debt Securities
Conferred by Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby
shall entitle the holder thereof to any of the rights of a holder of Warrant Debt Securities,
including, without limitation, the right to receive the payment of principal of (or premium, if
any) or interest, if any, on the Warrant Debt Securities or to enforce any of the covenants in the
Indenture.



     3.2 Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it and the
Company of the ownership of and the loss, theft, destruction or mutilation of any Warrant
Certificate and/or indemnity reasonably satisfactory to the Warrant Agent and the Company and, in
the case of mutilation, upon surrender of the mutilated Warrant Certificate to the Warrant Agent
for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company shall execute, and an
authorized officer of the Warrant Agent shall manually countersign and deliver, in exchange for or
in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate
of the same tenor and evidencing Warrants for a like principal amount of Warrant Debt Securities.
Upon the issuance of any new Warrant Certificate under this Section 3.2, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of the Warrant Agent)
in connection therewith. Every substitute Warrant Certificate executed and delivered pursuant to
this Section 3.2 in lieu of any lost, stolen or destroyed Warrant Certificate shall represent an
additional contractual obligation of the Company, whether or not the lost, stolen or destroyed
Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to the
benefits of this Agreement equally and proportionately with any and all other Warrant Certificates
duly executed and delivered hereunder. The provisions of this Section 3.2 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to the replacement of
mutilated, lost, stolen or destroyed Warrant Certificates.



     3.3 Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of any Warrant Certificate,
without the consent of the Warrant Agent, the [Senior] [Subordinated] Trustee, the holder of any
Warrant Debt Securities or the holder of any other Warrant Certificate, may, in such holder’s own
behalf and for such holder’s own benefit, enforce, and may institute and maintain any suit, action
or proceeding against the Company suitable to enforce, or otherwise in respect of, such holder’s
right to exercise the Warrants evidenced by such holder’s Warrant Certificate in the manner
provided in such holder’s Warrant Certificates and in this Agreement.



     3.4 Merger, Sale, Conveyance or Lease. In case of (a)
any share exchange, merger or similar transaction of the Company with or into another person or
entity (other than a share exchange, merger or similar transaction in which the Company is the
acquiring or surviving corporation) or (b) the sale, exchange, lease, transfer or other disposition
of all or substantially all of the properties and assets of the Company as an entirety (in any such
case, a “Reorganization Event”), then, as a condition of such Reorganization Event, lawful
provisions shall be made, and duly executed documents evidencing the same from the Company’s
successor shall be delivered to the holders of the Warrants, so that such successor shall succeed
to and be substituted for the Company, and assume all the Company’s obligations under, this
Agreement and the Warrants. The Company shall thereupon be relieved of any further obligation
hereunder or under the Warrants, and the Company as the predecessor corporation may thereupon or at
any time thereafter be dissolved, wound up or liquidated. Such successor or assuming entity
thereupon may cause to be signed, and may issue either in its own name or in the name of the
Company, any or all of the Warrants issuable hereunder which heretofore shall not have been signed
by the Company, and may execute and deliver securities in its own name, in fulfillment of its
obligations to deliver Warrant Debt Securities upon exercise of the Warrants. All the Warrants so
issued shall in all respects have the same legal rank and benefit under this Agreement as the
Warrants theretofore or thereafter issued in accordance with the terms of this Agreement as though
all of such Warrants had been issued at the date of the execution hereof. In any case of any such
Reorganization Event, such changes in phraseology and form (but not in substance) may be made
in the Warrants thereafter to be issued as may be appropriate.



     The Warrant Agent may receive a written opinion of legal counsel as conclusive evidence that
any such Reorganization Event complies with the provisions of this Section 3.4.



 









 





     3.5 Notice to Warrantholders. In case the Company
shall (a) effect any Reorganization Event or (b) make any distribution on or in respect of the
[title of Warrant Debt Securities] in connection with the dissolution, liquidation or winding up of
the Company, then the Company shall mail to each holder of Warrants at such holder’s address as it
shall appear on the books of the Warrant Agent, at least ten days prior to the applicable date
hereinafter specified, a notice stating the date on which such Reorganization Event, dissolution,
liquidation or winding up is expected to become effective, and the date as of which it is expected
that holders of [title of Warrant Debt Securities] of record shall be entitled to exchange their
shares of [title of Warrant Debt Securities] for securities or other property deliverable upon such
Reorganization Event, dissolution, liquidation or winding up. No failure to mail such notice nor
any defect therein or in the mailing thereof shall affect any such transaction.



ARTICLE 4




EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES



     4.1 Exchange and Transfer of Warrant Certificates. [If
Other Securities with Warrants which are immediately detachable — Upon] [If Other Securities with
Warrants which are not immediately detachable — Prior to the Detachable Date, a Warrant Certificate
may be exchanged or transferred only together with the Other Security to which the Warrant
Certificate was initially attached, and only for the purpose of effecting or in conjunction with an
exchange or transfer of such Other Security. Prior to any Detachable Date, each transfer of the
Other Security shall operate also to transfer the related Warrant Certificates. After the
Detachable Date, upon] surrender at the corporate trust office of the Warrant Agent, Warrant
Certificates evidencing Warrants may be exchanged for Warrant Certificates in other denominations
evidencing such Warrants or the transfer thereof may be registered in whole or in part; provided
that such other Warrant Certificates evidence Warrants for the same aggregate principal amount
of Warrant Debt Securities as the Warrant Certificates so surrendered. The Warrant Agent shall
keep, at its corporate trust office, books in which, subject to such reasonable regulations as it
may prescribe, it shall register Warrant Certificates and exchanges and transfers of outstanding
Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at its
corporate trust office for exchange or registration of transfer, properly endorsed or accompanied
by appropriate instruments of registration of transfer and written instructions for transfer, all
in form satisfactory to the Company and the Warrant Agent. No service charge shall be made for any
exchange or registration of transfer of Warrant Certificates, but the Company may require payment
of a sum sufficient to cover any stamp or other tax or other governmental charge that may be
imposed in connection with any such exchange or registration of transfer. Whenever any Warrant
Certificates are so surrendered for exchange or registration of transfer, an authorized officer of
the Warrant Agent shall manually countersign and deliver to the person or persons entitled thereto
a Warrant Certificate or Warrant Certificates duly authorized and executed by the Company, as so
requested. The Warrant Agent shall not be required to effect any exchange or registration of
transfer which will result in the issuance of a Warrant Certificate evidencing a Warrant for a
fraction of a Warrant Debt Security or a number of Warrants for a whole number of Warrant Debt
Securities and a fraction of a Warrant Debt Security. All Warrant Certificates issued upon any
exchange or registration of transfer of Warrant Certificates shall be the valid obligations of the
Company, evidencing the same obligations and entitled to the same benefits under this Agreement as
the Warrant Certificate surrendered for such exchange or registration of transfer.



     4.2 Treatment of Holders of Warrant Certificates. [If
Other Securities and Warrants are not immediately detachable—Prior to the Detachable Date, the
Company, the Warrant Agent and all other persons may treat the owner of the Other Security as the
owner of the Warrant Certificates initially attached thereto for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced by such Warrant Certificates,
any notice to the contrary notwithstanding. After the Detachable Date and prior to due presentment
of a Warrant Certificate for registration of transfer, the] [The] Company, the Warrant Agent and
all other persons may treat the registered holder of a Warrant Certificate as the absolute owner
thereof for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced thereby, any notice to
the contrary notwithstanding.



     4.3 Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exchange, registration of transfer or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the Warrant Agent and all
Warrant Certificates surrendered or so delivered to the Warrant Agent shall be promptly canceled by
the Warrant Agent and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange therefor or in lieu thereof. The
Warrant



 









 




Agent shall deliver to the Company from time to time or otherwise dispose of canceled
Warrant Certificates in a manner satisfactory to the Company.




ARTICLE 5




CONCERNING THE WARRANT AGENT



     5.1 Warrant Agent. The Company hereby appoints         
as Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth, and
hereby        accepts such appointment. The Warrant Agent shall have the powers and authority granted
to and conferred upon it in the Warrant Certificates and hereby and such further powers and
authority to act on behalf of the Company as the Company may hereafter grant to or confer upon it.
All of the terms and provisions with respect to such powers and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions hereof.



     5.2 Conditions of Warrant Agent’s Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof,
including the following to all of which the Company agrees and to all of which the rights hereunder
of the holders from time to time of the Warrant Certificates shall be subject:



          (a) Compensation and Indemnification. The Company
agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable
out-of-pocket expenses (including reasonable counsel fees) incurred without negligence, bad faith
or willful misconduct by the Warrant Agent in connection with the services rendered hereunder by
the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it
harmless against, any loss, liability or expense incurred without negligence, bad faith or willful
misconduct on the part of the Warrant Agent, arising out of or in connection with its acting as
Warrant Agent hereunder, including the reasonable costs and expenses of defending against any claim
of such liability.




          (b) Agent for the Company. In acting under this
Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting solely as
agent of the Company and does not assume any obligations or relationship of agency or trust for or
with any of the holders of Warrant Certificates or beneficial owners of Warrants.




          (c) Counsel. The Warrant Agent may consult with
counsel satisfactory to it, which may include counsel for the Company, and the written advice of
such counsel shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in accordance with the advice of such
counsel.




          (d) Documents. The Warrant Agent shall be protected
and shall incur no liability for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or
other paper or document reasonably believed by it to be genuine and to have been presented or
signed by the proper parties.




          (e) Certain Transactions. The Warrant Agent, and
its officers, directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the Warrant Agent
hereunder, and, to the extent permitted by applicable law, it or they may engage or be
interested in any financial or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of holders of Warrant Debt Securities or
other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing
in this Agreement shall be deemed to prevent the Warrant Agent from acting as [Senior]
[Subordinated] Trustee under the [Senior] [Subordinated] Indenture.




          (f) No Liability for Interest. Unless otherwise
agreed with the Company, the Warrant Agent shall have no liability for interest on any monies at
any time received by it pursuant to any of the provisions of this Agreement or of the Warrant
Certificates.







 









 





          (g) No Liability for Invalidity. The Warrant Agent
shall have no liability with respect to any invalidity of this Agreement or any of the Warrant
Certificates (except as to the Warrant Agent’s countersignature thereon).






          (h) No Responsibility for Representations. The
Warrant Agent shall not be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent’s countersignature thereon), all of which are
made solely by the Company.




          (i) No Implied Obligations. The Warrant Agent
shall be obligated to perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into this Agreement or
the Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be under any
obligation to take any action hereunder which may tend to involve it in any expense or liability,
the payment of which within a reasonable time is not, in its reasonable opinion, assured to it.
The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the
Company of any of the Warrant Certificates authenticated by the Warrant Agent and delivered by it
to the Company pursuant to this Agreement or for the application by the Company of the proceeds of
the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any
default by the Company in the performance of its covenants or agreements contained herein or in the
Warrant Certificates or in the case of the receipt of any written demand from a holder of a Warrant
Certificate with respect to such default, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.2 hereof, to make any demand upon the Company.




     5.3 Resignation, Removal and Appointment of Successors.



          (a) The Company agrees, for the benefit of the
holders from time to time of the Warrant Certificates, that there shall at all times be a Warrant
Agent hereunder until all the Warrants have been exercised or are no longer exercisable.




          (b) The Warrant Agent may at any time resign as
agent by giving written notice to the Company of such intention on its part, specifying the date on
which its desired resignation shall become effective; provided that such date shall not be less
than three months after the date on which such notice is given unless the Company otherwise agrees.
The Warrant Agent hereunder may be removed at any time by the filing with it of an instrument in
writing signed by or on behalf of the Company and specifying such removal and the intended date
when it shall become effective. Such resignation or removal shall take effect upon the appointment
by the Company, as hereinafter provided, of a successor Warrant Agent (which shall be a bank or
trust company authorized under the laws of the jurisdiction of its organization to exercise
corporate trust powers) and the acceptance of such appointment by such successor Warrant Agent.
The obligation of the Company under Section 5.2(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent.




          (c) In case at any time the Warrant Agent shall
resign, or shall be removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or shall commence a voluntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or under any other applicable Federal or state bankruptcy, insolvency or
similar law or shall consent to the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or other similar official) of the Warrant Agent or its
property or affairs, or shall make an assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally
as they become due, or shall take corporate action in furtherance of any such action, or a
decree or order for relief by a court having jurisdiction in the premises shall have been entered
in respect of the Warrant Agent in an involuntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or state bankruptcy, insolvency or similar
law, or a decree or order by a court having jurisdiction in the premises shall have been entered
for the appointment of a receiver, custodian, liquidator, assignee, trustee, sequestrator (or
similar official) of the Warrant Agent or of its property or affairs, or any public officer shall
take charge or control of the Warrant Agent or of its property or affairs for the purpose of
rehabilitation, conservation, winding up or liquidation, a successor Warrant Agent, qualified as
aforesaid, shall be appointed by the Company by an instrument in writing, filed with the successor
Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by
the successor Warrant Agent of such appointment, the Warrant Agent shall cease to be Warrant Agent
hereunder.






 









 








          (d) Any successor Warrant Agent appointed hereunder
shall execute, acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any
further act, deed or conveyance, shall become vested with all the authority, rights, powers,
trusts, immunities, duties and obligations of such predecessor with like effect as if originally
named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver and pay over, and
such successor Warrant Agent shall be entitled to receive, all monies, securities and other
property on deposit with or held by such predecessor, as Warrant Agent hereunder.




          (e) Any corporation into which the Warrant Agent
hereunder may be merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Warrant Agent shall be a party, or any corporation to which the Warrant Agent shall sell or
otherwise transfer all or substantially all the assets and business of the Warrant Agent, provided
that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this Agreement
without the execution or filing of any paper or any further act on the part of any of the parties
hereto.




ARTICLE 6




MISCELLANEOUS



     6.1 Amendment. This Agreement may be amended by the
parties hereto, without the consent of the holder of any Warrant Certificate, for the purpose of
curing any ambiguity, or of curing, correcting or supplementing any defective provision contained
herein, or making any other provisions with respect to matters or questions arising under this
Agreement as the Company and the Warrant Agent may deem necessary or desirable; provided that such
action shall not materially adversely affect the interests of the holders of the Warrant
Certificates.



     6.2 Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the Company by the
holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant
Agent shall promptly forward such notice or demand to the Company.



     6.3 Addresses. Any communication from the Company to
the Warrant Agent with respect to this Agreement shall be addressed to
        , Attention: and any communication from the Warrant Agent to the Company
with respect to this Agreement shall be addressed to MannKind Corporation, 28903 North Avenue
Paine, Valencia, California 91355, Attention: Secretary (or such other address as shall be
specified in writing by the Warrant Agent or by the Company).



     6.4 Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be governed by and construed in accordance with the laws of the
State of New York.



     6.5 Delivery of Prospectus. The Company shall furnish
to the Warrant Agent sufficient copies of a prospectus meeting the requirements of the Securities
Act of 1933, as amended, relating to the Warrant Debt Securities deliverable upon exercise of the
Warrants (the “Prospectus”), and the Warrant Agent agrees that upon the
exercise of any Warrant, the Warrant Agent will deliver to the holder of the Warrant
Certificate evidencing such Warrant, prior to or concurrently with the delivery of the Warrant Debt
Securities issued upon such exercise, a Prospectus.


The Warrant Agent shall not, by reason of any such delivery, assume any responsibility for the
accuracy or adequacy of such Prospectus.



     6.6 Obtaining of Governmental Approvals. The Company
will from time to time take all action which may be necessary to obtain and keep effective any and
all permits, consents and approvals of governmental agencies and authorities and securities act
filings under United States Federal and state laws (including without limitation a registration
statement in respect of the Warrants and Warrant Debt Securities under the Securities Act of 1933,
as amended), which may be or become requisite in connection with the issuance, sale, transfer, and
delivery of





 









 







the Warrant Debt Securities issued upon exercise of the Warrants, the issuance, sale,
transfer and delivery of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.




     6.7 Persons Having Rights Under Warrant Agreement.
Nothing in this Agreement shall give to any person other than the Company, the Warrant Agent and
the holders of the Warrant Certificates any right, remedy or claim under or by reason of this
Agreement.



     6.8 Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.



     6.9 Counterparts. This Agreement may be executed in
any number of counterparts, each of which as so executed shall be deemed to be an original, but
such counterparts shall together constitute but one and the same instrument.



     6.10 Inspection of Agreement. A copy of this Agreement shall
be available at all reasonable times at the principal corporate trust office of the Warrant Agent
for inspection by the holder of any Warrant Certificate. The Warrant Agent may require such holder
to submit such holder’s Warrant Certificate for inspection by it.



 









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, all as
of the day and year first above written.



	 	 	 	 	 	 	 	 	 

	 	 	 	 	MANNKIND CORPORATION
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By
	 	 

	 	 
	 

	 	 	 	
	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Its
	 	 

	 	 
	 

	 	 	 	
	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	Attest:
	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	                                                            , as
	 	 	 	 	WARRANT AGENT
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Its	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Attest:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 





[SIGNATURE PAGE TO DEBT SECURITIES WARRANT AGREEMENT]







 









 








EXHIBIT A




FORM OF WARRANT CERTIFICATE

[Face of Warrant Certificate]



	 	 	 
	[Form if Warrants are attached
to Other Securities and are not
immediately detachable.]

	 	[Prior to           
        , this Warrant Certificate
cannot be transferred or
exchanged unless attached to a
[Title of Other Securities].]
	 
	 	 
	[Form of Legend if Warrants are
not immediately exercisable.]

	 	[Prior to           
        , Warrants evidenced by this
Warrant Certificate cannot be
exercised.]






EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT

AGENT AS PROVIDED HEREIN




VOID AFTER [            ] P.M., [CITY] TIME, ON      ,



MANNKIND CORPORATION



WARRANT CERTIFICATE REPRESENTING

WARRANTS TO PURCHASE

[TITLE OF WARRANT DEBT SECURITIES]



 





			
	No.
	 	Warrants






     This certifies that            or registered assigns is the registered owner of the
above indicated number of Warrants, each Warrant entitling such owner [If Warrants are attached to
Other Securities and are not immediately detachable —, subject to the registered owner qualifying
as a “Holder” of this Warrant Certificate, as hereinafter defined)] to purchase, at any time [after
[       ] p.m., [City] time, on            and] on or before [      ] p.m., [City]
time, on      , $         principal amount of [Title of Warrant Debt Securities] (the “Warrant
Debt Securities”), of MannKind Corporation (the “Company”), issued or to be issued under the
Indenture (as hereinafter defined), on the following basis: during the period from      ,
through and including      , each Warrant shall entitle the Holder thereof, subject to the
provisions of this Agreement, to purchase the principal amount of Warrant Debt Securities stated in
the Warrant Certificate at the warrant price (the “Warrant Price”) of      % of the principal
amount thereof [plus accrued amortization, if any, of the original issue discount of the Warrant
Debt Securities] [plus accrued interest, if any, from the most recent date from which interest
shall have been paid on the Warrant Debt Securities or, if no interest shall have been paid on the
Warrant Debt Securities, from the date of their original issuance]. [The original issue discount
($ for each $1,000 principal amount of Warrant Debt Securities) will be amortized at a      %
annual rate, computed on a[n] [semi-]annual basis [using a 360-day year consisting of twelve 30-day
months]. The Holder may exercise the Warrants evidenced hereby by providing certain information
set forth on the back hereof and by paying in full, in lawful money of the United States of
America, [in cash or by certified check or official bank check in New York Clearing House funds]
[by bank wire transfer in immediately available funds], the Warrant Price for each Warrant Debt
Security with respect to which this Warrant is exercised to the Warrant Agent (as hereinafter
defined) and by surrendering this Warrant Certificate, with the purchase form on the back hereof
duly executed, at the corporate trust office of [name of Warrant Agent], or its successor as
warrant agent (the “Warrant Agent”), which is, on the date hereof, at the address specified on the
reverse hereof, and upon compliance with and subject to the conditions set forth herein and in the
Warrant Agreement (as hereinafter defined).



     The term “Holder” as used herein shall mean [If Warrants are attached to Other Securities and
are not immediately detachable—, prior to      , (the “Detachable Date”),
the registered owner of the
Company’s [title of Other Securities] to which this Warrant Certificate was initially
attached, and after such Detachable Date,] the person in whose name at the time this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant Agent for that
purpose pursuant to Section 4 of the Warrant Agreement.



 









 





     The Warrants evidenced by this Warrant Certificate may be exercised to purchase Warrant Debt
Securities in the principal amount of $1,000 or any integral multiple thereof in registered form.
Upon any exercise of fewer than all of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the Holder hereof a new Warrant Certificate evidencing Warrants for the
aggregate principal amount of Warrant Debt Securities remaining unexercised.



     This Warrant Certificate is issued under and in accordance with the Warrant Agreement dated as
of      , (the “Warrant Agreement”), between the Company and the Warrant Agent
and is subject to the terms and provisions contained in the Warrant Agreement, to all of which
terms and provisions the Holder of this Warrant Certificate consents by acceptance hereof. Copies
of the Warrant Agreement are on file at the above-mentioned office of the Warrant Agent.



     The Warrant Debt Securities to be issued and delivered upon the exercise of Warrants evidenced
by this Warrant Certificate will be issued under and in accordance with an Indenture, [dated as of
        , (the “Senior Indenture”), between the Company and      ,
as trustee (such trustee, and any successors to such trustee, the “Senior Trustee”)] [dated as of
        ,        , (the “Subordinated Indenture”), between the Company and      , as
trustee (such trustee, and any successors to such trustee, the “Subordinated Trustee”)] and will be
subject to the terms and provisions contained in the Warrant Debt Securities and in the Indenture.
Copies of the [Senior] [Subordinated] Indenture, including the form of the Warrant Debt Securities,
are on file at the corporate trust office of the Trustee.



     [If Warrants are attached to Other Securities and are not immediately detachable—Prior to the
Detachable Date, this Warrant Certificate may be exchanged or transferred only together with the
[Title of Other Securities] (the “Other Securities”) to which this Warrant Certificate was
initially attached, and only for the purpose of effecting or in conjunction with, an exchange or
transfer of such Other Security. Additionally, on or prior to the Detachable Date, each transfer
of such Other Security on the register of the Other Securities shall operate also to transfer this
Warrant Certificate. After such date, transfer of this] [If Warrants are attached to Other
Securities and are immediately detachable — Transfer of this] Warrant Certificate may be
registered when this Warrant Certificate is surrendered at the corporate trust office of the
Warrant Agent by the registered owner or such owner’s assigns, in the manner and subject to the
limitations provided in the Warrant Agreement.



     [If Other Securities with Warrants which are not immediately detachable-Except as provided in
the immediately preceding paragraph, after] [If Other Securities with Warrants which are
immediately detachable or Warrants alone—After] countersignature by the Warrant Agent and prior to
the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged at the
corporate trust office of the Warrant Agent for Warrant Certificates representing Warrants for the
same aggregate principal amount of Warrant Debt Securities.



     This Warrant Certificate shall not entitle the Holder hereof to any of the rights of a holder
of the Warrant Debt Securities, including, without limitation, the right to receive payments of
principal of (and premium, if any) or interest, if any, on the Warrant Debt Securities or to
enforce any of the covenants of the Indenture.



     Reference is hereby made to the further provisions of this Warrant Certificate set forth on
the reverse hereof, which further provisions shall for all purposes have the same effect as if set
forth at this place.



     This Warrant Certificate shall not be valid or obligatory for any purpose until countersigned
by the Warrant Agent.



 









 





     IN WITNESS WHEREOF, the Company has caused this Warrant to be executed in its name and on its
behalf by the facsimile signatures of its duly authorized officers.



	 	 	 	 	 	 	 	 	 

	Dated:        
                   
              	 	MANNKIND CORPORATION
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By
	 	 

	 	 
	 

	 	 	 	
	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Its
	 	 

	 	 
	 

	 	 	 	
	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	Attest:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Countersigned:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	As Warrant Agent	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By

	 	 

	 	 	 	 	 	 
	

	 	 

	 	 	 	 	 	 
	 

	 	     Authorized Signature	 	 	 	 	 	 






 









 






[REVERSE OF WARRANT CERTIFICATE]




(Instructions for Exercise of Warrants)



     To exercise any Warrants evidenced hereby for Warrant Debt Securities (as hereinafter
defined), the Holder must pay, in lawful money of the United States of America, [in cash or by
certified check or official bank check in New York Clearing House funds] [by bank wire transfer in
immediately available funds], the Warrant Price in full for Warrants exercised, to [Warrant Agent]
[address of Warrant Agent], Attn: , which payment must specify the name of the
Holder and the number of Warrants exercised by such Holder. In addition, the Holder must complete
the information required below and present this Warrant Certificate in person or by mail (certified
or registered mail is recommended) to the Warrant Agent at the appropriate address set forth above.
This Warrant Certificate, completed and duly executed, must be received by the Warrant Agent
within five business days of the payment.



(To be executed upon exercise of Warrants)




     The undersigned hereby irrevocably elects to exercise            Warrants, represented by
this Warrant Certificate, to purchase $ principal amount of the [Title of Warrant Debt Securities]
(the “Warrant Debt Securities”) of MannKind Corporation and represents that the undersigned has
tendered payment for such Warrant Debt Securities, in lawful money of the United States of America,
[in cash or by certified check or official bank check in New York Clearing House funds] [by bank
wire transfer in immediately available funds], to the order of MannKind Corporation, c/o [insert
name and address of Warrant Agent], in the amount of $       in accordance with the terms hereof. The
undersigned requests that said principal amount of Warrant Debt Securities be in fully registered
form in the authorized denominations, registered in such names and delivered all as specified in
accordance with the instructions set forth below.



     If the number of Warrants exercised is less than all the Warrants evidenced hereby, the
undersigned requests that a new Warrant Certificate evidencing the Warrants for the aggregate
principal amount of Warrant Debt Securities remaining unexercised be issued and delivered to the
undersigned unless otherwise specified in the instructions below.



	 	 	 	 	 

	Dated        
                    
            

	 	Name	 	 
	 

	 	 	 	 
	 

	 	 	 	(Please Print)
	 
	 	 	 	 
	 

	 	Address	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 
	 
	 	 	 	 
	 

	 	 
	 	 	(Insert Social Security or Other
Identifying
Number of Holder)






 









 






	 	 	 

	 

	 	 
	Signature Guaranteed

	 	Signature
	 
	 	 
	 

	 	(Signature
must conform in all
respects to name of
holder as specified
on the face of this
Warrant Certificate
and must bear a
signature guarantee
by a bank, trust
company or member
broker of the New
York, Midwest or
Pacific Stock
Exchange)





This Warrant may be exercised at the following addresses:




	 	 	 

	By hand at
	 	 
	 

	 	 
	 

	 	 
	 

	 	 
	 
	 	 
	 
	 	 
	By mail at  
	 	 
	 

	 	 
	 

	 	 
	 

	 	 




[Instructions as to form and delivery of Warrant Debt Securities and, if applicable, Warrant
Certificates evidencing Warrants for the number of Warrant Debt Securities remaining unexercised —
complete as appropriate.]







 









 








ASSIGNMENT




[Form of assignment to be executed if

Warrant Holder desires to transfer Warrant]



	 	 	 

	FOR VALUE RECEIVED,

	 	hereby sells, assigns and transfers unto:
	 
	 	 
	 
	 	 
	 


	 	 
	 


	 	 
	 

	 	 
	(Please print name and address including zip
code)

	 	Please print Social Security or other

identifying number





the right represented by the within Warrant to purchase $       aggregate principal amount of [Title of
Warrant Debt Securities] of MannKind Corporation to which the within Warrant relates and appoints
attorney to transfer such right on the books of the Warrant Agent with full power of
substitution in the premises.




	 	 	 	 
	 	 	 	 
	Dated        
                   
              

	 	 

	 
	 

	 	Signature	 
	 
	 	 	 
	 

	 	(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)	 
	 
	 	 	 
	Signature Guaranteed