exv10w12






Exhibit 10.12




EMMIS COMMUNICATIONS CORPORATION

CHANGE IN CONTROL SEVERANCE AGREEMENT




          THIS AGREEMENT is entered into, effective January 1, 2008 (the “Effective Date”), by and
between EMMIS COMMUNICATIONS CORPORATION, an Indiana corporation (the “Company”), and Gary A. Thoe
(“Executive”).



WITNESSETH




          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 December 19, 2008, 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) “Base Salary” means Executive’s gross base salary, regardless of whether payable directly
by the Company in cash or through the television quarterly bonus plan, the stock compensation
program, or a similar program.




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




               (d) “Bonus Amount” means the greater of (i) the highest annual incentive bonus earned by
Executive from the Company (and/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 on which the Company generally pays bonuses to its executives for the fiscal year in which
Executive’s employment commenced, 25% of Executive’s Base Salary for the fiscal year of the Company
which includes the Executive’s Date of Termination.




               (e) “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 clause (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.




               (f) “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 35% 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


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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
(or series of sales and/or other dispositions over time resulting in a sale and/or other
disposition) of all or substantially all of the assets of the Company to any Person or Persons as
part of the Company’s plan to sell or otherwise dispose of all or substantially all of such assets
; (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 shall
 be deemed not to have occurred with respect to Executive, if he is, by written
agreement executed prior to such Change in Control, a participant on his own behalf in a
transaction in which the persons with whom he has the written agreement (and/or their Affiliates)
Acquire the Company (as defined below) and, pursuant to the written agreement, Executive has (or
has the right to acquire) an equity interest in the resulting entity.




          Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because
any Person acquires beneficial ownership of more than 35% 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 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



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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.



               (g) “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.




               (h) “Date of Termination” means the effective date of the Termination of Executive’s
Employment.




               (i) “Disability” means Termination of Executive’s Employment by the Company (A) on account of
Executive’s disability or incapacity in accordance with Executive’s written employment agreement
with the Company, if such agreement contains provisions relating to Termination of Employment for
disability or incapacity, or (B) except as provided in clause (A), on account of Executive’s
disability or incapacity in accordance with the Company’s policies applicable to salaried employees
without a written employment agreement, as in effect immediately before the Change in Control.




               (j) “Effective Date” means January 1, 2008.




               (k) “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.




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





               (i) a material diminution in Executive’s authority, duties, or responsibilities;
provided, however, 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 that does not involve
another event described in this Subsection (l);




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




               (iii) a material reduction by the Company in Executive’s rate of annual Base Salary,
as in effect immediately prior to such Change in Control or as the same may be increased
from time to time thereafter (with a reduction or series of reductions exceeding 5% of Base
Salary being deemed material);




               (iv) any requirement of the Company that Executive (A) be based anywhere more than
thirty-five (35) miles from the office where



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Executive is based 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 materially greater than the travel obligations of Executive immediately prior to
such Change in Control;




               (v) 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 the preceding, an event described above shall not be considered an event of Good
Reason, unless the Executive provides notice to the Company of the existence of such event of Good
Reason within ninety (90) days after its first occurrence and the Company fails to cure such event
within thirty (30) days after receiving Executive’s notice. 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 Terminate Employment within ninety (90) days following the end
of the thirty (30) day cure period specified above, or such event shall not constitute a
termination for Good Reason under this Agreement.




               (m) “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.




               (n) “Retirement” means Executive’s Termination of Employment by reason of 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.




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




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




               (q) “Termination of Employment”, “Terminates Employment,”, or any variation thereof means
Executive’s separation from service within the meaning of Code Section 409A(a)(2)(A)(i).




               (r) “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


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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(h).




          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. Moreover, if Executive is
party to a written employment agreement with the Company at the time of a Change in Control, and
such agreement would otherwise expire during the Termination Period, the term of such agreement
shall automatically be extended to the end of the Termination Period or, if earlier, Executive’s
Retirement. Notwithstanding anything in this Section to the contrary, except as provided in the
second sentence of Section 1(r), this Agreement shall terminate if Executive or the Company
Terminates Executive’s Employment prior to a Change in Control.



          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, 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) an amount equal to (I) forty-five percent (45%) of Executive’s Base Salary at the rate
in effect on the Change in Control (or, if higher, the rate in effect on Termination of
Employment), multiplied by (II) a fraction, the numerator of which is the number of days in
the fiscal year in which the Date of Termination occurs through the



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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) one and one-half (11/2 ) times Executive’s highest annual rate of Base Salary
during the 36-month period immediately prior to Executive’s Date of Termination plus (ii)
one and one-half (11/2 ) 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:





               (i) for a period of three (3) years following Executive’s Date of Termination,
continue to provide Executive (and Executive’s dependents, if applicable) with the same
level of accident 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;




               (ii) for the period beginning on Executive’s Date of Termination and continuing for up
to 18 months thereafter, reimburse Executive for COBRA premiums paid by Executive for
continuation coverage for Executive (and Executive’s dependents, if applicable) under the
Company’s medical and dental benefits plan, with such reimbursement being taxable to
Executive (any reimbursement required by this paragraph (ii) may be accomplished by the
Company’s direct payment of such premium, with such payment taxable to Executive, or by
Company reimbursing Executive for such premium within thirty (30) days after Executive’ s
payment thereof);




               (iii) for the period beginning 19 months after Executive’s Date of Termination and
ending 36 months after Executive’s Date of Termination, reimburse Executive for the cost of
purchasing coverage substantially similar to that that purchased under the Company’s
medical and dental benefits plan pursuant to paragraph (ii) above (with no additional
pre-existing condition exclusion), with such reimbursement being taxable to Executive (any
reimbursement required by this paragraph (iii) may be accomplished by the Company’s direct
payment of such premium, with such payment taxable to Executive, or by Company reimbursing
Executive for such premium within thirty (30) days after Executive’ s payment thereof);



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Notwithstanding the foregoing, (A) in the event Executive (or, if applicable, Executive’s
dependent) becomes ineligible for COBRA continuation coverage during the first 18 months
following Executive’s Date of Termination, such person shall not be eligible for further
coverage under paragraph (ii) or (iii), and (B) subject to the limitations in clause (A),
in the event Executive becomes employed by another employer and becomes eligible to receive
welfare benefits from such employer, the welfare benefits described in paragraphs (i)
through (iii) 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;




               (iv) 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),
provide outplacement services for Executive from a provider selected by the Company and at
the Company’s expense;




               (v) make such additional payments and provide such additional benefits to Executive as
the Company and Executive may agree in writing, or to which 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, 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 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 Rights. In the event of a Change in Control, all restricted Company stock
and all options, stock appreciation rights, and/or other stock rights held by Executive with
respect to Company stock that are exempt from Section 409A (“Stock Rights”) which are not fully
vested (and exercisable, if applicable) 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 Stock Rights and cause the stock acquired thereby to participate
in the Change in Control transaction. If the Change in Control transaction is structured so that
stock participating therein at one time is or may be treated differently from stock participating
therein at a different time (e.g., a tender offer followed by a squeeze-out merger), the


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Board shall interpret this Subsection (d) to provide for the required vesting acceleration in
a manner designed to allow Executive to exercise the Stock Rights 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
Subsection (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
Subsection d), each agreement reflecting a Stock Right, and each plan, if any, pursuant to which a
Stock Right is issued, if any, shall be deemed amended.




               (e) Delay in Payments to Specified Employees. Notwithstanding any other provision of
this Agreement, if Executive is a specified employee within the meaning of Code Section
409A(a)(2)(B)(i), distributions pursuant to this Section shall be delayed to the earliest day on
which such payments are permitted by Code Section 409A(a)(2)(B)(i) and the regulations thereunder.




          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 (i) if reduction of the amount payable pursuant to paragraph 4(a)(ii) by
no more than ten percent (10%) would result in no Excise Tax being imposed, the amount in paragraph
4(a)(ii) shall be reduced to the minimum extent necessary to result in no Excise Tax being imposed,
and (ii) if clause (i) does not apply, 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


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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


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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


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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.




               (h) To the extent that earlier payment is not required by the preceding provisions of this
Section, the Company shall pay amounts required to be paid pursuant to this Section not later than
the end of the calendar year next following the calendar year in which Executive remits the related
taxes.




          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. The amount of expenses eligible for reimbursement in one year pursuant to this Section
shall not affect the amount of expenses eligible for reimbursement in any following year. Under no
circumstances shall the Company’s reimbursement for expenses incurred in a



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calendar year be made later than the end of the next following calendar year; provided,
however, this requirement shall not alter the Company’s obligation to reimburse Executive for
eligible expenses on a current basis.



          8. Scope of Agreement. Nothing in this Agreement shall be deemed to entitle Executive
to continued employment with the Company or any Affiliate of the Company, 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, with the event of Good Reason occurring on the date on which such Business
Combination becomes effective.




               (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:



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          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; and
provided further, retention bonuses and/or completion bonuses shall not be considered
severance pay for purposes of this Section. 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



14









 







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 Affiliates of the Company. 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



15









 







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:  	 	 
	 	 	Title: 	 	 
	 	 	Date: 	 	 
	 
	 	EXECUTIVE

 	 
	 	
 	 
	 	 
Date: 	 	 
	 	 	 
	 




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