* |
If the form is filed by more than one reporting person, see Instruction 5(b)(v). |
** |
Intentional misstatements or omissions of facts constitute Federal Criminal Violations. See 18 U.S.C. 1001 and 15 U.S.C. 78ff(a). |
(1) |
On August 27, 2009, in connection with a litigation settlement, the Issuer issued to the Reporting Person a convertible note
(the "Convertible Note") in an aggregate amount of $5,000,000 in consideration of a $5,000,000 loan made by the Reporting
Person to the Issuer. The Convertible Note is convertible into units (the "Units") upon the occurrence of certain events.
Each Unit consists of (i) one share of the Issuer's Series D Non-Convertible Preferred Stock, and (ii) a Warrant to purchase
one share of the Issuer's Common Stock. Accordingly, at the time the Convertible Note is converted into the Units, the
Reporting Person will receive (i) 4,970,179 shares of Series D Non-Convertible Preferred Stock, and (ii) Warrants to
purchase 4,970,179 shares of Common Stock. The Warrants are immediately exercisable after issuance at an exercise price of
$12.00 and expire on the twelfth anniversary of the issuance date. |
(2) |
The Convertible Note is not convertible at the option of the Reporting Person until the Certificate of Designation for the
Series D Non-Convertible Preferred Stock is filed by the Issuer and becomes effective, as contemplated by the Convertible
Note. The Convertible Note is not automatically convertible until the rights offering, as contemplated by the Convertible
Note, is consummated or until the first business day following the date on which the Issuer provides the Reporting Person
with written notice that Pegasus Partners IV, L.P. has converted its convertible note into Units. |
(3) |
The maturity date is the earliest of July 31, 2010 or the consummation of the rights offering, as contemplated by the
Convertible Note or the first business day following the date on which the Issuer provides the Reporting Person with written
notice that Pegasus Partners IV, L.P. has converted its convertible note into Units. |