Case LSS Doc 348 Filed 04/18/16 Page 1 of 12. IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE Chapter 11

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1 Case LSS Doc 348 Filed 04/18/16 Page 1 of 12 In re: IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE Chapter 11 KaloBios Pharmaceuticals, Inc., Debtor. Case No (LSS) Hearing Date: TBD Objection Deadline: TBD Re: D.I. 334, 335, 338, 340 MOTION OF BLACK HORSE CAPITAL MASTER FUND LTD. FOR PROTECTIVE ORDER REGARDING SUBPOENAS SERVED BY GREGORY REA, RTAT LLC, EDWARD H. PAINTER, NANCY RETZLAFF, ARMISTICE CAPITAL MASTER FUND, LTD., ANDREW PIZZO, AND SABINE GRITTI IN CONNECTION WITH DEBTOR'S MOTION FOR FINAL ORDER APPROVING POSTPETITION FINANCING [D.I Black Horse Capital Master Fund Ltd. ("Black Horse"), on its own behalf and on behalf of Black Horse Capital LP, Cheval Holdings, Ltd. and Nomis Bay LTD (collectively, with Black Horse, the "Black Horse Lenders"), hereby moves (this "Motion"), pursuant to Section 107(b) of the United States Bankruptcy Code, 11 U.S.C. 101 et seq. (the "Bankruptcy Code"), Fed R. Civ. P. 26(c) and 37(a)(5), Rules 7026, 7037, and 9018 of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"), and Rule of the Local Rules of the United States Bankruptcy Court for the District of Delaware (the "Local Rules"), for entry of a protective order limiting and conditioning the Requested Discovery (as defined below) in the manner set forth below. In support, Black Horse states: Jurisdiction 1. The Court has jurisdiction over this Motion under 28 U.S.C. 157 and 1334 and the Amended Standing Order of Reference entered February 29, 2012, by the United States District Court for the District of Delaware. This is a core proceeding under 28 U.S.C. 157(b). Venue is proper under 28 U.S.C and ,1 04/18/2016

2 Case LSS Doc 348 Filed 04/18/16 Page 2 of The bases for the relief requested herein are Bankruptcy Code 107(b) and Fed. R. Civ. P. 26(c) (made applicable to this matter by Bankruptcy Rules 7026 and 9014), Fed. R. Civ. P. 37(a)(5) (made applicable to this matter by Bankruptcy Rules 7037 and 9014), Bankruptcy Rule 9018, and Local Rule Background 3. On December 29, 2015 (the "Petition Date"), KaloBios Pharmaceuticals, Inc. ("Debtor"), filed a voluntary petition for relief with this Court under chapter 11 of the Bankruptcy Code. Debtor continues to operate its business as debtor in possession pursuant to Bankruptcy Code 1107(a) and On March 23, 2016, this Court entered an order (D.I. 293, the "Bid Procedures Order"), authorizing Debtor to enter into a letter of intent and term sheet, each dated March 18, 2016 (the "Stalking Horse LOI"), and approving certain bidding and marketing procedures. The transactions contemplated by the Stalking Horse LOT, if fully consummated, would result in the Black Horse Lenders making an aggregate investment in the Debtor's business of $14,000,000, consisting of $3,000,000 in postpetition, debtor-in-possession financing (the "DIP Financing") and $11,000,000 in exit financing. 5. The Bid Procedures Order establishes a framework for the solicitation of competing offers for DIP Financing and equity investments in the reorganized Debtor, and the motion to approve the DIP Financing describes postpetition marketing that resulted, according to Debtor, in approximately 100 expressions of interest from financial and/or strategic investors, all of whom will have an opportunity to propose transactions to compete with the offer of the Black Horse Lenders in an open and transparent auction process /18/2016 2

3 Case LSS Doc 348 Filed 04/18/16 Page 3 of In accordance with its obligations under the Stalking Horse LOT, by April 8, 2016, Debtor filed its motion for approval of the DIP Financing (D.I. 324, the "Financing Motion") and a proposed plan of reorganization (D.I. 318, the "Plan") and related disclosure statement (D.I. 319, the "Disclosure Statement"). 7. On April 14, 2016, the PIPE Parties 1 served subpoenas upon Black Horse, seeking voluminous document production and demanding the deposition of a Black Horse representative (the "Requested Discovery"; copies of the Requested Discovery are attached hereto as Exhibit A.) At the same time, the PIPE Parties served upon Debtor identical document requests and a Fed. R. Civ. P. 30(b)(6) notice of deposition. 8. However, in their haste to burden Debtor and Black Horse with overbroad and untargeted discovery, the PIPE Parties invoked the discovery provisions of Part VII of the Bankruptcy Rules without having instigated a contested matter or adversary proceeding regarding the DIP Financing and, indeed, without having asserted any objection to the Financing Motion. 9. On April 15, 2016, in order to retroactively justify the Requested Discovery, the PIPE Parties filed a "preliminary" objection to the Financing Motion (D.I. 337, the "Objection"). The Objection raises only two issues, both on matters exclusively within the knowledge of Debtor, rather than Black Horse: (a) the extent of the marketing conducted to obtain postpetition financing and (b) the Debtor's actual need for the proposed DIP Financing. 2 As used herein, the term "PIPE Parties" refers, collectively, to Gregory Rea, RTAT L.L.C., Edward H. Painter, Nancy Retzlaff, Armistice Capital Master Fund, Ltd., Andrew Pizzo, and Sabine Gritti, who are also the plaintiffs in Adversary Proceeding No (LSS) (the "PIPE Litigation"), currently pending in this chapter 11 case. The questionable good faith of the PIPE Parties in raising the Objection and serving the Requested Discovery may be measured by the fact that, in the Objection, they argue that Debtor has not shown a need for financing, because its January 2016 operating report reflects a cash balance of approximately $8 million available for operating and reorganization expenses (Objection at 3), while, in the ongoing PIPE Litigation, they seek disgorgement from the Debtor of that same $8 million, as damages /2016 3

4 Case LSS Doc 348 Filed 04/18/16 Page 4 of Following the filing of the Objection on April 15, 2016, the PIPE Parties reserved the Requested Discovery. Relief Requested 11. The Requested Discovery is (a) unduly burdensome, overbroad, and duplicative to the extent it seeks documents and testimony from Black Horse that can be produced by Debtor in support of Debtor's Financing Motion; (b) seeks privileged communications; (c) seeks confidential commercial information regarding the Black Horse Lenders' internal evaluation of the benefits and risks of the investment they propose in the reorganized Debtor, and (d) is not reasonably likely to lead to admissible evidence on the issues raised by the Financing Motion or the Objection. 12. Black Horse therefore seeks entry of a protective order, pursuant to Fed. R. Civ. P. 26(c)(1)(A), (B), (D),and (G), (a) restricting the PIPE Parties from obtaining discovery from Black Horse that is duplicative of the discovery requested from the Debtor; (b) limiting the Requested Discovery only to documents and testimony (i) relevant to matters raised in the Objection and (ii) not obtained by the PIPE Parties from Debtor; (c) providing for the deposition of the Black Horse representative on April 27, 2016; (d) excusing Black Horse from disclosing any information regarding its internal evaluation of the transactions contemplated by the Stalking Horse LOI, including, but not limited to, any information Black Horse developed regarding the value it places on shares of the reorganized Debtor, the enterprise value of the reorganized Debtor, and the benefits and risks (whether economic or non-economic) of engaging in the transactions under the Stalking Horse LOI, and (e) excusing the requirement of creating a privilege log. Specifically: /18/2016 4

5 Case LSS Doc 348 Filed 04/18/16 Page 5 of 12 (a) The Requested Discovery is unduly burdensome, overbroad, and duplicative and is more appropriately sought from Debtor: The Objection raises two issues: (i) the necessity of the DIP Financing to Debtor's operations and reorganization, and (ii) the extent to which Debtor marketed the opportunity to provide the DIP Financing. Information regarding each of those issues is entirely within the knowledge of Debtor. The PIPE Parties understand that fact, as they have sought from Debtor the identical discovery that they have simultaneously sought from Black Horse. First, it is unreasonable to think that Black Horse an independent party unrelated to Debtor would have any information that Debtor itself does not have regarding the necessity of the DIP Financing to Debtor, or the marketing efforts undertaken by Debtor and its financial advisor. Further, documents responsive to the broad Requested Discovery fall into the following categories: (I) documents and s exchanged between Black Horse and the Debtor; (II) documents prepared by counsel to Black Horse and exchanged, along with e- mails, with its client; (III) documents exchanged between Black Horse and its coinvestor, Nomis Bay LTD, and (IV) documents regarding Black Horse's valuation of Debtor's assets. To the extent the Requested Discovery involves s and other documents exchanged between Black Horse and the Debtor and Debtor's counsel, requiring both Debtor and Black Horse to produce those documents would impose an undue financial burden on the Debtor's estate, as the estate is required to pay not only the fees of Debtor's own counsel but also of the Black Horse Lenders. Further, it would be duplicative and wasteful for Black Horse to be required to provide the identical

6 Case LSS Doc 348 Filed 04/18/16 Page 6 of 12 documents as the Debtor may provide. See Fed. R. Civ. P. 26(b)(2)(C) (authorizing court to limit discovery to the extent it is "unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive"). Black Horse therefore asks that the Court enter an order that, at minimum, precludes the PIPE Parties from pursuing discovery against Black Horse that is duplicative of the discovery requested from the Debtor as described above, and which is available for production by the Debtor (subject to any objections the Debtor may have). The timing of the Requested Discovery also imposes an undue burden upon Black Horse. The PIPE Parties have known the terms of the proposed DIP Financing since the filing of the Debtor's motion to approve the Stalking Horse LOT on March 10, 2016 [D.I. 238], which was followed by the filing of an amended Stalking Horse LOI on March 18, 2016 [D.I. 273]. The Stalking Horse LOT required the Debtor to file the Financing Motion by April 8 for a hearing by April 28, On March 23, 2016, this Court approved the Stalking Horse LOI [D.I. 293]. Nonetheless, the PIPE Parties waited until Friday, April 15, to file the Objection and serve the Requested Discovery, asking Black Horse to produce documents just three business days later, on April 20, and produce its witness for deposition on April 22, Below, Black Horse proposes more reasonable timing for its production of documents and the deposition of its representative, and asks that the Court's order incorporate those proposals. (b) The Requested Discovery is premature: If Debtor receives at least one Qualified Bid (as defined in the Bid Procedures Order), Debtor will conduct an auction on April 26, 2016 further testing the market for the DIP Financing and the Debtor's

7 Case LSS Doc 348 Filed 04/18/16 Page 7 of 12 equity. There is no guarantee that the Black Horse Lenders will be the successful purchasers of the equity of the reorganized Debtor or that they will be approved as the provider of the DIP Financing. Taking discovery from Black Horse, before the Black Horse Lenders are determined to be the successful purchasers, imposes an unreasonable burden upon Black Horse. (c) The Requested Discovery largely seeks information from Black Horse that is privileged: To the extent Black Horse has any documents responsive to the Requested Discovery that would not also be within the possession and control of Debtor, those documents are (i) communications, primarily electronic, between Black Horse and its counsel, sent for the purpose of rendering legal advice to Black Horse regarding the terms of the Stalking Horse LOI, the terms of the DIP Financing, the terms of the Credit Agreement and related documents, and the terms of the related transactions described in the Stalking Horse LOI, including the exit financing; (ii) internal drafts of transaction documents, some marked to reflect the mental impressions, conclusions, and/or opinions of Black Horse's counsel or business representatives, and which are themselves reflective of privileged conversations with Black Horse, and (iii) confidential commercial information regarding the Black Horse Lenders' internal evaluation of the benefits and risks of the investment they propose in the reorganized Debtor (this item (iii) is further addressed below); and (iv) communications between Black Horse and Nomis Bay LTD. Black Horse's production in compliance with the Requested Discovery to the extent Black Horse were producing material not produced by Debtor would therefore consist of little more than a lengthy privilege log containing nothing more informative than dates and recipients of hundreds of s and dates of internal drafts of transaction

8 Case LSS Doc 348 Filed 04/18/16 Page 8 of 12 documents, all compiled at significant expense to Black Horse and with no counterbalancing benefit to the PIPE Parties or relevance to the issues to be addressed at the hearing on the Financing Motion. Therefore, to the extent that Black Horse must comply with the Requested Discovery, Black Horse asks that it be excused from having to create a privilege log. (d) The Requested Discovery seeks confidential business information: Among other things, the Requested Discovery seeks "[a]ll documents and/or correspondence concerning any valuation of the Debtor's assets"; and deposition testimony regarding "[a]ny valuations of the Debtor." These requests necessarily seek information regarding Black Horse's business model, its investment strategies and tactics for identifying and evaluating investment opportunities, and internal discussions among Black Horse personnel regarding the benefits and risks of the transactions described in the Stalking Horse LOT. None of these matters is relevant to the PIPE Parties Objection regarding Debtor's need for DIP Financing or Debtor's efforts in marketing financing and equity transactions. Nor are these matters relevant to this Court's consideration of the pending Financing Motion. Disclosure of this proprietary commercial information would, however, severely prejudice Black Horse in the competitive and technologicallysophisticated industries and market sectors in which it operates. The Bankruptcy Code and Bankruptcy Rules authorize this Court to limit the disclosure of certain confidential information to protect entities from potential harm. Bankruptcy Code Section 107(b) provides that "[o]n request of a party in interest, the bankruptcy court shall (1) protect an entity with respect to a trade secret or confidential research, development, or commercial information...." 11 U.S.C. 107(b)(1). Section /18/2016 8

9 Case LSS Doc 348 Filed 04/18/16 Page 9 of is complemented by Fed. R. Civ. P. 26(c)(1)(G) (authorizing a court to require that a trade secret or other confidential research, development, or commercial information not be revealed...") and Bankruptcy Rule 9018, which similarly allows for protective orders to "protect the estate or any entity in respect of a trade secret or other confidential research, development, or commercial information..." The Court has broad authority to issue a protective order under Bankruptcy Rule See In re Global Crossing Ltd., 295 B.R. 720, 724 (Bankr. S.D.N.Y. 2003) ("When the requirements of Rule 9018 are satisfied, the authority to issue the resulting order is broad 'any order which justice requires.' The Court notes that the authority goes not just to the protection of confidential documents, but to other confidentiality restrictions that are warranted in the interests of justice."). The "[c]ommercial information [protected by Section 107(b)(1)] has been defined as information which would cause 'an unfair advantage to competitors by providing them information as to the commercial operations of the [party at risk].' Video Software Dealers Ass 'n v. Orion Pictures Corp. (In re Orion Pictures Corp.), 21 F.3d 24, 28 (2d Cir. 1994) (quoting Ad Hoc Protective Comm. for 10 1/2% Debenture Holders v. Intel Corp. (In re Intel Corp.), 17 B.R. 942, 944 (B.A.P. 9th Cir. 1982)). "Commercial information" is not required to rise to the level of a trade secret in order to be entitled to protection under Section 107(b). See Orion Pictures, 21 F.3d at 28. Once a court finds that the information falls within the scope of Bankruptcy Code Section 107(b), the court is required to protect the interested entity from disclosure and "has no discretion to deny the application." Id. at /18/2016 9

10 Case LSS Doc 348 Filed 04/18/16 Page 10 of 12 Black Horse therefore asks the Court to protect it against any attempt by the PIPE Parties to inquire into the confidential and proprietary business matters described above. (e) Communications between Black Horse and Nom is Bay LTD are not relevant: The breadth of the discovery requests (i.e. all documents and correspondence concerning the DIP Credit Agreement) would include documents and s reflecting Black Horse's negotiations and discussions with its co-lender, Nomis Bay LTD. Such communications are completely irrelevant to the issues to be addressed at the hearing on the Financing Motion and Black Horse should be excused from producing same. 13. If the Court does not see fit to protect Black Horse from the Requested Discovery prior to the determination that Black Horse is the winning bidder for the reorganized Debtor's equity on the terms of the Stalking Horse LOT, Black Horse asks that the Court's order require that Black Horse need produce only non-privileged documents, including electronically-stored information, only to the extent the same have not been obtained by the PIPE Parties from the Debtor, and only in the form in which any such documents are maintained by Black Horse, and that Black Horse need not re-format, re-compile, or otherwise alter the manner in which such documents are maintained in the ordinary course of Black Horse's business. 14. The person designated to testify for Black Horse at a deposition is Dale Chappell, who currently resides in Switzerland. Black Horse will make Mr. Chappell available for deposition in Delaware on April 27, In summary, Black Horse agrees to produce, on or before Monday, April 25, 2016, all non-privileged s and other documents relevant to the matters raised in the PIPE Parties' Objection that does not constitute confidential or proprietary business information and that is not material already in possession of the Debtor and subject to the discovery requests /18/

11 Case LSS Doc 348 Filed 04/18/16 Page 11 of 12 served on the Debtor. Black Horse will also make its representative, Dale Chappell, available for deposition as described above. Black Horse asks that the protective order embody these terms, as more fully described above. 16. Attorneys' Fees and Other Expenses: Black Horse also seeks its reasonable attorneys' fees and expenses in bringing this Motion. Fed. R. Civ. P. 26(c)(3) provides that Fed. R. Civ. P. 37(a)(5) (made applicable to this matter by Bankruptcy Rules 7037 and 9014) applies to motions for a protective order. Fed. R. Civ. P. 37(a)(5) provides that the party whose conduct necessitated the motion or its counsel or both must pay the movant's reasonable expenses, including attorney's fees. None of the exceptions to an award of fees and other expenses listed in Fed. R. Civ. P. 37(a)(5)(i), (ii) or (iii) applies; in particular, the PIPE Parties made no effort to obtain the Requested Discovery from Black Horse before serving the subpoenas upon Black Horse (which were also served before any contested matter regarding the Financing Motion even existed), nor, for the reasons set forth above, was the Requested Discovery substantially justified as to Black Horse. 17. Black Horse therefore requests leave to submit to the PIPE Parties and the Court a statement of its attorneys' fees and expenses in connection with preparing, filing, and prosecuting this Motion and asks the Court to retain jurisdiction to adjudicate any dispute over the requested fees and expenses

12 Case LSS Doc 348 Filed 04/18/16 Page 12 of 12 WHEREFORE, Black Horse Capital Master Fund Ltd. respectfully requests that this Court enter a protective order limiting and/or conditioning the Requested Discovery as described herein and granting Black Horse such other relief as the Court deems appropriate. Dated: April 18, 2016 SAUL EWING LLP ark Minuti (DE Bar No. 2659) 222 Delaware Avenue, Suite 1200 P.O. Box 1266 Wilmington, DE Telephone: (302) Facsimile: (302) and- Faye B. Feinstein, Esq. Lauren Beslow, Esq. QUARLES & BRADY LLP 300 North LaSalle Street, Suite 4000 Chicago, IL Telephone: (312) Facsimile: (312) Counsel to Black Horse Capital Master Fund Ltd /18/

13 Case LSS Doc Filed 04/18/16 Page 1 of 1 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: ) Chapter 11 KaloBios Pharmaceuticals, Inc., ) Case No (LSS) Debtor. ) Re: D.I. 334, 335, 338, 340 CERTIFICATION UNDER DEL. BANKR. L.R (b) I, Mark Minuti, hereby certify that counsel for Black Horse Capital Master Fund Ltd. contacted counsel for the PIPE Parties by electronic mail on April 17, 2016, seeking to confer and resolve the issues raised in the foregoing Motion. Counsel for the PIPE Parties responded by phone on April 18, 2016, at which time counsel for Black Horse addressed Black Horse's concerns and sought an agreement from counsel for the PIPE Parties on the matters raised herein. As of the filing of the Motion, agreement has not been reached. Accordingly, this matter is submitted to the Court for determination. Mark Minuti /18/2016

14 Case LSS Doc Filed 04/18/16 Page 1 of 23 Exhibit A

15 B257 (Form 257 Subpoena to Produce Documents, Information, or Objects or To Permit Inspection in a Bankruptcy Case or Adversary Proceeding) (12/13) FOR THE In re KaloBios Pharmaceuticals, Inc. Debtor UNITED STATES BANKRUPTCY COURT (Complete if issuedin an adversary proceeding) Plaintiff District of DELAWARE Case No (LSS) Chapter 11 V. Adv. Proc. No. Defendant SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES IN A BANKRUPTCY CASE (OR ADVERSARY PROCEEDING) To: Black Horse Capital Master Fund Ltd., c/o Opus Equum, Inc., P.O. Box 788, Dolores, CO (Name of person to whom the subpoena is directed) W1 Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the material: Case LSS Doc Filed 04/18/16 Page 2 of 23 See Attached Exhibit A PLACE Womble Carlyle Sandridge & Rice, LLP, 222 Delaware Ave., Suite 1501, 'Wilmington, DE DATE AND TIME April 20, 2016 at 12:00 noon (Eastern) Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. PLACE DATE AND TIME The following provisions of Fed. R. Civ. P. 45, made applicable in bankruptcy cases by Fed. R. Bankir. P. 9016, are attached Rule 45(c), relating to the place of compliance; Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and 45(g), relating to your duty to respond to this subpoena and the potential consequences of not doing so. Date: April 15, 2016 CLERK OF COURT Signature of Clerk or Deputy Clerk OR /s/ Matthew P. Ward Attorney's signature The name, address, address, and telephone number of the attorney representing (name of party) Gregory Rea, et al., who issues or requests this subpoena, are: Matthew P. Ward, Esq., 222 Delaware Ave., Suite 1501, Wilmington, DE 19801; Notice to the person who issues or requests this subpoena If this subpoena commands the production of documents, electronically stored information, or tangible things, or the inspection of premises before trial, a notice and a copy of this subpoena must be served on each party before it is served on the person to whom it is directed. Fed. R. Civ, P. 45(a)(4).

16 Case LSS Doc Filed 04/18/16 Page 3 of 23 B257 (Form 257 Subpoena to Produce Documents, Information, or Objects or To Permit Inspection in a Bankruptcy Case or Adversary Proceeding) (Page 2) PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 45.) I received this subpoena for (name of individual and title, if any): on (date) n I served the subpoena by delivering a copy to the named person as follows: on (date) ; or I returned the subpoena unexecuted because: Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also tendered to the witness the fees for one day's attendance, and the mileage allowed by law, in the amount of S My fees are S for travel and S for services, for a total of S Date: I declare under penalty of perjury that this information is true and correct. Server's signature Printed name and title Server's address Additional information concerning attempted service, etc.:

17 Case LSS Doc Filed 04/18/16 Page 4 of 23 B257 (Form 257 Subpoena to Produce Documents, Information, or Objects or To Permit Inspection in a Bankruptcy Case or Adversary Proceeding) (Page 3) Federal Rule of Civil Procedure 45(c), (d), (e), and (g) (Effective 12/1/13) (made applicable in bankruptcy cases by Rule 9016, Federal Rules of Bankruptcy Procedure) (c) Place of compliance. (1) For a Trial, Hearing, or Deposition. A subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or (B) within the state where the person resides, is employed, or regularly transacts business in person, if the person (i) is a party or a party's officer; or (ii) is commanded to attend a trial and would not incur substantial expense. (2) For Other Discovery. A subpoena may command: (A) production of documents, or electronically stored information, or things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person; and (B) inspection of premises, at the premises to be inspected. (d) Protecting a Person Subject to a Subpoena; Enforcement. (1) Avoiding linchie Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction which may include lost earnings and reasonable attorney's fees on a party or attorney who fails to comply. (2) Command to Produce Alaterials or Permit Inspection. (A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial. (B.) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply: (i) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance. (3) Quashing or Ntodifying a Subpoena, (A) When Required. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; or (ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party. (C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(d)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party: (i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated. (e) Duties in Responding to a Subpoena. (1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Wormation Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (2) Claiming Privilege or Protection. (A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: (i) expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trialpreparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information under seal to the court for the district where compliance is required for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved. (g) Contempt. The court for the district where compliance is required and also, after a motion is transferred, the issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it. For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013)

18 Case LSS Doc Filed 04/18/16 Page 5 of 23 EXHIBIT A DEFINITIONS A. The terms "all" and "any" shall include any and all. B. The terms "and" as well as "or" shall be construed conjunctively or disjunctively, the singular shall be deemed to include the plural and vice-versa, and the present tense shall be deemed to include the past tense and vice-versa, as necessary to bring within the scope of these requests all documents and information that might otherwise be construed to be outside their scope. C. The term "Bankruptcy Case" shall mean the above-captioned chapter 11 bankruptcy case of the Debtor, case number (LSS), currently pending in the Bankruptcy Court. D. The term "Bankruptcy Code" shall mean 11 U.S.C , as amended and applicable to the above-captioned chapter 11 case. E. The term "Bankruptcy Court" shall mean the United States Bankruptcy Court for the District of Delaware. F. The term "Bankruptcy Rules" shall mean the Federal Rules of Bankruptcy Procedure. G. The term "communication" shall include (without limitation) any written, electronic, verbal, and non-verbal exchanges between any persons or entities, whether transmitted in meetings or by telephone (including cellular phone), telegram, facsimile, cable, tape records, computer, or otherwise, and includes (without limitation) verbal conversations, telephone calls, instant messages, letters, memoranda, reports, telegrams, facsimiles, s,

19 Case LSS Doc Filed 04/18/16 Page 6 of 23 exhibits, drawings, and any other documents (as defined herein) that concern, conform, constitute, or relate to the communications. H. The term "concerning" shall mean relating to, referring to, with respect to, relevant to, pertaining to, regarding, referencing, concerning, dealing with, in connection with, describing, defining, containing, embodying, reflecting, identifying, stating, mentioning, indicating, establishing, evidencing, or constituting.- I. The term "copy" shall mean a photocopy, or any other form of true and accurate duplication of a document. J. The term "correspondence" shall mean any document that either constitutes a communication between two or more entities, persons, or things, or that records, memorializes, reflects, or otherwise summarizes the substance of such a communication, whether made directly or otherwise. K. The terms "Debtor" shall mean KaloBios Pharmaceuticals, Inc., together with its representatives, and its predecessors or successors in interest. L. The term "describe" or "description" shall mean state or a statement of every material fact and circumstance specifically and completely. M. The term "DIP Agent" shall mean Black Horse Capital Master Fund Ltd., as administrative agent. N. The term "DIP Credit Agreement" shall mean the Debtor in Possession Credit and Security Agreement, between the Debtor, as borrower, and the DIP Agent and DIP Lender. 0. The term "DIP Credit Parties" shall mean, collectively, the DIP Agent and the DIP Lenders. 2

20 Case LSS Doc Filed 04/18/16 Page 7 of 23 P. The term "DIP Financing" shall mean the postpetition financing requested by the Debtor to be approved through the DIP Motion consisting of a superpriority, single draw secured term loan facility in an aggregate principal amount of $3,000,000. Q. The term "DIP Financing Documents" shall mean the DIP Credit Agreement along with all promissory notes and ancillary documents between the Debtor and the DIP Credit Parties. R. The term "DIP Lenders" shall mean, collectively, Black Horse Capital Master Fund Ltd., Black Horse Capital LP, Cheval Holdings, Ltd., and Nomis Bay LTD. S. The term "DIP Motion" shall mean the Debtor's Motion for Final Order (I) Authorizing Debtor to Incur Postpetition Debt on a Superpriority Basis to DIP Credit Parties Pursuant to 11 U.S.C. 364 and 507(b); (II) Granting Liens and Security Interests to DIP Agent; (III) Granting DIP Credit Parties Relief from the Automatic Stay Pursuant to 11 U.S.C. 362; and (IV) Granting Other Related Relief [Docket No. 324]. T. The term "document" shall have the full meaning ascribed to that term under Federal Rule 34, made applicable by Bankruptcy Rule 7034, and shall include (without limitation) any and all drafts, communications, correspondences, memoranda, records, reports, books, reports, and/or summaries of personal conversations or interviews, diaries, graphs, charts, diagrams, tables, photographs, recordings, tapes, microfilms, minutes, reports, and/or summaries of meetings or conferences, press releases, stenographic, handwritten, or any other notes, work papers, checks, front and back, check vouchers, check stubs or receipts, tape data sheets, or data processing cards or discs or any other written, recorded, transcribed, punched, taped, filmed, or graphic matter, however produced or reproduced, telephone records, and any paper or writing of 3

21 Case LSS Doc Filed 04/18/16 Page 8 of 23 whatever description, including any information contained in any computer although not yet printed out, which documents are in your possession, custody, or control. U. The term "evidencing" shall mean tending to show, in whole or in part, in any probative manner, the existence or nonexistence of any matter. V. The term "Federal Rules" shall mean the Federal Rules of Civil Procedure. W. The term "identify" or "identification," when used in reference to a person, shall mean state or a statement of his, her, or its legal full name and present or last known position or business affiliation; his, her, or its present home and business addresses or principal place of business; and his, her, or its present business and home telephone numbers. If current information is not known, so state and provide his, her, or its last known addresses and the last known date that he, she, or it resided or was located at those addresses, and the last known telephone number. The term "identify" or "identification," when used in reference to a document, shall mean state or a statement of the type of document, e.g., letter, memorandum, facsimile, telegram, chart, etc., and a means of identifying it, its present location, and its custodian. A copy of such document may be attached in response to an interrogatory rather than identifying the document. If any such document was, but is no longer in your possession or subject to your control, state what disposition was made of it. The term "identify" or "identification," when used in reference to a communication, shall mean state or a statement of the parties to such communication, the medium of such communication, i.e., telephonic, letter, etc., the date of such communication, and the subject matter and substance of such communication. X. The term "including" shall mean including without limitation. 4

22 Case LSS Doc Filed 04/18/16 Page 9 of 23 Y. The term "person" shall mean (without limitation) any natural person, firm, sole proprietorship, partnership, corporation, association, trust, governmental body, agency, or other entity. Z. The term "Petition Date" shall mean December 29, AA. The term "representative" shall mean, with respect to a person, any past or present officer, director, member, employee, agent, attorney, financial advisor, investment banker, or accountant of the person, including (without limitation) a representative acting or purporting to act on such person's behalf or at the request or instruction of such person. BB. The term "you," "your," and "Black Horse Capital Master Fund Ltd." shall mean Black Horse Capital Master Fund Ltd., together with its representatives, and its predecessors or successors in interest, and any other person responding to these requests on its behalf. INSTRUCTIONS APPLICABLE TO ALL DOCUMENT REQUESTS 1. All Documents requested herein are to be produced if they are in your actual or constructive possession, custody, or control. In responding to the Requests, furnish all information available to you, including information in the possession of your attorneys or anyone acting on your behalf, and not merely such information within your own personal knowledge. 2. No part of a Request shall be left unanswered because an objection is interposed to another part of the Request. 3. If you object to any Request and/or any information responsive to any Request is withheld based on any claim of privilege or protection from discovery of any kind, describe generally the information withheld and state the privilege upon which you rely in withholding such information. 5

23 Case LSS Doc Filed 04/18/16 Page 10 of Each Request is to be answered separately and as completely as possible. The fact that an investigation is continuing or that discovery is not complete shall not be used as an excuse for failure to answer each Request as fully as possible. The omission of any name, fact, or other item of information from the answers shall be deemed a representation that such name, fact, or item was not known to you or your counsel or other representatives at the time of service of the answers. 5. When responding to a Request, please (i) identify the Request to which such Document relates, (ii) describe in detail the nature of the Document and its contents, (iii) identify the person(s) who prepared or authored the Document and, if applicable, the person(s) to whom the Document was sent, (iv) specify the date that the Document was prepared or transmitted, and (v) specify the location of the original and all copies. 6. Each Document shall be produced as kept in the usual course of business and shall be produced in such a fashion as to clearly indicate the identity of the file in which such Document was located. Each Document shall be organized and labeled to correspond to the Request(s) to which it is responsive. Each Document shall be produced in and with the file folder and other Documents (e.g., envelope, file cabinet marker) in or with which the Document was located when this Document Request was served. A Request for a Document shall be deemed to include a Request for any and all transmittal sheets, cover letters, exhibits, enclosures, or attachments to the Document, in addition to the Document itself. 7. When producing data stored in an electronic form (ESI), any attachments should be produced directly after their parent documents, in the manner that these documents are collected and maintained in the ordinary course of business. Please explain if you are unable to produce documents in this manner. 6

24 Case LSS Doc Filed 04/18/16 Page 11 of These Documents Requests shall be deemed continuing so as to require further and supplemental information from you in the event that you receive or obtain additional responsive information between the time that you provide responses to these Requests and the time of a trial in this matter. In addition, should you at any time after the service or filing of your answers to the Requests become aware of information that renders your answers incomplete, inaccurate, or misleading in any respect, supplemental answers are required. 9. Except as otherwise stated herein (and subject to the duty to supplement this Request), the time period covered by these Requests shall be from and after January 1, In the event that you claim that a Request is unduly burdensome, you shall respond to that portion of the Request that is unobjectionable and specifically identify the respect in which the Request is unduly burdensome. 11. In the event that you claim that a Request is overbroad, you shall respond to that portion of the Request that is unobjectionable and specifically identify the respect in which the Request is overbroad. 12. When an individual or other non-corporate entity is referred to herein, said reference shall be construed to include that individual or other non-corporate entity in any capacity and any and all of his/her/its agents, employees, representatives, attorneys, members, managers, family members, predecessors, successors in interest, affiliates, departments, and divisions, and all other persons or entities acting on his/her/its behalf or under his/her/its control, whether in the past or in the present. 13. Any reference to a corporation, partnership, limited liability company, limited liability partnership, association, person, or other entity shall also include its predecessors and successors in interest, parents, subsidiaries, affiliates, departments, divisions, officers, managers, 7

25 Case LSS Doc Filed 04/18/16 Page 12 of 23 members, directors, agents, servants, employees, attorneys, investigators, consultants, accountants, representatives, and any other person or entity acting on its behalf or under its control, whether in the past or in the present, as well as any of the foregoing persons' agents, servants, employees, or representatives. 14. The words "or" and "and" shall be construed to maximize the number of Documents that are responsive to a Request; all uses of the conjunctive include the disjunctive and vice versa. Words in the singular shall include the plural and vice versa; "all" shall include "any" and vice versa; "each" shall include "every" and vice versa; and words used in the masculine gender shall include the feminine gender and vice versa. REQUESTS FOR PRODUCTION 1. All documents and/or correspondences concerning the DIP Motion or concerning the DIP Financing requested therein. 2. All documents and/or correspondences concerning the exit financing referenced in the DIP Motion. 3. All correspondences with the Debtor. 4. All documents and/or correspondences concerning budgets prepared by the Debtor and/or the DIP Credit Parties, including (without limitation) in connection with the DIP Financing. 5. All documents and/or correspondences concerning any valuation of the Debtor's assets. 6. All documents (including drafts) and/or correspondences concerning the DIP Credit Agreement. 8

26 Case LSS Doc Filed 04/18/16 Page 13 of All documents (including drafts) and/or correspondences concerning the DIP Financing Documents. 8. Any common interest, joint defense, or similar agreement between the Debtor and the DIP Credit Parties (or any of them). WCSR v3 9

27 13256 (Form 256 Subpoena to Testify at a Deposition in a f3ankruptcv Case or Adversary Proceeding) (12/13) For the In re KaloBios Pharmaceuticals, Inc. Debtor Case LSS Doc Filed 04/18/16 Page 14 of 23 (Complete if issued in an adversmy proceeding) UNITED STATES BANKRUPTCY COURT District of Delaware Case No, (LSS) Chapter 11 Plaintiff V. Adv. Proc. No. Defendant SUBPOENA TO TESTIFY AT A DEPOSITION IN A BANKRUPTCY CASE (OR ADVERSARY PROCEEDING) To: Black Horse Capital Master Fund LP, do Opus Equum, Inc., P.O. Box 788, Dolores, CO (Name of person to whom the subpoena is directed) WI Testimony: YOU ARE COMMANDED to appear at the time, date, and place set forth below to testify at a deposition to be taken in this bankruptcy case (or adversary proceeding). If you are an organization, you must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on your behalf about the following matters, or those set forth in an attachment: See Attached Exhibit A. PLACE Womble Carlyle Sandridge & Rice, LLP, 222 Delaware Ave., Suite 1501, Wilmington, DE DATE AND TIME April 22, 2016 at 11:00 a.m. (Eastern) The deposition will be recorded by this method: The deposition will be recorded by stenographic means and may be videotaped. Production: You, or your representatives, must also bring with you to the deposition the following documents, electronically stored information, or objects, and must permit inspection, copying, testing, or sampling of the material: The following provisions of Fed. R. Civ. P. 45, made applicable in bankruptcy cases by Fed. R. Bankr. P. 9016, are attached Rule 45(c), relating to the place of compliance; Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and 45(g), relating to your duty to respond to this subpoena and the potential consequences of not doing so. Date: April 15, 2016 CLERK OF COURT Signature of Clerk or Deputy Clerk OR /s/ Matthew P. Ward Attorney's signature The name, address, address, and telephone number of the attorney representing (name of party) Gregory Rea, et al., who issues or requests this subpoena, are: Matthew P. Ward, Esq., 222 Delaware Avenue, Suite 1501, Wilmington, DE 19801; Notice to the person who issues or requests this subpoena If this subpoena commands the production of documents, electronically stored information, or tangible things, or the inspection of premises before trial, a notice and a copy of this subpoena must be served on each party before it is served on the person to whom it is directed. Fed. R. Civ. P. 45(a)(4).

28 Case LSS Doc Filed 04/18/16 Page 15 of 23 B256 (Form 256 Subpoena to Testify at a Deposition in a Bankruptcy Case or Adversary Proceeding) (Page 2) PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. CiV. P. 45.) I received this subpoena for (name of individual and title, if an)); - on (date) Ti I served the subpoena by delivering a copy to the named person as follows: on (date) ; or I returned the subpoena unexecuted because: Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also tendered to the witness the fees for one day's attendance, and the mileage allowed by law, in the amount of S My fees are S for travel and S for services, for a total of S Date: I declare under penalty of perjury that this information is true and correct. Server's signature Printed name and title Server's address Additional information concerning attempted service, etc.:

29 Case LSS Doc Filed 04/18/16 Page 16 of 23 B256 (Form 256 Subpoena to Testify at a Deposition in a Bankruptcy Case or Adversary Proceeding) (Page 3) Federal Rule of Civil Procedure 45(c), (d), (e), and (g) (Effective 12/1/13) (made applicable in bankruptcy cases by Rule 9016, Federal Rules of Bankruptcy Procedure) (c) Place of compliance. (0 For a Trial, Hearing, or Deposition. A subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or (B) within the state where the person resides, is employed, or regularly transacts business in person, if the person (i) is a party or a party's officer; or (ii) is commanded to attend a trial and would not incur substantial expense. (2) For Other Discovery. A subpoena may command: (A) production of documents, or electronically stored information, or things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person; and (B) inspection of premises, at the premises to be inspected. (d) Protecting a Person Subject to a Subpoena; Enforcement. (I) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction which may include lost earnings and reasonable attorney's fees on a party or attorney who fails to comply. (2) Command to Produce Materials or Permit Inspection. (A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply: (i) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance. (3) Quashing or ModilYing a Subpoena. (A) When Required. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. (13) When Permitted. To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; or (ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party. (C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(d)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party: (i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated. (e) Duties in Responding to a Subpoena. (I) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (g) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (2) Claiming Privilege or Protection. (A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: (i) expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trialpreparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information under seal to the court for the district where compliance is required for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved. (g) Contempt. The court for the district where compliance is required and also, after a motion is transferred, the issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it. For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013)