SC 13D/A
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 5)*
EMISPHERE TECHNOLOGIES, INC.
(Name of Issuer)
Common Stock, Par Value $.01 Per Share
(Title of Class of Securities)
291345106
Doron Lipshitz, Esq.
OMelveny & Myers LLP
7 Times Square
New York, New York 10036
(212) 326-2000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 30,
2008
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition
that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e),
240.13d-1(f) or 240.13d-1(g), check the following box o.
Note: Schedules filed in paper format shall include a signed original and five copies of the
schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting persons initial filing on
this form with respect to the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be filed for
the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise
subject to the liabilities of that section of the Act but shall be subject to all other provisions
of the Act (however, see the Notes).
Continued on following pages
|
|
|
|
|
|
|
|
|
|
|
CUSIP
No.: |
|
291345106 |
SCHEDULE 13D |
|
|
|
|
|
|
|
|
|
|
|
|
|
1 |
|
NAME OF REPORTING PERSONS
MHR CAPITAL PARTNERS MASTER ACCOUNT LP
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) |
|
|
|
|
|
|
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) |
|
|
|
WC |
|
|
|
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 |
|
4,982,842 |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER |
BENEFICIALLY |
|
|
OWNED BY |
|
0 |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER |
REPORTING |
|
|
PERSON |
|
4,982,842 |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER |
|
|
|
|
|
0 |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
|
|
|
4,982,842 |
|
|
|
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) |
|
|
|
15.5% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (See Instructions) |
|
|
|
PN |
|
|
|
|
|
|
|
|
|
|
|
CUSIP
No.: |
|
291345106 |
SCHEDULE 13D |
|
|
|
|
|
|
|
|
|
|
|
|
|
1 |
|
NAME OF REPORTING PERSONS
MHR ADVISORS LLC
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) |
|
|
|
|
|
|
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) |
|
|
|
AF |
|
|
|
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 |
|
5,663,425 |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER |
BENEFICIALLY |
|
|
OWNED BY |
|
0 |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER |
REPORTING |
|
|
PERSON |
|
5,663,425 |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER |
|
|
|
|
|
0 |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
|
|
|
5,663,425 |
|
|
|
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) |
|
|
|
17.5% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (See Instructions) |
|
|
|
OO |
|
|
|
|
|
|
|
|
|
|
|
CUSIP
No.: |
|
291345106 |
SCHEDULE 13D |
|
|
|
|
|
|
|
|
|
|
|
|
|
1 |
|
NAME OF REPORTING PERSONS
MHR INSTITUTIONAL PARTNERS IIA LP
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) |
|
|
|
|
|
|
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) |
|
|
|
WC |
|
|
|
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 |
|
3,704,169 |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER |
BENEFICIALLY |
|
|
OWNED BY |
|
0 |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER |
REPORTING |
|
|
PERSON |
|
3,704,169 |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER |
|
|
|
|
|
0 |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
|
|
|
3,704,169 |
|
|
|
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) |
|
|
|
11.1% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (See Instructions) |
|
|
|
PN |
|
|
|
|
|
|
|
|
|
|
|
CUSIP
No.: |
|
291345106 |
SCHEDULE 13D |
|
|
|
|
|
|
|
|
|
|
|
|
|
1 |
|
NAME OF REPORTING PERSONS
MHR INSTITUTIONAL ADVISORS II LLC
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) |
|
|
|
|
|
|
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) |
|
|
|
AF |
|
|
|
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 |
|
5,174,483 |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER |
BENEFICIALLY |
|
|
OWNED BY |
|
0 |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER |
REPORTING |
|
|
PERSON |
|
5,174,483 |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER |
|
|
|
|
|
0 |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
|
|
|
5,174,483 |
|
|
|
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) |
|
|
|
15.0% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (See Instructions) |
|
|
|
OO |
|
|
|
|
|
|
|
|
|
|
|
CUSIP
No.: |
|
291345106 |
SCHEDULE 13D |
|
|
|
|
|
|
|
|
|
|
|
|
|
1 |
|
NAME OF REPORTING PERSONS
MHR FUND MANAGEMENT LLC
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) |
|
|
|
|
|
|
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) |
|
|
|
AF |
|
|
|
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 |
|
10,837,908 |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER |
BENEFICIALLY |
|
|
OWNED BY |
|
0 |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER |
REPORTING |
|
|
PERSON |
|
10,837,908 |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER |
|
|
|
|
|
0 |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
|
|
|
10,837,908 |
|
|
|
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) |
|
|
|
29.7% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (See Instructions) |
|
|
|
OO |
|
|
|
|
|
|
|
|
|
|
|
CUSIP
No.: |
|
291345106 |
SCHEDULE 13D |
|
|
|
|
|
|
|
|
|
|
|
|
|
1 |
|
NAME OF REPORTING PERSONS
MARK H. RACHESKY, M.D.
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) |
|
|
|
|
|
|
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) |
|
|
|
AF |
|
|
|
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 |
|
10,847,568 |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER |
BENEFICIALLY |
|
|
OWNED BY |
|
0 |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER |
REPORTING |
|
|
PERSON |
|
10,847,568 |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER |
|
|
|
|
|
0 |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
|
|
|
10,847,568 |
|
|
|
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) |
|
|
|
29.7% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (See Instructions) |
|
|
|
IN; HC |
TABLE OF CONTENTS
This Statement on Schedule 13D amends and supplements the statement on
Schedule 13D filed on October 6, 2005 (the Initial 13D), as amended by Amendment No. 1,
filed on January 17, 2006 (Amendment No. 1), Amendment No. 2, filed on May 11, 2006
(Amendment No. 2), Amendment No. 3, filed on August 20, 2007 (Amendment
No. 3) and Amendment No. 4, filed on
August 24, 2007 (Amendment No. 4) and relates to shares of common stock, par value $0.01 per share (the Shares), of
Emisphere Technologies, Inc. (the Issuer). This
Amendment No. 5 is being filed by the
Reporting Persons to report the increase in the number of Shares which the Reporting Persons may be
deemed to beneficially own as a result of the receipt by the
Reporting Persons of additional 11% Senior Secured Convertible Notes
(the Convertible Notes) of the Issuer as
paid-in-kind interest on the Convertible Notes already held by the
Reporting Persons. The Convertible Notes are immediately convertible
into Shares upon receipt thereof by the Reporting Persons. Certain of the
securities reported herein were previously reported on Schedule 13G, which was filed on April 8,
2005 (the Schedule 13G). Defined terms used in this Statement but not defined herein
shall have the respective meanings given such terms in Amendment No. 3.
Item 5. Interest in Securities of the Issuer
Item 5 is hereby amended by deleting such item in its entirety and replacing it with the following:
According
to the Issuers report on Form 10-Q for the quarter ended
March 31, 2008, the
number of Shares outstanding was 30,336,928 as of May 2,
2008.
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 4,982,842 Shares
(approximately 15.5% of the total number of Shares outstanding, calculated in accordance with Rule
13d-3(d)(1)(i) under the Securities Exchange Act of 1934, as amended (the Exchange Act)).
This number consists of (A) 3,123,626 Shares held for the account of Master Account, (B) 836,896
Shares that can be obtained by Master Account upon exercise of
warrants to acquire Shares, and (C) 1,022,320 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 680,583 Shares
(approximately 2.2% of the total number of Shares outstanding, calculated in accordance with Rule
13d-3(d)(1)(i) under the Exchange Act). This number consists of (A) 424,818 Shares held for the
account of Capital Partners (100), (B) 115,961 Shares that can be obtained by Capital Partners
(100) upon exercise of
warrants to acquire Shares, and (C) 139,804 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 5,663,425 Shares (approximately
17.5% of the total number of Shares outstanding, calculated in accordance with Rule 13d-3(d)(1)(i)
under the Exchange Act). This number consists of (A) (1) 3,123,626 Shares held for the account of
Master Account, (2) 836,896 Shares that can be obtained by Master Account upon exercise of warrants
to acquire Shares, and (3) 1,022,320 Shares that can be obtained by Master Account upon the
conversion of the Convertible Notes, and (B) (1) 424,818 Shares held for the account of Capital
Partners (100), (2) 115,961 Shares that can be obtained by Capital Partners (100) upon exercise of
warrants to acquire Shares, and (3) 139,804 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 1,470,314 Shares
(approximately 4.7% of the total number of Shares outstanding, calculated in accordance with Rule
13d-3(d)(1)(i) under the Exchange Act). This number consists of (A) 317,369 Shares held for the
account of Institutional Partners II, (B) 40,576 Shares that can be obtained by Institutional
Partners II upon the exercise of warrants to acquire Shares and
(C) 1,112,369 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 3,704,169 Shares
(approximately 11.1% of the total number of Shares outstanding, calculated in accordance with Rule
13d-3(d)(1)(i) under the Exchange Act). This number consists of (A) 799,549 Shares held for the
account of Institutional Partners IIA, (B) 102,225 Shares that can be obtained by Institutional
Partners IIA upon the exercise of warrants to acquire Shares and
(C) 2,802,395 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 5,174,483 Shares
(approximately 15.0% of the total number of Shares outstanding, calculated in accordance with Rule
13d-3(d)(1)(i) under the Exchange Act). This number consists of (A) (1) 317,369 Shares held for the
account of Institutional Partners II, (2) 40,576 Shares that can be obtained by Institutional
Partners II upon the exercise of warrants to acquire Shares and
(3) 1,112,369 Shares that can be
obtained by Institutional Partners II upon the conversion of the Convertible Notes and (B) (1)
799,549 Shares held for the Account
of Institutional Partners IIA, (2) 102,225 Shares that can be
obtained by Institutional Partners IIA upon the exercise of warrants to acquire Shares and (3)
2,802,395 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 10,837,908 Shares
(approximately 29.7% of the total number of Shares outstanding, calculated in accordance with Rule
13d-3(d)(1)(i) under the Exchange Act). This number consists of (A) (1) 3,123,626 Shares held for
the account of Master Account, (2) 836,896 Shares that can be obtained by Master Account upon
exercise of warrants to acquire Shares, and (3) 1,022,320 Shares that can be obtained by Master
Account upon the conversion of the Convertible Notes, (B) (1) 424,818 Shares held for the account
of Capital Partners (100), (2) 115,961 Shares that can be obtained by Capital Partners (100) upon
exercise of warrants to acquire Shares, and (3) 139,804 Shares that can be obtained by Capital
Partners (100) upon the conversion of the Convertible Notes, (C) (1) 317,369 Shares held for the
account of Institutional Partners II, (2) 40,576 Shares that can be obtained by Institutional
Partners II upon the exercise of warrants to purchase Shares and
(3) 1,112,369 Shares that can be
obtained by Institutional Partners II upon the conversion of the Convertible Notes, and (D) (1)
799,549 Shares held for the account of Institutional Partners IIA, (2) 102,225 Shares that can be
obtained by Institutional Partners IIA upon the exercise of warrants
to acquire Shares and (3) 2,802,395 Shares that can be obtained by Institutional Partners IIA upon the conversion of the
Convertible Notes.
(viii) Dr. Rachesky
may be deemed the beneficial owner of 10,847,568 Shares
(approximately 29.7% of the total number of Shares outstanding, calculated in accordance with Rule
13d-3(d)(1)(i) under the Exchange Act). This number consists of (A) (1) 3,123,626 Shares held for
the account of Master Account, (2) 836,896 Shares that can be obtained by Master Account upon
exercise of warrants to acquire Shares, and (3) 1,022,320 Shares that can be obtained by Master
Account upon the conversion of the Convertible Notes, (B) (1) 424,818 Shares held for the account
of Capital Partners (100), (2) 115,961 Shares that can be obtained by Capital Partners (100) upon
exercise of warrants to acquire Shares, and (3) 139,804 Shares that can be obtained by Capital
Partners (100) upon the conversion of the Convertible Notes, (C) (1) 317,369 Shares held for the
account of Institutional Partners II, (2) 40,576 Shares that can be obtained by Institutional
Partners II upon the exercise of warrants to purchase Shares and
(3) 1,112,369 Shares that can be
obtained by Institutional Partners II upon the conversion of the Convertible Notes, (D) (1) 799,549
Shares held for the account of Institutional Partners IIA, (2) 102,225 Shares that can be obtained
by Institutional Partners IIA upon the exercise of warrants to
acquire Shares and (3) 2,802,395
Shares that can be obtained by Institutional Partners IIA upon the conversion of the Convertible
Notes, (E) 7,000 Shares that can be obtained upon the exercise of an option to purchase Shares at a
price of $3.76 per share in connection with an award of stock options
which vested on October 20,
2007 and (F) 2,660 Shares held for his own account.
(b) (i) Master Account may be deemed to have (x) the sole power to direct the disposition
of 4,982,842 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 4,982,842 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 680,583 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 680,583 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
5,663,425 Shares which may be deemed to be beneficially owned by Advisors as described above, and
(y) the sole power to direct the voting of 5,663,425 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 1,470,314 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 1,470,314 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 3,704,169 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 3,704,169 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 5,174,483 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 5,174,483 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 10,837,908 Shares which may be deemed to be beneficially owned by Fund Management as
described above, (y) the sole power to direct the voting of
10,837,908 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 10,847,568 Shares which may be deemed to be beneficially owned by Dr. Rachesky as described
above, (y) the sole power to direct the voting of 10,847,568 Shares which may be deemed to be
beneficially owned by Dr. Rachesky as described above.
Except as otherwise disclosed herein, there have been no transactions with respect to the
Shares in the last 60 days by any of the Reporting Persons.
(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.
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, the
undersigned certifies that the information set forth in this Statement is true, complete and
correct.
|
|
|
|
|
|
|
Date: July 2, 2008 |
|
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 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: Vice President |
|
|
|
|
|
|
|
|
|
|
|
MARK H. RACHESKY, M.D. |
|
|
|
|
|
|
|
|
|
/s/ Hal
Goldstein, Attorney in Fact |
|
|
|
|
|
|
|