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EXHIBIT 10.3
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 XXXXXXX X. XXXXXXXX, a California 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, Executive is presently employed by Employer pursuant to an
oral agreement entered into upon the expiration of Executive's prior employment
agreement on February 28, 1998;
WHEREAS, Employer desires to continue to employ Executive as an
executive pursuant to a written agreement, and Executive desires to be so
employed; and
WHEREAS, Employer and Executive agree to memorialize the terms of their
relationship herein.
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. This Agreement supersedes the March 1, 1995
Employment Agreement and any subsequent oral understandings, representations or
agreements between the parties.
2. TERM. The term of Executive's employment hereunder (the "Term")
shall commence on March 1, 1999 and continue until February 28, 2001, 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.
3. EXECUTIVE'S POSITION, DUTIES, AND AUTHORITY.
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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-Programming of Employer or in such other position or
positions to which the Board of Directors of Employer (the "Board")
shall, with Executive's consent, appoint Executive; provided, however,
that in the case of any merger involving Employer, acquisition of
substantially all of the assets or outstanding stock of Employer or any
substantial and material change in the business of Employer, the Board
may change Executive's title or duties without Executive's consent so
long as Executive's duties are not substantially diminished in
importance.
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. Subject to
any change pursuant to Section 3.1, Executive's duties, functions,
authority and responsibilities hereunder shall be substantially the
same as or greater than the duties, functions, authority and
responsibilities held by Executive immediately prior to the date
hereof.
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.
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5. LOCATION OF EMPLOYMENT. Unless Executive consents otherwise in
writing, the headquarters for performance of his services hereunder shall be the
offices designated by Employer in or near Los Angeles, California, and Executive
shall not be required to relocate his office outside the metropolitan area of
Los Angeles, California, 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 Four Hundred Thirty Three Thousand Dollars
($433,000.00), payable in bi-weekly installments.
6.2 CAR ALLOWANCE. During the Term, Executive shall receive a car
allowance paid monthly in the same amount as received by Executive in
the month immediately prior to the effective date of this Agreement.
7. ADDITIONAL COMPENSATION.
7.1 SIGNING BONUS. Executive is entitled to a cash signing
bonus (the "Signing Bonus") in the amount of Three Hundred Thousand
Dollars ($300,000.00), payable in two (2) equal installments prior to
the execution of this Agreement. By signing below, Executive
acknowledges and confirms receipt of both installments of the Signing
Bonus.
7.2 CASH INCENTIVE COMPENSATION. Employer shall establish a
Target Bonus Plan ("TBP") pursuant to which it shall pay an annual cash
bonus to Executive with respect to a particular Contract Year if
Executive's performance justifies such a bonus. Executive shall be
entitled to receive an annual cash bonus up to a maximum of One Hundred
Fifty Thousand Dollars ($150,000.00) each Contract Year (the "Bonus")
in an amount to be determined by the Compensation Committee of the
Board of Directors (the "Compensation Committee") based on Executive's
performance during the Contract Year compared to performance criteria
established by the Compensation Committee from time to time. Employer
shall have the right to modify the TBP from time to time.
7.3 EQUITY-BASED INCENTIVE COMPENSATION.
(a) Executive has been granted options (the "Executive
Options") to acquire one hundred fifty thousand (150,000) shares of
Class A Common Stock of Employer at an exercise price per share equal
to $40.00 (subject to adjustment for stock splits and stock dividends)
pursuant to Employer's 1997 Equity Incentive Plan (the "Plan").
Executive Options for 25,000 shares were forfeited on February 28,
1999, for failure to meet relevant Broadcast Cash Flow targets.
(b) The Executive Options shall be subject to further
forfeiture as follows (and shall not be exercisable until all risk of
forfeiture has expired):
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(1) Executive Options for 50,000 shares shall be
forfeited on each of February 29, 2000 and February
28, 2001, in each case if as of such date Executive
is not still an employee of Employer on such date or
has not performed under this Agreement.
(2) Executive Options for an additional 10,000 shares
shall be forfeited on each of February 29, 2000 and
February 28, 2001, in each case if as of such date
the Broadcast Cash Flow (as defined by Employer for
purposes of its financial reports under the
Securities Exchange Act of 1934, as amended) for
Employer's radio station properties, excluding any
radio station properties licensed outside the United
States, for the Contract Year concluding on such date
(the "Actual Annual Domestic Radio BCF") is not at
least 10.0% greater than the budgeted target
determined in advance by the Compensation Committee
(the "Annual Target BCF").
(3) Executive Options for an additional 7,500 shares
shall be forfeited on each of February 29, 2000 and
February 28, 2001, in each case if as of such date
the Actual Annual Domestic Radio BCF is not at least
5.0% greater than the Annual Target BCF.
(4) Executive Options for an additional 7,500 shares
shall be forfeited on each of February 29, 2000 and
February 28, 2001, in each case if as of such date
the Actual Annual Domestic Radio BCF is not at least
2.5% greater than the Annual Target BCF.
(c) The Annual Target BCF for the Contract Year ending
February 28, 2000 is $82,540,000. The Compensation Committee shall set
the Annual Target BCF for the following Contract Year prior to the
commencement of such Contract Year after consulting with Executive and
reviewing Employer's annual budgets for the Radio Division prepared for
such Contract Year.
(d) Each Executive Option (i) shall become first exercisable
on the thirtieth (30th) day following (A) the date of Executive's death
during the term of this Agreement or (B) May 30, 2001, if Executive has
either completed the entire two-year term of this Agreement and is
still an employee of Employer on February 28, 2001, or has become
disabled within the meaning of Section 14.2; (ii) shall have a term of
five (5) years following the date it becomes first exercisable (except
as otherwise provided in the Plan, including without limitation the
provisions of Section 18(b) thereof); (iii) shall not be exercisable if
Executive has not (A) completed the entire two-year term of this
Agreement and is not an employee of Employer on February 28, 2001, (B)
died during the term of
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this Agreement, or (C) become disabled within the meaning of Section
14.2; (iv) shall permit, at the election of Executive, payment of the
exercise price in any one or combination of (A) cash or (B) Class A
Common Stock of Employer owned by Executive valued on the business day
preceding the date of exercise at its Fair Market Value (as defined in
the Plan); (v) shall be evidenced by a written grant agreement executed
on behalf of Employer on the date of grant; and (vi) shall be
exercisable for Class A Common Stock, without restrictive legends on
the certificates therefor other than those appearing on the Class A
Common Stock generally.
7.4 PERFORMANCE-BASED COMPENSATION. It is the intent of
Employer and Executive that all compensation paid pursuant to Sections
7.2 and 7.3 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
Sections 7.2 and 7.3 will be construed to permit the compensation paid
thereunder to so qualify.
7.5 STOCK GRANT. If Executive completes the entire two-year
Term and is still an employee of Employer on February 28, 2001, or if
Executive dies during the Term, Executive will be entitled to a grant
of Fifteen Thousand Four Hundred (15,400) shares of Class A Common
Stock of Employer (the "Stock Grant"). Employer, at its option, may pay
the Stock Grant in Common Stock or in cash. If the Stock Grant is paid
in cash, such cash payment shall be an amount equal to the Fair Market
Value of the Stock Grant 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 of
this Agreement 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.
9. VACATION AND OTHER BENEFITS. Executive shall entitled to
twenty-five (25) business days of paid vacation per Contract Year (accruing at
the rate of 2-1/2 days per month for purposes of calculating payments on
termination of employment) which days shall not be cumulative. During the term
of this Agreement, 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
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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.
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 of
this Agreement and for a period of one (1) year from the termination of
this Agreement, by expiration or otherwise (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
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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.
12. NON-INTERFERENCE AND NON-COMPETITION.
12.1 NON-INTERFERENCE. During the term of this Agreement 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 of this Agreement
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 of
this Agreement, 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 the radio broadcasting business in any
ADI radio 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. 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 the radio broadcasting business in any ADI
radio 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. 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 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.
12.6 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 FOR CAUSE.
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13.1 TERMINATION. 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.
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 to Executive, and in the event
Employer has provided Executive with a notice and opportunity to cure
pursuant to this clause, 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
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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.
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."
14.2 DISABILITY DEFINITION. Executive shall be deemed to have
become "Disabled" for purposes of this Agreement if, during the term of
this Agreement, 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 of this Agreement,
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: (i) Employer shall pay to Executive in bi-weekly
payments during each Contract
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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) notwithstanding anything to the
contrary contained in Section 7, Executive shall be entitled to retain,
for the Contract Year in which the Disability Termination Date occurs,
fifty percent (50%) of the Executive Options Executive would have
otherwise been entitled to retain, after application of the forfeitures
described in Sections 7.3(b)(1) through (4), had Executive been
employed by Employer on the last day of the Contract Year in which the
Disability Termination Date occurs. Executive Options for 50,000 shares
shall be forfeited for the Contract Year subsequent to the Contract
Year in which the Disability Termination Date occurs. 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.
14.7 REINSTATEMENT. If during the original term of this Agreement
and subsequent to a Disability Termination Date, Executive shall fully
recover from a disability, Employer shall have the 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 of this Agreement.
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 Section 7.3 and any restricted
stock bonus awards or Executive Options granted thereunder.
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, not
later than two (2) weeks after Executive's date of death:
(i) 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
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compensation equivalent of all unused vacation days earned in the then
current Contract Year prior to the termination date; and
(ii) Pay to Executive's estate or designated beneficiary
the Stock Grant to the extent required under Section 7.5.
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.
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. NO MITIGATION REQUIRED. Executive shall not berequired to mitigate
any damages suffered by him by reason of Employer's breach hereof. 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.
17. 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.
18. GENERAL.
18.1 GOVERNING LAW. Employer and Executive acknowledge that
Employer is based in Indiana and that Executive, while maintaining an
office in California at Executive's request, travels 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
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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 17
of this Agreement. Each of the agreements in this Section 18.1 is
irrevocable to the fullest extent permitted by applicable law.
18.2 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.
18.3 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.
18.4 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 18.6 one or
more beneficiaries to receive any amounts that would otherwise be
payable hereunder to Executive's estate.
18.5 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.
18.6 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).
18.7 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:
-----------------------------
Xxxxxxx X. Xxxxxxx
Chairman of the Board and
Chief Executive Officer
"Employer"
-----------------------------
Xxxxxxx X. Xxxxxxxx
"Executive"
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