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EXHIBIT 10.2
AGREEMENT OF MERGER OF
EMMIS COMMUNICATIONS CORPORATION
(AN INDIANA CORPORATION)
AND
EMMIS ESCROW CORPORATION
(AN INDIANA CORPORATION)
AND
EMMIS ESCROW HOLDING CORPORATION
(AN INDIANA CORPORATION)
THIS AGREEMENT is entered into as of March 27, 2001, by and among
EMMIS COMMUNICATIONS CORPORATION, an Indiana corporation (the "Surviving
Corporation"), and EMMIS ESCROW CORPORATION, an Indiana corporation ("Escrow"),
and EMMIS ESCROW HOLDING CORPORATION, an Indiana corporation ("Escrow Holding"
and, together with Escrow, the "Merging Corporations").
WHEREAS, Escrow Holding is a subsidiary of the Surviving Corporation,
and all of its common stock is owned by the Surviving Corporation, and Escrow is
a subsidiary of Escrow Holding, and all of its common stock is owned by Escrow
Holding; and
WHEREAS, Escrow Holding owns 104.5467 shares of the Surviving
Corporation's 12-1/2% Senior Preferred Stock (the "Emmis Senior PIK Preferred
Stock"), and Escrow owns 104.5467 shares of Escrow Holding's 12-1/2% Senior
Preferred Stock (the "Escrow Holding Senior Preferred Stock"); and
WHEREAS, the Surviving corporation intends to complete a corporate
reorganization (the "Reorganization") in which the Surviving Corporation will
become a holding company as described in the Offering Circular of Escrow, dated
March 21, 2001; and
WHEREAS, the parties desire to set forth in this Agreement the terms
and provisions pursuant to which the Merging Corporations will be merged with
and into the Surviving Corporation;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements herein contained, the Surviving Corporation and the Merging
Corporations do hereby agree to make such merger upon the following terms and
conditions:
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ARTICLE I
CLOSING AND EFFECTIVE DATE
SECTION 1. TIME AND PLACE OF CLOSING. The closing (the "Closing") of
the merger contemplated by this Agreement (the "Merger") and all deliveries
required under this Agreement shall take place at the offices of Bose XxXxxxxx
and Xxxxx LLP, 2700 First Indiana Plaza, 000 Xxxxx Xxxxxxxxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000, at 10:00 a.m. on either the date that is
one-hundred nineteen (119) days after the date of this Agreement or on such
earlier date as specified by the Surviving Corporation ( the "Closing Date").
SECTION 2. EFFECTIVE DATE OF MERGER. The effective date of the Merger
shall be 12:01 a.m. on the day immediately following the Closing Date (the
"Effective Date").
SECTION 3. FAILURE TO EFFECT THE REORGANIZATION. If the Reorganization
has not occurred by July 25, 2001, the 12-1/2% Series A Senior Discount Notes
due 2011 of Escrow (the "Notes") shall be automatically and mandatorily
converted into the 13-1/4% Senior Exchangeable Preferred Stock of the Surviving
Corporation (the "Exchangeable Preferred Stock") in accordance with Section 3.10
of the Indenture between Escrow and The Bank of Nova Scotia Trust Company of New
York, as Trustee (the "Trustee"), dated as of March 27, 2001 (the "Indenture"),
and the Surviving Corporation shall issue the Exchangeable Preferred Stock in
exchange for the Notes, with each holder of the Notes receiving $1.00 in
liquidation preference of Exchangeable Preferred Stock for each $1.00 in
accreted value of such holder's Notes. The Exchangeable Preferred Stock shall be
issued with a liquidation preference of $1,000 per share, and the Surviving
Corporation may pay cash in lieu of issuing a share of exchangeable preferred
stock having a liquidation preference less than $1,000.
ARTICLE II
MERGING CORPORATIONS' REPRESENTATIONS
Each of the Merging Corporations represents, warrants and covenants to
the Surviving Corporation as of the date of this Agreement as follows:
(a) Organization. Each Merging Corporation is duly incorporated and
validly existing under the laws of the State of Indiana.
(b) Authorization. The execution, delivery and performance of this
Agreement by each Merging Corporation has been duly authorized by all necessary
corporate action, including all necessary director and shareholder approval.
Each Merging Corporation has full corporate power and authority to execute and
deliver and to perform its obligations under this Agreement. This Agreement is a
legal, valid and binding obligation of the Merging Corporations, enforceable
against the Merging Corporations in accordance with its terms.
(c) Capitalization. The only authorized capital stock of Escrow is its
single class of common stock, only one (1) share of which is issued and
outstanding and held of record by Escrow Holding. The only authorized capital
stock of Escrow Holding is (i) its single class of common stock, only one (1)
share of which is issued and outstanding and held of record by the
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Surviving Corporation, and (ii) the Escrow Holding Senior Preferred Stock, all
of which is held of record by Escrow.
(d) Assets. Escrow owns beneficially and of record all of the Escrow
Holding Senior Preferred Stock, free and clear of all liens, encumbrances and
claims whatsoever, and does not own any other assets or properties. Escrow
Holding owns beneficially and of record all of the Emmis Senior Preferred Stock,
free and clear of all liens, encumbrances and claims whatsoever, and does not
own any other assets or properties.
(e) Liabilities and Contracts. Escrow Holding does not have any
liabilities, whether absolute or contingent, accrued or unaccrued, liquidated or
unliquidated, known or unknown, except as may arise under the Subscription
Agreement between Escrow Holding and Escrow, dated as of March 27, 2001 (the
"Escrow Holding Senior Preferred Stock Subscription Agreement"), and the
Subscription Agreement between the Surviving Corporation and Escrow Holding,
dated as of March 27, 2001 (the "Emmis Senior Preferred Stock Subscription
Agreement"). Escrow does not have any liabilities, whether absolute or
contingent, accrued or unaccrued, liquidated or unliquidated, known or unknown,
other than under and pursuant to the Indenture, the Notes issued pursuant to the
Indenture, the Escrow and Disbursements Agreement among Escrow, the Trustee and
State Street Bank and Trust Company, dated as of March 27, 2001 (the "Escrow
Agreement"), the Purchase Agreement among Escrow and the Initial Purchasers
named therein, dated as of March 21, 2001 (the "Note Purchase Agreement"), the
Escrow Holding Senior Preferred Stock Subscription Agreement and the
Registration Rights Agreement among Escrow and the Initial Purchasers named
therein, dated as of March 27, 2001 (the "Registration Rights Agreement").
Escrow is not in default under the Indenture, the Notes, the Escrow Agreement,
the Note Purchase Agreement, the Escrow Holding Senior Preferred Stock
Subscription Agreement or the Registration Rights Agreement. Escrow Holding is
not in default under the Escrow Holding Senior Preferred Stock Subscription
Agreement or the Emmis Senior Preferred Stock Subscription Agreement. Escrow
Holding is not a party to or bound by any contract, agreement or other
instrument, except for this Agreement, the Escrow Holding Senior Preferred Stock
Subscription Agreement and the Emmis Senior Preferred Stock Subscription
Agreement. Escrow is not a party to or bound by any contract, agreement or other
instrument, except for this Agreement, the Indenture, the Notes, the Escrow
Agreement, the Note Purchase Agreement, the Escrow Holding Senior Preferred
Stock Subscription Agreement and the Registration Rights Agreement.
(e) Continuing Accuracy. Each of the foregoing representations and
warranties in the Article II shall be true and accurate as of the Closing Date
and the Effective Date as if made on and as of each such date.
ARTICLE III
CONSUMMATION OF MERGER
At the Closing, the proper officers of the Surviving Corporation and
the Merging Corporations shall execute on behalf of each corporation Articles of
Merger as required by the Secretary of State of Indiana in order to effectuate
the Merger and such other documents and instruments as counsel for the Surviving
Corporation shall reasonably request. Promptly after
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the Closing, the Surviving Corporation shall cause the Articles of Merger to be
filed with the Secretary of State of Indiana.
ARTICLE IV
CONVERSION OF STOCK
Upon the Effective Date, the following shall occur:
(a) The single outstanding share of common stock of each Merging
Corporation shall automatically, by operation of law, be
canceled.
(b) The outstanding shares of Emmis Senior Preferred Stock shall
automatically, by operation of law, be canceled.
(c) The outstanding shares of Escrow Holding Senior Preferred Stock
shall automatically, by operation of law, be canceled.
ARTICLE V
EFFECT OF MERGER UPON THE SURVIVING
AND MERGING CORPORATIONS
SECTION 1. SURVIVING CORPORATION ENTITY. Upon the Effective Date, the
Merging Corporations shall merge into and become a part of the Surviving
Corporation, which shall survive the Merger and retain its name, and the
separate existence of the Merging Corporations shall cease.
SECTION 2. ATTRIBUTES AND PROPERTY OF THE SURVIVING CORPORATION. Upon
and after the Effective Date, the Surviving Corporation shall possess all the
rights, privileges, powers and franchises, whether of a public or private
nature, of both the Surviving Corporation and each Merging Corporation; and all
property belonging to and liabilities and obligations of each of them shall be
taken and deemed to be transferred to and vested in the Surviving Corporation
without further act or deed.
SECTION 3. LIABILITIES OF THE SURVIVING CORPORATION. Upon and after
the Effective Date, the Surviving Corporation shall be responsible and liable
for all the liabilities and obligations of both the Surviving Corporation and
the Merging Corporations in the same manner and to the same extent as if the
Surviving Corporation had itself incurred or contracted for such liabilities and
obligations, including but not limited to the Notes and the Indenture.
SECTION 4. BY-LAWS OF THE SURVIVING CORPORATION. The By-Laws of the
Surviving Corporation as they exist on the Effective Date shall continue to be
the By-Laws of the Surviving Corporation upon and after the Effective Date until
duly amended.
SECTION 5. ARTICLES OF INCORPORATION OF THE SURVIVING CORPORATION. The
Articles of Incorporation of the Surviving Corporation as they exist on the
Effective Date shall continue
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to be the Articles of Incorporation of the Surviving Corporation upon and after
the Effective Date until duly amended.
SECTION 6. BOARD OF DIRECTORS AND OFFICERS OF THE SURVIVING
CORPORATION. All of the members of the Board of Directors and all of the
officers of the Surviving Corporation on the Effective Date shall be and
continue as directors and officers, respectively, of the Surviving Corporation
after such date, to hold office upon the same terms and the same conditions as
previously existed between each of them, respectively, and the Surviving
Corporation.
ARTICLE VI
MISCELLANEOUS
SECTION 1. FURTHER ASSURANCES. The parties agree that they will cause
to be executed any further and additional documents or instruments as may from
time to time be reasonably required for the purpose of consummating or carrying
out the Merger as contemplated by this Agreement.
SECTION 2. SUCCESSORS AND ASSIGNS.
(a) Subject to Section 2(b) below, neither party may assign this
Agreement without the other party's written consent.
(b) In the event a holding corporation is created and acquires record
ownership of all the issued and outstanding common stock of the Surviving
Corporation prior to the Closing Date, the Surviving Corporation shall be
obligated to assign its rights under this Agreement to such holding company and
to cause such holding company to assume all of the Surviving Corporation's
obligations under this Agreement, in each case effective concurrently with such
acquisition by the holding company.
(c) This Agreement and each of its provisions shall bind and inure to
the benefit of the parties hereto and their respective permitted assignees.
SECTION 3. COVENANT OF THE SURVIVING CORPORATION. The Surviving
Corporation shall not, nor cause or permit any of its subsidiaries to, issue any
debt or non-convertible preferred securities to be offered or sold into the Rule
144A or public high-yield market without the prior written consent of Credit
Suisse First Boston Corporation (which consent shall not be unreasonably
withheld, conditioned or delayed) for a period of thirty (30) days after the
date of this Agreement.
[signature page follows]
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EXECUTED as of the date first above written.
EMMIS COMMUNICATIONS CORPORATION
By:_______________________________________
Printed:__________________________________
Title:____________________________________
"Surviving Corporation"
EMMIS ESCROW CORPORATION
By:_______________________________________
Printed:__________________________________
Title:____________________________________
"Escrow"
EMMIS ESCROW HOLDING CORPORATION
By:_______________________________________
Printed:__________________________________
Title:____________________________________
"Escrow Holding"
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