AMENDMENT NO. 1 AND EXTENSION to LOCK-UP AGREEMENT
This Amendment No. 1 and Extension to Lock-up Agreement (this "Amendment"),
is dated as of January 31, 2012, and amends, and extends the termination
date under, the Lock-up Agreement (the "Agreement") made by and among the
undersigned parties (each, a "Locked-Up Holder" and, collectively, the
"Locked-Up Holders"), each solely in its capacity as a beneficial owner
(as defined below) of shares of 6.25% Series A Cumulative Convertible
Preferred Stock (the "Preferred Shares") and all holders of such shares,
the "Preferred Shareholders") issued by Emmis Communications Corporation
("Emmis").
RECITALS
A. The undersigned Locked-Up Holders wish to amend the Agreement to
extend the stated term thereof to April 30, 2012.
B. Capitalized terms used herein without definition and defined in the
Agreement shall have the meanings ascribed thereto in the Agreement when
used herein.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual covenants and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Locked-Up Holders
hereby agree as follows:
1. Amendment. Section 4(a)(i) of the Agreement is hereby amended by
deleting the reference to "January 31, 2012" and replacing it with "April 30,
2012".
2. Effect of Amendment. Except as expressly set forth in Section 1 above,
the parties hereto hereby agree that the Agreement shall continue in full force
and effect without other modification thereto, and the parties hereto shall
continue to be bound thereby on the terms and conditions set forth therein, as
modified by Section 1 above.
3. Ownership and Authority; Additional Information. Each Locked-Up Holder
shall deliver to Xxxxxx Xxxx & Xxxxxxxx LLP ("Xxxxxx Xxxx"), at the address
provided in Section 13 of the Agreement, a revised beneficial ownership
certificate, substantially in the form attached as Annex B (the "Ownership
Certificate") to the Agreement, promptly upon any change (by acquisition,
sale or otherwise) of its beneficial ownership of Preferred Shares or
Common Shares. In addition, each Locked-Up Holder agrees to promptly furnish
to Xxxxxx Xxxx (a) any information necessary or appropriate for the making of
any required or advisable public filing or amendment thereto and (b) any
other information supplementing information contained in any publicly filed
statement or amendment thereto as is necessary in order to make the statements
contained in such publicly filed statement or amendment not misleading.
4. Representations and Warranties. Each of the Locked-Up Holders hereby
represents and warrants as to itself, that the following statements are true,
correct and complete, as of the date hereof:
(a) Beneficial Ownership. It is the beneficial owner of the Emmis
securities and swaps or other derivative transactions relating to Emmis
securities set forth on the signature page hereto.
(b) Securities Laws. Neither it nor its affiliates or associates (i)
is the beneficial owner of any securities of Emmis or is a party to any
swaps or other derivative transactions relating to securities of Emmis,
other than as described in the signature page hereto or (ii) has any agreement,
arrangement or understanding with any person for the purpose of acquiring,
holding, voting or disposing of any securities of Emmis,
other than this Agreement.
(c) Power and Authority. It has all requisite power and authority to
enter into this Agreement and to perform its respective obligations under
this Agreement.
(d) Authorization. The execution and delivery of this Agreement and the
performance of its obligations hereunder have been duly authorized by all
necessary action on its part.
5. Acknowledgement. Each Locked-Up Holder agrees that it shall be
responsible for compliance with any obligations such Locked-Up Holder may
have pursuant to Section 13(d) or Section 16 of the Exchange Act, if any,
to the extent it may be deemed part of a "Group" within the meaning of
Rule 13d-5(b) under the Exchange Act or otherwise relating to its beneficial
ownership of securities of Emmis (including, without limitation, making all
filings, if any, required to be made by it on Schedule 13D and Forms 3, 4
and 5), it being agreed that no Locked-Up Holder shall be responsible for
any such non-compliance by any other Locked-Up Holder other than itself.
6. Effectiveness. This Amendment shall not become effective and
binding on the parties hereto unless and until counterpart signature pages
hereto shall have been executed and delivered by the Requisite Locked-Up
Holders.
7. Miscellaneous.
(a) Additional Signatories. Additional beneficial owners of Preferred
Shares, with the prior consent of the Requisite Locked-Up Holders, may join
and be bound by all of the terms of the Agreement, as amended hereby, by
executing and delivering to all Locked-Up Holders a joinder substantially
in the form attached to the Agreement as Annex A.
(b) References to Agreement. Upon effectiveness of this Amendment,
all referenced to the Agreement shall mean the Agreement, as amended hereby.
8. Amendments. This Amendment may not be modified or amended except
in a writing signed by the Requisite Locked-Up Holders.
9. Governing Law; Jurisdiction. This Amendment shall be construed
in accordance with, and this Amendment shall be governed by, the laws of
the State of New York, without regard to any conflicts of law provision
which would require the application of the law of any other jurisdiction.
By its execution and delivery of this Amendment, each of the Locked-Up
Holders hereby irrevocably and unconditionally agrees for itself that
any legal action, suit or proceeding against it with respect to any matter
under or arising out of or in connection with this Amendment or for
recognition or enforcement of any judgment in any such action, suit or
proceeding, may be brought in any federal or state court of competent
jurisdiction in the Borough of Manhattan of The City of New York.
By execution and delivery of this Amendment, each Locked-Up Holder hereby
irrevocably accepts and submits itself to the exclusive jurisdiction of
any such court, generally and unconditionally, with respect to any such
action, suit or proceeding and hereby waives any defense of forum non
conveniens or based upon venue if such action, suit or proceeding is
brought in accordance with this provision.
10. Headings. The headings of the Sections, paragraphs and subsections
of this Amendment are inserted for convenience only and shall not affect
the interpretation hereof.
11. Limitation on Assignment; Successors and Permitted Assigns.
None of the parties hereto may assign any of its respective rights or
obligations under the Agreement. The Agreement, as amended hereby, is
intended to bind and inure to the benefit of the parties and their
respective successors, heirs, executors, administrators and representatives.
12. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original and all of
which shall constitute one and the same agreement. Faxed or pdf
signatures shall be valid and binding for all purposes.
13. Further Acknowledgement. The parties to this Amendment agree
and acknowledge that certain Locked-Up Holders are executing this
Amendment as investment advisors for, and on behalf of, certain investment
funds and institutional separate accounts. Notwithstanding the foregoing,
by executing this Amendment, each such Locked-Up Holder executing this
Amendment in such capacity further represents and warrants to the other
Locked-Up Holders that (i) it has the requisite power and authority to
agree to all of the matters set forth in this Amendment with respect to
the Emmis securities such Locked-Up Holder beneficially owns in its
capacity as investment advisor with discretionary authority, (ii) it
has the full authority on behalf of all such funds and accounts to
vote, transfer and hold all the Emmis securities such Locked-Up Holder
beneficially owns, and (iii) it has all requisite power and authority
to enter into this Amendment and to perform its respective obligations
under, this Amendment, on behalf of each such fund.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed and delivered by its duly authorized officer as of the
date first above written.
LOCKED-UP HOLDER
Zazove Associates LLC
By:
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer
Address: 0000 Xxxxx Xxxx.
Xxxx/Xxxxx/Xxx: Xxxxxxx Xxxxxxx, XX 00000
Country: USA
Telecopy: (000) 000-0000
Preferred Shares Beneficially Owned by Such Locked-Up Holder: 491,510
Common Shares Beneficially Owned by Such Locked-Up Holder: -0-
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered by its duly authorized officer
as of the date first above written.
LOCKED-UP HOLDER
Corre Opportunities Fund, LP
By:
Name: Xxxx Xxxxxxx
Title: Managing Partner
Address: 1370 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxxx/Xxxxx/Xxx: Xxx Xxxx, XX 00000
Country: USA
Telecopy: (000) 000-0000
Preferred Shares Beneficially Owned by Such Locked-Up Holder: 179,850
Common Shares Beneficially Owned by Such Locked-Up Holder: -0-
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered by its duly authorized
officer as of the date first above written.
LOCKED-UP HOLDER
DJD Group LLLP
By:
Name: Xxx XxXxxxxx
Title: General Partner
Address: 0000 X. Xxx Xxxxx Xxxx. Xxxxx 0000
Xxxx/Xxxxx/Xxx: Xxxxx, XX 00000
Country: USA
Telecopy: (000) 000-0000
Preferred Shares Beneficially Owned by Such Locked-Up Holder: 76,810
Common Shares Beneficially Owned by Such Locked-Up Holder: -0-
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered by its duly authorized
officer as of the date first above written.
LOCKED-UP HOLDER
By:
Name: Xxxxx X. Fight
Title: N/A
Address: 0000 Xxxxxx Xxxxx Xx.
Xxxx/Xxxxx/Xxx: Xxxxxxxxxxx, Xxxx 00000
Country: USA
Telecopy: (000) 000-0000
Preferred Shares Beneficially Owned by Such Locked-Up Holder: 57,750
Common Shares Beneficially Owned by Such Locked-Up Holder: -0-
LOCKED-UP HOLDER
First Derivative Traders LP
By: First Derivative management LLC
By:
Name: Xxxxxx Xxxxxx
Title: Managing Member
Address: 0000 Xxxxxxx Xxxx
Xxxx/Xxxxx/Xxx: Xxxxxxxxx, XX 00000
Country: USA
Email: xxxxxxx@xxxx.xxx
Preferred Shares Beneficially Owned by Such Locked-Up Holder: 5,500
Common Shares Beneficially Owned by Such Locked-Up Holder: -0-
