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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
EMMIS COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
Indiana 35-1542018
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
40 Monument Circle, Suite 700
Indianapolis, Indiana 46204
(Address of principal executive offices) (Zip Code)
Emmis Communications Corporation Employee Stock Purchase Plan
Emmis Communications Corporation 1997 Equity Incentive Plan
Emmis Communications Corporation 1999 Equity Incentive Plan
(Full title of the plans)
Jeffrey H. Smulyan
Chairman
Emmis Communications Corporation
40 Monument Circle, Suite 700
Indianapolis, Indiana 46204
(Name and address of agent for service)
(317) 266-0100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
Securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered (1) per share (2) price fee
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Class A Common Stock, par value $.01 per share 135,960 $24.75000 $3,365,010.00
Class A Common Stock, par value $.01 per share 359,400 22.68750 8,153,887.50
Class A Common Stock, par value $.01 per share 627,734 16.50000 10,357,611.00
Class A Common Stock, par value $.01 per share 7,000 22.56250 157,937.50
Class A Common Stock, par value $.01 per share 500,000 20.00000 10,000,000.00
Class A Common Stock, par value $.01 per share (3) 1,000,000 29.92200 29,922,000.00
Class A Common Stock, par value $.01 per share 2,414,330 34.96875 84,426,102.15
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Total $146,382,548.19 $38,644.99
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(1) Any additional shares to be issued as a result of stock dividends, stock
splits or similar transactions prior to the termination of this
registration statement shall be covered by this registration statement as
provided in Rule 416.
(2) Determined pursuant to Rule 457(c) and (h) using established option price
and average of reported high and low prices on July 31, 2000.
(3) Shares which will be issued in the form of Class B Common Stock which is
immediately convertible at the option of the holder without payment of
additional consideration into Class A Common Stock and automatically
converted upon sale or other transfer. Pursuant to Rule 457(i), no
additional fee is payable for registration of the conversion shares.
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PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, all of which are on file with the Securities and
Exchange Commission (the "Commission"), are hereby incorporated by reference in
this registration statement:
(a) The Annual Report on Form 10-K for Emmis Communications Corporation (file
no. 0-23264) for the fiscal year ended February 29, 2000, as amended by
Form 10-K/A;
(b) The Quarterly Report on Form 10-Q for Emmis Communications Corporation
(file no. 0-23264) for the fiscal period ended May 31, 2000; and
(c) The description of the Class A Common Stock of Emmis Communications
Corporation contained in the Registration Statement on Form 8-A, File No.
0-23264, as amended.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereunder have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of filing such reports and documents.
For purposes of this Registration Statement, any statement contained in a
report, document or appendix incorporated or deemed to be incorporated by
reference in this Registration Statement shall be deemed to be modified or
superseded to the extent that a statement contained in this Registration
Statement or in any subsequently filed report, document or appendix which also
is or is deemed incorporated by reference modifies or supersedes such statement
in such report, document or appendix. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
Upon the written or oral request of any person to whom this Registration
Statement has been delivered, the Company will provide without charge to such
person a copy of any and all of the information (excluding exhibits thereto
unless such exhibits are specifically incorporated by reference into such
information) that has been incorporated by reference into this Registration
Statement but not delivered herewith. Requests should be directed to Investor
Relations at the following address and telephone number: 40 Monument Circle,
Suite 700, Indianapolis, Indiana 46204, (317) 266-0100.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters with respect to the Class A Common Stock offered hereby
will be passed on for Emmis Communications Corporation by Bose McKinney & Evans
LLP, Indianapolis, Indiana. Ronald E. Elberger and David L. Wills, partners in
Bose McKinney & Evans LLP, are officers of Emmis Communications Corporation.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Emmis Communications Corporation (the "Company") is an Indiana corporation.
Chapter 37 of The Indiana Business Corporation Law (the "IBCL") requires a
corporation, unless its articles of incorporation provide otherwise, to
indemnify a director or an officer of the corporation who is wholly successful,
on the merits or otherwise, in the defense of any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal, against reasonable expenses,
including counsel fees, incurred in connection with the proceeding. The
Company's Second Amended and Restated Articles of
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Incorporation do not contain any provision prohibiting such indemnification. The
Company's Second Amended and Restated Articles of Incorporation expressly
require such indemnification.
The IBCL also permits a corporation to indemnify a director, officer,
employee or agent who is made a party to a proceeding because the person was a
director, officer, employee or agent of the corporation against liability
incurred in the proceeding if (i) the individual's conduct was in good faith and
(ii) the individual reasonably believed (A) in the case of conduct in the
individual 's official capacity with the corporation that the conduct was in the
corporation's best interests and (B) in all other cases that the individual's
conduct was at least not opposed to the corporation's best interests and (iii)
in the case of a criminal proceeding, the individual either (A) had reasonable
cause to believe the individual's conduct was lawful or (B) had no reasonable
cause to believe the individual's conduct was unlawful. The IBCL also permits a
corporation to pay for or reimburse reasonable expenses incurred before the
final disposition of the proceeding and permits a court of competent
jurisdiction to order a corporation to indemnify a director or officer if the
court determines that the person is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether or not the
person met the standards for indemnification otherwise provided in the IBCL.
The Company's Second Amended and Restated Articles of Incorporation generally
provide that any director or officer of the Company or any person who is serving
at the request of the Company as a director, officer, employee or agent of
another entity shall be indemnified and held harmless by the Company to the
fullest extent authorized by the IBCL. The Second Amended and Restated Articles
of Incorporation also provide such persons with certain rights to be paid by the
Company the expenses incurred in defending proceedings in advance of their final
disposition and authorize the Company to maintain insurance to protect itself
and any director, officer, employee or agent of the Company or any person who is
or was serving at the request of the Company as a director, officer, partner,
trustee, employee or agent of another entity against expense, liability or loss,
whether or not the Company would have the power to indemnify such person against
such expense, liability or loss under the Second Amended and Restated Articles
of Incorporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Second Amended and Restated Articles of Incorporation of Emmis
Communications Corporation, incorporated by reference to Exhibit 3.1 to the
Company's amended Annual Report on Form 10-K/A (file no. 0-23264) for the
fiscal year ended February 29, 2000.
4.2 Amended and Restated Bylaws of Emmis Communications Corporation,
incorporated by reference to Exhibit 3.2 to the Company's amended Annual
Report on Form 10-K/A (file no. 0-23264) for the fiscal year ended February
29, 2000.
5 Opinion and consent of Bose McKinney & Evans LLP regarding the legality of
the securities being registered.
15 Letter re unaudited interim financial information.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Bose McKinney & Evans LLP (included in Exhibit 5).
24 Powers of Attorney.
ITEM 9. UNDERTAKINGS.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
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(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4) If the registrant is a foreign private issuer, to file a post-effective
amendment to the registration statement to include any financial statements
required by Rule 3-19 to Regulation S-X at the start of any delayed offering or
throughout a continuous offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Indianapolis, Indiana, on August 2, 2000.
EMMIS COMMUNICATIONS CORPORATION
By: /s/ Norman H. Gurwitz
--------------------------
Norman H. Gurwitz
Executive Vice President - Human
Resources and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on August 2, 2000, by the following
persons in the capacities indicated.
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SIGNATURE TITLE
<S> <C>
Jeffrey H. Smulyan*
----------------------- Director, Chairman of the Board and President
Jeffrey H. Smulyan (Principal Executive Officer)
----------------------- Director and Radio Division President
Doyle L. Rose
Greg Nathanson*
----------------------- Director and Television Division President
Greg Nathanson
Gary L. Kaseff*
----------------------- Executive Vice President, General Counsel and Director
Gary L. Kaseff
Walter Z. Berger* Executive Vice President, Chief Financial Officer
----------------------- and Treasurer
Walter Z. Berger (Principal Financial Officer and Principal Accounting Officer)
----------------------- Director
Susan B. Bayh
Richard A. Leventhal*
----------------------- Director
Richard A. Leventhal
Frank V. Sica*
----------------------- Director
Frank V. Sica
Lawrence B. Sorrel*
----------------------- Director
Lawrence B. Sorrel
*By: /s/ Norman H. Gurwitz
-----------------------
Norman H. Gurwitz
Attorney-in-Fact
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