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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): July 27, 2000
CHURCHILL DOWNS INCORPORATED
(Exact name of registrant as specified in its charter)
Kentucky 000-01469 61-0156015
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
700 Central Avenue, Louisville, KY 40208
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area co(502) 636-4400
Not Applicable
(Former name or former address, if changed since last report.)
Item 5. Other Events.
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In connection with the negotiations concerning the proposed mergers
between A. Acquisition Corp., an Illinois corporation, A. Management
Acquisition Corp., an Illinois corporation, T. Club Acquisition Corp., an
Illinois corporation, (each of A. Acquisition Corp., A. Management
Acquisition Corp. and T. Club Acquisition Corp. being a wholly-owned
subsidiary of Churchill Downs Incorporated (the "Company")) and Arlington
International Racecourse, Inc., an Illinois corporation ("Arlington"),
Arlington Management Services, Inc., an Illinois corporation and Turf Club
of Illinois, Inc., an Illinois corporation (each of Arlington, Arlington
Management Services, Inc. and Turf Club of Illinois, Inc. being a
wholly-owned subsidiary of Duchossois Industries, Inc., an Illinois
corporation ("Duchossois Industries")), the Company, Arlington and
Duchossois Industries entered into a Confidentiality Agreement, dated as of
September 15, 1999 (the "Confidentiality Agreement"). Subsequent to its
execution, the 45 day periods referred to in the Confidentiality Agreement
were extended on several occassions. The final extension expired on June
23, 2000.
A copy of the Confidentiality Agreement is being filed herewith as
Exhibit 10(s).
The foregoing description is qualified in its entirety by reference
to the full text of such exhibit.
Item 7. Financial Statements and Exhibits.
(c) The following exhibits are filed with this report:
10(s) Confidentiality Agreement, dated as of September 15, 1999, among
Churchill Downs Incorporated, Duchossois Industries, Inc., and
Arlington International Racecourse, Inc.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
as amended, the Registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
Dated: July 27, 2000 CHURCHILL DOWNS INCORPORATED
By: /s/ Thomas H. Meeker
__________________________________________
Name: Thomas H. Meeker
Title: President and Chief Executive Officer
EXHIBIT 10(s)
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (the "Agreement") is executed as of
September 15, 1999, among the following parties:
ARLINGTON INTERNATIONAL RACECOURSE, INC.
Euclid Avenue and Wilke Road
Arlington Heights, Illinois 60006;
DUCHOSSOIS INDUSTRIES, INC.
Euclid Avenue and Wilke Road
Arlington Heights, Illinois 60006 (collectively
"Arlington")
AND
CHURCHILL DOWNS INCORPORATED
700 Central Avenue
Louisville, Kentucky 40208 ("Churchill")
WHEREAS, the parties to this Agreement are evaluating the potential
for a transaction between Churchill and Arlington, and such evaluation
requires the sharing of confidential and proprietary information between
the parties; and
WHEREAS, the parties to this Agreement have determined to establish
terms governing the confidentiality of certain confidential and proprietary
information which they may disclose to each other.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. For purposes of this Agreement, "Confidential Information" shall
mean: (a) financial statements, business plans, strategic plans,
proprietary market information, analyses, compilations and any other
strategic, competitively sensitive or proprietary information shared
between the parties as a result of the discussions contemplated by this
Agreement; (b) this Agreement and all documents and materials relating
thereto and to the negotiation and execution thereof, including, without
limitation, the existence of this Agreement and the fact of negotiations
taking place between the parties; and (c) all observations, estimates,
conclusions, ideas or concepts reasonably related to Confidential
Information disclosed to the other party.
2. Neither party shall divulge or disclose any Confidential
Information to any person, firm or entity other than the employees, agents,
officers, directors, accountants, attorneys and other advisors of or to the
parties who have a need to know such information, nor shall either party
use any Confidential Information for any purpose other than the evaluation
of the proposed transaction(s) between the parties. Further, neither party
shall use any Confidential Information, either directly or through any
other entity, in any manner which is detrimental to the other party. These
prohibitions shall continue in effect for two years from the date of
execution of this Agreement. Notwithstanding the foregoing, a party may
disclose Confidential Information if:
(a) the party can show, by written records, that the
Confidential Information was in the possession of the party before receipt
from the other party or from any party with a direct or indirect
confidentiality commitment to the other party;
(b) the party can show, by written records, that the
Confidential Information was acquired by the party from others who have no
direct or indirect confidential commitment to the other party;
(c) the Confidential Information was already in the public domain
without the fault or participation of the party at the time of disclosure
to the party;
(d) the Confidential Information becomes part of the public domain
without the fault or participation of the party by publication or
otherwise; or
(e) the Confidential Information is conceived and developed, as
can be shown by objective evidence, by employees of the party who have not
had access to the other party's Confidential Information.
Provided, further, that a party shall have no obligation hereunder to
keep confidential any Confidential Information if and to the extent
disclosure of any such Confidential Information is specifically required by
applicable law (including, without limitation, statutes, regulations
(including NASDAQ regulations), ordinances or court proceedings). In such
event, the disclosing party shall provide the other party with prompt
notice of such requirement before making any disclosure and the parties
shall agree upon the form, timing and content of such disclosure.
The parties hereto acknowledge their respective responsibilities
under federal and state securities with respect to the shares of stock of
Churchill Downs Incorporated.
3. The parties hereto shall transmit Confidential Information only to
those persons who are actively involved in the evaluation and execution of
any proposed transaction between the parties, and who have been informed of
and have agreed to comply with the terms of this Agreement. Any copies made
of Confidential Information shall be strictly accounted for. The parties
shall be responsible for any breach of the terms of this Agreement by such
persons.
4. Either party may terminate the discussions about a potential
transaction at any time and may terminate this Agreement with written
notice to the other party which shall promptly provide written
acknowledgment of receipt of the termination notice. Upon such termination
or when otherwise requested in writing by one party, the other party shall
immediately return or destroy (and confirm in writing to the other party
such fact) the Confidential Information, including all copies,
reproductions, summaries, or extracts thereof, which are then in the
possession or control of the other party, and shall not (except for this
Agreement) retain any copies, reproductions, summaries, or extracts
thereof. The return of such materials shall have no effect on the parties'
obligations under this Agreement, which obligations are continuing as
specified in Paragraph 2 of this Agreement.
5. Neither party shall enter into any agreements, concerning the sale
or purchase or offer for sale or purchase of the stock or all or
substantially all of its assets, or any other transaction involving a
change in control directly or indirectly of any horse racing facility or
its operations or management, for a period of forty-five (45) days from the
date of this Agreement, unless this Agreement is terminated pursuant to
Paragraph 4, in which case the provisions of this Paragraph shall cease to
apply. Except as provided in this Agreement, neither Arlington nor
Churchill shall be committed in any way to the other unless and until a
definitive agreement with respect to a transaction is executed. Any
modification or waiver of any of the terms of this Agreement must be agreed
to in a writing between the parties hereto with respect to the subject
matter hereof, and no prior or collateral promises or conditions shall be
binding on the parties.
6. After the execution of this Agreement and for a period of
forty-five (45) days from the date of this Agreement, each party (in its
capacity as the disclosing party referred to as the "Disclosing Party")
shall provide the other party (in its capacity as the receiving party
referred to as the "Recipient") and its designees reasonable access to such
information concerning the Disclosing Party and its assets and liabilities
as the Recipient shall reasonably request, and permit the Recipient and its
designees to conduct any investigations (during which representatives of
the Disclosing Party shall be entitled to be present) at such times and
upon such terms as the Recipient shall reasonably request, including but
not limited to:
(a) Inspecting and reviewing any and all books, records,
contracts, licenses, governmental approvals, agreements, understandings and
other relevant documents of the Disclosing Party and making copies of any
of the foregoing subject to the terms and conditions of this Agreement;
(b) Inspecting and examining all facilities, real property,
machinery, equipment, inventory and other assets of the Disclosing Party;
and
(c) Conducting all such environmental and other searches as deemed
necessary or appropriate by the Recipient.
In connection with the foregoing, the Recipient shall be entitled to
contact and interview all applicable governmental agencies, banks, lessors,
landlords, major suppliers, and customers of the Disclosing Party, but only
with the Disclosing Party's prior consent. All such investigations and due
diligence shall be at the sole expense of the Recipient.
7. The parties recognize that money damages are not an entirely
sufficient remedy in the event of a breach of this Agreement and that in
addition to all other remedies, the non- breaching party shall be entitled
to specific performance and injunctive or other relief as a remedy for any
such breach. The non-breaching party will not be required to post bond as a
condition precedent to its equitable remedies.
8. For purposes of this Agreement, each party shall be deemed to
include its affiliates, associates, subsidiaries, directors, officers,
employees, agents and representatives.
9. The terms of this Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois without regard to its
choice of law principles. The forum for resolution of any disputes arising
out of or related to this Agreement shall be Cook County, Illinois.
10. The provisions of this Agreement may only be waived or amended by
written consent of the parties hereto, which consent shall specifically
refer to the paragraph or provision being amended or waived.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
CHURCHILL DOWNS ARLINGTON INTERNATIONAL
INCORPORATED RACECOURSE, INC.
By: /s/ Robert L. Decker By: /s/ Robert L. Fealy
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Title: Executive Vice President and Title: Chief Financial Officer
Chief Financial Officer
DUCHOSSOIS INDUSTRIES, INC.
By: /s/ Robert L. Fealy
--------------------------------
Title: Chief Financial Officer