|• FORM 10-K/A • CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER • CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER|
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
for the Fiscal Year Ended February 29, 2012
for the Transition Period from to .
EMMIS COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
(State of incorporation or organization)
(Commission file number)
ONE EMMIS PLAZA
40 MONUMENT CIRCLE
INDIANAPOLIS, INDIANA 46204
(Address of principal executive offices)
(Registrants Telephone Number, Including Area Code)
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT: Class A common stock, $.01 par value of Emmis Communications Corporation; 6.25% Series A Cumulative Convertible Preferred Stock, $.01 par value of Emmis Communications Corporation.
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No x
Indicate by check mark whether the registrant (1) has filed all documents and reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrants knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non accelerated filer, or a smaller reporting company. See definitions of large accelerated filer, and accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ¨ No x
The aggregate market value of the voting stock held by non-affiliates of the registrant, as of August 31, 2011, the last business day of the Registrants most recently completed second fiscal quarter, was approximately $24,027,000.
The number of shares outstanding of each of Emmis Communications Corporations classes of common stock, as of June 15, 2012, was:
DOCUMENTS INCORPORATED BY REFERENCE
EMMIS COMMUNICATIONS CORPORATION AND SUBSIDIARIES
We are filing this Amendment No. 1 to our annual report on Form 10-K for the year ended February 29, 2012 (the Original Filing), originally filed with the Securities and Exchange Commission on May 10, 2012, in order to provide disclosure under Part III of the Original Filing that was omitted pursuant to Instruction G(3) of Form 10-K.
Except as described above, no other changes have been made to the Original Filing. The Original Filing continues to speak as of the date of the Original Filing, and we have not updated the disclosures contained therein to reflect any events which occurred at a date subsequent to the filing of the Original Filing.
The following persons were serving as directors as of February 29, 2012. In addition, Michelle Bergman was elected as a director on April 2, 2012 by the holders of our Series A Preferred Stock.
Name, Age, Principal Occupation(s) and
Directors whose terms expire in 2014:
Richard A. Leventhal, Age 65
Mr. Leventhal is President and majority owner of LMCS, LLC, an investment, management and consulting company. Previously, Mr. Leventhal co-owned and operated Top Value Fabrics, Inc., a wholesale fabric and textile company in Carmel, Indiana, for 27 years.
Peter A. Lund,(1)(2) Age 71
Mr. Lund is a private investor and media consultant who formerly served as Chairman and Chief Executive Officer of Eos International, Inc., a holding company. Mr. Lund has over 40 years of broadcasting experience and most recently served as President and Chief Executive Officer of CBS Inc., and President and Chief Executive Officer of CBS Television and Cable. He is a director of The DIRECTV Group, Inc., a communications company; Crown Media Holdings, Inc., an owner and operator of cable television channels; and Eos International, Inc., a library automation and knowledge management company.
Lawrence B. Sorrel, Age 53
Mr. Sorrel is Managing Partner of Tailwind Capital where he has worked since 2002. From 1998 to 2002, Mr. Sorrel was a general partner of Welsh, Carson, Anderson & Stowe. Prior to May 1998, he was a Managing Director of Morgan Stanley and the firms private equity affiliate, Morgan Stanley Capital Partners, where he had been employed since 1986.
Directors whose terms expire in 2013:
Jeffrey H. Smulyan, Age 65
Mr. Smulyan founded Emmis in 1979 and is our Chairman, Chief Executive Officer and President. Mr. Smulyan began working in radio in 1973, and has owned one or more radio stations since then. Formerly, he was also the owner and chief executive officer of the Seattle Mariners Major League Baseball team. He is former Chairman of the Radio Advertising Bureau and serves as a Trustee of his alma mater, the University of Southern California. He was a director of The Finish Line, a sports apparel manufacturer, from 1994 to 2008. Mr. Smulyan is also a member and manager of HSLS, LLC.
Greg A. Nathanson, Age 65
Mr. Nathanson served as our Television Division President before resigning in October 2000. He is currently a media consultant. Mr. Nathanson has over 30 years of television broadcasting experience, having served as President of Programming and Development for Twentieth Television from 1996 to 1998; as General Manager of KTLA-TV in Los Angeles, California from 1992 to 1996; and as General Manager of the Fox television station KTTV from 1988 to 1992. In addition, he was President of all the Fox Television stations from 1990 to 1992.
Directors elected by holders of Common Stock whose terms expire in 2012:
Susan B. Bayh,(1) Age 52
Mrs. Bayh was the Commissioner of the International Joint Commission of the United States and Canada until 2001. She served as a Distinguished Visiting Professor at the College of Business Administration at Butler University from 1994 through 2003. Previously, she was an attorney with Eli Lilly & Company. She is a director of Wellpoint, Inc., a Blue Cross/Blue Shield company; Curis, Inc., a therapeutic drug development company; and Dendreon Corporation, a biotechnology company. Previously, she served as a director for Esperion Therapeutics, Inc., Novavax, Inc., Cubist Pharmaceuticals, Inc., MDRNA (formerly Nastech) and Dyax Corp., each of which is a pharmaceutical company.
Gary L. Kaseff, Age 64
Mr. Kaseff served as our Executive Vice President and General Counsel until his resignation in March 2009. He remains employed by Emmis. Before becoming general counsel, Mr. Kaseff practiced law in Southern California. Previously, he was President of the Seattle Mariners Major League Baseball team and partner with the law firm of Epport & Kaseff.
Patrick M. Walsh, Age 45
Mr. Walsh became Executive Vice President and Chief Financial Officer of Emmis in September 2006 and added the position of Chief Operating Officer in December 2008. Mr. Walsh came to Emmis from iBiquity Digital Corporation, the developer and licensor of HD Radio technology, where he served as Chief Financial Officer and Senior Vice President from 2002 to 2006. Prior to joining iBiquity, Mr. Walsh was a management consultant for McKinsey & Company, and served in various management positions at General Motors Acceptance Corporation and Deloitte LLP.
Directors elected by holders of Preferred Stock whose terms expire in 2012:
David Gale, Age 58
Mr. Gale is the President and Chief Executive Officer of Delta Dividend Group, Inc., a San Francisco-based investment management firm, a position he has held since 1992. Mr. Gale has also served as a director of F&C Preferred Income Fund (NYSE:PFD) since 1997, of F&C Preferred Income Opportunity Fund (NYSE:PFO) since 1997, of F&C Preferred Securities Fund (NYSE:FFC) since 2003 and of F&C Total Return Fund (NYSE:FLC) since 2004, and he served as a director of Metromedia International Return Group, Inc. from 2004 to 2008. Mr. Gale was nominated by Zazove Associates LLC, as general partner of Zazove Aggressive Growth Fund, L.P., which is an owner of Preferred Stock.
Michelle D. Bergman, Age 45
Ms. Bergman is the founder of Bergman Law LLC, a New York-based law firm specializing in serving private equity funds, hedge funds, portfolio companies of private equity funds and early stage/start-up companies. Previously, Ms. Bergman served as Of Counsel at Benesch, Friedlander, Coplan & Aronoff LLP, Chief Executive Officer and Principal of WilPro Products, LLC and Senior Vice President, General Counsel and Corporate Secretary of Duane Reade Inc. Ms. Bergman was nominated by Zazove Associates LLC, which is an owner of Preferred Stock.
Additional information required by this item with respect to directors of Emmis is incorporated by reference from the sections entitled Corporate Governance Certain Committees of the Board of Directors, Corporate Governance Code of Ethics and Section 16(a) Beneficial Ownership Reporting Compliance in the proxy statement filed on March 21, 2012 for the April 2, 2012 Special Meeting of Shareholders (the March 21, 2012 Proxy Statement). Information about executive officers of Emmis or its affiliates who are not directors or nominees to be directors is presented in Part I under the caption Executive Officers of the Registrant.
The information required by this item is incorporated by reference from the sections entitled Corporate Governance Compensation of Directors and Executive Compensation in the March 21, 2012 Proxy Statement.
As of June 8, 2012, there were 34,007,279 shares of our Class A Common Stock, 4,722,684 shares of our Class B Common Stock and 2,822,320 shares of our Preferred Stock issued and outstanding. The Class A Common Stock is entitled to an aggregate of 34,007,279 votes, the Class B Common Stock is entitled to an aggregate of 47,226,840 votes and the Preferred Stock is entitled to 2,822,320 votes, voting separately as a class. The following table shows, as of June 8, 2012, the number and percentage of our Common Stock and Preferred Stock held by each person known to us to own beneficially more than five percent of the issued and outstanding Common Stock or Preferred Stock, by the executive officers named in the beneficial ownership table below and our directors, and by our executive officers and directors as a group. Unless otherwise specified, the address of each person listed is: One Emmis Plaza, 40 Monument Circle, Suite 700, Indianapolis, IN 46204.
Equity Compensation Plan Information
The following table gives information about our common stock that may be issued upon the exercise of options, warrants and rights under our 2001 Equity Incentive Plan, 2002 Equity Incentive Plan, 2004 Equity Compensation Plan and 2010 Equity Compensation Plan as of February 29, 2012. Our shareholders have approved these plans.
The information required by this item is incorporated by reference from the sections entitled Corporate Governance Independent Directors and Corporate Governance Transactions with Related Persons in the March 21, 2012 Proxy Statement.
Fees Paid to Independent Registered Public Accountants
The following table sets forth the fees (including cost reimbursements) paid to Ernst & Young LLP for the fiscal years ended February 28, 2011 and February 29, 2012, for various categories of professional services they performed as our independent registered public accountants.
Engagement of the Independent Registered Public Accountants and Approval of Services
During the fiscal years ended February 28, 2011 and February 29, 2012, prior to engaging the independent registered public accountants to render the above services and pursuant to its charter, the Audit Committee approved the engagement for each of the services and determined that the provision of such services by the independent registered public accountants was compatible with the maintenance of Ernst & Youngs independence in the conduct of its auditing services. Under its current charter, it is the policy of the Audit Committee (or in certain instances, the chairman of the Audit Committee) to pre-approve the retention of the independent registered public accountants for any audit services and for any non-audit services, including tax services. No services were performed during the fiscal year ended February 29, 2012, under the de minimis exception in Rule 2-01(c) (7)(i)(C) of Regulation S-X.
The financial statements filed as a part of this report are set forth under Item 8.
Financial Statement Schedules
No financial statement schedules are required to be filed with this report.
The exhibits listed in the exhibit index of the Original Filing and the exhibits listed in the exhibit index of this Amendment are filed with, or incorporated by reference in, this report.
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this amendment to be signed on its behalf by the undersigned, thereunto duly authorized.