SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 4)
EMMIS COMMUNICATIONS CORPORATION
(Name of Subject Company and Filing Person)
CLASS A COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
291525103
(CUSIP Number of Class of Securities)
J. SCOTT ENRIGHT, ESQ.
ONE EMMIS PLAZA
40 MONUMENT CIRCLE
SUITE 700
INDIANAPOLIS, INDIANA 46204
(317) 266-0100
Copy to:
JAMES M. DUBIN, ESQ.
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
1285 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019-6064
(212) 373-3000
(Name, address and telephone number of person authorized
to receive notices and communications on behalf of the Offeror)
CALCULATION OF FILING FEE
Transaction Valuation* Amount of Filing Fee**
---------------------- ----------------------
$399,937,500.00 $47,073.00
* Estimated for purposes of calculating the amount of the filing fee only,
this amount is based on the purchase of 20,250,000 shares of Class A common
stock at the maximum tender offer price of $19.75 per share.
** The amount of the filing fee, calculated in accordance with Rule 0-11 of
the Securities Exchange Act of 1934, as amended, equals $117.70 per million
of the aggregate amount of the cash offered by Emmis Communications
Corporation
|X| Check the box if any part of the filing fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: $47,073.00 Filing Party: Emmis Communications Corporation
Form or Registration No.: Schedule TO-I Date Filed: May 16, 2005
|_| Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transaction to which the
statement relates:
|_| third-party tender offer subject to Rule 14d-1.
|X| issuer tender offer subject to Rule 13e-4.
|_| going-private transaction subject to Rule 13e-3.
|_| amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results
of the tender offer: |_|
INTRODUCTION
This Amendment No. 4 (this "Amendment") amends and supplements the
Tender Offer Statement on Schedule TO originally filed with the Securities and
Exchange Commission (the "Commission") on May 16, 2005, and amended and
supplemented by Amendment No. 1 to the Tender Offer Statement on Schedule TO
filed with the Commission on May 25, 2005, Amendment No. 2 to the Tender Offer
Statement on Schedule TO filed with the Commission on June 2, 2005, and
Amendment No. 3 to the Tender Offer Statement on Schedule TO filed with the
Commission on June 6, 2005 (collectively, the "Schedule TO"), by Emmis
Communications Corporation, an Indiana corporation ("Emmis" or the "Company")
relating to the offer by Emmis to purchase up to 20,250,000 shares of its Class
A common stock, $0.01 par value per share (the "Class A common stock") at a
price not greater than $19.75 nor less than $17.25 per share, net to the seller
in cash, without interest, upon the terms and subject to the conditions set
forth in the Offer to Purchase, dated May 16, 2005 (as amended, the "Offer to
Purchase") and in the related Letter of Transmittal (the "Letter of
Transmittal"). This Tender Offer Statement on Schedule TO is intended to satisfy
the reporting requirements of Rule 13e4-(c)(1) under the Securities Exchange Act
of 1934, as amended.
ITEM 1. SUMMARY TERM SHEET.
ITEM 4. TERMS OF THE TRANSACTION.
ITEM 11. ADDITIONAL INFORMATION.
On June 13, 2005, Emmis announced that at a special meeting of Emmis'
shareholders held on June 13, 2005, the shareholders of Emmis approved
amendments to the terms of Emmis' outstanding convertible preferred stock that
are set forth in Emmis' second amended and restated articles of incorporation.
As a result, the condition to the Offer that Emmis obtain the approval
of its shareholders of the proposed amendments to the terms of its convertible
preferred stock has been satisfied. The Offer remains subject to certain other
conditions specified in the Offer to Purchase.
ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
As provided for in the Commitment and Engagement Letter, dated as of May 15,
2005, by and between Emmis and Banc of America Securities LLC (the "Commitment
Letter"), Emmis issued $300 million principal amount of its floating rate senior
notes due 2012 on June 13, 2005 as bridge financing. The terms of the floating
rate senior notes are described in the Commitment Letter, which was attached as
Exhibit (b)(2) to the Schedule TO. In addition, also on June 13, 2005, Emmis
received $100.0 million of funds from the borrowings under the revolving portion
of the amended credit facility of Emmis' principal operating subsidiary, Emmis
Operating Company.
ITEM 12. EXHIBITS.
Item 12 of the Schedule TO is hereby amended and supplemented by adding the
following exhibit:
(a)(1)(P)** Press Release, dated June 13, 2005.
** Filed herewith.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and correct.
EMMIS COMMUNICATIONS CORPORATION
By: /s/ J. Scott Enright
--------------------------------
Name: J. Scott Enright
Title: Vice President, Associate
General Counsel and Secretary
Dated: June 13, 2005
EXHIBIT INDEX
(a)(1)(A)* Offer to Purchase dated May 16, 2005.
(a)(1)(B)* Letter of Transmittal.
(a)(1)(C)* Notice of Guaranteed Delivery.
(a)(1)(D)* Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees dated May 16, 2005.
(a)(1)(E)* Letter to Clients for use by Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees dated May 16, 2005.
(a)(1)(F)* Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9.
(a)(1)(G) Press Release, dated May 10, 2005, incorporated by reference to
the Company's Statement on Schedule TO filed on May 10, 2005.
(a)(1)(H)* Press Release, dated May 16, 2005.
(a)(1)(I)* Summary Advertisement.
(a)(1)(J)* Letter to Shareholders from the Chief Executive Officer of the
Company, dated May 16, 2005.
(a)(1)(K)* Letter to Participants in the Emmis Operating Company 401(k)
Plan.
(a)(1)(L)* Letter to Participants in the Emmis Operating Company Profit
Sharing Plan.
(a)(1)(M)* Letter to Participants in the Emmis Communications Corporation
Employee Stock Purchase Plan.
(a)(1)(N)* Press Release, dated June 1, 2005.
(a)(1)(O)* Press Release, dated June 6, 2005.
(a)(1)(P)** Press Release, dated June 13, 2005.
(a)(2) Not Applicable.
(a)(3) Not Applicable.
(a)(4) Not Applicable.
(a)(5)(A)* Notice of Hearing.
(b)(1)* Amendment Commitment Letter, dated as of May 15, 2005, among
Banc of America Securities LLC, Bank of America, N.A. and Emmis
Operating Company.
(b)(2)* Commitment and Engagement Letter, dated as of May 15, 2005,
between Banc of America Securities LLC and the Company.
(b)(3) Revolving Credit and Term Loan Agreement dated May 10, 2004,
incorporated by reference from Exhibit 10.1 to Emmis' Annual
Report on Form 10-K for the fiscal year ended February 29, 2004.
(b)(4)* First Amendment to the Revolving Credit and Term Loan Agreement
dated as of June 6, 2005.
(d)(1) Employment Agreement, dated as of March 1, 2004, by and between
Emmis Operating Company and Jeffrey H. Smulyan, incorporated by
reference from Exhibit 10.1 to the Company's Quarterly Report on
Form 10-Q for the quarter ended August 31, 2004.
(d)(2) Employment Agreement, dated as of March 1, 2002, by and between
Emmis Operating Company and Richard Cummings, incorporated by
reference from Exhibit 10.21 to the Company's Annual Report on
Form 10-K for the fiscal year ended February 28, 2003.
(d)(3) Amendment to Employment Agreement, dated February 7, 2005, by
and between Emmis Operating Company and Richard Cummings,
incorporated by reference from Exhibit 10.2 to the Company's
Form 8-K filed February 11, 2005.
(d)(4) Employment Agreement, dated as of March 1, 2002, by and between
Emmis Operating Company and Walter Z. Berger, incorporated by
reference from Exhibit 10.24 to the Company's Annual Report on
Form 10-K for the fiscal year ended February 28, 2003.
(d)(5) Amendment to Employment Agreement, dated February 7, 2005, by
and between Emmis Operating Company and Walter Z. Berger,
incorporated by reference from Exhibit 10.4 to the Company's
Form 8-K filed February 11, 2005.
(d)(6) Employment Agreement, dated as of March 1, 2003, by and between
Emmis Operating Company and Randall D. Bongarten, incorporated
by reference from Exhibit 10.4 to the Company's Quarterly Report
on Form 10-Q for the quarter ended May 31, 2003.
(d)(7) Amendment to Employment Agreement, dated May 13, 2005, by and
among the Company, Emmis Operating Company and Randall D.
Bongarten, incorporated by reference from Exhibit 10.16 to the
Company's Annual Report on Form 10-K for the fiscal year ended
February 28, 2005.
(d)(8) Employment Agreement, effective as of March 1, 2003, by and
between Emmis Operating Company and Gary L. Kaseff, incorporated
by reference from Exhibit 10.1 to the Company's Quarterly Report
on Form 10-Q for the quarter ended August 31, 2003.
(d)(9) Amendment to Employment Agreement, dated February 7, 2005, by
and between Emmis Operating Company and Gary L. Kaseff,
incorporated by reference from Exhibit 10.3 to the Company's
Form 8-K filed February 11, 2005.
(d)(10) Change in Control Severance Agreement, dated as of March 1,
2004, by and between the Company and
Jeffrey H. Smulyan, incorporated by reference from Exhibit 10.1
to the Company's Quarterly Report on Form 10-Q for the quarter
ended August 31, 2004.
(d)(11) Change in Control Severance Agreement, dated as of August 11,
2003, by and between the Company and Walter Z. Berger,
incorporated by reference from Exhibit 10.2 to the Company's
Quarterly Report on Form 10-Q for the quarter ended August 31,
2003.
(d)(12) Change in Control Severance Agreement, dated as of August 11,
2003, by and between the Company and Gary L. Kaseff,
incorporated by reference from Exhibit 10.3 to the Company's
Quarterly Report on Form 10-Q for the quarter ended August 31,
2003.
(d)(13) Change in Control Severance Agreement, dated as of August 11,
2003, by and between the Company and Randall D. Bongarten,
incorporated by reference from Exhibit 10.4 to the Company's
Quarterly Report on Form 10-Q for the quarter ended August 31,
2003, as amended by Amendment to Employment Agreement, dated May
13, 2005, by and among the Company, Emmis Operating Company and
Randall D. Bongarten, incorporated by reference from Exhibit
10.16 to the Company's Annual Report on Form 10-K for the fiscal
year ended February 28, 2005.
(d)(14) Change in Control Severance Agreement, dated as of August 11,
2003, by and between the Company and Richard F. Cummings,
incorporated by reference from Exhibit 10.5 to the Company's
Quarterly Report on Form 10-Q for the quarter ended August 31,
2003.
(d)(15) Emmis Operating Company Profit Sharing Plan, as amended,
effective March 1, 1997 incorporated by reference from Exhibit
10.1 to the Company's Annual Report on Form 10-K for the fiscal
year ended February 28, 2003.
(d)(16) Emmis Communications Corporation 1994 Equity Incentive Plan,
incorporated by reference from Exhibit 10.5 to the Company's
Registration Statement on Form S-1, File No. 33-73218.
(d)(17) The Emmis Communications Corporation 1995 Non-Employee Director
Stock Option Plan, incorporated by reference from Exhibit 10.15
to the Company's Annual Report on Form 10-K for the fiscal year
ended February 28, 1995.
(d)(18) The Emmis Communications Corporation 1995 Equity Incentive Plan,
incorporated by reference from Exhibit 10.16 to the Company's
Annual Report on Form 10-K for the fiscal year ended February
28, 2005.
(d)(19) Emmis Communications Corporation 1997 Equity Incentive Plan,
incorporated by reference from Exhibit 10.5 to the Company's
Annual Report on Form 10-K for the fiscal year ended February
28, 1998.
(d)(20) Emmis Communications Corporation 1999 Equity Incentive Plan,
incorporated by reference from the Company's proxy statement
dated May 26, 1999.
(d)(21) Emmis Communications Corporation 2001 Equity Incentive Plan,
incorporated by reference from the Company's proxy statement
dated May 25, 2001.
(d)(22) Emmis Communications Corporation 2002 Equity Compensation Plan,
incorporated by reference from the Company's proxy statement
dated May 30, 2002.
(d)(23) Emmis Communications Corporation 2004 Equity Compensation Plan,
incorporated by reference from the Company's proxy statement
dated May 28, 2004.
(d)(24) 2005 Stock Compensation Program Restricted Stock Agreement Form
(tax vesting option), incorporated by reference to the Company's
Form 10-Q for the quarter ended November 30, 2004.
(d)(25) 2005 Stock Compensation Program Restricted Stock Agreement Form
(non-tax vesting option), incorporated by reference to the
Company's Form 10-Q for the quarter ended November 30, 2004.
(d)(26) 2005 Stock Compensation Program, incorporated by reference to
the Company's Form 8-K filed December 21, 2004.
(d)(27) 2005 Outside Director Stock Compensation Program, incorporated
by reference to the Company's Form 8-K filed December 21, 2004.
(d)(28) Form of Stock Option Grant Agreement, incorporated by reference
to the Company's Form 8-K filed March 7, 2005.
(d)(29) Form of Restricted Stock Option Grant Agreement, incorporated by
reference to the Company's Form 8-K filed March 7, 2005.
(d)(30) Director Compensation Policy effective May 13, 2005,
incorporated by reference to the Company's Annual Report on Form
10-K for the fiscal year ended February 28, 2005.
(g) Not Applicable.
(h) Not Applicable.
* Previously filed.
** Filed herewith.