CUSIP No.: | 291345106 |
13D | Page 2 of 12 Pages |
1 | NAME OF REPORTING PERSONS MHR CAPITAL PARTNERS MASTER ACCOUNT LP |
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2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) |
||||||||||
(a) o | |||||||||||
(b) þ | |||||||||||
3 | SEC USE ONLY | ||||||||||
4 | SOURCE OF FUNDS (See Instructions) | ||||||||||
N/A | |||||||||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ||||||||||
o | |||||||||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||||||||||
Anguilla, British West Indies | |||||||||||
7 | SOLE VOTING POWER | ||||||||||
NUMBER OF | 7,023,307 | ||||||||||
SHARES | 8 | SHARED VOTING POWER | |||||||||
BENEFICIALLY | |||||||||||
OWNED BY | 0 | ||||||||||
EACH | 9 | SOLE DISPOSITIVE POWER | |||||||||
REPORTING | |||||||||||
PERSON | 7,023,307 | ||||||||||
WITH | 10 | SHARED DISPOSITIVE POWER | |||||||||
0 | |||||||||||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||||||||||
7,023,307 | |||||||||||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||||||||||
o | |||||||||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||||||||||
15.1% | |||||||||||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||||||||||
PN |
CUSIP No.: | 291345106 |
13D | Page 3 of 12 Pages |
1 | NAME OF REPORTING PERSONS MHR ADVISORS LLC |
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2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) |
||||||||||
(a) o | |||||||||||
(b) þ | |||||||||||
3 | SEC USE ONLY | ||||||||||
4 | SOURCE OF FUNDS (See Instructions) | ||||||||||
N/A | |||||||||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ||||||||||
o | |||||||||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||||||||||
Delaware | |||||||||||
7 | SOLE VOTING POWER | ||||||||||
NUMBER OF | 7,980,834 | ||||||||||
SHARES | 8 | SHARED VOTING POWER | |||||||||
BENEFICIALLY | |||||||||||
OWNED BY | 0 | ||||||||||
EACH | 9 | SOLE DISPOSITIVE POWER | |||||||||
REPORTING | |||||||||||
PERSON | 7,980,834 | ||||||||||
WITH | 10 | SHARED DISPOSITIVE POWER | |||||||||
0 | |||||||||||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||||||||||
7,980,834 | |||||||||||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||||||||||
o | |||||||||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||||||||||
17.0% | |||||||||||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||||||||||
OO |
CUSIP No.: | 291345106 |
13D | Page 4 of 12 Pages |
1 | NAME OF REPORTING PERSONS MHR INSTITUTIONAL PARTNERS II LP |
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2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) |
||||||||||
(a) o | |||||||||||
(b) þ | |||||||||||
3 | SEC USE ONLY | ||||||||||
4 | SOURCE OF FUNDS (See Instructions) | ||||||||||
N/A | |||||||||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ||||||||||
o | |||||||||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||||||||||
Delaware | |||||||||||
7 | SOLE VOTING POWER | ||||||||||
NUMBER OF | 4,069,560 | ||||||||||
SHARES | 8 | SHARED VOTING POWER | |||||||||
BENEFICIALLY | |||||||||||
OWNED BY | 0 | ||||||||||
EACH | 9 | SOLE DISPOSITIVE POWER | |||||||||
REPORTING | |||||||||||
PERSON | 4,069,560 | ||||||||||
WITH | 10 | SHARED DISPOSITIVE POWER | |||||||||
0 | |||||||||||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||||||||||
4,069,560 | |||||||||||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||||||||||
o | |||||||||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||||||||||
8.8% | |||||||||||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||||||||||
PN |
CUSIP No.: | 291345106 |
13D | Page 5 of 12 Pages |
1 | NAME OF REPORTING PERSONS MHR INSTITUTIONAL PARTNERS IIA LP |
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2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) |
||||||||||
(a) o | |||||||||||
(b) þ | |||||||||||
3 | SEC USE ONLY | ||||||||||
4 | SOURCE OF FUNDS (See Instructions) | ||||||||||
N/A | |||||||||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ||||||||||
o | |||||||||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||||||||||
Delaware | |||||||||||
7 | SOLE VOTING POWER | ||||||||||
NUMBER OF | 10,252,465 | ||||||||||
SHARES | 8 | SHARED VOTING POWER | |||||||||
BENEFICIALLY | |||||||||||
OWNED BY | 0 | ||||||||||
EACH | 9 | SOLE DISPOSITIVE POWER | |||||||||
REPORTING | |||||||||||
PERSON | 10,252,465 | ||||||||||
WITH | 10 | SHARED DISPOSITIVE POWER | |||||||||
0 | |||||||||||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||||||||||
10,252,465 | |||||||||||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||||||||||
o | |||||||||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||||||||||
20.5% | |||||||||||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||||||||||
PN |
CUSIP No.: | 291345106 |
13D | Page 6 of 12 Pages |
1 | NAME OF REPORTING PERSONS MHR INSTITUTIONAL ADVISORS II LLC |
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2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) |
||||||||||
(a) o | |||||||||||
(b) þ | |||||||||||
3 | SEC USE ONLY | ||||||||||
4 | SOURCE OF FUNDS (See Instructions) | ||||||||||
N/A | |||||||||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ||||||||||
o | |||||||||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||||||||||
Delaware | |||||||||||
7 | SOLE VOTING POWER | ||||||||||
NUMBER OF | 14,322,025 | ||||||||||
SHARES | 8 | SHARED VOTING POWER | |||||||||
BENEFICIALLY | |||||||||||
OWNED BY | 0 | ||||||||||
EACH | 9 | SOLE DISPOSITIVE POWER | |||||||||
REPORTING | |||||||||||
PERSON | 14,322,025 | ||||||||||
WITH | 10 | SHARED DISPOSITIVE POWER | |||||||||
0 | |||||||||||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||||||||||
14,322,025 | |||||||||||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||||||||||
o | |||||||||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||||||||||
27.3% | |||||||||||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||||||||||
OO |
CUSIP No.: | 291345106 |
13D | Page 7 of 12 Pages |
1 | NAME OF REPORTING PERSONS MHR FUND MANAGEMENT LLC |
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2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) |
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(a) o | |||||||||||
(b) þ | |||||||||||
3 | SEC USE ONLY | ||||||||||
4 | SOURCE OF FUNDS (See Instructions) | ||||||||||
N/A | |||||||||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ||||||||||
o | |||||||||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||||||||||
Delaware | |||||||||||
7 | SOLE VOTING POWER | ||||||||||
NUMBER OF | 22,302,859 | ||||||||||
SHARES | 8 | SHARED VOTING POWER | |||||||||
BENEFICIALLY | |||||||||||
OWNED BY | 0 | ||||||||||
EACH | 9 | SOLE DISPOSITIVE POWER | |||||||||
REPORTING | |||||||||||
PERSON | 22,302,859 | ||||||||||
WITH | 10 | SHARED DISPOSITIVE POWER | |||||||||
0 | |||||||||||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||||||||||
22,302,859 | |||||||||||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||||||||||
o | |||||||||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||||||||||
40.1% | |||||||||||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||||||||||
OO |
CUSIP No.: | 291345106 |
13D | Page 8 of 12 Pages |
1 | NAME OF REPORTING PERSONS MARK H. RACHESKY, M.D. |
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2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) |
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(a) o | |||||||||||
(b) þ | |||||||||||
3 | SEC USE ONLY | ||||||||||
4 | SOURCE OF FUNDS (See Instructions) | ||||||||||
N/A | |||||||||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ||||||||||
o | |||||||||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||||||||||
United States of America | |||||||||||
7 | SOLE VOTING POWER | ||||||||||
NUMBER OF | 22,397,157 | ||||||||||
SHARES | 8 | SHARED VOTING POWER | |||||||||
BENEFICIALLY | |||||||||||
OWNED BY | 0 | ||||||||||
EACH | 9 | SOLE DISPOSITIVE POWER | |||||||||
REPORTING | |||||||||||
PERSON | 22,397,157 | ||||||||||
WITH | 10 | SHARED DISPOSITIVE POWER | |||||||||
0 | |||||||||||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||||||||||
22,397,157 | |||||||||||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||||||||||
o | |||||||||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||||||||||
40.3% | |||||||||||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||||||||||
IN; HC |
Item 4 is hereby amended to add the following:
On July 29, 2010, the Issuer issued to Institutional Partners II and Institutional Partners IIA a senior secured promissory note in a principal amount of $525,000 (the Bridge Note). The Bridge Note accrues interest at a rate of 15% per annum and is due and payable on October 29, 2010 (the Maturity Date). The Maturity Date will be accelerated, under certain circumstances, to the date that is two business days following the receipt by the Issuer of at least $1,000,000 aggregate cash proceeds from third parties, whether in connection with certain financing transactions, commercial transactions or otherwise.
In connection with the entry into the Bridge Note, on July 29, 2010, the Issuer and Institutional Partners IIA entered into an amendment to the Security Agreement (the Security Agreement Amendment) pursuant to which, among other things, the Issuer granted to Institutional Partners IIA a first priority security interest in and lien upon all of the Issuers right, title and interest in the Collateral (as defined therein) (other than the intellectual property licensed to Novartis Pharma AG (Novartis) pursuant to that certain Master Agreement and Amendment, dated June 4, 2010, by and between the Issuer and Novartis) in order to secure the Issuers obligations contained in the Bridge Note. In addition, Institutional Partners II, Institutional Partners IIA, Master Account and Capital Partners (100) granted the Issuer the necessary consents under the Convertible Notes to permit entry by the Issuer into the Bridge Note and Security Agreement Amendment.
The foregoing description of the Bridge Note and the Security Agreement Amendment are qualified in their entirety by reference to the full text of the Bridge Note and the Security Agreement Amendment, attached as Exhibits 1 and 2 of Item 7 to this Statement and incorporated into this Item 4 by reference.
Item 5 is hereby amended by deleting such item in its entirety and replacing it with the following:
The percentages set forth in this Statement are calculated based on 43,932,322 Shares outstanding as of June 8, 2010, as disclosed by the Issuer to the Reporting Persons.
All percentages of beneficial ownership presented herein are calculated after giving effect to the issuance of the Shares pursuant to exercise or vesting of Warrants, restricted stock or stock options currently owned by the Reporting Persons, and assuming such Reporting Persons Convertible Notes were converted into Shares as of such date.
(a) (i) Master Account may be deemed the beneficial owner of 7,023,307 Shares (approximately 15.1% of the total number of Shares outstanding, calculated in accordance with Rule 13d-3(d)(1)(i) under the Act). This number consists of (A) 4,331,164 Shares held for the account of Master Account, (B) 1,419,530 Shares that can be obtained by Master Account upon exercise of warrants to acquire Shares and (C) 1,272,613 Shares that can be obtained by Master Account upon the conversion of the Convertible Notes.
(ii) Capital Partners (100) may be deemed the beneficial owner of 957,527 Shares (approximately 2.2% of the total number of Shares outstanding, calculated in accordance with Rule 13d-3(d)(1)(i) under the Act). This number consists of (A) 589,045 Shares held for the account of Capital Partners (100), (B) 194,450 Shares that can be obtained by Capital Partners (100) upon exercise of warrants to acquire Shares and (C) 174,032 Shares that can be obtained by Capital Partners (100) upon the conversion of the Convertible Notes.
(iii) Advisors may be deemed the beneficial owner of 7,980,834 Shares (approximately 17.0% of the total number of Shares outstanding, calculated in accordance with Rule 13d-3(d)(1)(i) under the Act). This number consists of (A) (1) 4,331,164 Shares held for the account of Master Account, (2) 1,419,530 Shares that can be obtained by Master Account upon exercise of warrants to acquire Shares and (3) 1,272,613 Shares that can be obtained by Master Account upon the conversion of the Convertible Notes, and (B) (1) 589,045 Shares held for the account of Capital Partners (100), (2) 194,450 Shares that can be obtained by Capital Partners (100) upon exercise of warrants to acquire Shares and (3) 174,032 Shares that can be obtained by Capital Partners (100) upon the conversion of Convertible Notes.
(iv) Institutional Partners II may be deemed the beneficial owner of 4,069,560 Shares (approximately 8.8% of the total number of Shares outstanding, calculated in accordance with Rule 13d-3(d)(1)(i) under the Act). This number consists of (A) 1,636,741 Shares held for the account of Institutional Partners II, (B) 1,048,112 Shares that can be obtained by Institutional Partners II upon the exercise of warrants to acquire Shares and (C) 1,384,707 Shares that can be obtained by Institutional Partners II upon the conversion of the Convertible Notes.
(v) Institutional Partners IIA may be deemed the beneficial owner of 10,252,465 Shares (approximately 20.5% of the total number of Shares outstanding, calculated in accordance with Rule 13d-3(d)(1)(i) under the Act). This number consists of (A) 4,123,449 Shares held for the account of Institutional Partners IIA, (B) 2,640,515 Shares that can be obtained by Institutional Partners IIA upon the exercise of warrants to acquire Shares and (C) 3,488,501 Shares that can be obtained by Institutional Partners IIA upon the conversion of the Convertible Notes.
(vi) Institutional Advisors II may be deemed the beneficial owner of 14,322,025 Shares (approximately 27.3% of the total number of Shares outstanding, calculated in accordance with Rule 13d-3(d)(1)(i) under the Act). This number consists of (A) (1) 1,636,741 Shares held for the account of Institutional Partners II, (2) 1,048,112 Shares that can be obtained by Institutional Partners II upon the exercise of warrants to acquire Shares and (3) 1,384,707 Shares that can be obtained by Institutional Partners II upon the conversion of the Convertible Notes, and (B) (1) 4,123,449 Shares held for the Account of Institutional Partners IIA, (2) 2,640,515 Shares that can be obtained by Institutional Partners IIA upon the exercise of warrants to acquire Shares and (3) 3,488,501 Shares that can be obtained by Institutional Partners IIA upon the conversion of the Convertible Notes.
(vii) Fund Management may be deemed the beneficial owner of 22,302,859 Shares (approximately 40.1% of the total number of Shares outstanding, calculated in accordance with Rule 13d-3(d)(1)(i) under the Act). This number consists of all of the Shares otherwise described in this Item 5(a) by virtue of Fund Managements investment management agreement with Master Account, Capital Partners (100), Institutional Partners II and Institutional Partners IIA.
(viii) Dr. Rachesky may be deemed the beneficial owner of 22,397,157 Shares (approximately 40.3% of the total number of Shares outstanding, calculated in accordance with Rule 13d-3(d)(1)(i) under the Act). This number consists of (A) all of the Shares otherwise described in this Item 5(a) by virtue of Dr. Racheskys position as the managing member of each of Fund Management, Advisors and Institutional Advisors II, (B) 14,000 Shares that can be obtained upon the exercise of certain options to purchase Shares, (C) 75,000 Shares that can be obtained upon the exercise of certain non-qualified stock options to purchase Shares and (D) 5,298 Shares held for his own account.
(b) (i) Master Account may be deemed to have (x) the sole power to direct the disposition of 7,023,307 Shares which may be deemed to be beneficially owned by Master Account as described above, and (y) the sole power to direct the voting of 7,023,307 Shares which may be deemed to be beneficially owned by Master Account as described above.
(ii) Capital Partners (100) may be deemed to have (x) the sole power to direct the disposition of 957,527 Shares which may be deemed to be beneficially owned by Capital Partners (100) as described above, and (y) the sole power to direct the voting of 957,527 Shares which may be deemed to be beneficially owned by Capital Partners (100) as described above.
(iii) Advisors may be deemed to have (x) the sole power to direct the disposition of 7,980,834 Shares which may be deemed to be beneficially owned by Advisors as described above, and (y) the sole power to direct the voting of 7,980,834 Shares which may be deemed to be beneficially owned by Advisors as described above.
(iv) Institutional Partners II may be deemed to have (x) the sole power to direct the disposition of 4,069,560 Shares which may be deemed to be beneficially owned by Institutional Partners II as described above, and (y) the sole power to direct the voting of 4,069,560 Shares which may be deemed to be beneficially owned by Institutional Partners II as described above.
(v) Institutional Partners IIA may be deemed to have (x) the sole power to direct the disposition of 10,252,465 Shares which may be deemed to be beneficially owned by Institutional Partners IIA as described above, and (y) the sole power to direct the voting of 10,252,465 Shares which may be deemed to be beneficially owned by Institutional Partners IIA as described above.
(vi) Institutional Advisors II may be deemed to have (x) the sole power to direct the disposition of 14,322,025 Shares which may be deemed to be beneficially owned by Institutional Advisors II as described above, and (y) the sole power to direct the voting of 14,322,025 Shares which may be deemed to be beneficially owned by Institutional Advisors II as described above.
(vii) Fund Management may be deemed to have (x) the sole power to direct the disposition of the 22,302,859 Shares which may be deemed to be beneficially owned by Fund Management as described above, and (y) the sole power to direct the voting of 22,302,859 Shares which may be deemed to be beneficially owned by Fund Management as described above.
(viii) Dr. Rachesky may be deemed to have (x) the sole power to direct the disposition of the 22,397,157 Shares which may be deemed to be beneficially owned by Dr. Rachesky as described above, and (y) the sole power to direct the voting of 22,397,157 Shares which may be deemed to be beneficially owned by Dr. Rachesky as described above.
(c) None
(d) (i) The partners of Master Account, including Advisors, have the right to participate in the receipt of dividends from, or proceeds from the sale of, the securities held for the account of Master Account in accordance with their partnership interests in Master Account.
(ii) The partners of Capital Partners (100), including Advisors, have the right to participate in the receipt of dividends from, or proceeds from the sale of, the securities held for the account of Capital Partners (100) in accordance with their partnership interests in Capital Partners (100).
(iii) The partners of Institutional Partners II, including Institutional Advisors II, have the right to participate in the receipt of dividends from, or proceeds from the sale of, the securities held for the account of Institutional Partners II in accordance with their partnership interests in Institutional Partners II.
(iv) The partners of Institutional Partners IIA, including Institutional Advisors II, have the right to participate in the receipt of dividends from, or proceeds from the sale of, the securities held for the account of Institutional Partners IIA in accordance with their partnership interests in Institutional Partners IIA.
(e) Not applicable.
Exhibit No. | Description | |
1
|
Emisphere Technologies, Inc. Promissory Note to MHR Institutional Partners II LP and MHR Institutional Partners IIA LP, dated as of July 29, 2010 (incorporated by reference to Exhibit 10.1 to the Issuers Current Report on Form 8-K filed on August 2, 2010). |
|
2
|
Amendment to Pledge and Security Agreement, by and among Emisphere Technologies, Inc. and MHR Institutional Partners IIA LP, dated as of July 29, 2010 (incorporated by reference to Exhibit 10.2 to the Issuers Current Report on Form 8-K filed on August 2, 2010). |
Date: August 2, 2010 | MHR CAPITAL PARTNERS MASTER ACCOUNT LP | |||||||
By: | MHR Advisors LLC, | |||||||
its General Partner | ||||||||
By: /s/ Hal Goldstein | ||||||||
Name: Hal Goldstein | ||||||||
Title: Vice President | ||||||||
MHR ADVISORS LLC | ||||||||
By: /s/ Hal Goldstein | ||||||||
Name: Hal Goldstein | ||||||||
Title: Vice President | ||||||||
MHR INSTITUTIONAL PARTNERS II LP | ||||||||
By: | MHR Institutional Advisors II LLC, | |||||||
its General Partner | ||||||||
By: /s/ Hal Goldstein | ||||||||
Name: Hal Goldstein | ||||||||
Title: Vice President | ||||||||
MHR INSTITUTIONAL PARTNERS IIA LP | ||||||||
By: | MHR Institutional Advisors II LLC, | |||||||
its General Partner | ||||||||
By: /s/ Hal Goldstein | ||||||||
Name: Hal Goldstein | ||||||||
Title: Vice President | ||||||||
MHR INSTITUTIONAL ADVISORS II LLC | ||||||||
By: /s/ Hal Goldstein | ||||||||
Name: Hal Goldstein | ||||||||
Title: Vice President | ||||||||
MHR FUND MANAGEMENT LLC | ||||||||
By: /s/ Hal Goldstein | ||||||||
Name: Hal Goldstein | ||||||||
Title: Managing Principal | ||||||||
MARK H. RACHESKY, M.D. | ||||||||
/s/ Hal Goldstein, Attorney in Fact | ||||||||