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EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is effective as of March 1, 1999,
by and between EMMIS COMMUNICATIONS CORPORATION, an Indiana corporation (the
"Employer"), and XXXXXX X. XXXXXX, a Kentucky resident (the "Executive").
RECITALS
WHEREAS, Employer and its subsidiaries are engaged in the ownership and
operation of various radio and television stations, magazines, and related
operations (together, the "Emmis Group");
WHEREAS, Employer desires to employ Executive as an executive, and
Executive desires to be so employed.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, do hereby agree as follows:
1. EMPLOYMENT. Upon the terms and subject to the conditions of this
Agreement, Employer hereby employs Executive and Executive hereby accepts
employment by the Employer.
2. TERM. The term of Executive's employment hereunder (the "Term")
shall commence on March 1, 1999 and continue until February 28, 2002, unless
terminated earlier in accordance with the provisions herein. As used herein,
the term "Contract Year" means the twelve (12) month period commencing on March
1, 1999 and on each anniversary thereof. Notwithstanding the foregoing, if
Executive commences employment with Employer prior to March 1, 1999, Executive
shall receive a pro-rated portion of the Base Salary (as hereinafter defined)
in payment for services rendered during such period.
3. EXECUTIVE'S POSITION, DUTIES, AND AUTHORITY.
3.1 POSITION. Employer shall employ Executive, and Executive
shall serve as an executive of Employer and of any
successor by merger, acquisition of substantially all of
the assets or stock of Employer or otherwise. Executive
shall serve as Executive Vice President and Chief Financial
Officer of Employer or in such other position or positions
to which the Board of Directors of Employer (the "Board")
shall, with Executive's consent in his sole discretion,
appoint Executive; provided, however, that in the case of
any Change in Control (as hereinafter defined) involving
Employer, the
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Board may change Executive's title or duties without
Executive's consent so long as Executive's duties are not
substantially diminished in importance. The term "Change in
Control" means the acquisition by any person or group
(other than Xxxxxxx X. Xxxxxxx or a group of which he is an
affiliate and an active participant) of beneficial
ownership by purchase, merger, or otherwise, of either more
than 50% of all classes of stock of Employer (such
percentage to be computed in accordance with Rule
13d-3(d)(1)(i) of the SEC under the Exchange Act) or
substantially all of the assets of the Employer or its
successors; "person" means such term as used in Rule 13d-5
of the SEC under the Exchange Act; "group" means such term
as defined in Section 13(d) of the Exchange Act;
"beneficial owner" means such term as defined in Rule 13d-3
of the SEC under the Exchange Act; and affiliate means such
term as defined in Rule 144of the SEC under the Securities
Act.
3.2 DUTIES AND AUTHORITY. Executive shall have executive
duties, functions, authority and responsibilities
commensurate with the office or offices he from time to
time holds with Employer.
3.3 EMMIS GROUP DIRECTORSHIPS AND OFFICES. If Executive is
elected as a director of Employer, Executive shall serve in
such position without additional remuneration other than
the indemnification provided for in Section 10 hereof.
Executive shall also serve without additional remuneration
as a director and/or officer of one or more of Employer's
subsidiaries if appointed to such position by Employer.
4. FULL-TIME SERVICES. Executive's services hereunder shall be
performed on a full-time basis in a diligent and competent fashion to the best
of his abilities. Executive shall not undertake any outside employment or
outside business activities without the consent of the Board; provided,
however, that subject to satisfaction of his obligations under the preceding
sentence, Executive shall be allowed to (i) manage his personal, financial and
legal affairs and (ii) serve on civic or charitable boards or committees.
5. LOCATION OF EMPLOYMENT. Unless Executive consents otherwise in
writing in his sole discretion, the headquarters for performance of his
services hereunder shall be the corporate headquarters of Employer in
Indianapolis, Indiana, and Executive shall not be required to relocate
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his office outside the metropolitan area of Indianapolis, Indiana, subject to
such reasonable travel as the performance of Executive's duties in the business
of the Emmis Group may require.
6. BASE COMPENSATION.
6.1 BASE SALARY. During each Contract Year hereunder, Employer
shall pay or cause to be paid to Executive a base salary per annum (the
"Base Salary") of Three Hundred Forty Thousand Dollars ($340,000.00),
payable in bi-weekly installments.
6.2 CAR ALLOWANCE. During the Term Executive shall receive a
car allowance paid monthly in the amount of One Thousand Dollars
($1,000.00).
7. ADDITIONAL COMPENSATION.
7.1 CASH INCENTIVE COMPENSATION. Executive shall be entitled
to receive a cash bonus up to a maximum of One Hundred Thousand Dollars
($100,000.00) each Contract Year (the "Bonus"). The exact amount of the
Bonus, if any, shall be determined by the Compensation Committee of the
Board of Directors (the "Compensation Committee") based on the
Compensation Committee's evaluation of the Executive's performance
during the Contract Year (with input from such sources as it deems
appropriate).
7.2 STOCK OPTIONS. On the first day of each Contract Year
during the Term, Executive shall be granted an option (the "Executive
Option") to acquire twenty thousand (20,000) shares of Class A Common
Stock of Employer ("Common Stock"). On the last day of each Contract
Year during the Term, Executive shall forfeit the Executive Option with
respect to two thousand five hundred (2,500) shares of Common Stock if
the average Fair Market Value (as defined in the Emmis Broadcasting
Corporation 1997 Equity Incentive Plan, or any subsequent equity
incentive plan adopted by Emmis and generally used to make equity-based
awards to station management employees of the Emmis Group (the "Plan"))
per share of Common Stock over the last ninety (90) days of the Contract
Year is not more than one hundred and twenty-five percent (125%) of the
average Fair Market Value per share of Common Stock over the ninety (90)
days immediately preceding the start of the Contract Year. On the last
day of each Contract Year during the Term, Executive shall also forfeit
the Executive Option with respect to an additional two thousand five
hundred (2,500) shares of Common Stock if the average Fair Market Value
per share of Common Stock over the last ninety (90) days of the Contract
Year is not more than one hundred and fifteen percent (115%) of the
average Fair Market Value per share of Common Stock over the ninety (90)
days immediately preceding the
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start of the Contract Year. Each Executive Option shall: (i) have an
exercise price per share equal to its Fair Market Value on the grant
date, (ii) notwithstanding any other provision in this Agreement be
granted and subject to the terms and conditions of the Plan; (iii) be
evidenced by a written grant agreement containing such terms and
conditions as are generally provided for other officers of the Emmis
Group (which agreement shall include provisions for an eight year term
and the lapse of the non-forfeited Executive Options covered by such
agreement at a rate of twenty percent (20%) per year commencing at the
end of the fourth year after grant); (iv) be exercisable for Common Stock
without restrictive legends on the certificates therefor (other than
those appearing on the Common Stock generally).
7.3 PERFORMANCE-BASED COMPENSATION. It is the intent of
Employer and Executive that all compensation paid pursuant to Section
7.2 of this Agreement will be performance-based compensation which will
qualify under Section 162(m) of the Internal Revenue Code of 1986, as
amended, to be deducted by Employer, and all provisions in Section 7.2
will be construed to permit the compensation paid thereunder to so
qualify. In addition, the Compensation Committee shall have the
discretion to structure any Bonus to qualify under Section 162(m) of the
Code. If the Compensation Committee so structures any Bonus, all
provisions under Section 7.1 shall also be construed to permit the
compensation paid thereunder to so qualify.
7.4 STOCK GRANT. If Executive completes the entire three-year
Term and is still an employee of Employer on February 28, 2002,
Executive will be entitled to a grant of ten thousand (10,000) shares of
Common Stock (the "Stock Grant"); provided, however, that Executive
shall be entitled to receive a prorated portion of the Stock Grant if
this Agreement is terminated by Employer without Cause prior to a Change
in Control or if Executive dies or becomes Disabled (as hereinafter
defined) during the Term. Such prorated number of shares shall be an
amount equal to ten thousand (10,000) times a fraction, the numerator of
which is the number of full months from the effective date of this
Agreement to the date Executive is so terminated, dies or becomes
Disabled, and the denominator of which is thirty-six (36). Any
fractional shares created by the pro-ration shall be rounded up to the
nearest whole share. Employer, at its option, may pay the Stock Grant
(or any prorated portion thereof) in Common Stock or in cash. If the
Stock Grant (or any prorated portion thereof) is paid in cash, such cash
payment shall be an
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amount equal to the Fair Market Value of the Stock Grant (or prorated
portion thereof) on the business day immediately preceding the payment
date.
8. EXPENSES. Employer shall pay or reimburse Executive for all
reasonable expenses actually incurred or paid by Executive during the Term in
the performance of Executive's services hereunder upon presentation of expense
statements or vouchers or such other supporting information as Employer may
reasonably require of Executive. Employer shall also reimburse Executive for
any reasonable expenses incurred by Executive in connection with his relocation
to Indianapolis as more particularly described in Exhibit A.
9. VACATION AND OTHER BENEFITS. Executive shall be entitled to four
(4) weeks of paid vacation per Contract Year in accordance with Employer's
company practices. In addition, during the Term, Executive shall be eligible to
participate in any pension or profit-sharing plan or program of Employer now or
hereafter existing in accordance with and to the extent that he is eligible
under the general provisions thereof. Executive shall also be eligible to
participate in any group life insurance, hospitalization, medical, health and
accident, disability or similar plan or program of Employer, now or hereafter
existing in accordance with and to the extent that he is eligible under the
general provisions thereof.
10. INDEMNIFICATION. Executive shall be entitled in connection with
his employment hereunder to the benefit of the indemnification provisions
contained in Employer's Amended and Restated Articles of Incorporation or
By-Laws or any corporate resolution, as the same may be amended from time to
time (not including any amendments or additions that limit or narrow, but
including any that add to or broaden, the protection afforded to Executive), to
the fullest extent permitted by applicable law. Employer shall in addition
cause Executive to be indemnified in accordance with Chapter 37 of the Indiana
Business Corporation Law, as the same may be amended from time to time, to the
fullest extent permitted by such chapter, to the extent required to make
Executive whole in connection with any loss, cost or expense indemnifiable
thereunder. Executive shall be insured under the Employer's Director's and
Officer's Liability Insurance Policy as in effect from time to time.
Notwithstanding any other provision of this Agreement to the contrary, any
termination of Executive's employment or of this Agreement shall have no effect
on the continuing operation of this Section 10.
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11. CONFIDENTIAL INFORMATION.
11.1 NON-DISCLOSURE. Executive acknowledges that certain
information concerning the business of Employer is of a confidential
nature and that as a result of his employment with Employer, Executive
may have received or may hereafter receive confidential information
concerning the business of Employer or its subsidiaries which, if known
to competitors of Employer, would damage Employer, its subsidiaries or
their respective businesses. Executive agrees that during the Term and
for a period of one (1) year from the expiration or earlier termination
of the Term (such additional one (1) year period, the "Applicable
Period"), Executive will not divulge or appropriate to his own use, or
to the use of any third party (other than Employer and its
representatives or as directed in writing by Employer), any information
or knowledge concerning the business of Employer or its subsidiaries
which is not generally available to the public other than through the
activities of Executive. Executive further agrees that upon termination
of his employment for any reason, Employee will surrender to Employer
all documents, brochures, writings, illustrations, price lists,
marketing plans, budgets and other such materials which he received from
or developed on behalf of Employer through his employment. Executive
acknowledges that all such materials are at all times property of
Employer.
11.2 INJUNCTIVE RELIEF. Executive acknowledges that his breach
of Section 11.1 will cause irreparable injury and damage to Employer,
the exact amount of which will be difficult to ascertain, that the
remedies at law for any such breach would be inadequate, and that the
provisions of this Section 11 have been negotiated and written to
prevent such irreparable injury and damage. Accordingly, if Executive
breaches Section 11.1, then Employer shall be entitled to injunctive
relief enforcing Section 11.1 to the extent reasonably necessary to
protect Employer's legitimate interests, without posting bond or other
security. If Executive violates Section 11.1 and Employer brings legal
action for injunctive or other relief, Employer shall not, as a result
of the time involved in obtaining such relief, be deprived of the
benefit of the full period of non-disclosure set forth herein.
Accordingly, the obligations set forth in Sections 11.1 shall be deemed
to have the duration set forth therein, computed from the date such
relief is granted but reduced by the time expired between the date the
Applicable Period began to run and the date of the first violation of
the covenants by Executive.
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12. NON-INTERFERENCE AND NON-COMPETITION.
12.1 NON-INTERFERENCE. During the Term and for the Applicable
Period, Executive will not, directly or indirectly, take any action (or
permit any action to be taken by an entity with which he is associated)
which has the effect of interfering with (i) on-air talent of Employer
or its subsidiaries or (ii) any other employee of Employer. Without
limiting the generality of the foregoing, Executive specifically agrees
that during the Term and for the Applicable Period neither he nor any
entity with which he is associated shall hire or engage any on-air
talent of Employer or any other employee of Employer to provide services
for any other business or solicit them to cease their employment with
Employer.
12.2 NON-COMPETITION (DURING EMPLOYMENT). During the Term,
Executive will not, without the prior written approval of the Board,
engage directly or indirectly in, or become employed by, serve as an
agent or consultant to or become an officer, director, partner,
principal or shareholder of any corporation, partnership or other entity
which is engaged in (i) the radio or television broadcasting business in
any ADI radio or television market in which any member of the Emmis
Group owns, operates or has an interest in (or has owned, operated or
had an interest in) any broadcasting station at such time or at any time
during the preceding two (2) years or (ii) publishing, selling or
distributing any local or regional magazine or other publication within
the smaller of (A) 50 miles of the principal place of publication of any
magazine or other publication of any member of the Emmis Group at such
time or (B) the geographic territory represented by a circle in which are
located seventy percent (70%) of the subscribers to any magazine or
other publication of any member of the Emmis Group at such time, or
(iii) operates any other business which directly competes with any
business of any member of the Emmis Group at such time. As long as
Executive does not engage in any other activity prohibited by the
immediately preceding sentence, Executive's ownership of less than five
percent (5%) of the issued and outstanding stock of any corporation
whose stock is traded on an established securities market shall not
constitute competition with Employer for the purpose of this Section
12.2.
12.3 NON-COMPETITION (POST-EMPLOYMENT). During the Applicable
Period, Executive will not, without the prior written approval of the
Board, engage directly or indirectly in, or become employed by, serve as
an agent or consultant to or become an officer, director, partner,
principal or shareholder of any corporation, partnership or other
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entity which is engaged in (i) the radio or television broadcasting
business in any ADI radio or television market in which any member of the
Emmis Group owns, operates or has an interest in (or has owned, operated
or had an interest in) any broadcasting station at such time or at any
time during the preceding two (2) years or (ii) publishing, selling or
distributing any local or regional magazine or other publication within
the smaller of (A) 50 miles of the principal place of publication of any
magazine or other publication of any member of the Emmis Group at such
time or (B) the geographic territory represented by a circle in which are
located seventy percent (70%) of the subscribers to any magazine or other
publication of any member of the Emmis Group at such time, or (iii)
operates any other business which directly competes with any business of
any member of the Emmis Group at such time. As long as Executive does not
engage in any other activity prohibited by the immediately preceding
sentence, Executive's ownership of less than five percent (5%) of the
issued and outstanding stock of any corporation whose stock is traded on
an established securities market shall not constitute competition with
Employer for the purpose of this Section 12.3.
12.4 INJUNCTIVE RELIEF. Executive acknowledges and agrees that
the provisions of this Section 12 have been specifically negotiated and
carefully worded in recognition of the opportunities which will be
afforded to Executive by Employer by virtue of his continued association
with Employer, and the influence that Executive will have over
Employer's employees, customers and suppliers by virtue of Executive's
relationships with such persons. Executive further acknowledges that his
breach of Section 12.1, 12.2 or 12.3 will cause irreparable injury and
damage to Employer, the exact amount of which will be difficult to
ascertain, that the remedies at law for any such breach would be
inadequate, and that the provisions of this Section 12 have been
negotiated and written to prevent such irreparable injury and damage.
Accordingly, if Executive breaches Section 12.1, Section 12.2 or Section
12.3, then Employer shall be entitled to injunctive relief enforcing
Section 12.1, 12.2 or 12.3, as the case may be, to the extent reasonably
necessary to protect Employer's legitimate interests, without posting
bond or other security. If Executive violates Section 12.1 or 12.3 and
Employer brings legal action for injunctive or other relief, Employer
shall not, as a result of the time involved in obtaining such relief, be
deprived of the benefit of the full period of non-interference or
non-competition set forth herein. Accordingly, the obligations set forth
in Sections 12.1 and 12.3 shall be deemed to have the duration set forth
therein, computed from the date such relief is granted but
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reduced by the time expired between the date the Applicable Period began
to run and the date of the first violation of the covenants by Executive.
12.5 CONSTRUCTION. In the event that, despite the express
agreement herein of Employer and Executive, any provisions of this
Section shall be determined by any court or other tribunal of competent
jurisdiction to be unenforceable for any reason whatsoever, the parties
agree that this Section 12 shall be interpreted to extend only to the
maximum extent as to which it may be enforceable, and that the Section
shall be severable into its component parts, all as determined by such
court or tribunal.
13. TERMINATION OF AGREEMENT BY EMPLOYER.
13.1 TERMINATION FOR CAUSE. Employer may, by action of the
Board, terminate Executive's employment hereunder for Cause (as defined
in Section 13.3 below) in accordance with the terms and conditions of
this Section. Following a determination by the Board that Executive
should be terminated for Cause, Employer shall give written notice (the
"Preliminary Notice") to Executive specifying the grounds for such
termination, and Executive shall have ten (10) days after receipt of the
Preliminary Notice to respond. If following expiration of such ten (10)
day period the Board reaffirms its determination that Executive should
be terminated for Cause, such termination shall be effective upon
delivery by Employer to Executive of a final notice of termination (the
"Final Notice").
13.2 EFFECT OF TERMINATION. In the event of termination for
Cause as provided in Section 13.1 above:
(i) Executive shall have no further obligations or
liabilities hereunder except his obligations under Sections 11 and 12,
which shall survive such termination of this Agreement.
(ii) Employer shall have no further obligations or
liabilities hereunder, except that Employer shall, not later than two
(2) weeks after the termination date:
(A) Pay to Executive all unpaid Base Salary with
respect to any period ending on or before the termination date, plus the
compensation equivalent of all unused vacation days earned in the then
current Contract Year prior to the termination date; and
(B) Pay to Executive any Bonus which may have
been earned for a Contract Year ending on or prior to the termination
date pursuant to Section 7.2 but which is unpaid as of the termination
date.
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13.3 DEFINITION OF CAUSE. As used herein, "Cause" means either (i)
action by Executive involving willful or repeated failure, neglect
or refusal to perform any material obligation under this Agreement
(or any duties assigned to Executive consistent with the terms of
this Agreement) at the time and in the manner set forth herein (or
in such assignment), and continuation of such breach after written
notice and the expiration of a thirty (30) day cure period
(provided, however, that it is not the parties' intention that
Employer shall be required to provide successive such notices, and
in the event Employer has provided Executive with a notice and
opportunity to cure pursuant to this clause (i), it may terminate
this Agreement for a subsequent breach similar or related to the
breach for which notice was previously given or for a continuing
series or pattern of breaches (whether or not similar or related)
without providing notice or an opportunity to cure); or (ii)
Executive's commission of a felony involving moral turpitude or
Executive's action, knowing allowance of actions, or omissions
which are in violation of the Communications Act of 1934, as
amended, or the rules and regulations of the Federal
Communications Commission (the "FCC") or which otherwise
jeopardize the FCC licenses granted to Employer or its
subsidiaries.
13.4 TERMINATION BY EMPLOYER OTHER THAN FOR CAUSE PRIOR TO A CHANGE IN
CONTROL. Prior to a Change in Control, Employer shall have the
right to terminate Executive's employment hereunder other than for
Cause, death or because Executive is Disabled. However, if
Employer terminates Executive's employment hereunder other than
for Cause, death or because Executive is Disabled, Employer shall
(i) pay Executive in bi-weekly payments the Base Salary for a
period of one year after the date of such termination, (ii) not
later than two (2) weeks after such termination date, grant to
Executive any Executive Option required to be granted under the
terms of Section 7.2 prior to such termination date but not yet
granted as of such date, and (iii) not later than two (2) weeks
after such termination date grant to Executive the prorated
portion of the Stock Grant.
13.5 TERMINATION OTHER THAN FOR CAUSE OR MATERIAL BREACH BY EMPLOYER
AFTER A CHANGE IN CONTROL. If, after any Change in Control,
Employer
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terminates Executive's employment other than for Cause or because
Executive dies or becomes Disabled, or if, after any Change in
Control Employer otherwise breaches any material provision of this
Agreement and fails to cure such breach within ten (10) business
days after written notice of such breach (which material
provisions shall include but not be limited to Sections 3.1 or 5),
(i) Employer shall pay Executive the Base Salary under Section 6
attributable to the remainder of the Term and the full portion of
the Bonus for the remainder of the Term as if such Bonus had been
awarded by the Compensation Committee, (ii) Employer shall grant
to Executive any Executive Option required to be granted under the
terms of Section 7.2 prior to such date but not yet granted as of
such date, (iii) any Executive Options granted prior to such date
which are subject to forfeiture pursuant to Section 7.2 shall
vest, (iv) Employer shall pay to Executive in cash the fair market
value (determined using the black-scholes option pricing method)
of any Executive Options not granted as of such date to which
Executive would have been entitled over the remainder of the Term
assuming that no such Executive Options would have been forfeited
under Section 7.2 and assuming a xxxxx xxxxx equal to the Fair
Market Value per share on such date and (v) Executive shall be
automatically released from the restrictions under Section 12..
Any payments or grants required above shall be made by Employer
not later than two (2) weeks after such termination date or the
expiration of such cure period for which the material breach
remains uncured.
14. DISABILITY.
14.1 TERMINATION OF EMPLOYMENT. If Executive shall become
Disabled (as defined in Section 14.2), Employer shall continue to
compensate Executive under the terms of this Agreement without
diminution and otherwise without regard to such disability or
nonperformance of duties, until Executive has been disabled for a
cumulative period of six (6) months, at which time Executive's
employment shall automatically terminate on the last day of such six (6)
month period. The date that Executive's employment terminates pursuant
to this Section is referred to herein as the "Disability Termination
Date."
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14.2 DISABILITY DEFINITION. Executive shall be deemed to have
become "Disabled" for purposes of this Agreement if, during the Term,
because of ill health, physical or mental disability or for other causes
beyond his control he shall have been unable or unwilling or shall have
failed to perform his duties hereunder, as determined by the written
opinion of an independent medical physician designated by Employer and
reasonably acceptable to Executive.
14.3 OBLIGATIONS AFTER TERMINATION. Unless Employer exercises
its option under Section 14.6 below to reinstate Executive to his full
compensation, duties, functions, responsibilities and authority
hereunder for the then balance of the original Term, Executive shall
have no further obligations or liabilities hereunder after a Disability
Termination Date except his obligations under Sections 11 and 12 which
shall survive. After a Disability Termination Date, Employer shall have
no further obligations or liabilities hereunder except its obligations
under Sections 10, 14.4, 14.5 and 14.6 below which shall survive.
14.4 PAYMENT OF UNPAID SALARY AFTER TERMINATION. Employer
shall, not later than two (2) weeks after a Disability Termination Date,
pay to Executive all unpaid Base Salary with respect to any period
ending on or before the Disability Termination Date, plus the
compensation equivalent of all unused vacation days earned in the then
current Contract Year prior to the Disability Termination Date.
14.5 POST-TERMINATION COMPENSATION. Following a Disability
Termination Date, Employer shall (i) pay to Executive in bi-weekly
payments during each Contract Year or partial Contract Year remaining
under this Agreement an amount equal to fifty percent (50%) of the Base
Salary for such Contract Year or partial Contract Year and (ii) not
later than two (2) weeks after a Disability Termination Date, grant to
Executive any Executive Option required to be granted under the terms of
Section 7.2 prior to such Disability Termination Date but not yet
granted as of such date, and (iii) not later than two (2) weeks after a
Disability Termination Date grant to Executive the prorated portion of
the Stock Grant. The benefits required to be paid under this Section
14.5 (beginning with the Base Salary amount) shall be reduced by the
amount of any benefits payable to Executive under any group or
individual disability insurance plan or policy, the premiums for which
are paid by Employer.
14.6 REINSTATEMENT. If during the original Term and subsequent
to a Disability Termination Date, Executive shall fully recover from a
disability, Employer shall have the
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right (exercisable within sixty (60) days after written notice from
Executive of such recovery), but not the obligation, to reinstate
Executive to employment hereunder for the then balance of the original
Term. In the event of such reinstatement, Employer shall pay Executive
at his full level of compensation hereunder and otherwise employ
Executive in accordance with the terms and provisions of this Agreement,
and Executive shall be considered to have performed under this Agreement
during the period between the Disability Termination Date and the date
of such reinstatement for purposes of Sections 7.2 and 7.4 and any Stock
Grant or Executive Options granted thereunder (with any Executive
Options to have been granted during the period between the Disability
Termination date and the date of such reinstatement to be granted as of
the date of such reinstatement.).
15. DEATH OF EXECUTIVE.
15.1 TERMINATION OF AGREEMENT. This Agreement shall terminate
upon Executive's death. In the event of such termination, Employer shall
have no further obligations or liabilities hereunder (including, but not
limited to, any obligation to make payments under Section 14 for any
period after Executive's date of death) except its obligations under
Section 15.2 below which shall survive such termination.
15.2 COMPENSATION. Upon Executive's death, Employer shall:
(i) Not later than two (2) weeks after Executive's date
of death, pay to Executive's estate or designated beneficiary all unpaid
Base Salary with respect to any period ending on or before Executive's
date of death, plus the compensation equivalent of all unused vacation
days earned in the then current Contract Year prior to the termination
date;
(ii) Not later than two (2) weeks after Executive's date
of death, grant to Executive's estate or designated beneficiary any
Executive Option required to be granted under the terms of Section 7.2
prior to Executive's date of death but not yet granted as of such date;
and
(iii) Not later than two (2) weeks after Executive's date
of death, grant to Executive's estate or designated beneficiary the
prorated portion of the Stock Grant.
15.3 NO REDUCTION. Amounts payable pursuant to this Section
shall not be reduced by the value of any benefits payable to the
Executive's estate or designated beneficiary under any life insurance
plan or policy.
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15.4 DEATH AFTER TERMINATION. In the event Executive dies
after termination of this Agreement pursuant to Sections 13 or 14, all
amounts required to be paid by Employer prior to Executive's death in
connection with such termination that remain unpaid as of Executive's
date of death shall be paid to Executive's estate or designated
beneficiary.
16. RENEWAL AFTER CHANGE IN CONTROL. If upon the expiration of the
Term after the occurrence of a Change in Control Executive has not been offered
a multi-year contract on substantially comparable or better terms than those
set forth in this Agreement, Employer shall pay Executive after the Term a
prorated portion of his Base Salary for up to nine months; provided, however,
that Executive shall have a duty to mitigate Employer's obligations under this
Section and any amounts payable to Executive under this Section shall be
reduced by any compensation to Executive attributable to Executive's direct or
indirect employment (whether as employee, consultant or other agent) by any
person or entity during such nine month period.
17. NO MITIGATION REQUIRED. Executive shall not be required to
mitigate any damages suffered by him by reason of Employer's breach hereof.
Except as otherwise provided in this Agreement, no amounts payable to Executive
by reason of the termination of his employment hereunder shall be subject to
reduction or offset, or otherwise diminished, by reason of any other
compensation received by Executive.
18. NOTICES. All notices, requests, consents and other
communications, required or permitted to be given hereunder, shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by prepaid telegram, or mailed first-class, postage prepaid, by registered
or certified mail, as follows (or to such other or additional address as either
party shall designate by notice in writing to the other in accordance
herewith):
(a) If to Employer:
Emmis Communications Corporation
One Xxxxx Xxxxx, 0xx Xxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn.: Board of Directors
(b) If to Executive, to him at his address on the personnel
records of Employer.
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19. GENERAL.
19.1 GOVERNING LAW. Employer and Executive acknowledge that
Employer is based in Indiana and that Executive may travel extensively
throughout the United States in the course of his duties for Employer.
This Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Indiana. Employer and
Executive agree that any and all actions or suits in connection with,
arising out of or related to this Agreement or Executive's employment
with Employer will be litigated only in courts of record located in
Xxxxxx County, Indiana, and Employer and Executive each (i) consent and
submit to the personal jurisdiction of any state or federal court
located within Xxxxxx County, Indiana, (ii) waive any right to transfer
or change the venue of any such litigation to a court located outside
Xxxxxx County, Indiana and (iii) agree to service of process, to the
extent permitted by law, by registered or certified mail, return receipt
requested, addressed to such party's address as determined pursuant to
Section 18 of this Agreement. Each of the agreements in this Section
19.1 is irrevocable to the fullest extent permitted by applicable law.
19.2 CAPTIONS. The section headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
19.3 ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement and understanding of the parties relating to the subject
matter hereof, and supersedes all prior agreements, arrangements and
understandings, written or oral, between the parties.
19.4 SUCCESSORS AND ASSIGNS. This Agreement, and Executive's
rights and obligations hereunder, may not be assigned by Executive,
except that Executive may designate pursuant to Section 19.6 one or more
beneficiaries to receive any amounts that would otherwise be payable
hereunder to Executive's estate.
19.5 AMENDMENTS; WAIVERS. This Agreement cannot be changed,
modified or amended, and no provision or requirement hereof may be
waived, without the consent in writing of Executive and Employer. The
failure of a party at any time or times to require performance of any
provision hereof shall in no manner affect the right of such party at a
later time to enforce such provision. No waiver by a party of the breach
of any term or covenant contained in this Agreement, whether by conduct
or otherwise, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such breach or a
waiver of the breach of any other term or covenant contained in this
Agreement.
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19.6 BENEFICIARIES. Whenever this Agreement provides for any
payment to Executive's estate, such payment may be made instead to such
beneficiary or beneficiaries as Executive may have designated in a
writing filed with Employer. Executive shall have the right to revoke
any such designation and to redesignate a beneficiary or beneficiaries
by written notice to Employer (and to any applicable insurance company).
19.7 SEVERABILITY. If any provision of this Agreement shall be
declared invalid or unenforceable, the remainder of this Agreement will
continue in full force and effect so far as the intent of the parties
can be carried out.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
EMMIS COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxx
Chairman of the Board and Chief Executive
Officer
"Employer"
/s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
"Executive"
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Exhibit A
Relocation terms:
1. reasonable house hunting expenses for family for up to 7 days;
2. payment of prevailing market broker's commission (of up to 7%) and
typical seller's closing costs for sale of Louisville home;
3. payment of reasonable origination fee and points if required by the
mortgage lender without affecting the rate or terms (not to exceed 2 points)
for first mortgage loan on Indianapolis home;
4. reasonable packing and moving van expenses, including two vehicles;
5. reasonable temporary housing costs for up to 6 months;
6. for any period in which Xxxxxx is obligated to make regular monthly
payments on both his Louisville mortgage and the mortgage on his new
Indianapolis residence, Emmis shall reimburse Xxxxxx for the interest portion
of his Louisville mortgage, not to exceed $2,508 per month, for a period not to
exceed 6 months.
7. tax gross up on above amounts payable by Emmis to extent not qualified
moving or relocation expenses under IRC.
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