Duchossois Group, Inc., et al. – ‘SC 13D’ on 6/30/00 re: Churchill Downs Inc – EX-3

On:  Friday, 6/30/00, at 9:37pm ET   ·   As of:  7/3/00   ·   Accession #:  950131-0-4193   ·   File #:  5-30865

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General Statement of Beneficial Ownership   —   Schedule 13D
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: SC 13D      General Statement of Beneficial Ownership             15     58K 
 2: EX-1        Joint Filing Agreement                                 1      6K 
 3: EX-3        Voting Agreement                                      14     40K 
 4: EX-4        Form of Limited Irrevocable Proxy                      2      8K 

EX-3   —   Voting Agreement
Exhibit Table of Contents

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                                                                       EXHIBIT 3

VOTING AGREEMENT  

       THIS VOTING AGREEMENT ("Agreement") is executed and delivered as of
June 22, 2000, by Charles W. Bidwill, Jr., an individual resident of the State  
of Illinois, William S. Farish, an individual resident of the State of Kentucky,
J. David Grissom, an individual resident of the State of Kentucky, Seth W.      
Hancock, an individual resident of the State of Kentucky, Daniel P. Harrington, 
an individual resident of the State of Ohio, Frank B. Hower, Jr., an individual 
resident of the State of Kentucky, G. Watts Humphrey, Jr., an individual        
resident of the State of Pennsylvania, Brad M. Kelley, an individual resident of
the State of Kentucky, Thomas H. Meeker, an individual resident of the State of 
Kentucky, Carl F. Pollard, an individual resident of the State of Kentucky,     
Dennis D. Swanson, an individual resident of the State of Connecticut, and      
Darrell R. Wells, an individual resident of the State of Kentucky (each, a      
"Shareholder" and collectively, the "Shareholders"), in favor of and for the    
benefit of Richard L. Duchossois, an individual resident of the State of        
Illinois (who also owns shares of the Company (as defined below)) and Duchossois
Industries, Inc., an Illinois corporation ("D Corp.").                          

      WHEREAS, each Shareholder controls the right to vote the number of
shares of common stock of Churchill Downs Incorporated, a Kentucky corporation  
(the "Company") set forth opposite such Shareholder's name on Appendix A hereto 
(as to each Shareholder, the "Shares");                                         

   WHEREAS, D Corp., the Company and certain of their wholly-owned
subsidiaries have entered into an Agreement and Plan of Merger, dated as of the 
date hereof (as such agreement may be amended from time to time, the "Merger    
Agreement;" capitalized terms not otherwise defined herein shall have the       
meanings given them in the Merger Agreement) pursuant to which certain          
subsidiaries of D Corp. will be merged with and into certain subsidiaries of the
Company; and                                                                    

      WHEREAS, D Corp. has required, as a condition to entering into the
Merger Agreement, that the Shareholders enter into this Agreement.              

NOW, THEREFORE, in order to induce D Corp. to enter into the
transactions contemplated by the Merger Agreement, and in further consideration 
of the mutual covenants and agreements contained herein, the parties agree as   
follows:                                                                        

         Section 1. Representation and Warranties. Each Shareholder represents
-----------------------------         
and warrants to D Corp. that:                                                   

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              (a)  The Shareholder has the legal capacity, power and authority
to execute and deliver this Agreement and to consummate the transactions        
contemplated hereby.                                                            

            (b)  The Shareholder has the sole voting power with respect to
all the Shares, and there exist no liens, claims, security interests, options,  
proxies, voting agreements, charges or encumbrances of whatever nature ("Liens")
affecting such Shareholder's Shares except as set forth on such Appendix A.     

             (c)  The Shares constitute all of the securities (as defined in
Section 3(10) of the Securities Exchange Act of 1934, as amended (the "Exchange 
Act"), which definition shall apply for all purposes of this Agreement) of the  
Company owned of record and/or beneficially owned (as defined in Rule 13d-3     
under the Exchange Act, which meaning shall apply for all purposes of this      
Agreement), directly or indirectly, by such Shareholder (excluding any          
securities beneficially owned by any of his or her affiliates or associates (as 
such terms are defined in Rule 12b-2 under the Exchange Act, which definition   
shall apply for all purposes of this Agreement) or as to which he or she does   
not have sole voting power).                                                    

        (d)  This Agreement has been duly and validly executed and
delivered by the Shareholder and constitutes a legal, valid and binding         
obligation of such Shareholder, enforceable against, him or her in accordance   
with its terms, subject to laws of general application relating to bankruptcy,  
insolvency and the relief of debtors, and to rules of law governing specific    
performance, injunctive relief and other equitable remedies.                    

         (e)  None of the execution, delivery or performance of this
Agreement will directly or indirectly, (i) result in any violation or breach of 
any agreement or other instrument to which the Shareholder is a party or by     
which such Shareholder or any of the Shares is bound; or (ii) result in a       
violation of any law, rule, regulation, order, judgment or decree to which such 
Shareholder or any of the Shares is subject. The execution and delivery of this 
Agreement by the Shareholder does not, and the performance of this Agreement by 
such Shareholder shall not, require any consent, approval, authorization or     
permit of, or filing with or notification to, any governmental entity, other    
than any required notices or filings pursuant to the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the rules and regulations promulgated 
thereunder (the "HSR Act"), the federal securities laws or any statute or       
regulation relating to the horse-racing industry.                               

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Section 2. Representations and Warranties of D Corp. D Corp.          
----------------------------------------        
represents and warrants to the Shareholder as follows:                          

   (a)  D Corp. is duly organized and validly existing and in good
standing under the laws of the State of Illinois, has the requisite corporate   
power and authority to execute and deliver this Agreement and to consummate the 
transactions contemplated hereby, and has taken all necessary corporate action  
to authorize the execution, delivery and performance of this Agreement. This    
Agreement has been duly and validly executed and delivered by D Corp. and       
constitutes a legal, valid and binding obligation of D Corp., enforceable       
against D Corp. in accordance with its terms, subject to laws of general        
application relating to bankruptcy, insolvency and the relief of debtors, and to
rules of law governing specific performance, injunctive relief and other        
equitable remedies.                                                             

         (b)  None of the execution, delivery or performance of this Agreement
will directly or indirectly, (i) result in any violation or breach of any       
agreement or other instrument to which D Corp. is a party or by which D Corp. is
bound, including, without limitation, the articles of incorporation and bylaws  
of D Corp.; or (ii) result in a violation of any law, rule, regulation, order,  
judgment or decree to which D Corp. is subject. The execution and delivery of   
this Agreement by D Corp. does not, and the performance of this Agreement by D  
Corp. shall not, require any consent, approval, authorization or permit of, or  
filing with or notification to, any governmental entity, other than any required
notices or filings pursuant to the HSR Act, the federal securities laws or any  
statute or regulation relating to the horse-racing industry.                    

     Section 3.  Agreement to Vote Shares.  Each Shareholder, by this Agreement,
------------------------                      
being the sole record and/or beneficial owner of the Shares, does hereby agree  
to vote or cause to be voted all such Shares at every meeting of the            
shareholders of the Company, however called (and every adjournment or           
postponement thereof), or by written consent in lieu of such a meeting or       
otherwise (i) in favor of the transactions contemplated by the Merger Agreement 
including, without limitation, in favor of the issuance of additional shares of 
common stock of the Company pursuant to the Merger Agreement and any other      
matters or proposals required by the Rules and Regulations of the National      
Association of Securities Dealers, Inc. to be submitted to a vote of the        
shareholders of the Company in order to consummate the transactions contemplated
by the Merger Agreement and (ii) against any action or agreement that would     
result in a breach in any material respect of any covenant,                     

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representation, warranty or other obligation of the Company under the Merger    
Agreement or which is reasonably likely to result in any conditions to the      
Company's obligations under the Merger Agreement not being fulfilled. It is     
expressly understood that this Section 3 requires only that each Shareholder    
vote the Shares in accordance with this Agreement, and that nothing herein shall
prohibit or restrain any such Shareholder from complying with his or her        
fiduciary obligations as a director or officer of the Company, on the advice of 
outside counsel.                                                                

         Section 4. Irrevocable Proxy. Concurrently with the execution of this
-----------------                     
Agreement, each Shareholder has delivered to D Corp. a proxy in the form        
attached hereto as Exhibit A (the "Proxy"), naming Mr. Richard L. Duchossois or 
his substitute as proxy, which proxy shall be irrevocable to the fullest extent 
permitted by law, with respect to the Shares, and shall be deemed to be coupled 
with an interest.                                                               

       Section 5. Transfer and Encumbrance. Each Shareholder agrees not to
------------------------              
transfer, sell, offer or otherwise dispose of or encumber any of the Shares,    
deposit any of the Shares into a voting trust, grant a proxy or power of        
attorney or enter into a voting agreement or similar agreement with respect to  
any of the Shares, or in any other matter limit such Shareholder's voting rights
with respect to the Shares, other than pursuant to the proxy contemplated by    
this Agreement, during the term of this Agreement, unless such transferee agrees
to assume Shareholder's obligations under this Agreement.                       

     Section 6. Additional Purchases. Each Shareholder agrees that any
--------------------                  
shares of capital stock of the Company acquired by such Shareholder with sole   
voting power on or after the date of this Agreement, whether pursuant to        
purchase, exercise of convertible securities or otherwise, shall be subject to  
the terms of this Agreement to the same extent as if they constituted Shares,   
and the term Shares shall be deemed to include any such shares of capital stock 
of the Company acquired by such Shareholder on or after the date of this        
Agreement.                                                                      

         Section 7. No Ownership Interest. Nothing contained in this Agreement
---------------------                 
shall be deemed to vest in D Corp. any direct or indirect ownership or incidence
of ownership of or with respect to any Shares. Except as otherwise expressly    
provided herein, all rights, ownership, and economic benefits of and relating to
the Shares and to options to acquire Shares shall remain and belong to the      
Shareholder, and D Corp. shall have no authority to manage, direct, superintend,
restrict, regulate, govern, or administer any of the policies or operations of  
the                                                                             

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Company or exercise any power or authority to direct the Shareholder in the     
voting of any of the Shares.                                                    

        Section 8.  Specific Performance. The parties agree that irreparable
--------------------                
damage would occur in the event that any of the provisions of this Agreement    
were not performed in accordance with the specific terms hereof or were         
otherwise breached, and that such failure to perform or other breach would cause
the other parties to sustain damages for which they would not have an adequate  
remedy at law for money damages. Each Shareholder agrees that in the event of   
any breach or threatened breach by any Shareholder of any covenant, obligation  
or other provision contained in this Agreement, D Corp. shall be entitled (in   
addition to any other remedy that may be available to it) to (a) a decree or    
order of specific performance or mandamus to enforce the observance and         
performance of such covenant, obligation or other provision, (b) an injunction  
restraining such breach or threatened breach and (c) seek specific performance  
in any other manner; in each case in addition to any other remedy D Corp. may   
have at law or in equity.                                                       

         Section 9.  Adjustments. The number of any type of securities subject
-----------                         
to this Agreement shall be appropriately adjusted in the event of any stock     
dividends, stock splits, recapitalizations, combinations, exchanges of shares or
the like or any other action that would have the effect of changing the         
Shareholders' ownership of the Company's capital stock or other securities.     

          Section 10. Termination. This Agreement shall terminate on the earlier
-----------                         
of (a) the "Closing," as defined in the Merger Agreement and (b) the date the   
Merger Agreement is terminated in accordance with its terms.                    

         Section 11. Notices. All notices and other communications pursuant to
-------                             
this Agreement shall be in writing and shall be deemed to be sufficient if      
contained in a written instrument and shall be deemed given if delivered        
personally or sent by nationally recognized overnight courier to the parties at 
the following addresses (or at such other address for a party as shall be       
specified by like notice):                                                      

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If to D Corp.:                                              

with a copy to:                                             

        if to any Shareholder, addressed to him or her at the address listed
in Appendix A opposite such Shareholder's name:             

with a copy to:                                             

Churchill Downs Incorporated                                
700 Central Avenue                                          
Louisville, Kentucky 40208                                  
Attn: Rebecca C. Reed                                       

And                                                         

Skadden, Arps, Slate, Meagher & Flom (Illinois)             
333 West Wacker Drive                                       
Suite 2100                                                  
Chicago, Illinois 60606                                     
Attn: William R. Kunkel                                     

          All such notices and other communications shall be deemed to have been
received (a) in the case of personal delivery, on the date of such delivery and 
(b) in the case of delivery by nationally recognized overnight courier, on the  
first business day following dispatch.                                          

       Section 12. Severability. If any provision of this Agreement or any
------------                        
part of any such provision is held under any circumstances to be invalid or     
enforceable in any jurisdiction, then (a) such provision or part thereof shall, 
with respect to such circumstances and in such jurisdiction, be deemed amended  
to conform to applicable laws so as to be valid and enforceable to the fullest  
possible extent, (b) the invalidity or unenforceability of such provision or    
part thereof under such circumstances and in such jurisdiction shall not affect 
the validity or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) such invalidity of          
enforceability of such provision or part thereof shall not affect the validity  
or enforceability of the remainder of such provision or the validity or         
enforceability of any other provision of this Agreement. Each provision of this 

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Agreement is separable from every other provision of this Agreement, and each   
part of each provision of this Agreement is separable from every other part of  
such provision.                                                                 

     Section 13. Governing Law. This Agreement and the legal relations
-------------                       
among the parties hereto shall be governed by and construed in accordance with  
the laws of the State of Kentucky, regardless of the laws that might otherwise  
govern under applicable principles of conflict of laws thereof.                 

Section 14. Delivery to Secretary. On the date hereof, each 
---------------------               
Shareholder shall cause to be delivered to the Secretary of the Company an      
executed copy of the Proxy attached hereto as Exhibit A.                        

         Section 15. Waiver. No failure on the part of D Corp. to exercise any
------                              
power, right, privilege or remedy under this Agreement, and no delay on the part
of D Corp. in exercising any power, right, privilege or remedy under this       
Agreement, shall operate as a waiver of such power, right, privilege or remedy; 
and no single or partial exercise of any other such power, right, privilege, or 
remedy shall preclude any other or further exercise thereof or of any other     
power, right, privilege or remedy. D Corp. shall not be deemed to have waived   
any claim arising out of this Agreement, or any power, right, privilege or      
remedy under this Agreement, unless the waiver of such claim, power, right,     
privilege or remedy is expressly set forth in a written instrument duly executed
and delivered on behalf of such party; and any such waiver shall not be         
applicable or have any effect except in the specific instance in which it is    
given.                                                                          

Section 16. Captions. The captions in this Agreement are for
--------                            
convenience of reference only, shall not be deemed to be a part of this         
Agreement and shall not be referred to in connection with the construction or   
interpretation of this Agreement.                                               

     Section 17. Further Assurances. Each Shareholder shall execute or
------------------                  
cause to be delivered to D Corp. or the Company such instruments and other      
documents and shall take such other actions as D Corp may reasonably request to 
effectuate the intent and purposes of this Agreement. Each Shareholder agrees   
not to take any action that would have the effect of preventing him or her from 
performing his or her obligations under this Agreement.                         

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        Section 18.  Entire Agreement.  This Agreement sets forth the entire
----------------                  
understanding of the Shareholders and D Corp. relating to the subject matter    
hereof and supersedes all prior agreements and understandings between such      
parties relating to the subject matter hereof.                                  

        Section 19. Amendments. This Agreement may not be amended, modified,
----------                          
altered or supplemented other than by means of a written instrument duly        
executed and delivered on behalf the party against whom enforcement of such     
amendment is sought.                                                            

     Section 20. Assignment. This Agreement and all obligations of the
----------                          
Shareholders hereunder are personal to the Shareholders and may not be          
transferred or assigned by any Shareholder at any time. D Corp. may assign its  
rights under this Agreement to its affiliates at any time; provided, however,   
that Mr. Richard L. Duchossois may, as proxy, appoint a substitute as           
contemplated by Section 4 hereof and the Proxy, the form of which is attached   
hereto as Exhibit A.                                                            

          Section 21. Binding Nature. Subject to Section 20, this Agreement will
--------------                      
be binding upon each Shareholder and each Shareholder's representatives,        
executors, administrators, estate, heirs, successors and assigns, and will inure
to the benefit of D Corp. and its successors and assigns. Without limiting the  
foregoing, each Shareholder agrees that the obligations of such Shareholder     
hereunder shall not be terminated by operation of law, whether by death or      
incapacity of such Shareholder, or, in the case of a trust, by the death or     
incapacity of any trustee or the termination of such trust.                     

        Section 22. Fees and Expenses. All fees and expenses incurred by any
-----------------                   
of the parties hereto shall be borne by the party incurring such fees and       
expenses.                                                                       

          Section 23. Counterparts. This Agreement may be executed in any number
------------                        
of counterparts, each of which shall, when executed, be deemed to be an         
original, and all of which shall be deemed to be one and the same instrument. It
shall not be a condition to the effectiveness of this Agreement that all parties
have signed the same counterpart.                                               

      Section 24. Survival. All representations and warranties contained
--------                            
herein shall survive the termination hereof.                                    

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         IN WITNESS WHEREOF, and intending to be legally bound hereby, D Corp.
and each of the Shareholders have executed this Agreement on the date first     
above written.                                                                  

DUCHOSSOIS INDUSTRIES, INC.       

/s/ Richard L. Duchossois         
   _____________________________________
Name:  Richard L. Duchossois      
Title: Chairman                   

RICHARD L. DUCHOSSOIS             

/s/ Richard L. Duchossois         
   _____________________________________

CHARLES W. BIDWILL, JR.           

/s/ Charles W. Bidwill, Jr.       
   -------------------------------------

WILLIAM S. FARISH                 

/s/ William S. Farish             
   -------------------------------------

J. DAVID GRISSOM                  

/s/ J. David Grissom              
   -------------------------------------

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SETH W. HANCOCK                   

/s/ Seth W. Hancock               
   -------------------------------------

DANIEL P. HARRINGTON              

/s/ Daniel P. Harrington          
   -------------------------------------

FRANK B. HOWER, JR.               

/s/ Frank B. Hower, Jr.           
   -------------------------------------

G. WATTS HUMPHREY, JR.            

/s/ G. Watts Humphrey, Jr.        
   -------------------------------------

BRAD M. KELLEY                    

/s/ Brad M. Kelley                
   -------------------------------------

THOMAS H. MEEKER                  

/s/ Thomas H. Meeker              
   -------------------------------------

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CARL F. POLLARD                   

/s/ Carl F. Pollard               
   -------------------------------------

DENNIS D. SWANSON                 

/s/ Dennis D. Swanson             
   -------------------------------------

DARRELL R. WELLS                  

/s/ Darrell R. Wells              
   -------------------------------------

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APPENDIX  A 

Name                            Shares                                
----                            ------                                

Charles W. Bidwill, Jr.           451,680                             
William S. Farish                 106,560                             
J. David Grissom                  209,400                             
Seth W. Hancock                    78,000                             
Daniel P. Harrington                    0                             
Frank B. Hower, Jr.                 2,200                             
G. Watts Humphrey, Jr.             51,000                             
Brad M. Kelley                  1,000,000                             
Thomas H. Meeker                   29,413                             
Carl F. Pollard                   173,080                             
Dennis D. Swanson                   1,000                             
Darrell R. Wells                   10,000                             

All communications to the Shareholders should be sent as follows:               

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EXHIBIT A 

LIMITED IRREVOCABLE PROXY 

  The undersigned shareholder of Churchill Downs Incorporated, a
Kentucky corporation (the "Company"), hereby irrevocably appoints Richard L.    
Duchossois the attorney and proxy of the undersigned, with full power of        
substitution and resubstitition, to vote the undersigned's Shares (as defined in
the Merger Agreement), and any and all other shares of capital stock of the     
Company acquired by the undersigned which the undersigned is otherwise entitled 
to vote on or after the date hereof, but only with respect to (i) approval of   
the consummation of the transactions contemplated by the Agreement and Plan of  
Merger, dated as of June ___, 2000 (the "Merger Agreement"), among the Company, 
Duchossois Industries, Inc. ("D Corp.") and certain of their wholly-owned       
subsidiaries, including, without limitation, in favor of the issuance of        
additional shares of common stock of the Company pursuant to the Merger         
Agreement and any other matters or proposals required by the Rules and          
Regulations of the National Association of Securities Dealers, Inc. to be       
submitted to a vote of the shareholders of the Company in order to consummate   
the transactions contemplated by the Merger Agreement and (ii) against any      
action or agreement that would result in a breach in any material respect of any
covenant, representation, warranty or other obligation of the Company under the 
Merger Agreement or which is reasonably likely to result in any conditions to   
the Company's obligations under the Merger Agreement not being fulfilled (the   
"Identified Matters"). It is expressly understood that nothing contained in this
Proxy shall prohibit or restrain any such Shareholder from complying which his  
or her fiduciary obligations as a director or officer of the Company, on the    
advice of outside counsel. Upon the execution hereof, all prior proxies given by
the undersigned with respect to the Shares, any securities of the Company to be 
acquired by the undersigned (to the extent that the undersigned has sole voting 
power with respect to such securities) and any and all other shares or          
securities issued or issuable in respect thereof on or after the date hereof are
hereby revoked, but only to the extent that they relate to the Identified       
Matters, and no subsequent proxies will be given with respect to the Identified 
Matters. This proxy is irrevocable and coupled with an interest and is granted  
in connection with that certain Voting Agreement, dated as of the date hereof   
(the "Voting Agreement"), executed by certain shareholders of the Company and D 
Corp , and is granted in consideration of D Corp. entering into the Merger      
Agreement. The attorney and proxy named above will be empowered at any time     
prior to the termination of the Voting Agreement to exercise all voting and     
other rights of the undersigned with respect to the Shares (including, without  
limitation, the power to                                                        

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execute and deliver written consents with respect to the Shares), but only with 
respect to the Identified Matters, at every meeting of the shareholders of the  
Company (and every adjournment or postponement thereof) or by written consent in
lieu of such a meeting, or otherwise. This limited irrevocable proxy will       
terminate as of the termination of the Voting Agreement.                        

 Any obligations of the undersigned pursuant to this Limited Irrevocable
Proxy shall be binding upon the successors and assigns of the undersigned.      

Dated as of: _________, 2000                                                    

    --------------------------------
Name:                       

SHARES WHICH SHAREHOLDER                                                        
HAS SOLE POWER TO VOTE                                                          
AND SUBJECT TO IRREVOCABLE                                                      
PROXY:                                                                          

______________ shares of the common stock,                                      
no par value, of Churchill Downs                                                
Incorporated.                                                                   

A-2 

Dates Referenced Herein   and   Documents Incorporated by Reference

				Referenced-On Page
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Filed as of:		7/3/00
Filed on:		6/30/00							10-Q,  8-A12G/A,  8-K,  8-K/A
		6/22/00		1					DEF 14A
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