Exhibit 10
Churchill Downs,
Incorporated
Letter Agreement
March 9, 2009
Vernon Niven
[Address Removed]
Dear Vernon:
In order to induce you to remain in
your current position with Churchill Downs Incorporated (the
“Company”) to facilitate the transition of the
Company’s business and affairs, the Company will pay you a
retention bonus (the “Retention Bonus”) if you remain
employed with the Company through June 7, 2009 (the
“Termination Date”), subject to the terms and
conditions outlined below. The amount of the Retention Bonus will
be $75,000, less any applicable withholding and
deductions.
1. General . The payment of
the Retention Bonus is conditioned upon your continued adherence to
the terms of your employment that are in effect, including Company
policies and procedures, during the period commencing on the date
of this letter and ending on the Termination Date (the
“Retention Period”). The Company reserves the right to
terminate your employment before the end of the Retention Period
for any reason, including for “just cause” (as defined
in your Offer Letter, dated September 8, 2006 (the
“Offer Letter”)). If you terminate your employment with
the Company for any reason (including due to your death or
disability) before the end of the Retention Period, you will
forfeit any right to the Retention Bonus. If the Company terminates
your employment for any reason other than for “just
cause,” death, or disability before the end of the Retention
Period, you will be paid the Retention Bonus pursuant to Sections 2
and 3 of this Offer Letter.
2. Release and Timing . As a
condition to your receipt of the Retention Bonus, you will be
required to execute (without revocation) by August 7, 2009, a
standard waiver and release agreement (“Release”) that
will be provided by the Company. The Retention Bonus will be
payable to you in a lump sum payment within fourteen
(14) business days following the Company’s receipt of
your executed, irrevocable Release.
3. Non-Compete and Other
Provisions .
A. For purposes of this
Section 3, “Company” shall mean the Company and it
subsidiaries. As a further condition to your receipt of the
Retention Bonus, for a period of two (2) years following the
Termination Date, you will not directly or indirectly, without the
prior written permission of the Company:
(i) solicit or attempt to solicit
any customers or prospective customers of the Company for the
purpose of selling them products or services that compete with
those of the Company;
(ii) solicit or recruit in any form,
as employees, contractors, sub-contractors, consultants or other
capacity in which such individuals provide services of material
business value, any employee of the Company; provided, however,
that this section shall not prohibit you from hiring any person who
responds to a general advertisement or solicitation not
specifically directed at employees of the Company;
(iii) take any action that could
reasonably be expected to have the effect of directly or indirectly
encouraging or inducing any person to terminate such person’s
business or employment relationship with the Company for any
reason;
(iv) disclose to any third parties
or use to your own benefit, directly or indirectly, any
confidential or proprietary information or knowledge of the
Company; and
(v) compete with the business of the
Company in the Restricted Territory (as defined below) by becoming
an officer, agent, employee, partner or director of any other
corporation, partnership or other entity, or otherwise render
services to or assist or hold an interest (except as a less than
3-percent shareholder of a publicly traded corporation or as a less
than 5-percent shareholder of a corporation that is not publicly
traded) in any Competitive Business (as defined below).
For purposes of this Letter
Agreement, “Restricted Territory” shall mean any area
that is within fifty (50) miles of the Company’s
headquarters in Louisville, Kentucky and “Competitive
Business” shall mean any person or entity (including any
joint venture, partners
