-----BEGIN PRIVACY-ENHANCED MESSAGE-----
Proc-Type: 2001,MIC-CLEAR
Originator-Name: webmaster@www.sec.gov
Originator-Key-Asymmetric:
MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen
TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB
MIC-Info: RSA-MD5,RSA,
QFkb4PBgqactpx28eE8wrEw7t4YvqD4u/HvYwnhr0+Jku89Dx1ec1KuqXRFZNGt1
cLcjnSJKt0I3qSqDCgy2Cg==
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D**
Under the Securities Exchange Act of 1934
(Amendment No. )*
Emmis Communications Corporation
(Name of Issuer)
Class A Common Stock, $0.01 par value per share
6.25% Series A Cumulative Convertible Preferred Stock
(Title of Class of Securities)
291525103
291525202
(CUSIP Number)
Brandon Teague
301 Commerce Street, Suite 3200
Fort Worth, Texas 76102
(817) 332-9500
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
July 9, 2010
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [X].
The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
The total number of shares of the Class A Common Stock reported herein is 822,273 shares, which constitutes approximately 2.4% of the 33,735,646 shares deemed outstanding pursuant to Rule 13d-3(d)(1). Unless otherwise stated herein, all other ownership percentages set forth herein assume that there are 32,913,373 shares outstanding.
The total number of shares of the 6.25% Series A Cumulative Convertible Preferred Stock reported herein is 337,050 shares, which constitutes approximately 12.0% of the 2,809,170 shares deemed outstanding pursuant to Rule 13d-3(d)(1).
1. Name of Reporting Person:
Amalgamated Gadget, L.P.
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / /
3. SEC Use Only
4. Source of Funds: OO (See Item 3)
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: Texas
7. Sole Voting Power (Common Stock): -0-
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each
Reporting 9. Sole Dispositive Power (Common Stock): -0-
Person
With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
822,273 (1)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): 2.4% (2)
14. Type of Reporting Person: PN
- --------------
(1) Represents 822,273 shares of Class A Common Stock (the "Common Stock") obtainable upon conversion of 337,050 shares of 6.25% Series A Cumulative Convertible Preferred Stock (the "Preferred Stock"). The Preferred Stock has a conversion price of $20.495 per share and a liquidation value of $50.00 per share.
(2) Pursuant to Rule 13d-3(d)(1)(i), the number of shares of Common Stock deemed to be outstanding is 33,735,646.
REPORTING PERSON |
SOURCE OF FUNDS |
AMOUNT OF FUNDS |
Amalgamated |
Other |
Not Applicable (1) |
(1) Amalgamated has not expended any of its funds for purchases of the Issuer's securities reported herein. Amalgamated, however, expended $342,105.75 of the funds of R2 to purchase the shares of the Preferred Stock reported herein.
ITEM 4. PURPOSE OF TRANSACTION.
The Reporting Person is aware that on May 25, 2010, the Company executed an agreement and plan of merger (the "Merger Agreement"), that if consummated would result in the Company being taken private by Jeffrey H. Smulyan, the Company's Chairman, Chief Executive Officer and President. The Merger Agreement provides for a series of transactions, including (a) a cash tender offer for the Company's Class A Common Stock, (b) an offer to exchange (the "Exchange Offer") all outstanding Preferred Shares for new 12% PIK Senior Subordinated Notes due 2017, and (c) a solicitation of proxies to amend certain terms of the Preferred Shares (such amendments or any other amendment or amendments that adversely affect the rights or preferences of the holders of Preferred Shares, whether or not proposed in connection with the Merger Agreement are referred to herein as the "Proposed Amendments"). Adoption of the Proposed Amendments described in the Merger Agreement requires the affirmative vote of holders of at l
east 2/3 of the outstanding Preferred Shares, voting as a separate class.
On July 9, 2010, Double Diamond Partners LLC, Zazove Aggressive Growth Fund, L.P., R2 Investments, LDC, DJD Group LLC, Third Point LLC, the Radoff Family Foundation, Bradley L. Radoff, and LKCM Private Discipline Master Fund, SPC (collectively, the "Locked-Up Holders") entered into a written lock-up agreement (the "Lock-Up Agreement") pursuant to which, among other things, each of them agreed, subject to certain exceptions, to: (1) vote or cause to be voted any and all of its Preferred Shares against the Proposed Amendments; (2) restrict dispositions of Preferred Shares; (3) not enter into any agreement, arrangement or understanding with any person for the purpose of holding, voting or disposing of any securities of the Company, or derivative instruments with respect to securities of the Company; (4) consult with each other prior to making any public announcement concerning the Company; and (5) share certain expenses incurred in connection with their investment in the Preferred Shares, in each case during the term of the Lock-Up Agreement. As a result of the Lock-Up Agreement, the Locked-Up Holders may be deemed to have formed a group within the meaning of Rule 13d-5(b) under the Act. The description of the Lock-Up Agreement in this Schedule 13D is qualified in its entirety by reference to full text of the Lock-Up Agreement, a copy of which is filed herewith as an Exhibit and is hereby incorporated herein by reference.
The Reporting Person acquired and continues to hold the Preferred Shares reported herein for investment purposes. The Reporting Person may from time to time engage the Company, its representatives or other relevant parties in discussions regarding the Exchange Offer, the Proposed Amendments and other related matters relevant to the Reporting Person's investment in the Issuer, and may discuss with such parties alternatives to such Exchange Offer and Proposed Amendments. Depending on market conditions and other factors that the Reporting Person may deem material to its investment decisions, the Reporting Person may sell all or a portion of its shares, or may purchase additional securities of the Issuer, on the open market or in a private transaction, in each case as permitted by the Lock-up Agreement. Except as set forth in this Item 4, the Reporting Person has no present plans or proposals that relate to or that would result in any of the actions specified in clauses (a) through (j)
of Item 4 of Schedule 13D of the Act.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a)
Reporting Person
Amalgamated
Pursuant to an Investment Management Agreement with R2, Amalgamated may, pursuant to Rule 13d-3(d)(1)(i) of the Act, be deemed to be the beneficial owner of 822,273 shares of the Common Stock, which constitutes approximately 2.4% of the 33,735,646 shares of the Common Stock deemed to be outstanding thereunder.
Pursuant to an Investment Management Agreement with R2, Amalgamated may, pursuant to Rule 13d-3(d)(1)(i) of the Act, be deemed to be the beneficial owner of 337,050 shares of the Preferred Stock, which constitutes approximately 12.0% of the 2,809,170 shares of the Preferred Stock deemed to be outstanding thereunder.
Controlling Persons
Scepter
Because of its position as the sole general partner of Amalgamated, Scepter may, pursuant to Rule 13d-3 of the Act, be deemed to be the beneficial owner of 822,273 shares of the Common Stock, which constitutes approximately 2.4% of the 33,735,646 shares of the Common Stock deemed to be outstanding pursuant to Rule 13-3(d)(1)(i).
Because of its position as the sole general partner of Amalgamated, Scepter may, pursuant to Rule 13d-3 of the Act, be deemed to be the beneficial owner of 337,050 shares of the Preferred Stock, which constitutes approximately 12.0% of the 2,809,170 shares of the Preferred Stock deemed to be outstanding pursuant to Rule 13-3(d)(1)(i).
Raynor
Because of his position as the President and sole shareholder of Scepter, which is the sole general partner of Amalgamated, Raynor may, pursuant to Rule 13d-3 of the Act, be deemed to be the beneficial owner of 822,273 shares of the Common Stock, which constitutes approximately 2.4% of the 33,735,646 shares of the Common Stock deemed to be outstanding pursuant to Rule 13-3(d)(1)(i).
Because of his position as the President and sole shareholder of Scepter, which is the sole general partner of Amalgamated, Raynor may, pursuant to Rule 13d-3 of the Act, be deemed to be the beneficial owner of 337,050 shares of the Preferred Stock, which constitutes approximately 12.0% of the 2,809,170 shares of the Preferred Stock deemed to be outstanding pursuant to Rule 13-3(d)(1)(i).
To the best of the knowledge of the Reporting Person, other than as set forth above, none of the persons named in Item 2 herein is the beneficial owner of any shares of the Common Stock or the Preferred Stock.
(b)
Reporting Person
Amalgamated
Amalgamated has no power to vote or to direct the vote or to dispose or to direct the disposition of any shares of the Common Stock.
Acting through its general partner, Amalgamated has the sole power to vote or to direct the vote and to dispose or to direct the disposition of 337,050 shares of the Preferred Stock.
Controlling Persons
Scepter
Scepter has no power to vote or to direct the vote or to dispose or to direct the disposition of any shares of the Common Stock.
As the sole general partner of Amalgamated, Scepter has the sole power to vote or to direct the vote and to dispose or to direct the disposition of 337,050 shares of the Preferred Stock.
Raynor
Raynor has no power to vote or to direct the vote or to dispose or to direct the disposition of any shares of the Common Stock.
As the President and sole shareholder of Scepter, which is the sole general partner of Amalgamated, Raynor has the sole power to vote or to direct the vote and to dispose or to direct the disposition of 337,050 shares of the Preferred Stock.
(c) During the past 60 days, the Reporting Person sold shares of the Common Stock in transactions on the NASDAQ as follows:
DATE |
NUMBER OF SHARES SOLD |
PRICE PER SHARE |
|
05/13/2010 |
41,100 |
$2.26 |
|
05/14/2010 |
50,600 |
$2.19 |
|
05/17/2010 |
34,408 |
$2.24 |
|
05/18/2010 |
30,829 |
$2.22 |
|
05/19/2010 |
46,279 |
$2.16 |
|
05/20/2010 |
36,661 |
$2.17 |
|
05/21/2010 |
51,392 |
$2.18 |
|
05/24/2010 |
25,658 |
$2.18 |
|
05/24/2010 |
9,259 |
$2.18 |
|
05/25/2010 |
29,011 |
$2.17 |
|
05/26/2010 |
121,826 |
$2.28 |
|
05/27/2010 |
43,915 |
$2.28 |
|
05/28/2010 |
9,505 |
$2.29 |
|
06/01/2010 |
28,872 |
$2.27 |
|
06/02/2010 |
20,428 |
$2.25 |
|
06/03/2010 |
30,635 |
$2.26 |
|
06/04/2010 |
110,340 |
$2.27 |
|
06/07/2010 |
31,760 |
$2.27 |
|
06/08/2010 |
40,100 |
$2.22 |
|
06/09/2010 |
14,000 |
$2.24 |
|
06/10/2010 |
61,600 |
$2.24 |
|
06/11/2010 |
32,961 |
$2.26 |
|
06/14/2010 |
54,500 |
$2.27 |
|
06/15/2010 |
12,700 |
$2.26 |
|
06/16/2010 |
91,814 |
$2.27 |
Except as set forth in this paragraph (c), to the best of the knowledge of the Reporting Person, none of the Item 2 Persons have effected any transactions in the Common Stock or Preferred Stock during the past 60 days.
The Reporting Person affirms that no person other than those persons named in Item 2 has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of the Common Stock or the Preferred Stock owned by such Reporting Person.
(e) The Reporting Person ceased to be the beneficial owner of more than 5% of the Common Stock on May 19, 2010.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.
See Item 4 above.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
99.1 -- Lock-Up Agreement dated July 9, 2010 between the Reporting Person (on behalf of R2 Investments, LDC) and the other parties signatory thereto.
AMALGAMATED GADGET, L.P.
|
EXECUTION VERSION
LOCK-UP AGREEMENT
This Lock-up Agreement (this "Agreement"), is dated as of July 9, 2010, and is made by and among the undersigned parties (each, a "Locked-Up Holder" and, collectively, the "Locked-Up Holders"), each solely in its capacity as a beneficial owner (as defined below) of certain shares of 6.25% Series A Cumulative Convertible Preferred Stock issued by Emmis Communications Corporation (the "Preferred Shares").
RECITALS
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Locked-Up Holders hereby agree as follows:
(a) For a period commencing with the date hereof until the earlier of the termination of this Agreement pursuant to Section 4 hereof and the consummation of Proposed Transactions previously consented to in writing by the Requisite Locked-Up Holders (which consent shall expressly refer to this Section 2), each Locked-Up Holder hereby agrees not to sell, assign, transfer, hypothecate or otherwise dispose of, directly or indirectly, (i) any Preferred Shares or (ii) any option, interest in or right to acquire any Preferred Shares, in either case absent the written consent of the Requisite Locked-Up Holders and unless the transferee thereof agrees in writing to be bound by the terms of this Agreement by executing and delivering to all Locked Up Holders a joinder substantially in the form attached hereto as Annex A. In the event any Locked-Up Holder receives the written consent of the Requisite Locked-Up Holders to effect any of the transactions described in the foregoing clauses (i) and (ii), it shall give written notice to all Locked-Up Holders no later than the first business day after giving effect to any such transaction. This Agreement shall in no way be construed to preclude the Locked-Up Holders from acquiring Future Preferred Shares or Common Shares or any interest therein; provided, that any Future Preferred Shares so acquired shall automatically be deemed to be subject to the terms and conditions of this Agreement for so long as this Agreement remains in effect; provided further, that a Locked-Up Holder shall give written notice to all Locked-Up Holders no later than the first business day after acquiring beneficial ownership of any such Future Preferred Shares or Common Shares.
(b) Each Locked-Up Holder further agrees that, without the prior written consent of the Requisite Locked-Up Holders it shall not, and shall cause its affiliates and associates (each as defined in Rule 12b-2 under the Exchange Act) not to enter into any agreement, arrangement or understanding with any person for the purpose of holding, voting or disposing of any securities of Emmis, or derivative instruments with respect to securities of Emmis; provided, however, any Locked-Up Holder may, or may cause its affiliates and associates to enter into any agreement, arrangement or understanding with any person for the purpose of acquiring any securities of Emmis, or derivative instruments with respect to securities of Emmis. If a Locked-Up Holder shall enter into an agreement, arrangement or understanding to effect any of the foregoing, the Locked-Up Holder shall give written notice to all Locked-Up Holders no later than the first business day after entering into any such agreem ent, arrangement or understanding
By execution and delivery of this Agreement, each Locked-Up Holder hereby irrevocably accepts and submits itself to the exclusive jurisdiction of any such court, generally and unconditionally, with respect to any such action, suit or proceeding and hereby waives any defense of forum non conveniens or based upon venue if such action, suit or proceeding is brought in accordance with this provision.
* * * * *
[Remainder of Page Intentionally Left Blank]
In Witness Whereof, each of the parties hereto has caused this Agreement to be executed and delivered by its duly authorized officer as of the date first above written.
LOCKED-UP HOLDER
DJD GROUP
By: /s/ Don DeFosset
Name: Don DeFosset
Title: General Partner
Address: 3203 Bayshore Blvd #19P
City/State/Zip: Tampa, FL 33629
Country: USA
Telecopy: 813 902 9408
Preferred Shares Beneficially Owned by Such Locked-Up Holder: 101,210
Common Shares Beneficially Owned by Such Locked-Up Holder: 0
LOCKED-UP HOLDER
DOUBLE DIAMOND PARTNERS
By: /s/ Kevan A. Fight
Name: Kevan A. Fight
Title: General Partner
Address: 6787 Walter Waite Ct.
City/State/Zip: Brecksville, OH 44141
Country: US
Telecopy:_____________________________
Preferred Shares Beneficially Owned by Such Locked-Up Holder: 51,000
Common Shares Beneficially Owned by Such Locked-Up Holder:
LOCKED-UP HOLDER
RADOFF FAMILY FOUNDATION
By: /s/ Bradley L. Radoff
Name: Bradley L. Radoff
Title: President
Address: 1177 West Loop South, Suite 1625
City/State/Zip: Houston, TX 77027
Country: United States
Telecopy: 832 202 0207
Preferred Shares Beneficially Owned by Such Locked-Up Holder: 10,000
Common Shares Beneficially Owned by Such Locked-Up Holder: N/A
LOCKED-UP HOLDER
BRADLEY L. RADOFF
By: /s/ Bradley L. Radoff
Name: Bradley L. Radoff
Title:
Address: 1177 West Loop South, Suite 1625
City/State/Zip: Houston, TX 77027
Country: United States
Telecopy: 832 202 0207
Preferred Shares Beneficially Owned by Such Locked-Up Holder: 37,500
Common Shares Beneficially Owned by Such Locked-Up Holder: N/A
LOCKED-UP HOLDER
R2 INVESTMENTS, LDC
By: Amalgamated Gadget, L.P, its Investment Manager
By: Scepter Holdings, Inc., its General Partner
By: /s/ Noel Nesser
Name: Noel Nesser
Title: CFO & Treasurer
Address: 301 Commerce Street Suite 3200
City/State/Zip: Ft. Worth, TX 76102
Country: USA
Telecopy: 817 332 7463
Preferred Shares Beneficially Owned by Such Locked-Up Holder: 337,050
Common Shares Beneficially Owned by Such Locked-Up Holder: zero
LOCKED-UP HOLDER
ZAZOVE AGGRESSIVE GROWTH FUND, L.P.
By: Zazove Associates LLC, its General Partner
By: /s/ Steven M. Kleiman
Name: Steven M. Kleiman
Title: Chief Operating Officer
Address: 1001 Tahoe Blvd.
City/State/Zip: Incline Village, NV 89451
Country: USA
Telecopy: 847 239 7101
Preferred Shares Beneficially Owned by Such Locked-Up Holder: 117,098
Common Shares Beneficially Owned by Such Locked-Up Holder: 0
LOCKED-UP HOLDER
THIRD POINT LLC
By: /s/ James P. Gallagher
Name: James P. Gallagher
Title: Chief Administrative Officer
Address: 390 Park Avenue, 18th floor
City/State/Zip: New York, NY 10022
Country: USA
Telecopy: 212 318 3809
Preferred Shares Beneficially Owned by Such Locked-Up Holder: 216,000
Common Shares Beneficially Owned by Such Locked-Up Holder: N/A
LOCKED-UP HOLDER
LKCM Private Discipline Master Fund, SPC
By: /s/ J. Bryan King
Name: J. Bryan King
Title: Vice President of LKCM Alternative
Management, LLC, general partner of LKCM
Private Discipline Management, L.P., general
partner of LKCM Private Discipline Master
Fund, SPC
Address: 301 Commerce Street. Suite 1600
City/State/Zip: Fort Worth Texas 76102
Country: USA
Telecopy: 817-332-4630
Preferred Shares Beneficially Owned by Such Locked-Up Holder: 100,000
Common Shares Beneficially Owned by Such Locked-Up Holder: N/A
Annex A
This Joinder to the Lock-Up Agreement, dated as of July 9, 2010, by and among the Locked-Up Holders signatory thereto (the "Agreement"), is executed and delivered by _________________ (the "Joining Party") as of __________, 2010. Each capitalized term used herein but not otherwise defined shall have the meaning set forth in the Agreement.
* * * * *
[Remainder of Page Intentionally Left Blank]
In Witness Whereof, the Joining Party has caused this Joinder to be executed as of the date first written above.
JOINING PARTY
____________________________________
By:
Name:
Title:
Address: _____________________________
City/State/Zip:_________________________
Country:______________________________
Telecopy:_____________________________
Preferred Shares Beneficially Owned by Such Joining Party: ____________________
Common Shares Beneficially Owned by Such Joining Party: ____________________
Annex B
OWNERSHIP CERTIFICATE
This Ownership Certificate, dated as of , 2010 is being delivered pursuant to Section 3 of the Lock-Up Agreement (the "Agreement"), dated as of July 9, 2010, by and among the Locked-Up Holders1 signatory thereto. The undersigned, on behalf of itself and its affiliates, certifies, represents and warrants that, as of the date hereof, it has acquired or transferred and is the beneficial owner of Preferred Shares and Common Shares of Emmis as follows.
Preferred Shares |
Class A Common Stock |
Class B Common Stock |
Class C Common Stock |
|
Previously Owned |
||||
Acquired |
||||
Transferred |
||||
Current Ownership |
The undersigned, on behalf of itself and its affiliates, further certifies, represents and warrants that, as of the date hereof, it does not beneficially own any other securities of Emmis other than as set forth herein, and that it is not a party to any swaps or other derivative transactions relating to Preferred Shares or Common Shares of Emmis, except as disclosed on Schedule 1 hereto.
* * * * *
1
Each capitalized term used herein but not otherwise defined shall have the meaning set forth in the Agreement.[Remainder of Page Intentionally Left Blank]
In Witness Whereof, the undersigned has caused this Ownership Certificate to be executed and delivered by its duly authorized officer as of the date first above written.
LOCKED-UP HOLDER
____________________________________
By:
Name:
Title:
Address: _____________________________
City/State/Zip:_________________________
Country:______________________________
Telecopy:_____________________________
Schedule 1
[NONE]