def14a
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE
14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
Filed by the Registrant þ
Filed by a Party other than the Registrant o
Check the appropriate box:
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Preliminary Proxy Statement |
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
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Definitive Proxy Statement |
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Definitive Additional Materials |
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Soliciting Material Pursuant to Section 240.14a-11(c) or Section
240.14a-12 |
EMMIS COMMUNICATIONS CORPORATION
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
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No fee required. |
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
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Fee paid previously with preliminary materials. |
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2)
and identify the filing for which the offsetting fee was paid previously. Identify the
previous filing by registration statement number, or the Form or Schedule and the date of its
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June 8, 2007
Dear Shareholder:
The directors and officers of Emmis Communications Corporation join me in inviting you to
attend our annual meeting of our shareholders on Wednesday, July 11, 2007 at 11:00 a.m. local time,
at our headquarters, One Emmis Plaza, 40 Monument Circle, Indianapolis, Indiana. The formal notice
of this annual meeting and the proxy statement appear on the following pages and are accompanied by
a copy of our Form 10-K for the fiscal year ended February 28, 2007. After reading the proxy
statement and other materials, please mark, sign and return the enclosed proxy card(s) to ensure
that your votes on the business matters of the meeting will be recorded.
We hope that you will attend this meeting. Whether or not you attend, we urge you to return
your proxy promptly in the postage-paid envelope provided. After returning the proxy, you may, of
course, vote in person on all matters brought before the meeting.
We look forward to seeing you on Wednesday, July 11.
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Sincerely, |
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Jeffrey H. Smulyan |
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Chief Executive Officer, President |
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and Chairman of the Board |
EMMIS COMMUNICATIONS CORPORATION
INDIANAPOLIS, INDIANA
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
The annual meeting of the shareholders of Emmis Communications Corporation will be held on
Wednesday, July 11, 2007, at 11:00 a.m., local time, at One Emmis Plaza, 40 Monument Circle,
Indianapolis, Indiana 46204.
The holders of common stock will be asked to consider and to vote on the following matters:
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election of two directors to Emmis board of directors for terms of three years; |
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ratification of the selection of Ernst & Young LLP as Emmis independent registered
public accountants for the fiscal year ending February 29, 2008; and |
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transaction of any other business that may properly come before the meeting and any
adjournments or postponements of the meeting. |
We describe each of these proposals in more detail in the accompanying proxy statement, which
you should read in its entirety before voting.
Only shareholders of record at the close of business on May 10, 2007 are entitled to notice of
and to vote at this meeting and any adjournments or postponements of this meeting. The proxy
statement and proxy card(s) are enclosed.
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By order of the Board of Directors, |
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J. Scott Enright |
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Secretary |
Indianapolis, Indiana |
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June 8, 2007 |
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TABLE OF CONTENTS
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EMMIS COMMUNICATIONS CORPORATION
ONE EMMIS PLAZA
40 MONUMENT CIRCLE
INDIANAPOLIS, INDIANA 46204
PROXY STATEMENT
In this proxy statement, Emmis Communications Corporation is referred to as we, us, our,
our company or Emmis.
QUESTIONS AND ANSWERS ABOUT THIS ANNUAL MEETING
Q. Why did I receive this proxy statement?
As an Emmis shareholder, you received this proxy statement because our board of
directors is soliciting
your proxy to vote at the annual meeting of shareholders. The annual meeting will be held on
Wednesday, July 11, 2007, at 11:00 a.m., local time, at One Emmis Plaza, 40 Monument Circle,
Indianapolis, Indiana 46204.
This proxy statement summarizes the information you need to know to vote on an informed basis
at the annual meeting; however, you do not need to attend the annual meeting to vote your shares.
See How do I vote? We expect to begin sending this proxy statement, the attached notice of annual
meeting and the enclosed proxy card(s) on June 8, 2007 to all shareholders entitled to vote.
Q. What am I voting on?
You are being asked to consider and vote on the following:
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election of two directors to our board of directors for terms of three years; and |
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ratification of the selection of Ernst & Young LLP as our independent registered public
accountants for the fiscal year ending February 29, 2008. |
Q. Who is entitled to vote?
Holders of outstanding Class A common stock and holders of outstanding Class B common
stock as of the
close of business on May 10, 2007, the record date, are entitled to vote at the annual meeting. As
of May 2, 2007, 32,595,311 shares of Class A common stock and 4,930,267 shares of Class B common
stock were issued and outstanding. As of May 2, 2007, there were no shares of Class C common stock
issued or outstanding.
Q. How do I vote?
You may attend the meeting and vote in person, or you may vote by proxy. To vote by
proxy, sign and date each proxy card you receive and return it in the prepaid envelope. If you return your signed
proxy card but do not indicate your voting preferences, we will vote on your behalf FOR each of the
nominees and FOR the ratification of Ernst & Young LLP as our independent registered public
accountants. If you mark abstain on your proxy card, your shares will be counted as present for
purposes of determining the presence of a quorum. You have the right to revoke your proxy at any
time before the meeting by either notifying our corporate secretary or returning a later-dated
proxy. You may also revoke your proxy by voting in person at the annual meeting.
If you hold your shares through a broker, you should contact your broker to determine the
procedure by which you can vote on these proposals. If your shares are held in the name of a bank,
broker or other holder of record, you must obtain a proxy, executed in your favor, from the holder
of record to be able to vote in person at the meeting.
Q. What does it mean if I get more than one proxy card?
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If you receive more than one proxy card, it means you hold shares registered in more
than one account.
Sign and return ALL proxy cards to ensure that all your shares are voted. |
1
Q. What are the voting rights of the Class A common stock and the Class B common stock?
On each matter submitted to a vote of our shareholders, each share of Class A common
stock is entitled to
one vote and each share of Class B common stock is entitled to ten votes. Generally, the holders of
Class A and Class B common stock vote together as a single group. However, the two classes vote
separately in connection with the election of certain directors, certain going private
transactions and other matters as provided by law.
At this annual meeting, the Class A and Class B common stock will vote together on the
election of directors and the ratification of Ernst & Young LLP as our independent registered
public accountants.
Q. Who will count the vote?
Representatives of American Stock Transfer and Trust Company, our transfer agent,
will count the votes.
Q. What constitutes a quorum?
A majority of the combined voting power of the outstanding Class A and Class B common
stock entitled to
vote at the meeting constitutes a quorum for the annual meeting (i.e., counting one vote for each
share of outstanding Class A common stock and ten votes for each share of outstanding Class B
common stock, present in person or represented by proxy). No additional quorum requirements apply
to matters on which the holders of Class A and Class B common stock will vote together as a single
class.
Q. How many votes are needed for approval of each proposal?
Directors will be elected by a plurality of the votes cast by the holders of existing
common stock entitled to
vote in the election who are present, in person or by proxy, at the meeting. Consequently, the
director nominees receiving the most votes of the holders of Class A and Class B common stock,
voting together, will be elected to fill the remaining director positions. Only votes cast FOR a
nominee will be counted. The accompanying proxy card will be voted FOR all nominees listed on the
proxy unless the proxy contains instructions to the contrary.
Instructions on the accompanying proxy card to withhold authority to vote for one or more of the
nominees will result in those nominees receiving fewer votes.
The ratification of Ernst & Young LLP as our independent registered public accountants for the
fiscal year ending February 29, 2008 requires that the number of votes cast in favor of that
proposal by holders of our outstanding Class A common stock and Class B common stock, voting
together, exceed the number of votes cast against that proposal by such holders of our outstanding
Class A common stock and Class B common stock.
Proxies submitted by brokers that do not indicate a vote for some of the proposals because the
holders do not have discretionary voting authority and have not received instructions from the
beneficial owners on how to vote on those proposals are called broker non-votes. Abstentions and
broker non-votes will not affect the voting on the proposals.
Q. What percentage of stock does our largest individual shareholder own? How does he
intend to vote? What about all executive officers and
directors?
Jeffrey H. Smulyan, the Chief Executive Officer, President and Chairman of the board of
directors, is our largest single shareholder, beneficially owning less than 1.0% of our Class A
common stock and 100% of our Class B common stock as of May 2, 2007. Mr. Smulyan has informed us
that he intends to vote for each of the nominees for director and in favor of the proposal
regarding the ratification of the selection of Ernst & Young LLP. If he does so, the nominees and
the proposal for ratification of the selection of Ernst & Young LLP are expected to be approved
because Mr. Smulyan controls approximately 60.4% of the combined voting power of our outstanding
common stock (not including the potential voting power of unexercised options).
All directors and executive officers together own outstanding Class A common stock and Class B
common stock representing approximately 61.2% of the combined voting power of our outstanding
common stock (not including the potential voting power of unexercised options).
2
Q. Does Emmis offer an opportunity to receive future proxy materials electronically?
Yes. If you are a shareholder of record, you may, if you wish, receive future proxy
statements and annual
reports online. If you elect this feature, you will receive either a proxy card or an e-mail
message notifying you when the materials are available, along with a web address for viewing the
materials. You may sign up for electronic delivery by marking and signing the appropriate spaces on
your proxy card or by contacting our Investor Relations Department by e-mail at ir@emmis.com or
toll-free by phone at (866) 366-4703. If you received these materials electronically, you do not
need to do anything to continue receiving materials electronically in the future.
If you hold your shares in a brokerage account, you may also have the opportunity to receive
proxy materials electronically. Please follow the instructions of your broker.
If you are an Emmis employee or a shareholder who has previously consented to electronic
delivery of shareholder communications, you may view this proxy statement and our annual report at
the Investors section of our website (www.emmis.com).
Q. What are the benefits of electronic delivery?
Electronic delivery saves Emmis money by reducing printing and mailing costs. It will
also make it
convenient for you to receive your proxy materials online.
Q. What are the costs of electronic delivery?
Emmis charges nothing for electronic delivery. You may, of course, incur the usual
expenses associated with
Internet access, such as telephone charges or charges from your Internet service provider.
Q. May I change my mind later?
Yes. You may discontinue electronic delivery at any time. For more information,
contact our Investor
Relations Department by e-mail at ir@emmis.com or toll-free by phone at (866) 366-4703.
Q. Who can attend the Annual Meeting?
All shareholders as of May 10, 2007 can attend.
Q. What do I do if I have additional questions?
If you have any questions prior to the annual meeting, please contact our Investor
Relations Department by
e-mail at ir@emmis.com or toll-free by phone at (866) 366-4703.
3
PROPOSAL 1: ELECTION OF DIRECTORS
Two directors are to be elected. Jeffrey H. Smulyan and Greg A. Nathanson have each been
nominated for a term of three years and until his successor has been elected and qualified. Mr.
Smulyan and Mr. Nathanson will be elected by the Class A and Class B common stock voting together
as a single class.
Mr. Smulyan and Mr. Nathanson are members of the present board of directors. If, at the time
of this annual meeting, any nominee is unable or declines to serve, the discretionary authority
provided in the proxy may be exercised to vote for a substitute or substitutes. The board of
directors has no reason to believe that any substitute nominee or nominees will be required.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THE ELECTION OF EACH OF THE FOLLOWING NOMINEES.
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Name, Age, Principal Occupation(s) and |
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Director |
Business Experience During Past 5 Years |
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Nominated for a term expiring in 2010: |
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Jeffrey H. Smulyan, Age 60
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1979 |
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Mr. Smulyan founded Emmis in 1979 and is the Chairman of the board of directors,
President and Chief Executive Officer. He has held the positions of Chairman of the board
of directors and Chief Executive Officer since 1981 and the position of President since
1994. Mr. Smulyan began working in radio in 1973, and has owned one or more radio
stations since then. Formerly, he was also the owner and chief executive officer of the
Seattle Mariners Major League Baseball team. He is former Chairman of the Radio
Advertising Bureau; a director of The Finish Line, a sports apparel manufacturer; and
serves as a Trustee of his alma mater, the University of Southern California. Mr. Smulyan
has been chosen Radio Executive of the Year by a radio industry publication. |
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Greg A. Nathanson, Age 60
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1998 |
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Mr. Nathanson joined Emmis in 1998 as Television Division President, resigning
effective October 1, 2000. He is currently a media consultant. Mr. Nathanson has over 30
years of television broadcasting experience, having served as President of Programming
and Development for Twentieth Television from 1996 to 1998; as General Manager of
KTLA-TV in Los Angeles, California from 1992 to 1996; and as President of Fox
Television Stations from 1990 to 1992. |
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Directors whose terms expire in 2008: |
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Richard A. Leventhal, Age 60
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1992 |
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Mr. Leventhal is President and majority owner of LMCS, LLC an investment,
management and consulting company. Previously, Mr. Leventhal co-owned and operated
Top Value Fabrics, Inc., a wholesale fabric and textile company in Carmel, Indiana, for 27
years. |
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Peter A. Lund, * Age 66
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2002 |
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Mr. Lund is a private investor and media consultant who formerly served as Chairman
of Eos International, Inc., a holding company. Mr. Lund has over 40 years of broadcasting
experience and most recently served as President and Chief Executive Officer of CBS Inc.
and President and Chief Executive Officer of CBS Television and Cable. He is a director
of The DIRECTV Group, Inc., a communications company, and Crown Media Holdings,
Inc., an owner and operator of cable television channels. |
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4
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Name, Age, Principal Occupation(s) and |
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Director |
Business Experience During Past 5 Years |
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Lawrence B. Sorrel, Age 48
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1993 |
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Mr. Sorrel is Managing Partner and Co-CEO of Tailwind Capital Group, an
independent private equity firm that manages the $1.3 billion private equity fund TWCP, L.P., and
its related funds. Mr. Sorrel was a general partner of private equity firm Welsh,
Carson, Anderson & Stowe from 1998-2002. Prior to May 1998, he was a Managing
Director of Morgan Stanley and the firms private equity affiliate, Morgan Stanley
Capital Partners, where he had been employed since 1986. |
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Directors whose terms expire in 2009: |
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Susan B. Bayh, * Age 47
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1994 |
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Mrs. Bayh was the Commissioner of the International Joint Commission of the United
States and Canada until 2001. She served as a Distinguished Visiting Professor at the College
of Business Administration at Butler University from 1994 through 2003.
Previously, she was an attorney with Eli Lilly & Company. She is a director of
Wellpoint, Inc., a Blue Cross/Blue Shield company; Curis, Inc., a therapeutic drug
development company; Dendreon Corporation, a biotechnology company; Dyax Corp., a
biopharmaceutical company; and Nastech Pharmaceutical Company, Inc., a
pharmaceutical company. |
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Gary L. Kaseff, Age 59
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1994 |
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Mr. Kaseff is employed as Executive Vice President and General Counsel of Emmis, a
post he has held since 1998. Before becoming general counsel, Mr. Kaseff practiced law in
Southern California. Previously, he was President of the Seattle Mariners Major
League Baseball team and partner with the law firm of Epport & Kaseff. |
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Independent director elected by the holders of the Class A common stock voting
as a single class. |
5
SECURITY OWNERSHIP OF BENEFICIAL OWNERS AND MANAGEMENT
As of May 2, 2007, there were 32,595,311 shares of our Class A common stock and 4,930,267
shares of our Class B common stock issued and outstanding. The holders of Class A common stock are
entitled to an aggregate of 32,595,311 votes, and the holder of Class B common stock is entitled to
an aggregate of 49,302,670 votes. The following table shows, as of May 2, 2007, the number and
percentage of shares of our common stock held by each person known to us to own beneficially more
than five percent of the issued and outstanding common stock, by the executive officers named in
the Summary Compensation Table below and our directors and nominees, and by our executive officers
and directors as a group:
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Class A |
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Class B |
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Common Stock |
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Common Stock |
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Five Percent Shareholders, |
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Amount and Nature |
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Amount and Nature |
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Directors and Certain |
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of Beneficial |
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of Beneficial |
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Percent of Total |
Executive Officers |
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Ownership |
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of Class |
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of Class |
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Voting Power |
Jeffrey H. Smulyan |
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149,417 |
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7,417,714 |
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100.0 |
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69.6 |
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Susan B. Bayh |
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72,832 |
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Richard F. Cummings |
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567,765 |
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Paul W. Fiddick |
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131,352 |
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* |
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Gary L. Kaseff |
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529,008 |
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1.6 |
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Richard A. Leventhal |
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93,501 |
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Peter A. Lund |
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51,764 |
(7) |
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* |
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Greg A. Nathanson |
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258,199 |
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Lawrence B. Sorrel |
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77,595 |
(9) |
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Patrick M. Walsh |
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31,900 |
(10) |
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Galleon Management, L.P. |
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1,686,709 |
(11) |
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5.2 |
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2.1 |
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Martin Capital Management, LLP |
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2,710,293 |
(12) |
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8.3 |
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3.3 |
% |
TCS Capital Gp, LLC |
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2,712,300 |
(13) |
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8.3 |
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3.3 |
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Farallon Capital Partners, L.P. and Noonday
Capital Partners, L.L.C. |
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3,185,000 |
(14) |
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3.9 |
% |
All Executive Officers and Directors as a Group
(12 persons) |
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2,238,941 |
(15) |
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7,417,714 |
(16) |
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100.0 |
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70.6 |
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Less than 1%. |
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Consists of 5,835 shares held in the 401(k) Plan, 101,837 shares owned individually, 11,120
shares held by Mr. Smulyan as trustee for his children over which Mr. Smulyan exercises or shares
voting control and 30,625 shares held by The Smulyan Family Foundation, which Mr. Smulyan shares
voting control. Of the shares he owns individually, Mr. Smulyan has pledged 80,000 to secure a bank
loan. |
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Consists of 21,610 shares owned individually and 51,222 shares represented by stock options
exercisable currently or within 60 days of May 2, 2007. |
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Consists of 173,178 shares owned individually, 8,260 shares owned for the benefit of Mr.
Cummings children, 5,823 shares held in the 401(k) Plan and 380,504 shares represented by stock
options exercisable currently or within 60 days of May 2, 2007. Of the shares owned individually,
72,171 are restricted stock subject to forfeiture if certain employment agreement or other
conditions are not satisfied. |
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Consists of 21,301 shares owned individually, 291 shares held in the 401(k) Plan, and 109,760
shares represented by stock options exercisable currently or within 60 days of May 2, 2007. Of the
shares owned individually, 21,085 are restricted stock subject to forfeiture if certain employment
agreement or other conditions are not satisfied. |
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Consists of 96,981 shares owned individually by Mr. Kaseff, 3,411 shares owned by Mr. Kaseffs
spouse, 1,346 shares held by Mr. Kaseffs spouse for the benefit of their children, 1,493 shares
held in the 401(k) Plan, and 425,777 shares represented by stock options exercisable currently or
within 60 days of May 2, 2007. Of the shares owned individually, 46,726 are restricted stock
subject to forfeiture if certain employment agreement or other conditions are not satisfied. |
|
(6) |
|
Consists of 21,679 shares owned individually, 3,000 shares owned by Mr. Leventhals spouse,
17,600 shares owned by a corporation of which Mr. Leventhal is a 50% shareholder and 51,222 shares
represented by stock options exercisable currently or within 60 days of May 2, 2007. |
|
(7) |
|
Consists of 15,177 shares owned individually and 36,587 shares represented by stock options
exercisable currently or within 60 days of May 2, 2007. |
|
(8) |
|
Consists of 133,705 shares owned individually or jointly with his spouse, 44,000 shares owned
by trusts for the benefit of Mr. Nathansons children and 80,490 shares represented by stock
options exercisable currently or within 60 days of May 2, 2007. |
|
(9) |
|
Consists of 26,373 shares owned individually and 51,222 shares represented by stock options
exercisable currently or within 60 days of May 2, 2007. |
|
(10) |
|
Consists of 31,780 shares owned individually and 120 shares held in the 401(k) Plan. Of the
shares owned individually, 31,780 are restricted stock subject to forfeiture if certain employment
agreement or other conditions are not satisfied. |
|
(11) |
|
Information concerning these shares was obtained from a Schedule 13G/A filed on April 18, 2007
by Galleon Management, L.P. on behalf of itself and various affiliates, each of which has a mailing
address of 135 East 57th Street, New York, New York 10022. |
|
(12) |
|
Information concerning these shares was obtained from a Schedule 13D/A filed on April 23, 2007
by Martin Capital Management, LLP on behalf of itself and various affiliates (including Frank K.
Martin), each of which has a mailing address of 300 Junior Achievement Drive, Suite 301, Elkhart,
Indiana 46516. |
6
|
|
|
(13) |
|
Information concerning these shares was obtained from a Schedule 13G/A filed on April 11, 2007
by TCS Capital GP, LLC on behalf of itself and various affiliates, each of which has a mailing
address of 888 Seventh Avenue, Suite 1504, New York, New York 10019. |
|
(14) |
|
Information concerning these shares was obtained from an amended Schedule 13D filed on August
15, 2006 by Noonday Capital Partners, L.L.C. and Farallon Capital Partners, L.P. on behalf of
themselves and certain related parties. The address of Noonday Capital Partners, L.L.C. and its
related parties is 227 Charlotte, North Carolina 28202. The address of Farallon Capital Partners
and its related parties is One Maritime Plaza Suite 1325, San Francisco, California 94111. |
|
(15) |
|
Includes 1,402,644 shares represented by stock options exercisable currently or within 60 days
of May 2, 2007. |
|
(16) |
|
Consists of 4,930,267 shares owned individually and 2,487,447 shares represented by stock
options exercisable currently or within 60 days of May 2, 2007. Of the shares he owns individually,
Mr. Smulyan has pledged an aggregate of 3,284,258 to secure two bank lines of credit. The lines of
credit are subject to certain customary default provisions. If Mr. Smulyan defaults on the lines of
credit and the pledges are foreclosed, the sale of the shares by the pledgees could result in a
change in control of the company. |
CORPORATE GOVERNANCE
General
Emmis aspires to the highest ethical standards for our employees, officers and directors, and
remains committed to the interests of our shareholders. We believe we can achieve these objectives
only with a plan for corporate governance that clearly defines responsibilities, sets high
standards of conduct and promotes compliance with the law. The board of directors has adopted
formal corporate governance guidelines, as well as policies and procedures designed to foster the
appropriate level of corporate governance. Some of these guidelines and procedures are discussed
below. For further information, including electronic versions of our Code of Business Conduct and
Ethics, our Corporate Governance Guidelines, our audit committee Charter, our compensation
committee Charter, our corporate governance and nominating committee Charter and our Auditor
Independence Policy, please visit the Corporate Governance section of our website (www.emmis.com)
located under the Investors heading.
Independent Directors
Our board of directors currently consists of seven members. Of these, five (Mrs. Bayh and
Messrs. Leventhal, Lund, Nathanson and Sorrel) qualify as independent directors under the listing
standards of The Nasdaq Stock Market, Inc.
Code of Ethics
Emmis has adopted a Code of Business Conduct and Ethics to document the ethical principles and
conduct we expect from our employees, officers and directors. A copy of our Code of Business
Conduct
and Ethics is available on our website.
Lead Director
Our independent directors have appointed Susan B. Bayh as the Lead Director. In that role,
Mrs. Bayh is responsible for coordinating and leading the independent directors, presiding over
executive sessions of the independent directors and acting as a liaison between the independent
directors and the rest of the board of directors and Emmis management.
Communications with Independent Directors
Any employee, officer, shareholder or other interested party who has an interest in
communicating with the Lead Director or any other Emmis independent directors regarding any matter
may do so by directing communication to Mrs. Bayh as the Lead Director addressed to Lead Director,
Emmis Communications Corporation, One Emmis Plaza, 40 Monument Circle, Suite 700, Indianapolis,
Indiana 46204, by facsimile to (317) 684-5583, or by e-mail message to LeadDirector@emmis.com. The
communication will be delivered to the independent directors as appropriate. For matters related to
nominations or corporate governance, communications should specify that they are directed to the
corporate governance and nominating committee. For matters related to finance or auditing,
communications should specify that they are directed to the audit committee. For matters related to
compensation, communications should specify that they are directed to the compensation committee.
Messages for any director or the board of directors as a whole may be delivered through the Lead
Director as well.
7
Certain Committees of the Board of Directors
Our board of directors currently has several committees, including an audit committee, a
corporate governance and nominating committee and a compensation committee.
Audit Committee. The audit committees primary responsibility is to engage the independent
auditor and otherwise to monitor and oversee the audit process. The audit committee also undertakes
other related responsibilities as summarized in the Report of the audit committee below and
detailed in the audit committees charter, which is available on our website. The board of
directors has determined that the members of the audit committee, Richard A. Leventhal (chair),
Peter A. Lund and Lawrence B. Sorrel, are independent directors under the Securities Exchange Act
of 1934 and the Nasdaq listing standards. The board of directors has also determined that Lawrence
B. Sorrel is an audit committee financial expert as defined in rules adopted under the Securities
Exchange Act of 1934. The audit committee held six meetings during the last fiscal year.
Corporate Governance and Nominating Committee. The corporate governance and nominating
committees primary responsibility is to assist the board of directors by (1) identifying
individuals qualified to become members of the board of directors and recommending nominees to the
board of directors for the next annual meeting of shareholders and (2) evaluating and assessing
corporate governance issues affecting Emmis. The corporate governance and nominating committees
charter is available in the Corporate Governance section of our website (www.emmis.com) located
under the Investors heading. The corporate governance and nominating committee evaluates current
members of the board of directors and potential candidates with respect to their independence,
business, strategic and financial skills, as well as overall experience in the context of the needs
of the board of directors as a whole. The corporate governance and nominating committee
concentrates its focus on candidates with the following characteristics and qualifications, though
they are not necessarily limited thereto:
|
|
|
Chief executive officers or senior executives, particularly those with experience in broadcasting,
finance, marketing and information technology. |
|
|
|
|
Individuals representing diversity in gender and ethnicity. |
|
|
|
|
Individuals who meet the current criteria to be considered as independent directors. |
The corporate governance and nominating committee will consider and evaluate potential
nominees submitted by holders of our Class A common stock to our corporate secretary on or before
the date for shareholder nominations specified in the Shareholder Proposals section of this proxy
statement. These potential nominees will be considered and evaluated using the same criteria as
potential nominees obtained by the corporate governance and nominating committee from other
sources.
The members of the corporate governance and nominating committee are Susan B. Bayh (chair),
Richard A. Leventhal and Greg A. Nathanson, all of whom are independent directors under Nasdaq
standards. The corporate governance and nominating committee held two meetings during the last
fiscal year.
Compensation Committee. The compensation committee provides a general review of our
compensation and benefit plans to ensure that they meet our corporate objectives, establishes
compensation arrangements and approves compensation payments to our executive officers, and
generally administers our stock option and incentive plans. The compensation committees charter is
available in the Corporate Governance section of our website (www.emmis.com) located under the
Investors heading. The members of the compensation committee are Peter A. Lund (chair), Susan B.
Bayh and Lawrence B. Sorrel, all of whom are independent directors under Nasdaq standards. The
compensation committee held three meetings during the last fiscal year.
Meeting Attendance
During our last fiscal year, our board of directors held nine meetings, either in person or by
telephone. Except for Mr. Nathanson, each director attended at least 75% of the aggregate of (1)
the total number of meetings of our board of directors held while he or she was a director and (2)
the total number of meetings held by all committees on which he or she served during the periods
that he or she served on the committee. Mr. Nathanson attended six of the nine board meetings and
both meetings of the corporate governance and nominating committee.
We believe that communication between our shareholders and the members of our board of
directors is enhanced by the opportunity for personal interaction at our annual meeting of
shareholders. Accordingly, we
8
encourage the members of our board of directors to attend our annual meeting of shareholders
whenever possible. At our annual meeting of shareholders held on February 13, 2007, two of the
seven members of our board of directors were in attendance. A snowstorm in Indianapolis on that
date prevented several directors from attending.
Compensation of Directors
Directors who are not officers or employees of Emmis are compensated for their services at the
rate of $3,000 per regular meeting attended in person, $1,500 per regular meeting attended by phone
and $2,000 per committee meeting attended, whether in person or by phone. In addition, each
director who is not an officer or employee of Emmis receives an annual retainer of $30,000, the
chair of our audit committee receives a $10,000 annual retainer, the chair of our compensation
committee receives a $5,000 annual retainer, the chair of our corporate governance and nominating
committee receives a $3,000 annual retainer, and the Lead Director receives a $3,000 annual
retainer. All of these fees are paid in the form of Class A common stock at the end of each
calendar year. The per share price used for payment of these fees is established using the market
value of Emmis Class A common stock prior to the end of the previous fiscal year, discounted by 20%
to the extent the director attends at least 75% of the board and committee meetings applicable to
the director. In addition, directors who are not officers or employees of Emmis are entitled to
receive annually 2,195 shares of restricted stock and options to purchase 7,317 shares of Class A
common stock. The options are granted on the date of our annual meeting of shareholders at the fair
market value of the underlying shares on that date and are to vest annually in three equal
installments. Restricted stock is also granted on the date of our annual meeting of shareholders
and will vest at the conclusion of each directors three-year term.
During fiscal 2007, the members of a special committee formed to consider a proposed going
private transaction from Mr. Smulyan were each paid a retainer of $50,000 in cash.
In the table below, we have set forth information regarding the compensation for the fiscal
year ended February 28, 2007, received by each of our directors as of February 28, 2007 who is not
an officer or employee of Emmis.
9
2007 DIRECTOR COMPENSATION TABLE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees Earned or |
|
|
|
|
|
|
Name |
|
Paid in Cash |
|
Stock Awards1,2 |
|
Option Awards3,4 |
|
Total |
Susan B. Bayh |
|
|
|
|
|
$ |
66,567 |
|
|
$ |
458 |
|
|
$ |
67,025 |
|
Richard A. Leventhal |
|
|
|
|
|
$ |
60,946 |
|
|
$ |
458 |
|
|
$ |
61,404 |
|
Peter A. Lund |
|
$ |
50,000 |
|
|
$ |
58,783 |
|
|
$ |
458 |
|
|
$ |
109,241 |
|
Lawrence B. Sorrel |
|
$ |
50,000 |
|
|
$ |
60,507 |
|
|
$ |
458 |
|
|
$ |
110,965 |
|
Greg A. Nathanson |
|
|
|
|
|
$ |
38,612 |
|
|
$ |
458 |
|
|
$ |
39,070 |
|
|
|
|
1 |
|
On February 13, 2007, each director named in the table above received a grant of
2,195 restricted shares, having an aggregate date of grant fair value of $19,053. In the following
table we set forth for each named director the number of unrestricted shares the director received
on January 11, 2007, for retainers and meeting fees (other than special committee fees) for the
2007 calendar year, and the aggregate grant date fair market value of the shares: |
|
|
|
|
|
|
|
|
|
Name |
|
Shares # |
|
Fair Market Value $ |
Mrs. Bayh |
|
|
6,680 |
|
|
|
57,582 |
|
Mr. Leventhal |
|
|
6,028 |
|
|
|
51,961 |
|
Mr. Lund |
|
|
5,777 |
|
|
|
49,798 |
|
Mr. Sorrel |
|
|
5,977 |
|
|
|
51,522 |
|
Mr. Nathanson |
|
|
3,437 |
|
|
|
29,627 |
|
|
|
|
2 |
|
At February 28, 2007, each named director other than Mrs. Bayh held restricted stock
awards for an aggregate of 3,695 shares, having an aggregate fair market value of $30,373. Mrs.
Bayh held 2,195 restricted shares having a fair market value of $18,043, as 1,800 restricted shares
had vested on February 13, 2007, the expiration of her last three year term. Restricted stock
awards vest on the earlier of the end of the directors three-year term or the third anniversary of
the date of grant. Mrs. Bayhs restricted shares will vest on the earlier of February 13, 2010, or
the day before the companys annual meeting for fiscal year 2010. With respect to each of Mr.
Leventhal, Mr. Lund and Mr. Sorrel, 1,500 restricted shares will vest on the earlier of July 13,
2008 or the day before the companys annual meeting for fiscal year 2009, and 2,195 restricted
shares vest on the earlier of February 13, 2010, or the day before of the companys annual meeting
for fiscal year 2009. For Mr. Nathanson, 1,500 restricted shares will vest on the earlier of July
13, 2008 or the day before the companys annual meeting for fiscal year 2008, and 2,195 restricted
shares vest on the earlier of February 13, 2010, or the day before of the companys annual meeting
for fiscal year 2008. |
|
3 |
|
In the following table we have set forth information regarding options held by each
named director as of February 28, 2007. Options vest on the earlier of the dates shown, or the day
before the annual meeting for the fiscal year in which the date shown falls. |
|
|
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|
|
|
|
|
|
|
|
|
|
|
Number
of Shares |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Underlying |
|
|
|
|
|
|
|
|
|
|
|
|
Name |
|
Options # |
|
Option Exercise Price $ |
|
Option Expiration Date |
|
Option Vesting Date |
Mrs. Bayh |
|
|
7,317 |
|
|
|
8.71 |
|
|
|
2/13/17 |
|
|
1/3 on each of
2/13/08, 09 & 10 |
|
|
|
7,317 |
|
|
|
12.19 |
|
|
|
7/13/15 |
|
|
Fully Vested |
|
|
|
14,635 |
|
|
|
14.21 |
|
|
|
6/30/14 |
|
|
Fully Vested |
|
|
|
14,635 |
|
|
|
15.48 |
|
|
|
6/5/13 |
|
|
Fully Vested |
|
|
|
14,635 |
|
|
|
13.56 |
|
|
|
6/24/12 |
|
|
Fully Vested |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mr. Leventhal |
|
|
7,317 |
|
|
|
8.71 |
|
|
|
2/13/17 |
|
|
1/3 on each of
2/13/08, 09, & 10 |
|
|
|
7,317 |
|
|
|
12.19 |
|
|
|
7/13/15 |
|
|
Fully Vested |
|
|
|
14,635 |
|
|
|
14.21 |
|
|
|
6/30/14 |
|
|
Fully Vested |
|
|
|
14,635 |
|
|
|
15.48 |
|
|
|
6/5/13 |
|
|
Fully Vested |
|
|
|
14,635 |
|
|
|
13.56 |
|
|
|
6/24/12 |
|
|
Fully Vested |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mr. Lund |
|
|
7,317 |
|
|
|
8.71 |
|
|
|
2/13/17 |
|
|
1/3 on each of
2/13/08, 09 & 10 |
|
|
|
7,317 |
|
|
|
12.19 |
|
|
|
7/13/15 |
|
|
Fully Vested |
|
|
|
14,635 |
|
|
|
14.21 |
|
|
|
6/30/14 |
|
|
Fully Vested |
|
|
|
14,635 |
|
|
|
15.48 |
|
|
|
6/5/13 |
|
|
Fully Vested |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mr. Sorrel |
|
|
7,317 |
|
|
|
8.71 |
|
|
|
2/13/17 |
|
|
1/3 on each of
2/13/08, 09, 10 |
|
|
|
7,317 |
|
|
|
12.19 |
|
|
|
7/13/15 |
|
|
Fully Vested |
|
|
|
14,635 |
|
|
|
14.21 |
|
|
|
6/30/14 |
|
|
Fully Vested |
|
|
|
14,635 |
|
|
|
15.48 |
|
|
|
6/05/13 |
|
|
Fully Vested |
|
|
|
14,635 |
|
|
|
13.56 |
|
|
|
6/24/12 |
|
|
Fully Vested |
10
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number
of Shares |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Underlying |
|
|
|
|
|
|
|
|
|
|
|
|
Name |
|
Options # |
|
Option Exercise Price $ |
|
Option Expiration Date |
|
Option Vesting Date |
Mr. Nathanson |
|
|
7,317 |
|
|
|
8.71 |
|
|
|
2/13/17 |
|
|
1/3 on each of
2/13/08, 09, 10 |
|
|
|
7,317 |
|
|
|
12.19 |
|
|
|
7/13/15 |
|
|
Fully Vested |
|
|
|
14,635 |
|
|
|
14.21 |
|
|
|
6/30/14 |
|
|
Fully Vested |
|
|
|
14,635 |
|
|
|
15.48 |
|
|
|
6/5/13 |
|
|
Fully Vested |
|
|
|
14,635 |
|
|
|
13.56 |
|
|
|
6/24/12 |
|
|
Fully Vested |
|
|
|
14,634 |
|
|
|
19.82 |
|
|
|
8/01/11 |
|
|
Fully Vested |
|
|
|
14,634 |
|
|
|
24.18 |
|
|
|
3/01/10 |
|
|
Fully Vested |
|
|
|
4 |
|
The aggregate grant date fair value of the options granted to each director on February
13, 2007, was $33,439. |
Certain Transactions
Although Emmis generally prohibits loans to executive officers and directors, we currently
have a loan outstanding to Jeffrey H. Smulyan, our Chairman, Chief Executive Officer and President,
that is grandfathered under the Sarbanes-Oxley Act of 2002. The largest aggregate amount
outstanding on this loan at any month-end during the last fiscal year was $948,297 and the balance
at February 28, 2007 was $948,297. This loan bears interest at our cost of senior debt, which at
February 28, 2007 was approximately 7.3% per annum.
Prior to 2002, Emmis had made certain life insurance premium payments for the benefit of Mr.
Smulyan. Emmis discontinued making such payments in 2001; however, pursuant to a Split Dollar Life
Insurance Agreement and Limited Collateral Assignment dated November 2, 1997, Emmis retains the
right, upon the death, resignation or termination of Mr. Smulyans employment, to recover all of
the premium payments it has made, which total $1.1 million.
During the last fiscal year, Emmis leased an airplane and was party to a timeshare agreement
with Mr. Smulyan with respect to his personal use of the plane. Under the timeshare agreement,
whenever Mr. Smulyan uses the plane for non-business purposes, he pays Emmis for the aggregate
incremental cost to Emmis of operating the plane up to the maximum amount permitted by Federal
Aviation Authority regulations (which maximum generally approximates the total direct cost of
operating the plan for the applicable trip). With respect to personal flights during the last
fiscal year, Mr. Smulyan paid Emmis approximately $313,000 for expenses under the timeshare
arrangement. In addition, under Internal Revenue Service regulations, to the extent Mr. Smulyan
allows non-business guests to travel on the plane on a business trip or takes the plane on a
non-business detour as part of a business trip, additional compensation is attributed to Mr.
Smulyan. Generally, these trips on which compensation is assessed pursuant to IRS regulations do
not result in any material additional cost or expense to Emmis.
A person who shares a household with Michael Levitan, our Executive Vice President of Human
Resources, is the President of EchoPoint, a media buying agency in Indianapolis. In fiscal 2007,
Emmis paid EchoPoint approximately $143,000 in agency commissions, and paid approximately $250,000
for advertisements placed for Emmis by EchoPoint. Emmiss fiscal 2007 revenues from advertisements
placed by EchoPoint were $1,058,000.
Review and Approval of Related Party Transactions
Our board of directors has adopted a written policy for review, approval and monitoring of
transactions between the company and related parties. Related parties are directors, executive
officers,
nominees to become a director, any person beneficially owning more than 5% of any class of our
stock, immediate family members of any of the foregoing, and any entity in which any of the
forgoing persons is employed or is a general partner or principal or in which the person has a 10%
or greater beneficial ownership interest. The policy covers transactions involving amounts
exceeding $120,000 in which a related person had, has or will have a direct or indirect interest.
Procedures. The related party is required to notify our legal department of the facts and
circumstances of any proposed related party transaction. The legal department makes an initial
determination of whether the transaction is subject to the policy. If the legal department
determines that the policy is applicable, the transaction is referred to our audit committee.
Either the audit committee, or the chair of the audit committee between audit committee meetings,
considers the facts and circumstances of the proposed transaction and determines whether to approve
the transaction. The audit committee or the chair, as the case may be, considers, among other
things:
|
|
|
The benefits of the transaction to the company; |
|
|
|
|
The impact of the transaction on a directors independence; |
11
|
|
|
The availability of other sources for comparable products or services; |
|
|
|
|
The terms of the transaction; and |
|
|
|
|
The terms available to unrelated third parties. |
The audit committee may seek bids, quotes or independent valuations from third parties in
connection with assessing a related party transaction. The audit committee or the chair may approve
only transactions that they determine are in, or are not inconsistent with, the best interest of
the company.
Ratification. If a transaction that was not a related party transaction when it was entered
into becomes a related party transaction, or our CEO, CFO, general counsel or secretary become
aware that a transaction that was not approved is a related party transaction, they must promptly
submit the transaction for review by the audit committee.
Annual Review. From time to time, the audit committee will review previously approved related
party transactions that have a remaining term of six months or more or remaining amounts involved
in excess of $120,000. Based on the factors described above, the audit committee determines whether
to continue, modify or terminate the transaction.
REPORT OF THE AUDIT COMMITTEE
The following Report of the audit committee shall not be deemed incorporated by reference by
any general statement incorporating by reference this proxy statement into any of our filings
under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended,
except to the extent that the we specifically incorporate this information by reference, and shall
not otherwise be deemed filed under such Acts.
The audit committee is composed of three directors whom the board of directors has determined
are independent as defined by Nasdaq listing standards. The audit committees responsibilities
are set forth in its written charter approved by the board of directors. The charter is reviewed
annually by the audit committee. A copy of the Audit committee charter may be found on our website
at www.emmis.com/investors/corporate governance.aspx. As required by Nasdaq listing standards, the
audit committee has determined that its charter is adequate. The audit committee has also
determined that its members meet the financial literacy requirements of Nasdaq listing standards.
Management is responsible for the companys internal controls and the financial reporting
process. The independent registered public accountants are responsible for performing an
independent audit of the companys consolidated financial statements in accordance with auditing
standards generally accepted in the United States of America and to issue a report on them. The
audit committees
responsibility is to engage the independent auditor and otherwise to monitor and oversee
these processes. For the fiscal year ended February 28, 2007, the audit committee engaged Ernst &
Young LLP to serve as the companys independent auditor.
The audit committee has met and held discussions with management and Ernst & Young LLP.
Management represented to the audit committee that the companys consolidated financial statements
as of and for the fiscal year ended February 28, 2007 were prepared in accordance with accounting
principles generally accepted in the United States of America, and the audit committee has
reviewed and discussed these consolidated financial statements with management. The audit
committee discussed with the independent registered public accountants matters required to be
discussed by Statement on Auditing Standards No. 61 (Communication with Audit Committees), as
adopted by the Public Company Accounting Oversight Board in Rule 3200T.
In June 2002, the board of directors, upon the recommendation of the audit committee, adopted
an Auditor Independence Policy that, among other things, prohibits the companys independent
auditor from performing certain non-audit services for the company, requires prior approval of the
audit committee for any services provided by the companys independent auditor, limits the hiring
by the company of former employees of the companys independent auditor who have worked on the
Emmis account and requires enhanced disclosure both to the audit committee and to shareholders of
matters related to auditor independence.
Ernst & Young LLP also provided to the audit committee the written disclosures required by
Independence Standards Board No. 1 (Independence Discussions with Audit Committees) as adopted by
the Public Company Accounting Oversight Board in Rule 3600T, and the audit committee discussed
with the independent registered
12
public accountants that firms independence. In addition, the audit committee (or the chairman of
the audit committee with respect to engagements of less than $100,000) approves in advance all
engagements of the companys independent auditor. The audit committee determined that Ernst &
Youngs provision of non-audit services to the company as described in Matters Relating to
Independent Registered Public Accountants is compatible with maintaining that firms independence.
Based on these discussions and reviews, the audit committee members agreed that the audited
financial statements for the companys last fiscal year should be included in our companys Form
10-K, and made a formal recommendation to the board of directors to that effect.
COMPENSATION DISCUSSION AND ANALYSIS
Executive Compensation Policy
The compensation committee oversees our executive compensation program. The compensation
committee membership is determined by the board, and is composed of non-employee independent
directors. They provide a general review of our compensation and benefit plans to ensure that such
plans meet our corporate objectives. The compensation committee also establishes compensation
arrangements and approves compensation payments to Mr. Smulyan and our other executive officers,
and generally administers our equity compensation plans and corporate incentive plan. With respect
to compensation decisions affecting executive officers other than Mr. Smulyan, the compensation
committee typically receives input from Mr. Smulyan in the course of making its decisions. With
respect to compensation decisions affecting non-executive officers and employees, the compensation
committee has delegated this authority to Mr. Smulyan and the other executive officers, provided
such authority is exercised in accordance with any parameters established by the compensation
committee.
The compensation committee bases its executive compensation programs on the following
objectives:
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We historically have entered into multi-year employment agreements with our executive
officers. All executive officers named in the compensation tables in this proxy statement
currently have employment agreements in place. David Newcomer, who was an executive
officer while serving as our Interim Chief Financial Officer, does not have an employment
agreement. The agreements in place generally provide for a base salary, annual performance
bonus, and restricted stock and stock option awards. The compensation committee believes
that entering into these agreements assists us in retaining our key officers and enables
us to focus the officers efforts and energies on enhancing the long-term value of our
company to our shareholders. The total compensation reflected in these employment
agreements is generally based on the officers prior compensation levels, changes in
duties, market data and peer group benchmarking surveys.
In order to attract and retain highly qualified employees, we believe overall compensation
to our executive officers should be targeted at the top third of our peer group, with
exceptions made in appropriate circumstances. |
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|
Compensation should be based on the level of job responsibility, individual
performance and company performance. As executives progress to higher levels in the
organization, an increasing proportion of their pay should be linked to company
performance, because the performance of senior executives is more likely to affect the
companys results. |
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|
Compensation should reflect the value of the job in the marketplace. To attract and
retain highly skilled executives, we must remain competitive with the pay of other
employers who compete with us for talent. |
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|
Compensation should reward performance. The objectives of pay-for-performance and
retention of employees must be balanced. Even in periods of temporary downturns in company
performance, the programs should continue to ensure that successful, high-achieving
employees will remain motivated and committed to the company. |
The Committees Processes
The compensation committee has established a number of processes to assist it in ensuring
that the companys executive compensation program is achieving its objectives. Among those are:
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Assessment of Company Performance. The compensation committee uses station operating income
as principal measure of company performance. For corporate-level executives such as Mr.
Smulyan, Mr. |
13
|
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|
Walsh, Mr. Kaseff and Mr. Newcomer, the compensation committee measures company-wide
station operating income. For executives in the companys business units, such as Mr.
Cummings in the Radio Division and Mr. Fiddick in Emmis International, the company uses
station operating income for the applicable business unit as its principal measure. |
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Assessment of Individual Performance. Individual performance has a strong impact on
the compensation of all employees, including the CEO and the other executive officers. The
compensation committee meets annually with Mr. Smulyan to assess the performance of the
executive officers other than himself, and assigns a numerical rating reflecting the
performance of the executive. The numerical rating scale runs from zero to five, with a
rating of three meaning the executive is meeting the companys expectations and a rating
of five meaning that the executive is far exceeding the companys expectations. The rating
directly affects the executives performance bonus element of the companys 2007 Corporate
Incentive Plan discussed below. |
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Significant Decisions. When the company is hiring a new executive, assigning
substantial new duties to a current executive or contemplating a significant change in its
compensation policy, the compensation committee will from time to time engage in one or
more of the following additional processes: |
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o |
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Engaging Consultants. The compensation committee may engage the services of
compensation consultants when it is considering new policies or engaging new executives.
Among other things, the compensation committee has used consultants to compare cash and
non-cash compensation programs for the companys executive officers with those of other
companies and assess whether they are appropriate to the companys objectives and to
ensure compensation arrangements comply with applicable law. The compensation committee
exercises its judgment and discretion in reviewing and considering these analyses. |
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o |
|
Benchmarking. The compensation committee may benchmark the companys programs with a
peer group of media companies. Although changes and consolidation in the industry will
change the identity of peer companies from time to time, at present the company considers
Citadel Broadcasting Corporation, Cox Radio, Inc., Entercom Communications Corporation and
Radio One, Inc. to be among the peer group of companies that the company would benchmark.
The compensation committee would compare the peer companies executive compensation
programs as a whole, and also compare the pay of individual executives if the jobs are
sufficiently similar to make the comparison meaningful. The compensation committee would
use the peer group data primarily to ensure that the executive compensation program as a
whole is competitive, meaning generally within the upper third of comparative pay of the
peer group companies when the company achieves the targeted performance levels. |
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Total Compensation Review. Each time an executives employment agreement is up for renewal,
the compensation committee reviews the executives base pay, bonus, and equity incentives,
as well as perquisites and other compensation, and, if applicable, payments that would be
required under certain severance and change-in-control scenarios. |
Components of Executive Compensation for Fiscal 2007
For fiscal 2007, the compensation of executives consisted of four primary components base
salary, a performance and incentive bonus under our 2007 Corporate Incentive Plan, stock options
and restricted shares, and a benefits package. The compensation committee believes that this
program balances both the mix of cash and equity compensation, the mix of currently-paid and
longer-term compensation, and the security of foundational benefits in a way that furthers the
compensation objectives discussed above.
Base Salary. Base salary is the guaranteed element of executives annual cash compensation.
The value of base salary reflects the employees role and responsibilities, long-term performance,
skill set and the market value of that skill set. Base salaries for the named executives other than
Mr. Newcomer were fixed for fiscal 2007 in accordance with each executives employment agreement.
However, Mr. Newcomer received a special bonus for serving as Interim Chief Financial Officer. For
calendar year 2006, each executive had the option to forego a portion of his base salary in
exchange for restricted shares of the companys stock under our stock compensation program. The
restricted shares were valued at a discount from the fair market value of the companys shares at
the beginning of the calendar year. The discount was 10% if the executive elected to forego up to
5% of salary, and the discount was 20% for amounts in excess of 5% of salary that the executive
elected to forego.
14
2007 Corporate Incentive Plan. Our 2007 Corporate Incentive Plan has two components, a target
bonus and a performance goal. Generally, for fiscal 2007, payment of 70% of an executive officers
target bonus is based on achievement of station (publishing) operating income targets for the
applicable business unit, and the remainder is based on a review of individual performance. Because
he became the companys Chief Financial Officer during the fiscal year, Mr. Walshs awards were
allocated 50% to each component. Similarly, because our international radio division is more of a
start-up operation than our radio and publishing divisions, Mr. Fiddicks award was also allocated
50% to each component. The total target award for each executive officer is fixed by the
executives employment agreement. The table below sets forth the target awards for each executive
officer named in the compensation tables below, other than Mr. Newcomer:
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Individual |
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|
|
Operating Income |
|
Performance Target |
|
|
Name |
|
|
Target Award |
|
Award |
|
Total Target Award |
Mr. Smulyan |
|
|
$ |
770,000 |
|
|
$ |
330,000 |
|
|
$ |
1,100,000 |
|
Mr. Walsh |
|
|
$ |
75,000 |
|
|
$ |
75,000 |
|
|
$ |
150,000 |
|
Mr. Cummings |
|
|
$ |
239,050 |
|
|
$ |
102,450 |
|
|
$ |
341,500 |
|
Mr. Kaseff |
|
|
$ |
172,200 |
|
|
$ |
73,800 |
|
|
$ |
246,000 |
|
Mr. Fiddick |
|
|
$ |
100,000 |
|
|
$ |
100,000 |
|
|
$ |
200,000 |
|
The actual awards earned are set forth in the Summary Compensation Table in the columns denominated
Bonus for the individual performance portion of the award, and Non-Equity Incentive
Compensation for the operating income portion. The executive earned a percentage of the operating
income target award depending upon the extent to which the operating income goals were attained in
accordance with the following scale:
|
|
|
|
|
Percentage of Performance Goal Attained |
|
Percentage of Target Award Earned |
115% or more (130% for Mr. Fiddick) |
|
|
150 |
% |
110% (115% for Mr. Fiddick) |
|
|
125 |
% |
100% |
|
|
100 |
% |
90% (70% for Mr. Fiddick) |
|
70% (50% for Mr. Fiddick) |
Less than 90% (less than 70% for Mr. Fiddick) |
|
|
0 |
% |
The company believes the operating income goals set for its executives under the 2007
Corporate Incentive Plan are appropriate. Station operating income is widely used as a performance
measure within the broadcasting and publishing industries. The operating income targets were set
early in the fiscal year in accordance with Section 162(m) of the Internal Revenue Code, based upon
a combination of internal budgets and Wall Street analyst expectations. Of the named executive
officers, only Mr. Walsh and Mr. Fiddick achieved their targets in fiscal 2007 and received any
portion of their operating income target award.
The compensation committee may from time to time adjust the performance goals of the
executives to eliminate the effect of extraordinary events. For fiscal 2007, the compensation
committee made one adjustment, eliminating a non-cash impairment charge related to the write-down
of Emmis Books remaining inventory. The compensation committee determined that the non-cash charge
should be excluded, provided that any further revenue related to sales of the written off inventory
is also excluded from any future annual incentive plans.
Total station operating income must be at least 75% of the target total station operating
income goal in order for the executive to receive the portion of the award based upon a review of
individual performance. After review of the executives performance, based upon the recommendation
of Mr. Smulyan in the case of executive officers other than Mr. Smulyan, the compensation committee
assigned a numerical rating from zero to five reflecting its judgment of the executives
performance. The executive receives a percentage of the individual performance portion of his
target award based on the following scale:
|
|
|
|
|
Rating |
|
Percentage of Target Award Earned |
5.0 (far exceeds expectations) |
|
|
120 |
% |
4.0 (exceeds expectations) |
|
|
110 |
% |
3.0 (meets expectations) |
|
|
100 |
% |
2.5 |
|
|
95 |
% |
Less than 2.5. |
|
|
0 |
% |
15
All of the named executives received ratings of 3.75 or above and received in excess of 100%
of their target award for individual performance in fiscal 2007. Awards to executive officers under
the 2007 plan were paid, subject to minimum tax withholdings, in shares of common stock.
2004 Equity Compensation Plan. We award the equity component of executive compensation under
our 2004 Equity Compensation Plan. On or about March 1 of each year, we grant to each executive a
number of options and restricted shares fixed in accordance with the executives employment
agreement. The grant date is tied to the date on which the company makes annual equity awards to
substantially all of its full time employees. The options become exercisable in three equal annual
installments, on the first, second and third anniversaries of the date of grant. The exercise price
is equal to the fair market value of our shares on the date of grant. Restricted shares vest on the
third anniversary of the initial grant. Most officers received both options and restricted stock
under this new program. However, Mr. Smulyan continues to receive all stock options as provided in
his employment agreement.
By fixing the annual grant date for options and restricted stock grants at March 1 of each
year (the first day of our fiscal year), we believe we have substantially eliminated the
possibility of manipulation of the timing of grants. We do make an exception to this policy in the
case of new hires. For example, Mr. Walsh was granted options and restricted shares on September 4,
2006, the date of his hire. We also delay grants to executive officers if the paperwork for grants
to employees other than executive officers is not completed by March 1 of each year. We believe
that it is important for employee morale that equity awards to executives and other employees be
made on the same date and at the same share valuations.
We also grant restricted shares that vest on the completion of the executives employment
agreement. We intend the grant of these completion shares to provide incentive to the executive
to remain with the company throughout the term of his employment agreement. Mr. Walsh received a
grant of completion shares on September 4, 2006, the date of his hire.
If the company pays a dividend on its common shares, the dividend is paid on shares of
restricted stock. Thus, executives and other employees holding restricted stock received the
extraordinary dividend of $4.00 per share in November 2006.
Perquisites. The company provides certain limited perquisites or personal benefits to its
executive officers. Most of the companys executive officers receive a monthly automobile
allowance, reimbursement for certain life, disability, and long-term care insurance, and matching
contributions to the companys 401(k) plan. The company will also reimburse the relocation expenses
of new hires who must move to one of the companys locations. The 401(k) matching contributions are
made on the same terms available to all participants in the plan. In addition, the company aircraft
is made available for the personal use of Mr. Smulyan and other executive officers. The
compensation committee believes that the use of the corporate aircraft allows the executive
officers to conduct company business while traveling, and offers security and efficiency that are
worth more to the company than the cost. However, the company requires that executives using the
plane for purely personal trips reimburse the company for the incremental cost of the trip to the
extent permitted for non-commercial aircraft under FAA regulations. Accordingly, Mr. Smulyan has
entered into a timeshare arrangement for the corporate aircraft under which he pays the company a
lease fee for personal use based upon the lesser of the Gulfstream IV Total Direct Cost Per
Flight as published by Conklin & deDecker Aviation Information or the maximum amount of expense
reimbursement permitted under FAA regulations for non-commercial aircraft. Occasionally, Mr.
Smulyan and other executive officers may use the corporate aircraft for personal side trips on
otherwise business flights. Because these trips are part of a business trip, the company accounts
for such side trips using the Standard Industry Fair Level Rates as published by the Internal
Revenue Service, and is not fully reimbursed for the incremental cost of such side trips. None of
the executives used the company plane for a personal side trip in fiscal 2007. In addition,
depending on seat availability, friends or family members of executive officers may travel on the
company aircraft to accompany executives who are traveling on business. There is no incremental
cost to the company for these trips.
Severance Benefits
The employment agreements we have entered into with Mr. Smulyan, Mr. Walsh, Mr. Kaseff and Mr.
Fiddick provide for certain payments and benefits to the named executive officer in the event that
the executive officer is terminated by the company without cause, or terminates his own
employment with good reason. Mr. Smulyan is also entitled to certain payments upon his voluntary
termination, death and disability.
We have also entered into a Change in Control Severance Agreement with each of the executives
named in the preceding tables. Each such agreement provides that if the executives employment is
terminated by the
16
company within two years after a
change-in-control of the company (or, in certain instances,
in anticipation of a change in control) other than for cause, or is terminated by the executive for
good reason, the executive is entitled to (1) a payment equal to the executives base salary
through the termination date, plus a pro rata portion of the executives target bonus for the year
and accrued vacation pay; (2) a severance payment from one and one-half to three times the
executives highest annual base salary and highest annual incentive bonus during the preceding
three years; (3) continued insurance benefits for three years; (4) immediate vesting of all stock
options; and (5) if the payments to the executive exceed certain limits, additional tax gross up
payments to compensate the executive for the excise tax imposed by section 4999 of the Internal
Revenue Code. In each case, the executive is obligated not to voluntarily leave employment with
Emmis during the pendency of (and prior to the consummation or abandonment of) a change-in-control
other than as a result of disability, retirement or an event that would constitute good reason if
the change-of-control had occurred. In addition, under our 2004 Equity Compensation Plan, all
outstanding stock options, restricted shares and other awards held by the executive vest
immediately if the compensation committee determines that a change in control has occurred.
The Change in Control Severance Agreements are intended to preserve employee morale and
productivity and encourage retention in the face of the disruptive impact of an actual or rumored
change in control of the company. In addition, for executives, the agreements are intended to align
executive and shareholder interests by enabling executives to consider corporate transactions that
are in the best interests of the shareholders and other constituents of the company without undue
concern over whether the transactions may jeopardize the executives own employment.
Although there are some differences in benefit levels depending on the executives job level
and seniority, the basic elements of the Change in Control Severance Agreements are comparable for
all executives:
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Double trigger. Unlike single trigger plans that pay out immediately upon a change in
control, the agreements require a double trigger a change in control followed by an
involuntary loss of employment within two years thereafter, or in the case of Mr. Smulyan,
Mr. Cummings, Mr. Kaseff and Mr. Walsh, a voluntary termination during a 30-day period
beginning one year after the change in control. This is consistent with the purpose of the
agreements, which is to provide executives with a guaranteed level of financial protection
upon loss of employment and to provide for a smooth transition in connection with a change
in control. |
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|
Covered terminations. Executives are eligible for payments if, within two years of the
change in control, their employment is terminated (i) without cause by the company, (ii)
for good reason by the employee, or (iii) in certain cases, for any reason by the employee
during a 30-day period beginning one year after the change in control. |
|
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|
Severance payment. Executives would receive a severance payment ranging from eighteen
months to three years base salary, plus from one and one-half to three times the highest
annual bonus paid in the three years prior to the change in control. |
|
|
|
|
Benefits continuation. Basic employee benefits such as health, dental, accident and
life insurance would be continued for up to three years following termination of
employment. |
|
|
|
|
Accelerated vesting of stock options. Any unvested stock options become exercisable at
the time of termination of employment. |
|
|
|
|
Excise tax. In the event the payments made to the executive, or the value of other
benefits received by the executive, in connection with a change in control exceed certain
limits, Section 4999 of the Internal Revenue Code imposes an excise tax on the employee.
The costs of this excise tax, including related tax gross-ups, would be borne by the
company. |
17
Deductibility Cap on Executive Compensation
U.S. federal income tax law prohibits the company from taking a tax deduction for certain
compensation paid in excess of $1,000,000 to the named executive officers listed in the summary
compensation table below. However, performance-based compensation, as defined in the tax law, is
fully deductible if the programs are approved by shareholders and meet other requirements. Our
policy is to qualify our incentive compensation programs for full corporate deductibility to the
extent feasible and consistent with our overall compensation goals as reflected in the summary
compensation table below. The compensation committee believes that substantially all of the
compensation paid to any executive officer in excess of $1,000,000 in fiscal 2007 was fully
deductible, except for a portion of the extraordinary dividends paid on restricted stock held by
Richard F. Cummings. However, the compensation committee may approve payments that are not fully
deductible if, in its judgment, such payments are necessary to achieve the companys compensation
objectives and to protect shareholder interests.
Executive Compensation Recovery Policy
The compensation committee has adopted an executive compensation recovery policy applicable to
executive officers. Under this policy, the company may recover incentive compensation (cash or
equity) that was based on achievement of financial results that were subsequently the subject of a
restatement if an executive officer engaged in intentional misconduct that caused or partially
caused the need for the restatement, and the effect of the wrongdoing was to increase the amount of
bonus or incentive compensation. This policy covers income related to cash bonuses and performance
awards.
Equity Ownership Requirements
While the company encourages all of its employees to invest in the company by including all of
them in its equity award programs, the company does not require any executives or other employees
to maintain a certain level of equity ownership in the company. The board of directors believes
that the decision to invest in the company is a highly personal one, and consequently should not be
mandated.
Fiscal 2008 Compensation Decisions
At the end of calendar year 2006, the company discontinued its stock compensation program
under which any employee, including executives, could elect to receive stock in lieu of a portion
of his salary. The compensation committee found the burden of administering the program did not
result in commensurate advancement of the companys compensation goals.
The companys 2008 Corporate Incentive Plan is substantially similar to the 2007 plan. The
compensation committee has formally adopted the policy of excluding the effect of non-cash charges
on performance goals as discussed above, and has specifically excluded any revenues attributable to
Emmis Books. The target awards of the named executive officers for fiscal 2008 are fixed in
accordance with their respective employment agreements and the operating income goals are based on
the approved budgets. In the case of Messrs. Walsh and Fiddick, the allocation between operating
income and individual performance has been adjusted to 70/30 and 60/40, respectively.
The companys other compensation programs remain in place without material change for
fiscal 2008.
None of our current executive officers has received any bonus in connection with the sale of
the companys television division, even though television sales bonuses were paid to substantially
all television division and corporate employees. The compensation committee determined not to
address the issue of television sale bonuses, if any, for executive officers until all the
television stations had been sold. When the remaining television stations are sold, the
compensation committee may determine to award discretionary bonuses to executives and other
employees.
18
Compensation Committee Report
The compensation committee has reviewed and discussed the Compensation Discussion and Analysis
set forth above with management, and based on such review and discussions, the compensation
committee recommended to the board of directors that the Compensation Discussion and Analysis
be included in this proxy statement.
THE COMPENSATION COMMITTEE
Peter A.
Lund, Chairman
Susan B. Bayh
Lawrence B. Sorrel
19
COMPENSATION TABLES
The following table sets forth the compensation awarded to, earned by, or paid to the chief
executive officer, each person who served as chief financial officer, and the three most highly
compensated executive officers other than the chief executive officer and the chief financial
officer (collectively, the Named Executive Officers) during the fiscal year ended February 28,
2007.
2007 SUMMARY COMPENSATION TABLE1
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|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-Equity |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock |
|
Option |
|
Incentive Plan |
|
All Other |
|
|
|
|
|
|
|
|
Salary2 |
|
Bonus3 |
|
Awards4 |
|
Awards4 |
|
Compensation3 |
|
Compensation5 |
|
Total |
Name and Principal Position |
|
Year |
|
($) |
|
($) |
|
($) |
|
($) |
|
($) |
|
($) |
|
($) |
Jeffrey H. Smulyan, Chief |
|
|
2007 |
|
|
|
880,000 |
|
|
|
369,600 |
|
|
|
|
|
|
|
642,667 |
|
|
|
|
|
|
|
49,893 |
|
|
|
1,942,160 |
|
Executive Officer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Patrick M. Walsh, |
|
|
2007 |
|
|
|
176,923 |
|
|
|
89,135 |
|
|
|
46,537 |
|
|
|
10,984 |
|
|
|
76,081 |
|
|
|
118,143 |
|
|
|
517,803 |
|
Executive Vice President, |
|
|
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|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Chief Financial Officer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
and Treasurer6 |
|
|
|
|
|
|
|
|
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|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David R. Newcomer, |
|
|
2007 |
|
|
|
182,918 |
|
|
|
139,117 |
|
|
|
16,775 |
|
|
|
17,673 |
|
|
|
|
|
|
|
13,552 |
|
|
|
370,035 |
|
Interim Chief Financial |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Officer6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Richard F. Cummings, |
|
|
2007 |
|
|
|
495,000 |
|
|
|
110,134 |
|
|
|
419,433 |
|
|
|
96,400 |
|
|
|
|
|
|
|
291,074 |
|
|
|
1,412,041 |
|
Radio Division President |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gary L. Kaseff, Executive |
|
|
2007 |
|
|
|
437,500 |
|
|
|
83,025 |
|
|
|
282,916 |
|
|
|
80,333 |
|
|
|
|
|
|
|
192,000 |
|
|
|
1,075,774 |
|
Vice President and |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
General Counsel |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Paul W. Fiddick, |
|
|
2007 |
|
|
|
340,000 |
|
|
|
115,000 |
|
|
|
24,555 |
|
|
|
48,200 |
|
|
|
103,333 |
|
|
|
20,000 |
|
|
|
651,088 |
|
International Division |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
President |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1 |
|
We have adjusted the exercise prices and numbers of shares subject to options
referred to in this and the following tables and accompanying text and footnotes for the effect of
the $4.00 per share special dividend we paid on November 22, 2006. We have also adjusted the
numbers of restricted shares granted or to be granted after that date to reflect the split. The
shares we refer to in this and the following tables are Class A common shares of the company,
except with respect to Mr. Smulyan, whose shares are Class B common shares. |
|
2 |
|
Under our 2006 stock compensation program, some of our executives elected forego a
portion of their salary in exchange for restricted shares of the companys stock. The restricted
shares were valued at a discount from the fair market value of the companys shares at the
beginning of the calendar year. The discount was 10% for the first 5% of salary foregone, and 20%
for amounts foregone in excess of 5%. The following table sets forth the amount of salary foregone
and the number of shares received by each of the named executives who elected to forego a portion
of salary in fiscal year 2007: |
|
|
|
|
|
|
|
|
|
Name |
|
Salary Foregone ($) |
|
Shares (#) |
Mr. Smulyan |
|
|
146,667 |
|
|
|
10,038 |
|
Mr. Newcomer |
|
|
15,445 |
|
|
|
2,847 |
|
Mr. Cummings |
|
|
41,250 |
|
|
|
4,694 |
|
Mr. Kaseff |
|
|
54,687 |
|
|
|
6,307 |
|
|
|
|
3 |
|
Generally under our 2007 Corporate Incentive Plan, we paid discretionary
performance bonuses and non-equity incentive plan awards to executive officers in stock valued at
the fair market value of the companys shares on the day the shares are issued. However, Mr.
Newcomers bonus was paid in cash. The number of shares issued to each executive officer for
discretionary bonuses and incentive plan award, is as follows: Mr. Smulyan, 37,600; Mr. Walsh,
16,808; Mr. Cummings, 11,204; Mr. Kaseff, 8,447; Mr. Fiddick, 22,211. |
|
4 |
|
These values
represent the amounts we recognized as compensation expense in accordance with Financial Accounting
Standards Statement No. 123R. They may include amounts attributable to awards made in past years. A
discussion of the assumptions used in calculating these values may be found in Note 5 to our
audited financial statements beginning on page [80] of our annual report. |
20
|
|
|
5 |
|
The following table sets forth the items comprising All Other Compensation for each
named executive officer. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Company |
|
|
|
|
|
|
|
|
|
|
Perquisites |
|
|
|
|
|
|
|
|
|
Contributions |
|
Dividends |
|
|
|
|
|
|
|
|
and Other |
|
|
|
|
|
|
|
|
|
to Retirement |
|
Paid on |
|
|
|
|
|
|
|
|
Personal |
|
Tax |
|
Insurance |
|
and |
|
Restricted |
|
|
|
|
|
|
|
|
BenefitsA |
|
Reimbursements |
|
PremiumsB |
|
401(k) Plans |
|
StockC |
|
|
Name |
|
Year |
|
($) |
|
($) |
|
($) |
|
($) |
|
($) |
|
Total ($) |
Jeffrey H. Smulyan |
|
|
2007 |
|
|
|
47,247 |
|
|
|
646 |
|
|
|
|
|
|
|
2,000 |
|
|
|
|
|
|
|
49,893 |
|
Patrick M. Walsh |
|
|
2007 |
|
|
|
22,710 |
|
|
|
127 |
|
|
|
1,306 |
|
|
|
2,000 |
|
|
|
92,000 |
|
|
|
118,143 |
|
David R. Newcomer |
|
|
2007 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,000 |
|
|
|
11,552 |
|
|
|
13,552 |
|
Richard F. Cummings |
|
|
2007 |
|
|
|
12,000 |
|
|
|
|
|
|
|
5,074 |
|
|
|
2,000 |
|
|
|
272,000 |
|
|
|
291,074 |
|
Gary L. Kaseff |
|
|
2007 |
|
|
|
12,000 |
|
|
|
|
|
|
|
5,000 |
|
|
|
2,000 |
|
|
|
173,000 |
|
|
|
192,000 |
|
Paul W. Fiddick |
|
|
2007 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,000 |
|
|
|
18,000 |
|
|
|
20,000 |
|
|
|
|
A |
|
Perquisites and other personal benefits for named executive officers other than
Mr. Fiddick and Mr. Newcomer includes an automobile allowance. The figure for Mr. Walsh includes
relocation expenses. The figures for Mr. Smulyan include the incremental cost to the company of
personal use of the companys airplane. From time to time, family members and guests of the named
executives may accompany the executives on business flights on the companys airplane, at no
incremental cost to the company. |
|
B |
|
The company paid premiums for life, disability or
long-term care insurance for Mr. Walsh, Mr. Cummings and Mr. Kaseff. |
|
C |
|
The company paid a special dividend of $4.00 per share on November 22, 2006. The
figures shown reflect dividends paid on restricted shares held by the executives that were not
included in the calculation of compensation expense set forth in the Stock Awards column above. |
|
6 |
|
Mr. Walsh became Chief Financial Officer on September 4, 2006. Mr. Newcomer served as
Interim Chief Financial Officer until that date. |
21
2007 GRANTS OF PLAN-BASED AWARDS TABLE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All Other |
|
All Other |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock Awards: |
|
Option Awards: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of |
|
Number of |
|
Exercise or |
|
|
|
|
|
|
|
|
Estimated Future Payouts Under |
|
Shares of |
|
Securities |
|
Base Price |
|
Grant Date Fair |
|
|
|
|
|
|
Non-Equity Incentive Plan Awards1 |
|
Stock or |
|
Underlying |
|
of Option |
|
Value of Stock and |
|
|
Grant |
|
Threshold |
|
Target |
|
Maximum |
|
Units2 |
|
Options2 |
|
Awards |
|
Option Awards |
Name |
|
Date |
|
($) |
|
($) |
|
($) |
|
(#) |
|
(#) |
|
($/Sh) |
|
($) |
Jeffrey H. Smulyan |
|
|
3/01/06 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
292,699 |
|
|
|
11.17 |
|
|
|
1,928,000 |
|
|
|
|
5/11/07 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
37,600 |
|
|
|
|
|
|
|
|
|
|
|
369,600 |
|
|
|
|
|
|
|
|
539,000 |
|
|
|
770,000 |
|
|
|
1,155,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Patrick M. Walsh |
|
|
9/04/06 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
14,634 |
|
|
|
8.30 |
|
|
|
65,900 |
|
|
|
|
9/04/06 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
23,000 |
|
|
|
|
|
|
|
|
|
|
|
279,220 |
|
|
|
|
5/11/07 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16,808 |
|
|
|
|
|
|
|
|
|
|
|
165,216 |
|
|
|
|
|
|
|
|
52,500 |
|
|
|
75,000 |
|
|
|
112,500 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David R. Newcomer |
|
|
3/01/06 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8,049 |
|
|
|
11.17 |
|
|
|
53,020 |
|
|
|
|
3/01/06 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,650 |
|
|
|
|
|
|
|
|
|
|
|
27,011 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Richard F. Cummings |
|
|
3/01/06 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
43,904 |
|
|
|
11.17 |
|
|
|
289,200 |
|
|
|
|
3/01/06 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9,000 |
|
|
|
|
|
|
|
|
|
|
|
147,330 |
|
|
|
|
5/11/07 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11,204 |
|
|
|
|
|
|
|
|
|
|
|
110,134 |
|
|
|
|
|
|
|
|
167,335 |
|
|
|
239,050 |
|
|
|
358,575 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gary L. Kaseff |
|
|
3/01/06 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
36,587 |
|
|
|
11.17 |
|
|
|
241,000 |
|
|
|
|
3/01/06 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7,500 |
|
|
|
|
|
|
|
|
|
|
|
122,775 |
|
|
|
|
5/11/07 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8,447 |
|
|
|
|
|
|
|
|
|
|
|
83,025 |
|
|
|
|
|
|
|
|
120,540 |
|
|
|
172,200 |
|
|
|
258,300 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Paul W. Fiddick |
|
|
3/01/06 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
21,952 |
|
|
|
11.17 |
|
|
|
144,600 |
|
|
|
|
3/01/06 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,500 |
|
|
|
|
|
|
|
|
|
|
|
73,665 |
|
|
|
|
5/11/07 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
22,211 |
|
|
|
|
|
|
|
|
|
|
|
218,333 |
|
|
|
|
|
|
|
|
50,000 |
|
|
|
100,000 |
|
|
|
150,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1 |
|
These columns show the range of payouts for fiscal year 2007 station (publishing)
operating income performance under the companys 2007 Corporate Incentive Plan. The 2007 Corporate
Incentive Plan is described under the caption 2007 Corporate Incentive Plan in the Compensation
Discussion and Analysis section above. The amounts actually earned for fiscal 2007 are shown in the
Summary Compensation Table in the Non-Equity Incentive Plan Compensation Column. |
|
2 |
|
These columns show stock and option awards granted under the company 2004 Equity
Compensation Plan. The 2004 Equity Compensation Plan is described under the caption Equity
Compensation Plan in the Compensation Discussion and Analysis section above. |
22
Employment Agreements
Effective March 1, 2004, we entered into a four-year employment agreement with Jeffrey H.
Smulyan, who currently serves as our Chairman of the board of directors and Chief Executive
Officer. As of March 1, 2006, Mr. Smulyans base compensation was $880,000; as of March 1, 2007,
Mr. Smulyans base compensation was scheduled to increase to $905,000. However, on December 5,
2006, Mr. Smulyan announced that he would forego all but one dollar of his base compensation for
the fiscal year ending February 29, 2008. Mr. Smulyans annual incentive compensation target for
fiscal 2007 was $1,100,000 and will increase to $1,131,250 for fiscal 2008. The company retains the
right to pay any annual incentive compensation in cash or shares of our common stock. Mr. Smulyan
received an option to acquire 292,699 shares of our Class B common stock on or about March 1, 2007.
Mr. Smulyan will continue to receive an automobile allowance and will continue to be reimbursed
for up to $10,000 per year in premiums for life and disability insurance and retains the right to
participate in all of our employee benefit plans for which he is otherwise eligible.
Effective September 4, 2006, we entered into a three-year employment agreement with Patrick
Walsh, who serves as Executive Vice President, Chief Financial Officer and Treasurer. Mr. Walshs
annual base compensation is $400,000. Mr. Walshs annual incentive compensation target is $150,000
for the fiscal year ended February 28, 2007, and $200,000 thereafter. The company retains the
right to pay any annual incentive compensation in cash or shares of our common stock. Mr. Walsh
received an option to acquire 14,634 of our common stock and a grant of 3,000 restricted shares on
September 4, 2006. Mr. Walsh received an option to acquire 29,269 shares and a grant of 8,780
restricted shares on March 1, 2007, and will receive options to acquire the same number of shares
and a grant of the same number of restricted shares on each of March 1, 2008 and March 1, 2009.
Mr. Walsh is also scheduled to receive a completion bonus of 20,000 shares of our common stock upon
his completion of the agreement. Mr. Walsh receives an automobile allowance and is reimbursed for
up to $5,000 per year in premiums for life and disability insurance and retains the right to
participate in all of our employee benefit plans for which he is otherwise eligible.
Effective February 7, 2005, we amended the employment agreement of Richard F. Cummings, who
currently serves as our Radio Division President. The term of Mr. Cummings employment was
extended for a period of three years from February 28, 2005, to February 29, 2008. Mr. Cummings
base salary is $495,000 per year. Mr. Cummings annual incentive compensation target is $341,500
(payable in cash or shares of our common stock at our option) based upon achievement of certain
performance goals to be determined each year by our compensation committee. On March 1, 2007, Mr.
Cummings received an option to acquire 43,904 shares of our common stock and a grant of 13,171
restricted shares. Mr. Cummings is also scheduled to receive a completion bonus of 50,000 shares of
our common stock upon the expiration of the agreement. Mr. Cummings will continue to receive an
automobile allowance and will continue to be reimbursed for up to $5,000 per year in premiums for
life and disability insurance and retains the right to participate in all of our employee benefit
plans for which he is otherwise eligible.
Effective February 7, 2005, we amended the employment agreement of Gary L. Kaseff, who
currently serves as our Executive Vice President and General Counsel. The term of Mr. Kaseffs
employment was extended for a period of three years from February 28, 2005, to February 29, 2008.
As of March 1, 2006, Mr. Kaseffs annual base compensation was $437,500. As of March 1, 2007, Mr.
Kaseffs annual base compensation was increased to $450,000. As of March 1, 2006, Mr. Kaseffs
annual incentive compensation target was $246,000. As of March 1, 2007, Mr. Kaseffs annual
incentive compensation target was increased to $253,000. The company retains the right to pay any
annual incentive compensation in cash or shares of our common stock. Additionally, the award of
annual incentive compensation is based upon achievement of certain performance goals to be
determined each year by our compensation committee. On March 1, 2007, Mr. Kaseff received an
option to acquire 36,587 shares of our common stock and a grant of 10,976 restricted shares. Mr.
Kaseff is also entitled to receive a completion bonus of 28,250 shares of our common stock upon his
completion of the agreement. Mr. Kaseff will continue to receive an automobile allowance and will
continue to be reimbursed for up to $5,000 per year in premiums for life and disability insurance
and retains the right to participate in all of our employee benefit plans for which he is otherwise
eligible.
Effective May 31, 2006, we amended the employment agreement of Paul W. Fiddick, who currently
serves as our International Division President. The term of Mr. Fiddicks employment was extended
for a period of three years from February 28, 2006, to February 28, 2009. As of March 1, 2006, Mr.
Fiddicks annual base compensation was $340,000. As of March 1, 2007, Mr. Fiddicks annual base
compensation was increased to $350,000, and is scheduled to increase to $360,000 on March 1, 2008.
As of March 1, 2006, Mr. Fiddicks annual incentive compensation target was $200,000. As of March
1, 2007, Mr. Fiddicks annual incentive compensation target was
23
increased to $205,000, and is scheduled to increase to $210,000 on March 1, 2008. The company retains the right to pay any
annual incentive compensation in cash or shares of our common stock. Additionally, the award of annual incentive
compensation is based upon achievement of certain performance goals to be determined each year by
our compensation committee. On March 1, 2007, Mr. Fiddick received an option to acquire 21,952 shares
of our common stock and a grant of 6,585 restricted shares, and is scheduled to receive an option for
a like number of shares and a like number of restricted shares on or about March 1, 2008. Mr. Fiddick is
also entitled to receive a minimum completion bonus of 10,000 shares of our common stock upon his
completion of the agreement. Mr. Fiddick retains the right to participate in all of our employee benefit plans for which he is otherwise eligible.
24
2007 OUTSTANDING EQUITY AWARDS AT FISCAL YEAR-END TABLE
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|
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|
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|
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Option Awards |
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Stock Awards |
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Market |
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Number of |
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Value of |
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Number of |
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Number of |
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|
|
|
|
|
Shares or |
|
Shares or |
|
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Securities |
|
Securities |
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|
|
|
|
|
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Units of |
|
Units of |
|
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Underlying |
|
Underlying |
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Option |
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|
|
|
|
Stock That |
|
Stock That |
|
|
Unexercised |
|
Unexercised |
|
Exercise |
|
Option |
|
Have Not |
|
Have Not |
|
|
Options |
|
Options1 |
|
Price |
|
Expiration |
|
Vested |
|
Vested7 |
|
|
(#) |
|
(#) |
|
($) |
|
Date |
|
(#) |
|
($) |
Name |
|
Exercisable |
|
Unexercisable |
|
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|
|
|
|
|
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|
|
|
|
|
|
|
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Jeffrey H. Smulyan |
|
|
|
|
|
|
292,699 |
|
|
|
11.17 |
|
|
|
3/01/16 |
|
|
|
|
|
|
|
|
|
|
|
|
292,699 |
|
|
|
|
|
|
|
12.81 |
|
|
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3/01/15 |
|
|
|
|
|
|
|
|
|
|
|
|
438,949 |
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|
|
|
|
|
17.45 |
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|
|
3/01/14 |
|
|
|
|
|
|
|
|
|
|
|
|
1,463,500 |
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|
|
|
|
|
19.31 |
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|
|
10/23/09 |
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|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Patrick M. Walsh |
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|
|
|
|
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14,634 |
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|
|
8.30 |
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|
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9/04/16 |
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|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
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|
|
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3,000 |
2 |
|
|
24,660 |
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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20,000 |
3 |
|
|
164,400 |
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|
|
|
|
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|
|
|
|
|
|
|
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|
|
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|
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|
|
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|
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David R. Newcomer |
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|
|
|
|
|
8,049 |
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|
|
11.17 |
|
|
|
3/01/16 |
|
|
|
|
|
|
|
|
|
|
|
|
6,036 |
|
|
|
|
|
|
|
12.81 |
|
|
|
3/01/15 |
|
|
|
|
|
|
|
|
|
|
|
|
12,732 |
|
|
|
|
|
|
|
17.45 |
|
|
|
3/01/14 |
|
|
|
|
|
|
|
|
|
|
|
|
12,439 |
|
|
|
|
|
|
|
11.22 |
|
|
|
3/04/13 |
|
|
|
|
|
|
|
|
|
|
|
|
12,439 |
|
|
|
|
|
|
|
19.90 |
|
|
|
3/06/12 |
|
|
|
|
|
|
|
|
|
|
|
|
11,707 |
|
|
|
|
|
|
|
19.82 |
|
|
|
3/01/11 |
|
|
|
|
|
|
|
|
|
|
|
|
10,975 |
|
|
|
|
|
|
|
24.18 |
|
|
|
3/01/10 |
|
|
|
|
|
|
|
|
|
|
|
|
4,391 |
|
|
|
|
|
|
|
15.51 |
|
|
|
3/01/07 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,650 |
4 |
|
|
13,563 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,238 |
5 |
|
|
10,176 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Richard F.
Cummings |
|
|
|
|
|
|
43,904 |
|
|
|
11.17 |
|
|
|
3/01/16 |
|
|
|
|
|
|
|
|
|
|
|
|
43,904 |
|
|
|
|
|
|
|
12.81 |
|
|
|
3/01/15 |
|
|
|
|
|
|
|
|
|
|
|
|
73,174 |
|
|
|
|
|
|
|
17.45 |
|
|
|
3/01/14 |
|
|
|
|
|
|
|
|
|
|
|
|
73,174 |
|
|
|
|
|
|
|
11.22 |
|
|
|
3/04/13 |
|
|
|
|
|
|
|
|
|
|
|
|
73,174 |
|
|
|
|
|
|
|
19.90 |
|
|
|
3/06/12 |
|
|
|
|
|
|
|
|
|
|
|
|
73,174 |
|
|
|
|
|
|
|
19.82 |
|
|
|
3/01/11 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9,000 |
4 |
|
|
73,980 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50,000 |
5 |
|
|
411,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gary L. Kaseff |
|
|
|
|
|
|
36,587 |
|
|
|
11.17 |
|
|
|
3/01/16 |
|
|
|
|
|
|
|
|
|
|
|
|
36,587 |
|
|
|
|
|
|
|
12.81 |
|
|
|
3/01/15 |
|
|
|
|
|
|
|
|
|
|
|
|
73,174 |
|
|
|
|
|
|
|
17.45 |
|
|
|
3/01/14 |
|
|
|
|
|
|
|
|
|
|
|
|
73,174 |
|
|
|
|
|
|
|
11.22 |
|
|
|
3/01/13 |
|
|
|
|
|
|
|
|
|
|
|
|
73,174 |
|
|
|
|
|
|
|
19.90 |
|
|
|
3/01/12 |
|
|
|
|
|
|
|
|
|
|
|
|
58,539 |
|
|
|
|
|
|
|
19.82 |
|
|
|
3/01/11 |
|
|
|
|
|
|
|
|
|
|
|
|
58,539 |
|
|
|
|
|
|
|
24.18 |
|
|
|
3/01/10 |
|
|
|
|
|
|
|
|
|
|
|
|
11,710 |
|
|
|
|
|
|
|
15.51 |
|
|
|
3/01/09 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7,500 |
4 |
|
|
61,650 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
28,250 |
5 |
|
|
232,215 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Paul W. Fiddick |
|
|
|
|
|
|
21,952 |
|
|
|
11.17 |
|
|
|
3/01/16 |
|
|
|
|
|
|
|
|
|
|
|
|
38,416 |
|
|
|
|
|
|
|
12.81 |
|
|
|
3/01/15 |
|
|
|
|
|
|
|
|
|
|
|
|
38,416 |
|
|
|
|
|
|
|
17.45 |
|
|
|
3/01/14 |
|
|
|
|
|
|
|
|
|
|
|
|
10,976 |
|
|
|
|
|
|
|
11.22 |
|
|
|
3/04/13 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,500 |
4 |
|
|
36,990 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,000 |
6 |
|
|
82,200 |
|
|
|
|
1 |
|
Options will become exercisable 1/3 on March 1, 2008, 1/3 on March 1, 2009, and
1/3 on March 1, 2010, except for Mr. Walshs options which will become exercisable 1/3 on
September 4, 2007, 1/3 on September 4, 2008 and 1/3 on September 4, 2009. |
|
2 |
|
Shares vest September 4, 2009. |
|
3 |
|
Shares vest September 3, 2009 |
|
4 |
|
Shares vest March 1, 2009. |
|
5 |
|
Shares vest February 29, 2008 |
|
6 |
|
Shares vest on February 28, 2009 |
|
7 |
|
Calculated based on the $8.22 per share closing market price of our shares on February
28, 2007. |
25
2007 OPTION EXERCISES AND STOCK VESTED TABLE
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|
|
|
|
|
|
|
|
|
|
Stock Awards |
|
|
Number of Shares |
|
Value Realized |
|
|
Acquired on Vesting1 |
|
on Vesting |
Name |
|
(#) |
|
($) |
Jeffrey H. Smulyan |
|
|
47,638 |
|
|
|
509,948 |
|
Patrick M. Walsh |
|
|
16,808 |
|
|
|
165,216 |
|
David R. Newcomer |
|
|
2,847 |
|
|
|
24,968 |
|
Richard F. Cummings |
|
|
15,898 |
|
|
|
153,054 |
|
Gary L. Kaseff |
|
|
14,754 |
|
|
|
138,337 |
|
Paul W. Fiddick |
|
|
22,211 |
|
|
|
218,333 |
|
|
|
|
1 |
|
Consists of shares awarded in lieu of salary under our 2006 stock compensation
program and in payment of bonuses under our 2007 Corporate Incentive Plan. See footnotes 2 and 3 to
the Summary Compensation Table. |
Potential Payments upon Termination or Change in Control
The employment agreements we have entered into with Mr. Smulyan, Mr. Walsh and Mr. Kaseff
provide for certain payments and benefits to the named executive officer in the event that
executive officer is terminated by the company without cause, or terminates his own employment
with good reason. Mr. Smulyan is also entitled to certain payments upon his voluntary
termination, death and disability.
We have also entered into a Change in Control Severance Agreement with each of the executives
named in the preceding tables. Each such agreement provides that if the executives employment is
terminated by the company within two years after a change-in-control of the company (or, in certain
instances, in anticipation of a change in control) Emmis other than for cause, or is terminated by
the executive for good reason, the executive is entitled to (1) a payment equal to the executives
base salary through the termination date, plus a pro rata portion of the executives target bonus
for the year and accrued vacation pay; (2) a severance payment equal to three times the executives
highest annual base salary and highest annual incentive bonus during the preceding three years (one
and one-half times for Mr. Newcomer and Mr. Fiddick); (3) continued insurance benefits for three
years; (4) immediate vesting of all stock options; and (5) if the payments to the executive exceed
certain limits, additional tax gross up payments to compensate the executive for the excise tax
imposed by section 4999 of the Internal Revenue Code. In each case, the executive is obligated not
to voluntarily leave employment with Emmis during the pendency of (and prior to the consummation or
abandonment of) a change-in-control other than as a result of disability, retirement or an event
that would constitute good reason if the change-of-control had occurred. In addition, under our
2004 Equity Compensation Plan, all outstanding restricted shares held by the executive vest
immediately upon a change in control.
Under the Change in Control Severance Agreement, change in control, cause and good reason are
defined as follows:
Change in Control. A change in control of the company occurs if:
|
|
|
any individual, entity or group other than Mr. Smulyan or his affiliates becomes
the beneficial owner of 25% or more of the companys outstanding shares, or of the voting power
of the outstanding shares; |
|
|
|
|
the current members of the board of directors of the
company (or persons approved by two-thirds of the current directors) cease to constitute at
least a majority of the board; |
|
|
|
|
the company is a party to a merger that results
in less than 60% of the outstanding shares or voting power of the surviving corporation being
held by persons who were not our shareholders immediately prior to the merger; |
26
|
|
|
our shareholders approve a liquidation or dissolution of
the company; or |
|
|
|
|
any other event determined by our board to constitute a
change in control. |
|
|
|
|
Cause. Cause generally means: |
|
|
|
|
the willful and continual failure of the executive to perform substantially his
duties; or |
|
|
|
|
the willful engaging in illegal conduct or gross misconduct which is materially
injurious to the company. |
|
|
|
|
Good Reason. Good Reason generally means: |
|
|
|
|
any materially adverse change in the duties or responsibilities of the
executive; |
|
|
|
|
a material breach by the company of the executives employment agreement or
Change in Control Severance Agreement; |
|
|
|
|
a reduction in the executives annual base salary or target bonus; |
|
|
|
|
any requirement that the executive relocate more than 35 miles from the office
where the executive works; |
|
|
|
|
the failure by the company to continue any material benefit plan or the
amendment of any plan that would reduce or eliminate the benefits available to the executive; |
|
|
|
|
any refusal by the company to allow the executive to engage in activities that
were permitted to the executive immediately before the change in control; |
|
|
|
|
any purported termination of the executive without specified written notice; |
|
|
|
|
the failure by the company to assure the assumption by any successor to the
company of the companys obligations under the Change in Control Severance Agreement; and |
|
|
|
|
except with respect to Mr. Newcomer and Mr. Fiddick, voluntary termination by
the executive during a 30-day period commencing one year after the occurrence of a change in
control. |
We have set forth below, for each named executive officer, a description of the payments they
would have received had the events described below occurred on February 28, 2007, the last day of
our most recently completed fiscal year.
Jeffrey H. Smulyan. If Mr. Smulyan had been terminated by the company without cause, or had
terminated his employment for good reason, he would have been entitled to a lump sum payment of
$5,905,800. The payment would have been without regard to whether a change in control had occurred.
In addition, Mr. Smulyan would have been entitled to continued health and welfare benefits for
three years having a present value of approximately $48,240 and outplacement services with a
present value of approximately $16,107.
Had Mr. Smulyan voluntarily terminated his employment, he would have been entitled to a lump
sum payment of $1,088,600. On Mr. Smulyans death, his estate would have been entitled to a lump
sum payment of $880,000.
On termination of his employment due to disability, Mr. Smulyan would have been entitled to
receive an amount equal to 75% of his most recent fiscal year base salary for a period of five
years, payable in accordance with the companys regular payroll procedures. The aggregate amount of
the disability payments would have been $3,300,000.
Patrick M. Walsh. If Mr. Walsh had terminated his employment for good reason in the absence
of a change in control, he would have been entitled to a lump sum payment of $200,000. He also
would be entitled to receive an amount equal to his most recent fiscal year base salary for a
period of one year, payable in accordance with the companys regular payroll procedures. The
aggregate amount of the disability payments would have been $400,000. Further, Mr. Walsh would have
been entitled to continued
health and welfare benefits for one year having a value of approximately $15,324. Unvested
restricted shares held by Mr. Walsh having an aggregate fair market value of approximately $189,060
would have vested immediately.
If Mr. Walsh had been terminated by the company without cause or terminated his employment for
good reason following a change in control, he would have been entitled to a lump sum payment of
$1,491,702. In addition, Mr. Walsh would have been entitled to continued health and welfare
benefits for three years having a present value of approximately $48,240 and outplacement services
with a present value of approximately $16,107. Unvested restricted shares held by Mr. Walsh having
an aggregate fair market value of approximately $189,060 would have vested immediately upon a
change in control without regard to whether Mr. Walshs employment was terminated.
27
David R. Newcomer. If Mr. Newcomer had been terminated by the company without cause or
terminated his employment for good reason following a change in control, he would have been
entitled to a lump sum payment of $483,052. In addition, Mr. Newcomer would have been entitled to
continued health and welfare benefits for three years having a present value of approximately
$48,240 and outplacement services with a present value of approximately $16,107. Unvested
restricted shares held by Mr. Newcomer having an aggregate fair market value of approximately
$23,739 would have vested immediately upon a change in control without regard to whether Mr.
Newcomers employment was terminated.
Richard F. Cummings. If Mr. Cummings had been terminated by the company without cause or
terminated his employment for good reason following a change in control, he would have been
entitled to a lump sum payment of $2,511,949. In addition, Mr. Cummings would have been entitled
to continued health and welfare benefits for three years having a present value of approximately
$48,240 and outplacement services with a present value of approximately $16,107. Unvested
restricted shares held by Mr. Cummings having an aggregate fair market value of approximately
$484,980 would have vested immediately upon a change in control without regard to whether Mr.
Cummings employment was terminated.
Gary L. Kaseff. If the company had terminated his employment without cause or Mr. Kaseff had
terminated his employment for good reason in the absence of a change in control, he would have been
entitled to a lump sum payment of $796,000. He also would be entitled to receive an amount equal to
20% of his most recent fiscal year base salary, automobile allowance and insurance payments for a
period of five years, payable in accordance with the companys regular payroll procedures. The
aggregate amount of the disability payments would have been $467,000. Unvested restricted shares
held by Mr. Kaseff having an aggregate fair market value of approximately $293,865 would have
vested immediately.
If Mr. Kaseff had been terminated by the company without cause or terminated his employment
for good reason following a change in control, he would have been entitled to a lump sum payment of
$2,288,817. In addition, Mr. Kaseff would have been entitled to continued health and welfare
benefits for three years having a present value of approximately $48,240 and outplacement services
with a present value of approximately $16,107. Unvested restricted shares held by Mr. Kaseff
having an aggregate fair market value of approximately $293,865 would have vested immediately upon
a change in control without regard to whether Mr. Kaseffs employment was terminated.
Paul W. Fiddick. If Mr. Fiddick had been terminated by the company without cause or had
terminated his employment for good reason following a change in control, he would have been
entitled to a lump sum payment of $837,500. In addition, Mr. Fiddick would have been entitled to
continued health and welfare benefits for three years having a present value of approximately
$48,240 and outplacement services with a present value of approximately $16,107. Unvested
restricted shares held by Mr. Fiddick having an aggregate fair market value of approximately
$119,190 would have vested immediately upon a change in control without regard to whether Mr.
Fiddicks employment was terminated.
In calculating the amounts shown above for each named executive, we have made the following
assumptions:
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Excise Tax Gross Up. We have assumed a combined 40% rate of federal and state
income taxes and Medicare tax, and a 20% excise tax under Section 4999 of the
Internal Revenue Code. We also assumed that incentive bonuses for fiscal 2007
were fully earned and payable. Based on those assumptions, no executive would
have received an excess parachute payment subject to the excise tax. |
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Health and Welfare Benefits. We have assumed our current cost of health
benefits will increase by 15% per year, and our current cost of life insurance
will increase at a rate of 10% per year. We assumed a discount rate of 7% to
calculate the present value of the benefits. |
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Outplacement Benefits. We have assumed our current cost of outplacement
services will not increase. |
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Accelerated Vesting of Options and Restricted Shares. The value of restricted
shares reflects the $8.22 per share closing market price of our shares on
February 28, 2007. Because all of our |
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outstanding options have exercise prices greater than $8.22 per share, we have
assumed that options the vesting of which is accelerated have a value of zero. |
When the companys board of directors determines that it is in the best interest of the
company, the company may negotiate severance arrangements with a departing executive in addition to
or in place of the arrangements described above. Circumstances under which the board may negotiate
additional or different severance arrangements include but are not limited to:
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to avoid or settle litigation with the
executive; |
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to reduce an adverse financial affect on
the company; |
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to reduce adverse tax consequences on the
executive; or |
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to reward meritorious service by the
executive. |
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
As noted above, the compensation committee members are Peter A. Lund, Susan B. Bayh, and
Lawrence B. Sorrel, all of whom are independent directors under Nasdaq listing standards. No
member of the compensation committee is or was formerly an officer or an employee of Emmis. No
executive officer of Emmis serves as a member of the board of directors or compensation committee
of any entity that has one or more executive officers serving as a member of the Emmis board of
directors, nor has such an interlocking relationship existed in the past.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934, as amended, requires our officers and
directors, and persons who own more than 10% of existing common stock, to file with the Securities
and Exchange Commission reports detailing their ownership of existing common stock and changes in
such ownership. Officers, directors and greater than 10% shareholders are required by Commission
regulations to furnish us with copies of all Section 16(a) forms they file. Based solely on review
of the copies of such forms furnished to us, we believe that during the last fiscal year all
officers, directors and greater than 10% shareholders complied with the filing requirements of
Section 16(a).
PROPOSAL 2: RATIFICATION OF SELECTION OF REGISTERED PUBLIC ACCOUNTANTS
The audit committee, a committee of the board of directors, has appointed Ernst & Young LLP to
serve as our independent registered public accountants for the fiscal year ending February 29,
2008, subject to ratification by the holders of our common stock. Our financial statements for the
fiscal year ended February 28, 2007 were certified by Ernst & Young LLP. Representatives of Ernst
& Young LLP are expected to attend the annual meeting with the opportunity to make a statement if
they desire to do so, and will be available to respond to appropriate questions.
If shareholders do not ratify the selection of Ernst & Young LLP as our independent registered
public accountants, or if prior to the 2007 annual meeting of shareholders Ernst & Young LLP ceases
to act as our independent registered public accountants, then the audit committee will reconsider
the selection of independent registered public accountants.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT YOU VOTE FOR THE RATIFICATION OF ERNST &
YOUNG LLP AS OUR INDEPENDENT REGISTERED PUBLIC ACCOUNTANTS.
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MATTERS RELATING TO INDEPENDENT REGISTERED PUBLIC ACCOUNTANTS
Fees Paid to Independent Registered Public Accountants
The following table sets forth the fees (including cost reimbursements) paid to Ernst & Young
LLP for the fiscal years ended February 28, 2007 and 2006, for various categories of professional
services they performed as our independent registered public accountants.
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Year ended February 28, |
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2007 |
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2006 |
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Audit Fees (1) |
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$ |
1,340,514 |
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$ |
1,974,265 |
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Audit Related Fees (2) |
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30,000 |
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51,000 |
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Tax Fees: |
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Tax Compliance and Tax
Return Preparation |
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Tax Consulting and Advisory
Services |
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131,000 |
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55,000 |
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Total Tax Fees |
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131,000 |
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55,000 |
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All Other Fees |
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Total Fees |
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$ |
1,501,514 |
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$ |
2,080,265 |
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(1) |
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Includes annual financial statement and internal controls audits and limited
quarterly review services, statutory audits of foreign subsidiaries, review of
registration statements and providing consents for SEC filings and other services that
are normally provided by the independent registered public accountants in connection
with statutory and regulatory filings or engagements. |
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Includes benefit plan audits, internal control review, audit-related
consultation services for potential corporate transactions and other audit-related
services. |
Engagement of the Independent Registered Public Accountants and Approval of Services
During the fiscal years ended February 28, 2007 and 2006, prior to engaging the independent
registered public accountants to render the above services and pursuant to its charter, the audit
committee approved the engagement for each of the services and determined that the provision of
such services by the independent registered public accountants was compatible with the maintenance
of Ernst & Youngs independence in the conduct of its auditing services. Under its current
charter, it is the policy of the audit committee (or in certain instances, the chairman of the
audit committee) to pre-approve the retention of the independent registered public accountants for
any audit services and for any non-audit services, including tax services. No services were
performed during the fiscal year ended February 28, 2007 under the de minimis exception in Rule
2-01(c) (7)(i)(C) of Regulation S-X.
SHAREHOLDER PROPOSALS
Any of our shareholders wishing to have a proposal considered for inclusion in our 2008 proxy
solicitation materials must set forth such proposal in writing and file it with our corporate
secretary on or before the close of business on February 9, 2008. In addition, under our by-laws
any shareholder wishing to nominate a candidate for director or propose other business at the
annual meeting must generally give us written notice on or before April 24, 2008 (unless we hold
our annual meeting more than 30 days earlier next year, in which case the deadline will be 10 days
after our first public announcement of the annual meeting date), and the notice must provide
certain specific information as described in the by-laws. Copies of the by-laws are available to
shareholders free of charge upon request to our corporate secretary. Our board of directors will
review any shareholder proposals that are filed as required and, with the assistance of the
companys secretary, will determine whether such proposals meet applicable criteria for inclusion
in our 2008 proxy solicitation materials or consideration at the 2008 annual meeting. In addition,
we retain discretion to vote proxies on matters of which we are not properly notified at our
principal executive offices on or before the close of business on April 24, 2008, and also retain
that authority under certain other circumstances.
ANNUAL REPORT
A copy of our Annual Report on Form 10-K for the year ended February 28, 2007, was sent to all
of our shareholders of record as of May 10, 2007 and is available in the Corporate Governance
section of our website (www.emmis.com). The Annual Report is not to be considered as proxy
solicitation material.
30
OTHER MATTERS
Our board of directors knows of no other matters to be brought before this annual meeting.
However, if other matters should come before the meeting, it is the intention of each person named
in the proxy to vote such proxy in accordance with his or her judgment on such matters.
NON-INCORPORATION OF CERTAIN MATTERS
The Report of the audit committee and the information on the Emmis website do not constitute
soliciting material and should not be deemed filed or incorporated by reference into any other
Emmis filing under the Securities Act of 1933 or the Securities Exchange Act of 1934, except to the
extent Emmis specifically incorporates the respective Report or website information therein by
reference.
EXPENSES OF SOLICITATION
The entire expense of soliciting proxies, including preparing, assembling, printing and
mailing the proxy form and the material used in the solicitation of proxies, will be paid by us.
Solicitations may be made in person or by mail, telephone, facsimile or other means of electronic
communication by our directors, officers and other employees, and none of those persons will
receive any additional compensation in connection with the solicitation. We also will request
record holders of shares beneficially owned by others to forward this proxy statement and related
materials to the beneficial owners of such shares, and will reimburse those record holders for
their reasonable expenses incurred in doing so.
HOUSEHOLDING OF PROXY MATERIALS
We have adopted a procedure permitted by Securities and Exchange Commission rules that is
commonly referred to as householding. Under this procedure, a single proxy statement and annual
report are delivered to multiple shareholders sharing an address unless we receive contrary
instructions from any shareholder at that address. We will continue to send a separate proxy card
to each shareholder of record. We have adopted this procedure because we believe it reduces the
volume of duplicate information shareholders receive and helps to reduce our printing and postage
costs. A number of brokers with accountholders who are Emmis shareholders will be householding
our proxy materials and annual reports as well.
If, at any time, you no longer wish to participate in householding and would prefer to
receive a separate proxy statement and annual report, please notify your broker if you hold your
Emmis shares through a broker, or notify us directly if you are a shareholder of record by sending
us an e-mail at ir@emmis.com, calling us toll-free at 1-866- 366-4703 or writing to us at Emmis
Communications Corporation, Investor Relations, One Emmis Plaza, 40 Monument Circle, Indianapolis,
Indiana 46204.
If you currently receive multiple copies of our proxy statement and annual report at your
address and would like to request householding of your communications, you should contact your
broker, or, if you are a record holder of Emmis shares, you should submit a written request to our
transfer agent, American Stock Transfer & Trust Company, Operations Center, 6201 15th
Avenue, Brooklyn, New York 11219.
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ELECTRONIC ACCESS TO FUTURE DOCUMENTS
We are pleased to offer our shareholders the option to access shareholder communications (for
example, annual reports and proxy statements) from us or on our behalf over the Internet, instead
of receiving those documents in printed form. Your participation is completely voluntary. If you
give your consent, we will notify you when material is available over the Internet and provide you
with the Internet location where the material is available. Once you give your consent, it will
remain in effect until you inform us otherwise.
To give your consent, check the box located at the bottom of the attached proxy card. You may also
give your consent by telephone or e-mail as described in the proxy statement.
To enable us to send you notification of shareholder communications by e-mail, please provide your
e-mail address in the space at the bottom of the attached proxy card. There is no cost to you for
this service other than any charges you may incur from your Internet provider, telephone company
and/or cable company. If you have already consented to electronic delivery, you need not consent
again.
If you are an Emmis employee or a shareholder who has previously consented to electronic delivery
of shareholder communications and have received this proxy card without an accompanying proxy
statement and annual report, you may view those documents at the Investors section of
www.emmis.com.
EMMIS COMMUNICATIONS CORPORATION
40 Monument Circle
Indianapolis, Indiana 46204
This Proxy is Solicited on Behalf of the Emmis Communications Corporation Board of Directors
The undersigned hereby appoints Jeffrey H. Smulyan and J. Scott Enright, and each of them,
attorneys-in-fact and proxies, with full power of substitution, to vote as designated below all
shares of Class A Common Stock of Emmis Communications Corporation which the undersigned would be
entitled to vote if personally present at the annual meeting of Shareholders to be held on July 11,
2007, at 11:00 a.m., and at any adjournment thereof.
1. |
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ELECTION OF DIRECTORS FOR A TERM OF THREE YEARS. |
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¨ FOR all nominees listed below (except as written below) ¨ WITHHOLD AUTHORITY to vote for all nominees |
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Nominees: Jeffrey H. Smulyan and Greg A. Nathanson |
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(INSTRUCTION: To withhold authority to vote for any individual nominee, write that nominees name in the space below.) |
2. |
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PROPOSAL TO RATIFY THE SELECTION OF ERNST & YOUNG LLP AS INDEPENDENT REGISTERED PUBLIC ACCOUNTANTS. |
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¨ FOR
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¨ AGAINST
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¨ ABSTAIN |
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In their discretion, the Proxies are authorized to vote upon such other business as may properly come before the meeting. |
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I consent to access future shareholder communications
released after July 11, 2007 over the Internet as described above and in the proxy statement. My e-mail address is: |
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(continued on other side)
This proxy is solicited on behalf of the Emmis Communications Corporation Board of Directors.
This proxy when properly executed will be voted in the manner directed herein by the undersigned
shareholders. If no direction is made, this proxy will be voted FOR Proposals 1 and 2.
The undersigned acknowledges receipt, prior to the execution of this proxy, of notice of the
meeting, a proxy statement, and an annual report to shareholders.
Dated: , 2007
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(Signature if held jointly) |
Please sign exactly as name appears below.
When shares are held as joint tenants, both
should sign. When signing as attorney, executor,
administrator, trustee or guardian, please give
full title. If a corporation, please sign in
full corporate name by president or other
authorized officer. If a partnership, please
sign in partnership name by authorized person.
IMPORTANT: Please mark, sign, date and return
the proxy card promptly using the enclosed
envelope
REVOCABLE PROXY