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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
EMMIS COMMUNICATIONS CORPORATION
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(Name of Issuer)
CLASS A COMMON STOCK, PAR VALUE $0.01 PER SHARE
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(Title of Class of Securities)
291525 10 3
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(CUSIP Number)
Jeffrey H. Smulyan
c/o Emmis Communications Corporation
One Emmis Plaza
40 Monument Circle, Suite 700
Indianapolis, IN 46204
(317) 266-0100
with a copy to:
James M. Dubin, Esq.
c/o 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)
May 7, 2006
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), Rule 13d-1(f), Rule 13d-1(g),
check the following box [_].
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liability of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
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CUSIP NO. 291525 10 3 Page 2 of 10
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1 NAME OF REPORTING PERSON: Jeffrey H. Smulyan
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) [_]
(b) [_]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS: OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e): [_]
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6 CITIZENSHIP OR PLACE OR ORGANIZATION: United States of America
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NUMBER OF 7 SOLE VOTING POWER: 6,546,789(1)
SHARES --------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 30,625(2)
OWNED BY --------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 6,546,789(1)
REPORTING --------------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER: 30,625(2)
WITH
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON: 6,577,414 (1),(2)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES: [X]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
Approximately 17.0%(3)
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14 TYPE OF REPORTING PERSON: IN
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(1) Consists of (i) 3,951 shares of Class A Common Stock held in the 401(k)
Plan, (ii) 101,837 shares of Class A Common Stock held by Mr. Smulyan
individually, (iii) 4,929,881 shares of Class B Common Stock held by Mr.
Smulyan individually, (iv) 11,120 shares of Class A Common Stock held by
Mr. Smulyan as trustee for his children, and (v) options to purchase
1,500,000 shares of Class B Common Stock that are exercisable currently
or within 60 days of May 7, 2006. Each share of Class B Common Stock is
convertible at any time into one share of Class A Common Stock.
(2) Consists of 30,625 shares of Class A Common Stock held by The Smulyan
Family Foundation, as to which Mr. Smulyan shares voting and dispositive
control.
CUSIP NO. 291525 10 3 Page 3 of 10
(3) The denominator is based on (i) 32,255,572 shares of Class A Common Stock
outstanding as of May 5, 2006, as obtained from Emmis Communications
Corporation, and (ii) 6,429,881 shares of Class A Common Stock issuable
upon conversion of the shares of Class B Common Stock beneficially owned
by Mr. Smulyan (including upon the exercise of options to purchase shares
of Class B Common Stock held by Mr. Smulyan that are exercisable
currently or within 60 days of May 7, 2006). Each share of Class B Common
Stock is convertible at any time into one share of Class A Common Stock.
Holders of Class A Common Stock and Class B Common stock vote as a single
class in all matters submitted to a vote of the stockholders, with each
share of Class A Common Stock entitled to one vote per share and each
share of Class B Common Stock entitled to ten votes per share, except as
otherwise provided in the Issuer's articles of incorporation or as
otherwise provided by law. The shares deemed to be beneficially owned by
Mr. Smulyan represent approximately 66.7% of the combined voting power of
the outstanding shares of Class A Common Stock and Class B Common Stock,
voting together as a single class.
CUSIP NO. 291525 10 3 Page 4 of 10
ITEM 1. SECURITY AND ISSUER.
This Statement on Schedule 13D (this "Statement") relates to the
Class A Common Stock, par value $0.01 per share (the "Class A Common Stock"),
of Emmis Communications Corporation, an Indiana corporation (the "Issuer").
The address of the principal executive offices of the Issuer is One Emmis
Plaza, 40 Monument Circle, Suite 700, Indianapolis, Indiana 46204.
ITEM 2. IDENTITY AND BACKGROUND.
This Statement is being filed by Jeffrey H. Smulyan (the "Reporting
Person").
This Statement amends and restates in its entirety the Statement on
Schedule 13D of the Reporting Person (filed with the Securities and Exchange
Commission (the "SEC") on October 3, 1995) with respect to the Reporting
Person's beneficial ownership of shares of Class A Common Stock.
(b) The business address of the Reporting Person is c/o Emmis
Communications Corporation, One Emmis Plaza, 40 Monument Circle, Suite 700,
Indianapolis, Indiana 46204.
(c) The present principal occupation of the Reporting Person is
Chairman of the Board, Chief Executive Officer and President of the Issuer.
(d) During the past five years, the Reporting Person has not
been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors).
(e) During the past five years, the Reporting Person has not
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding, was or is subject
to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
(f) The Reporting Person is a citizen of the United States of
America.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The shares of Class A Common Stock that the Reporting Person
beneficially owns were acquired through open market purchases using personal
funds, through his service as an officer or director of the Issuer or through
purchases in private transactions.
With respect to the proposed transaction described in Item 4 of this
Statement (which Item 4 is incorporated herein by reference), the Reporting
Person estimates that the amount of funds that would be required to purchase
all of the shares of outstanding Class A Common Stock at the Offer Price (as
defined in Item 4) and to refinance the outstanding debt and preferred stock
CUSIP NO. 291525 10 3 Page 5 of 10
of the Issuer and its subsidiaries is approximately $1.2 billion. The funds
required to consummate the proposed transaction would be provided by one or
more banks or other financial institutions through various debt financing
arrangements as further described in Item 4 and the Proposal Letter and the
Debt Financing Letters (each as defined in Item 4).
The information set forth in response to this Item 3 is qualified in
its entirety by reference to the Proposal Letter and the Debt Financing
Letters, which are incorporated herein by reference.
ITEM 4. PURPOSE OF TRANSACTION.
As set forth in a letter dated May 7, 2006 (the "Proposal Letter"),
ECC Acquisition, Inc., an Indiana corporation wholly-owned by the Reporting
Person ("Purchaser"), has submitted to the Issuer's Board of Directors (the
"Board of Directors") a proposal to acquire all of the outstanding Class A
Common Stock (the "Proposal") not beneficially owned by the Reporting Person,
together with the Debt Financing Letters (as defined below). On May 8, 2006, a
related press release was issued by the Issuer. Copies of the Proposal Letter
and the press release are being filed herewith as Exhibits 1 and 2,
respectively. The Board of Directors has formed a special committee of
independent directors (the "Special Committee") to consider the terms of the
Proposal and to recommend to the Board of Directors whether to approve the
Proposal.
In the Proposal, Purchaser contemplates that Purchaser would
structure the transaction as a merger, with the Issuer as the surviving
corporation. In the proposed merger, the outstanding shares of Class A Common
Stock other than those beneficially owned by the Reporting Person would be
converted into the right to receive a cash payment equal to $15.25 per share
(the "Offer Price"). Shares of Common Stock beneficially owned by the
Reporting Person would be converted into a new class of common stock of the
post-merger Issuer. In the Proposal, Purchaser stated that it intends to
invite certain other members of Issuer's management to join as purchaser in
the proposed merger.
In conjunction with the proposed merger, Purchaser expects to
refinance the outstanding debt and preferred stock of the Issuer and its
subsidiaries. To finance the Proposal and related refinancing, Purchaser has
received a letter from Deutsche Bank Securities Inc. and a letter from Banc of
America Securities LLC, each stating that Deutsche Bank Securities Inc. and
Banc of America Securities LLC, as applicable, is "highly confident" that it
can obtain the required debt financing (the "Debt Financing Letters"). Copies
of the Debt Financing Letters are being filed herewith as Exhibits 3 and 4,
respectively. Purchaser expects to receive executed commitment letters from
its financing sources at or prior to the execution of definitive agreements
related to the proposed merger.
CUSIP NO. 291525 10 3 Page 6 of 10
The Proposal is subject to the recommendation of the Special
Committee and the approval of the Board of Directors, and the Proposal does
not create any agreement, arrangement or understanding between Purchaser, the
Reporting Person or other parties with respect to the Issuer or the Common
Stock for purposes of any law, rule, regulation, agreement or otherwise, until
such time as definitive documentation and any agreement, arrangement or
understanding has been recommended by the Special Committee and approved by
the Board of Directors and thereafter executed and delivered by the Issuer and
all other appropriate parties. The proposed merger would be subject to Federal
Communications Commission approvals and may be subject to compliance with the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. The Proposal
would also require approval by the Issuer's stockholders, with holders of
Class A Common Stock and Class B Common Stock voting together as a single
class. Pursuant to the terms of the Second Amended and Restated Articles of
the Issuer (the "Charter"), the proposed merger would be a "going private"
transaction (as such term is defined in the Charter) involving the Issuer and
a purchaser affiliated with the Reporting Person. Therefore, a holder of Class
B Common Stock is entitled to vote on the transaction on an "as converted" to
Class A Common Stock basis, with one vote per share for each class of Common
Stock. The Reporting Person beneficially owns approximately 17.0% of the
combined voting power of the outstanding shares of Class A Common Stock and
Class B Common Stock entitled to vote on the Proposal (calculated to include
shares issuable under all options exercisable currently or within 60 days),
voting together as a single class, and intends to vote for the Proposal.
With respect to the Proposal or any matters related thereto, the
Reporting Person's intent is to be a purchaser of shares of Common Stock of
the Issuer not already owned by him and not seller of shares of Common Stock
of the Issuer owned by him.
In the Proposal, Purchaser advised the Board of Directors that, in
his capacity as a stockholder of the Issuer, the Reporting Person will not
agree to any other transaction involving the Issuer or the Reporting Person's
shares of the Issuer. Pursuant to the terms of the Charter, in any such other
transaction (other than the "going private" transaction described above) that
requires the approval of the Issuer's stockholders, the Class A Common Stock
and Class B Common Stock will vote together as a single class, with each share
of Class A Common Stock entitled to one vote per share and each share of Class
B Common Stock entitled to ten votes per share. The Reporting Person would in
such circumstances own approximately 66.7% of the combined voting power of the
outstanding shares of Class A Common Stock and Class B Common Stock entitled
to vote on any such other transaction (calculated to include shares issuable
under all options exercisable currently or within 60 days).
The foregoing is a summary of Purchaser's current proposal and should
not be construed as an offer to purchase shares of Class A Common Stock. A
proxy statement will be distributed to stockholders if and when definitive
documentation is entered into by the Issuer and all other appropriate parties.
Stockholders should read the Issuer's proxy statement and other relevant
documents regarding the Proposal filed with the SEC when they become available
because they will contain important information relevant to the decision to
approve the proposed merger. Stockholders will be able to receive these
documents (when they become available), as well as other documents filed by
the Reporting Person or his affiliates with respect to the Proposal and the
proposed merger, free of charge at the SEC's web site, www.sec.gov.
Other than as set forth in the Proposal Letter and the Debt Financing
Letters, the Reporting Person has no plans or proposals that relate to or
would result in any of the events set forth in Items 4(a) through (j) of
CUSIP NO. 291525 10 3 Page 7 of 10
Schedule 13D. However, if the Proposal is not consummated for any reason, the
Reporting Person intends to review continuously the Issuer's business affairs,
capital needs and general industry and economic conditions, and, based on such
review, the Reporting Person may, from time to time, determine to increase his
ownership of Common Stock, approve an extraordinary corporate transaction with
regard to the Issuer or engage in any of the events set forth in Items 4(a)
through (j) of Schedule 13D, except that the Reporting Person currently has no
intention of selling any shares of Common Stock.
The information set forth in response to this Item 4 is qualified in
its entirety by reference to the Proposal Letter and the Debt Financing
Letters, which are incorporated herein by reference.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a)-(b) As of May 8, 2006, the Reporting Person may be deemed to
beneficially own 147,533 shares of Class A Common Stock and 6,429,881 shares
of Class B Common Stock, which are convertible into shares of Class A Common
Stock at any time on a share-for-share basis. The shares of Common Stock that
the Reporting Person may be deemed to beneficially own consist of:
(i) 3,951 shares of Class A Common Stock held in the
401(k) Plan;
(ii) 101,837 shares of Class A Common Stock held by the
Reporting Person individually;
(iii) 11,120 shares of Class A Common Stock held by the
Reporting Person as trustee for his children over
which the Reporting Person exercises voting
and dispositive control;
(iv) 30,625 shares of Class A Common Stock held by The
Smulyan Family Foundation, as to which the
Reporting Person shares voting and dispositive
control.
(v) 4,929,881 shares of Class B Common Stock held by
the Reporting Person individually; and
(vi) options to purchase 1,500,000 shares of Class B
Common Stock that are exercisable currently or
within 60 days.
The following is the information required by Item 2 of this Schedule
with respect to each person with whom the Reporting Person shares the power to
vote or to direct the vote or to dispose or direct the disposition:
CUSIP NO. 291525 10 3 Page 8 of 10
(a) RONALD E. ELBERGER
(b) The business address of Mr. Elberger is 135 North
Pennsylvania Street, Suite 2700, Indianapolis, IN 46204.
(c) The present principal occupation of Mr. Elberger is
Attorney/Partner with Bose, McKinney & Evans, LLP.
(d) During the past five years, Mr. Elberger has not
been convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors).
(e) During the past five years, Mr. Elberger has not
been a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction and as a result of such proceeding,
was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with
respect to such laws.
(f) Mr. Elberger is a citizen of the United States of
America.
(a) BRUCE JACOBSON
(b) The business address of Mr. Jacobson is 800 East
96th Street, Suite 500, Indianapolis, IN 46240.
(c) The present principal occupation of Mr. Jacobson is
Senior Vice President of KSM Business Services; he is a retired
partner of Katz, Sapper & Miller LLP.
(d) During the past five years, Mr. Jacobson has not
been convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors).
(e) During the past five years, Mr. Jacobson has not
been a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction and as a result of such proceeding,
was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with
respect to such laws.
(f) Mr. Jacobson is a citizen of the United States of
America.
(a) GARY KASEFF
(b) The business address of Mr. Kaseff is 3500 W. Olive
Avenue, Suite 1450, Burbank, CA 91505.
(c) The present principal occupation of Mr. Kaseff is
Executive Vice President and General Counsel with Emmis
Communications Corporation and Subsidiaries.
(d) During the past five years, Mr. Kaseff has not been
convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors).
(e) During the past five years, Mr. Kaseff has not been
a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding, was or is
subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with
respect to such laws.
(f) Mr. Kaseff is a citizen of the United States of
America.
CUSIP NO. 291525 10 3 Page 9 of 10
The shares that the Reporting Person may be deemed to beneficially
own represent approximately 17.0% of the outstanding shares of Class A Common
Stock and 66.7% of the combined voting power of the outstanding shares of
Class A Common Stock and Class B Common Stock, voting together as a single
class. Holders of Class A Common Stock and Class B Common stock vote as a
single class in all matters submitted to a vote of the stockholders, with each
share of Class A Common Stock entitled to one vote per share and each share of
Class B Common Stock entitled to ten votes per share, except as otherwise
provided in the Issuer's articles of incorporation or as otherwise provided by
law.
The percentage of the Class A Common Stock that the Reporting Person
may be deemed to beneficially own as set forth in this Item 5 is calculated
based on: (i) 32,255,572 shares of Class A Common Stock outstanding as of May
5, 2006, as obtained from Emmis Communications Corporation; (ii) the number of
shares of Class A Common Stock issuable upon conversion of the shares of Class
B Common Stock, if any, beneficially owned by such Reporting Person (including
upon the exercise of options to purchase shares of Class B Common Stock held
by such Reporting Person that are exercisable currently or within 60 days, if
any); and (iii) the number of shares of Class A Common Stock issuable upon the
exercise of options to purchase shares of Class A Common Stock held by such
Reporting Person that are exercisable currently or within 60 days, if any.
The percentage of the combined voting power of the outstanding shares
of Class A Common Stock and Class B Common Stock, voting together as a single
class, that the Reporting Person may be deemed to beneficially own as set
forth in this Item 5 is calculated based on: (i) the number of outstanding
shares of Class A Common Stock set forth in clause (i) of the immediately
preceding paragraph; (ii) 4,929,881 shares of Class B Common Stock outstanding
as of May 5, 2006, as obtained from Emmis Communications Corporation; (iii)
the number of shares of Class B Common Stock issuable upon the exercise of
options to purchase shares of Class B Common Stock held by the Reporting
Person that are exercisable currently or within 60 days, if any; and (iv) the
number of shares of Class A Common Stock issuable upon the exercise of options
to purchase shares of Class A Common Stock held by the Reporting Person that
are exercisable currently or within 60 days, if any.
Except as otherwise provided in this Item 5, the Reporting Person has
the sole power to vote or to direct the vote, and the sole power to dispose or
to direct the disposition of, the shares of Class A Common Stock that the
Reporting Person may be deemed to beneficially own.
(c) The Reporting Person has not effected any transactions in
the Class A Common Stock during the past 60 days. The Reporting Person has
effected the following transaction in the Class B Common Stock during the past
60 days: On April 18, 2006 the Reporting Person acquired 38,700 shares of
Class B Common Stock.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIP WITH RESPECT
TO SECURITIES OF THE ISSUER.
Items 3 and 4 of this Statement are incorporated herein by reference.
CUSIP NO. 291525 10 3 Page 10 of 10
The information set forth in response to this Item 6 is qualified in
its entirety by reference to the Proposal Letter and the Debt Financing
Letters, which are incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
EXHIBIT NO. DESCRIPTION FILED WITH
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1 Proposal Letter, dated May 7, 2006. This Statement
2 Press Release, dated May 8, 2006. This Statement
3 Highly Confident Letter, dated May 6, 2006,
from Deutsche Bank Securities Inc. This Statement
4 Highly Confident Letter, dated May 6, 2006, This Statement
from Banc of America Securities LLC.
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
Dated: May 10, 2006
/s/ Jeffrey H. Smulyan
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Jeffrey H. Smulyan