0001009012-11-000008.txt : 20110325 0001009012-11-000008.hdr.sgml : 20110325 20110325123548 ACCESSION NUMBER: 0001009012-11-000008 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20110325 DATE AS OF CHANGE: 20110325 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GRUBB & ELLIS CO CENTRAL INDEX KEY: 0000216039 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE AGENTS & MANAGERS (FOR OTHERS) [6531] IRS NUMBER: 941424307 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-32339 FILM NUMBER: 11711714 BUSINESS ADDRESS: STREET 1: 500 WEST MONROE STREET STREET 2: SUITE 2800 CITY: CHICAGO STATE: IL ZIP: 60661 BUSINESS PHONE: 3126986700 MAIL ADDRESS: STREET 1: 500 WEST MONROE STREET STREET 2: SUITE 2800 CITY: CHICAGO STATE: IL ZIP: 60661 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ZAZOVE ASSOCIATES LLC CENTRAL INDEX KEY: 0001009012 IRS NUMBER: 363984373 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 4801 WEST PETETSON SUITE 615 CITY: CHICAGO STATE: IL ZIP: 60646 BUSINESS PHONE: 3122838822 MAIL ADDRESS: STREET 1: 4801 WEST PETETSON SUITE 615 CITY: CHICAGO STATE: IL ZIP: 60646 SC 13D 1 grubb13d032411.txt SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Rule 13D) Under the Securities Exchange Act of 1934 (Amendment No. __) Grubb and Ellis Company (Name of Issuer) Common Stock, par value $0.01 per share (Title of Class of Securities) 400095204 (CUSIP number) Steven M. Kleiman Zazove Associates, LLC 1001 Tahoe Blvd. Incline Village, NV 89451 (775) 886-1500 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) March 18, 2011 (Date of Event Which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [ ]. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be sent. * 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 disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act") or otherwise subject to the liabilities of that section of the Exchange Act but shall be subject to all other provisions of the Exchange Act (however, see the Notes). CUSIP No. 400095204 1. Names of Reporting Persons. Zazove Associates, LLC 2. Check the Appropriate Box if a Member of a Group (see instructions) (a) [ ] (b) [ ] 3. SEC USE ONLY 4. Source of Funds (see instructions) OO 5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) [ ] or 2(e) [ ] 6. Citizenship or Place of Organization Delaware 7. Sole voting power 3,943,410 (1) Number of shares 8. Shared Voting Power -0- beneficially owned by 9. Sole Dispositive Power 3,943,410 (1) each reporting 10. Shared Dispositve Power -0- person with 11. Aggregate Amount Beneficially Owned by Each Reporting Person 3,943,410 (1) 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (see instructions) [ ] 13. Percent of Class Represented by Amount in Row (11) 5.4% (1) 14. Type of Reporting Person (see instructions) IA (1) Reporting Person beneficially owns $8,850,000 principal amount of 7.95% Senior Convertible Notes Due 2015 (the "Convertible Notes"), which are convertible as of the date of this Schedule 13D into 3,943,410 shares of Common Stock. The calculation of percentage ownership is based on 69,419,590 shares of Common Stock outstanding as of October 29, 2010, as disclosed in the Issuer's Form 10-Q filed on November 12, 2010 plus 3,943,410 shares of Common Stock that would be issued upon conversion of the Convertible Notes of the Issuer held by the Reporting Person. The Locked-Up Holders (see Item 4 below) beneficially own, in the aggregate, $16,350,000 principal amount of 7.95% Senior Convertible Notes Due 2015 (the "Convertible Notes"), which are convertible as of the date of this Schedule 13D into 7,285,282 shares of Common Stock, which represents 9.5% of the outstanding shares of Common Stock. The calculation of percentage ownership is based on 69,419,590 shares of Common Stock outstanding as of October 29, 2010, as disclosed in the Issuer's Form 10-Q filed on November 12, 2010 plus 7,285,282 shares of Common Stock that would be issued upon conversion of the Convertible Notes of the Issuer held by the Locked Up Holders. CUSIP 400095204 Item 1. Security and Issuer. This Schedule 13D relates to Common Stock, par value $0.01 per share (the "Common Stock") of Grubb & Ellis Company, a Delaware corporation (the "Issuer"). The address of the executive offices of the Issuer is 1551 North Tustin Avenue, Suite 300, Santa Ana, California 92705. Item 2. Identity and Background. This Schedule 13D is being filed by Zazove Associates, LLC, a Delaware limited liability company (the "Reporting Person"). The Reporting Person is a registered investment advisor with its principle place of business being located at 1001 Tahoe Blvd., Incline Village, NV 89451. The Reporting Person is in the business of managing investment portfolios. Gene T. Pretti ("Pretti") is the controlling equity holder of the Reporting Person. Pretti's principal occupation or employment is as Chief Executive Officer and Sr. Portfolio Manager of the Reporting Person. During the past five years, neither the Reporting Person nor Pretti have been (i) convicted in any criminal proceeding, or (ii) a party to any civil proceeding commenced before a judicial or administrtative body of competent jurisdiction and as a result of such proceeding was or is now subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration The Reporting Person has discretionary authority with regard to portfolios that expended $8,234,350 of investment capital in acquiring the Convertible Notes. Item 4. Purpose of Transaction On March 8, 2011, Issuer commenced a solicitation of consents (the "Consent Solicitation") from the holders of its 7.95% Senior Convertible Notes due 2015. The Issuer is seeking consents to proposed amendments to certain provisions in the Indenture, dated as of May 7, 2010 (the "Indenture"), between the Issuer, as issuer, and U.S. Bank National Association, as trustee (the "Trustee"), which governs such convertible notes. The Consent Solicitation will expire at 5:00 p.m., New York City time, on March 21, 2011 (the "Expiration Date"), unless extended by the Company. The Company subsequently extended the Expiration Date to 5:00 p.m., New York City time, March 25, 2011. The proposed amendments to the Indenture require consent of holders of more than 50 percent of the 7.95% Senior Convertible Notes due 2015. On March 18, 2011, Zazove Associates, LLC, Nisswa Convertibles Master Fund Ltd., Cohanzick Management, LLC, and Stonerise Capital Partners Master Fund LP (collectively, the "Locked-Up Holders") entered into a written lock-up agreement (the "Lock-Up Agreement") pursuant to which, among other things, each of them agreed, subject to certain exceptions, that they will not deliver consents to the proposed amendments in the Consent Solicitation with respect to such Locked-Up Holder's Convertible Notes. As a result of the Lock-Up Agreement, the Locked-Up Holders may be deemed to have formed a group within the meaning of Rule 13d-5(b) under the Act. The description of the Lock-Up Agreement in this Schedule 13D is qualified in its entirety by reference to full text of the Lock-Up Agreement, a copy of which is filed herewith as an Exhibit and is hereby incorporated herein by reference. The Reporting Person acquired and continues to hold the Convertible Notes reported herein for certain investment portfolios over which the Reporting Person has discretionary authority for investment purposes only. The Reporting Person may from time to time engage the Issuer, its representatives or other relevant parties in discussions regarding the Consent Solicitation and the proposed amendments and other related matters relevant to the investment in the Issuer, and may discuss with such parties alternatives to the Consent Solitation and proposed amendments. Depending on market conditions and other factors that the Reporting Person may deem material to its investment decisions. The Reporting Person may sell all or a portion of its Convertible Notes or may purchase additional securities of the Issuer, on the open market or in a private transaction, in each case as permitted by the Lock-up Agreement. Except as set forth in this Item 4, the Reporting Person has no present plans or proposals that relate to or that would result in any of the actions specified in clauses (a) through (j) of Item 4 of Schedule 13D of the Act. Item 5. Interest in Securities of the Issuer (a) Reporting Person beneficially owns $8,850,000 principal amount of 7.95% Senior Convertible Notes Due 2015, which are convertible as of the date of this Schedule 13D into 3,943,410 shares of Common Stock. The calculation of percentage ownership is based on 69,419,590 shares of Common Stock outstanding as of October 29, 2010, as disclosed in the Issuer's Form 10-Q filed on November 12, 2010 plus 3,943,410 shares of Common Stock that would be issued upon conversion of such convertible notes of the Issuer beneficially held by the Reporting Person. The Locked-Up Holders (see Item 4 above) beneficially own, in the aggregate, $16,350,000 principal amount of 7.95% Senior Convertible Notes Due 2015 (the "Convertible Notes"), which are convertible as of the date of this Schedule 13D into 7,285,282 shares of Common Stock, which represents 9.5% of the outstanding shares of Common Stock. The calculation of percentage ownership is based on 69,419,590 shares of Common Stock outstanding as of October 29, 2010, as disclosed in the Issuer's Form 10-Q filed on November 12, 2010 plus 7,285,282 shares of Common Stock that would be issued upon conversion of the Convertible Notes of the Issuer held by the Locked Up Holders. (b) The Reporting Person has sole voting and dispostive power with regard to the Convertible Notes. (c) During the past 60 days, the Reporting Person, in its capacity as investment advisor with discretionary authority, purchased 7.95% Senior Convertible Notes Due 2015 on the secondary market as follows: Trade Date Principal Amount Purchased Purchase Price 2/9/11 $1,500,000 91.75% of par 2/11/11 $1,000,000 91.50% of par (d) Not applicable. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer Other than the Lock-Up Agreement, neither the Reporting Person nor Pretti has any has any contracts, arrangements, understandings or relationships (legal or otherwise) with respect to any securities of the Issuer. Item 7. Materials to be Filed as Exhibits Lock-Up Agreement dated March 18, 2011 between the Reporting Person and the other parties signatory thereto. SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: March 25, 2011 Zazove Associates, LLC Signature /S/ Steven M. Kleiman Name: Steven M. Kleiman Title: Chief Operating Officer EX-99 2 lockup.txt LOCK-UP AGREEMENT EXECUTION VERSION LOCK-UP AGREEMENT This Lock-up Agreement (this "Agreement"), is dated as of March 18, 2011, and is 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, or as advisor with discretionary authority with regard to beneficial owner(s) of, certain 7.95% Convertible Senior Notes due 2015 issued by Grubb & Ellis Company. RECITALS A. On March 8, 2011, Grubb & Ellis Company, a Delaware corporation (the "Company"), commenced a solicitation of consents (the "Consent Solicitation") from the holders of its 7.95% Senior Convertible Notes due 2015 (the "Convertible Notes"). The Company is seeking consents to proposed amendments to certain provisions in the Indenture, dated as of May 7, 2010 (the "Indenture"), between the Company, as issuer, and U.S. Bank National Association, as trustee (the "Trustee"), which governs the Convertible Notes. The Consent Solicitation will expire at 5:00 p.m., New York City time, on March 21, 2011 (the "Expiration Date"), unless extended by the Company. B. The terms and conditions of the Consent Solicitation are described in the Consent Solicitation Statement, dated March 8, 2011, and related Letter of Consent distributed to the holders of the Convertible Notes (collectively, the "Consent Solicitation Materials"). Pursuant to the Consent Solicitation Materials, the Company proposes to amend certain provisions set forth in Section 9.01 (Events of Default) of the Indenture, specifically Sections 9.01(h), (i) and (j) of the Indenture, to provide that Daymark Realty Advisors, Inc. and NNN Realty Advisors, Inc., subsidiaries of the Company (and each of such subsidiaries' direct and indirect subsidiaries) would be excluded from the determination of an event of default under such provisions of the Indenture. The proposed amendments require the consent of the holders of a majority-in-interest of the principal amount of the Convertible Notes outstanding as of March 7, 2011 (the "Required Holders"). 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. Agreement. Solely in its capacity as a beneficial owner of, or as advisor with discretionary authority with regard to beneficial owner(s) of, Convertible Notes, each Locked-Up Holder covenants and agrees that during the term of this Agreement, (a) it will not deliver consents to the proposed amendments in the Consent Solicitation (and as described in the Consent Solicitation Materials) with respect to such Locked-Up Holder's Convertible Notes beneficially owned by it (whether beneficially owned by it on the date hereof or with respect to which beneficial ownership is acquired by it after the date hereof (such Convertible Notes with respect to which beneficial ownership is acquired after the date hereof, the "Future Convertible Notes")) and (b) it will take all necessary action to achieve the foregoing. 2. Sale/Acquisition. (a) For a period commencing with the date hereof until the earlier of the termination of this Agreement pursuant to Section 4 hereof, each Locked-Up Holder hereby agrees not to sell, assign, transfer, hypothecate or otherwise dispose of, directly or indirectly, (i) any Convertible Notes or (ii) any option, interest in or right to acquire any Convertible Notes, in either case unless the transferee thereof agrees in writing to be bound by the terms of this Agreement by executing and delivering to all Locked-Up Holders a joinder substantially in the form attached hereto as Annex A. In the event any Locked-Up Holder affects any of the transactions described in the foregoing clauses (i) and (ii), it shall give written notice to all Locked-Up Holders no later than the first business day after giving effect to any such transaction. This Agreement shall in no way be construed to preclude the Locked-Up Holders from acquiring Future Convertible Notes, Common Shares or Preferred Shares or any interest therein; provided, that any Future Convertible Notes so acquired shall automatically by deemed to be subject to the terms and conditions of this Agreement for so long as this Agreement remains in effect; provided further, that a Locked-Up Holder shall give written notice to all Locked-Up Holders no later than the first business day after acquiring beneficial ownership of any such Future Convertible Notes, Common Shares or Preferred Shares. (b) Each Locked-Up Holder further agrees that, without the prior written consent of the Requisite Locked-Up Holders it shall not enter into any agreement, arrangement or understanding with any person for the purpose of holding, voting, disposing or consenting with respect to any securities of the Company, or derivative instruments with respect to securities of theCompany; provided, however, any Locked-Up Holder may, or may cause its affiliates and associates to enter into any agreement, arrangement or understanding with any person for the purpose of acquiring any securities of the Company, or derivative instruments with respect to securities of the Company; provided, further, that any Locked-Up Holder may, or may cause its affiliates and associates to, enter into any agreement, arrangement or understanding with the Company (or any subsidiary, affiliate, division or other part of the Company) not related to the Convertible Notes. If a Locked-Up Holder shall enter into an agreement, arrangement or understanding to affect any of the foregoing, the Locked-Up Holder shall give written notice to all Locked-Up Holders no later than the first business day after entering into any such agreement, arrangement or understanding. 3. Ownership and Authority; Additional Information. Each Locked-Up Holder shall deliver to all Locked-Up Holders a beneficial ownership certificate, substantially in the form attached hereto as Annex B (the "Ownership Certificate"), promptly upon any change (by acquisition, sale or otherwise) of its beneficial ownership of Convertible Notes, Common Shares or Preferred Shares. In addition, each Locked-Up Holder agrees to promptly furnish to all Locked-Up Holders (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. Conditions; Termination. (a) This Agreement shall automatically terminate upon the earlier of (i) April 29, 2011 and (ii) three business days following the written notice of the Requisite Locked-Up Holders of the termination of this Agreement; and (b) In the event of termination of this Agreement pursuant to this Section 4, the obligations of the Locked-Up Holders hereunder shall cease, and no party shall have any liability to any other party hereunder; provided, however, that no such termination shall relieve any party of liability for any willful and material breach of this Agreement prior to the effectiveness of such termination. 5. 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) Lawful and Beneficial Ownership. It is either the lawful and beneficial owner of, or has discretionary authority with regard to, the Company's securities and swaps or other derivative transactions relating to the Company securities set forth on the signature page hereto. (b) Securities Laws. Neither it nor its affiliates (i) is the beneficial owner of, or has discretionary authority with regard to, any securities of the Company or is a party to any swaps or other derivative transactions relating to securities of the Company, 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 the Company. (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 thisAgreement and the performance of its obligations hereunder have been duly authorized by all necessary action on its part. 6. 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 the Company (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. 7. Effectiveness. This Agreement 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 parties hereto and it is executed by beneficial owners of more than one-half of the aggregate outstanding Convertible Notes. 8. Miscellaneous. (a) Additional Signatories. Additional beneficial owners of Convertible Notes, with the prior consent of the Requisite Locked-Up Holders, may join and be bound by all of the terms of this Agreement by executing and delivering to all Locked-Up Holders a joinder substantially in the form attached hereto as Annex A. (b) Definitions. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined): (i) "beneficially own" or "beneficial ownership" with respect to any securities shall mean having "beneficial ownership" of such securities as determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). (ii) "Common Shares" shall mean shares of the Company's Common Stock, $0.01 par value. (iii) "Preferred Shares" shall mean shares of the Company's 12% cumulative participating perpetual convertible preferred stock, par value $0.01 per share. (iv) "Requisite Locked-Up Holders" shall mean Locked-Up Holders representing more than one-half of the Locked-Up Holders party hereto. (v) "Subject Convertible Notes" shall mean the Convertible Notes beneficially owned by the Locked-Up Holders on the date hereof and any Future Convertible Notes. 9. Amendments. This Agreement may not be modified or amended except in a writing signed by the Requisite Locked-Up Holders; provided, however, the obligations of each party to this Agreement, including, without limitation, with respect to the term of this Agreement under Section 4(a) hereto, may not be materially increased without the consent of all of the Locked-Up Holders. 10. Governing Law; Jurisdiction. This Agreement shall be construed in accordance with, and this Agreement 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 Agreement, 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 Agreement 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 Agreement, 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. 11. Headings. The headings of the Sections, paragraphs and subsections of this Agreement are inserted for convenience only and shall not affect the interpretation hereof. 12. Limitation on Assignment; Successors and Permitted Assigns. None of the parties hereto may assign any of its respective rights or obligations under this Agreement. This Agreement is intended to bind and inure to the benefit of the parties and their respective successors, heirs, executors, administrators and representatives. 13. Notice. Any notices or other communications to one or more Locked-Up Holders required or permitted hereunder shall be in writing, and shall be sufficiently given if made by hand delivery, by telecopier or registered or certified mail, postage prepaid, return receipt requested, at the names and addresses on the applicable signature page or pages hereto. Any notice or communication to any party shall be deemed to have been given or made as of the date so delivered, if personally delivered; on the date actually received if sent by registered or certified mail, postage prepaid; and when receipt is acknowledged, if telecopied. 14. No Agency or Advisory Relationship. Except as expressly provided herein, each Locked-Up Holder is acting independently of the others with respect to its investment in securities of the Company and no Locked-Up Holder has the authority to represent or bind any other Locked-Up Holder. Each Locked-Up Holder (either itself or together with its investment manager) is a sophisticated financial investorthat has conducted and will continue to conduct its own investigation into the affairs of the Company as it may deem necessary for the purposes of its own investment, and no Locked-Up Holder is providing any other Locked-Up Holder with investment, tax, legal or other advice. No Locked-Up Holder is a fiduciary of any other Locked-Up Holder. 15. Counterparts. This Agreement 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.16. Coordination of Public Statements. Each Locked-Up Holder agrees that it shall consult with the other Locked-Up Holders prior to making any public announcement concerning the Company and/or its investment in the Company and, where the Requisite Locked-Up Holders object to all or any part of a public announcement, not make such public announcement except to the extent it is believed in good faith, based on the advice of counsel, to be required by applicable law or regulation. For the avoidance of doubt, a Locked-Up Holder will not need the permission of any other Locked-Up Holder to make a filing under Sections 13(d) or 16 of the Exchange Act, and will have no liability to any other Locked-Up Holder for making any such filing. 17. Expenses. Locked-Up Holders party hereto may from time to time unanimously agree in writing that certain expenses to be incurred in connection with this Agreement and the Locked-Up Holders' respective investments in the Convertible Notes shall be "Joint Expenses" for purposes of this Section 17. Unless otherwise agreed, any Joint Expenses will be for the ratable account of the Locked-Up Holders in accordance with the percentage of the Subject Convertible Notes beneficially owned by them as of the date of the designation of such expenses as Joint Expenses (disregarding, for this purpose, any shares held by another Locked-Up Holder that may be deemed to be beneficially owned solely by virtue of the Locked-Up Holders being deemed a "group" within the meaning of Rule 13d-5(b) under the Exchange Act). Amounts incurred by a Locked-Up Holder with respect to Joint Expenses in excess of its ratable share will be reimbursed by the other Locked-Up Holders on demand upon presentation of appropriate supporting documentation. Other than Joint Expenses, each Locked-Up Holder shall bear its own costs and expenses in connection with this Agreement and its investment in the Company. 18. Liability. No Locked-Up Holder nor any of its affiliates, or any of their respective partners, members, employees, counsel, agents or representatives shall be liable to any other Locked-Up Holder or its affiliates, in each case for any loss, liability, damage or expense arising out of or in connection with this Agreement or any Schedule 13D, or amendment thereto, filed by any Locked-Up Holder or its affiliates, or the actions or transactions contemplated hereby or thereby, except to the extent such loss, liability, damage or expense is caused by such party's actual and material breach of the express provisions of this Agreement, gross negligence, fraud, bad faith or willful misconduct. 19. No Third Party Beneficiaries. Unless expressly stated herein, this Agreement shall be solely for the benefit of the parties hereto and no other person or entity. 20. Specific Performance. It is understood and agreed by each of the parties hereto that money damages would not be a sufficient remedy for any breach of this Agreement by any party and each non-breaching party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach.21. Further Acknowledgement. The parties to this Agreement agree and acknowledge that certain Locked-Up Holders are executing this Agreement as investment advisors for, and on behalf of, certain investment funds identified on such Locked-Up Holders' signature pages. Notwithstanding the foregoing, by executing this Agreement, each such Locked-Up Holder executing this Agreement 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 Agreement with respect to the Company securities such Locked-Up Holderbeneficially owns (including those set forth on its signature page), (ii) it has the full authority on behalf of all such funds to vote, transfer and hold all the Company securities such Locked-Up Holder beneficially owns, and (iii) it has all requisite power and authority to enter into this Agreement and to perform its respective obligations under, this Agreement, on behalf of each such fund. * * * * * [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 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: Title: Address: City/State/Zip: Country: Telecopy: Convertible Notes Beneficially Owned by Such Locked-Up Holder: Preferred Shares Beneficially Owned by Such Locked-Up Holder: Common Shares Beneficially Owned by Such Locked-Up Holder: ANNEX A This Joinder to the Lock-Up Agreement, dated as of March __, 2011, by and among the Locked-Up Holders signatory thereto (the "Agreement"), is executed and delivered by _________________ (the "Joining Party") as of __________, 2011. Each capitalized term used herein but not otherwise defined shall have the meaning set forth in the Agreement. 1. Agreement to be Bound. The Joining Party hereby agrees to join and be bound by all of the terms of the Agreement. The Joining Party shall hereafter be deemed to be a "Locked-Up Holder" for all purposes under the Agreement. 2. Representations and Warranties. The Joining Party hereby makes, as of the date hereof, the representations and warranties of the Locked-Up Holders set forth in the Agreement in Sections 1 and 5 thereof. 3. Governing Law. This Joinder shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to any conflicts of law provisions which would require the application of the law of any other jurisdiction. * * * * * [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] IN WITNESS WHEREOF, the Joining Party has caused this Joinder to be executed as of the date first written above. JOINING PARTY ____________________________________ By: Name: Title: Address: _____________________________ City/State/Zip:_________________________ Country:______________________________ Telecopy:_____________________________ Convertible Notes Beneficially Owned by Such Joining Party: Preferred Shares Beneficially Owned by Such Joining Party: Common Shares Beneficially Owned by Such Joining Party: ANNEX B OWNERSHIP CERTIFICATE This Ownership Certificate, dated as of , 2011 is being delivered pursuant to Section 3 of the Lock-Up Agreement (the "Agreement"), dated as of March __, 2011, by and among the Locked-Up Holders signatory thereto. The undersigned, on behalf of itself, certifies, represents and warrants that, as of the date hereof, it has acquired or transferred and is the beneficial owner of Convertible Notes, Preferred Shares and Common Shares of the Company as follows: Convertible Notes Preferred Shares Common Shares Previously Owned Acquired Transferred Current Ownership The undersigned, on behalf of itself, further certifies, represents and warrants that, as of the date hereof, it does not beneficially own any other securities of the Company other than as set forth herein, and that it is not a party to any swaps or other derivative transactions relating to Convertible Notes, Preferred Shares or Common Shares of the Company, except as disclosed on Schedule 1 hereto. * * * * * [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] IN WITNESS WHEREOF, the undersigned has caused this Ownership Certificate to be executed and delivered by its duly authorized officer as of the date first above written. LOCKED-UP HOLDER ____________________________________ By: Name: Title: Address: _____________________________ City/State/Zip:_________________________ Country:______________________________ Telecopy:_____________________________ SCHEDULE 1 [NONE]