exv10w5






Exhibit 10.5




AMENDMENT OF EMPLOYMENT AGREEMENT




     This AMENDMENT OF EMPLOYMENT AGREEMENT (“Amendment”) is effective as of January 1, 2008, by
and between EMMIS OPERATING COMPANY, an Indiana company (“Employer”), and MICHAEL LEVITAN, an
Indiana resident (“Executive”).



RECITALS




     WHEREAS, Employer and Executive have entered into an Employment Agreement (“Agreement”),
effective as of March 1, 2008;



     WHEREAS, Employer and Executive were parties to a prior Employment Agreement, which governed
the terms of Executive’s employment for the period beginning September 9, 2002, and ending February
28, 2008 (“Prior Agreement”);



     WHEREAS, certain provisions of the Agreement and the Prior Agreement are subject to the
requirements of Section 409A of the Internal Revenue Code;



     WHEREAS, the requirements of Code Section 409A must be reflected in the applicable employment
agreements, effective January 1, 2008;



     WHEREAS, Employer and Executive wish to amend the Agreement and the Prior Agreement to comply
with the written document requirement of Code Section 409A, effective January 1, 2008; and



     WHEREAS, Employer and Executive wish to make further amendments to the Agreement, unrelated to
Code Section 409A, as set forth herein;



     NOW, THEREFORE, in consideration of the premises, Employer and Executive agree to amend the
Agreement and the Prior Agreement, effective January 1, 2008, as follows:



AGREEMENT




     1. All provisions of the Agreement, as amended by this Amendment, relating to the timing of
payments shall apply as well to the Prior Agreement for the period from January 1, 2008, through
February 29, 2008.



     2. Executive acknowledges and agrees that pursuant to that certain waiver dated November 7,
2008, Executive consented to a 3% decrease in his Base Salary for the period from December 1, 2008
through February 28, 2009 and waived any increase to Base Salary for the Contract Year commencing
March 1, 2009.



     3. The second paragraph of Section 4.3, governing Options issued pursuant to the Agreement,
shall apply as well to options issued pursuant to the Prior Agreement.



 









 





     4. Clause (iv) of Section 4.4 of the Agreement is, effective as of the date hereof, deleted in
its entirety and replaced with the following:




“(iv) a “Qualifying Termination” (as defined in the CIC Agreement) following a
Change in Control and Executive receives a Change in Control payment pursuant to
the CIC Agreement.”



     5. Section 5 of the Agreement is, effective as of January 1, 2008, amended by adding the
following sentence at the end thereof:




“Under no circumstances shall the Company’s reimbursement for expenses incurred in
a 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.”



     6. Section 9 of the Agreement is, effective as of the date hereof, amended by adding the
following Section 9.4 at the end thereof:




“9.4 Employer Election not to Renew. Notwithstanding anything to the
contrary contained herein, in the event that, subject to its obligations under the
CIC Agreement, Employer elects not to renew this Agreement according to its terms
for any Contract Year after February 28, 2009 and does not offer Executive
employment pursuant to a written employment agreement on terms substantially
similar to those contained herein (which shall include without limitation a Base
Salary that is at least Ninety-Five percent (95%) of the Base Salary in effect at
expiration of the Term), and Executive terminates employment, such election shall
be considered a termination by Employer other than for Cause for all purposes
under the CIC Agreement and hereunder, including without limitation Sections
4.4 and 15.14 hereof. If Employer elects not to renew this Agreement
according to its terms for any Contract Year after February 28, 2009, any offer of
subsequent employment made by Employer to Executive shall be made in the form of a
proposed written agreement and shall be made no later than thirty (30) days after
the election not to renew is given.”



     7. For purposes of the Agreement (and, for the period beginning January 1, 2008, and ending
February 29, 2008, for purposes of the Prior Agreement), “termination of employment,” “terminates
employment,” or any variation of such term shall mean “separation from service” within the meaning
of Code Section 409A(a)(2)(B)(i).



     8. Section 12 of the Agreement is, effective as of January 1, 2008, deleted in its entirety
and replaced with the following:




“12. Code Section 409A. This Agreement is intended to comply with Section
409A, and it is intended that no amounts payable hereunder shall be subject to tax
under Section 409A. Employer shall use commercially



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reasonable efforts to comply with Section 409A with respect to payments of
benefits hereunder.”



     9. Section 15.13 of the Agreement is, effective as of January 1, 2008, deleted in its entirety
and replaced with the following:




“15.13 Change in Control. Effective as of January 1, 2008, Executive and
Emmis Communications Corporation have entered into that certain Emmis
Communications Corporation Change in Control Severance Agreement (the “CIC
Agreement”). In the event of a “Change in Control” (as defined in the CIC
Agreement), the rights and obligations of Executive and Employer shall be set
forth in the CIC Agreement.”



     10. Section 15.14 of the Agreement is, effective as of January 1, 2008, deleted in its
entirety and replaced with the following:




“Subject to the conditions set forth in this Section 15.14, in the event
that Employer does not allow this Agreement to automatically renew according to
its terms for any Contract Year after February 28, 2009, and does not offer
Executive employment pursuant to a written employment agreement on terms
substantially similar to those contained herein (which shall include without
limitation a Base Salary that is at least Ninety-Five percent (95%) of the Base
Salary in effect at expiration of the Term), and Executive terminates employment,
Employer shall continue to make regular payments of Executive’s Base Salary for
either: (a) twelve (12) months; or (b) until such time as Executive commences
subsequent employment with a new employer, whichever first occurs (the “Severance
Payment”). It is understood and agreed that, as a material condition upon which
Executive shall be entitled to receive the Severance Payment, Executive agrees to
promptly notify Employer of the commencement date upon which Executive begins
subsequent employment with a new employer. It is further understood and agreed
that Executive shall not be entitled to any additional severance compensation upon
the termination or expiration of this Agreement other than the Severance Payment.
Executive shall not be entitled to the Severance Payment as otherwise specified in
this Agreement or if Executive’s employment is terminated either (i) by Employer
under Section 9.1, (ii) by reason of Executive’s incapacity or death under
Sections 10 or 11, (iii) by Executive for any reason other than a
material breach of this Agreement by Employer, or (iv) by Executive not allowing
this Agreement to automatically renew according to its terms for any Contract Year
after February 28, 2009. Notwithstanding anything to the contrary contained
herein, to the extent not already paid as provided in this Section 15.14,
the balance of any remaining amounts payable pursuant to this Section
15.14 shall be paid as a lump sum not later than the later of (i) the
fourteenth day of March following the calendar year in which Executive’s
termination of Employment occurred or (ii) the fourteenth day of the third month



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following the Employer’s taxable year in which Executive’s termination of
Employment occurred.”



     11. Exhibit A to the Agreement is, effective as of January 1, 2008, deleted in its entirety
and replaced with the following:



“Exhibit A



Change in Control Agreement





The Emmis Communications Corporation Change in Control Severance Agreement between
Emmis Communications Corporation and Michael Levitan effective January 1, 2008 is
hereby incorporated by reference.”



[Signatures on Following Page]




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     IN WITNESS WHEREOF, the parties have duly executed this Amendment of Employment Agreement on
the date set out below.



	 	 	 	 	 
	 	EMMIS OPERATING COMPANY
 (“Employer”)

 	 
	 	By:  	 	 
	 	 	Title: 	 	 
	 	 	Date: 	 	 
	 
	 	MICHAEL LEVITAN

(“Executive”)

 	 
	 	
 	 
	 	Michael Levitan 	 
	 	 
Date: