Form S-8
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)
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| Indiana
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35-1542018 |
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(I.R.S. Employer |
| incorporation or organization)
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Identification No.) |
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| 40 Monument Circle, Suite 700 |
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| Indianapolis, Indiana
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46204 |
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(Zip Code) |
Emmis Communications Corporation 2010 Equity Compensation Plan
(Full title of the plan)
J. Scott Enright, Esq.
One Emmis Plaza
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)
Indicate by check mark whether the
registrant is a large accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of “large accelerated
filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
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Accelerated filer
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Non-accelerated filer o
(Do not check if a smaller reporting
company) |
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Smaller reporting company þ |
Calculation of Registration Fee
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Proposed |
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Proposed |
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Amount |
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maximum |
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maximum |
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Amount of |
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to be |
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offering price |
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aggregate |
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registration |
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Title of Securities to be registered |
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registered (1) |
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per share (2) |
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offering price |
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fee |
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Class A Common Stock, par value $.01 per share (3) |
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1,970,000 |
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0.66 |
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1,300,200.00 |
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150.95 |
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Class A Common Stock, par value $.01 per share |
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30,000 |
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0.58 |
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17,400 |
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2.02 |
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Class A Common Stock, par value $.01 per share (4)(5) |
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917,992 |
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— |
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Total |
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$ |
152.97 |
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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. |
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The actual price was used for outstanding options. Otherwise, the price was determined
pursuant to Rule 457(c) and (h) using average of reported high and low prices on December 27,
2010. |
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Up to 1,000,000 of these shares can be issued under the plan 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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These shares represent shares available for issuance but not subject to outstanding awards
under the Emmis Communications Corporation 2004 Equity Compensation Plan (the “2004 Plan”),
which are carried over to the 2010 Plan. The shares available under the 2004 Plan also include
shares that have become available for issuance under the Emmis Communications Corporation 1999
Equity Incentive Plan, the Emmis Communications Corporation 2001 Equity Incentive Plan and the
Emmis Communications Corporation 2002 Equity Compensation Plan (together with the 2004 Plan,
the “Prior Plans”), which were carried over into the 2004 Plan. The issuance and sale of
these shares were previously registered on Form S-8 under file nos. 333-42878 (416,355
shares), 333-71904 (35,493 shares), 333-92318 (31,138 shares) and 333-117033 (435,006 shares)
(the “Prior Registration Statements”), as to which filing fees were paid for these shares of
approximately $3,190, $128, $55 and $1,089, respectively. Pursuant to General Instruction E,
the Prior Registration Statements are incorporated by reference herein to the extent of such
shares carried over to the 2010 Plan, and no additional fee is paid hereunder with respect to
such shares. |
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| (5) |
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In addition, the 2010 Plan provides for the issuance of additional shares subject to
outstanding awards under the Prior Plans to the extent such shares would again become
available for new grants under the terms of the Prior Plans if the Prior Plans were still in
effect. Pursuant to General Instruction E, the Prior Registration Statements are also
incorporated by reference herein to the extent of any such additional shares, the number of
which cannot be presently determined, and no additional fee is paid hereunder with respect to
such shares. |
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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| ITEM 3. |
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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:
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The Annual Report on Form 10-K for Emmis Communications Corporation (file no. 0-23264) for
the fiscal year ended February 28, 2010, and the amendment thereto filed under form 10-K/A; |
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The Quarterly Reports on Form 10-Q for Emmis Communications Corporation (file no. 0-23264)
for the fiscal periods ended May 31, 2010 and August 31, 2010; |
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The Current Reports on Form 8-K for Emmis Communications Corporation (file no. 0-23264) filed
March 3, 2010, April 9, 2010, April 15, 2010, May 27, 2010, September 29, 2010, October 4,
2010, November 5, 2010, December 21, 2010 and December 27, 2010; and |
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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.
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| ITEM 4. |
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DESCRIPTION OF SECURITIES. |
Not applicable.
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| ITEM 5. |
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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.
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| ITEM 6. |
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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
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.
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| ITEM 7. |
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EXEMPTION FROM REGISTRATION CLAIMED. |
Not applicable.
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Opinion and consent of Bose McKinney & Evans LLP regarding the legality of the securities being registered. |
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23.1 |
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Consent of Ernst & Young LLP. |
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23.2 |
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Consent of Bose McKinney & Evans LLP (included in Exhibit 5). |
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Powers of Attorney. |
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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; notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum offering range may be reflected in
the form of a prospectus filed with the Commission pursuant to Rule 424(b) (Section 230.424(b)
of 17 C.F.R.) if, in the aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee”
table in the effective 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, Form S-8 or Form F-3, and 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 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.
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 December 28, 2010.
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EMMIS COMMUNICATIONS CORPORATION
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By: |
/s/ J. Scott Enright
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J. Scott Enright |
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Executive Vice President, General
Counsel and Secretary |
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Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed on December 28, 2010, by the following persons in the capacities indicated.
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| SIGNATURE |
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TITLE |
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Jeffrey H. Smulyan* |
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Director,
Chairman of the Board and President
(Principal Executive Officer) |
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Patrick M. Walsh* |
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Executive
Vice President, Chief Operating Officer,
Chief Financial Officer and Treasurer
(Principal Financial Officer and Principal Accounting Officer) |
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Susan B. Bayh*
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Director |
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Gary L. Kaseff* |
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Director |
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Richard A. Leventhal* |
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Director |
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Peter A. Lund* |
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Director |
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Greg A. Nathanson* |
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Director |
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Lawrence B. Sorrel* |
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Director |
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* By:
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/s/ J. Scott Enright |
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J. Scott Enright
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Attorney-in-Fact |
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