SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Emmis Communications Corporation
(Exact name of registrant as specified in its charter)
Indiana 35-1542018
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification. No.)
40 Monument Circle, Suite 70 46204
Indianapolis, Indiana 46204 (Zip Code)
(Address of principal
executive offices)
Emmis Communications Corporation 2002 Equity Compensation Plan
(Full title of the plan)
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
Title of Amount to Proposed Proposed Amount of
Securities be maximum maximum registration
to be registered offering aggregate fee
registered (1) price offering
per price
share
Class A Common Stock,
par value $.01 per share 2,000,000 $19.13 $38,260.00
Class A Common Stock,
par value $.01 per
share (3) 1,000,000 $19.13 $19,130.00
Total 3,000,000 $57,390.00 $5,280.00
(1) Any additional shares to be issued as a result of stock dividends,
stock splits or similar transactions prior to the termination of this
registration statement shall be covered by this registration statement
as provided in Rule 416.
(2) Determined pursuant to Rule 457(c) and (h) using average of reported
high and low prices on July 11, 2002, as reported by NASDAQ.
(3) Shares which may be issued upon conversion of Class B Common Stock
issued under the Plan. Class B stock 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.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, all of which are on file with the Securities
and Exchange Commission ( the "Commission"), are hereby incorporated by
reference in this registration statement:
(a) The Annual Report on Form 10-K for Emmis Communications
Corporation (file no. 0-23264) for the fiscal year ended February
28, 2002;
(b) The Current Reports on Form 8-K for Emmis Communications
Corporation (file no. 0-23264) filed on March 29, 2002; May 14,
2002; June 19, 2002 and June 20, 2002 (8-K/A); and
(c) The description of the Class A Common Stock of Emmis
Communications Corporation contained in the Registration
Statement on Form 8-A, File No. 0-23264, as amended.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates
that all securities offered hereunder have been sold or which deregisters
all securities then remaining unsold shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing such
reports and documents.
For purposes of this Registration Statement, any statement contained in
a report, document or appendix incorporated or deemed to be incorporated by
reference in this Registration Statement shall be deemed 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, Indianapolis, Indiana 46204, (317) 266-0100.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Emmis Communications Corporation (the "Company") is an Indiana
corporation. Chapter 37 of The Indiana Business Corporation Law (the
"IBCL") requires a corporation, unless its articles of incorporation
provide otherwise, to indemnify a director or an officer of the corporation
who is wholly successful, on the merits or otherwise, in the defense of any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative and whether formal or informal,
against reasonable expenses, including counsel fees, incurred in connection
with the proceeding. The Company's Second Amended and Restated Articles of
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 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.
Because we have not been able to obtain, after reasonable efforts, the
written consent of Arthur Andersen LLP to the incorporation by reference
into this registration statement of their reports included in our Annual
Report on Form 10-K for the year ended February 28, 2002, we have dispensed
with the filing of their consent in reliance on Rule 437a under the
Securities Act. Because Arthur Andersen LLP has not consented to the
inclusion of their report in this registration statement, you may not be
able to recover against Arthur Andersen LLP under Section 11 of the
Securities Act for any untrue statement of a material fact contained in the
financial statements audited by Arthur Andersen LLP or any omission to
state a material fact required to be stated in those financial statements.
5 Opinion and consent of Baker & Daniels regarding the legality of
the securities being registered
23.1 Consent of Arthur Andersen LLP (omitted pursuant to Rule 437a).
23.2 Consent of Baker & Daniels (included in Exhibit 5).
24 Power of Attorney.
ITEM 9. UNDERTAKINGS.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
PROVIDED, HOWEVER, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities 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, 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 used this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Indianapolis, Indiana, on June 25, 2002.
EMMIS COMMUNICATIONS CORPORATION
/S/ J. SCOTT ENRIGHT
J. Scott Enright, Vice President,
Associate General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on July 11, 2002, by the following
persons in the capacities indicated.
SIGNATURE TITLE
/S/ JEFFREY H. SMULYAN* Director, Chairman of the Board,
Jeffrey H. Smulyan President and Chief Executive Officer
(Principal Executive Officer)
/S/ GREG NATHANSON* Director
Greg Nathanson
/S/ GARY L. KASEFF* Director and Executive Vice President
Gary L. Kaseff and General Counsel
/S/ WALTER Z. BERGER* Director and Executive Vice President,
Walter Z. Berger Chief Financial Officer and Treasurer
(Principal Financial Officer and
Principal Accounting Officer)
/S/ SUSAN B. BAYH* Director
Susan B. Bayh
/S/ RICHARD A. LEVENTHAL* Director
Richard A. Leventhal
/S/ FRANK V. SICA* Director
Frank V. Sica
/S/ LAWRENCE B. SORREL* Director
Lawrence B. Sorrel
*By: /S/ J. SCOTT ENRIGHT Director
J. Scott Enright
Attorney-in-Fact