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AMENDMENT NO. 2 TO RIGHTS AGREEMENT
Amendment No. 2 to Rights Agreements, dated as of June 23, 2000, by
and between CHURCHILL DOWNS INCORPORATED, a Kentucky corporation (the
"Company"), and FIFTH THIRD BANK, as Rights Agent (the "Rights Agent").
WHEREAS, the Board of Directors of the Company has authorized the
execution and delivery by the Company of an Agreement and Plan of Merger dated
of as of June 23, 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 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.
2 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. Section 1 of the
Rights Agreement is hereby amended to add the following definitions:
"A Corp." shall mean Arlington International Racecourse, Inc., an
Illinois corporation.
"A Sub" shall mean A. Acquisition Corp, an Illinois corporation and a
direct or indirect wholly owned subsidiary of the Company.
"A Management Corp." shall mean Arlington Management Services, Inc.,
an Illinois corporation.
"A Management Sub" shall mean A. Management Acquisition Corp, an
Illinois corporation and a direct or indirect wholly owned subsidiary of the
Company.
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"D Corp." shall mean Duchossois Industries, Inc., an Illinois
corporation.
"D Corp. Shareholders" shall mean the record and beneficial owners of
the shares of voting securities of D Corp.
"Mergers" shall mean the merger of A Sub with and into A Corp., the
merger of A Management Sub with and into A Management Corp. and the merger of T
Club Sub with and into T Club pursuant to the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger dated
as of June 23, 2000 by and among the Company, A Sub, A Management Sub, T Club
Sub, A Corp., A Management Corp., T Club and D Corp., as the same may be amended
from time to time in accordance with its terms.
"T Club" shall mean Turf Club of Illinois, Inc., an Illinois
corporation.
"T Club Sub" shall mean T. Club Acquisition Corp., an
Illinois corporation and a direct or indirect wholly owned
subsidiary of the Company.
"Voting Agreement" shall mean the Voting Agreement dated as of June
23, 2000 by and among D. Corp., Richard L. Duchossois and certain Directors of
the Company.
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:
"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 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
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whether any Person acted in "good faith" shall be conclusively determined by the
Board of Directors of the Company. Notwithstanding the foregoing, (i) D Corp.
shall only be an Acquiring Person when D Corp., alone or together with all
Affiliates and Associates of D Corp., shall be the Beneficial Owner of more than
31% of the Common Shares then outstanding (after including the Common Shares
acquired, or subject to acquisition, by D Corp. under or pursuant to the Merger
Agreement) plus the Common Shares subject to the Voting Agreement and (ii) a D
Corp. Shareholder shall only become an "Acquiring Person" when D Corp. and the D
Corp. Shareholders, alone or together with all Affiliates and Associates of D
Corp. and the D Corp. Shareholders, shall be the Beneficial Owner of more than
31% of the Common Shares then outstanding (after including the Common Shares
acquired, or subject to acquisition, by D Corp. under or pursuant to the Merger
Agreement) plus the Common Shares subject to the Voting Agreement (the foregoing
sentence referred to herein as the "D Corp. Exclusion"). The percentages set
forth in the immediately preceding sentence as the D Corp. Exclusion shall be
automatically reduced from time to time, but in no event to less than 15%, to
that percentage of the then outstanding Common Shares Beneficially Owned by such
Person, alone or together with all Affiliates and Associates of such Person as
determined pursuant to the immediately preceding sentence, but only if such
percentage is less than the percentage of the then outstanding Common Shares
Beneficially Owned by such Person, alone or together with all Affiliates and
Associates of such person, as of the effective time of the Mergers.
4. ADDITION OF SECTION 33 OF RIGHTS AGREEMENT. The Rights
Agreements is hereby amended to add thereto Section 33, which reads in its
entirety as follows:
Section 33. The Merger Agreement. Notwithstanding anything in this
Rights Agreement to the contrary, and subject to the scope and applicability of
the D Corp. Exclusion, no Distribution Date shall be deemed to have occurred,
neither D Corp. nor any D Corp. Shareholder or any Affiliate or Associate of D
Corp. shall be deemed to have become an Acquiring Person or have any obligation
under this Rights Agreement, and no holder of any Rights Certificate shall be
entitled to exercise the Rights evidenced thereby under, or be entitled to any
rights or benefits pursuant to, this Rights Agreement in each case by reason of
(a) the approval, execution or delivery of the Merger Agreement, or (b)
consummation of any of the transactions contemplated thereby, including, without
limitation, the Mergers.
5. EFFECTIVENESS. The Amendment shall be effective as of June
23, 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.
6. 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.
7. 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.
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8. 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.
9. 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.
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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/ ROBERT L. DECKER
Title: Robert L. Decker, Executive Vice
President and Chief Financial Officer
FIFTH THIRD BANK, as Rights Agent
By: /S/ GEOFFREY D. ANDERSON
Title: Assistant Vice President
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