Robert Evans Restricted Stock Unit Agreement

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    10-Q

    CHURCHILL
      DOWNS INCORPORATED

    RESTRICTED
      STOCK UNITS AGREEMENT

     

    65,000
      UNITS

     

    THIS
      RESTRICTED STOCK UNITS AGREEMENT (the “Agreement”) is made as of the 18th day of
      July, 2006 by and between Robert L. Evans (the “Executive”), and Churchill Downs
      Incorporated (the “Company”), a Kentucky corporation with its principal place of
      business at 700 Central Avenue, Louisville, Kentucky 40208. 

     

    WITNESSETH:

     

    WHEREAS,
      the Company, has identified the Executive as the successor to the current
      President and Chief Executive Officer who is stepping down from such office
      effective August 14, 2006;

     

    WHEREAS,
      the Company has entered into an employment agreement between the Company and
      the
      Executive pursuant to which the Executive will become the President and Chief
      Executive Officer of the Company effective August 14, 2006 (the “Employment
      Agreement”);

     

    WHEREAS,
      under the terms of the Employment Agreement, and as a material inducement to
      enter into the Employment Agreement, the Executive is to receive certain grants
      of equity compensation as a consequence of his employment by the Company;


     

    WHEREAS,
      the Compensation Committee (the “Committee”) of the Board of Directors of the
      Company at its meeting on July 12, 2006 authorized and directed the Company
      to
      make an award to the Executive of units entitling the Executive to receive
      shares of the Company’s Common Stock (hereinafter defined) upon the expiration
      of six months following the Executive’s termination of employment with the
      Company under the terms and conditions set forth in this Agreement;
      and

     

    WHEREAS,
      the parties desire to enter into this Agreement to set forth the terms and
      conditions of such award.

     

    NOW,
      THEREFORE, in consideration of the foregoing and the mutual undertakings herein
      contained, and for other good and valuable consideration, the mutuality, receipt
      and sufficiency of which are hereby acknowledged, the parties agree as
      follows:

     

    1.  Grant
      of Units.
      Subject
      to the further terms, conditions and restrictions contained in this Agreement,
      in consideration for services to be performed by the Executive as an employee
      of
      the Company and its subsidiaries, as of the date of this Agreement, the Company
      grants to the Executive 65,000 restricted stock units (“Restricted Stock Units”)
      having the characteristics, and entitling the Executive to the benefits,
      hereinafter described. Each Restricted Stock Unit represents an unfunded
      contractual right of the Executive to receive from the Company one share of
      the
      Company’s Common Stock upon the Executive’s termination of employment with the
      Company, subject to the other terms and conditions of this Agreement. As long
      as
      the Units remain unvested and forfeitable per Section 6 of this Agreement,
      such Units shall be deemed to be, and are referred to in this Agreement as,
      the
“Restricted Units”.

    
       

      
        
        

        
          

        

      

       

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    2.  Right
      to Receive Common Stock.
      The
      Executive shall have no rights of a shareholder with respect to the Company’s
      Common Stock as a result of the Units. The Executive shall not be a shareholder
      unless and until the Executive receives a certificate for shares of Common
      Stock
      to which the Executive becomes entitled hereunder. Upon the expiration of six
      months following the Executive’s termination of employment with the Company (or
      upon the Executive’s earlier death following such termination), the Executive
      (or the Executive’s representative as the case may be) shall be entitled to
      receive one share of Common Stock for each Unit granted hereunder which is
      not a
      Restricted Unit and which has not previously been forfeited pursuant to Section
      5 (including a forfeiture resulting from such employment termination). At the
      time the Executive receives a share of Common Stock, and for each such share
      of
      Common Stock received by the Executive, the Executive shall also receive (a)
      a
      cash payment from the Company equal to each cash dividend declared and paid
      by
      the Company on a single share of Common Stock from and after the date on which
      the Unit which entitles the Executive to such share of Common Stock became
      non-forfeitable under Section 6 hereof, plus (b) a cash payment equivalent
      to
      simple interest on each amount determined in clause (a) at the annual rate
      of
      three (3%) percent for the period elapsed from the date such dividend was paid
      on such share of Common Stock to the time the payment under clause (a) is made
      to the Executive. 

     

    3.  Adjustments
      in Restricted Units.

     

    (a)  In
      the
      event of any change in the outstanding Common Stock by reason of a stock
      dividend or distribution (or distribution on Common Stock of any security
      convertible into securities of the Company), recapitalization, merger,
      consolidation, split-up, combination, subdivision, reclassification, exchange
      of
      shares or the like, the Committee shall make equitable adjustments in the
      Restricted Units so that the shares of Common Stock represented by such Units
      represent the same percentage of the Company’s equity as was the case
      immediately prior to such change. Any new, additional or different securities
      to
      which the Executive shall be entitled in respect of Restricted Units by reason
      of such adjustment shall be subject to the same terms, conditions and
      restrictions as the Units so adjusted. 

     

    (b)  In
      the
      event Company merges, consolidates or effects a share exchange with another
      entity, or all or a substantial portion of Company’s assets or outstanding
      capital stock are acquired (whether by merger, purchase or otherwise) by another
      entity (any such entity being hereafter referred to as the “Successor”) each
      share of Company Common Stock represented by a Restricted Stock Unit shall
      automatically be converted into and replaced by shares of common stock, or
      such
      other class of securities having rights and preferences no less favorable than
      Company’s Common Stock, of the Successor, and the number of shares represented
      by a Restricted Stock Unit shall be correspondingly adjusted, so that Executive
      shall have the right to that number of shares of common stock of the Successor
      that have a value equal, as of the date of the merger, conversion or
      acquisition, to the value, as of the date of the merger, conversion or
      acquisition, of the shares of Company Common Stock represented by the Restricted
      Stock Units.

    
      
        
        

      

      
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    4.  Restrictions.
      The
      Units, and all rights with respect to such Units, may not be sold, assigned,
      transferred, exchanged, pledged, hypothecated or otherwise encumbered or
      disposed of and shall be subject to the risk of forfeiture contained in Section
      5 of this Agreement. 

     

    5.  Forfeiture
      of Restricted Units.
      Subject
      to Section 6 below, in the event the Executive’s employment with the Company and
      its subsidiaries is terminated for any reason, such event shall constitute
      an
“Event of Forfeiture” and all Units which at that time are Restricted Units
      shall thereupon be forfeited by the Executive to the Company without payment
      of
      any consideration by the Company, and neither the Executive nor any heir,
      personal representative, successor or assign of the Executive shall have any
      right, title or interest in or to such Restricted Units or any other property.
      

     

    6.  Vesting
      of Units.
      

     

    (a)  The
      Restricted Units shall become vested and non-forfeitable as
      follows:

     

    
      	
              Vesting
                Date

               

            	
              Number
                of Units to Vest

               

            
	
              September
                30, 2006

            	
              1,625

            
	
              December
                31,2006

            	
              3,250

            
	
              March
                31, 2007

            	
              3,250

            
	
              June
                30, 2007

            	
              3,250

            
	
              September
                30, 2007

            	
              3,250

            
	
              December
                31, 2007

            	
              3,250

            
	
              March
                31, 2008

            	
              3,250

            
	
              June
                30, 2008

            	
              3,250

            
	
              September
                30, 2008

            	
              3,250

            
	
              December
                31, 2008

            	
              3,250

            
	
              March
                31, 2009

            	
              3,250

            
	
              June
                30, 2009

            	
              3,250

            
	
              September
                30, 2009

            	
              3,250

            
	
              December
                31, 2009

            	
              3,250

            
	
              March
                31, 2010

            	
              3,250

            
	
              June
                30, 2010

            	
              3,250

            
	
              September
                30, 2010

            	
              3,250

            
	
              December
                31, 2010

            	
              3,250

            
	
              March
                31, 2011

            	
              3,250

            
	
              June
                30, 2011

            	
              3,250

            
	
              August
                14, 2011

            	
              1,625

            


    

    


    In
      the
      event: (i) the Executive’s employment is terminated by the Company other than
      for Cause, death or Disability or (ii) the Executive resigns for Good Reason,
      for purposes of determining the Units which have become non-forfeitable under
      this Section 6, the Executive’s employment shall be considered to have continued
      through the last day of the calendar quarter in which his termination occurs.
      

     

    
      
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    (b)  In
      the
      event of a Change in Control during the Employment Term (as defined in the
      Employment Agreement), the Executive shall receive accelerated vesting of fifty
      percent (50%) of the then-unvested Restricted Units. The Restricted Units that
      are subject to accelerated vesting and non-forfeiture pursuant to this Section
      6(b) shall be taken pro-rata from each then-unvested tranche of the Restricted
      Units, and the remaining portion of each tranche shall vest according to Section
      6(a) above, subject to potential accelerated vesting pursuant to Section 6(c)
      below. 

     

    (c)  If,
      during the 2-year period following a Change in Control during the Employment
      Term: (i) Executive is terminated by the Company other than for Cause (as
      defined in the Employment Agreement), death or Disability, or (ii) Executive
      voluntarily resigns for Good Reason (as defined in the Employment Agreement),
      all Restricted Units shall become fully vested and non-forfeitable as of the
      date of such termination. 

     

    7.  Withholding
      Requirements.
      Whenever the Executive becomes entitled to receive Common Stock with respect
      to
      the Units pursuant to Section 2, the Company shall have the right to (i)
      withhold from sums due to the Executive; (ii) require the Executive to remit
      to
      the Company; or (iii) retain shares of Common Stock otherwise deliverable to
      the
      Executive; in an amount sufficient to satisfy any Federal, state or local
      withholding tax requirements prior to making such payments or delivering any
      such shares to the Executive.

     

    8.  Effect
      Upon Employment.
      Nothing
      contained in this Agreement shall confer upon the Executive the right to
      continue in the employment of the Company or its subsidiaries or affect any
      right that the Company or its subsidiaries may have to terminate the employment
      of the Executive.

     

    9.  Amendment.
      This
      Agreement may not be amended, modified or supplemented except with the consent
      of the Committee and by a written instrument duly executed by the Executive
      and
      the Company.

     

    10.  Binding
      Effect.
      This
      Agreement shall be binding upon and shall inure to the benefit of the parties
      hereto and their heirs, personal representatives, successors and assigns.
      Executive accepts the award of Units hereunder subject to all of the terms
      and
      conditions of this Agreement. Executive hereby agrees to accept as binding,
      conclusive and final all reasonable decisions and interpretations of the
      Committee upon any questions arising under this Agreement, including without
      limitation, the interpretation of any restrictions imposed upon the
      Units.

     

    11.  Notices.
      Notices
      shall be deemed delivered if delivered personally or if sent by registered
      or
      certified mail to the Company at its principal place of business, as set forth
      above, and to Executive at the address that most currently appears on the
      records of the Company.

     

    12.  Investment
      Representation.
      If the
      shares of Common Stock to which the Executive becomes entitled under this
      Agreement as a result of the Units are not registered under the Securities
      Act
      of 1933, as amended, pursuant to an effective registration statement, the
      Executive, if the Committee shall reasonably deem it advisable, may be required
      to represent and agree in writing (i) that any shares of Common Stock acquired
      by the Executive as a result of the Units under this Agreement will not be
      sold
      except pursuant to an effective registration statement under the Securities
      Act
      of 1933, as amended, or pursuant to an exemption from registration under such
      Act, and (ii) that the Executive has acquired such shares for his own account
      and not with a view to the distribution thereof.

    
      
        
        

      

      
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    13.  Compliance
      with Section 16(b).
      This
      Agreement and the entitlement of the Executive to receive any shares of Common
      Stock for the Units awarded hereunder is intended to comply with all applicable
      conditions of Rule 16(b)-3 of the General Rules and Regulations under the
      Securities Exchange Act of 1934, as amended. All transactions involving the
      Company’s executive officers are subject to such conditions, regardless of
      whether the conditions are expressly set forth in this Agreement. Any provision
      of this Agreement that is contrary to a condition of Rule 16b-3 shall not
      apply.

     

    14.  Registration
      of Shares. 
      The Company shall use its reasonable best efforts to file, within 90 days
      following the execution of this Agreement, a registration statement with the
      Securities and Exchange Commission (the "Commission") pursuant to the Securities
      Act of 1933, as amended (the "Act"), covering the shares to be received pursuant
      to the Units, and thereafter to cause such registration statement to become
      effective in accordance with the Act and the rules and regulations adopted
      by
      the Commission thereunder.

     

    15.  Code
      Section 409A.
      It is
      intended that any amounts payable under this Agreement and the Company’s and
      Executive’s exercise of authority or discretion hereunder shall comply with
      Internal Revenue Code Section 409A (including the Treasury regulations and
      other
      published guidance relating thereto) so as not to subject Executive to the
      payment of any interest or additional tax imposed under Code Section 409A.
      To
      the extent any amount payable under this Agreement would trigger the additional
      tax imposed by Code Section 409A, the Agreement shall be modified to avoid
      such
      additional tax.

     

    16.  Compliance
      With Other Laws And Regulations.
      The
      rights of the Executive and the obligations of Company under this Agreement
      shall be subject to all applicable federal and state laws, rules and regulations
      and to such approvals by any government or regulatory agency as may be required.
      Company shall not be required to issue or deliver certificates for shares of
      Common Stock before [i] the listing of such shares on any stock exchange or
      over-the-counter market, such as NASDAQ, on which the Common Stock may then
      be
      listed or traded, and [ii] the completion of any registration or qualification
      of any governmental body which Company shall, in it sole discretion, determines
      to be necessary or advisable. The Company agrees to use its best efforts to
      procure any such listing, registration or qualification.

     

    17.  Severability.
      The
      invalidity or unenforceability of any provision of the Agreement shall not
      affect the validity or enforceability of the remaining provisions of the
      Agreement, and such invalid or unenforceable provision shall be stricken to
      the
      extent necessary to preserve the validity and enforceability of the Agreement,
      with the parties agreeing in such event to make all reasonable efforts to
      replace such invalid or unenforceable provision with a valid provision that
      will
      place the parties in approximately the same economic position as contemplated
      hereunder.

    
      
        
        

      

      
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    18.  Governing
      Law; Jurisdiction.
      This
      Agreement shall be governed by the laws of the Commonwealth of Kentucky. The
      Executive consents to the exclusive jurisdiction of the courts of the
      Commonwealth of Kentucky and of any federal court located in Jefferson County,
      Kentucky in connection with any action or proceeding arising out of or relating
      to this Agreement, any document or instrument delivered pursuant to or in
      connection with this Agreement, or any breach of this Agreement or any such
      document or instrument.

     

    19.  Entire
      Agreement.
      This
      Agreement contains the entire agreement between the parties hereto with respect
      to the subject matter hereof.

     

    20.  Capitalized
      Terms.
      Capitalized terms not otherwise defined in this Agreement shall have the meaning
      given them in the Employment Agreement.

     

    21.  Counterparts
      and Signatures.
      This
      Agreement may be signed in counterparts, each of which shall be an original,
      with the effect as if the signatures thereto and hereto were upon the same
      instrument. Signatures conveyed by facsimile or PDF file shall constitute
      original signatures.

     

    (Signature
      page follows.)


    
      
        
        

      

      
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    IN
      WITNESS WHEREOF, the Company and the Executive have executed and delivered
      this
      Agreement as of the date first above written.

     

    


    
      	 	
              ROBERT
                L. EVANS

               

            
	 	
              /s/
                Robert L. Evans    

               

            
	 	 
	 	
              CHURCHILL
                DOWNS INCORPORATED

               

              By:
                /s/ Robert L. Fealy   

              Robert
                L. Fealy,

              Authorized
                Representative

              of
                the Board of Directors

            


    

     

     

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