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AMENDMENT NO. 3 TO RIGHTS AGREEMENT
Amendment No. 3 to Rights Agreements, dated as of September
8, 2000, by and between CHURCHILL DOWNS INCORPORATED, a Kentucky corporation
(the "Company"), and FIFTH THIRD BANK, as Rights Agent (the "Rights Agent").
WHEREAS, the Company has entered into an Amended and Restated
Agreement and Plan of Merger dated of as of June 23, 2000, as amended as of July
14, 2000, by and among the Company, A. Acquisition Corp., an Illinois
corporation and a direct or indirect wholly owned subsidiary of the Company ("A
Sub"), A. Management Acquisition Corp., an Illinois corporation and a direct or
indirect wholly owned subsidiary of the Company ("A Management Sub"), T. Club
Acquisition Corp., an Illinois corporation and a direct or indirect wholly owned
subsidiary of the Company ("T Club Sub"), Arlington International Racecourse,
Inc.., an Illinois corporation ("A Corp."), Arlington Management Services, Inc.,
an Illinois corporation ("A Management Corp."), Turf Club of Illinois, Inc., an
Illinois corporation ("T Club"), and Duchossois Industries, Inc., an Illinois
corporation ("D Corp."), and in connection therewith the Board has determined in
good faith that certain amendments set forth below to the Rights Agreement dated
as of March 19, 1998 between the Company and Bank of Louisville as the initial
Rights Agent, as heretofore amended (the "Rights Agreement"), are desirable and,
pursuant to Section 26 of the Rights Agreement has duly authorized such
amendments to the Rights Agreement. A duly authorized officer of the Company has
executed and delivered this Amendment No. 3 to Rights Agreement (the
"Amendment").
WHEREAS, Fifth Third Bank has succeeded the Bank of Louisville
as Rights Agent.
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. CERTAIN DEFINITIONS. For purposes of this Amendment,
terms which are capitalized but not defined herein and which are defined in the
Rights Agreement shall have the meanings ascribed to them in the Rights
Agreement.
2. AMENDMENT TO SECTION 1 OF THE RIGHTS AGREEMENT.
A. Section 1 of the Rights Agreement is hereby amended to add
the following definition:
"Stockholder's Agreement" shall mean the Stockholder's
Agreement dated as of September 8, 2000 among the Company, D Corp. and
subsequent signatories thereto, as the same may be amended from time to time.
B. Section 1 of the Rights Agreement is hereby amended to
delete the definition of "Voting Agreement".
3. RESTATEMENT OF THE DEFINITION OF "ACQUIRING PERSON". The
definition of "Acquiring Person" set forth in Section 1 of the Rights Agreement
is hereby deleted in its entirety and replaced with the following definition:
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"ACQUIRING PERSON" shall mean a Person who or which, alone or
together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of 15% or more of the Common Shares then outstanding but shall
not include (a) the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any of its Subsidiaries, or any Person holding Common
Shares for or pursuant to the terms of such employee benefit plan, or (b) any
such Person who has become and is such a Beneficial Owner solely because (i) of
any change in the aggregate number of Common Shares outstanding since the last
date on which such Person acquired Beneficial Ownership of any Common Shares or
(ii) it acquired such Beneficial Ownership in the good faith belief that such
acquisition would not (A) cause such Beneficial Ownership to equal or exceed 15%
of the Common Shares then outstanding and such Person relied in good faith in
computing the percentage of its Beneficial Ownership on publicly filed reports
or documents of the Company which are inaccurate or out of date or (B) otherwise
cause a Distribution Date or the adjustment provided for in Section 11(a) to
occur. Notwithstanding clause (b)(ii) of the prior sentence, if any Person that
is not an Acquiring Person due to such clause (b)(ii) does not reduce its
percentage of Beneficial Ownership of Common Shares to less than 15% by the
Close of Business on the fifth Business Day after notice from the Company (the
date of notice being the first day) that such Person's Beneficial Ownership of
Common Shares so equals or exceeds 15%, such Person shall, at the end of such
five Business Day period, become an Acquiring Person (and such clause (b)(ii)
shall no longer apply to such Person). For purposes of this definition, the
determination whether any Person acted in "good faith" shall be conclusively
determined by the Board of Directors of the Company. Notwithstanding the
foregoing, D Corp. or a D Corp. Shareholder, or any Affiliate or Associate of D
Corp. or a D Corp. Shareholder, or any Stockholder (as such term is defined in
the Stockholder's Agreement) shall not be an Acquiring Person when such Person's
Beneficial Ownership of Common Shares is subject to, does not violate, and is in
compliance with, the Stockholder's Agreement (the foregoing sentence referred to
herein as the "D Corp. Exclusion").
4. EFFECTIVENESS. The Amendment shall be effective as of
September 8, 2000 as if executed by both parties on such date. Except as
expressly amended by this Amendment, the Rights Agreement shall remain in full
force and effect.
5. GOVERNING LAW. This Amendment shall be deemed to be a
contract under the laws of the Commonwealth of Kentucky and for all purposes
shall be governed by, construed and enforced in accordance with the laws of such
State applicable to contracts to be made and performed entirely within such
State.
6. COUNTERPARTS. This Amendment may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
7. SEVERABILITY. If any term, provision, covenant or
restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
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8. DESCRIPTIVE HEADINGS. Descriptive headings of the several
Sections of this Amendment are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions of this
Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the day and year first above written.
CHURCHILL DOWNS INCORPORATED
By: /S/ THOMAS H. MEEKER
Title: Thomas H. Meeker, President
FIFTH THIRD BANK, as Rights Agent
By: /S/ GEOFFREY D. ANDERSON
Title: ASSISTANT VICE PRESIDENT
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