VOTING AGREEMENT
Exhibit (d)(2)
EXECUTION COPY
VOTING AGREEMENT, dated as of November 28, 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 22, 2011 (as the same may be amended or modified from time to time in accordance with
its terms, the “Purchase Agreement”) relating to 1,035,925 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, in each case, 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, or would require the Shareholder or Employee
Shareholder to incur any cost or expense (other than de minimis costs and expenses); 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 Transaction Documents and any Schedule 13D, as amended, filed with the Securities and Exchange
Commission with respect to the Subject Shares, the Shareholder is the sole Beneficial Owner of the
Sale Shares.
3.2 Voting. Other than as provided in this Agreement, the Transaction Documents or any
Schedule 13D, as amended, filed with the Securities and Exchange Commission with respect to the
Subject Shares, 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, laws of the State of Indiana,
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 (without incurring any cost or expense (other than de minimis
costs or expenses)) as may be necessary or desirable to consummate the transactions contemplated by
this Agreement; provided, however, that upon the request of the Company, the Shareholder shall
incur reasonable costs and expenses with respect to the Subject Shares and to the extent such cost
or expense exceeds a de minimis amount, the Company shall be obligated to reimburse reasonable
documented out-of-pocket costs and expenses.
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), (iii) in any public filings with the United States Securities and
Exchange Commission or other regulatory authority, or (iv) 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. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
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XXXXX GLOBAL DISTRESSED OPPORUTNITIES MASTER FUND, L.P.
BY: ALDEN GLOBAL CAPITAL LIMITED, THE INVESTMENT MANAGER
BY: XXXXX MANAGEMENT, LLC, AS ITS SERVICE PROVIDER
By: Name: |
|
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Title:
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Vice President |
Address of Principal Executive Office:
000 xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone:
000 xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone:
Attention:
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.
By: Alden Global capital Limited, the investment manager |
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By: Xxxxx Management, LLC, as its service provider |
| Acknowledged and Agreed: | ||||
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