sctovt
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE
TO
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)
Class A Common Stock, par value $0.01 per share
(Title of Class of Securities)
291525103
(CUSIP Number of Class of Securities)
JS ACQUISITION, INC.
(Offeror)
JS ACQUISITION, LLC
(The parent of Offeror)
Jeffrey H. Smulyan
(The controlling person of Offeror)
EMMIS
COMMUNICATIONS CORPORATION
(Issuer)
(Name of Filing Persons (identifying status as offeror, issuer and other person))
Jeffrey
H. Smulyan
JS Acquisition, Inc.
JS Acquisition, LLC
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 Persons Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
James M. Dubin, Esq.
Kelley D. Parker, 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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$71,344,514 |
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$5,086.86 |
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(1) |
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The transaction valuation is estimated solely for purposes of calculating the filing fee.
The calculation assumes the purchase of all outstanding shares of Class A Common Stock of
Emmis Communications Corporation, an Indiana corporation (Emmis), par value $0.01 per share
(the Shares) by JS Acquisition, Inc., an Indiana
corporation (JS Acquisition) whose equity securities are owned entirely by
Mr. Jeffrey H. Smulyan, the Chairman, Chief Executive Officer and President of Emmis and JS
Acquisition, LLC, an Indiana limited liability company that is wholly-owned by Mr. Smulyan
(JS Parent), that are not Shares to be contributed to
Emmis and cancelled pursuant to the Rollover Agreement (as defined
in the Offer to Purchase) or Shares beneficially owned by
JS Parent, JS Acquisition, Mr.
Smulyan, his affiliates and Alden Global Capital (together with its
affiliates and related parties, Alden), at a purchase price of $2.40 per Share in cash, without interest and less any
applicable withholding taxes. As of May 17, 2010, there were 32,910,753 Shares outstanding.
Of the outstanding Shares, 62,941 Shares are held by Mr. Smulyan
and his affiliates, 1,406,500 Shares are held by Alden
Global Distressed Opportunities Master Fund, L.P. and 1,714,431 Shares will be contributed to Emmis
and cancelled pursuant to the Rollover Agreement. Accordingly, this calculation assumes the
purchase of 29,726,881 Shares for $71,344,514. |
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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 (the Exchange Act), 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 |
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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
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| Items 1 through 9, 11 and 13 |
| Item 10. Financial Statements |
| Item 12. Exhibits |
EXHIBIT INDEX |
| Item 13. Information Required by Schedule 13E-3 |
| Item 1. Summary Term Sheet |
| Item 2. Subject Company Information |
| Item 3. Identity and Background of Filing Person |
| Item 4. Terms of the Transaction |
| Item 5. Past Contacts, Transactions, Negotiations and Agreements |
| Item 6. Purposes of the Transaction and Plans or Proposals |
| Item 7. Purposes, Alternatives, Reasons and Effects |
| Item 8. Fairness of the Transaction |
| Item 9. Reports, Opinions, Appraisals and Negotiations |
| Item 10. Source and Amount of Funds or Other Considerations |
| Item 11. Interest in Securities of the Subject Company |
| Item 12. The Solicitation or Recommendation |
| Item 13. Financial Statements |
| Item 14. Persons/Assets, Retained, Employed, Compensated or Used |
| Item 15. Additional Information |
| Item 16. Exhibits |
SIGNATURE |
EXHIBIT INDEX |
EX-99.A.1.I |
EX-99.A.1.II |
EX-99.A.1.III |
EX-99.A.1.IV |
EX-99.A.1.V |
EX-99.A.1.VI |
EX-99.A.1.VII |
EX-99.A.1.X |
EX-99.A.5.I |
EX-99.A.5.II |
EX-99.A.5.III |
EX-99.A.5.IV |
EX-99.A.5.V |
This Tender Offer Statement and Rule 13e-3 Transaction Statement filed under cover of
Schedule TO (as amended and supplemented, the Schedule TO) relates to the offer by JS
Acquisition, Inc., an Indiana corporation (JS
Acquisition) whose equity securities are owned entirely by Mr. Jeffrey H. Smulyan, the
Chairman, Chief Executive Officer and President of Emmis Communications Corporation, an Indiana
corporation (Emmis) and JS Acquisition, LLC, an Indiana limited liability company that is
wholly-owned by Mr. Smulyan (JS Parent) to purchase all of the outstanding shares of Class A
Common Stock, par value $0.01 per share, of Emmis (the
Shares), that are not Shares to be contributed to Emmis
and cancelled pursuant to the Rollover Agreement or Shares
beneficially owned by JS Parent, JS Acquisition, Mr. Smulyan,
his affiliates and Alden Global Capital (together with its affiliates
and related parties, Alden),
a private asset management company with over $3 billion under
management. The offer price is $2.40 per Share in cash, without interest and less any
applicable withholding taxes. The offer is made upon the terms and subject to the conditions set
forth in the Offer to Purchase dated June 2, 2010 (the Offer to Purchase), and in the related
Letter of Transmittal, copies of which are attached hereto as Exhibits (a)(1)(i) and (a)(1)(ii),
respectively (which, together with any amendments or supplements thereto, collectively constitute
the Offer). Emmis filed a Solicitation/Recommendation
Statement on Schedule 14D-9 (as amended and supplemented, the
Schedule 14D-9) with the U.S. Securities and Exchange Commission on
June 2, 2010, which will be mailed to the shareholders of Emmis
together with the Offer to Purchase.
All capitalized terms used in this Schedule TO without definition have the meanings ascribed
to them in this Schedule TO or the Offer to Purchase.
Items 1 through 9, 11 and 13.
The information in the Offer to Purchase, including all schedules thereto, a copy of which is
attached hereto as Exhibit (a)(l)(i) is incorporated herein by reference and is supplemented by the
information specifically provided herein.
Item 10. Financial Statements.
(a) Financial
statements for JS Acquisition and JS Parent are not material because the
consideration offered consists solely of cash and the Offer is for all outstanding securities of
the subject class. The only financing condition to which the Offer is subject is that Alden Media
Holdings, LLC (Alden Media) pays cash, when due, to JS Parent in the amount of $90.0 million, which amount
will be adjusted, to the extent funds are required to provide cash consideration to holders of
Existing Preferred Stock that do not tender their shares of Existing Preferred Stock in the Offer
and/or to pay various expenses in connection with the Transactions, pursuant to the 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, JS Parent and
Mr. Smulyan (the Alden Purchase Agreement). Alden
Medias obligation to fund such amount is not
contingent upon JS Acquisitions or JS Parents financial condition, but is subject to other
conditions set forth in the Alden Purchase Agreement. JS Acquisition was formed for the purpose of
engaging in a going private transaction with Emmis and has carried on no other activities other
than in connection with the Offer, the Merger and prior potential
transactions. JS Parent was formed for the purpose of completing the Offer and the Merger and has carried
on no other activities other than in connection with the Offer and
the Merger. Both JS Acquisition and
JS Parent have no significant assets or liabilities other than those incidental to the
acquisition of Emmis. Therefore, JS Acquisition and JS Parent have no meaningful historical
financial information. JS Acquisition will only be able to complete
the Offer if JS Parent receives the
purchase price contemplated by the Alden Purchase Agreement.
The
information set forth in Item 5 Persons/Assets, Retained, Employed,
Compensated or Used of Emmis Schedule 14D-9 and The Offer (Section 8 Certain Information
Concerning Jeffrey H. Smulyan, JS Acquisition and JS Parent;
Section 10 Source and Amount of Funds; Section 13 Merger Agreement; Other Agreements Alden
Purchase Agreement) of the Offer to Purchase is incorporated
herein by reference.
(b) Pro forma financial information is not material to the Offer because Mr. Smulyan currently holds securities giving him more than a majority of the voting power of the common equity securities of Emmis and will continue to do so after completion of the Offer.
Item 12. Exhibits.
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Exhibit |
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Description |
(a)(1)(i)
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Offer to Purchase, dated June 2, 2010. |
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EXHIBIT INDEX
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Exhibit |
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Description |
*(a)(1)(i)
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Offer to Purchase, dated June 2, 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)(l)(iv)
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Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees. |
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*(a)(l)(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)(l)(vi)
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Letter to Participants in the Emmis
Operating Company 401(k) Plan. |
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*(a)(1)(vii)
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Guidelines for Certification of Taxpayer Identification
Number on Substitute IRS Form W-9. |
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(a)(1)(viii)
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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-C and Schedule 14A
filed by JS Acquisition, Inc. with the SEC on April 26,
2010). |
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(a)(1)(ix)
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Press Release, dated May 25,
2010, issued by Emmis Communications Corporation
(incorporated by reference to
the Statement on Schedule TO-C and Schedule 14A filed by JS
Acquisition, Inc. with the SEC on May 26, 2010). |
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*(a)(1)(x)
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Press Release, dated June
2, 2010, issued by JS
Acquisition, Inc. |
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(a)(2)(i)
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Proxy Statement/Offer to Exchange, dated May 27, 2010
(incorporated by reference to Exhibit (a)(1)(i) to the
combined Statement on Schedule TO and Schedule 13E-3 filed
by Emmis Communications Corporation with the SEC on May 27,
2010). |
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*(a)(5)(i)
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Complaint of Fritzi Ross, on behalf of herself and all
others similarly situated vs. Jeffrey H. Smulyan, Susan B.
Bayh, Gary L. Kaseff, Richard A. Leventhal, Peter A. Lund,
Greg A. Nathanson, Lawrence B. Sorrel, Patrick M. Walsh,
Emmis Communications Corporation, JS Acquisition, Inc., and
Alden Global Capital; Cause No. 49D13 1004 MF 019005, filed
with the Superior Court of Marion County in the State of
Indiana on April 27, 2010. |
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* (a)(5)(ii)
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Complaint of Charles Hinkle, on behalf of himself and all
others similarly situated vs. Susan Bayh, Gary Kaseff,
Richard Leventhal, Peter Lund, Greg Nathanson, Jeffrey H.
Smulyan, Lawrence Sorrel, Patrick Walsh, and Emmis
Communications Corporation; Cause No. 49D10 1004 PL 019747,
filed with the Superior Court of Marion County in the State
of Indiana on April 30, 2010. |
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* (a)(5)(iii)
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Complaint of William McQueen, on behalf of himself and all
others similarly situated vs. Jeffrey H. Smulyan, Susan B.
Bayh, Gary L. Kaseff, Richard A. Leventhal, Peter A. Lund,
Greg A. Nathanson, Lawrence B. Sorrel, Patrick M. Walsh, JS
Acquisition, Inc., and Alden Global Capital; Cause No. 49D02
1005 MF 020013, filed with the Superior Court of Marion
County in the State of Indiana on May 3, 2010. |
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* (a)(5)(iv)
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Complaint of David Jarosclawicz, on behalf of himself and
all others similarly situated vs. Jeffrey H. Smulyan, Susan
B. Bayh,Gary L. Kaseff, Richard A. Leventhal, Peter A. Lund,
Greg A. Nathanson, Lawrence B. Sorrel, Patrick M. Walsh, JS
Acquisition, Incorporated, and Emmis Communications
Corporation; Cause No. 49D03 1005 PL 020506, filed with the
Superior Court of Marion County in the State of Indiana on
May 6, 2010. |
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*(a)(5)(v)
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Complaint of Timothy Stabosz, on behalf of himself and all
others similarly situated vs. Susan Bayh, Gary Kaseff,
Richard Leventhal, Peter Lund, Greg Nathanson, Jeffrey H.
Smulyan, Lawrence Sorrel, Patrick Walsh, and Emmis
Communications Corporation; Cause No. 49D11 1005 PL 021432,
filed with the Superior Court of Marion County in the State
of Indiana on May 12, 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, Inc. (incorporated by
reference to the Statement on Schedule TO-C and Schedule 14A
filed by JS Acquisition, Inc. with the SEC on April 26,
2010). |
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(d)(ii)
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Agreement and Plan of Merger, dated May 25, 2010, by and
among JS Acquisition, LLC, JS Acquisition, Inc. and Emmis
Communications Corporation (incorporated by reference to
Appendix IV to the Preliminary Proxy Statement on Schedule
14A filed by Emmis Communications Corporation with the SEC
on May 27, 2010). |
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(d)(iii)
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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 (the Alden Purchase Agreement) (incorporated by
reference to Appendix II to the Preliminary Proxy Statement
on Schedule 14A filed by Emmis Communications Corporation
with the SEC on May 27, 2010). |
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(d)(iv)
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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 on
the date of the closing of the transactions contemplated by
the Alden Purchase Agreement (incorporated by reference to
Appendix III to the Preliminary Proxy Statement on Schedule
14A filed by Emmis Communications Corporation with the SEC
on May 27, 2010). |
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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
(incorporated by reference to Exhibit (d)(v) to the combined
Statement on Schedule TO and Schedule 13E-3 filed by Emmis
Communications Corporation with the SEC on May 27, 2010). |
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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 Exhibit 99.3 to
Amendment No. 6 to Jeffrey H. Smulyans Schedule 13D/A,
filed by Jeffrey H. Smulyan with the SEC on
May 27, 2010). |
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(d)(vii)
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Form of Indenture between Emmis Communications Corporation
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 on the Application
on Form T-3 filed by Emmis Communications Corporation with
the SEC on May 27, 2010). |
Item 13. Information Required by Schedule 13E-3.
Item 1. Summary Term Sheet.
The information set forth in Summary Term Sheet and Questions and Answers of the Offer to
Purchase is incorporated herein by reference.
Item 2. Subject Company Information.
(a)(b) The information set forth in Summary Term Sheet, Questions and Answers,
Introduction and The Offer (Section 8 Possible Actions by Mr. Smulyan with Regard to Emmis if
the Offer is Not Completed) of the Offer to Purchase and Item 1 Subject Company
Information of Emmis Schedule 14D-9 is incorporated herein by reference.
(c)(d) The information set forth in The Offer (Section 6 Price Range of Shares;
Dividends; and Section 12 Effect of Dividends and Other Distributions by Emmis) of the Offer to
Purchase and Item 1 Subject Company
Information of Emmis Schedule 14D-9 is incorporated herein by reference.
(e)(f) Not applicable.
Item 3. Identity and Background of Filing Person.
(a)(d) The information set forth in Summary Term Sheet, Questions and Answers,
Introduction and The Offer (Section 8
Certain Information Concerning Jeffrey H. Smulyan, JS Acquisition and JS Parent)
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and
Schedule A (Information Concerning the Directors and Executive
Officers of JS Acquisition and JS Parent) of the Offer to
Purchase and Item 2 Identity and Background of the Filing
Person of Emmis Schedule 14D-9 is incorporated herein by reference.
Item 4. Terms of the Transaction.
(a) The
information set forth in Summary Term Sheet, Questions and Answers,
Introduction, Special Factors (Section 2 Purpose of and Reasons for the Offer and the Merger;
The Purchaser Groups Plans for Emmis After the Offer and the Merger;
Reasons of the Purchaser Group for the
Offer and the Merger; Certain Effects of the Offer and the Merger; Alternatives to the Offer and
the Merger; Section 3 The Position of the Purchaser Group Regarding the Fairness of the Offer and the
Merger; Section 6 Transactions and Arrangements Concerning the Shares) and The Offer (Section 1
Terms of the Offer; Section 2 Acceptance for Payment and Payment for Shares; Section 3
Procedure for Accepting the Offer and Tendering Shares; Section 4 Withdrawal Rights; Section 5
Material U.S. Federal Income Tax Consequences; Section 10 Source and Amount of Funds; Section 11
Conditions of the Offer; Section 16 Fees and
Expenses) of the Offer to Purchase and Item 2 Identity and Background of the Filing
Person of Emmis Schedule 14D-9 is incorporated
herein by reference.
(b) Not applicable.
(c) The
information set forth in Summary Term Sheet,
Questions and Answers, Introduction,
Special Factors (Section 6 Transactions and
Arrangements Concerning the Shares) and The Offer (Section 1 Terms of the Offer;
Section 13 Merger Agreement; Other Agreements) of the Offer to Purchase is incorporated herein by
reference.
(d) The information set forth in The Offer (Section 9 Merger and Dissenters Rights;
Going Private Rules) and Schedule D (§ 23-1-44 of the Indiana Business Corporation Law) of the
Offer to Purchase and Item 8 Additional Information
Dissenters Rights of Emmis Schedule 14D-9 is incorporated herein by reference.
(e) JS
Acquisition has not made any provisions in connection with the Offer
or the Merger to grant holders of shares (other than the Interested
Party Shares) access to the corporate files of Emmis or to obtain counsel or
appraisal services at its expense. JS Acquisition believes that the Schedule TO together with the other
filings made by it and Emmis with the SEC, provide adequate
information for holders of shares (other than the Interested
Party Shares) to make an informed decision with respect to the Offer.
(f) Not applicable.
Item 5. Past Contacts, Transactions, Negotiations and Agreements.
(a)(e) The information set forth in Summary Term Sheet, Questions and Answers,
Introduction, Special Factors (Section 1 Background of the Offer; Past Contacts and
Negotiations with Emmis; Section 2 Purpose of and Reasons
for the Offer and the Merger; The Purchaser Groups Plans for Emmis After
the Offer and the Merger; Reasons of the Purchaser Group for the
Offer and the Merger; Certain Effects of the Offer and the Merger; Alternatives to the Offer and
the Merger; Section 6 Transactions and Arrangements
Concerning the Shares; Section 7 Related-Party Transactions; Section 8 Possible Actions by Mr. Smulyan
with Regard to Emmis if the Offer is Not Completed), The
Offer (Section 11 Conditions of the Offer;
Section 13 Merger Agreement; Other Agreements, Schedule C (Related-Party Transactions) of
the Offer to Purchase and Item 3 Past Contracts,
Transactions, Negotiations and Agreements Certain Arrangements
between Emmis and its Executive Officers, Directors and Affiliates;
Certain Arrangements between Emmis, the Purchaser Group, Alden, the
Rolling Shareholders and their respective Affiliates;
Item 4 The Solicitation or Recommendation
Background and Reasons for the Recommendation of the Board;
Item 7 Purposes of the Transactions and Plans or
Proposals of Emmis Schedule 14D-9 is incorporated herein by reference.
Except as set forth therein, there have been no negotiations, transactions or material
contacts during the past two years which would be required to be disclosed under this Item 5
between any of the Purchaser Group, Alden or the Rolling Shareholders or any of their respective affiliates or
subsidiaries or, to the best knowledge of JS Acquisition, any of those persons listed on Schedule A
(Information Concerning the Directors and Executive Officers of JS
Acquisition and JS Parent) of the
Offer to Purchase, on the one hand, and Emmis or its affiliates, on the other, concerning a merger,
consolidation or acquisition, a tender offer or other acquisition of securities of Emmis, an
election of directors of Emmis or sale or transfer of a material amount of assets of Emmis.
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Item 6. Purposes of the Transaction and Plans or Proposals.
(a)(c) The
information set forth in Summary Term Sheet, Questions and Answers,
Introduction, Special Factors (Section 1 Background of the Offer; Past Contacts and
Negotiations with Emmis; Section 2 Purpose of and Reasons
for the Offer and the Merger; The Purchaser Groups Plans for Emmis
After the Offer and the Merger; Reasons of the Purchaser Group for the
Offer and the Merger; Certain Effects of the Offer and the Merger; Alternatives to the Offer and
the Merger; Section 9 Effects of the Offer and the Merger) and The Offer (Section 14
Certain Effects of the Offer and the Merger on the Market for the Shares; NASDAQ Listing; Exchange
Act Registration and Margin Regulations) of the Offer to Purchase
and Item 3 Past Contacts, Transactions, Negotiations and Agreements
The Purchase Groups Plans for Emmis; Item 7 Purposes of the Transaction
and Plans or Proposals of Emmis Schedule 14D-9 is incorporated herein by
reference.
Item 7. Purposes, Alternatives, Reasons and Effects.
(a)-(d) The information set forth in Summary Term Sheet, Questions and Answers,
Introduction, Special Factors (Section 1 Background of the Offer; Past Contacts and
Negotiations with Emmis; Section 2 Purpose of and Reasons
for the Offer and the Merger; The Purchaser Groups Plans for Emmis
After the Offer and the Merger; Reasons of the Purchaser Group for the
Offer and the Merger; Certain Effects of the Offer and the Merger; Alternatives to the Offer and
the Merger; Section 3 The Position of the Purchaser Group Regarding the Fairness of the Offer and the
Merger; Section 9 Effects of the Offer and the Merger), The Offer (Section 5 Material
U.S. Federal Income Tax Consequences; Section 14 Certain Effects of the Offer and the Merger on
the Market for the Shares; NASDAQ Listing; Exchange Act Registration and Margin Regulations) of the
Offer to Purchase and Item 4 The Solicitation or Recommendation
Background; Reasons and Factors for the Recommendation of the
Board of Emmis Schedule 14D-9 is incorporated herein by reference.
Item 8. Fairness of the Transaction.
(a)-(f) The information set forth in Special Factors (Section 1 Background of the Offer;
Past Contacts and Negotiations with Emmis; Section 2 Purpose of and Reasons for the Offer and
the Merger; The Purchaser Groups Plans for Emmis After the Offer and
the Merger; Reasons of the Purchaser Group for the Offer and the Merger; Certain Effects of the Offer and the Merger; Alternatives
to the Offer and the Merger; Section 3 The Position of
the Purchaser Group Regarding the Fairness of the
Offer and the Merger; Section 4 Position of the Board
and the Committee; Section 5 Certain Projected Emmis
Financial Information), The Offer (Section 9 Merger and
Dissenters Rights; Going Private Rules; Section 11 Conditions of the Offer) of the Offer to
Purchase and Item 4 The Solicitation or Recommendation; Item 5
Persons/Assets Retained, Employed Compensated or Used of
Emmis
Schedule 14D-9 is incorporated herein by reference.
Item 9. Reports, Opinions, Appraisals and Negotiations.
(a)-(c) The information set forth in Introduction, Summary Term Sheet, Questions and
Answers, Special Factors (Section 1 Background of the Offer; Past Contacts and Negotiations
with Emmis; Section 2 Purpose of and Reasons for the
Offer and the Merger; The Purchaser Groups
Plans for Emmis After the Offer and the Merger; Reasons of
the Purchaser Group for the Offer and the
Merger; Certain Effects of the Offer and the Merger; Alternatives to the Offer and the Merger;
Section 3 The Position of the Purchaser Group Regarding the Fairness of the Offer and the Merger; Section 4
- Position of the Board and the Committee; of the Offer to
Purchase and Item 4 The Solicitation or Recommendation
Background; Opinion of Morgan Stanley & Co. Incorporated; Item 5
Persons/Assets Retained, Employed, Compensated or Used
and Annex A (Opinion of Morgan Stanley & Co.
Incorporated) and Annex B (Materials Prepared for Discussion of Morgan Stanley
& Co. Incorporated) to Emmis
Schedule 14D-9 is incorporated herein by reference.
Item 10. Source and Amount of Funds or Other Considerations.
(a)-(d) The information set forth in Summary Term Sheet, Questions and Answers,
Introduction, Special Factors (Section 1 Background of the Offer; Past Contacts and
Negotiations with Emmis; Section 8 Possible Actions by Mr. Smulyan with Regard to Emmis if the
Offer is Not Completed) and The Offer (Section 1 Terms of the Offer; Section 10 Source and
Amount of Funds; Section 11 Conditions of the Offer; Section 16 Fees and Expenses) of the
Offer to Purchase and Item 5 Persons/Assets, Retained, Employed,
Compensated or Used of Emmis Schedule 14D-9 is incorporated herein by reference.
Item 11. Interest in Securities of the Subject Company.
(a)-(b) The information set forth in Summary Term Sheet, Questions and Answers,
Introduction, Special Factors (Section 1 Background of the Offer; Past Contacts and
Negotiations with
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Emmis; Section 7 Related-Party Transactions), The Offer (Section 8 Certain Information
Concerning Jeffrey H. Smulyan, JS Acquisition and JS Parent) and Schedule B (Security Ownership of Emmis by the
Purchaser Group) of the Offer to Purchase and Item 3 Past Contracts, Transactions, Negotiations and Agreements Certain Arrangements between Emmis and its Executive Officers, Directors
and Affiliates; Item 6 Interests in Securities of the
Subject Company of Emmis Schedule 14D-9 is incorporated herein by reference.
Item 12. The Solicitation or Recommendation.
(d) The information set forth in Questions and Answers and The Offer (Section 7 Certain
Information Concerning Emmis Communications Corporation) of the
Offer to Purchase and Item 4 The Solicitation or Recommendation Intent to Tender
of Emmis Schedule 14D-9 is incorporated
herein by reference.
(e) The information set forth in Introduction, Summary Term Sheet, Questions and
Answers, Special Factors (Section 1 Background of the Offer; Past Contacts and Negotiations
with Emmis; Section 4 Position of the Board and the
Committee) of the Offer to Purchase and Item 4 The
Solicitation or Recommendation of Emmis Schedule 14D-9 is incorporated herein by reference.
Item 13. Financial Statements.
(a) The information set forth in The Offer (Section 7 Certain Information Concerning
Emmis Communications Corporation) of the Offer to Purchase is incorporated herein by reference.
(b) Pro forma financial information is not material to the Offer.
Item 14. Persons/Assets, Retained, Employed, Compensated or Used.
(a) None.
(b) The information set forth in Special Factors (Section 1 Background of the Offer;
Past Contacts and Negotiations with Emmis) of the Offer to
Purchase and Item 5 Persons/Assets, Retained, Employed, Compensated or Used of Emmis Schedule 14D-9 is incorporated herein by
reference.
Item 15. Additional Information.
(b) The information set forth in The Offer (Section 17 Miscellaneous) of the Offer to
Purchase and Item 8 Additional Information of Emmis Schedule 14D-9 is incorporated herein by reference.
Item 16. Exhibits.
(a),
(c) and (d) The information set forth in Item 12
(Exhibits) of the Schedule TO and in Emmis Schedule 14D-9,
including the exhibits thereto and Annex A (Opinion of
Morgan Stanley & Co. Incorporated) and Annex B (Materials
Prepared for Discussion of
Morgan Stanley & Co. Incorporated) thereto is
incorporated herein by reference.
(b) Not applicable.
(f) The information set forth in Schedule D (§ 23-1-44 of the Indiana Business Corporation
Law) of the Offer to Purchase is incorporated herein by reference.
(g) and (h) Not applicable.
5
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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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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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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/s/ Jeffrey H. Smulyan
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Jeffrey H. Smulyan |
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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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Date: June
2, 2010
6
EXHIBIT INDEX
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Exhibit |
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Description |
*(a)(1)(i)
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Offer to Purchase, dated June 2, 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)(l)(iv)
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Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees. |
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*(a)(l)(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)(l)(vi)
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Letter to Participants in the Emmis
Operating Company 401(k) Plan. |
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*(a)(1)(vii)
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Guidelines for Certification of Taxpayer Identification
Number on Substitute IRS Form W-9. |
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(a)(1)(viii)
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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-C and Schedule 14A
filed by JS Acquisition, Inc. with the SEC on April 26,
2010). |
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(a)(1)(ix)
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Press Release, dated May 25,
2010, issued by Emmis Communications Corporation (incorporated by reference to
the Statement on Schedule TO-C and Schedule 14A filed by JS
Acquisition, Inc. with the SEC on May 26, 2010). |
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*(a)(1)(x)
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Press Release, dated June
2, 2010, issued by JS
Acquisition, Inc. |
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(a)(2)(i)
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Proxy Statement/Offer to Exchange, dated May 27, 2010
(incorporated by reference to Exhibit (a)(1)(i) to the
combined Statement on Schedule TO and Schedule 13E-3 filed
by Emmis Communications Corporation with the SEC on May 27,
2010). |
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*(a)(5)(i)
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Complaint of Fritzi Ross, on behalf of herself and all
others similarly situated vs. Jeffrey H. Smulyan, Susan B.
Bayh, Gary L. Kaseff, Richard A. Leventhal, Peter A. Lund,
Greg A. Nathanson, Lawrence B. Sorrel, Patrick M. Walsh,
Emmis Communications Corporation, JS Acquisition, Inc., and
Alden Global Capital; Cause No. 49D13 1004 MF 019005, filed
with the Superior Court of Marion County in the State of
Indiana on April 27, 2010. |
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* (a)(5)(ii)
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Complaint of Charles Hinkle, on behalf of himself and all
others similarly situated vs. Susan Bayh, Gary Kaseff,
Richard Leventhal, Peter Lund, Greg Nathanson, Jeffrey H.
Smulyan, Lawrence Sorrel, Patrick Walsh, and Emmis
Communications Corporation; Cause No. 49D10 1004 PL 019747,
filed with the Superior Court of Marion County in the State
of Indiana on April 30, 2010. |
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* (a)(5)(iii)
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Complaint of William McQueen, on behalf of himself and all
others similarly situated vs. Jeffrey H. Smulyan, Susan B.
Bayh, Gary L. Kaseff, Richard A. Leventhal, Peter A. Lund,
Greg A. Nathanson, Lawrence B. Sorrel, Patrick M. Walsh, JS
Acquisition, Inc., and Alden Global Capital; Cause No. 49D02
1005 MF 020013, filed with the Superior Court of Marion
County in the State of Indiana on May 3, 2010. |
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* (a)(5)(iv)
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Complaint of David Jarosclawicz, on behalf of himself and
all others similarly situated vs. Jeffrey H. Smulyan, Susan
B. Bayh,Gary L. Kaseff, Richard A. Leventhal, Peter A. Lund,
Greg A. Nathanson, Lawrence B. Sorrel, Patrick M. Walsh, JS
Acquisition, Incorporated, and Emmis Communications
Corporation; Cause No. 49D03 1005 PL 020506, filed with the
Superior Court of Marion County in the State of Indiana on
May 6, 2010. |
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*(a)(5)(v)
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Complaint of Timothy Stabosz, on behalf of himself and all
others similarly situated vs. Susan Bayh, Gary Kaseff,
Richard Leventhal, Peter Lund, Greg Nathanson, Jeffrey H.
Smulyan, Lawrence Sorrel, Patrick Walsh, and Emmis
Communications Corporation; Cause No. 49D11 1005 PL 021432,
filed with the Superior Court of Marion County in the State
of Indiana on May 12, 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, Inc. (incorporated by
reference to the Statement on Schedule TO-C and Schedule 14A
filed by JS Acquisition, Inc. with the SEC on April 26,
2010). |
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(d)(ii)
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Agreement and Plan of Merger, dated May 25, 2010, by and
among JS Acquisition, LLC, JS Acquisition, Inc. and Emmis
Communications Corporation (incorporated by reference to
Appendix IV to the Preliminary Proxy Statement on Schedule
14A filed by Emmis Communications Corporation with the SEC
on May 27, 2010). |
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(d)(iii)
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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 (the Alden Purchase Agreement) (incorporated by
reference to Appendix II to the Preliminary Proxy Statement
on Schedule 14A filed by Emmis Communications Corporation
with the SEC on May 27, 2010). |
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(d)(iv)
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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 on
the date of the closing of the transactions contemplated by
the Alden Purchase Agreement (incorporated by reference to
Appendix III to the Preliminary Proxy Statement on Schedule
14A filed by Emmis Communications Corporation with the SEC
on May 27, 2010). |
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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
(incorporated by reference to Exhibit (d)(v) to the combined
Statement on Schedule TO and Schedule 13E-3 filed by Emmis
Communications Corporation with the SEC on May 27, 2010). |
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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 Exhibit 99.3 to
Amendment No. 6 to Jeffrey H. Smulyans Schedule 13D/A, filed by
Jeffrey H. Smulyan with the SEC on
May 27, 2010). |
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(d)(vii)
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Form of Indenture between Emmis Communications Corporation
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 on the Application
on Form T-3 filed by Emmis Communications Corporation with
the SEC on May 27, 2010). |
7