EXECUTION VERSION
LOCK-UP AGREEMENT
This Lock-up Agreement (this "Agreement"), is dated as of July 9,
2010, 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 certain shares of
6.25% Series A Cumulative Convertible Preferred Stock issued by Emmis
Communications Corporation (the "Preferred Shares").
RECITALS
A. On May 25, 2010, Emmis Communications Corporation ("Emmis")
executed an agreement and plan of merger (the "Merger Agreement"),
that if consummated would result in Emmis being taken private by
Jeffrey H. Smulyan ("Smulyan"), Emmis' Chairman, Chief Executive
Officer and President. The Merger Agreement provides for a series of
transactions, each conditioned upon the other, including, (a) the
exchange of outstanding Preferred Shares for new 12% PIK Senior
Subordinated Notes due 2017 with a principal amount equal to 60% of
the aggregate liquidation preference (excluding accrued and unpaid
dividends) of the Preferred Shares (the "Exchange Offer"), (b) the
repurchase of shares of Class A Common Stock of Emmis for $2.40
per share (the "Share Repurchase") and (c) amendments to the terms
of the Preferred Shares (such amendments or any other amendment or
amendments that adversely affect the rights or preferences of the
holders of Preferred Shares, whether or not proposed in connection
with the Merger Agreement, the "Proposed Amendments" and
together with the Exchange Offer and the Share Repurchase, the
"Proposed Transactions").
B. If the Proposed Transactions are completed, the Merger Agreement
provides for the merger of JS Acquisition Inc. ("JS Acquisition"), an
entity formed by Smulyan, into Emmis. Emmis would be taken
private and each outstanding (a) Common Share (as defined below)
that is not owned by JS Acquisition and (b) Preferred Share (owned by
anyone else other than Alden Global Capital or its affiliates
(collectively, "Alden")) will be converted into the right to receive cash
from Emmis.
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
Preferred Shares, each Locked-Up Holder covenants and agrees that during
the term of this Agreement, (a) it will vote or cause to be voted any and all
of its Preferred Shares 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 Preferred Shares with respect to
which beneficial ownership is acquired after the date hereof, the "Future
Preferred Shares")) against the Proposed Amendments unless the Requisite
Locked-Up Holders (as defined below) shall have consented in writing to a vote
in favor of the Proposed Amendments and (b) it will take all necessary action
to achieve the foregoing. In furtherance of such agreement, a party may be
appointed at the direction or consent of Locked-Up Holders party hereto
beneficially owning two-thirds of the Subject Preferred Shares to act as the
true and lawful attorney and agent in the Locked-Up Holders' respective
name, place and stead, to vote as their proxy as a beneficial owner of
Preferred Shares against the Proposed Amendments, and to act as fully as the
Locked Up-Holders could do if personally present at such meeting or as agent
for the Locked-Up Holders in connection with the submission of a proxy, and,
in any such case, with indemnifications, as necessary or appropriate, and as
may be agreed to by the Locked-Up Holders. The proxy and power of
attorney granted by the Locked-Up Holder shall be irrevocable during the
term of this Agreement, and shall be deemed to be coupled with an interest
sufficient in law to support an irrevocable proxy. Each Locked-Up Holder
represents and warrants that it has not given any other proxy or power of
attorney related to the Proposed Amendments that has not been revoked by an
effective revocation thereof, and during the term of this Agreement, each
Locked-Up Holder shall not without the prior written consent of the Requisite
Locked-Up Holders grant any such proxy or power of attorney. In the event of
a stock dividend or distribution, or any change in the Preferred Shares by
reason of any stock dividend, split-up, recapitalization, combination,
exchange of shares or the like, the term "Preferred Shares" will be deemed to
refer to and include all such stock dividends and distributions and any shares
into which or for which any or all of the Preferred Shares may be changed or
exchanged.
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 and the
consummation of Proposed Transactions previously consented to in writing by
the Requisite Locked-Up Holders (which consent shall expressly refer to this
Section 2), each Locked-Up Holder hereby agrees not to sell, assign, transfer,
hypothecate or otherwise dispose of, directly or indirectly, (i) any Preferred
Shares or (ii) any option, interest in or right to acquire any Preferred
Shares,in either case absent the written consent of the Requisite Locked-Up
Holders and 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 receives the written consent of the Requisite Locked-Up
Holders to effect 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 Preferred Shares or Common Shares or any interest therein;
provided, that any Future Preferred Shares so acquired shall automatically be
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
Preferred Shares or Common Shares.
(b) Each Locked-Up Holder further agrees that, without the prior
written consent of the Requisite Locked-Up Holders it shall not, and shall
cause its affiliates and associates (each as defined in Rule 12b-2 under the
Exchange Act) not to enter into any agreement, arrangement or understanding
with any person for the purpose of holding, voting or disposing of any
securities of Emmis, or derivative instruments with respect to securities of
Emmis; 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
Emmis, or derivative instruments with respect to securities of Emmis. If a
Locked-Up Holder shall enter into an agreement, arrangement or
understanding to effect 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 Gibson Dunn & Crutcher LLP ("Gibson
Dunn"), 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 Preferred
Shares or Common Shares. In addition, each Locked-Up Holder agrees to
promptly furnish to Gibson Dunn (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) September 30, 2010 and (ii) 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 the lawful and
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.
(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.
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 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.
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 at least one-third (1/3) of the aggregate
outstanding Preferred Shares.
8. 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 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 Emmis'
Class A, Class B or Class C Common Stock.
(iii) "Requisite Locked-Up Holders" shall mean
Locked-Up Holders party hereto beneficially owning more than one-
half of the Subject Preferred Shares.
(iv) "Subject Preferred Shares" shall mean the
Preferred Shares beneficially owned by the Locked-Up Holders on the
date hereof and any Future Preferred Shares.
9. Amendments. This Agreement may not be modified or
amended except in a writing signed by Locked-Up Holders party hereto
beneficially owning more than two-thirds of the Subject Preferred Shares;
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 Locked-
Up Holders party hereto beneficially owning more than two-thirds of the
Subject Preferred Shares plus each adversely affected party.
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, with a
copy to, Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New York, New
York 10166-0193, Attn: Michael Rosenthal, Esq. 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 Emmis 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 investor that has conducted and will continue to
conduct its own investigation into the affairs of Emmis 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, and shall cause its affiliates to, consult with the other
Locked-Up Holders prior to making any public announcement concerning
Emmis and/or its investment in Emmis 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.
17. Expenses. Locked-Up Holders party hereto beneficially
owning more than two-thirds of the Subject Preferred Shares may from time
to time agree in writing that certain expenses to be incurred in connection
with their respective investments in the Preferred Stock 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 Preferred Shares 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 Emmis.
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 Emmis securities such Locked-Up Holder
beneficially 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 Emmis 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.
* * * * *
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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
By: /s/ Don DeFosset
Name: Don DeFosset
Title: General Partner
Address: 3203 Bayshore Blvd
#19P
City/State/Zip: Tampa, FL 33629
Country: USA
Telecopy: 813 902 9408
Preferred Shares Beneficially
Owned by Such Locked-Up
Holder: 101,210
Common Shares Beneficially
Owned by Such Locked-Up
Holder: 0
LOCKED-UP HOLDER
DOUBLE DIAMOND
PARTNERS
By: /s/ Kevan A. Fight
Name: Kevan A. Fight
Title: General Partner
Address: 6787 Walter Waite Ct.
City/State/Zip: Brecksville, OH
44141
Country: US
Telecopy:___________________
__________
Preferred Shares Beneficially
Owned by Such Locked-Up
Holder: 51,000
Common Shares Beneficially
Owned by Such Locked-Up
Holder:
LOCKED-UP HOLDER
RADOFF FAMILY
FOUNDATION
By: /s/ Bradley L. Radoff
Name: Bradley L. Radoff
Title: President
Address: 1177 West Loop South,
Suite 1625
City/State/Zip: Houston, TX
77027
Country: United States
Telecopy: 832 202 0207
Preferred Shares Beneficially
Owned by Such Locked-Up
Holder: 10,000
Common Shares Beneficially
Owned by Such Locked-Up
Holder: N/A
LOCKED-UP HOLDER
BRADLEY L. RADOFF
By: /s/ Bradley L. Radoff
Name: Bradley L. Radoff
Title:
Address: 1177 West Loop South,
Suite 1625
City/State/Zip: Houston, TX
77027
Country: United States
Telecopy: 832 202 0207
Preferred Shares Beneficially
Owned by Such Locked-Up
Holder: 37,500
Common Shares Beneficially
Owned by Such Locked-Up
Holder: N/A
LOCKED-UP HOLDER
R2 INVESTMENTS, LDC
By: Amalgamated Gadget, L.P,
its Investment Manager
By: Scepter Holdings, Inc., its
General Partner
By: /s/ Noel Nesser
Name: Noel Nesser
Title: CFO & Treasurer
Address: 301 Commerce Street
Suite 3200
City/State/Zip: Ft. Worth, TX
76102
Country: USA
Telecopy: 817 332 7463
Preferred Shares Beneficially
Owned by Such Locked-Up
Holder: 337,050
Common Shares Beneficially
Owned by Such Locked-Up
Holder: zero
LOCKED-UP HOLDER
ZAZOVE AGGRESSIVE
GROWTH FUND, L.P.
By: Zazove Associates LLC, its
General Partner
By: /s/ Steven M. Kleiman
Name: Steven M. Kleiman
Title: Chief Operating
Officer
Address: 1001 Tahoe Blvd.
City/State/Zip: Incline Village,
NV 89451
Country: USA
Telecopy: 847 239 7101
Preferred Shares Beneficially
Owned by Such Locked-Up
Holder: 117,098
Common Shares Beneficially
Owned by Such Locked-Up
Holder: 0
LOCKED-UP HOLDER
THIRD POINT LLC
By: /s/ James P. Gallagher
Name: James P. Gallagher
Title: Chief Administrative
Officer
Address: 390 Park Avenue, 18th
floor
City/State/Zip: New York, NY
10022
Country: USA
Telecopy: 212 318 3809
Preferred Shares Beneficially
Owned by Such Locked-Up
Holder: 216,000
Common Shares Beneficially
Owned by Such Locked-Up
Holder: N/A
LOCKED-UP HOLDER
LKCM PRIVATE DISCIPLINE
MASTER FUND, SPC
By: /s/ J. Bryan King
Name: J. Bryan King
Title: Vice President of
LKCM Alternative
Management, LLC, general
partner of LKCM
Private Discipline Management,
L.P., general
partner of LKCM Private
Discipline Master
Fund, SPC
Address: 301 Commerce Street.
Suite 1600
City/State/Zip: Fort Worth Texas
76102
Country: USA
Telecopy: 817-332-4630
Preferred Shares Beneficially
Owned by Such Locked-Up
Holder: 100,000
Common Shares Beneficially
Owned by Such Locked-Up
Holder: N/A
ANNEX A
This Joinder to the Lock-Up Agreement, dated as of July 9, 2010, by and
among the Locked-Up Holders signatory thereto (the "Agreement"), is
executed and delivered by _________________ (the "Joining Party") as of
__________, 2010. 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.
* * * * *
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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:___________________
__________
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 , 2010 is being delivered
pursuant to Section 3 of the Lock-Up Agreement (the "Agreement"), dated as
of July 9, 2010, by and among the Locked-Up Holders signatory thereto.
The undersigned, on behalf of itself and its affiliates, certifies, represents
and warrants that, as of the date hereof, it has acquired or transferred and
is the beneficial owner of Preferred Shares and Common Shares of Emmis as
follows.
Preferred
Shares
Class A
Common
Stock
Class B
Common
Stock
Class C
Common
Stock
Previously
Owned
Acquired
Transferred
Current
Ownership
The undersigned, on behalf of itself and its affiliates, further
certifies, represents and warrants that, as of the date hereof, it does not
beneficially own any other securities of Emmis other than as set forth herein,
and that it is not a party to any swaps or other derivative transactions
relating to Preferred Shares or Common Shares of Emmis, except as disclosed on
Schedule 1 hereto.
* * * * *
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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]
Each capitalized term used herein but not otherwise defined shall have the
meaning set forth in the Agreement.