<PAGE> 1
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
Filed by Registrant [ X ]
Filed by Party other than the Registrant [ ]
Check the appropriate box:
[ X ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Section 240.14a-11(c) or
Section 240.14a-12
EMMIS COMMUNICATIONS CORPORATION
(Name of Registrant as Specified in its Charter)
EMMIS COMMUNICATIONS CORPORATION
(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (Check the appropriate box):
[ X ] No Fee Required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
1) Title of each class of securities to which transaction applies:
.....................................................................
2) Aggregate number of securities to which transaction applies:
.....................................................................
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on
which the filing fee is calculated and state how it was
determined):
.....................................................................
4) Proposed maximum aggregate value of transaction:
.....................................................................
5) Total fee paid:
.....................................................................
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
.....................................................................
2) Form, Schedule or Registration Statement No.:
.....................................................................
3) Filing Party:
.....................................................................
4) Date Filed:
.....................................................................
<PAGE> 2
[LOGO]
January [19], 2000
Dear Shareholders:
On behalf of the directors and officers of Emmis Communications
Corporation, I invite you to attend a special meeting of our shareholders on
[Monday, February 21], 2000 at 10:00 a.m. at One EMMIS Plaza, 40 Monument
Circle, Indianapolis, Indiana.
As you know, the Board of Directors recently approved a 2-for-1 stock
split of our Class A and Class B Common Stock. The primary purpose of this
special meeting is to amend our Articles of Incorporation to increase the number
of authorized shares of Class A and Class B Common Stock so that we can
implement the stock split. Since we are proposing an amendment to our Articles
of Incorporation, we believe that this special meeting is also an appropriate
time to make certain other amendments to our Articles of Incorporation.
All of the proposals are explained in more detail in the notice of
special meeting and proxy statement that appear on the following pages. After
reading the proxy statement, please mark, sign and return the enclosed proxy
card to ensure that your votes on the business matters of the meeting will be
recorded.
Whether or not you attend the meeting, please return your proxy card
promptly in the enclosed postage paid envelope. After returning the proxy card,
you may vote in person on all matters brought before the meeting.
We look forward to seeing you on [February 21].
Sincerely,
Jeffrey H. Smulyan,
President and
Chairman of the Board
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EMMIS COMMUNICATIONS CORPORATION
INDIANAPOLIS, INDIANA
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
A special meeting of the shareholders of Emmis Communications
Corporation will be held on [Monday, February 21], 2000, at 10:00 a.m. at One
Emmis Plaza, 40 Monument Circle, Indianapolis, Indiana, to consider and vote on
the following matters:
1. An amendment to the Emmis Articles of Incorporation to increase the
authorized Class A Common Stock to 170 million shares and the authorized
Class B Common Stock to 30 million shares;
2. An amendment to the Emmis Articles of Incorporation to create a new
class of non-voting common stock with 30 million authorized shares, to be
denominated Class C Common Stock;
3. An amendment to the Emmis Articles of Incorporation to provide for a
classified Board of Directors, consisting of six to 15 directors divided
into three classes, to require cause and an 80% vote of shareholders for
the removal of directors, to require an 80% vote of shareholders to
change these provisions and to remove certain outdated material from the
Articles; and
4. The transaction of such other business as may properly come before the
meeting and any adjournments thereof.
Only shareholders of record at the close of business on January 7, 2000 are
entitled to notice of and to vote at this meeting and any adjournments thereof.
By order of the Board of Directors,
Norman H. Gurwitz
Secretary
Indianapolis, Indiana
January [19], 2000
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Emmis Communications Corporation
One Emmis Plaza
40 Monument Circle
Indianapolis, Indiana 46204
PROXY STATEMENT
This Proxy Statement is furnished in connection with the solicitation by
the Board of Directors of Emmis Communications Corporation of proxies to be
voted at a special meeting of shareholders to be held on [Monday,
February 21], 2000, and at any adjournment thereof. The approximate date
of mailing this proxy statement is January [19], 2000. The following
is important information in a question-and-answer format regarding the annual
meeting and this proxy statement.
Q: What am I voting on?
- - An amendment to the Emmis Articles of Incorporation to increase the
authorized Class A Common Stock to 170 million shares and the authorized
Class B Common Stock to 30 million shares
- - An amendment to the Emmis Articles of Incorporation to create a class of
non-voting common stock with 30 million authorized shares, to be
denominated Class C Common Stock
- - An amendment to the Emmis Articles of Incorporation to provide for a
classified Board of Directors, consisting of six to 15 directors divided
into three classes, to require cause and an 80% vote of shareholders for
the removal of directors, to require an 80% vote of shareholders to
change these provisions and to remove two outdated sections of the
Articles of Incorporation describing series of preferred stock which
were redeemed when Emmis became a public company
Q: Who is entitled to vote?
Holders of either class of Emmis common stock, Class A or Class B, as of
the close of business on January 7, 2000, the record date, are entitled to
vote at the annual meeting. As of January 7, 2000, [20,486,657] shares of
Class A Common Stock and [2,369,291] shares of Class B Common Stock were
issued and outstanding.
Q: What are the voting rights of the Class A and Class B Common Stock?
On each matter submitted to a vote of Emmis' shareholders, each share of
Class A Common Stock is entitled to one vote and each share of Class B Common
Stock is entitled to ten votes. Generally, the Class A and Class B Common
Stock vote together as a single group. However, the two classes vote
separately in connection with the election of directors, certain "going
private" transactions and other matters as provided by law.
For this special meeting, the Class A and Class B Common Stock will vote
as separate classes on the increase in the authorized Class A Common Stock
and Class B Common Stock and on the creation of a new class of non-voting
common stock and as a single class on all other issues.
Q: How do I vote?
Sign and date each proxy card you receive and return it in the prepaid
envelope. If you return your signed proxy card but do not indicate your
voting preferences, we will vote FOR the three proposals on your behalf.
You
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have the right to revoke your proxy any time before the meeting by either
notifying Emmis' corporate secretary or returning a later-dated proxy. You may
also revoke your proxy by voting in person at the meeting.
Q: What does it mean if I get more than one proxy card?
It means you hold shares registered in more than one account. Sign and
return ALL proxy cards to ensure that all your shares are voted.
Q: Who will count the vote?
Representatives of First Union National Bank, Emmis' transfer agent, will
count the votes.
Q: What constitutes a quorum?
A majority of the voting power of each of the Class A and Class B Common
Stock constitutes a quorum for the meeting.
Q: How many votes are needed for approval of each item?
The approval of the amendments to the Emmis Articles of Incorporation
increasing the authorized shares and creating a new class of non-voting
common stock requires that the number of votes of each of the Class A Common
Stock and the Class B Common Stock cast in favor of the amendment exceed the
number of votes cast against the amendment. The approval of the other
amendment to the Emmis Articles of Incorporation requires that the number of
votes of the Class A Common Stock and the Class B Common Stock, voting as a
single class, cast in favor of the amendment exceed the number of votes cast
against the amendment, with each share of Class A Common Stock entitled to
one vote and each share of Class B Common Stock entitled to ten votes.
Proxies submitted by brokers that do not indicate a vote for some of the
proposals because the holders do not have discretionary voting authority
and have not received instructions from the beneficial owners on how to vote
on those proposals are called "broker non-votes." Abstentions and broker
non-votes will not be voted for or against the proposals and will not be
counted as entitled to vote.
Q: Who can attend the Special Meeting?
All shareholders as of January 7, 2000 can attend.
Q: What percentage of stock do the directors and officers own?
Together, they own approximately 3.6% of the shares of Class A Common
Stock and 100.0% of the shares of Class B Common Stock. (See page 4 for
details.)
Q: Who are the largest principal shareholders?
Jeffrey H. Smulyan, the President and Chairman of the Board of
Directors, is the largest single shareholder of Emmis, beneficially owning
[242,205] Class A shares and [2,869,291] Class B shares as of January 7, 2000.
In addition, Liberty EMMS, Inc. (an affiliate of Liberty Media Corporation) and
Mellon Bank Corporation each beneficially own in excess of 5% of the Class A
Common Stock. (See page 4 for details.)
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Q: When are shareholder proposals and nominations for the 2000 annual
meeting due?
Any Emmis shareholder wishing to have a proposal considered for
inclusion in the Emmis 2000 annual meeting proxy solicitation materials must set
forth such proposal in writing and file it with the Emmis corporate secretary on
or before January 25, 2000. The Emmis Board of Directors will review any
shareholder proposals that are filed as required and will determine whether such
proposals meet applicable criteria for inclusion in its 2000 annual proxy
solicitation materials or consideration at the 2000 annual meeting. In addition,
Emmis retains discretion to vote proxies on matters of which it is not properly
notified at its principal executive offices on or before April 11, 2000, and
also retains such authority under certain other circumstances.
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VOTING SECURITIES AND BENEFICIAL OWNERS
The following table shows, as of January 7, 2000, the number and
percentage of shares of Common Stock held by each person known to Emmis who
owned beneficially more than five percent of the issued and outstanding Emmis
common stock, by the Emmis directors and by certain executive officers:
<TABLE>
<CAPTION>
Class A Common Stock Class B Common Stock
Five Percent Shareholders, Amount and Amount and Percent
Selling Shareholder, Nature of Percent Nature of Percent of Total
Directors and Certain Beneficial of Beneficial of Voting
Executive Officers Ownership Class Ownership Class Power
<S> <C> <C> <C> <C> <C>
Jeffrey H. Smulyan 242,205 (1) 1.2% 2,869,291 (12) 100.0% 58.8%
Susan B. Bayh 15,100 (2) * - - *
Walter Z. Berger - * - - *
Richard F. Cummings 113,091 (3) * - - *
Norman H. Gurwitz 96,689 (4) * - - *
Gary L. Kaseff 31,988 (5) * - - *
Richard A. Leventhal 29,500 (6) * - - *
Doyle L. Rose 94,002 (7) * - - *
Greg A. Nathanson 122,000 (8) * - - *
Frank V. Sica - * - - *
Lawrence B. Sorrel 4,000 * - - *
Liberty Media Corporation 2,700,000 (9) 13.2 - - 5.5
Mellon Bank Corporation 1,301,411 (10) 6.4 - - 2.6
All Officers and Directors
as a Group (11 persons) 734,704 (11) 3.6 2,869,291 (12) 100.0 59.5
</TABLE>
- ------------------------
* Less than 1%.
(1) Includes 162,205 shares held by Mr. Smulyan as trustee for the Emmis
Communications Corporation Profit Sharing Trust, (the "Profit Sharing
Trust") as to which Mr. Smulyan disclaims beneficial ownership.
(2) Consists of 100 shares owned individually and 15,000 shares represented
by stock options exercisable within 60 days of January 7, 2000.
(3) Consists of 25,808 shares owned individually, 3,376 shares owned for the
benefit of Mr. Cummings' children, 1,707 shares held in the Profit
Sharing Trust, and 82,200 shares represented by stock options exercisable
within 60 days of January 7, 2000.
(4) Consists of 11,830 shares owned jointly by Mr. Gurwitz and his spouse,
490 shares owned by Mr. Gurwitz's spouse, 2,738 shares owned for the
benefit of Mr. Gurwitz's children, 9,000 shares owned by a corporation
of which Mr. Gurwitz's spouse is a 50% owner, 1,050 shares held in the
Profit Sharing Trust, and 71,518 shares represented by stock options
exercisable within 60 days of January 7, 2000.
(5) Consists of 3,274 shares owned individually by Mr. Kaseff, 1,369 shares
owned by Mr. Kaseff's spouse, 345 shares held in the Profit Sharing
Trust, and 27,000 shares represented by stock options exercisable within
60 days of January 7, 2000.
(6) Consists of 4,000 shares owned individually, 1,500 shares owned by
Mr. Leventhal's spouse, 9,000 shares owned by a corporation of which
Mr. Leventhal is a 50% owner and 15,000 shares represented by stock
options exercisable within 60 days of January 7, 2000.
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(7) Consists of 10,095 shares owned individually, 1,707 shares held in the
Profit Sharing Trust, and 82,200 shares represented by stock options
exercisable within 60 days of January 7, 2000.
(8) Consists of 100,000 shares owned individually or jointly with his spouse
and 22,000 shares owned by a trust for the benefit of Mr. Nathanson's
children.
(9) Information concerning these shares was obtained from a Schedule 13D
filed in November 1999 by Liberty Media Corporation, which has a mailing
address of 9197 South Peoria Street, Englewood, Colorado 80112.
(10) Information concerning these shares was obtained from an Amendment to
Schedule 13G filed in February 1999 by Mellon Bank Corporation on behalf
of itself, Boston Group Holdings, Inc. and The Boston Company, Inc.,
each of which has a mailing address c/o Mellon Bank Corporation, One
Mellon Bank Center, Pittsburgh, Pennsylvania 15258.
(11) Includes 292,918 shares represented by stock options exercisable within
60 days of January 7, 2000, and 162,205 shares held in the Emmis
Communications Corporation Profit Sharing Trust.
(12) Consists of 2,369,291 shares owned individually and 500,000 shares
represented by stock options exercisable within 60 days of
January 7, 2000.
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Proposal No. 1: AMENDMENT OF THE EMMIS ARTICLES OF
INCORPORATION TO INCREASE THE AUTHORIZED COMMON STOCK
The Emmis Board of Directors has proposed an increase in the number of
authorized shares of Class A Common Stock to 170 million shares from 34
million shares and an increase in the number of authorized shares of Class B
Common Stock to 30 million shares from 6 million shares. The terms of the
additional authorized Class A Shares will be the same as those that apply to
the currently authorized Class A Shares, and the terms of the additional
authorized Class B Shares will be the same as those that apply to the
currently authorized Class B Shares. The form of the proposed amendment is
shown in Exhibit A to this proxy statement.
As of January 7, 2000, [20,486,657] shares of Class A Common Stock were
issued and outstanding. Approximately 2.6 million shares have been reserved
for issuance pursuant to various Emmis employee compensation and benefit
plans, and 1.84 million shares were reserved for issuance upon conversion of
the outstanding 6.25% Series A Cumulative Convertible Preferred Stock. There
were, therefore, as of January 7, 2000, 34 million shares of Class A Common
Stock authorized for issuance and approximately 24.9 million issued or
reserved for issuance, leaving approximately 9.1 million shares of authorized
Class A Common Stock available for future issuances by Emmis. In addition,
as of January 7, 2000, six million shares of Class B Common Stock were
authorized for issuance and approximately 3.4 million were issued and
outstanding or reserved for issuance pursuant to various Emmis employee
compensation and benefit plans. The Board believes it would be desirable to
increase the number of shares of authorized Class A Common Stock and Class B
Common Stock in order to permit a 2 for 1 stock split of the Class A Common
Stock and the Class B Common Stock which the Board has approved, subject to the
approval by shareholders of this proposal. The Board also believes that it
would be desirable to increase the number of authorized shares of Class A
Common Stock in order to make available additional shares for possible future
stock splits, stock dividends, employee benefit plan issuances, equity
financings, acquisitions and other corporate purposes. The Articles of
Incorporation prohibit any split of the Class A Common Stock unless the Class
B Common Stock is also split, so the Board has proposed a proportionate
increase in the authorized shares of Class B Common Stock as well in order to
permit future stock splits.
Emmis has no specific plans currently calling for issuance of any of
the additional shares of Common Stock, other than as described above. The rules
of The Nasdaq Stock Market currently require shareholder approval of issuances
of Class A Common Stock under certain circumstances. In other instances, the
issuance of additional shares of authorized Class A Common Stock or Class B
Common Stock would be within the discretion of the Board of Directors, without
the requirement of further action by shareholders. Under the Emmis Articles of
Incorporation, shareholders do not have preemptive rights. While the issuance
of shares in certain instances may have the effect of forestalling a hostile
takeover, the Board does not intend or view the increase in authorized Class A
Common Stock and Class B Common Stock as an anti-takeover measure, nor is Emmis
aware of any proposed or contemplated transaction of this type.
Approval of the proposal will be determined by whether the votes cast
by holders of Class A Common Stock for the proposal exceed those cast against by
holders of Class A Common Stock and whether the votes cast by holders of Class B
Common Stock for the proposal exceed those cast against by holders of Class B
Common Stock. Under applicable Indiana law, in determining whether this
proposal has received the requisite number of affirmative votes, abstentions and
broker non-votes will not be voted for or against the proposals and will not be
counted as entitled to vote.
The Board of Directors unanimously recommends that shareholders vote in
favor of this Proposal.
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Proposal No. 2: AMENDMENT OF THE EMMIS ARTICLES OF
INCORPORATION TO CREATE A CLASS OF NON-VOTING COMMON STOCK
The Emmis Board of Directors has proposed the creation of a new class of
Common Stock, to be known as Class C Common Stock, with 30 million shares
authorized for issuance. The terms of the Class C Common Stock will be the
same as those that apply to the Class A Common Stock, except that the Class C
Shares will have no right to vote on any matter except as required by law.
The form of the proposed amendment is shown in Exhibit A to this proxy
statement.
As an owner and operator of broadcasting properties, Emmis is subject
to rules of the Federal Communications Commission which limit the number of
radio and television stations one broadcaster may own or operate in a designated
market area. For purposes of determining the number of stations a broadcaster
owns, the FCC rules add to the broadcaster's total any stations owned in the
market by certain significant holders of voting stock.
An affiliate of Liberty Media Corporation recently purchased 2.7
million shares of Class A Common Stock. Although both Emmis and Liberty Media
believe that none of Liberty Media's broadcasting properties will be attributed
to Emmis and none of the Emmis broadcasting properties will be attributed to
Liberty Media under the FCC's rules, the purchase agreement between Emmis and
Liberty Media provides for the exchange of Liberty Media's shares of Class A
Common Stock for shares of Emmis nonvoting common stock in the event the FCC
does attribute ownership of one party's broadcasting properties to the other and
certain other measures described in the agreement are not sufficient to avoid
the attribution.
The Board of Directors has proposed the creation of the nonvoting
Class C Common Stock in order to provide for the contingency in the Liberty
Media agreement that Emmis would need to exchange shares of Class C Common Stock
for outstanding shares of Class A Common Stock. The board has proposed
sufficient authorized shares of Class C Common Stock to account for possible
stock splits as described in Proposal No. 1 above. Emmis has no specific plans
currently calling for issuance of any shares of Class C Common Stock other than
under the Liberty Media agreement. However, in the event the Board of Directors
later determines that some or all of the Class C Common Stock is not needed
under the Liberty Media agreement, it would have the discretion to issue shares
of Class C Common Stock to others, without the requirement of further action by
shareholders. While the issuance of shares in certain instances may have the
effect of forestalling a hostile takeover, the Board does not intend or view the
creation of Class C Common Stock as an anti-takeover measure, nor is Emmis aware
of any proposed or contemplated transaction of this type.
Approval of the proposal will be determined by whether the votes cast
by holders of Class A Common Stock for the proposal exceed those cast against by
holders of Class A Common Stock and whether the votes cast by holders of Class B
Common Stock for the proposal exceed those cast against by holders of Class B
Common Stock. Under applicable Indiana law, in determining whether this
proposal has received the requisite number of affirmative votes, abstentions and
broker non-votes will not be voted for or against the proposals and will not be
counted as entitled to vote.
The Board of Directors unanimously recommends that shareholders vote
in favor of this Proposal.
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Proposal No. 3: AMENDMENT OF THE EMMIS ARTICLES OF
INCORPORATION TO CLASSIFY THE BOARD OF DIRECTORS
AND TO MAKE CERTAIN OTHER CHANGES
General. The Emmis Board of Directors has proposed an amendment to the Emmis
Amended and Restated Articles of Incorporation which would make the following
changes:
- - Provide for a Board of Directors with no less than six and no more than
fifteen members, with the exact number of Directors established from
time to time by the Board of Directors in the Emmis By-Laws
- - Divide the Board of Directors into three classes, with the number of
Directors in each class to be as nearly equal as possible, and provide
for the election of one class at each annual meeting to serve three-year
terms
- - Provide that a Director may be removed only for cause and only by the
affirmative vote of shareholders representing at least 80% of the votes
entitled to be cast for the election of that Director
- - Prohibit the amendment or repeal of the article concerning Directors, or
the adoption of a provision inconsistent with that article, without
the affirmative vote of the holders of shares representing at least 80% of
the votes entitled to be cast for the election of Directors
- - Eliminate Sections 8.2 and 8.3 of the Amended and Restated Articles of
Incorporation, which describe two series of preferred stock that were
converted into Class A Common Stock and redeemed, respectively, upon the
closing of the Emmis initial public offering in 1994
This amendment will have no application to directors elected pursuant to
special voting rights of one or more series of Emmis preferred stock. Election
and removal of these directors is governed by voting rights specifically
granted to holders of such preferred stock and by rights provided in the
Indiana Business Corporation Law. The form of the proposed amendment is shown
in Exhibit A to this proxy statement.
Classification of Directors. Currently, the articles of incorporation
provide for the election of all directors at each annual meeting to serve
until the next annual meeting. If the proposed amendment is adopted, at the
2000 annual meeting approximately one-third of the directors will be elected
for a one-year term, approximately one-third of the directors will be elected
for a two-year term and approximately one-third of the directors will be
elected for a three-year term. The Class A Directors will be placed into
separate classes.
The board of directors believes that a staggered board of directors
will tend to promote continuity in management because at least two-thirds of the
directors at any time will have prior experience as directors of Emmis and
in-depth knowledge of Emmis and its business. While Emmis has not experienced
difficulties in the past due to lack of continuity in management, the board of
directors believes that the unprecedented changes currently occurring in the
broadcasting industry, including increased competition and evolving
technologies, make such continuity and the long-term strategic planning it
allows especially important.
Staggered terms for members of the board of directors also would
moderate the pace of changes in the board of directors by extending the time
required to elect a majority of directors from one to two years. It would be
impossible for shareholders to change a majority of the directors at any annual
meeting should they consider such a change desirable, unless they control
sufficient shareholder and director votes to change this provision of the
articles of incorporation. This may have an antitakeover effect.
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Removal of Directors. Another provision of the proposed amendment
would permit any director to be removed only for cause and only by the
affirmative vote of shareholders representing at least 80% of the votes entitled
to be cast for the election of that director at a meeting of shareholders called
for that purpose. The proposed provision defines cause as conviction of a
felony by a court of competent jurisdiction, or an adjudication by a court of
competent jurisdiction of negligence or misconduct in the performance of a duty
to Emmis in a matter of substantial importance to Emmis. The articles of
incorporation currently contain no provision on removal of directors, and
Indiana law provides that in the absence of such a provision in the articles of
incorporation, shareholders representing a majority of the votes entitled to be
cast for a director may remove that director with or without cause. If the
amendment is adopted, Class A Directors will only be entitled to be removed for
cause by the affirmative vote of shareholders representing at least 80% of the
Class A Common Stock entitled to vote at a meeting of shareholders called for
that purpose.
This provision is consistent with, and supportive of, the concept of
a classified board of directors because it tends to moderate the pace of any
change in the board of directors and promote continuity of management. The
board of directors believes that directors, all of whom are elected by the
shareholders for specified terms, should be removed from office before the
expiration of their respective terms only if dissatisfaction with their
performance is widely shared by the shareholders and only in certain specified
circumstances. Directors are required to act in the best interest of Emmis and
its shareholders. If the holder of a simple majority of the votes represented
by the common stock were able to remove directors at will, directors might have
difficulty fulfilling their responsibilities to Emmis and to all of the
shareholders.
A general effect of this provision would be to prevent shareholders
from removing directors (as opposed to defeating their re-election) unless the
shareholders control at least 80% of the votes for election of directors and are
able to base the removal on cause. Therefore, the provision will make it more
difficult to acquire operating control of Emmis and may also discourage takeover
attempts.
Amendment or Repeal. The proposed amendment to the articles of
incorporation also provides that the provisions relating to the Board of
Directors may not be amended or repealed, and no inconsistent provision may be
adopted, without the affirmative vote of the holders of shares representing at
least 80% of the votes entitled to be cast for the election of directors at a
meeting of shareholders called for the purpose of such amendment, repeal or
adoption of an inconsistent provision. The effect of this provision is to
prevent a simple majority of the votes entitled to be cast for amendment of the
articles of incorporation from nullifying the effect of the provisions in the
proposed amendment.
Elimination of Outdated Provisions. Prior to its initial public
offering in 1994, Emmis had two series of preferred stock outstanding. Under
Indiana law, the terms of these series of preferred stock were established by
amendments to the Emmis Articles of Incorporation, and they are currently
contained in Sections 8.1 and 8.2. One series of this preferred stock was
converted into Class A Common Stock upon the closing of the initial public
offering, and the other series was redeemed with a portion of the offering
proceeds. Thus, neither series of preferred stock has been outstanding since
1994, and the Board of Directors has proposed the elimination of Sections 8.1
and 8.2 of the Amended and Restated Articles of Incorporation. This change will
have no effect on the outstanding 6.25% Series A Cumulative Convertible
Preferred Stock, the terms of which are contained in a different part of the
Amended and Restated Articles of Incorporation.
Vote Required to Approve. Approval of the proposal will be
determined by whether the votes cast by holders of Class A Common Stock and
Class B Common Stock, voting as a single class, for the proposal exceed those
cast against by holders of Class A Common Stock and Class B Common Stock. Each
share of Class A Common Stock is entitled to one vote on this proposal and each
share of Class B Common Stock is entitled to ten votes. Under applicable Indiana
law, in determining whether this proposal has received the requisite number of
affirmative votes, abstentions and broker non-votes will not be voted for or
against the proposals and will not be counted as entitled to vote.
The Board of Directors unanimously recommends that shareholders vote
in favor of this Proposal.
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EXPENSES OF SOLICITATION
The entire expense of preparing, assembling, printing and mailing the
proxy form and the material used in the solicitation of proxies will be paid
by Emmis. Emmis does not expect that the solicitation will be made by specially
engaged employees or paid solicitors. Although Emmis might use such employees
or solicitors if it deems them necessary, no arrangements or contracts have
been made with any such employees or solicitors as of the date of this
statement. In addition to the use of the mails, solicitation may be made by
telephone, telegraph, cable or personal interview. Emmis will request record
holders of shares beneficially owned by others to forward this proxy statement
and related materials to the beneficial owners of such shares, and will
reimburse such record holders for their reasonable expenses incurred in doing
so.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this proxy statement, and later information that we
file with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934 until the date of the Special Meeting.
- - Our Annual Report on Form 10-K (file no. 0-23264) for the fiscal year ended
February 28, 1999.
- - Our Quarterly Reports on Form 10-Q (file no. 0-23264) of the fiscal quarters
ended May 31, 1999, August 31, 1999 and November 30, 1999.
- - Our Current Reports on Form 8-K (file no. 0-23264) filed March 15, 1999 and
May 6, 1999, and an amendment on Form 8-K/A (file no. 0-23264) filed May 6,
1999.
- - Our Current Reports on Form 8-K (file no. 0-23264) filed May 7, 1998 and
December 2, 1998, and an amendment on Form 8-K/A (file no. 0-23264) filed
September 29, 1998.
IT IS IMPORTANT THAT PROXIES BE RETURNED PROMPTLY. Whether or not
you attend the meeting, we urge you to execute and return the proxy.
For the Board of Directors,
Jeffrey H. Smulyan
Chairman
January [19], 2000
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EXHIBIT A
PROPOSED AMENDMENTS TO
AMENDED AND RESTATED ARTICLES OF INCORPORATION
The definition of "Common Shares" in Article III of the Amended and
Restated Articles of Incorporation is amended to read as follows:
"Common Shares" has the meaning defined in Section 6.1(b) Section 6.1(c).
Article III of the Amended and Restated Articles of Incorporation is
amended to add the following definition:
"Class C Shares" has the meaning defined in Section 6.1(c).
Section 6.1 of the Amended and Restated Articles of Incorporation is
amended to read as follows:
6.1. Authorized Shares. The total number of shares of all classes of
capital stock which the Corporation shall have authority to issue
is fifty Two Hundred Forty million (50,000,000) (240,000,000),
consisting of the following:
(a) Thirty-four One Hundred Seventy million (34,000,000)
(170,000,000) shares of Class A Common Stock, par value $.01 per share
(the "Class A Shares");
(b) Six Thirty million (6,000,000) (30,000,000) shares of
Class B Common Stock, par value $.01 per share (the "Class B Shares"and
together with the Class A Shares and the Class B Shares, the "Common
Shares"); and
(c) Thirty million (30,000,000) shares of Class C Common
Stock, par value $.01 per share (the "Class C Shares" and together with
the Class A Shares and the Class B Shares, the "Common Shares"); and
(d) Ten million (10,000,000) shares of serial Preferred
Stock, par value $.01 per share (the "Preferred Stock").
Section 7.2(a) is amended to read as follows:
(a) General. When, as and if dividends are declared by the
Corporation's board of directors (the "Board of Directors"), whether payable in
cash, securities of the Corporation or other property, the holders of Common
Shares shall be entitled, in accordance with the number of Common Shares held by
each, to share equally in and to receive all such dividends, except that if
dividends are declared that are payable in Common Shares, such stock dividends
shall be payable at the same rate on each class of Common Shares and shall be
payable only in Class A Shares to holders of Class A Shares, and in Class B
Shares to holders of Class B Shares and in Class C Shares to holders of Class C
Shares.
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Section 7.4(a) is amended to read as follows:
(a) General. The holders of the Class A Shares and the Class B
Shares shall vote as a single class in all matters submitted to a vote of the
shareholders, with each Class A Share being entitled to one vote and each Class
B Share being entitled to ten votes, except (i) for the election of directors,
which shall be governed by Subsections (b) and (c) below, (ii) with respect to
any Going Private Transaction described in Subsection (e) below, which shall be
governed by such Subsection, and (iii) as otherwise provided by law. The
holders of the Class C Shares have no right to vote on any matter except as
otherwise provided by law.
Section 7.5 is amended to read as follows:
7.5. Issuance of Common Shares. Each new issuance of Common Shares
after the Effective Date shall be an issuance of Class A Shares or Class C
Shares unless (i) the Common Shares are issued to Smulyan or (ii) the Common
Shares are issued or subject to a Qualified Voting Trust. In each event
described in clauses (i) or (ii) above, each Common Share issued shall be a
Class B Share.
Section 7.7 is amended to read as follows:
7.7. Consideration on Merger, Consolidation, etc. In any merger,
consolidation or business combination, the consideration to be received per
share by the holders of Class A Shares, and Class B Shares and Class C Shares
must be identical for each class of stock, except that in any such transaction
in which shares of common stock are to be distributed, such shares may differ
as to voting rights to the extent that the voting rights provided in these
Restated Articles differ between the Class A Shares, and the Class B Shares
and the Class C Shares.
Article VIII is amended to delete Sections 8.1 and 8.2.
Article IX is amended to read as follows:
ARTICLE IX
Board of Directors
The number of directors constituting the Board of Directors as of the
Effective Date shall be nine (9). Thereafter, the number of directors shall
be fixed by the By-Laws of the Corporation.
9.1 Number of Directors. The number of directors constituting the
Board of Directors shall be fixed by the By-Laws of the Corporation and shall be
not less than six (6) and not more than fifteen (15). No amendment to the
By-Laws decreasing the number of directors shall have the effect of shortening
the term of any incumbent director.
9.2 Classes and Term of Office. Effective as of the annual meeting
of shareholders in 2000, the Board of Directors shall be divided into three (3)
classes, designated Class I, Class II and Class III, as nearly equal in number
as possible. The number of Class A Directors in each class shall also be as
nearly equal in number as possible. The initial term of office of directors in
Class I will expire at the annual meeting of shareholders in 2001. The initial
term of office of directors in Class II will
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expire at the annual meeting of shareholders in 2002. The initial term of
office of directors in Class III will expire at the annual meeting of
shareholders in 2003. At each annual election beginning at the annual meeting
of shareholders in 2001, the successors to the class of directors whose term
then expires shall be elected to hold office for a term of three (3) years and
until his or her successor is elected and qualifies or until his or her earlier
resignation, removal from office or death. This section does not apply to any
directors elected pursuant to special voting rights of one or more series of
Preferred Stock.
9.3 Removal of Directors.
(a) A director other than a Class A Director may be removed by the
shareholders only for cause and only if the removal has been approved by an
80% majority of the combined voting power of the shares entitled to vote for
the election of such director, cast at a special meeting of the shareholders
called for that purpose. A Class A Director may be removed by the holders of
Class A Shares as provided in Section 7.4(b) only for cause and only if the
removal has been approved by the holders of an 80% majority of the Class A
Shares, cast at a special meeting of the shareholders called for that purpose.
Cause for removal exists only if:
(1) the director whose removal is proposed has been convicted of a felony
by a court of competent jurisdiction and the conviction is no longer
subject to direct appeal; or
(2) the director whose removal is proposed has been adjudicated by a court
of competent jurisdiction to be liable for negligence or misconduct in
the performance of his duty to the Corporation in a matter of substantial
importance to the Corporation, and the adjudication is not longer subject
to direct appeal.
(b) This section does not apply to any directors elected pursuant to
special voting rights of one or more series of Preferred Stock.
9.4 Amendment or Repeal of this Article. Notwithstanding any other
provision of these Articles or the By-Laws of the Corporation, and in
addition to any other procedure specified under Indiana law, any amendment
or repeal of or adoption of a provision inconsistent with any provision in
this Article IX is not effective unless it is approved by at least an 80%
majority of the combined voting power of the outstanding Common Shares.
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[LOGO]
FOLD AND DETACH HERE
EMMIS COMMUNICATIONS CORPORATION
40 Monument Circle
Indianapolis, Indiana 46204
This Proxy is Solicited on Behalf of the Board of Directors of the Company
The undersigned hereby appoints Jeffrey H. Smulyan, Norman H. Gurwitz and Gary
L. Kaseff, and each of them, attorneys-in-fact and proxies, with full power of
substitution, to vote as designated below all shares of Class A Common Stock of
Emmis Communications Corporation which the undersigned would be entitled to
vote if personally present at the special meeting of Shareholders to be held on
February 21, 2000, at 10:00 a.m., and at any adjournment thereof.
1. PROPOSAL TO AMEND THE EMMIS ARTICLES OF INCORPORATION TO INCREASE THE
AUTHORIZED SHARES.
FOR AGAINST ABSTAIN
2. PROPOSAL TO AMEND THE EMMIS ARTICLES OF INCORPORATION TO CREATE A CLASS
OF NON-VOTING COMMON STOCK.
FOR AGAINST ABSTAIN
3. PROPOSAL TO AMEND THE EMMIS ARTICLES OF INCORPORATION TO CLASSIFY THE
BOARD OF DIRECTORS AND MAKE CERTAIN OTHER CHANGES.
FOR AGAINST ABSTAIN
4. In their discretion, the Proxies are authorized to vote upon such other
business as may properly come before the meeting.
(continued on other side)
<PAGE> 18
FOLD AND DETACH HERE
This proxy is solicited on behalf of the Board of Directors of the Company.
This proxy when properly executed will be voted in the manner directed herein
by the undersigned shareholders. If no direction is made, this proxy will be
voted FOR Proposals 1, 2 and 3.
The undersigned acknowledges receipt from Emmis Communications Corporation,
prior to the execution of this proxy, of notice of the meeting, a proxy
statement, and an annual report to shareholders.
Dated: , 2000
---------------------
- -----------------------------------
(Signature)
- -----------------------------------
(Signature if held jointly)
Please sign exactly as name appears below. When
shares are held as joint tenants, both should
sign. When signing as attorney, executor,
administrator, trustee or guardian, please give
full title. If a corporation, please sign in
full corporate name by President or other
authorized officer. If a partnership, please
sign in partnership name by authorized person.
IMPORTANT: Please mark, sign, date and return
the proxy card promptly using the enclosed
envelope.
REVOCABLE PROXY
