e8vk

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CBuQDHBoRB7aCQnp19DWGFxdemMJyKi5cnV5A5iKY2I7xtgdN5aHSBRCA9bE2tBh 0xp8dZDFBvWCoNfee6edMg== 0000950137-05-001579.txt : 20050211 0000950137-05-001579.hdr.sgml : 20050211 20050211143727 ACCESSION NUMBER: 0000950137-05-001579 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20050207 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050211 DATE AS OF CHANGE: 20050211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EMMIS COMMUNICATIONS CORP CENTRAL INDEX KEY: 0000783005 STANDARD INDUSTRIAL CLASSIFICATION: RADIO BROADCASTING STATIONS [4832] IRS NUMBER: 351542018 STATE OF INCORPORATION: IN FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-23264 FILM NUMBER: 05597456 BUSINESS ADDRESS: STREET 1: ONE EMMIS PLAZA STREET 2: 40 MONUMENT CIRCLE SUITE 700 CITY: INDIANAPOLIS STATE: IN ZIP: 46204 BUSINESS PHONE: 3172660100 MAIL ADDRESS: STREET 1: ONE EMMIS PLAZA STREET 2: 40 MONUMENT CIRCLE #700 CITY: INDIANAPOLIS STATE: IN ZIP: 46204 FORMER COMPANY: FORMER CONFORMED NAME: EMMIS BROADCASTING CORPORATION DATE OF NAME CHANGE: 19920703 8-K 1 c92124e8vk.htm FORM 8-K e8vk

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934

Date of Report (date of earliest event reported): February 7, 2005

EMMIS COMMUNICATIONS CORPORATION

(Exact name of registrant as specified in its charter)

INDIANA
(State of incorporation or organization)

0-23264
(Commission file number)

35-1542018
(I.R.S. Employer
Identification No.)

ONE EMMIS PLAZA
40 MONUMENT CIRCLE
SUITE 700
INDIANAPOLIS, INDIANA 46204
(Address of principal executive offices)

(317) 266-0100
(Registrant’s Telephone Number,
Including Area Code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):


o		Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o		Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o		Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o		Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

TABLE OF CONTENTS


ITEM 1.01. Entry into a Material Definitive Agreement
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS
Signatures
Amendment to Employment Agreement for Walter Z. Berger
Amendment to Employment Agreement for Richard F. Cummings
Amendment to Employment Agreement for Gary L. Kaseff
Amendment to Employment Agreement for Michael Levitan
Change of Control Severance Agreement for Michael Levitan

ITEM 1.01. Entry into a Material Definitive Agreement.

On February 7, 2005, we amended the employment agreement of Walter Z. Berger, who currently serves as our Executive Vice President, Chief Financial Officer and Treasurer. The term of Mr. Berger’s employment is extended for a period of three years from February 28, 2006 to and including February 28, 2009. As of March 1, 2006, Mr. Berger’s annual base compensation is increased from $435,000 to $495,000, of which we may pay up to 10% in the form of shares of our common stock. Additionally, as of March 1, 2006, Mr. Berger’s annual incentive compensation target is increased from $300,000 to $341,500 (payable in cash or shares of our common stock at our option) based upon achievement of certain performance goals to be determined each year by our Compensation Committee. As of March 1, 2005, Mr. Berger’s annual grant of an option to acquire 50,000 shares of our common stock is replaced with an annual grant of an option to acquire 25,000 shares of our common stock and an annual grant of 7,500 shares of restricted stock. For contract years commencing on or after March 1, 2006, the annual equity bonus shall be eliminated, the number of shares granted pursuant to the option shall be increased from 25,000 to 30,000 and the grant of shares of restricted stock shall be increased from 7,500 to 9,000. Mr. Berger is also entitled to receive a completion bonus of 50,000 shares of our common stock upon the expiration of the agreement. Mr. Berger will continue to receive an automobile allowance and will continue to be reimbursed for up to $5,000 per year in premiums for life and disability insurance and retains the right to participate in all of our employee benefit plans for which he is otherwise eligible. The agreement remains subject to termination by our board of directors for cause (as defined in the agreement) and by Mr. Berger for good reason (as defined in the agreement) upon written notice. Mr. Berger continues to be entitled to certain termination benefits upon disability or death, and certain severance benefits.

On February 7, 2005, we amended the employment agreement of Richard F. Cummings, who currently serves as our President – Radio Division. The term of Mr. Cummings’ employment is extended for a period of three years from February 28, 2005 to and including February 29, 2008. As of March 1, 2005, Mr. Cummings’ annual base compensation is increased from $435,000 to $495,000, of which we may pay up to 10% in the form of shares of our common stock. Additionally, as of March 1, 2005, Mr. Cummings’ annual incentive compensation target is increased from $300,000 to $341,500 (payable in cash or shares of our common stock at our option) based upon achievement of certain performance goals to be determined each year by our Compensation Committee. As of March 1, 2005, Mr. Cummings’ annual grant of an option to acquire 50,000 shares of our common stock is replaced with an annual grant of an option to acquire 30,000 shares of our common stock and an annual grant of 9,000 shares of restricted stock. Mr. Cummings is also entitled to receive a completion bonus of 50,000 shares of our common stock upon the expiration of the agreement. Mr. Cummings will continue to receive an automobile allowance and will continue to be reimbursed for up to $5,000 per year in premiums for life and disability insurance and retains the right to participate in all of our employee benefit plans for which he is otherwise eligible. The agreement remains subject to termination by our board of directors for cause (as defined in the agreement) and by Mr. Cummings for good reason (as defined in the agreement) upon written notice. Mr. Cummings continues to be entitled to certain termination benefits upon disability or death.

On February 7, 2005, we amended the employment agreement of Gary L. Kaseff, who currently serves as our Executive Vice President and General Counsel. The term of Mr. Kaseff’s employment is extended for a period of three years from February 28, 2005 to and including February 29, 2008. As of March 1, 2005, Mr. Kaseff’s annual base compensation is increased from $400,000 to $424,000; as of March 1, 2006, Mr. Kaseff’s annual base compensation is increased from $424,000 to $437,500; as of March 1, 2007, Mr. Kaseff’s annual base compensation is increased from $437,500 to $450,000. The company retains the right to pay up to 10% of Mr. Kaseff’s annual base compensation in the form of shares of our common stock. Additionally, as of March 1, 2005, Mr. Kaseff’s annual incentive compensation target is increased from $225,000 to $239,000; as of March 1, 2006, Mr. Kaseff’s annual incentive compensation target is increased from $239,000 to $246,000; as of March 1, 2007, Mr. Kaseff’s annual incentive compensation target is increased from $246,000 to $253,000. The company retains the right to pay any annual incentive compensation in cash or shares of our common stock. Additionally, the award of annual incentive compensation is based upon achievement of certain performance goals to be determined each year by our Compensation Committee. As of March 1, 2005, Mr. Kaseff’s annual grant of an option to acquire 50,000 shares of our common stock is replaced with an annual grant of an option to acquire 25,000 shares of our common stock and an annual grant of 7,500 shares of restricted stock. Mr. Kaseff is also entitled to receive a completion bonus of 28,250 shares of our common stock upon the expiration of the agreement. Mr. Kaseff will continue to receive an automobile allowance and will continue to be reimbursed for up to $5,000 per year in premiums for life and disability insurance and retains the right to participate in all of our employee benefit plans for which he is otherwise eligible. The agreement remains subject to termination by our board of directors for cause (as defined in the agreement) and by Mr. Kaseff for good reason (as defined in the agreement) upon written notice. Mr. Kaseff continues to be entitled to certain termination benefits upon disability or death, and certain severance benefits.

On February 7, 2005, we amended the employment agreement of Michael Levitan, who served as Senior Vice President – Human Resources, and now serves as Executive Vice President – Human Resources. The term of Mr. Levitan’s employment is extended for a

period of three years from February 28, 2005 to and including February 29, 2008. As of March 1, 2005, Mr. Levitan’s annual base compensation is increased to $280,000, of which we may pay up to 10% in the form of shares of our common stock. Additionally, as of March 1, 2005, Mr. Levitan’s annual incentive compensation target is increased to $140,000 (payable in cash or shares of our common stock at our option) based upon achievement of certain performance goals to be determined each year by our Compensation Committee. As of March 1, 2005, Mr. Levitan will receive an annual grant of an option to acquire 15,000 shares of our common stock and an annual grant of 4,500 shares of restricted stock. Mr. Levitan is also entitled to receive a completion bonus of 10,000 shares of our common stock upon the expiration of the agreement. Mr. Levitan will continue to receive an automobile allowance and retains the right to participate in all of our employee benefit plans for which he is otherwise eligible. The agreement remains subject to termination by our board of directors for cause (as defined in the agreement) upon written notice. Mr. Levitan continues to be entitled to certain termination benefits upon disability or death, and certain severance benefits.

On February 7, 2005, Emmis entered into a Change in Control Severance Agreement with Mr. Levitan. The agreement provides that if Mr. Levitan’s employment is terminated within two years after a change-in-control (or, in certain instances, in anticipation of a change-in-control) by Emmis other than for cause or by Mr. Levitan for “good reason” (as defined in the agreement), Mr. Levitan is entitled to (1) a severance payment equal to Mr. Levitan’s base salary through the termination date, plus a pro rata portion of Mr. Levitan’s target bonus for the year and accrued vacation pay, plus three times Mr. Levitan’s highest annual base salary and highest annual incentive bonus during the preceding three years; (2) continued insurance benefits for three years; (3) immediate vesting of all stock options; and (4) in certain circumstances, additional tax “gross up” payments. In each case, Mr. Levitan is obligated not to voluntarily leave employment with Emmis during the pendency of (and prior to the consummation or abandonment of) a change-in-control other than as a result of disability, retirement or an event that would constitute good reason if the change-of-control had occurred.

ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.


EXHIBIT #		DESCRIPTION
10.1		Amendment to Employment Agreement for Walter Z. Berger.
10.2		Amendment to Employment Agreement for Richard F. Cummings.
10.3		Amendment to Employment Agreement for Gary L. Kaseff.
10.4		Amendment to Employment Agreement for Michael Levitan.
10.5		Change of Control Severance Agreement for Michael Levitan.

Signatures.

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.


	EMMIS COMMUNICATIONS CORPORATION

Date: February 11, 2005	By:	/s/ J. Scott Enright

		J. Scott Enright, Vice President,
		Associate General Counsel and Secretary

EX-10.1 2 c92124exv10w1.htm AMENDMENT TO EMPLOYMENT AGREEMENT FOR WALTER Z. BERGER exv10w1

EXHIBIT 10.1

February 7, 2005

Walter Z. Berger
c/o Emmis Communications Corporation
40 Monument Circle, Suite 700
Indianapolis, IN 46204

Re: Amendment to Employment Agreement

Dear Walter:

This letter shall confirm our agreement to amend your employment agreement with Emmis Operating Company dated March 1, 2002 (the “Agreement”), upon the terms and subject to the conditions set forth in this letter (the “Amendment”).

Except as otherwise provided below, this Amendment is effective upon execution by you. Any capitalized words or phrases used and not defined in this Amendment shall have the meanings ascribed to them in the Agreement. This shall confirm that the parties have agreed as follows:

1. The Term of the Agreement has been extended through February 28, 2009. After February 28, 2006, “Contract Year” shall mean the twelve (12) month period commencing on March 1, 2006 and on each anniversary thereof during the Term.

2. Effective March 1, 2006, the dollar amount set forth in the first sentence of Section 3.4 shall be increased from Five Hundred Thirty Five Thousand Dollars ($535,000) to Five Hundred Ninety Five Thousand Dollars ($595,000).

3. The Base Salary shall be increased to Four Hundred Ninety Five Thousand Dollars ($495,000) each Contract Year during the Term, commencing with the Contract Year beginning March 1, 2006 (“FYE 07”).

4. After payment of any Contract Year Bonus earned for the period ending February 28, 2006, Section 6.2 shall be modified to reflect the following: Commencing with FYE 07, the target amount of the Contract Year Bonus shall be increased to Three Hundred Forty One Thousand Five Hundred Dollars ($341,500) each Contract Year, Exhibit A to the Agreement shall be deleted and shall be of no further force and effect, and the third and fourth sentences of Section 6.2 shall be deleted and replaced with the following language:

“Employer may pay all or a portion of any Contract Year Bonus in Shares in the same manner utilized for other senior management level employees.”

Unless subsequently changed by the Compensation Committee, the performance goals for FYE 07 shall be:


Target Bonus			Performance Goal
1.	$	136,600	Domestic Radio Station Operating Income Target
2.	$	102,450	Other Emmis Operating Income Target
3.	$	102,450	Individual Performance (Discretionary)

Domestic Radio Station Operating Income and Other Emmis Operating Income, or any other applicable performance targets or goals, shall be defined and determined by the Compensation Committee each Contract Year. The Compensation Committee reserves the right to amend the performance goals to the extent it deems appropriate in order to take into account any material acquisition, disposition, reorganization, recapitalization or other material transaction involving Employer or its properties. Executive shall earn a certain percentage of each Contract Year Bonus in accordance with the applicable bonus scale adopted by the Employer for the subject Contract Year.

5. Section 6.3 shall be deleted in its entirety and replaced with the following language:

“6.3 Equity Incentive Compensation. For the Contract Year beginning March 1, 2005, at such time as Employer generally awards equity incentive compensation to members of Employer’s senior management team, Executive shall receive Seven Thousand Five Hundred (7,500) Shares (as defined below) and an option (“Option”) to acquire Twenty Five Thousand (25,000) Shares. Each Contract Year during the Term, beginning with FYE 07, at such time as Employer generally awards equity incentive compensation to members of Employer’s senior management team, Executive shall receive Nine Thousand (9,000) Shares and an Option to acquire Thirty Thousand (30,000) Shares. As used herein, “Shares” shall mean shares of Class A Common Stock of Emmis Communications Corporation. The grants of Options and Shares shall be pursuant to the terms and subject to the conditions of the applicable Equity Incentive Plan of Employer, the Option agreements evidencing the Option grants and the restricted stock agreements evidencing the grants of Shares. In the event of any change in the outstanding Shares by reason of any reorganization, recapitalization, reclassification, merger, stock split, reverse stock split, stock dividend, asset spinoff, share combination, consolidation, or similar event, including without limitation a Separation Event, the number and class of all Shares awarded pursuant to this Agreement or covered by an Option granted pursuant to this Agreement (and any applicable Option exercise price) shall be adjusted by the Compensation Committee in its sole discretion and in accordance with the terms of the applicable Equity Incentive Plan of Employer, the Option agreement evidencing the grant of the Option and the restricted stock agreement evidencing the grant of Shares. The determination of the Compensation Committee shall be conclusive and binding.”

6. After the delivery of any Equity Bonus earned for the period ending February 28, 2006 pursuant to Section 6.4 and any repayment required by Executive pursuant to Section 6.4, Section 6.4 shall be deleted and shall be of no further force and effect.

7. After the delivery of any Bonus Shares earned for the period ending February 28, 2006 pursuant to Section 6.5, Section 6.5 shall be deleted in its entirety and replaced with the following language:

“6.5 Completion Bonus. On or about February 28, 2009, Executive shall receive Fifty Thousand (50,000) Shares (the “Completion Shares”); provided, that (i) this Agreement is in effect on February 28, 2009 and has not been terminated for any reason (other than a breach of this Agreement by Employer); and (ii) Executive has fully performed all of Executive’s duties and obligations under this Agreement throughout the Term and is not in breach of any of the material terms and conditions of this Agreement. The Completion Shares shall be freely transferable when delivered to Executive subject to Employer’s securities trading policy and applicable federal and state law. Employer shall have the right, in its sole and absolute discretion, to pay to Executive the value of the Completion Shares (in the same manner applied to other senior management level employees) in cash in lieu of granting Executive the Completion Shares.”

8. Effective March 1, 2005, the parenthetical phrase in the fourth sentence of Section 11.4 shall be deleted and replaced with the following language:

“(except the Options described in Section 6.3, which compensation shall not be included in the calculation of the lump sum payment)”

9. Effective March 1, 2006, the amount of Three Hundred Thousand Dollars ($300,000) set forth in Section 11.4 shall be increased to Three Hundred Forty One Thousand Five Hundred Dollars ($341,500).

10. In the third sentence of Section 11.5, the following language shall be deleted and shall be of no further force and effect:

“or the transaction or transactions described in the definition of Change of Control in Exhibit B”

11. In Section 14, Gary Kaseff’s address has been changed to 3500 W. Olive Avenue, Suite 1450, Burbank, California 91505.

All of the terms and conditions set forth in the Agreement shall remain unchanged and in full force and effect unless specifically modified in this Amendment. All references to the Term or its expiration or termination shall be adjusted to properly reflect the language set forth above. This Amendment shall be incorporated by reference into the Agreement and made a part thereof. In the event of any conflict between any provision of this Amendment and any provision of the Agreement, this Amendment shall govern and control.

Please sign below where indicated to signify your acceptance of the terms and conditions set forth in this Amendment. Should you have any questions about this Amendment, please let me know. I look forward to much continued success together.

Sincerely,


/S/ Jeffrey H. Smulyan

Jeffrey H. Smulyan
Chairman and Chief Executive
Officer, Emmis Operating Company

ACCEPTED AND AGREED:


/S/ Walter Z. Berger

Walter Z. Berger

EX-10.2 3 c92124exv10w2.htm AMENDMENT TO EMPLOYMENT AGREEMENT FOR RICHARD F. CUMMINGS exv10w2

EXHIBIT 10.2

February 7, 2005

Richard F. Cummings
c/o Emmis Communications Corporation
3500 W. Olive Avenue, Suite 1450
Burbank, California 91505

Re: Amendment to Employment Agreement

Dear Rick:

1. The Term of the Agreement has been extended through February 29, 2008. After February 28, 2005, “Contract Year” shall mean the twelve (12) month period commencing on March 1, 2005 and on each anniversary thereof during the Term.

2. The Base Salary shall be increased to Four Hundred Ninety Five Thousand Dollars ($495,000) each Contract Year during the Term, commencing with the Contract Year beginning March 1, 2005 (“FYE 06”).

3. After payment of any Contract Year Bonus earned for the period ending February 28, 2005, Section 6.2 shall be modified to reflect the following: Commencing with FYE 06, the target amount of the Contract Year Bonus shall be increased to Three Hundred Forty One Thousand Five Hundred Dollars ($341,500) each Contract Year, Exhibit B to the Agreement shall be deleted and shall be of no further force and effect, and the third and fourth sentences of Section 6.2 shall be deleted and replaced with the following language:

“Employer may pay all or a portion of any Contract Year Bonus in Shares in the same manner utilized for other senior management level employees.”

Unless subsequently changed by the Compensation Committee, the performance goals for FYE 06 shall be:


Target Bonus			Performance Goal
1.	$	239,050	Domestic Radio Station Operating Income Target
2.	$	102,450	Individual Performance (Discretionary)

Domestic Radio Station Operating Income or any other applicable performance targets or goals shall be defined and determined by the Compensation Committee each Contract Year. The Compensation Committee reserves the right to amend the performance goals to the extent it deems appropriate in order to take into account any material acquisition, disposition, reorganization, recapitalization or other material transaction involving Employer or its properties. Executive shall earn a certain percentage of each Contract Year Bonus in accordance with the applicable bonus scale adopted by the Employer for the subject Contract Year.

4. Section 6.3 shall be deleted in its entirety and replaced with the following language:

“6.3 Equity Incentive Compensation. Each Contract Year during the Term, beginning with FYE 06, at such time as Employer generally awards equity incentive compensation to members of Employer’s senior management team, Executive shall receive Nine Thousand (9,000) Shares (as defined below) and an option (“Option”) to acquire Thirty Thousand (30,000) Shares. As used herein, “Shares” shall mean shares of Class A Common Stock of Emmis Communications Corporation. The grants of Options and Shares shall be pursuant to the terms and subject to the conditions of the applicable Equity Incentive Plan of Employer, the Option agreement evidencing the Option grant and the restricted stock agreement evidencing the grant of Shares. In the event of any change in the outstanding Shares by reason of any reorganization, recapitalization, reclassification, merger, stock split, reverse stock split, stock dividend, asset spinoff, share combination, consolidation, or similar event, including without limitation a Separation Event, the number and class of all Shares awarded pursuant to this Agreement or covered by an Option granted pursuant to this Agreement (and any applicable Option exercise price) shall be adjusted by the Compensation Committee in its sole discretion and in accordance with the terms of the applicable Equity Incentive Plan of Employer, the Option agreement evidencing the grant of the Option and the restricted stock agreement evidencing the grant of Shares. The determination of the Compensation Committee shall be conclusive and binding.”

5. Effective March 1, 2005, Sections 6.4 and 15.9 shall be deleted and shall be of no further force and effect.

6. After the delivery of any Completion Shares earned for the period ending February 28, 2005 pursuant to Section 6.5, Section 6.5 shall be deleted in its entirety and replaced with the following language:

“6.5 Completion Bonus. On or about February 29, 2008, Executive shall receive Fifty Thousand (50,000) Shares (the “Completion Shares”); provided, that (i) this Agreement is in effect on February 29, 2008 and has not been terminated for any

reason (other than a breach of this Agreement by Employer); and (ii) Executive has fully performed all of Executive’s duties and obligations under this Agreement throughout the Term and is not in breach of any of the material terms and conditions of this Agreement. The Completion Shares shall be freely transferable when delivered to Executive subject to Employer’s securities trading policy and applicable federal and state law. Employer shall have the right, in its sole and absolute discretion, to pay to Executive the value of the Completion Shares (in the same manner applied to other senior management level employees) in cash in lieu of granting Executive the Completion Shares.”

7. In the third sentence of Section 11.5, the following language shall be deleted and shall be of no further force and effect:

“or the transaction or transactions described in the definition of Change of Control in Exhibit A”

8. In Section 14, Gary Kaseff’s address has been changed to 3500 W. Olive Avenue, Suite 1450, Burbank, California 91505.

Sincerely,


/s/ Jeffrey H. Smulyan

Jeffrey H. Smulyan
Chairman and Chief Executive
Officer, Emmis Operating Company

ACCEPTED AND AGREED:


/S/ Richard F. Cummings

Richard F. Cummings

EX-10.3 4 c92124exv10w3.htm AMENDMENT TO EMPLOYMENT AGREEMENT FOR GARY L. KASEFF exv10w3

EXHIBIT 10.3

February 7, 2005

Gary Kaseff
c/o Emmis Communications Corporation
3500 W. Olive Avenue, Suite 1450
Burbank, California 91505

Re: Amendment to Employment Agreement

Dear Gary:

This letter shall confirm our agreement to amend your employment agreement with Emmis Operating Company dated March 1, 2003 (the “Agreement”), upon the terms and subject to the conditions set forth in this letter (the “Amendment”).

2. The Base Salary shall be increased to Four Hundred Twenty Four Thousand Dollars ($424,000) for the Contract Year beginning March 1, 2005 (“FYE 06”), Four Hundred Thirty Seven Thousand Five Hundred Dollars ($437,500) for the Contract Year beginning March 1, 2006 and Four Hundred Fifty Thousand Dollars ($450,000) for the Contract Year beginning March 1, 2007.

3. After payment of any Contract Year Bonus earned for the period ending February 28, 2005, Section 6.2 shall be modified to reflect the following: The target amounts of the Contract Year Bonuses shall be increased to Two Hundred Thirty Nine Thousand Dollars ($239,000) for FYE 06, Two Hundred Forty Six Thousand Dollars ($246,000) for the Contract Year beginning March 1, 2006 and Two Hundred Fifty Three Thousand Dollars ($253,000) for the Contract Year beginning March 1, 2007. Commencing with FYE 06, Exhibit A to the Agreement shall be deleted and shall be of no further force and effect, and the third and fourth sentences of Section 6.2 shall be deleted and replaced with the following language:

“Employer may pay all or a portion of any Contract Year Bonus in Shares in the same manner utilized for other senior management level employees.”

Unless subsequently changed by the Compensation Committee, the performance goals for FYE 06 shall be:


Target Bonus			Performance Goal
1.	$	95,600	Domestic Radio Station Operating Income Target
2.	$	71,700	Other Emmis Operating Income Target
3.	$	71,700	Individual Performance (Discretionary)

4. Section 6.3 shall be deleted in its entirety and replaced with the following language:

“6.3 Equity Incentive Compensation. Each Contract Year during the Term, beginning with FYE 06, at such time as Employer generally awards equity incentive compensation to members of Employer’s senior management team, Executive shall receive Seven Thousand Five Hundred (7,500) Shares (as defined below) and an option (“Option”) to acquire Twenty Five Thousand (25,000) Shares. As used herein, “Shares” shall mean shares of Class A Common Stock of Emmis Communications Corporation. The grants of Options and Shares shall be pursuant to the terms and subject to the conditions of the applicable Equity Incentive Plan of Employer, the Option agreements evidencing the Option grants and the restricted stock agreements evidencing the grants of Shares. In the event of any change in the outstanding Shares by reason of any reorganization, recapitalization, reclassification, merger, stock split, reverse stock split, stock dividend, asset spinoff, share combination, consolidation, or similar event, including without limitation a Separation Event, the number and class of all Shares awarded pursuant to this Agreement or covered by an Option granted pursuant to this Agreement (and any applicable Option exercise price) shall be adjusted by the Compensation Committee in its sole discretion and in accordance with the terms of the applicable Equity Incentive Plan of Employer, the Option agreement evidencing the grant of the Option and the restricted stock agreement evidencing the grant of Shares. The determination of the Compensation Committee shall be conclusive and binding.”

5. After the delivery of any Bonus Shares earned for the period ending February 28, 2005 pursuant to Section 6.4, Section 6.4 shall be deleted in its entirety and replaced with the following language:

“6.4 Completion Bonus. On or about February 29, 2008, Executive shall receive Twenty Eight Thousand Two Hundred Fifty (28,250) Shares (the “Completion Shares”); provided, that (i) this Agreement is in effect on February 29, 2008 and has not been

terminated for any reason (other than a breach of this Agreement by Employer); and (ii) Executive has fully performed all of Executive’s duties and obligations under this Agreement throughout the Term and is not in breach of any of the material terms and conditions of this Agreement. The Completion Shares shall be freely transferable when delivered to Executive subject to Employer’s securities trading policy and applicable federal and state law. Employer shall have the right, in its sole and absolute discretion, to pay to Executive the value of the Completion Shares (in the same manner applied to other senior management level employees) in cash in lieu of granting Executive the Completion Shares. This Section 6.4 is expressly subject to the provisions of Sections 11.4 and 11.6 which provide for, in the situations described therein, Executive’s receipt of the Completion Shares prior to February 29, 2008.”

6. Effective March 1, 2005, the amount of Two Hundred Twenty Five Thousand Dollars ($225,000) set forth in Sections 11.4 and 11.6 shall be increased to Two Hundred Forty Six Thousand Dollars ($246,000) in each Section.

7. Effective March 1, 2005, the last parenthetical phrase in the fourth sentence of Section 11.4 and the last parenthetical phrase in the first sentence of Section 11.6 shall be deleted and replaced with the following language:

“(except the Options described in Section 6.3, which compensation shall not be included in the calculation of the lump sum payment).”

8. In the third sentence of Section 11.5, the following language shall be deleted and shall be of no further force and effect:

“or the transaction or transactions described in the definition of Change of Control in Exhibit B”

9. The following language shall be added to Section 11.7.2:

“Ownership of any Shares granted to Executive (pursuant to Section 6.3 of this Agreement or otherwise) prior to or during the Post Term Period shall continue to vest during the Post Term Period (to the extent not already fully vested as of the first day of the Post Term Period) in accordance with the vesting schedule applicable to each grant in the same manner as if Executive remained a full-time employee with Employer continuously through the expiration of the Post Term Period.”

Sincerely,


/S/ Jeffrey H. Smulyan

Jeffrey H. Smulyan
Chairman and Chief Executive
Officer, Emmis Operating Company

ACCEPTED AND AGREED:


/S/ Gary Kaseff

Gary Kaseff

EX-10.4 5 c92124exv10w4.htm AMENDMENT TO EMPLOYMENT AGREEMENT FOR MICHAEL LEVITAN exv10w4

EXHIBIT 10.4

February 7, 2005

Michael Levitan
c/o Emmis Communications Corporation
40 Monument Circle, Suite 700
Indianapolis, IN 46204

Re: Amendment to Employment Agreement

Dear Mickey:

This letter shall confirm our agreement to amend your employment agreement with Emmis Operating Company dated September 9, 2002 (the “Agreement”), upon the terms and subject to the conditions set forth in this letter (the “Amendment”).

2. Effective March 1, 2005, Executive’s title shall be changed to Executive Vice President – Human Resources.

3. The Base Salary shall be increased to Two Hundred Eighty Thousand Dollars ($280,000) each Contract Year during the Term, commencing with the Contract Year beginning March 1, 2005 (“FYE 06”).

4. After payment of any Contract Year Bonus earned for the period ending February 28, 2005, Section 6.2 shall be modified to reflect the following: Commencing with FYE 06, the target amount of the Contract Year Bonus shall be increased to One Hundred Forty Thousand Dollars ($140,000) each Contract Year, Exhibit A to the Agreement shall be deleted and shall be of no further force and effect, and the third and fourth sentences of Section 6.2 shall be deleted and replaced with the following language:

“Employer may pay all or a portion of any Contract Year Bonus in Shares in the same manner utilized for other senior management level employees.”

Unless subsequently changed by the Compensation Committee, the performance goals for FYE 06 shall be:


Target Bonus			Performance Goal
1.	$	56,000	Domestic Radio Station Operating Income Target
2.	$	42,000	Other Emmis Operating Income Target
3.	$	42,000	Individual Performance (Discretionary)

Domestic Radio Station Operating Income and Other Emmis Operating Income, or any other applicable performance targets or goals, shall be defined and determined by the Compensation Committee each Contract Year. The Compensation Committee reserves the right to amend the performance goals to the Lxtent it deems appropriate in order to take into account any material acquisition, disposition, reorganization, recapitalization or other material transaction involving Employer or its properties. Executive shall earn a certain percentage of each Contract Year Bonus in accordance with the applicable bonus scale adopted by the Employer for the subject Contract Year.

5. Section 6.3 shall be deleted in its entirety and replaced with the following language:

“6.3 Equity Incentive Compensation. Each Contract Year during the Term, beginning with FYE 06, at such time as Employer generally awards equity incentive compensation to members of Employer’s senior management team, Executive shall receive Four Thousand Five Hundred (4,500) Shares (as defined below) and an option (“Option”) to acquire Fifteen Thousand (15,000) Shares. As used herein, “Shares” shall mean shares of Class A Common Stock of Emmis Communications Corporation. The grants of Options and Shares shall be pursuant to the terms and subject to the conditions of the applicable Equity Incentive Plan of Employer, the Option agreement evidencing the Option grant and the restricted stock agreement evidencing the grant of Shares. In the event of any change in the outstanding Shares by reason of any reorganization, recapitalization, reclassification, merger, stock split, reverse stock split, stock dividend, asset spinoff, share combination, consolidation, or similar event, including without limitation a Separation Event, the number and class of all Shares awarded pursuant to this Agreement or covered by an Option granted pursuant to this Agreement (and any applicable Option exercise price) shall be adjusted by the Compensation Committee in its sole discretion and in accordance with the terms of the applicable Equity Incentive Plan of Employer, the Option agreement evidencing the grant of the Option and the restricted stock agreement evidencing the grant of Shares. The determination of the Compensation Committee shall be conclusive and binding.”

6. After the delivery of any Bonus Shares earned pursuant to Section 6.4, Section 6.4 shall be deleted in its entirety and replaced with the following language:

“6.4 Completion Bonus. On or about February 29, 2008, Executive shall receive Ten Thousand (10,000) Shares (the “Completion Shares”); provided, that (i) this Agreement is in effect on February 29, 2008 and has not been terminated for any reason (other than a breach of this Agreement by Employer); and (ii) Executive has fully performed all of Executive’s duties and obligations under this Agreement throughout the Term and is not in breach of any of the material terms and conditions of this Agreement.

The Completion Shares shall be freely transferable when delivered to Executive subject to Employer’s securities trading policy and applicable federal and state law. Employer shall have the right, in its sole and absolute discretion, to pay to Executive the value of the Completion Shares (in the same manner applied to other senior management level employees) in cash in lieu of granting Executive the Completion Shares.”

7. Effective FYE 06, the dollar amount set forth in Section 6.5 shall be increased to One Thousand Dollars ($1,000).

8. Effective March 1, 2005, Section 15.9 shall be deleted and shall be of no further force and effect.

9. Section 11.4 shall be deleted in its entirety and replaced with the following language:

“11.4 Change in Control. In the event of a “Change in Control”, the rights and obligations of Executive and Employer shall be set forth in the separate Change in Control Agreement attached to this Agreement as Exhibit B. Exhibit B supersedes and replaces in its entirety the Change in Control Agreement previously executed by the parties. “Change in Control” shall have the meaning ascribed to it in Exhibit B. Notwithstanding anything to the contrary contained herein or in Exhibit B, a Change in Control shall be deemed not to have occurred if, immediately following a Separation Event (as defined below): (i) Jeffrey H. Smulyan is Chairman or Chief Executive Officer of Employer or any successor thereto, including without limitation, any entity established as a result of a Separation Event (collectively, “Successor”); or (ii) Smulyan retains the ability to vote at least fifty percent (50%) of all classes of stock of the Employer or any Successor; or (iii) Smulyan retains the ability to elect a majority of the Board of Directors of Employer or any Successor. “Separation Event” shall be defined as any event whereby Employer elects to separate or bifurcate its radio and television divisions by means of merger, corporate reorganization, sale or disposition of assets, spin off, tax-free reorganization, or otherwise.”

10. In Section 14, Gary Kaseff’s address has been changed to 3500 W. Olive Avenue, Suite 1450, Burbank, California 91505.

11. The length of time set forth in Section 15.12(a) shall be increased to twelve (12) months.

Sincerely,


/S/ Jeffrey H. Smulyan
Jeffrey H. Smulyan, Chairman and Chief Executive
Officer, Emmis Operating Company

ACCEPTED AND AGREED:


/S/ Michael Levitan

Michael Levitan

EX-10.5 6 c92124exv10w5.htm CHANGE OF CONTROL SEVERANCE AGREEMENT FOR MICHAEL LEVITAN exv10w5

EXHIBIT 10.5

EMMIS COMMUNICATIONS CORPORATION
CHANGE IN CONTROL SEVERANCE AGREEMENT

THIS AGREEMENT is entered into as of the 7th day of February, 2005 (the “Effective Date”) by and between EMMIS COMMUNICATIONS CORPORATION, an Indiana corporation (the “Company”), and MICHAEL LEVITAN (“Executive”).

W I T N E S S E T H

WHEREAS, the Company considers the establishment and maintenance of a sound and vital management to be essential to protecting and enhancing the best interests of the Company and its stockholders; and

WHEREAS, the Company recognizes that, as is the case with many publicly held corporations, the possibility of a change in control may arise and that such possibility may result in the departure or distraction of management personnel to the detriment of the Company and its stockholders; and

WHEREAS, the Compensation Committee of the “Board” (as defined in Section 1) has determined that it is in the best interests of the Company and its stockholders to secure Executive’s continued services and to ensure Executive’s continued and undivided dedication to his duties in the event of any threat or occurrence of a “Change in Control” (as defined in Section 1) of the Company; and

WHEREAS, the Compensation Committee, at a meeting held on June 25, 2003, has authorized the Company to enter into this Agreement.

NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, the Company and Executive hereby agree as follows:

1. Definitions. As used in this Agreement, the following terms shall have the respective meanings set forth below:

(a) “Affiliate” means, with respect to a specified person, a person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the person specified.

(b) “Board” means the Board of Directors of the Company.

(c) “Bonus Amount” means the greater of (i) the highest annual incentive bonus earned by Executive from the Company (or its Affiliates) during the last three (3) completed fiscal years of the Company immediately preceding Executive’s Date of Termination (annualized in the event Executive was not employed by the Company (or its Affiliates) for the whole of any such fiscal year), or (ii) if the Date of Termination occurs before Executive has been employed for a full fiscal year, and before the date Company generally pays bonuses to its Executives for the fiscal year in which

Executive’s employment commenced, the Executive’s target bonus for the fiscal year of the Company which includes the Executive’s Date of Termination.

(d) “Cause” means (i) the willful and continued failure of Executive to perform substantially his duties with the Company (other than any such failure resulting from Executive’s incapacity due to physical or mental illness or any such failure subsequent to Executive being delivered a Notice of Termination without Cause by the Company or delivering a Notice of Termination for Good Reason to the Company) after a written demand for substantial performance is delivered to Executive by the Board which specifically identifies the manner in which the Board believes that Executive has not substantially performed Executive’s duties; provided that Executive has not cured such failure or commenced such performance within 30 days after such demand is given to Executive, or (ii) the willful engaging by Executive in illegal conduct or gross misconduct which is demonstrably and materially injurious to the Company or its Affiliates. For purpose of the preceding sentence, no act or failure to act by Executive shall be considered “willful” unless done or omitted to be done by Executive in bad faith and without reasonable belief that Executive’s action or omission was in the best interests of the Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board, based upon the advice of counsel for the Company (or upon the instructions of the Company’s chief executive officer or another senior officer of the Company) shall be conclusively presumed to be done, or omitted to be done, by Executive in good faith and in the best interests of the Company. Cause shall not exist unless and until the Company has delivered to Executive a copy of a resolution duly adopted by three-quarters (3/4) of the entire Board (excluding Executive if Executive is a Board member) at a meeting of the Board called and held for such purpose (after reasonable notice to Executive and an opportunity for Executive, together with counsel, to be heard before the Board), finding that in the good faith opinion of the Board an event set forth in clauses (i) or (ii) has occurred and specifying the particulars thereof in detail. The Company must notify Executive of any event constituting Cause within ninety (90) days following the Company’s knowledge of its existence or such event shall not constitute Cause under this Agreement.

(e) “Change in Control” means any of the following: (i) any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (other than an Affiliate or any employee benefit plan (or any related trust) of the Company or an Affiliate, and other than Jeffrey H. Smulyan or an Affiliate of Mr. Smulyan) (a “Person”) becomes after the date hereof the beneficial owner of 25% or more of either the then outstanding Stock or the combined voting power of the then outstanding voting securities of the Company entitled to vote in the election of directors, except that no Change in Control shall be deemed to have occurred solely by reason of any such acquisition by a corporation with respect to which, after such acquisition, more than 60% of both the then outstanding common shares of such corporation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote in the election of directors are then beneficially owned, directly or indirectly, by the persons who were the beneficial owners of the Stock and voting securities of the Company immediately before such acquisition in substantially the same proportion as their ownership, immediately

before such acquisition, of the outstanding Stock and the combined voting power of the then outstanding voting securities of the Company entitled to vote in the election of directors; (ii) individuals who, as of the Effective Date, constitute the Board (the “Incumbent Directors”) cease for any reason to constitute at least a majority of the Board; provided that any individual who becomes a director after the Effective Date whose election, or nomination for election by the Company’s shareholders, was approved by a vote or written consent of at least two-thirds of the directors then comprising the Incumbent Directors shall be considered as though such individual were an Incumbent Director, but excluding, for this purpose, any such individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the directors of the Company (as such terms are used in Rule 14a-11 under the Exchange Act); (iii) the consummation of (A) a merger, reorganization or consolidation with respect to which the individuals and entities who were the respective beneficial owners of the Stock and voting securities of the Company immediately before such merger, reorganization or consolidation do not, after such merger, reorganization or consolidation, beneficially own, directly or indirectly, more than 60% of, respectively, the then outstanding common shares and the combined voting power of the then outstanding voting securities entitled to vote in the election of directors of the corporation resulting from such merger, reorganization or consolidation, or (B) the sale or other disposition of all or substantially all of the assets of the Company to any Person; (iv) the approval by the shareholders of the Company of a liquidation or dissolution of the Company; or (v) such other event(s) or circumstance(s) as are determined by the Board to constitute a Change in Control. Notwithstanding the foregoing provisions of this definition, a Change in Control of the Company shall be deemed not to have occurred (a) with respect to any Executive, if such Executive is, by written agreement executed prior to such Change in Control, a participant on such Executive’s own behalf in a transaction in which the persons (or their Affiliates) with whom such Executive has the written agreement Acquire the Company (as defined below) and, pursuant to the written agreement, the Executive has an equity interest in the resulting entity or a right to acquire such an equity interest, or (b) in the event the Company separates or bifurcates its radio and television divisions by means of merger, corporate reorganization, sale or disposition of assets, spin-off, tax-free reorganization, or otherwise (any such separation or bifurcation, a “Separation Event”), and, immediately thereafter, Mr. Smulyan is Chairman or Chief Executive Officer of the Company or any successor thereto, including without limitation, either division or any entity established as a result of a Separation Event ( a “Successor”), Mr. Smulyan retains the ability to vote at least fifty percent (50%) of all classes of stock of the Company or any Successor, or Mr. Smulyan retains the ability to elect a majority of the Board of Directors of the Company or any Successor.

Notwithstanding the foregoing, a Change in Control of the Company shall not be deemed to occur solely because any Person acquires beneficial ownership of more than 25% of the then outstanding Stock as a result of the acquisition of the Stock by the Company which reduces the number of shares of Stock outstanding; provided, that if after such acquisition by the Company such person becomes the beneficial owner of additional Stock that increases the percentage of outstanding Stock beneficially owned by such person, a Change in Control of the Company shall then occur.

For the purposes of this definition, “Acquire the Company” means the acquisition of beneficial ownership by purchase, merger, or otherwise, of either more than 50% of the Stock (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 Company or its successors; “person” means such term as used in Rule 13d-5 of the SEC under the Exchange Act; “beneficial owner” means such term as defined in Rule 13d-3 of the SEC under the Exchange Act; and “group” means such term as defined in Section 13(d) of the Exchange Act.

(f) “Code” means the Internal Revenue Code of 1986, as amended, and regulations and rulings thereunder. References to a particular section of the Code shall include references to successor provisions.

(g) “Date of Termination” means (1) the effective date on which Executive’s employment by the Company terminates as specified in a prior written notice by the Company or Executive, as the case may be, to the other, delivered pursuant to Section 10 or (2) if Executive’s employment by the Company terminates by reason of death, the date of death of Executive.

(h) “Disability” means termination of Executive’s employment by the Company due to Executive’s absence from Executive’s duties with the Company on a full-time basis for at least one hundred eighty (180) consecutive days as a result of Executive’s incapacity due to physical or mental illness.

(i) “Exchange Act” means the Securities Exchange Act of 1934, as amended. References to a particular section of, or rule under, the Exchange Act shall include references to successor provisions.

(j) “Good Reason” means, without Executive’s express written consent, the occurrence of any of the following events after a Change in Control:

(i) any (A) change in the duties or responsibilities (including reporting responsibilities) of Executive that is inconsistent in any material and adverse respect with Executive’s position(s), duties, responsibilities or status with the Company immediately prior to such Change in Control (including any material and adverse diminution of such duties or responsibilities); provided, however, that Good Reason shall not be deemed to occur upon a change in duties or responsibilities (other than reporting responsibilities) that is solely and directly a result of the Company no longer being a publicly traded entity and does not involve any other event set forth in this paragraph (j) or (B) material and adverse change in Executive’s titles or offices (including, if applicable, membership on the Board) with the Company as in effect immediately prior to such Change in Control;

(ii) a material breach by the Company or an Affiliate of the Company of an employment agreement to which the Executive and the Company or an Affiliate of the Company are parties;

(iii) a reduction by the Company in Executive’s rate of annual base salary or annual target bonus opportunity as in effect immediately prior to such Change in Control or as the same may be increased from time to time thereafter;

(iv) any requirement of the Company that Executive (A) be based anywhere more than thirty-five (35) miles from the office where Executive is located at the time of the Change in Control, if such relocation increases Executive’s commute by more than twenty (20) miles, or (B) travel on Company business to an extent substantially greater than the travel obligations of Executive immediately prior to such Change in Control;

(v) the failure of the Company to (A) continue in effect any material employee benefit plan, compensation plan, welfare benefit plan or fringe benefit plan in which Executive is participating immediately prior to such Change in Control or the taking of any action by the Company which would adversely affect Executive’s participation in or reduce Executive’s benefits under any such plan, unless Executive is permitted to participate in other plans providing Executive with substantially equivalent benefits in the aggregate (at substantially equivalent cost with respect to welfare benefit plans), or (B) provide Executive with paid vacation in accordance with the most favorable vacation policies of the Company and its Affiliates as in effect for Executive immediately prior to such Change in Control, including the crediting of all service for which Executive had been credited under such vacation policies prior to the Change in Control;

(vi) any refusal by the Company to continue to permit Executive to engage in activities not directly related to the business of the Company in which Executive was permitted to engage prior to the Change in Control;

(vii) any purported termination of Executive’s employment which is not effectuated pursuant to Section 10(b) (and which will not constitute a termination hereunder); or

(viii) the failure of the Company to obtain the assumption and, if applicable, guarantee, agreement from any successor (and parent corporation) as contemplated in Section 9(b).

Notwithstanding anything herein to the contrary, termination of employment by Executive for any reason during the 30-day period commencing one (1) year after the date of a Change in Control shall constitute a termination for Good Reason. An isolated, insubstantial and inadvertent action taken in good faith and which is remedied by the Company within ten (10) days after receipt of notice thereof given by Executive shall not constitute Good Reason. Executive’s right to terminate employment for Good Reason shall not be affected by Executive’s incapacity due to mental or physical illness and Executive’s continued employment shall not constitute consent to, or a waiver of rights

with respect to, any event or condition constituting Good Reason; provided, however, that Executive must provide notice of termination of employment within ninety (90) days following Executive’s knowledge of an event constituting Good Reason or such event shall not constitute a termination for Good Reason under this Agreement.

(k) “Qualifying Termination” means a termination of Executive’s employment (i) by the Company other than for Cause or (ii) by Executive for Good Reason. Termination of Executive’s employment on account of death, Disability or Retirement shall not be treated as a Qualifying Termination.

(l) “Retirement” means Executive’s retirement (not including any mandatory early retirement) in accordance with the Company’s retirement policy generally applicable to its salaried employees, as in effect immediately prior to the Change in Control, or in accordance with any retirement arrangement established with respect to Executive with Executive’s written consent; provided, however, that under no circumstances shall a resignation with Good Reason be deemed a Retirement.

(m) “SEC” means the Securities and Exchange Commission.

(n) “Stock” means the Class A Common Stock and the Class B Common Stock of the Company, par value $.01 per share.

(o) “Termination Period” means the period of time beginning with a Change in Control and ending two (2) years following such Change in Control. Notwithstanding anything in this Agreement to the contrary, if (i) Executive’s employment is terminated prior to a Change in Control for reasons that would have constituted a Qualifying Termination if they had occurred following a Change in Control; (ii) Executive reasonably demonstrates that such termination (or Good Reason event) was at the request of a Person who had indicated an intention or taken steps reasonably calculated to effect a Change in Control, or was otherwise made in connection with a Change in Control; and (iii) a Change in Control involving such third party or an Affiliate of such third party (or a party competing with such third party to effectuate a Change in Control) does occur, then for purposes of this Agreement, the date immediately prior to the date of such termination of employment or event constituting Good Reason shall be treated as a Change in Control. For purposes of determining the timing of payments and benefits to Executive under Section 4, the date of the actual Change in Control shall be treated as Executive’s Date of Termination under Section l(g).

2. Obligation of Executive. In the event of a tender or exchange offer, proxy contest, or the execution of any agreement which, if consummated, would constitute a Change in Control, Executive agrees not to voluntarily leave the employ of the Company, other than as a result of Disability, Retirement or an event which would constitute Good Reason if a Change in Control had occurred, until the Change in Control occurs or, if earlier, such tender or exchange offer, proxy contest, or agreement is terminated or abandoned.

3. Term of Agreement. This Agreement shall be effective on the date hereof and shall continue in effect until the Company shall have given three (3) years’ written notice of cancellation; provided, that, notwithstanding the delivery of any such notice, this Agreement shall continue in effect for a period of two (2) years after a Change in Control, if such Change in Control shall have occurred during the term of this Agreement. Notwithstanding anything in this Section to the contrary, this Agreement shall terminate if Executive or the Company terminates Executive’s employment prior to a Change in Control except as provided in the second sentence of Section 1(o).

4. Payments Upon Termination of Employment.

(a) Qualifying Termination - Severance. If during the Termination Period the employment of Executive shall terminate pursuant to a Qualifying Termination, then the Company shall provide to Executive:

(i) within ten (10) days following the Date of Termination a lump-sum cash amount equal to the sum of (A) Executive’s base salary through the Date of Termination and any bonus amounts which have become payable, to the extent not theretofore paid or deferred, (B) a pro rata portion of Executive’s annual bonus for the fiscal year in which Executive’s Date of Termination occurs in an amount at least equal to (1) Executive’s target bonus for such fiscal year, multiplied by (2) a fraction, the numerator of which is the number of days in the fiscal year in which the Date of Termination occurs through the Date of Termination and the denominator of which is three hundred sixty-five (365), and (C) any accrued vacation pay, in each case to the extent not theretofore paid; plus

(ii) within ten (10) days following the Date of Termination, a lump-sum cash amount equal to (i) three (3) times Executive’s highest annual rate of base salary during the 36-month period immediately prior to Executive’s Date of Termination plus (ii) three (3) times Executive’s Bonus Amount.

(b) Qualifying Termination - Benefits. If during the Termination Period the employment of Executive shall terminate pursuant to a Qualifying Termination, the Company shall continue to provide, for a period of three (3) years following Executive’s Date of Termination, Executive (and Executive’s dependents, if applicable) with the same level of medical, dental, accident, disability and life insurance benefits upon substantially the same terms and conditions (including contributions required by Executive for such benefits) as existed immediately prior to Executive’s Date of Termination (or, if more favorable to Executive, as such benefits and terms and conditions existed immediately prior to the Change in Control); provided, that, if Executive cannot continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted. Notwithstanding the foregoing, in the event Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described herein shall be

secondary to such benefits during the period of Executive’s eligibility, but only to the extent that the Company reimburses Executive for any increased cost and provides any additional benefits necessary to give Executive the benefits provided hereunder. For two years following the Executive’s Date of Termination (or such shorter period ending upon the subsequent employment of Executive at a level of service commensurate with Executive’s positions with the Company on the Date of Termination), Executive shall be provided with outplacement services from a provider selected by the Company and at the Company’s expense. In addition, the Company may make such additional payments, and provide such additional benefits, to Executive as the Company and Executive may agree in writing, or to which the Executive may be entitled under the compensation and benefit plans, policies, and arrangements of the Company.

(c) Nonqualifying Termination. If during the Termination Period the employment of Executive shall terminate other than by reason of a Qualifying Termination, then the Company shall pay to Executive within thirty (30) days following the Date of Termination, a lump-sum cash amount equal to the sum of Executive’s base salary through the Date of Termination and any bonus amounts which have become payable, to the extent not theretofore paid or deferred, and any accrued vacation pay, to the extent not theretofore paid. The Company may make such additional payments, and provide such additional benefits, to Executive as the Company and Executive may agree in writing, and the Company shall provide the Executive with those payments and benefits to which Executive may be entitled under the compensation and benefit plans, policies, and arrangements of the Company, or any employment agreement with the Company or an Affiliate of the Company.

(d) Stock Options. In the event of a Change in Control, all options to purchase Company stock held by Executive (“Options”) which are not fully vested and exercisable shall become fully vested and exercisable as of a time established by the Board, which shall be no later than a time preceding the Change in Control which allows Executive to exercise the Options and cause the stock acquired thereby to participate in the Change in Control transaction. If the Change in Control transaction is structured such that stock participating therein at one time is or may be treated differently than stock participating therein at a different time (e.g., a tender offer followed by a squeeze-out merger), the Board shall interpret this paragraph (d) to provide for the required vesting acceleration in a manner designed to allow Executive to exercise the Options and cause the stock acquired thereby to participate in the earliest portion of the Change in Control transaction. If the consummation of a Change in Control transaction is uncertain (e.g., a tender offer in which the tender of a minimum number of shares is a condition to closing, or a voted merger or proxy contest in which a minimum number of votes is a condition to closing), the Board shall apply this paragraph (d) by using its best efforts to determine if and when the Change in Control transaction is likely to close, and proceeding accordingly. To the extent necessary to implement this Section 4(d), each stock option agreement reflecting the Options, and each stock option plan relating to each such stock option agreement, if any, shall be deemed amended.

5. Certain Additional Payments by the Company.

(a) If it is determined (as hereafter provided) that any payment or distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest and penalties, are hereafter collectively referred to as the “Excise Tax”), then Executive will be entitled to receive an additional payment or payments (a “Gross-Up Payment”) in an amount such that, after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.

(b) Subject to the provisions of Section 5(f) hereof, all determinations required to be made under this Section 5, including whether an Excise Tax is payable by Executive and the amount of such Excise Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, will be made by a nationally recognized firm of certified public accountants (the “Accounting Firm”) selected by Executive in his sole discretion. Executive will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Company and Executive within 15 calendar days after the date of Executive’s termination of employment, if applicable, and any other such time or times as may be requested by the Company or Executive. If the Accounting Firm determines that any Excise Tax is payable by Executive, the Company will pay the required Gross-Up Payment to Executive within five business days after receipt of such determination and calculations. If the Accounting Firm determines that no Excise Tax is payable by Executive, it will, at the same time as it makes such determination, furnish Executive with an opinion that he has substantial authority not to report any Excise Tax on his federal, state, local income or other tax return. Subject to the provisions of this Section 5, any determination by the Accounting Firm as to the amount of the Gross-Up Payment will be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding applicable state or local tax law at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”), consistent with the calculations required to be made hereunder. In the event that an Underpayment is made and the Company exhausts or fails to pursue its remedies pursuant to Section 5(f) hereof and Executive thereafter is required to make a payment of any Excise Tax, Executive will direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Company and Executive as promptly as possible. Any such Underpayment will be promptly paid by the Company to, or for the benefit of, Executive within five business days after receipt of such determination and calculations.

(c) The Company and Executive will each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by Section 5(b) hereof.

(d) The federal, state and local income or other tax returns filed by Executive will be prepared and filed on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by Executive. Executive will make proper payment of the amount of any Excise Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of his federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and such other documents reasonably requested by the Company, evidencing such payment. If prior to the filing of Executive’s federal income tax return, or corresponding state or local tax return, if relevant, the Accounting Firm determines that the amount of the Gross-Up Payment should be reduced, Executive will within five business days pay to the Company the amount of such reduction.

(e) The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by Sections 5(b) and (d) hereof will be borne by the Company. If such fees and expenses are initially advanced by Executive, the Company will reimburse Executive the full amount of such fees and expenses within five business days after receipt from Executive of a statement therefor and reasonable evidence of his payment thereof.

(f) Executive will notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification will be given as promptly as practicable but no later than 10 business days after Executive actually receives notice of such claim and Executive will further apprise the Company of the nature of such claim and the date on which such claim is requested to be paid (in each case, to the extent known by Executive). Executive will not pay such claim prior to the earlier of (i) the expiration of the 30-calendar-day period following the date on which he gives such notice to the Company and (ii) the date that any payment of amount with respect to such claim is due. If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive will:

(i) provide the Company with any written records or documents in his possession relating to such claim reasonably requested by the Company;

(ii) take such action in connection with contesting such claim as the Company will reasonably request in writing from time to time, including without limitation accepting legal representation with respect to such claim by an attorney competent in respect of the subject matter and reasonably selected by the Company;

(iii) cooperate with the Company in good faith in order effectively to contest such claim; and

(iv) permit the Company to participate in any proceedings relating to such claim;

provided, however, that the Company will bear and pay directly all costs and expenses (including interest and penalties) incurred in connection with such contest and will indemnify and hold harmless Executive, on an after-tax basis, for and against any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limiting the foregoing provisions of this Section 5(f), the Company will control all proceedings taken in connection with the contest of any claim contemplated by this Section 5(f) and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim (provided that Executive may participate therein at his own cost and expense) and may, at its option, either direct Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company will determine; provided, however, that if the Company directs Executive to pay the tax claimed and sue for a refund, the Company will advance the amount of such payment to Executive on an interest-free basis and will indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance; and provided further, however, that any extension of the statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which the contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of any such contested claim will be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive will be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.

(g) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 5(f) hereof, Executive receives any refund with respect to such claim, Executive will (subject to the Company’s complying with the requirements of Section 5(f) hereof) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after any taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 5(f) hereof, a determination is made that Executive will not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial or refund prior to the expiration of 30 calendar days after such determination, then such advance will be forgiven and will not be required to be repaid and the amount of such advance will offset, to the extent thereof, the amount of Gross-Up Payment required to be paid pursuant to this Section 5.

6. Withholding Taxes. The Company may withhold from all payments due to Executive (or his beneficiary or estate) hereunder all taxes which, by

applicable federal, state, local or other law, the Company is required to withhold therefrom. In the case of the withholding of an Excise Tax, such withholding shall be consistent with any determination made under Section 5.

7. Reimbursement of Expenses. If any contest or dispute shall arise under this Agreement involving termination of Executive’s employment with the Company or involving the failure or refusal of the Company to perform fully in accordance with the terms hereof, the Company shall reimburse Executive, on a current basis, for all reasonable legal fees and expenses, if any, incurred by Executive in connection with such contest or dispute (regardless of the result thereof); provided, however, Executive shall be required to repay any such amounts to the Company to the extent that a court or an arbitration panel issues a final order from which no appeal can be taken, or with respect to which the time period to appeal has expired, setting forth that Executive has not wholly or partially prevailed on at least one material issue in dispute.

8. Scope of Agreement. Nothing in this Agreement shall be deemed to entitle Executive to continued employment with the Company or its Subsidiaries, and if Executive’s employment with the Company shall terminate prior to a Change in Control, Executive shall have no further rights under this Agreement (except as otherwise provided hereunder); provided, however, that any termination of Executive’s employment during the Termination Period shall be subject to all of the provisions of this Agreement.

9. Successors; Binding Agreement.

(a) This Agreement shall not be terminated by any Change in Control or other merger, consolidation, statutory share exchange, sale of substantially all the assets or similar form of corporate transaction involving the Company (a “Business Combination”). In the event of any Business Combination, the provisions of this Agreement shall be binding upon the surviving corporation, and such surviving corporation shall be treated as the Company hereunder.

(b) The Company agrees that in connection with any Business Combination, it will cause any successor entity to the Company unconditionally to assume (and for any parent corporation in such Business Combination to guarantee), by written instrument delivered to Executive (or his beneficiary or estate), all of the obligations of the Company hereunder. Failure of the Company to obtain such assumption and guarantee prior to the effectiveness of any such Business Combination that constitutes a Change in Control, shall be a breach of this Agreement and shall constitute Good Reason hereunder and shall entitle Executive to compensation and other benefits from the Company in the same amount and on the same terms as Executive would be entitled hereunder if Executive’s employment were terminated following a Change in Control by reason of a Qualifying Termination. For purposes of implementing the foregoing, the date on which any such Business Combination becomes effective shall be deemed the date Good Reason occurs, and shall be the Date of Termination if requested by Executive.

(c) This Agreement shall inure to the benefit of and be enforceable by Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If Executive shall die while any amounts would be payable to Executive hereunder had Executive continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to such person or persons appointed in writing by Executive to receive such amounts or, if no person is so appointed, to Executive’s estate.

10. Notice. (a) For purposes of this Agreement, all notices and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given when actually received or, if mailed, three days after mailing by registered or certified mail, return receipt requested, or one business day after mailing by a nationally recognized express mail delivery service with instructions for next-day delivery, addressed as follows:

If to the Executive, to the Executive’s principal residence as reflected in the records of the Company.


		If to the Company:

		Emmis Communications Corporation
		40 Monument Circle
		Suite 700
		Indianapolis, Indiana 46204
		Attn.: General Counsel

or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.

(b) A written notice of Executive’s Date of Termination by the Company or Executive, as the case may be, to the other, shall (i) indicate the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated and (iii) specify the termination date (which date shall be not less than fifteen (15) (thirty (30), if termination is by the Company for Disability) nor more than sixty (60) days after the giving of such notice). The failure by Executive or the Company to set forth in such notice any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of Executive or the Company hereunder or preclude Executive or the Company from asserting such fact or circumstance in enforcing Executive’s or the Company’s rights hereunder.

11. Full Settlement; Resolution of Disputes. The Company’s obligation to make any payments and provide any benefits pursuant to this Agreement and otherwise to perform its obligations hereunder shall be in lieu and in full settlement

of all other severance payments to Executive under any other severance or employment agreement between Executive and the Company, and any severance plan of the Company; provided, however, that if any such other agreement or plan would provide Executive with a greater payment or more or longer benefits in respect of any particular item described hereunder (e.g., severance, welfare benefits), then Executive shall receive such particular item of payment and/or benefit pursuant to such other agreement or plan, in lieu of receiving that particular item pursuant to this Agreement.The Company’s obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may have against Executive or others. In no event shall Executive be obligated to seek other employment or take other action by way of mitigation of the amounts payable and benefits provided to Executive under any of the provisions of this Agreement and, except as provided in Section 4(b), such amounts shall not be reduced whether or not Executive obtains other employment. The parties agree that any controversy or claim of either party hereto arising out of or in any way relating to this Agreement, or breach thereof, shall be settled by final and binding arbitration in Indianapolis, Indiana by three arbitrators in accordance with the applicable rules of the American Arbitration Association, and that judgment upon any award rendered may be entered by the prevailing party in any court having jurisdiction thereof. The Company shall bear all costs and expenses arising in connection with any arbitration proceeding pursuant to this Section.

12. Employment by Subsidiaries. Employment by the Company for purposes of this Agreement shall include employment by any Affiliate.

13. Survival. The respective obligations and benefits afforded to the Company and Executive as provided in Sections 4 (to the extent that payments or benefits are owed as a result of a termination of employment that occurs during the term of this Agreement), 5 (to the extent that Payments are made to Executive as a result of a Change in Control that occurs during the term of this Agreement), 6, 7, 9(c) and 11 shall survive the termination of this Agreement.

14. GOVERNING LAW; VALIDITY. THE INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF INDIANA WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF, OF SUCH PRINCIPLES OF ANY OTHER JURISDICTION WHICH COULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF INDIANA. THE INVALIDITY OR UNENFORCEABILITY OF ANY PROVISION OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY OTHER PROVISION OF THIS AGREEMENT, WHICH OTHER PROVISIONS SHALL REMAIN IN FULL FORCE AND EFFECT.

15. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.

16. Miscellaneous. No provision of this Agreement may be modified or waived unless such modification or waiver is agreed to in writing and signed by Executive and by a duly authorized officer of the Company. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. Failure by Executive or the Company to insist upon strict compliance with any provision of this Agreement or to assert any right Executive or the Company may have hereunder, including, without limitation, the right of Executive to terminate employment for Good Reason, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement. Except as otherwise specifically provided herein, the rights of, and benefits payable to, Executive, his estate or his beneficiaries pursuant to this Agreement are in addition to any rights of, or benefits payable to, Executive, his estate or his beneficiaries under any other employee benefit plan or compensation program of the Company.

IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by a duly authorized officer of the Company and Executive has executed this Agreement as of the day and year first above written.


		EMMIS COMMUNICATIONS CORPORATION

		By:		/S/ Jeffrey H. Smulyan

		Title: Chairman and CEO

		MICHAEL LEVITAN

		/S/ Michael Levitan


		Date: February 7, 2005

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