sc13ga-tmen120309.htm

SECURITIES & EXCHANGE COMMISSION

Washington, D.C. 20549

______________________

SCHEDULE 13G

(Rule 13d-102)

Amendment No 2

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT

TO RULES 13d-1(b), (c) AND (d) AND AMENDMENTS THERETO FILED

PURSUANT TO 13d-2(b) UNDER THE SECURITIES EXCHANGE ACT OF 1934

THERMOENERGY CORPORATION

(Name of Issuer)

Common Stock, $0.001 par value

(Title of Class of Securities)

883906406

(CUSIP Number)

19 November 2009

(Date of event which requires filing of this statement)

Check the appropriate box to designate the rule pursuant to which this Schedule 13G is filed:

[ ] Rule 13d-1(b)

[X] Rule 13d-1(c)

[ ] Rule 13d-1(d)

Page 1 of 12 Pages

________________

*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 the disclosures provided in a prior cover page.

The information required in the remainder of this cover page shall not be deemed to be "filed" for purposes 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).

CUSIP No. 883906406 13G Page 2 of 12 Pages

______________________________________________________________________________________

(1) NAMES OF REPORTING PERSONS

I.R.S. IDENTIFICATION NO.

OF ABOVE PERSONS (ENTITIES ONLY)

Empire Capital Partners, L.P.

______________________________________________________________________________________

(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **

(a) [ ]

(b) [X]

______________________________________________________________________________________

(3) SEC USE ONLY

______________________________________________________________________________________

(4) CITIZENSHIP OR PLACE OF ORGANIZATION

Delaware

______________________________________________________________________________________

NUMBER OF (5) SOLE VOTING POWER

-0-

SHARES __________________________________________________________________________

BENEFICIALLY (6) SHARED VOTING POWER

1,055,685 Common Stock Shares

1,697,914 As converted Warrants

1,414,840 As converted Series B Preferred

OWNED BY __________________________________________________________________________

EACH (7) SOLE DISPOSITIVE POWER

-0-

REPORTING ________________________________________________________________________

PERSON WITH (8) SHARED DISPOSITIVE POWER

1,055,685 Common Stock Shares

1,697,914 As converted Warrants

1,414,840 As converted Series B Preferred

______________________________________________________________________________________

(9) AGGREGATE AMOUNT BENEFICIALLY OWNED

BY EACH REPORTING PERSON

4,168,439

______________________________________________________________________________________

(10) CHECK BOX IF THE AGGREGATE AMOUNT

IN ROW (9) EXCLUDES CERTAIN SHARES ** [ ]

______________________________________________________________________________________

(11) PERCENT OF CLASS REPRESENTED

BY AMOUNT IN ROW (9)

6.5%

______________________________________________________________________________________

(12) TYPE OF REPORTING PERSON **

______________________________________________________________________________________

** SEE INSTRUCTIONS BEFORE FILLING OUT!

CUSIP No. 883906406 13G Page 3 of 12 Pages

_____________________________________________________________________________________

(1) NAMES OF REPORTING PERSONS

I.R.S. IDENTIFICATION NO.

OF ABOVE PERSONS (ENTITIES ONLY)

Empire GP, L.L.C.

______________________________________________________________________________________

(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **

(a) [ ]

(b) [X]

______________________________________________________________________________________

(3) SEC USE ONLY

______________________________________________________________________________________

(4) CITIZENSHIP OR PLACE OF ORGANIZATION

Delaware

______________________________________________________________________________________

NUMBER OF (5) SOLE VOTING POWER

-0-

SHARES __________________________________________________________________________

BENEFICIALLY (6) SHARED VOTING POWER

1,055,685 Common Stock Shares

1,697,914 As converted Warrants

1,414,840 As converted Series B Preferred

OWNED BY __________________________________________________________________________

EACH (7) SOLE DISPOSITIVE POWER

-0-

REPORTING ________________________________________________________________________

PERSON WITH (8) SHARED DISPOSITIVE POWER

1,055,685 Common Stock Shares

1,697,914 As converted Warrants

1,414,840 As converted Series B Preferred

______________________________________________________________________________________

(9) AGGREGATE AMOUNT BENEFICIALLY OWNED

BY EACH REPORTING PERSON

4,168,439

______________________________________________________________________________________

(10) CHECK BOX IF THE AGGREGATE AMOUNT

IN ROW (9) EXCLUDES CERTAIN SHARES ** [ ]

______________________________________________________________________________________

(11) PERCENT OF CLASS REPRESENTED

BY AMOUNT IN ROW (9)

6.5%

______________________________________________________________________________________

(12) TYPE OF REPORTING PERSON **

______________________________________________________________________________________

CUSIP No. 883906406 13G Page 4 of 12 Pages

______________________________________________________________________________________

(1) NAMES OF REPORTING PERSONS

I.R.S. IDENTIFICATION NO.

OF ABOVE PERSONS (ENTITIES ONLY)

Empire Capital Management, L.L.C.

______________________________________________________________________________________

(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **

(a) [ ]

(b) [X]

______________________________________________________________________________________

(3) SEC USE ONLY

______________________________________________________________________________________

(4) CITIZENSHIP OR PLACE OF ORGANIZATION

Delaware

______________________________________________________________________________________

NUMBER OF (5) SOLE VOTING POWER

-0-

SHARES __________________________________________________________________________

BENEFICIALLY (6) SHARED VOTING POWER

1,947,886 Common Stock Shares

3,316,368 As converted Warrants

2,829,680 As converted Series B Preferred

OWNED BY __________________________________________________________________________

EACH (7) SOLE DISPOSITIVE POWER

-0-

REPORTING ________________________________________________________________________

PERSON WITH (8) SHARED DISPOSITIVE POWER

1,947,886 Common Stock Shares

3,316,368 As converted Warrants

2,829,680 As converted Series B Preferred

______________________________________________________________________________________

(9) AGGREGATE AMOUNT BENEFICIALLY OWNED

BY EACH REPORTING PERSON

8,093,934

______________________________________________________________________________________

(10) CHECK BOX IF THE AGGREGATE AMOUNT

IN ROW (9) EXCLUDES CERTAIN SHARES ** [ ]

______________________________________________________________________________________

(11) PERCENT OF CLASS REPRESENTED

BY AMOUNT IN ROW (9)

12.7%

______________________________________________________________________________________

(12) TYPE OF REPORTING PERSON **

______________________________________________________________________________________

CUSIP No. 883906406 13G Page 5 of 12 Pages

______________________________________________________________________________________

(1) NAMES OF REPORTING PERSONS

I.R.S. IDENTIFICATION NO.

OF ABOVE PERSONS (ENTITIES ONLY)

Scott A. Fine

______________________________________________________________________________________

(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **

(a) [ ]

(b) [X]

______________________________________________________________________________________

(3) SEC USE ONLY

______________________________________________________________________________________

(4) CITIZENSHIP OR PLACE OF ORGANIZATION

United States

______________________________________________________________________________________

NUMBER OF (5) SOLE VOTING POWER

500,000 As converted Warrants

435,660 As converted Series B Preferred

SHARES ____________________________________________________________________________

BENEFICIALLY (6) SHARED VOTING POWER

3,003,571 Common Stock Shares

5,014,282 As converted Warrants

4,244,520 As converted Series B Preferred

OWNED BY ___________________________________________________________________________

EACH (7) SOLE DISPOSITIVE POWER

500,000 As converted Warrants

435,660 As converted Series B Preferred

REPORTING ________________________________________________________________________

PERSON WITH (8) SHARED DISPOSITIVE POWER

3,003,571 Common Stock Shares

5,014,282 As converted Warrants

4,244,520 As converted Series B Preferred

______________________________________________________________________________________

(9) AGGREGATE AMOUNT BENEFICIALLY OWNED

BY EACH REPORTING PERSON

12,262,373

______________________________________________________________________________________

(10) CHECK BOX IF THE AGGREGATE AMOUNT

IN ROW (9) EXCLUDES CERTAIN SHARES ** [ ]

______________________________________________________________________________________

(11) PERCENT OF CLASS REPRESENTED

BY AMOUNT IN ROW (9)

20.7%

______________________________________________________________________________________

(12) TYPE OF REPORTING PERSON **

______________________________________________________________________________________

CUSIP No. 883906406 13G Page 6 of 12 Pages

______________________________________________________________________________________

(1) NAMES OF REPORTING PERSONS

I.R.S. IDENTIFICATION NO.

OF ABOVE PERSONS (ENTITIES ONLY)

Peter J. Richards

______________________________________________________________________________________

(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **

(a) [ ]

(b) [X]

______________________________________________________________________________________

(3) SEC USE ONLY

______________________________________________________________________________________

(4) CITIZENSHIP OR PLACE OF ORGANIZATION

United States

______________________________________________________________________________________

NUMBER OF (5) SOLE VOTING POWER

500,000 As converted Warrants

435,660 As converted Series B Preferred

SHARES ____________________________________________________________________________

BENEFICIALLY (6) SHARED VOTING POWER

3,003,571 Common Stock Shares

5,014,282 As converted Warrants

4,244,520 As converted Series B Preferred

OWNED BY ___________________________________________________________________________

EACH (7) SOLE DISPOSITIVE POWER

500,000 As converted Warrants

435,660 As converted Series B Preferred

REPORTING ________________________________________________________________________

PERSON WITH (8) SHARED DISPOSITIVE POWER

3,003,571 Common Stock Shares

5,014,282 As converted Warrants

4,244,520 As converted Series B Preferred

______________________________________________________________________________________

(9) AGGREGATE AMOUNT BENEFICIALLY OWNED

BY EACH REPORTING PERSON

12,262,373

______________________________________________________________________________________

(10) CHECK BOX IF THE AGGREGATE AMOUNT

IN ROW (9) EXCLUDES CERTAIN SHARES ** [ ]

______________________________________________________________________________________

(11) PERCENT OF CLASS REPRESENTED

BY AMOUNT IN ROW (9)

20.7%

______________________________________________________________________________________

(12) TYPE OF REPORTING PERSON **

______________________________________________________________________________________

CUSIP No. 883906406 13G Page 7 of 12 Pages

Item 1(a). Name of Issuer:

The name of the issuer is THERMOENERGY CORPORATAION (the "Company").

Item 1(b). Address of Issuer's Principal Executive Offices:

The Company's principal executive offices are located 124 West Capitol Avenue, Suite 880, Little Rock, Arkansas 72201.

Item 2(a). Name of Person Filing:

This statement is filed by:

(i)

Empire Capital Partners, L.P., a Delaware limited partnership ("Empire Capital"), with respect to the shares of Common Stock, Preferred Shares and/or Warrants (as defined below) directly owned by it;

(ii)

Empire GP, L.L.C., a Delaware limited liability company ("Empire GP"), with respect to the shares of Common Stock, Preferred Shares and/or Warrants directly owned by Empire Capital;

(iii)

Empire Capital Management, L.L.C., a Delaware limited liability company ("Empire Management") with respect to the shares of Common Stock, Preferred Shares and/or Warrants directly owned by Empire Capital Partners, Ltd. (the "Empire Overseas Fund"), Charter Oak Partners, L.P., Charter Oak Partners II, L.P. and Charter Oak Master Fund, LP (the "Charter Oak Funds") and Empire Capital Partners Enhanced Master Fund, LTD (the “Enhanced Master Fund”);

(iv)

Mr. Scott A. Fine ("Mr. Fine"), individually, and with respect to the shares of Common Stock, Preferred Shares and/or Warrants directly owned by Empire Capital, the Empire Overseas Fund, the Charter Oak Funds and the Enhanced Master Fund; and

(v)

Mr. Peter J. Richards ("Mr. Richards"), individually, and with respect to the shares of Common Stock, Preferred Shares and/or Warrants directly owned by Empire Capital, the Empire Overseas Fund, the Charter Oak Funds and the Enhanced Master Fund.

The foregoing persons are hereinafter sometimes collectively referred to as the "Reporting Persons." Any disclosures herein with respect to persons other than the Reporting Persons are made on information and belief after making inquiry to the appropriate party.

CUSIP No. 883906406 13G Page 8 of 12 Pages

Item 2(c). Citizenship:

Empire Capital is a limited partnership organized under the laws of the State of Delaware. Each of Empire GP and Empire Management is a limited liability company organized under the laws of the State of Delaware. Mr. Fine and Mr. Richards are each a United States citizen.

Item 2(d). Title of Class of Securities:

Common Stock $0.001 par value (the "Common Stock")

Item 2(e). CUSIP Number: 833906406

Item 3. If this statement is filed pursuant to Rules 13d-1(b) or 13d-2(b) or (c), check whether the person filing is a:

(a) [ ] Broker or dealer registered under Section 15 of the Act,

(b) [ ] Bank as defined in Section 3(a)(6) of the Act,

(d) [ ] Investment Company registered under Section 8 of the Investment Company Act of 1940,

(e) [ ] Investment Adviser in accordance with Rule 13d-1 (b)(1)(ii)(E),

(f) [ ] Employee Benefit Plan or Endowment Fund in accordance with 13d-1 (b)(1)(ii)(F),

(g) [ ] Parent Holding Company or control person in accordance with Rule 13d-1 (b)(1)(ii)(G),

(h) [ ] Savings Association as defined in Section 3(b) of the Federal Deposit Insurance Act,

(i) [ ] Church Plan that is excluded from the definition of an investment company under Section 3(c)(14) of the Investment Company Act of 1940,

(j) [ ] Group, in accordance with Rule 13d-1(b)(1)(ii)(J).

If this statement is filed pursuant to 13d-1(c), check this box: [x]

CUSIP No. 883906406 13G Page 9 of 12 Pages

Item 4. Ownership.

The percentages used herein and in the rest of Item 4 are calculated based upon total shares outstanding of 63,870,129 based on: (i) the 53,454,293 total Common Stock shares outstanding as of September 30, 2009 as reported on the Company’s 10-Q filed on November 19, 2009 and (ii) the 10,415,836 additional shares of Common Stock deemed to be outstanding pursuant to Rule 13d-3(d)(1)(i) because such shares may be obtained and beneficially owned by the Reporting Persons upon exercise or conversion (within sixty days) of derivative securities currently owned by the Reporting Persons. Pursuant to Rule 13d03(d)(1)(i) the number of issued and outstanding shares of Common Stock assumes that each other shareholder of the Company does not exercise or convert herein within sixty (60) days.

A. Empire Capital Partners, LP and Empire GP, LLC

(a) Amount beneficially owned:

1,055,685 Common Stock Shares

1,697,914 As converted Warrants

1,414,840 As converted Series B Preferred

(b) Percent of class: 6.5%

(ii) Shared power to vote or direct the vote:

1,055,685 Common Stock Shares

1,697,914 As converted Warrants

1,414,840 As converted Series B Preferred

(iii) Sole power to dispose or direct the disposition: -0-

(iv) Shared power to dispose or direct the disposition: 4,168,439

Empire Capital has the power to dispose of and the power to vote the shares of Common Stock, Preferred Shares and/or Warrants beneficially owned by it, which power may be exercised by its general partner, Empire GP. Empire GP does not directly own any shares of Common Stock, Preferred Shares and/or Warrants. By reason of the provisions of Rule 13d-3 of the Securities Exchange Act of 1934 (the "Act"), Empire GP may be deemed to own beneficially the shares owned by Empire Capital.

B. Empire Management

(a) Amount beneficially owned:

1,947,886 Common Stock Shares

3,316,368 As converted Warrants

2,829,680 As converted Series B Preferred

(b) Percent of class: 12.7%

(ii) Shared power to vote or direct the vote:

1,947,886 Common Stock Shares

3,316,368 As converted Warrants

2,829,680 As converted Series B Preferred

(iii) Sole power to dispose or direct the disposition: -0-

(iv) Shared power to dispose or direct the disposition: 8,093,934

The Empire Overseas Fund, the Enhanced Master Fund and the Charter Oak Funds each have the power to dispose of and the power to vote the shares of Common Stock, Preferred Shares and/or Warrants beneficially owned by them, which power may be exercised by their investment manager, Empire Management. Empire Management does not directly own any shares of Common Stock, Preferred Shares and/or Warrants. By reason of the provisions of Rule 13d-3 of the Securities Exchange Act of 1934 (the "Act"), Empire Management may be deemed to own beneficially the shares owned by the Empire Overseas Fund, the Enhanced Master Fund and the Charter Oak Funds.

CUSIP No. 883906406 13G Page 10 of 12 Pages

C. Scott A. Fine

(a) Amount beneficially owned:

3,003,571 Common Stock Shares

5,514,282 As converted Warrants

4,680,180 As converted Series B Preferred

(b) Percent of class:

20.7%

500,000 As converted Warrants

435,660 As converted Series B Preferred

(ii) Shared power to vote or direct the vote:

3,003,571 Common Stock Shares

5,514,282 As converted Warrants

4,680,180 As converted Series B Preferred

(iii) Sole power to dispose or direct the disposition:

500,000 As converted Warrants

435,660 As converted Series B Preferred

(iv) Shared power to dispose or direct the disposition:

13,198,033

Mr. Fine and Mr. Richards, as Members, direct the operations of Empire GP and Empire Management. By reason of the provisions of Rule 13d-3 of the Act, each may be deemed to beneficially own the shares beneficially owned by Empire Capital, the Empire Overseas Fund, the Enhanced Master Fund and the Charter Oak Funds. Mr. Fine and Mr. Richards, individually, retain the power to dispose of the proceeds from the sale of the Common Stock, Preferred Shares and/or Warrants with respect to his own personal interest in the Company.

C. Peter J. Richards

(a) Amount beneficially owned:

3,003,571 Common Stock Shares

5,514,282 As converted Warrants

4,680,180 As converted Series B Preferred

(b) Percent of class:

20.7%

500,000 As converted Warrants

435,660 As converted Series B Preferred

(ii) Shared power to vote or direct the vote:

3,003,571 Common Stock Shares

5,514,282 As converted Warrants

4,680,180 As converted Series B Preferred

(iii) Sole power to dispose or direct the disposition:

500,000 As converted Warrants

435,660 As converted Series B Preferred

(iv) Shared power to dispose or direct the disposition:

13,198,033

Item 5. Ownership of Five Percent or Less of a Class.

Not applicable.

CUSIP No. 883906406 13G Page 11 of 12 Pages

Item 6. Ownership of More than Five Percent on Behalf of Another Person.

On or about September 28, 2009, Empire Capital, the Empire Overseas Fund and the Enhanced Fund entered into an 8% Secured Convertible Promissory Note in the amount of $133,333, respectively (collectively, the “New Notes”). In connection with the issuance of the 8% Secured Convertible Promissory Notes, the Original Notes (dated April 24, 2009) were amended and restated to the terms of the new 8% Secured Convertible Promissory Notes. The Original Note participants were: Empire Capital, Empire Overseas Fund, Enhanced Fund, Scott Fine (individually) and Peter Richards (individually), each in the amount of $100,000 (collectively the “Original Notes”). The Notes bear interest at the rate of 8% per annum and become due and payable on the earlier to occur of (i) the closing of the Second Tranche of the Series B Convertible Preferred Stock financing contemplated by that certain Term Sheet dated September 16, 2009 and executed by the Investors (the “Financing”) or (ii) December 31, 2010. Upon the closing of the Second Tranche of the Financing, the entire outstanding principal amount of the Notes, plus any accrued and unpaid interest thereon, shall convert automatically into the securities to be issued in the Financing (the “Financing Securities”) at the price per share at which such Financing Securities will be issued in the Financing.

In connection with the issuance of the New Notes, on September 28, 2009 Empire Capital, the Empire Overseas Fund and the Enhanced Fund each received Common Stock Purchase Warrants (the “Warrants”) entitling each entity to purchase, at a purchase price of $0.50 per share (subject to adjustment for certain extraordinary corporate events as set forth in the Warrant, the “Exercise Price”), 533,332 shares of Common Stock. The Warrants may be exercised at any time on or before September 30, 2014, subject to the Company’s right to accelerate the expiration date in the event the closing price for the Common Stock exceeds $0.78 per share (200% of the closing price on September 28, 2009) for a period of 30 consecutive trading days. The Warrants contain other conventional terms, including provisions for adjustment in the Exercise Price and/or the securities issuable upon exercise in the event of certain specified extraordinary corporate events, such as stock splits, combinations and stock dividends.

In connection with the amendment of the Original Notes, on September 28, 2009 the Company amended the following outstanding Common Stock Purchase Warrants that had been issued in connection with the issuance of such Original Notes, in order to reduce the exercise price thereof to $0.50 per share: Empire Capital; the Empire Overseas Fund, the Enhanced Fund, Scott Fine and Peter Richards (500,000 shares respectively). The reduction in exercise price did not affect the number of shares of the Common Stock issuable upon exercise of such outstanding warrants.

On or about November 19, 2009, Empire Capital, the Empire Overseas Fund and the Enhanced Fund each entered into a Securities Purchase Agreement (the “SPA”) whereby each acquired, respectively, 141,484 Series B Convertible Preferred shares of the Company in exchange for the cancellation of the principal and accrued and unpaid interest on their Original Notes and New Note (as defined above). In addition, Empire Capital, the Empire Overseas Fund and the Enhanced Fund each subscribed an additional $100,000 cash to the Second Tranche of the Financing and in return, each received Warrants currently exercisable into 400,000 Common Stock shares of the Company at an exercise price of $0.50 per share. Mr. Fine and Mr. Richards also entered into the SPA and in exchange for the cancellation of the principal and accrued and unpaid interest on each individual's Original Note, Mr. Fine and Mr. Richards each received 43,566 Series B Convertible Preferred shares of the Company. Neither Mr. Fine nor Mr. Richards subscribed additional cash in connection with Second Tranche of the Financing.

Each Series B Convertible Preferred share of the Company has a stated value of $2.40 and is convertible, at any time at the option of the Reporting Persons, into ten (10) shares of the Company's Common Stock, par value $0.001 per share, resulting in an effective purchase price of $0.24 per share of Common Stock.

The Warrants may be exercised, at an exericse price of $0.50, at any time on or before November 30, 2014, subject to the Company's right to accelerate the expiration date in the event the closing price for the Common Stock exceeds $0.60 per share (200% of the closing price on November 19, 2009) for a period of 30 consecutive trading days. The Warrants contain other conventional terms, including provisions for adjustment in the Exercise Price and/or the securities issuable upon exercise in the event of certain specified extraordinary corporate events, such as stock splits, combinations, and stock dividends.

The SPA provides that Empire Capital, the Empire Overseas Fund and the Enhanced Fund will purchase additional shares of the Company's Series B Convertible Preferred Stock and additional Warrants at two subsequent closings upon the satisfaction of certain conditions set forth in the SPA. The SPA also grants to all Reporting Persons a right of first refusal to participate in any subsequent financing of the Company prior to November 19, 2011 (subject to certain conventional exceptions) in order to permit the Reporting Persons to maintain their fully-diluted ownership interest in the Company's Common Stock. The form of the SPA and Warrant can be viewed as Exhibits to the Company's Form 8-K filed with the Securities and Exchange Commission on November 24, 2009.

In connection with the foregoing, Empire Capital has the power to dispose of and the power to vote the shares of Common Stock, Preferred Shares and/or Warrants beneficially owned by it, which power may be exercised by its general partner, Empire GP. By reason of the provisions of Rule 13d-3 of the Securities Exchange Act of 1934 (the “Act”), Empire GP may be deemed to own beneficially the shares owned by Empire Capital.

The Empire Overseas Fund, the Enhanced Fund and the Charter Oak Funds have the power to dispose of and the power to vote the shares of Common Stock, Preferred Shares and/or Warrants beneficially owned by them, which power may be exercised by their investment manager, Empire Management. By reason of the provisions of Rule 13d-3 of the Act, Empire Management may be deemed to own beneficially the shares owned by the Empire Overseas Fund, the Enhanced Fund and the Charter Oak Funds.

Mr. Fine and Mr. Richards, as Members, direct the operations of Empire GP and Empire Management. Mr. Fine and Mr. Richards each have an interest in the Issuer by virtue of converted Warrants. In addition, by reason of the provisions of Rule 13d-3 of the Act, each may be deemed to beneficially own the Common Stock, Preferred Shares and/or Warrants beneficially owned by Empire Capital, the Empire Overseas Fund, the Enhanced Fund and the Charter Oak Funds. Each of Mr. Fine and Mr. Richards disclaim beneficial ownership of the shares of Common Stock, Preferred Shares and/or Warrants reflected in this filing, except to the extent of his individual sole ownership and with respect to any respective pecuniary interest in such securities pursuant to Section 13 of the Act.

Item 7. Identification and Classification of the Subsidiary Which Acquired the Security Being Reported on by the Parent Holding Company.