SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Rule 13d-101
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
§ 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO § 240.13d-2(a)
(Amendment No. 24)*
|
| Emisphere Technologies, Inc. |
(Name of Issuer)
|
| Common Stock, Par Value $.01 Per Share |
(Title of Class of Securities)
(CUSIP Number)
|
| Janet Yeung MHR Fund Management LLC 1345 Avenue of the Americas, 42nd Floor New York, New York 10105 (212) 262-0005 |
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
(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 ¨.
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 person’s 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
(Page
1
of 16 Pages)
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| CUSIP No.: |
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291345106 |
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13D |
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Page
2
of 16 Pages |
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| 1 |
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NAME OF REPORTING PERSONS MHR CAPITAL PARTNERS MASTER ACCOUNT LP |
| 2 |
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP (See Instructions)
(a) ¨ (b) x |
| 3 |
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SEC USE ONLY
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| 4 |
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SOURCE OF FUNDS (See
Instructions) N/A |
| 5 |
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CHECK BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨ |
| 6 |
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CITIZENSHIP OR PLACE OF
ORGANIZATION Anguilla, British West
Indies |
| NUMBER OF SHARES
BENEFICIALLY OWNED BY EACH
REPORTING
PERSON
WITH |
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7 |
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SOLE VOTING POWER
20,094,348 |
| |
8 |
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SHARED VOTING POWER
0 |
| |
9 |
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SOLE DISPOSITIVE POWER
20,094,348 |
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10 |
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SHARED DISPOSITIVE POWER
0 |
| 11 |
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AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
20,094,348 |
| 12 |
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CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨ |
| 13 |
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PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11) 27.0% |
| 14 |
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TYPE OF REPORTING PERSON (See
Instructions) PN |
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| CUSIP No.: |
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291345106 |
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13D |
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Page
3
of 16 Pages |
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| 1 |
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NAME OF REPORTING PERSONS MHR ADVISORS LLC |
| 2 |
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP (See Instructions)
(a) ¨ (b) x |
| 3 |
|
SEC USE ONLY
|
| 4 |
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SOURCE OF FUNDS (See
Instructions) N/A |
| 5 |
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CHECK BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨ |
| 6 |
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CITIZENSHIP OR PLACE OF
ORGANIZATION Delaware |
| NUMBER OF SHARES
BENEFICIALLY OWNED BY EACH
REPORTING
PERSON
WITH |
|
7 |
|
SOLE VOTING POWER
22,796,620 |
| |
8 |
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SHARED VOTING POWER
0 |
| |
9 |
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SOLE DISPOSITIVE POWER
22,796,620 |
| |
10 |
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SHARED DISPOSITIVE POWER
0 |
| 11 |
|
AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
22,796,620 |
| 12 |
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CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨ |
| 13 |
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PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11) 29.8% |
| 14 |
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TYPE OF REPORTING PERSON (See
Instructions) OO |
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| CUSIP No.: |
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291345106 |
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13D |
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Page
4
of 16 Pages |
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| 1 |
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NAME OF REPORTING PERSONS MHR INSTITUTIONAL PARTNERS II LP |
| 2 |
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP (See Instructions)
(a) ¨ (b) x |
| 3 |
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SEC USE ONLY
|
| 4 |
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SOURCE OF FUNDS (See
Instructions) N/A |
| 5 |
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CHECK BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨ |
| 6 |
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CITIZENSHIP OR PLACE OF
ORGANIZATION Delaware |
| NUMBER OF SHARES
BENEFICIALLY OWNED BY EACH
REPORTING
PERSON
WITH |
|
7 |
|
SOLE VOTING POWER
16,473,925 |
| |
8 |
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SHARED VOTING POWER
0 |
| |
9 |
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SOLE DISPOSITIVE POWER
16,473,925 |
| |
10 |
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SHARED DISPOSITIVE POWER
0 |
| 11 |
|
AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
16,473,925 |
| 12 |
|
CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨ |
| 13 |
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PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11) 22.3% |
| 14 |
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TYPE OF REPORTING PERSON (See
Instructions) PN |
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| CUSIP No.: |
|
291345106 |
|
13D |
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Page
5
of 16 Pages |
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| 1 |
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NAME OF REPORTING PERSONS MHR INSTITUTIONAL PARTNERS IIA LP |
| 2 |
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP (See Instructions)
(a) ¨ (b) x |
| 3 |
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SEC USE ONLY
|
| 4 |
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SOURCE OF FUNDS (See
Instructions) N/A |
| 5 |
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CHECK BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨ |
| 6 |
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CITIZENSHIP OR PLACE OF
ORGANIZATION Delaware |
| NUMBER OF SHARES
BENEFICIALLY OWNED BY EACH
REPORTING
PERSON
WITH |
|
7 |
|
SOLE VOTING POWER
41,503,225 |
| |
8 |
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SHARED VOTING POWER
0 |
| |
9 |
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SOLE DISPOSITIVE POWER
41,503,225 |
| |
10 |
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SHARED DISPOSITIVE POWER
0 |
| 11 |
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AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
41,503,225 |
| 12 |
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CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨ |
| 13 |
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PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11) 44.1% |
| 14 |
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TYPE OF REPORTING PERSON (See
Instructions) PN |
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| CUSIP No.: |
|
291345106 |
|
13D |
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Page
6
of 16 Pages |
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| 1 |
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NAME OF REPORTING PERSONS MHR INSTITUTIONAL ADVISORS II LLC |
| 2 |
|
CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP (See Instructions)
(a) ¨ (b) x |
| 3 |
|
SEC USE ONLY
|
| 4 |
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SOURCE OF FUNDS (See
Instructions) N/A |
| 5 |
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CHECK BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨ |
| 6 |
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CITIZENSHIP OR PLACE OF
ORGANIZATION Delaware |
| NUMBER OF SHARES
BENEFICIALLY OWNED BY EACH
REPORTING
PERSON
WITH |
|
7 |
|
SOLE VOTING POWER
57,977,150 |
| |
8 |
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SHARED VOTING POWER
0 |
| |
9 |
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SOLE DISPOSITIVE POWER
57,977,150 |
| |
10 |
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SHARED DISPOSITIVE POWER
0 |
| 11 |
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AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
57,977,150 |
| 12 |
|
CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨ |
| 13 |
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PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11) 54.1% |
| 14 |
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TYPE OF REPORTING PERSON (See
Instructions) OO |
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| CUSIP No.: |
|
291345106 |
|
13D |
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Page
7
of 16 Pages |
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| 1 |
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NAME OF REPORTING PERSONS MHRC LLC |
| 2 |
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP (See Instructions)
(a) ¨ (b) x |
| 3 |
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SEC USE ONLY
|
| 4 |
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SOURCE OF FUNDS (See
Instructions) N/A |
| 5 |
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CHECK BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨ |
| 6 |
|
CITIZENSHIP OR PLACE OF
ORGANIZATION Delaware |
| NUMBER OF SHARES
BENEFICIALLY OWNED BY EACH
REPORTING
PERSON
WITH |
|
7 |
|
SOLE VOTING POWER
22,796,620 |
| |
8 |
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SHARED VOTING POWER
0 |
| |
9 |
|
SOLE DISPOSITIVE POWER
22,796,620 |
| |
10 |
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SHARED DISPOSITIVE POWER
0 |
| 11 |
|
AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
22,796,620 |
| 12 |
|
CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨ |
| 13 |
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PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11) 29.8% |
| 14 |
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TYPE OF REPORTING PERSON (See
Instructions) OO |
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| CUSIP No.: |
|
291345106 |
|
13D |
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Page
8
of 16 Pages |
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| 1 |
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NAME OF REPORTING PERSONS MHRC II LLC |
| 2 |
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP (See Instructions)
(a) ¨ (b) x |
| 3 |
|
SEC USE ONLY
|
| 4 |
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SOURCE OF FUNDS (See
Instructions) N/A |
| 5 |
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CHECK BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨ |
| 6 |
|
CITIZENSHIP OR PLACE OF
ORGANIZATION Delaware |
| NUMBER OF SHARES
BENEFICIALLY OWNED BY EACH
REPORTING
PERSON
WITH |
|
7 |
|
SOLE VOTING POWER
57,977,150 |
| |
8 |
|
SHARED VOTING POWER
0 |
| |
9 |
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SOLE DISPOSITIVE POWER
57,977,150 |
| |
10 |
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SHARED DISPOSITIVE POWER
0 |
| 11 |
|
AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
57,977,150 |
| 12 |
|
CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨ |
| 13 |
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PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11) 54.1% |
| 14 |
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TYPE OF REPORTING PERSON (See
Instructions) OO |
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| CUSIP No.: |
|
291345106 |
|
13D |
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Page
9
of 16 Pages |
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| 1 |
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NAME OF REPORTING PERSONS MHR FUND MANAGEMENT LLC |
| 2 |
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP (See Instructions)
(a) ¨ (b) x |
| 3 |
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SEC USE ONLY
|
| 4 |
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SOURCE OF FUNDS (See
Instructions) N/A |
| 5 |
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CHECK BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨ |
| 6 |
|
CITIZENSHIP OR PLACE OF
ORGANIZATION Delaware |
| NUMBER OF SHARES
BENEFICIALLY OWNED BY EACH
REPORTING
PERSON
WITH |
|
7 |
|
SOLE VOTING POWER
80,773,770 |
| |
8 |
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SHARED VOTING POWER
0 |
| |
9 |
|
SOLE DISPOSITIVE POWER
80,773,770 |
| |
10 |
|
SHARED DISPOSITIVE POWER
0 |
| 11 |
|
AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
80,773,770 |
| 12 |
|
CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨ |
| 13 |
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PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11) 65.7% |
| 14 |
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TYPE OF REPORTING PERSON (See
Instructions) OO |
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| CUSIP No.: |
|
291345106 |
|
13D |
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Page
10
of 16 Pages |
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| 1 |
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NAME OF REPORTING PERSONS MHR HOLDINGS LLC |
| 2 |
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP (See Instructions)
(a) ¨ (b) x |
| 3 |
|
SEC USE ONLY
|
| 4 |
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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) ¨ |
| 6 |
|
CITIZENSHIP OR PLACE OF
ORGANIZATION Delaware |
| NUMBER OF SHARES
BENEFICIALLY OWNED BY EACH
REPORTING
PERSON
WITH |
|
7 |
|
SOLE VOTING POWER
80,773,770 |
| |
8 |
|
SHARED VOTING POWER
0 |
| |
9 |
|
SOLE DISPOSITIVE POWER
80,773,770 |
| |
10 |
|
SHARED DISPOSITIVE POWER
0 |
| 11 |
|
AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
80,773,770 |
| 12 |
|
CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨ |
| 13 |
|
PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11) 65.7% |
| 14 |
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TYPE OF REPORTING PERSON (See
Instructions) OO |
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| CUSIP No.: |
|
291345106 |
|
13D |
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Page
11
of 16 Pages |
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| 1 |
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NAME OF REPORTING PERSONS MARK H. RACHESKY, M.D. |
| 2 |
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP (See Instructions)
(a) ¨ (b) x |
| 3 |
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SEC USE ONLY
|
| 4 |
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SOURCE OF FUNDS (See
Instructions) N/A |
| 5 |
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CHECK BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨ |
| 6 |
|
CITIZENSHIP OR PLACE OF
ORGANIZATION United States of
America |
| NUMBER OF SHARES
BENEFICIALLY OWNED BY EACH
REPORTING
PERSON
WITH |
|
7 |
|
SOLE VOTING POWER
81,183,068 |
| |
8 |
|
SHARED VOTING POWER
0 |
| |
9 |
|
SOLE DISPOSITIVE POWER
81,183,068 |
| |
10 |
|
SHARED DISPOSITIVE POWER
0 |
| 11 |
|
AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
81,183,068 |
| 12 |
|
CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨ |
| 13 |
|
PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11) 65.8% |
| 14 |
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TYPE OF REPORTING PERSON (See
Instructions) IN; HC |
Page
12
of 16 Pages
TABLE OF CONTENTS
Page
13
of 16 Pages
This statement on Schedule 13D (this “Statement”) further amends and supplements, as
Amendment No. 24, the 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”), Amendment No. 4, filed on August 24, 2007 (“Amendment
No. 4”), Amendment No. 5, filed on July 2, 2008 (“Amendment No. 5”), Amendment No. 6, filed on July 2, 2009 (“Amendment No. 6”), Amendment No. 7, filed on
August 21, 2009 (“Amendment No. 7”), Amendment No. 8, filed on August 25, 2009 (“Amendment No. 8”), Amendment No. 9, filed on June 9, 2010 (“Amendment
No. 9”), Amendment No. 10, filed on August 2, 2010 (“Amendment No. 10”), Amendment No. 11, filed on August 27, 2010 (“Amendment No. 11”), Amendment No. 12, filed on
December 22, 2010 (“Amendment No. 12”), Amendment No. 13, filed on July 1, 2011 (“Amendment No. 13”), Amendment No. 14, filed on July 8, 2011 (“Amendment
No. 14”), Amendment No. 15, filed on June 5, 2012 (“Amendment No. 15”), Amendment No. 16, filed on September 27, 2012 (“Amendment No. 16”), Amendment No. 17, filed on
October 9, 2012 (“Amendment No. 17”), Amendment No. 18, filed on October 19, 2012 (“Amendment No. 18”), Amendment No. 19, filed on January 10, 2013 (“Amendment
19”), Amendment No. 20, filed on April 30, 2013 (“Amendment No. 20”), Amendment No. 21, filed on May 9, 2013 (“Amendment No. 21”), Amendment No. 22, filed on March 31, 2014
(“Amendment No. 22”) and Amendment No. 23, filed on August 22, 2014 (“Amendment No. 23”, and, together with the Initial 13D and Amendment No. 1 through Amendment No. 22, the “Schedule
13D”) and relates to shares of common stock, par value $0.01 per share (the “Shares”), of Emisphere Technologies, Inc. (the “Issuer”). Defined terms used in this Statement but not defined herein shall have
the respective meanings given such terms in Amendment No. 23.
| 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:
The percentages set forth in this Statement are calculated based on information contained in the Issuer’s Form 10-Q for the quarterly period ended March 31, 2015, which disclosed that there were
60,687,478 Shares outstanding as of May 14, 2015.
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 Person’s Convertible Notes, Bridge Notes and
Reimbursement Notes were converted into Shares as of such date.
(a) (i) Master Account may be deemed the beneficial
owner of 20,094,348 Shares (approximately 27.0% 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) 6,226,054 Shares held for the account of Master Account,
(B) 5,515,644 Shares that can be obtained by Master Account upon exercise of warrants to acquire Shares, (C) 7,028,242 Shares that can be obtained by Master Account upon the conversion of the Convertible Notes, (D) 1,035,830 Shares
that can be obtained by Master Account upon the conversion of the Bridge Notes and (E) 288,578 Shares that can be obtained by Master Account upon the conversion of the Reimbursement Notes.
(ii) Capital Partners (100) may be deemed the beneficial owner of 2,702,272 Shares (approximately 4.3% 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) 847,125 Shares held for the account of Capital Partners (100), (B) 716,030 Shares that can be obtained by Capital Partners
(100) upon exercise of warrants to acquire Shares, (C) 961,125 Shares that can be obtained by Capital Partners (100) upon the conversion of the Convertible Notes, (D) 137,790 Shares that can be obtained by Capital Partners
(100) upon the conversion of the Bridge Notes and (E) 40,202 Shares that can be obtained by Capital Partners (100) upon the conversion of the Reimbursement Notes.
(iii) Advisors may be deemed the beneficial owner of 22,796,620 Shares (approximately 29.8% 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) 6,226,054 Shares held for the account of Master Account, (2) 5,515,644 Shares that can be obtained by Master Account upon exercise of
warrants to acquire Shares, (3) 7,028,242 Shares that can be obtained by Master Account upon the conversion of the Convertible Notes, (4) 1,035,830 Shares that can be obtained by Master Account upon the conversion of the Bridge Notes and
(5) 288,578 Shares that can be obtained by Master Account upon the conversion of the Reimbursement Notes, and (B) (1) 847,125 Shares held for the account of Capital Partners (100), (2) 716,030 Shares that can be obtained by
Capital Partners (100) upon exercise of warrants to acquire Shares, (3) 961,125 Shares that can be obtained by Capital Partners (100) upon the conversion of Convertible Notes, (4) 137,790 Shares that can be obtained by Capital
Partners (100) upon the conversion of Bridge Notes and (5) 40,202 Shares that can be obtained by Capital Partners (100) upon the conversion of Reimbursement Notes.
Page
14
of 16 Pages
(iv) Institutional Partners II may be deemed the beneficial owner of 16,473,925 Shares
(approximately 22.3% 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) 3,240,750 Shares held for the account of Institutional Partners II, (B) 4,479,892
Shares that can be obtained by Institutional Partners II upon the exercise of warrants to acquire Shares, (C) 7,647,301 Shares that can be obtained by Institutional Partners II upon the conversion of the Convertible Notes, (D) 791,560
Shares that can be obtained by Institutional Partners II upon the conversion of the Bridge Notes and (E) 314,422 Shares that can be obtained by Institutional Partners II upon the conversion of the Reimbursement Notes.
(v) Institutional Partners IIA may be deemed the beneficial owner of 41,503,225 Shares (approximately 44.1% 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) 8,164,436 Shares held for the account of Institutional Partners IIA, (B) 11,286,210 Shares that can be obtained by Institutional
Partners IIA upon the exercise of warrants to acquire Shares, (C) 19,265,887 Shares that can be obtained by Institutional Partners IIA upon the conversion of the Convertible Notes, (D) 1,994,176 Shares that can be obtained by Institutional
Partners IIA upon the conversion of the Bridge Notes and (E) 792,516 Shares that can be obtained by Institutional Partners IIA upon the conversion of the Reimbursement Notes.
(vi) Institutional Advisors II may be deemed the beneficial owner of 57,977,150 Shares (approximately 54.1% 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) (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) 7,647,301 Shares that can be obtained by Institutional Partners II upon the conversion of the Convertible Notes, (4) 791,560 Shares that can be obtained by
Institutional Partners II upon the conversion of the Bridge Notes and (5) 314,422 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) 19,265,887 Shares that can be obtained by Institutional Partners IIA upon
the conversion of the Convertible Notes, (4) 1,994,176 Shares that can be obtained by Institutional Partners IIA upon the conversion of the Bridge Notes and (5) 792,516 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 22,796,620 Shares (approximately
29.8% of the total number of Shares outstanding, calculated in accordance with Rule 13d-3(d)(1)(i) under the Act). This number consists of all of the Shares otherwise described in Item 5(a)(iii) by virtue of MHRC’s position as the managing
member of Advisors.
(viii) MHRC II may be deemed the beneficial owner of 57,977,150 Shares (approximately 54.1% 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 Item 5(a)(vi) by virtue of MHRC II’s position as the managing member of
Institutional Advisors II.
(ix) Fund Management may be deemed the beneficial owner of 80,773,770 Shares (approximately 65.7%
of the total number of Shares outstanding, calculated in accordance with Rule 13d-3(d)(1)(i) under the Act). This number consists of all of the Shares otherwise described in this Item 5(a) by virtue of Fund Management’s 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 80,773,770 Shares (approximately 65.7% of the total number of Shares
outstanding, calculated in accordance with Rule 13d-3(d)(1)(i) under the Act). This number consists of 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 81,183,068 Shares (approximately 65.8% 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) all of the Shares otherwise described in this Item 5(a) by virtue of Dr. Rachesky’s 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) 390,000 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 20,094,348 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 20,094,348 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 2,702,272 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 2,702,272 Shares which may be
deemed to be beneficially owned by Capital Partners (100) as described above.
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(iii) Advisors may be deemed to have (x) the sole power to direct the disposition
of 22,796,620 Shares which may be deemed to be beneficially owned by Advisors as described above, and (y) the sole power to direct the voting of 22,796,620 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 16,473,925 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 16,473,925 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
41,503,225 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 41,503,225 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 57,977,150 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 57,977,150 Shares which may be deemed to be beneficially owned by
Institutional Advisors II as described above.
(vii) MHRC may be deemed to have (x) the sole power to direct the
disposition of the 22,796,620 Shares which may be deemed to be beneficially owned by MHRC as described above, and (y) the sole power to direct the voting of 22,796,620 Shares which may be deemed to be beneficially owned by MHRC as described
above.
(viii) MHRC II may be deemed to have (x) the sole power to direct the disposition of the 57,977,150 Shares which
may be deemed to be beneficially owned by MHRC II as described above, and (y) the sole power to direct the voting of 57,977,150 Shares which may be deemed to be beneficially owned by MHRC II as described above.
(ix) Fund Management may be deemed to have (x) the sole power to direct the disposition of the 80,773,770 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 80,773,770 Shares which may be deemed to be beneficially owned by Fund Management as described above.
(x) MHR Holdings may be deemed to have (x) the sole power to direct the disposition of 80,773,770 Shares which may be deemed to be
beneficially owned by MHR Holdings as described above, and (y) the sole power to direct the voting of 80,773,770 Shares which may be deemed to be beneficially owned by MHR Holdings as described above.
(xi) Dr. Rachesky may be deemed to have (x) the sole power to direct the disposition of the 81,183,068 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 81,183,068 Shares which may be deemed to be beneficially owned by Dr. Rachesky as described above.
(c) As reported on a Form 4 filed on July 1, 2015, on June 30, 2015, Master Account, Capital Partners (100), Institutional Partners
II and Institutional Partners IIA received additional Convertible Notes, Bridge Notes and Reimbursement Notes as paid-in-kind interest on the Convertible Notes, Bridge Notes and Reimbursement Notes already held by such Reporting Persons,
respectively. Such additional Convertible Notes are convertible into 440,002 Shares (in the case of Master Account), 60,171 Shares (in the case of Capital Partners (100)), 478,758 Shares (in the case of Institutional Partners II) and 1,206,139
Shares (in the case of Institutional Partners IIA). Such additional Bridge Notes are convertible into 65,194 Shares (in the case of Master Account), 8,672 Shares (in the case of Capital Partners (100)), 49,820 Shares (in the case of Institutional
Partners II) and 125,512 Shares (in the case of Institutional Partners IIA). Such additional Reimbursement Notes are convertible into 14,092 Shares (in the case of Master Account), 1,964 Shares (in the case of Capital Partners (100)), 15,354 Shares
(in the case of Institutional Partners II) and 38,702 Shares (in the case of Institutional Partners IIA). In addition, on May 20, 2015, Dr. Rachesky was granted 40,000 non-qualified stock options as reported on a Form 4 filed on May 26, 2015.
(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.
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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.
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| Date: July 1, 2015 |
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MHR CAPITAL PARTNERS MASTER ACCOUNT LP |
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By: |
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MHR Advisors LLC, |
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its General Partner |
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By: |
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/s/ Janet Yeung |
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Name: Janet Yeung |
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Title: Authorized Signatory |
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MHR ADVISORS LLC |
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By: |
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/s/ Janet Yeung |
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Name: Janet Yeung |
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Title: Authorized Signatory |
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MHR INSTITUTIONAL PARTNERS II LP |
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By: |
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MHR Institutional Advisors II LLC, |
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its General Partner |
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By: |
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/s/ Janet Yeung |
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Name: Janet Yeung |
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Title: Authorized Signatory |
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MHR INSTITUTIONAL PARTNERS IIA LP |
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By: |
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MHR Institutional Advisors II LLC, |
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its General Partner |
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By: |
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/s/ Janet Yeung |
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Name: Janet Yeung |
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Title: Authorized Signatory |
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MHR INSTITUTIONAL ADVISORS II LLC |
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By: |
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/s/ Janet Yeung |
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Name: Janet Yeung |
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Title: Authorized Signatory |
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MHRC LLC |
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By: |
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/s/ Janet Yeung |
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Name: Janet Yeung |
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Title: Authorized Signatory |
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MHRC II LLC |
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By: |
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/s/ Janet Yeung |
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Name: Janet Yeung |
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Title: Authorized Signatory |
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MHR FUND MANAGEMENT LLC |
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By: |
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/s/ Janet Yeung |
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Name: Janet Yeung |
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Title: Authorized Signatory |
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MHR HOLDINGS LLC |
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By: |
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/s/ Janet Yeung |
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Name: Janet Yeung |
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Title: Authorized Signatory |
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MARK H. RACHESKY, M.D. |
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/s/ Janet Yeung, Attorney in Fact |