sctovi
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
SCHEDULE 13E-3
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
EMMIS COMMUNICATIONS CORPORATION
(Name of Subject Company (Issuer))
Emmis Communications Corporation (Issuer and Filing Person)
Jeffrey H. Smulyan (Filing Person)
JS Acquisition, LLC (Filing Person)
JS Acquisition, Inc. (Filing Person)
(Name of Filing Person (Identifying Status as Offeror, Issuer or Other Person))
6.25% Series A Cumulative Convertible Preferred Stock, Par Value $0.01
(Title of Class of Securities)
291525202
(CUSIP Number of Class of Securities)
c/o James A. Strain
Taft Stettinius & Hollister LLP
One Indiana Square
Suite 3500
Indianapolis, Indiana 46204
Telephone: (317) 713-3500
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
James M. Dubin, Esq.
Kelley D. Parker, Esq.
Lawrence G. Wee, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Telephone: (212) 373-3000
CALCULATION OF FILING FEE
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Transaction Valuation(1) |
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Amount of Filing Fee(2) |
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$68,796,573
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$4,906 |
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(1) |
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The transaction valuation is estimated solely for purposes of calculating the filing fee. As
of May 24, 2010, Emmis Communications Corporation (Emmis) had outstanding 2,809,170
shares of 6.25% Series A Cumulative Convertible Preferred Stock, par value $0.01 (the
Existing Preferred Stock). The calculation is based on the assumption that all outstanding
shares of the Existing Preferred Stock will be acquired by Emmis in the Exchange Offer, and is
based on the average of the high and low sales prices of the Existing Preferred Stock on May
24, 2010 being $24.49, as reported on the Nasdaq Global Select Market. Based on this
average, the total transaction value is equal to $68,796,573. |
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(2) |
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The amount of the filing fee is calculated in accordance with Rule 0-11 of the Securities
Exchange Act of 1934, as amended, and Fee Rate Advisory #4 for Fiscal Year 2010, issued
December 12, 2009. The fee equals $71.30 per one million dollars of transaction value. |
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Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing. |
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Amount Previously Paid:
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N/A
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Filing Party:
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N/A |
Form or Registration No.:
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N/A
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Date Filed:
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N/A |
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Check the box if the filing relates solely to preliminary communications made before the
commencement of a tender offer. |
Check the appropriate boxes below to designate any transactions to which the statement relates: |
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third-party tender offer subject to Rule 14d-1. |
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issuer tender offer subject to Rule 13e-4. |
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going-private transaction subject to Rule 13e-3. |
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amendment to Schedule 13D under Rule 13d-2. |
Check the following box if the filing is a final amendment reporting the results of the tender
offer: o
TABLE OF CONTENTS
This combined Issuer Tender Offer Statement on Schedule TO and Rule 13e-3 Transaction
Statement (collectively the Schedule TO/13E-3) relates to the offer (the Exchange Offer) by
Emmis Communications Corporation, an Indiana corporation (Emmis) to issue up to $84,275,100
aggregate principal amount of new 12% Senior Subordinated Notes due 2017 (the New Notes) in
exchange for any and all shares of its 6.25% Series A Cumulative Convertible Preferred Stock, Par
Value $0.01 (the Existing Preferred Stock), at a rate of $30.00 principal amount of New Notes for
each $50.00 liquidation preference of Existing Preferred Stock, subject to the terms and conditions
of the Proxy Statement/Offer to Exchange (as amended from time to time, the Proxy Statement/Offer
to Exchange) attached hereto as Exhibit (a)(1)(i).
The Proxy Statement/Offer to Exchange is also being filed as a Preliminary Proxy Statement on
Schedule 14A with respect to a proposal to amend the terms of the Existing Preferred Stock that are
set forth in Emmis second amended and restated articles of incorporation (the Articles of
Incorporation) to:
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eliminate the rights of the holders of the Existing Preferred Stock to require
Emmis to redeem all or a portion of their shares on the first anniversary after the
occurrence of certain going private transactions and nominate directors to Emmis
board of directors; and |
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provide for the automatic conversion upon the proposed merger of JS Acquisition,
Inc. with and into Emmis, with Emmis surviving the merger the
Subsequent Merger) (i) of the Existing
Preferred Stock (other than the Existing Preferred Stock held by Alden Global
Capital and its affiliates (collectively, Alden)) not exchanged for the new 12%
Senior Subordinated Notes due 2017 (the New Notes) into that amount of
consideration that would be paid to holders of Class A Common Stock into which the
Existing Preferred Stock was convertible immediately prior to the Subsequent Merger
and (ii) of the Existing Preferred Stock held by Alden into the New Notes at a rate
of $30.00 principal amount of New Notes per $50.00 of liquidation preference of
Existing Preferred Stock, as described in the accompanying Proxy Statement/Offer
to Exchange. |
Since the Exchange Offer is a tender offer by Emmis for its own Existing Preferred Stock, this
Schedule TO/13E-3 is intended to satisfy the reporting requirements of Rule 13e-4(c)(2) of the
Securities Exchange Act of 1934. Because the Exchange Offer is part of a series of transactions
that may result in Emmis being taken private by JS Acquisition, LLC.,
pursuant to Instruction J to Schedule TO, this document is intended to constitute a combined
Schedule TO and Schedule 13E-3. For the purposes of this Schedule TO/13E-3, where disclosure is
required by both Schedule TO and Schedule 13E-3, the response to the required disclosure is set
forth under the applicable item of Schedule TO. Information that is required by Schedule 13E-3 but
not by Schedule TO is set forth by reference to the applicable item of Schedule 13E-3 under item 13
of this Schedule TO/13E-3.
The information in the Proxy Statement/Offer to Exchange, including all schedules and annexes
thereto, is hereby expressly incorporated herein by reference in response to all the items of this
Schedule TO/13E-3.
All capitalized terms used in this Schedule TO/13E-3 without definition have the meanings
ascribed to them in the Proxy Statement/Offer to Exchange.
As of the date of this Schedule TO/13E-3, the Exchange Offer has not yet commenced, because
Emmis has also filed the Proxy Statement/Offer to Exchange as a Preliminary Proxy Statement on
Schedule 14A. The Exchange Offer will commence upon the mailing of the Proxy Statement/Offer to
Exchange and related letter of transmittal to the holders of the Existing Preferred Stock.
Item 1. Summary Term Sheet
Summary term sheet. The information set forth in the Proxy Statement/Offer to Exchange in the
section entitled Summary Term Sheet is incorporated herein by reference.
Item 2. Subject Company Information
(a) Name and address. The information set forth in the Proxy Statement/Offer to Exchange
under Summary Term SheetInformation regarding Emmis is incorporated herein by reference.
(b) Securities. The subject class of securities is the 6.25% Series A Cumulative Convertible
Preferred Stock, par value $0.01 per share. As of May 1, 2010, there were 2,809,170 shares of
Existing Preferred Stock outstanding.
(c) Trading market and price. The information set forth in the Proxy Statement/Offer to
Exchange under Price Range and other Information with Respect to the Existing Preferred Stock is
incorporated herein by reference.
Item 3. Identity and Background of Filing Person
(a) Name and address. Emmis is both a filing person and the subject company. The
information set forth in the Proxy Statement/Offer to Exchange under Summary Term Sheet
Information regarding Emmis is incorporated herein by reference.
The information set forth in the Proxy Statement/Offer to Exchange under Management relates to the executive officers and directors of Emmis and is incorporated herein by
reference.
Item 4. Terms of the Transaction
(a) Material terms. The information set forth in the Proxy Statement/Offer to Exchange under
Summary Term Sheet, The Transactions, The Proposal, The Exchange Offer, Description of the
New Notes and Certain Material U.S. Federal Income Tax Consequences is incorporated herein by
reference.
(b) Purchases. The information set forth in the Proxy Statement/Offer to Exchange under
Special FactorsExecutive Officer and Director Participation; Interests of Certain Persons in the
Transactions is incorporated herein by reference.
Item 5. Past Contacts, Transactions, Negotiations and Agreements
(e) Agreements involving the subject companys securities. The information set forth in the
Proxy Statement/Offer to Exchange under Special FactorsAgreements Involving Emmis Securities,
Special FactorsExecutive Officer and Director Participation; Interests of Certain Persons in the
Transactions, and The Transactions is incorporated herein by reference.
Item 6. Purposes of the Transaction and Plans or Proposals
(a) Purposes. The information set forth in the Proxy Statement/Offer to Exchange under
Summary Term Sheet, Questions and Answers about the Proposed Amendments, the Transactions and
the Special Meeting, The Transactions, Special FactorsPurposes, Alternatives and Reasons and
Effects Emmis and Special FactorsPurposes, Alternatives and Reasons and
EffectsPurchaser Group is incorporated herein by reference.
(b) Use of securities acquired. The Existing Preferred stock accepted for exchange will be
retired and cancelled. The information set forth in the Proxy Statement/Offer to Exchange under
Purposes, Alternatives and Reasons and Effects EmmisEffects is incorporated herein by
reference.
(c) Plans. The information set forth in the Proxy Statement/Offer to Exchange under Summary
Term Sheet, Questions and Answers about the Proposed Amendments, the Transactions and the Special
Meeting, The Transactions, Special Factors and The Exchange Offer is incorporated herein by
reference.
Item 7. Source and Amount of Funds or Other Consideration
(a) Source of funds, (b) Conditions, (d) Borrowed funds. The information set forth in the
Proxy Statement/Offer to Exchange under Special FactorsSource and Amount of Funds and
The TransactionsAlden Purchase Agreement is incorporated herein by reference.
Item 8. Interest in Securities of the Subject Company
(a) Securities ownership. The information set forth in the Proxy Statement/Offer to Exchange
under Principal Shareholders and Summary Term SheetSummary of the TransactionsInformation
regarding Jeffrey H. Smulyan, JS Parent and JS Acquisition and Alden.
(b) Securities transactions. The information set forth in the Proxy Statement/Offer to
Exchange under Special FactorsInterests in Securities of Emmis is incorporated herein by
reference.
Item 9. Persons/Assets, Retained, Employed, Compensated or Used
(a) Solicitations or recommendations. The information set forth in the Proxy Statement/Offer
to Exchange under Special FactorsExecutive Officer and Director Participation; Interests of
Certain Persons in the Transactions and The Special MeetingSolicitation of Proxies is
incorporated herein by reference.
Item 10. Financial Statements
(a) Financial information. The information set forth in the Proxy Statement/Offer to
Exchange under Price Range and other Information with Respect to the Existing Preferred Stock,
Selected Financial Information, Ratio of Earnings to Fixed Charges and in Item 8Financial
Statements and Supplementary Data in Emmis Annual Report on Form 10-K for the fiscal year ended
February 28, 2010, which is attached as Appendix I to the Proxy Statement/Offer to Exchange, is
incorporated herein by reference.
(b) Pro forma information. Not applicable. Pro forma financial information is not required
with respect to the Exchange Offer or the other Transactions because Mr. Smulyan will beneficially
own more than a majority of the voting securities of Emmis both before and after the Transactions.
Item 11. Additional Information.
(a) Agreements, regulatory requirements and legal proceedings. The information set forth
in the Proxy Statement/Offer to Exchange under Summary of the New NotesTrust Indenture Act of
1939 is incorporated herein by reference.
(b) Other material information. Not applicable.
Item 12. Exhibits
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Exhibit |
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Description |
(a)(1)(i)*
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Proxy Statement/Offer to
Exchange dated May 27, 2010. |
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(a)(1)(ii)*
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Letter of Transmittal. |
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(a)(1)(iii)*
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Notice of Guaranteed Delivery. |
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(a)(1)(iv)*
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Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees. |
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(a)(1)(v)*
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Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees. |
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(a)(1)(vi)*
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Guidelines for Certification of Taxpayer Identification Number on
Substitute IRS Form W-9. |
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(a)(1)(vii)
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Form of Indenture (the New Notes Indenture) between Emmis and U.S. Bank
National Association, as Trustee, with respect to the 12% Senior
Subordinated Notes due 2017 (incorporated by reference to Exhibit T3C to
Emmis Application on Form T-3 dated May 27, 2010). |
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(a)(l)(viii)
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Form of New Note (included as Exhibit A to the New Notes Indenture). |
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Exhibit |
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Description |
(a)(l)(ix)
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Joint Press Release, dated April 26, 2010, issued by JS Acquisition, Inc.
and Alden Global Capital (incorporated by reference to the Statement on
Schedule TO of JS Acquisition dated April 26, 2010). |
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(a)(l)(x)
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Press Release, dated May 26, 2010, issued by Emmis Communications
Corporation (incorporated by reference to the Statement on Schedule TO-C & DEFA 14A of Emmis
Communications Corporation, dated May 26, 2010). |
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(d)(i)
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Letter of Intent, dated April 26, 2010, by and between Alden Global
Capital and JS Acquisition (incorporated by reference to the Statement on
Schedule TO of JS Acquisition, dated April 26, 2010). |
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(d)(ii)*
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Securities Purchase
Agreement, dated May 24, 2010 by and among
Alden Global Distressed Opportunities Master Fund, L.P., Alden Global Value
Recovery Master Fund, L.P., Alden Media Holdings, LLC, JS Acquisition, LLC
and Jeffrey H. Smulyan (attached as Appendix II to the Proxy
Statement/Offer to Exchange). |
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(d)(iii)*
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Form of Amended and Restated Operating Agreement, to be entered into by
and among Alden Media Holdings, LLC, Jeffrey H. Smulyan, JS Acquisition,
LLC and certain other parties (attached as Appendix III to the Proxy
Statement/Offer to Exchange). |
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(d)(iv)*
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Agreement and Plan of Merger, dated May 25, 2010, by and among Emmis,
JS Acquisition, LLC and JS Acquisition, Inc. (attached as Appendix IV to
the Proxy Statement/Offer to Exchange). |
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(d)(v)*
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Form of Registration Rights Agreement to be entered into by and among JS
Acquisition, LLC, Alden Media Holdings, LLC and Jeffrey H. Smulyan on the
date of the closing of the transactions contemplated by the Alden Purchase
Agreement. |
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(d)(vi)
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Rollover Agreement, dated
May 24, 2010, by and among JS Acquisition,
LLC, and the Rolling Shareholders (as defined therein (incorporated by reference to Jeffrey H.
Smulyans Schedule 13D/A filed with the Commission on May 27, 2010)). |
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Filed herewith |
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Previously filed |
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To be filed by amendments |
Item 13. Information Required by Schedule 13E-3
Because this Schedule TO/13E-3 is intended to constitute a combined Schedule TO and Schedule
13E-3, the information set forth in this Item 13 includes all the information that is required by
the items of Schedule 13E-3 that is not required by Schedule TO and described in response to the
Schedule TO items above.
Schedule 13E-3, Item 2. Subject Company Information.
(d) Dividends. The information set forth in the Proxy Statement/Offer to Exchange under
Price Range and other Information with Respect to the Existing Preferred Stock is incorporated
herein by reference.
(e) Prior public offerings. Not applicable.
(f) Prior stock purchases. The information set forth in the Proxy Statement/Offer to
Exchange under Price Range and other Information with Respect to the Existing Preferred Stock is
incorporated herein by reference.
Schedule 13E-3, Item 3. Terms of the Transaction.
(a) Name and address. Mr. Smulyan, JS Acquisition, LLC and JS Acquisition, Inc. are all
filing persons for purposes of the Schedule 13E-3. The information set forth in the Proxy
Statement/Offer to Exchange under Management and
Summary Term SheetInformation regarding Jeffrey H.
Smulyan, JS Parent and JS Acquisition and Alden and in Schedule A is incorporated herein by
reference.
(b) Business and background of entities. The information set forth in the Proxy
Statement/Offer to Exchange under Special FactorsInformation regarding Jeffrey H.
Smulyan, JS Parent and JS Acquisition and Alden is incorporated herein by reference.
(c) Business and background of natural persons. The information set forth in the Proxy
Statement/Offer to Exchange under Management,
Information regarding and in Schedule A is incorporated herein by
reference.
Schedule 13E-3, Item 4. Terms of the Transaction.
(c) Different Terms. The information set forth in the Proxy Statement/Offer to Exchange
under Summary Term Sheet, The Transactions, Special Factors, and The Proposal is
incorporated herein by reference.
(d) Appraisal rights. The information contained in the Proxy Statement/Offer to Exchange
under Questions and Answers about the Proposed Amendments, the Transactions and the Special
MeetingWill holders of Existing Preferred Stock be entitled to dissenters rights? is
incorporated herein by reference.
(e) Provisions for unaffiliated securities holders. None.
(f) Eligibility for listing or trading. The information contained in the Proxy
Statement/Offer to Exchange under Summary of the New NotesNo Listing is incorporated herein by
reference.
Schedule 13E-3, Item 5. Past Contacts, Transactions, Negotiations and Agreements.
(a) Transactions. The information set forth in the Proxy Statement/Offer to Exchange under
Certain Relationships and Related Party Transactions is incorporated herein by reference.
(b) Significant corporate events and (c) Negotiations or contracts. The information set
forth in the Proxy Statement/Offer to Exchange under Summary Term Sheet, The Transactions and
Special Factors is incorporated herein by reference.
Schedule 13E-3, Item 7. Purposes, Alternatives, Reasons and Effects.
(a) Purposes, (b) Alternatives, (c) Reasons and (d) Effects. The information set
forth in the Proxy Statement/Offer to Exchange under Special FactorsPurposes, Alternatives,
Reasons and EffectsEmmis and Special
FactorsPurposes, Alternatives, Reasons and
EffectsPurchaser Group is
incorporated herein by reference.
Schedule 13E-3, Item 8. Fairness of the Transaction.
(a) Fairness, (b) Factors considered in determining fairness, (d) Unaffiliated Representative,
(e) Approval of directors and (f) Other offers. The information set forth in the Proxy
Statement/Offer to Exchange under Special FactorsFairness
of the Exchange OfferEmmis and Special
FactorsFairness of the Exchange OfferPurchaser Group is incorporated herein by reference.
(c) Approval of security holders. The Exchange Offer does not require shareholder approval.
Approval of the Proposed Amendments, which is necessary for the completion of the Exchange Offer,
requires the affirmative vote of more shares of Common Stock voting
together as a single class, voting in favor than against the Proposed
Amendments, assuming a quorum is present, and holders of at least 2/3 of the
outstanding Existing Preferred Stock, voting as a separate class. The Subsequent Merger will
require the approval of a majority of the outstanding Common Stock at Emmis. The information set
forth in the Proxy Statement/Offer to Exchange under Summary Term Sheet, Questions and Answers
about the Proposed Amendments, the Transactions and the Special Meeting, The Transactions and
Special Factors is incorporated herein by reference.
Schedule 13E-3, Item 9. Reports, Opinions, Appraisals and Negotiations.
(a) Report, opinion or appraisal, (b) Preparer and summary of the report, opinion or
appraisal and (c) Availability of documents. The information set forth in the Proxy
Statement/Offer to Exchange under Special FactorsReports, Opinions, Appraisals and
NegotiationsEmmis and Special FactorsReports,
Opinions, Appraisals and NegotiationsPurchaser Group is
incorporated herein by reference.
Schedule 13E-3, Item 10. Sources and Amount of Funds or Other Consideration.
(c) Expenses. The information set forth in the Proxy Statement/Offer to Exchange under
Special FactorsSource and Amount of Funds and Special FactorsFees and Expenses is
incorporated herein by reference.
Schedule 13E-3, Item 12. Solicitation or Recommendation.
(d) Intent to tender or vote in a going-private transaction. The information set forth in
the Proxy Statement/Offer to Exchange under Special FactorsExecutive Officer and Director
Participation; Interests of Certain Persons in the Transactions is incorporated herein by
reference.
(e) Recommendations of others. Not applicable.
Schedule 13E-3, Item 14. Persons/Assets Retained, Employed, Compensated or Used.
(b) Employees and Corporate Assets. Not applicable.
SIGNATURE
After due 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.
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EMMIS COMMUNICATIONS CORPORATION
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By: |
/s/ J.
Scott Enright
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Name: |
J. Scott Enright |
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Title: |
Executive Vice President, General Counsel and
Secretary |
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JS ACQUISITION, LLC
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By: |
/s/ Jeffrey
H. Smulyan |
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Name: |
Jeffrey
H. Smulyan |
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Title: |
President, Treasurer and Secretary |
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JS ACQUISITION, INC.
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By: |
/s/ Jeffrey
H. Smulyan |
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Name: |
Jeffrey
H. Smulyan |
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Title: |
President, Treasurer and Secretary |
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/s/
Jeffrey
H. Smulyan
Mr. Jeffrey H. Smulyan
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Date:
May 27, 2010
EXHIBIT INDEX
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Exhibit |
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Description |
(a)(1)(i)*
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Proxy Statement/Offer to
Exchange dated May 27, 2010. |
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(a)(1)(ii)*
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Letter of Transmittal. |
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(a)(1)(iii)*
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Notice of Guaranteed Delivery. |
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(a)(1)(iv)*
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Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees. |
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(a)(1)(v)*
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Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees. |
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(a)(1)(vi)*
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Guidelines for Certification of Taxpayer Identification Number on
Substitute IRS Form W-9. |
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(a)(1)(vii)
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Form of Indenture (the New Notes Indenture) between Emmis and U.S. Bank
National Association, as Trustee, with respect to the 12% PIK Senior
Subordinated Notes due 2017 (incorporated by reference to Exhibit T3C to
Emmis Application on
Form T-3, dated May 27, 2010). |
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(a)(l)(viii)
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Form of New Note (included as Exhibit A to the New Notes Indenture). |
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(a)(l)(ix)
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Joint Press Release, dated April 26, 2010, issued by JS Acquisition, Inc.
and Alden Global Capital (incorporated by reference to the Statement on
Schedule TO of JS Acquisition, dated April 26, 2010). |
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(a)(l)(x)
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Press Release, dated May 26, 2010, issued by Emmis Communications Corporation (incorporated by reference to the
Statement on Schedule TO-C & DEFA 14A of Emmis
Communications Corporation, dated May 26, 2010). |
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(d)(i)
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Letter of Intent, dated April 26, 2010, by and between Alden Global
Capital and JS Acquisition (incorporated by reference to the Statement on
Schedule TO of JS Acquisition, dated April 26, 2010). |
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(d)(ii)*
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Securities Purchase
Agreement, dated May 24, 2010 by and among
Alden Global Distressed Opportunities Master Fund, L.P., Alden Global Value
Recovery Master Fund, L.P., Alden Media Holdings, LLC, JS Acquisition, LLC
and Jeffrey H. Smulyan (attached as Appendix II to the Proxy
Statement/Offer to Exchange). |
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(d)(iii)*
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Form of Amended and Restated Operating Agreement, to be entered into by
and among Alden Media Holdings, LLC, Jeffrey H. Smulyan, JS Acquisition,
LLC and certain other parties (attached as Appendix III to the Proxy
Statement/Offer to Exchange). |
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(d)(iv)*
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Agreement and Plan of Merger, dated May 25, 2010, by and among Emmis,
JS Acquisition, LLC and JS Acquisition, Inc. (attached as Appendix IV to
the Proxy Statement/Offer to Exchange). |
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(d)(v)*
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Form of Registration Rights Agreement to be entered into by and among JS
Acquisition, LLC, Alden Media Holdings, LLC and Jeffrey H. Smulyan on the
date of the closing of the transactions contemplated by the Alden Purchase
Agreement. |
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(d)(vi)
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Rollover Agreement, dated
May 24, 2010, by and among JS Acquisition,
LLC, and the Rolling Shareholders (as defined therein) (incorporated
by reference to Jeffrey H. Smulyans Schedule 13D/A, filed with the
Commission on May
27, 2010). |