This EMPLOYMENT
AGREEMENT (“Agreement”) is effective as of
March 1, 2009 (the “Effective Date”), by and
between EMMIS OPERATING COMPANY , an Indiana company
(“Employer”), and J. SCOTT ENRIGHT , an Indiana
resident (“Executive”).
WHEREAS, Employer
and its affiliates are engaged in the ownership and operation of
certain radio, magazine and related operations (together, the
“Emmis Group”); and
WHEREAS, Employer
desires to employ Executive and Executive desires to be so
employed.
NOW, THEREFORE, in
consideration of the foregoing, the mutual promises and covenants
set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, hereby
agree as follows:
1.
Employment Status and Duties . Upon the terms and subject to
the conditions set forth in this Agreement, Employer hereby employs
Executive, and Executive hereby accepts exclusive employment with
Employer. During the Term (as defined below), Executive shall serve
as Executive Vice President, General Counsel and Secretary.
Executive shall have such duties, functions, authority and
responsibilities as are commensurate with the position.
Executive’s services hereunder shall be performed on an
exclusive, full-time basis in a professional, diligent and
competent manner to the best of Executive’s abilities.
Executive shall not undertake any outside employment or business
activities without the prior written consent of Employer. Employer
consents to Executive’s continued involvement with the Milton
and Rose D. Friedman Foundation, Inc., so long as such involvement
does not interfere with Executive’s duties and obligations
under this Agreement. Executive shall be permitted to serve on the
board of other charitable or civic organizations so long as such
services: (i) are approved in writing in advance by Employer;
and (ii) do not interfere with Executive’s duties and
obligations under this Agreement. It is understood and agreed that
the location for the performance of Executive’s duties and
services pursuant to this Agreement shall be the offices designated
by Employer in Indianapolis, Indiana. If Executive is elected as a
member of the Board of Directors of Emmis Communications
Corporation (“ECC”), he shall serve in such position
without additional remuneration (unless Employer elects to
remunerate “inside directors”) but shall be entitled to
the benefit of indemnification pursuant to the terms of
Section 17.10 . Executive shall also serve without
additional remuneration as a director and/or officer of one
(1) or more of Employer’s subsidiaries or affiliates if
appointed to such position(s) by Employer and shall also be
entitled to the benefit of indemnification pursuant to the terms of
Section 17.10 .
2.
Term . The term of this Agreement shall commence on the
Effective Date and continue through and including February 29,
2012, unless earlier terminated in accordance with the provisions
set forth in this Agreement (the “Term”). For purposes
of this Agreement, the term “First Contract Year” shall
be defined to mean the twelve (12) month period commencing on
the Effective Date; the term “Second Contract Year”
shall be defined to mean the twelve (12) month period
commencing on the first anniversary of the Effective Date; the term
“Third Contract Year” shall be defined to mean the
twelve (12) month period commencing on the second anniversary
of the Effective Date (each, a “Contract
Year”).
3. Base
Salary; Auto Allowance . Upon the terms and subject to the
conditions set forth in this Agreement, Employer shall pay or cause
to be paid to Executive an annualized base salary (the “Base
Salary”), payable pursuant to Employer’s customary
payroll practices and subject to applicable taxes and withholdings
as required by law, for each Contract Year, as set forth
below:
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$
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325,000
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$
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350,000
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$
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375,000
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Executive
agrees to accept a 5% reduction to the Base Salary for the First
Contract Year; provided any other payments to be made to Executive
that are calculated using Base Salary (e.g., bonus calculations,
termination of employment payments, CIC Agreement (as defined
below) payments) shall be calculated without regard to such 5%
reduction. For purposes of clarity only, after applying the 5%
reduction, Executive shall be paid a Base Salary of $308,750 for
the First Contract Year.
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Except as
otherwise set forth herein, Employer shall have no obligation to
pay Executive the Base Salary for any periods during which
Executive fails or refuses to render services pursuant to this
Agreement (except that Executive shall not be considered to have
failed or refused to render services during any periods of
Executive’s incapacity or absence from work due to sickness
or other approved leave of absence in accordance with the
Company’s policies, subject to Employer’s right to
terminate Executive’s employment pursuant to
Section 11 ) or for any period following the expiration
or termination of this Agreement. In addition, it is understood and
agreed that Employer may, at its sole election, pay up to ten
percent (10%) of Executive’s Base Salary in Shares (as
defined below); provided that: (i) the Shares are registered
with the U.S. Securities and Exchange Commission (the
“SEC”) on a then-effective Form S-8 or other applicable
registration statement and are issued without restriction on resale
(and further provided that the Shares are listed on a securities
exchange or over-the-counter market, which does not include listing
on the “pink sheets,” at the time of issuance), subject
to any restrictions on resale under Employer’s insider
trading policy or applicable federal and state law; and
(ii) the percentage of Executive’s Base Salary payable
in Shares shall be consistent with, and the exact number of Shares
to be awarded to Executive shall be
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determined in
the same manner as, that utilized for the Key Executive Group. The
term “Key Executive Group” refers to the
Company’s Chief Operating Officer and Chief Financial
Officer, President — Publishing Division, and President
— International (or, if any of those positions are no longer
comparable to Executive’s position, any other positions
mutually agreed upon by the parties).
During the Term,
Executive shall receive a monthly auto allowance in the amount of
One Thousand Dollars ($1,000) (subject to withholding and
applicable taxes as required by law) consistent with
Employer’s policy or practices regarding such allowances, as
such policy or practices may be amended from time to time during
the Term in Employer’s sole and absolute discretion;
provided , however , that in no event shall the auto
allowance amount paid to Executive pursuant to this provision be
reduced.
4.
Incentive Compensation .
4.1 Option
Grant . Immediately upon approval of this Agreement by the
Compensation Committee, Executive shall be granted an option (the
“Option”) to acquire One Hundred Fifty Thousand
(150,000) shares of Class A Common Stock of ECC
(“Shares”), which shall vest on February 29, 2012,
subject to the terms of this Section 4.1 . Executive
acknowledges and agrees that an option to acquire Thirty Thousand
(30,000) Shares was awarded on March 2, 2009 and such Shares
shall be credited against the Option to acquire One Hundred Fifty
Thousand (150,000) Shares set forth in the preceding sentence. The
Option granted pursuant to this Section 4.1 shall:
(i) have an exercise price per share equal to the Fair Market
Value (“FMV”) of the stock on the date of grant (as FMV
is defined in the applicable Equity Compensation Plan, or any
subsequent equity compensation or similar plan adopted by ECC and
generally used to make equity-based awards to management-level
employees of the Emmis Group (the “Plan”));
(ii) notwithstanding any other provisions in this Agreement,
be granted according to the terms and subject to the conditions of
the Plan; (iii) be evidenced by a written grant agreement
containing such terms and conditions as are generally provided for
other management-level employees of the Emmis Group; and
(iv) be exercisable for Shares with such restrictive legends
on the certificates in accordance with the Plan and applicable
securities laws. Employer shall use reasonable efforts to register
the Shares subject to the award on a Form S-8 or other applicable
registration statement at such time as the Shares are issued to
Executive. The Option granted pursuant to this
Section 4.1 is intended to satisfy the regulatory
exemption from the application of Code Section 409A for
certain options for service recipient shares, and it shall be
administered accordingly.
4.2 Fiscal Year
Bonus Amounts . Upon the terms and subject to the conditions
set forth in this Section 4 , following the conclusion
of each of Employer’s fiscal years ending February 28,
2010, February 28, 2011 and February 29, 2012 (each, a
“Fiscal Year”), Executive shall be eligible to receive
one (1) performance bonus in an annualized target amount
equivalent to Fifty percent (50%) of Executive’s total Base
Salary earned during the subject Fiscal Year (each, a “Fiscal
Year Bonus”), the exact amount of which, if any, shall
be
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determined
based upon Executive’s attainment of certain performance and
financial goals as determined each Fiscal Year by the Compensation
Committee of ECC’s Board of Directors (the
“Compensation Committee”), in its sole and absolute
discretion, and communicated to Executive within ten (10) days
after a final determination by the Compensation
Committee.
4.3 Prior
Contract Completion Bonus . In full satisfaction of amounts due
to Executive under Executive’s prior employment agreement,
(i) Executive shall receive a payment of One Hundred Thirty
Two Thousand Dollars ($132,000) upon execution of this Agreement
and (ii) shall receive payments of Twenty Five Thousand
Dollars ($25,000) on each of May 31, 2009, August 31,
2009, November 30, 2009, and February 28, 2010
(collectively, the “Prior Contract Completion Bonus”).
The Prior Contract Completion Bonus shall be paid to Executive as
set forth above provided that for any particular payment:
(i) this Agreement is in effect on the applicable payment
date, or prior to such date Executive’s employment has been
terminated without Cause or for Good Reason (pursuant to Section
10 ), incapacity (pursuant to Section 11 ) or death
(pursuant to Section 12 ), and (ii) Executive has fully
performed all of Executive’s material duties and obligations
under this Agreement throughout the Term or until his date of
termination and was not in breach of any of the material terms and
conditions of this Agreement (provided that Executive’s
failure or inability to perform his duties and obligations because
of his death or incapacity (pursuant to Section 11 ),
including during leaves of absence, shall not be considered a
breach of this Agreement or non-performance under this provision).
Employer will have the right, in its sole and absolute discretion,
to pay all or a portion of the Prior Contract Completion Bonus in
Shares, but only if such Shares satisfy the resale and listing
requirements noted above.
4.4 Completion
Bonus . Except as provided below, on the condition that
Executive remains employed by Employer, on a full-time, continuous
basis, through February 29, 2012, Employer shall make a cash
payment to Executive in the amount of $375,000 (the
“Completion Bonus”). The Completion Bonus shall be paid
to Executive within two (2) weeks after February 29,
2012.
Notwithstanding
the foregoing, if Executive’s employment is terminated prior
to February 29, 2012 and such termination is: (a) due to
Executive’s death, (b) on account of Executive’s
incapacity pursuant to Section 11 , (c) by
Employer other than for Cause pursuant to Section 10 ,
(d) by Executive for Good Reason pursuant to Section 10
, or (e) due to a “Qualifying Termination” (as
defined in the CIC Agreement) following a Change in Control, then
Employer shall pay to Executive, within two (2) weeks after
termination of his employment, a pro-rata portion of the Completion
Bonus. Any pro-rated portion of the Completion Bonus shall be based
upon the number of calendar days elapsed between the Effective Date
and the date of termination divided by the total number of calendar
days between the Effective Date and February 29,
2012.
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4.5 Payment of
Bonus Amounts . Employer shall pay or cause to be paid to
Executive the bonus amounts, if earned according to the terms and
conditions set forth in Sections 4.2 through 4.4
; provided that, unless provided otherwise in
Sections 4.2 through 4.4 or
Sections 9 , 10 , 11 or 12 of this
Agreement, on the final day of the applicable measuring period for
such bonus: (i) this Agreement is in full force and effect and
has not been terminated for any reason (other than due to a
material breach of this Agreement by Employer); and (ii) Executive
is fully performing all of Executive’s material duties and
obligations pursuant to this Agreement and is not in breach of any
of the material terms and conditions of this Agreement (provided
that Executive’s failure or inability to perform his duties
and obligations because of his death or incapacity (pursuant to
Section 11 ), including during leaves of absence, shall
not be considered a breach of this Agreement or non-performance
under this provision). In addition, it is understood and agreed
that Employer may, at its sole election, pay any bonus amounts
earned by Executive pursuant to this Section 4 in cash
or Shares; provided that the Shares evidencing any portion thereof
are registered with the SEC on a then-effective Form S-8 or other
applicable registration statement and are issued without
restriction on resale (and further provided that the Shares are
listed on a securities exchange or over-the-counter market, which
does not include listing on the “pink sheets,” at the
time of issuance), subject to any restrictions on resale under
Employer’s insider trading policy and applicable federal and
state law. In the event that Employer elects pursuant to this
Section 4.5 to pay any Fiscal Year Bonus amounts in
Shares, the percentage of such bonus amounts payable in Shares
shall be consistent with, and the exact number of Shares to be
awarded to Executive shall be determined in the same manner as,
that utilized for the Key Executive Group. Any Fiscal Year Bonus
amounts earned by Executive pursuant to the terms and conditions of
Section 4.2 shall be paid after the end of the Fiscal
Year for which the bonus is earned (but in no event later than
ninety (90) days after the end of such Fiscal Year). Any and
all bonus amounts payable by Employer to Executive pursuant to this
Section 4 shall be subject to applicable taxes and
withholdings as required by law. Notwithstanding any other
provisions of this Agreement, any bonus pursuant to Sections
4.2 through 4.4 shall be paid to Executive by the
earlier of the date specified herein or the date that is no later
than two-and-a-half months after the end of either Employer’s
or Executive’s first taxable year (whichever period is
longer) in which any such bonus is no longer subject to a
substantial risk of forfeiture for purposes of Section 409A of
the Internal Revenue Code of 1986, as amended (the
“Code”).
5.
Expenses; Travel . Employer shall pay or reimburse Executive
for all reasonable expenses actually incurred or paid by Executive
during the Term in connection with the performance of
Executive’s services hereunder upon presentation of expense
statements, vouchers or other supporting documentation as Employer
may require of Executive; provided that, such expenses are
otherwise in accordance with Employer’s policies. Executive
shall undertake such travel as may be required in the performance
of Executive’s duties pursuant to this Agreement.
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6.1 Vacation
and Other Benefits . Each Contract Year, Executive shall be
entitled to four (4) weeks of paid vacation in accordance with
Employer’s applicable policies and procedures for
executive-level employees. Executive shall also be eligible to
participate in and receive the fringe benefits generally made
available to other executive-level employees of Employer in
accordance with and to the extent that Executive is eligible under
the general provisions of Employer’s fringe benefit plans or
programs; provided , however , that Executive
understands that these benefits may be increased, changed,
eliminated or added from time to time during the Term as determined
in Employer’s sole and absolute discretion.
6.2 Insurance
and Estate Planning . Each Contract Year, Employer agrees to
reimburse Executive in an amount not to exceed Five Thousand
Dollars ($5,000) for the annual premium and other fees and expenses
associated with estate planning services for Executive, including
legal and tax services, and Executive’s purchase or
maintenance of a life or disability insurance policy or other
insurance policies on the life, or related to the care, of
Executive. Executive shall be entitled to freely select and change
the beneficiary or beneficiaries under such policy or policies.
Notwithstanding anything to the contrary contained in this
Agreement, Employer’s obligations under this Section
6.2 are expressly contingent upon Executive providing required
information and taking all necessary actions required of Executive
in order to obtain and maintain the subject services, policy or
policies, including without limitation passing any required
physical examinations. Reimbursements pursuant to this
Section 6.2 with respect to a Contract Year shall be
made as soon as administratively feasible after Executive submits
the information and documentation required for reimbursement;
provided, however, under no circumstances shall such reimbursement
be paid later than two-and-a-half months after the end of the
calendar year or Employer’s taxable year in which such
Contract Year commenced.
7.
Confidential Information .
7.1
Non-Disclosure . Executive acknowledges that certain
information concerning the business of the Emmis Group and its
members (including but not limited to trade secrets and other
proprietary information) is of a highly confidential nature, and
that, as a result of Executive’s employment with Employer
prior to and during the Term, Executive shall receive and develop
proprietary and confidential information concerning the business of
Employer and/or other members of the Emmis Group which, if known to
Employer’s competitors, would damage Employer, other members
of the Emmis Group and their respective businesses. Accordingly,
Executive hereby agrees that during the Term and thereafter,
Executive shall not divulge or appropriate for Executive’s
own use, or for the use or benefit 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 any other member of the
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Emmis Group,
which is not generally available to the public other than through
the activities of Executive. Executive further agrees that,
immediately upon termination of Executive’s employment for
any reason, Executive shall promptly surrender to Employer all
documents, brochures, plans, strategies, writings, illustrations,
client lists, price lists, sales, financial or marketing plans,
budgets and any and all other materials (regardless of form or
character) which Executive received from or developed on behalf of
Employer or any member of the Emmis Group in connection with
Executive’s employment prior to or during the Term. Executive
acknowledges that all such materials shall remain at all times
during the Term and thereafter the sole and exclusive property of
Employer and that nothing in this Agreement shall be deemed to
grant Executive any right, title or interest in such
material.
7.2 Ownership
of Materials . Employer shall solely and exclusively own all
rights of every kind and nature in perpetuity and throughout the
universe in: (i) the results and proceeds of Executive’s
services pursuant to this Agreement; and (ii) any business,
financial, sales or marketing plans and strategies, documents,
presentations or other similar materials, regardless of
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