EXHIBIT 10 (yy)
FIRST AMENDMENT
TO
EMPLOYMENT
AGREEMENT
This First Amendment to Employment
Agreement dated and effective as of November 25, 2008 (this
“ Amendment ”), amends that certain Employment
Agreement, dated as of July 18, 2006 (the “ Original
Agreement ”) by and between Churchill Downs Incorporated,
a Kentucky corporation (the “ Company ”), and
Robert L. Evans (“ Employee ”), subject to the
approval of the Board (as defined below). Capitalized terms used
herein and not otherwise defined herein have the respective
meanings set forth in the Original Agreement.
RECITALS
A. WHEREAS, Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”),
places certain restrictions, among other things, as to the timing
of distributions from nonqualified deferred compensation plans and
arrangements; and
B. WHEREAS, the Board of Directors
of the Company (the “Board”) desires to amend the
Original Agreement to comply with Section 409A of the
Code.
NOW, THEREFORE, in consideration of
the mutual promises set forth herein, the parties hereto hereby
agree as follows:
1. Section 6(d) of the Original
Agreement shall be amended by adding the following to the end of
the first sentence:
“; provided the reimbursement
payment is made no later than the end of Executive’s taxable
year following the taxable year in which the expense is
incurred”
2. Sections 7(a) and 7(b) of the
Original Agreement shall be amended by adding the following to the
end of the last sentence:
“; provided such benefits
shall be payable no later than the later of (A) sixty
(60) days following Executive’s date of termination or
(B) the date provided under the applicable plan, policy or
practice of the Company covering such benefits”
3. Section 7(g) of the Original
Agreement shall be deleted in its entirely and replaced with the
following:
“Notwithstanding any other
provision of this Agreement to the contrary, Executive acknowledges
and agrees that any and all payments to which Executive is entitled
under this Section 7, which are described as being subject to
this Section 7(g) are conditioned upon and will not be payable
unless (A) Executive executes a general release and waiver, in
such reasonable and customary form as shall be prepared by the
Company, of all claims Executive may have against the
Company and its directors, officers,
subsidiaries and affiliates, except as to (i) matters covered
by provisions of this Agreement that expressly survive the
termination of this Agreement and (ii) rights to which
Executive is entitled by virtue of his participation in the
employee ben
