Page 14 of 16 – SEC Filing
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(vi) Institutional Advisors II may be deemed the beneficial owner of 67,004,089 Shares
(approximately 57.5% 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) (1) 3,240,750 Shares held for the account of Institutional Partners II,
(2) 4,479,892 Shares that can be obtained by Institutional Partners II upon the exercise of warrants to acquire Shares, (3) 9,904,157 Shares that can be obtained by Institutional Partners II upon the conversion of the Convertible Notes,
(4) 1,029,196 Shares that can be obtained by Institutional Partners II upon the conversion of the Bridge Notes and (5) 384,882 Shares that can be obtained by Institutional Partners II upon the conversion of the Reimbursement Notes, and
(B) (1) 8,164,436 Shares held for the account of Institutional Partners IIA, (2) 11,286,210 Shares that can be obtained by Institutional Partners IIA upon the exercise of warrants to acquire Shares, (3) 24,951,596 Shares that can
be obtained by Institutional Partners IIA upon the conversion of the Convertible Notes, (4) 2,592,856 Shares that can be obtained by Institutional Partners IIA upon the conversion of the Bridge Notes and (5) 970,114 Shares that can be
obtained by Institutional Partners IIA upon the conversion of the Reimbursement Notes.
(vii) MHRC may be deemed the
beneficial owner of 25,580,440 Shares (approximately 32.2% of the total number of Shares outstanding, calculated in accordance with Rule 13d-3(d)(1)(i) under the Act). This number consists of all of the Shares otherwise described in
Item 5(a)(iii) by virtue of MHRCs position as the managing member of Advisors.
(viii) MHRC II may be deemed the
beneficial owner of 67,004,089 Shares (approximately 57.5% of the total number of Shares outstanding, calculated in accordance with Rule 13d-3(d)(1)(i) under the Act). This number consists of all of the Shares otherwise described in
Item 5(a)(vi) by virtue of MHRC IIs position as the managing member of Institutional Advisors II.
(ix) Fund
Management may be deemed the beneficial owner of 92,584,529 Shares (approximately 68.6% 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.
(x) MHR Holdings may be deemed to be the beneficial owner of 92,584,529 Shares (approximately 68.6% 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 MHR Holdings position as the managing member of Fund Management.
(xi) Dr. Rachesky may be deemed the beneficial owner of 93,073,827 Shares (approximately 68.7% 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 MHRC, MHRC II and MHR Holdings, (B) 14,000 Shares that can be obtained upon the exercise of certain options to purchase Shares, (C) 470,000 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 22,544,146 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 22,544,146 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 3,036,294 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 3,036,294 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 25,580,440 Shares which may be deemed to be beneficially owned by Advisors as described above, and (y) the sole power to direct the voting of 25,580,440 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 19,038,877 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 19,038,877 Shares which may be deemed to be
beneficially owned by Institutional Partners II as described above.
