* |
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) |
These shares of the Issuer's common stock, par value $0.01 per share ("Shares"), were acquired by Merrill Lynch, Pierce,
Fenner & Smith Incorporated, a Delaware corporation ("MLPFS"), in connection with the Issuer's (and certain of its U.S.
subsidiaries) emergence from Chapter 11 bankruptcy proceedings on September 15, 2003 (the "Consummation Date"). Pursuant to
the Issuer's bankruptcy plan (the "Plan"), 4,271,419 Shares were issued to certain senior lenders of the Issuer prior to its
bankruptcy, including MLPFS and its parent holding company, Merrill Lynch & Co., Inc. ("MLC", and, collectively with MLPFS,
the "Reporting Persons"), as of the Consummation Date. Of this amount, 225,588 Shares were issued to MLPFS. |
(2) |
As of the Consummation Date, the Issuer and certain significant holders of Shares, including the Reporting Persons (the
"Stockholder Parties"), entered into the Investor Rights Agreement pursuant to the Plan. The Reporting Persons' ability to
vote or dispose of the Shares is controlled by the terms of the Investor Rights Agreement. As a result of being a party to
the Investor Rights Agreement, the Reporting Persons may be deemed to be a member of a "group", along with such other
Shareholder Parties, pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Act"), that,
combined, has beneficial ownership of more than 10% of the Issuer's outstanding Shares. |
(3) |
The filing of this statement shall not be deemed an admission that any of the Reporting Persons are members of any such
"group" or that any of the Reporting Persons is the beneficial owner of any Shares or other securities owned by any other
person. The Reporting Persons disclaim beneficial ownership of the Shares subject to the Investor Rights Agreement except
to the extent of their pecuniary interest therein. The filing of this statement shall also not be deemed a determination
that this filing is required under Section 16(a) of the Act. |