VOTING AGREEMENT
Exhibit
(d)(8)
EXECUTION COPY
VOTING AGREEMENT, dated as of November 14, 2011 (this “Agreement”), by and among Emmis
Communications Corporation, an Indiana corporation (the “Company”), J. Xxxxx Xxxxxxx (the
“Employee Shareholder”) and the other shareholder of the Company whose name is set forth on
the signature pages to this Agreement (the “Shareholder”).
RECITALS
(a) The Company and the Shareholder have entered into (i) a Securities Purchase Agreement,
dated as of November 7, 2011 (as the same may be amended or modified from time to time in
accordance with its terms, the “Purchase Agreement”) relating to 53,100 shares (the
“Sale Shares”) of 6.25% Series A Cumulative Convertible Preferred Stock of the Company, par
value $0.01 per share (the “Preferred Stock”) and (ii) a Confirmation of a Total Return
Swap Transaction relating to the Sale Shares, of even date herewith (as the same may be amended or
modified from time to time in accordance with its terms, the “TRS” and collectively with
this Agreement and the Purchase Agreement, the “Transaction Documents”).
(b) As a condition and inducement to entering into the Transaction Documents, and in
accordance with Section 23-1-31-2 (Agreements Authorized) of the Indiana Business Corporation Law,
the Company, the Employee Shareholder and the Shareholder have agreed, on the terms and conditions
contained herein, to enter into this Agreement which sets forth the agreements of the Company, the
Employee Shareholder and, for so long as either of the other Transaction Documents have not been
terminated in accordance with its terms, the Shareholder with respect to, among other things, the
voting of the Subject Shares (as defined below).
Accordingly, in consideration of the mutual representations, warranties, covenants and
agreements contained in this Agreement, the parties to this Agreement, intending to be legally
bound, agree as follows:
ARTICLE I
DEFINITIONS
1.1 General. Capitalized terms used but not defined in this Agreement have the
meanings ascribed to them in the Purchase Agreement.
1.2 Certain Defined Terms. For purposes of this Agreement, the following capitalized
terms shall have the following meanings:
“Beneficial Owner” means, with respect to any security, any person who owns, directly
or indirectly, through any Contract, arrangement, understanding, relationship or otherwise, has or
shares (a) voting power which includes the power to vote, or to direct the voting of, such
security, and/or (b) investment power which includes
the power to dispose, or to direct the
disposition, of such security; and such term shall otherwise be interpreted consistently with the
correlative term “beneficial ownership” as defined in Rule 13d-3 adopted by the SEC under the
Exchange Act.
“Contract” means any indenture, agreement, contract, commitment, license, permit,
authorization or other binding understanding, whether written or oral.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Subject Shares” means, with respect to the Shareholder, the Sale Shares, together
with any shares of Preferred Stock or other voting securities of the Company acquired by the
Shareholder after the date of this Agreement in respect of the Sale Shares, including by way of a
stock dividend or distribution, split-up, recapitalization, combination, exchange of shares or
similar transaction and with respect to the Employee Shareholder, all shares of the Company’s
Voting Stock owned beneficially by him.
“Vote” means (a) voting in person or by proxy in favor of or against any action,
approval or agreement, (b) consenting to or withholding consent from any action, approval or
agreement (whether or not such consent is in writing) and (c) taking any similar action in favor of
or against any action, approval or agreement; and “Voting” shall have the correlative
meaning.
ARTICLE II
VOTING
2.1 Agreement to Vote. If a Vote is solicited in relation to the Preferred Stock, the
Shareholder and the Employee Shareholder agree that it and he (a) shall not take (or refrain from
taking) any action with respect to the Subject Shares other than in accordance with the prior
written instructions of the Company and (b) shall take (or refrain from taking) any action with
respect to the Subject Shares in accordance with the prior written instructions of the Company;
provided that the Shareholder and the Employee Shareholder shall not be required to take any action
or refrain from taking any action if such action is prohibited under applicable law, rule or order
or would require the Shareholder or the Employee Shareholder to commence, join or otherwise
participate in any litigation; provided further, and notwithstanding the above, the Company shall
have the right to effect any Vote on behalf of the Shareholder pursuant to the terms of the proxy
coupled with an interest attached hereto as Exhibit A. The voting rights granted pursuant
to this Section 2.1 shall be irrevocable and coupled with an interest.
2.2 No Ownership Interest. Except as expressly provided in this Agreement, nothing
contained in this Agreement shall be deemed to vest in the Company any direct or indirect ownership
or incidence of ownership of, or with respect to, any
Subject Shares. All rights, ownership and economic benefits of and relating to the Subject
Shares shall remain vested in and belong to the Employee Shareholder or the Shareholder, as
applicable, subject to the terms of the other Transaction Documents.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Shareholder represents and warrants to the Company as follows:
3.1 Ownership. As of the date of this Agreement and except as provided in this
Agreement, the Shareholder is the sole Beneficial Owner of the Sale Shares.
3.2 Voting. Other than as provided in this Agreement or the Transaction Documents,
the Shareholder has the sole power to Vote or direct the Vote of, dispose of and issue instructions
with respect to the Subject Shares, and the sole power to agree to all of the matters set forth in
this Agreement, with no limitations, qualifications or restrictions on such powers, subject to
applicable United States federal securities laws and this Agreement. Other than the other
Transaction Documents, the Shareholder: (a) is not a party to any Contract (including any voting
agreement) with respect to any of the Subject Shares; (b) has not deposited any of the Subject
Shares into any voting trust; and (c) has not granted any proxy or power of attorney with respect
to any of the Subject Shares, in each case inconsistent with the Shareholder’s obligations under
the Transaction Documents.
ARTICLE IV
OTHER COVENANTS
4.1 No Inconsistent Agreements. The Shareholder covenants and agrees that the
Shareholder shall not: (a) enter into any Contract (including any voting agreement) with respect to
any of the Subject Shares; (b) deposit any Subject Shares into any voting trust; or (c) grant any
proxy or power of attorney with respect to any of the Subject Shares, in each case inconsistent
with the Shareholder’s obligations under the Transaction Documents.
4.2 No Transfers. The Shareholder agrees that, other than in accordance with the
Transaction Documents, it shall not directly or indirectly: (a) sell, assign, give, tender, offer,
exchange or otherwise transfer any of the Subject Shares; (b) encumber, pledge, hypothecate or
otherwise permit (including by omission) the creation or imposition of any Encumbrance on any of
the Subject Shares; or (c) enter into any Contract with respect to any of the foregoing, in each
case without the prior written consent of the Company.
4.3 No Registrations of Transfers. The Shareholder (a) agrees that it shall not
request that the Company or its transfer agent register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing any of the Subject
Shares and (b) consents to the entry of stop transfer instructions by the Company of any transfer
of the Subject Shares, unless such transfer is made in compliance with Section 4.2.
4.4 Further Assurances. From time to time, at the Company’s request and without
further consideration, the Shareholder agrees that it shall execute and deliver such additional
documents and take all such further action as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
ARTICLE V
MISCELLANEOUS
5.1 Term. This Agreement shall terminate automatically and be of no further force or
effect upon delivery of the Sale Shares to the Company in accordance with the terms of the TRS.
5.2 Expenses. Each party shall bear its own costs and expenses in connection with this
Agreement, including all legal, accounting, financial advisory, consulting and all other fees and
expenses of third parties.
5.3 Successors and Assigns. All of the terms and provisions of this Agreement shall
inure to the benefit of and be binding upon the parties hereto and their respective successors and
assigns.
5.4 Governing Law. This Agreement shall be governed by and interpreted and enforced in
accordance with the Laws of the State of Indiana, without giving effect to any choice of law or
conflict of laws rules or provisions (whether of the State of Indiana or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the State of Indiana.
5.5 Consent to Jurisdiction. The courts of the State of Indiana shall have exclusive
jurisdiction to settle any dispute arising out of or in connection with this Agreement. Any
proceedings in connection with such dispute shall be brought in the courts of the State of Indiana
sitting in Xxxxxx County, Indiana, the court of the United States of America for the Southern
District of Indiana, and appellate courts having jurisdiction of appeals from any of the foregoing.
Each party hereto waives (and agrees not to raise) any objection, on the ground of forum non
conveniens or on any other ground, to the taking of proceedings in such State of Indiana courts.
Each party hereto also agrees that a judgment against it in proceedings brought in the State of
Indiana shall be conclusive and binding upon it and may be enforced in any other jurisdiction. Each
party hereto irrevocably submits and agrees to submit to the jurisdiction of the courts of the
State of Indiana sitting in Xxxxxx County, Indiana, the court of the United States of America for
the Southern District of Indiana and appellate courts having jurisdiction of appeals from any of
the foregoing.
5.6 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS.
5.7 Counterparts. This Agreement may be executed in counterparts, and either party
hereto may execute any such counterpart, each of which when executed and delivered shall be deemed
to be an original and both of which counterparts taken together shall constitute but one and the
same instrument. This Agreement shall become effective when each party hereto shall have received a
counterpart hereof signed by the other party hereto. The parties agree that the delivery of this
Agreement may be effected by means of an exchange of electronically transferred signatures.
5.8 Notices. All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to a Shareholder, shall be delivered or sent by hand delivery, mail, telex, overnight
courier or facsimile transmission to the address or facsimile number specified on the signature
pages hereto; and
(b) if to the Company or the Employee Shareholder, shall be delivered or sent by mail,
overnight courier or facsimile transmission to Emmis Communications Corporation, One Emmis Plaza,
00 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000 (Facsimile No: 317-684-5583), Attention:
J. Xxxxx Xxxxxxx, Esq., with a copy to Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxx X. Xxxxx, Esq. (Facsimile No: (000) 000-0000).
5.9 Confidentiality. Except as may be required by applicable law, rule or regulation
or legal process, until the Company has made public disclosure of this Agreement, the Shareholder
shall not disclose the existence of or the terms of this Agreement or any of the other Transaction
Documents without the prior written consent of the Company, provided, however, that a Shareholder
may disclose the contents of this Agreement or any Transaction Document without such written
consent (i) to any professionals employed or engaged by the Shareholder who have a need to know
such information, (ii) to the extent requested by any governmental authority or self-regulatory
entity having or asserting jurisdiction over it (after the Company has had a reasonable opportunity
to prevent such disclosure) or (iii) to enforce its rights and remedies hereunder.
5.10 Third Party Beneficiaries. No provision of this Agreement is intended to confer
upon any person or entity other than the parties hereto any rights or remedies hereunder.
5.11 Entire Agreement. This Agreement and the other Transaction Documents set forth
the entire understanding of the parties hereto with respect to the Transactions. Any and all
previous agreements and understandings between or among the
parties regarding the subject matter hereof, whether written or oral, are superseded by this
Agreement and the other Transaction Documents.
5.12 Captions. All captions contained in this Agreement are for convenience of
reference only, do not form a part of this Agreement and shall not affect in any way the meaning or
interpretation of this Agreement.
5.13 Severability. Any provision of this Agreement which is invalid or unenforceable
in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability
without invalidating or rendering unenforceable the remaining provisions hereof; and any such
invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.
5.14 Specific Performance. The Company, the Employee Shareholder and the Shareholder
agrees that irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed by them in accordance with the terms hereof and that each party shall
be entitled to specific performance of the terms hereof, in addition to any other remedy at law or
equity.
5.15 Interpretation. Any rule of construction or interpretation otherwise requiring
this Agreement to be construed or interpreted against any party by virtue of the authorship of this
Agreement shall not apply to the construction and interpretation hereof.
[Signature pages follow]
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized
officers of the parties to this Agreement or other authorized person as of the date first written
above.
| EMMIS COMMUNICATIONS CORP. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| J. Xxxxx Xxxxxxx | ||||
| THIRD POINT PARTNERS QUALIFIED L.P. BY: THIRD POINT LLC, ITS INVESTMENT MANAGER |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Address of Principal Executive Office:
c/o Third Point LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
c/o Third Point LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Attention: Operations
EXHIBIT A
Irrevocable Proxy
The undersigned hereby irrevocably constitutes and appoints the duly-appointed Secretary of
the Company from time to time (the “Proxy Holder”) as the sole and exclusive proxy for the
undersigned, with full power of substitution, resubstitution and revocation, to attend all meetings
of stockholders of the Company, to cast all votes that the undersigned is entitled to cast with
respect to any amendments to the Second Amended and Restated Articles of Incorporation of Emmis
Communications Corp., an Indiana corporation (the “Company”), and to otherwise represent the
undersigned with respect to the Sale Shares (as defined in the Securities Purchase Agreement, dated
the date hereof, by and among the Company and the undersigned (the “Securities Purchase
Agreement”), with all powers that the undersigned would have if personally present at any
meeting of stockholders of the Company, in each case, in a manner that is proportionate to the
manner in which all holders of shares of voting securities vote in respect of any given matter.
The undersigned irrevocably appoints the Proxy Holder, with full power of substitution,
appointment and revocation, in its name, place and stead, as the undersigned’s true and lawful
representative, attorney-in-fact and agent, to make, execute, sign, acknowledge, verify, swear to
and deliver any consent of stockholders of the Company with respect to the Sale Shares held by the
undersigned to do and perform each and every act and thing as fully as the undersigned might or
could do as a holder of the Sale Shares, in each case, in a manner that is proportionate to the
manner in which all holders of shares of voting securities vote in respect of any given matter.
This proxy and power-of-attorney are expressly limited to the Sale Shares, and no rights are
granted with respect to any shares other than the Sale Shares.
The undersigned affirms that the foregoing proxy and power-of-attorney are given in connection
with the Transactions (as defined in the Securities Purchase Agreement) and that the proxy and
power-of-attorney are each coupled with an interest. Such proxy and power of attorney each will be
irrevocable and be effective for so long as permitted under the laws of the State of Indiana.
____________________________
Third Point Partners Qualified L.P.
By: Third Point LLC, Its Investment
Manager
| Acknowledged and Agreed: |
||||
| J. Xxxxx Xxxxxxx | ||||
