As filed with the Securities and
Exchange Commission on May 30, 2003 Registration No. 333-____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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EMMIS COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
Indiana 35-1542018
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
40 Monument Circle, Suite 700 46204
Indianapolis, Indiana (Zip Code)
(Address of Principal Executive Offices)
EMMIS OPERATING COMPANY 401(K) PLAN
EMMIS OPERATING COMPANY 401(K) PLAN TWO
(Full title of the plans)
J. Scott Enright
Vice President, Associate General Counsel
and Secretary
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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Title of Securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered (1) offering price per aggregate offering registration fee
share (2) price (2) (2)
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Class A Common Stock, 500,000 $20.125 $10,062,500 $815
$0.01 par value........
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933 (the "Securities
Act"), this Registration Statement also registers additional shares of
Class A Common Stock as may be offered or issued to prevent dilution
resulting from stock splits, stock dividends and similar transactions.
(2) Estimated solely for purposes of calculating the registration fee and
computed in accordance with Rule 457(c) and (h) under the Securities Act
using the average of the high and low sale prices of the Class A Common
Stock as reported by the NASDAQ National Market System on May 27, 2003,
which was $20.125 per share.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
*Information required by Part I of Form S-8 to be contained in the
Section 10(a) Prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act and the Note to Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by Emmis Communications
Corporation (the "Registrant") with the Securities and Exchange Commission are
incorporated by reference in this Registration Statement:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
February 28, 2003; and
(2) The description of the Registrant's Class A Common Stock contained in the
Registrant's Registration Statement on Form 8-A (File No. 0-23264) filed
with the Securities and Exchange Commission on January 24, 1994, including
any amendment or report filed for the purpose of updating such description.
In addition, all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 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 hereby have been sold or which deregisters all securities
offered hereby then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from their
respective dates of filing.
The Registrant will promptly provide without charge to each person to
whom a prospectus is delivered a copy of any or all information that has been
incorporated herein by reference (not including exhibits to the information that
is incorporated by reference unless such exhibits are specifically incorporated
by reference into such information) upon the written or oral request of such
person directed to Investment Relations at the following address and telephone
numbers: 40 Monument Circle, Suite 700, Indianapolis, Indiana 46204, telephone
(317) 266-1000.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
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 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 reasonable 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 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, 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.
The list of Exhibits is incorporated herein by reference to the Index
to Exhibits.
The Registrant hereby undertakes that it will submit or has submitted the
Emmis Operating Company 401(k)Plan and Emmis Operating Company 401(k) Plan Two
(collectively, the "Plans") and any amendment thereto to the Internal Revenue
Service ("IRS") in a timely manner and has made or will make all changes
required by the IRS in order to qualify the Plans under Section 401 of the
Internal Revenue Code.
ITEM 9. UNDERTAKINGS.
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;
(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 (1)(i) and (1)(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission 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 the 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.
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.
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.
SIGNATURES
The Registrant. 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 the City of Indianapolis, State of Indiana, on May 30, 2003.
EMMIS COMMUNICATIONS CORPORATION
By: /s/ J. Scott Enright
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J. Scott Enright
Vice President, Associate General Counsel
and Secretary
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in their
respective capacities and on the respective dates indicated opposite their
names. Each person whose signature appears below hereby authorizes each of
Jeffrey H. Smulyan and J. Scott Enright, each with full power of substitution,
to execute in the name and on behalf of such person any post-effective amendment
to this Registration Statement and to file the same, with exhibits thereto, and
other documents in connection therewith, making such changes in this
Registration Statement as the registrant deems appropriate, and appoints each of
Jeffrey H. Smulyan and J. Scott Enright, each with full power of substitution,
attorney-in-fact to sign any amendment and any post-effective amendment to this
Registration Statement and to file the same, with exhibits thereto, and other
documents in connection therewith.
Signature Title Date
/s/ Jeffrey H. Smulyan Director, Chairman of the Board, President May 30, 2003
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Jeffrey H. Smulyan and Chief Executive Officer (Principal
Executive Officer)
/s/ Greg Nathanson Director May 30, 2003
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Greg Nathanson
/s/ Gary L. Kaseff Director and Executive Vice President and May 30, 2003
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Gary L. Kaseff General Counsel
/s/ Walter Z. Berger Director and Executive Vice President, May 30, 2003
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Walter Z. Berger Chief Financial Officer and Treasurer
(Principal Financial Officer and Principal
Accounting Officer)
/s/ Susan B. Bayh Director May 30, 2003
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Susan B. Bayh
/s/ Richard A. Leventhal Director May 30, 2003
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Richard A. Leventhal
/s/ Frank V. Sica Director May 30, 2003
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Frank V. Sica
/s/ Lawrence B. Sorrel Director May 30, 2003
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Lawrence B. Sorrel
/s/ Peter A. Lund Director May 30, 2003
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Peter A. Lund
INDEX TO EXHIBITS
Exhibit
No. Description of Exhibit
4.1 Second Amended and Restated Articles of Incorporation of the Company.
(The copy of this Exhibit filed as Exhibit 3.1 to the Company's Form
10-K/A for the fiscal year ended February 29, 2000, is incorporated
herein by reference. The copy of Exhibit B to the Second Amended and
Restated Articles of Incorporation of the Company filed as Exhibit 3
to the Company's Form 8-K filed December 13, 2001 is incorporated
herein by reference.)
4.2 Amended and Restated By-Laws of the Company, as amended to date. (The
copy of this Exhibit filed as Exhibit 3.2 to the Company's Form 10-K/A
for the fiscal year ended February 29, 2000 is incorporated herein by
reference.)
5 Opinion of Baker & Daniels, as to the legality of the securities being
registered.
23.1 Consent of Independent Auditors - Ernst & Young LLP
23.2 Consent of Baker & Daniels (included in the Baker & Daniels Opinion
filed as Exhibit 5).
24 Power of Attorney (included on the Signature Page of the Registration
Statement).