As filed with the Securities and Exchange Commission
on July 19, 1995
Registration No. 33-_______________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
CHURCHILL DOWNS INCORPORATED
(Exact name of registrant as specified in its charter)
Kentucky 61-0156015
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
700 Central Avenue
Louisville, Kentucky 40208
(Address of Principal Executive Offices)
CHURCHILL DOWNS INCORPORATED 1995 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Copy to:
Thomas H. Meeker, President Robert A. Heath, Esq.
Churchill Downs Incorporated Wyatt, Tarrant & Combs
700 Central Avenue 2800 Citizens Plaza
Louisville, Kentucky 40208 Louisville, Kentucky 40202
(Name and address of agent for service)
(502) 636-4400
(Telephone number, including area code, of agent for service)
Approximate date of commencement of proposed sale to public:
From time to time after the effective date of this Registration Statement.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------
Title of Amount Proposed maximum Proposed maximum Amount of
securities to be offering price aggregate offering registration
to be registered registered per share (1) price (1) fee
- -----------------------------------------------------------------------------------------------------
Common Stock, 50,000 (2)
no par value shares $41.50 $2,075,000 $716
- -----------------------------------------------------------------------------------------------------
<FN>
1 Estimated solely for the purpose of computing the registration fee pursuant to Rule 457.
2 The Registrant also registers hereby such indeterminate number of additional
shares as may be required to cover antidilutive adjustments under the Churchill
Downs Incorporated 1995 Employee Stock Purchase Plan.
</FN>
</TABLE>
21 sequentially numbered pages.
Exhibit index on page 8.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates the following documents in this
Registration Statement:
1. The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1994;
B. The Registrant's Report on Form 10-K/A filed on April 27, 1995;
C. The Registrant's Report on Form 10-K/A-1 filed on May 24, 1995;
D. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1995;
E. The Registrant's Report on Form 10-Q/A filed on May 31, 1995.
F. The description of the Common Stock, no par value, of the
Registrant contained in a registration statement on Form 10 filed under Section
12 of the Securities Exchange Act of 1934, and any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article XI of the Registrant's Restated Articles of Incorporation limits
the liability of directors of the Registrant pursuant to the Kentucky Business
Corporation Act. Under this Article, directors generally will be personally
liable to the Registrant or its shareholders for monetary damages only for
transactions involving conflicts of interest or from which a director derives an
improper personal benefit, intentional misconduct or violations of law, and
unlawful distributions.
<PAGE>
The Restated Bylaws of the Registrant require the Registrant to
indemnify, and permit the advancement of expenses to, each director, officer,
employee or agent of the Registrant, and his executors, administrators or heirs,
who was or is made, or is threatened to be made a defendant or respondent to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative ("Proceeding"), by reason of the fact
that he is or was a director, officer, employee or agent of the Registrant for
the costs of such Proceeding to the fullest extent expressly permitted or
required by the statutes of the Commonwealth of Kentucky and all other
applicable law.
The Restated Bylaws of the Registrant further provide for
indemnification and advancement of expenses to the aforementioned persons by
action of the Board of Directors in such amounts, on such terms and conditions,
and based upon such standards of conduct as the Board of Directors may deem to
be in the best interests of the Registrant.
The circumstances under which Kentucky law requires or permits a
corporation to indemnify its directors, officers, employees and/or agents are
set forth at KRS 271B.8-500, et seq.
Generally, under KRS 271B.8-500 et seq., a corporation may indemnify an
individual made a party to a proceeding because he is or was a director against
liability incurred in the proceeding if:
[1] He conducted himself in good faith; and
[2] He reasonably believed [a] in the case of conduct in his official
capacity with the corporation that his conduct was in its best interests; and
[b] in all other cases, that his conduct was at least not opposed to its
best interests; and [3] in the case of any criminal proceeding, he had no
reasonable cause to believe his conduct was unlawful.
A corporation may not indemnify a director:
[1] in connection with a proceeding by or in the right of the corporation
in which the director was adjudged liable to the corporation; or [2] in
connection with any other proceeding charging improper personal benefit to him,
whether or not involving action in his official capacity, in which he was
adjudged liable on the basis that personal benefit was improperly received by
him.
Indemnification permitted in connection with a proceeding by or in the
right of the corporation is limited to reasonable expenses incurred in
connection with the proceeding.
<PAGE>
In addition, the Registrant maintains directors' and officers' liability
insurance covering certain liabilities which may be incurred by the directors
and officers of the Registrant in connection with the performance of their
duties.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The exhibits listed on the Exhibit Index appearing on page 8 of this
Registration Statement are hereby incorporated by reference.
ITEM 9. UNDERTAKINGS.
1. The undersigned Registrant hereby undertakes:
A. To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
[1] To include any prospectus required by Section 10(a)(3) of the
Act;
[2] To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement;
[3] To include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
PROVIDED, HOWEVER, that paragraphs 1.A[1] and 1.A[2] do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
<PAGE>
B. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant, the Registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Louisville, Commonwealth of Kentucky, on July 19,
1995.
CHURCHILL DOWNS INCORPORATED
By /S/ THOMAS H. MEEKER
--------------------------
Thomas H. Meeker, President and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas H. Meeker and Alexander M. Waldrop, and
each of them, with the power to act without the other, his or her true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her, and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed below by the following
persons on the 18th day of July, 1995 in the capacities indicated:
SIGNATURE TITLE
/S/ THOMAS H. MEEKER President, Chief Executive
- -------------------- Officer and Director (Principal
Thomas H. Meeker Executive Officer)
<PAGE>
/S/ VICKI L. BAUMGARDNER Vice President of Finance
- ------------------------ and Treasurer (Principal Financial
Vicki L. Baumgardner and Accounting Officer)
Director
Charles W. Bidwill, Jr.
Director
Catesby W. Clay
/S/ WILLIAM S. FARISH Director
- ----------------------
William S. Farish
Director
Daniel M. Galbreath
/S/ J. DAVID GRISSOM Director
- ----------------------
J. David Grissom
/S/ SETH W. HANCOCK Director
- ----------------------
Seth W. Hancock
/S/ FRANK B. HOWER, JR. Director
- ----------------------
Frank B. Hower, Jr.
Director
G. Watts Humphrey, Jr.
/S/ W. BRUCE LUNSFORD Director
- ----------------------
W. Bruce Lunsford
Director
Arthur B. Modell
/S/ CARL F. POLLARD Director
- ----------------------
Carl F. Pollard
/S/ DARRELL S. WELLS Director
- ----------------------
Darrell R. Wells
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT PAGE
4(a) Churchill Downs Incorporated 1995
Employee Stock Purchase Plan. 9
4(b) Restated Articles of
Incorporation of the Registrant
incorporated by reference to the
Registrant's report on Form 8-K
filed with the Securities and
Exchange Commission on July 11,
1991 (Comm. File No. 0-1469).
4(c) Restated Bylaws of
the Registrant as amended are
incorporated by reference to
Exhibit 3(b) of the Registrant's
report on Form 10-K for the year
ended December 31, 1994 (Comm. File
No. 0-1469).
4(d) Specimen Stock Certificate is
incorporated by reference to
Exhibit 4(d) to the Registrant's
Registration Statement on Form S-8,
File No. 33-85012.
5 Opinion of Wyatt, Tarrant & Combs as
to the legality of the Common Stock. 19
23(a) Consent of Coopers & Lybrand, L.L.P. 21
23(b) Consent of Wyatt, Tarrant & Combs
(included in Exhibit 5).
24 Power of Attorney (included on signature
page of this Registration Statement).
CHURCHILL DOWNS INCORPORATED
1995 EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE. The purpose of the Plan is to provide eligible employees
of the Company, and of any Parent or Subsidiary corporation which the Company's
Board of Directors has designated as a Participating Employer in the Plan, an
opportunity to acquire a proprietary interest in the Company through the
purchase of the Company's common stock on a payroll or other compensation
deduction basis. It is believed that participation in the ownership of the
Company will be to the mutual benefit of the eligible employees and the Company.
The Company intends for the Plan to qualify as an "employee stock purchase plan"
under Code Section 423, and the Plan shall be so construed. Any term not
expressly defined in the Plan but defined in the Code for purposes of Code
Section 423 shall have the same definition herein.
2. DEFINITIONS.
A. ACCOUNT. The term "Account" means the funds accumulated
with respect to an individual Participant as a result of deductions from the
Participant's pay for the purpose of purchasing Stock under the Plan. The funds
allocated to a Participant's Account shall remain the Participant's property at
all times.
B. BASE PAY. The term "Base Pay" means regular straight time
earnings, excluding payments for overtime, bonuses, incentive compensation and
other special payments.
C. BOARD. The term "Board" means the Company's Board of
Directors.
D. CODE. The term "Code" means the Internal Revenue Code of
1986, as amended.
E. COMMITTEE. The term "Committee" means the committee
appointed by the Board to administer the Plan in accordance with Section 3.
F. COMPANY. The term "Company" means Churchill Downs
Incorporated, a Kentucky corporation, 700 Central Avenue, Louisville, Kentucky
40208.
G. ELIGIBLE EMPLOYEE. The term "Eligible Employee" means any
person, including any officer or director, who satisfies the following three
requirements: [i] who has been employed by a Participating Employer for at least
one (1) year; [ii] whose customary weekly employment with the Participating
Employer is at least twenty-one (21) hours; and [iii] whose customary calendar
year employment exceeds five (5) months.
<PAGE>
H. EXCHANGE ACT. The term "Exchange Act" means the
Securities Exchange Act of 1934.
I. FAIR MARKET VALUE. The term "Fair Market Value" means the
value of Stock under the Plan, determined in accordance with Section 8.
J. PARENT. The term "Parent" means, as defined in Code
Section 424(e), any corporation, other than the Company, in an unbroken chain of
corporations ending with the Company, if at the time of the granting of an
option under the Plan, each of the corporations other than the Company own stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
K. PARTICIPANT. The term "Participant" means an Eligible
Employee who elects to participate in the Plan.
L. PARTICIPATING EMPLOYER. The term "Participating Employer"
means the Company and any Parent or Subsidiary which the Board has authorized to
participate in the Plan as to its Eligible Employees.
M. PLAN. The term "Plan" means the Churchill Downs
Incorporated 1995 Employee Stock Purchase Plan, as set forth herein and as
amended from time to time.
N. PLAN YEAR. The term "Plan Year" means the twelve (12)
consecutive month period beginning each August 1.
O. STOCK. The term "Stock" means the Company's no par value
common stock.
P. SUBSIDIARY. The term "Subsidiary" means, as defined in Code
Section 424(f), any corporation (other than the Company) in an unbroken chain of
corporations beginning with the Company if, at the time of the granting of an
option under the Plan, each of the corporations other than the last corporation
in the unbroken chain owns stock possessing 50% or more of the total combined
voting power of all classes of stock of one of the other corporations in such
chain.
3. ADMINISTRATION. The Plan shall be administered by the Compensation
Committee of the Company's Board of Directors consisting of not less than three
(3) members appointed by the Board and serving at the Board's pleasure. Each
member of the Committee shall be both a member of the Board who has not at any
time within one (1) year before becoming a member of the Committee been eligible
to receive stock or options under any plan of the Company or its affiliates and
who is a "disinterested person" within the meaning of Rule 16b-3 under the
Exchange Act, or any successor rule or regulation. Any vacancy occurring in the
membership of the Committee shall be filled by appointment by the Board. The
Committee shall have full power and authority to construe, interpret, and
administer the Plan and may from time to time adopt such rules and regulations
for carrying out the Plan as it may deem proper and in the best interests of the
Company.
<PAGE>
4. EFFECTIVE DATE AND DURATION OF THE PLAN. The effective date of
the Plan is August 1, 1995, subject to ratification of the Plan by the holders
of a majority of all the shares of Stock which are voted in person or by proxy
at a duly held stockholders' meeting. The Plan shall terminate upon the earlier
of: [i] issuance of all shares authorized to be issued under the Plan; or [ii]
July 31, 2000.
5. ELIGIBILITY AND PARTICIPATION. All Eligible Employees of a
Participating Employer may participate in the Plan, subject to the limitations
set forth in Section 7. Participation is voluntary. To become a Participant, an
Eligible Employee must complete an authorization form for a payroll deduction
available from the Committee and deliver it to the Committee on or before the
last business day of July of each year. Payroll deductions shall commence on the
Participant's first pay day of August following delivery of the completed
payroll deduction authorization form to the Committee, and shall continue each
Plan Year until altered or terminated as provided in Sections 6, 9 and 10.
6. PAYROLL DEDUCTIONS.
A. PERCENTAGE OF COMPENSATION. Each Eligible Employee electing
to participate in the Plan shall indicate on the payroll deduction form the
percentage of the Eligible Employee's Base Pay to be withheld. Such percentage
shall not be greater than five percent (5%) nor less than one-half percent
(.5%).
B. ACCOUNTS. Payroll deductions from a Participant shall be
credited to the Participant's Account. Amounts shall remain in a Participant's
Account until used to purchase shares pursuant to Section 9 hereof or paid out
pursuant to Sections 9 or 10. A Participant may not make separate cash payments
into the Account. No interest or earnings on the Account will be credited to any
Participant. Compensation deductions received or held by the Committee under the
Plan shall be used only for the purposes specified in the Plan.
C. CHANGES TO PAYROLL DEDUCTION AUTHORIZATION. Participants may
change their payroll deduction authorization as of the beginning of each Plan
Year and may also make one (1) mid-Plan Year change to the percentage of payroll
deductions authorized by delivery of a new payroll deduction authorization form
to the Committee. The change shall become effective as soon as administratively
practicable and shall continue each Plan Year until again altered pursuant to
this section or terminated pursuant to Sections 6, 9 or 10.
<PAGE>
7. GRANT OF OPTIONS.
A. NUMBER OF SHARES OPTIONED. On the first business day in each
Plan Year, each individual who is a Participant on such day shall be granted an
option to purchase as many full shares of Stock as the Participant can purchase
with the compensation deductions credited to the Participant's Account during
the Plan Year up to a maximum of two hundred fifty (250) shares.
B. LIMITATION ON AMOUNT OF GRANT. Notwithstanding the foregoing,
no Participant shall be granted an option to the extent that the option would
permit the Participant's rights to purchase stock under the Plan and all
employee stock purchase plans of the Company and its Parent and Subsidiaries (if
any) to accrue at a rate which exceeds $25,000 of the fair market value of such
stock (determined at the time the option is granted) for each calendar year in
which the option is outstanding at any time. This section shall be applied by
use of all rules and definitions of terms which are applicable for purposes of
Code Section 423(b)(8), it being the intent that this section shall cause the
Plan to comply with the requirements of such section of the Code.
C. 5% SHAREHOLDERS. Anything herein to the contrary
notwithstanding, no Participant shall be granted an option if the Participant
would own, immediately after the grant of the option, stock possessing five
percent (5%) or more of the total combined voting power or value of all classes
of stock of the Company or of any Parent or Subsidiary. The rules of Code
Section 424(d) shall apply in determining stock ownership and stock which the
Participant may purchase under outstanding options shall be treated as stock
owned by the Participant.
D. OPTION PRICE. The option price per share shall be 85% of
the lower of the Fair Market Value per share of the Stock on the first or last
business day in the Plan Year (rounded up to the next whole dime). "Business
day" means the day on which any national securities exchange is open if the
Stock is then listed on such exchange, or, if not listed, the day when the
over-the-counter market is open.
8. FAIR MARKET VALUE OF STOCK. The Fair Market Value per share of
Stock as of any day shall be computed as follows:
A. If the Stock is traded on the over-the-counter market, the
closing high bid quotation for the Stock in the over-the-counter market, as
reported by the National Association of Securities Dealers Automated Quotation
System, on the business day immediately preceding the date of grant.
B. If the Stock is listed on a national securities exchange, the
average of the closing prices of the Stock on the Composite Tape for the ten
(10) consecutive trading days immediately preceding such given date.
<PAGE>
C. If the Stock is neither traded on the over-the-counter market
nor listed on a national securities exchange, such value as the Plan Committee,
in good faith, shall determine.
9. EXERCISE OF OPTIONS.
A. DATE OF EXERCISE. Unless a Participant gives written notice
to the Committee as provided in Section 9.B, the Participant's option for the
Plan Year is deemed exercised automatically at the close of the last business
day of the Plan Year for as many full shares of Stock as can be purchased with
funds in the Participant's Account on that date.
B. PARTICIPANT NOTICE TO CHANGE AMOUNT OF EXERCISE. By
delivering a written notice to the Committee at least two (2) business days
before the end of the Plan Year, a Participant may decide not to exercise the
Participant's option for the Plan Year or to exercise the option for some
lesser number of shares. If more than one written notice is delivered by a
Participant, the last notice shall control.
C. DISPOSITION OF ACCOUNT. Funds in a Participant's Account
will be used to pay the option price upon exercise of the Participant's option,
and the Company shall deliver to each Participant certificates representing any
Stock purchased as soon as administratively practicable after the end of the
Plan Year. Any amount in a Participant's Account at the end of the Plan Year
will be paid to Participant (without interest) as soon as administratively
practicable after the end of the Plan Year.
D. LAPSE OF OPTIONS. All unexercised options shall lapse on the
earlier of: [i] the end of the Plan Year; [ii] termination of participation; or
[iii] termination of the Plan.
10. TERMINATION OF PARTICIPATION.
A. TERMINATION BY PARTICIPANT. A Participant may at any time
terminate participation by giving written notice of such termination to the
Committee and electing to either:
[1] leave any funds in the Participant's Account in
which event the Participant's option will be deemed exercised at
the end of the Plan Year pursuant to Section 9.A and any amounts
remaining after such exercise will be paid to the Participant
(without interest); or
[2] receive any funds in the Participant's Account.
Participants who change their payroll deduction authorization to
zero pursuant to Section 6.C shall be deemed to have terminated participation in
the Plan and will be deemed to have elected a disposition of the Participant's
Account in accordance with Section 10.A[1] unless the Participant notifies the
Committee in writing at least two (2) business days before the end of the Plan
Year that the Participant elects to receive the funds in the Participant's
Account.
<PAGE>
Upon termination of participation, all further payroll deductions
from such Participant shall cease and all amounts in the Participant's Account
which are not used to purchase Stock shall be paid to the Participant (without
interest) as soon as administratively practicable.
B. CHANGE IN EMPLOYEE STATUS. If, on or before the last
business day of the Plan Year, a Participant ceases to be an Eligible Employee
for any reason, including death, disability, resignation, retirement or
dismissal, the Participant's participation in the Plan shall cease and any
outstanding options shall lapse in full on the day the Participant's status as
an Eligible Employee ceases. Upon lapse, all further payroll deductions shall
cease, and all amounts credited to the Participant's Account and not used to
purchase Stock shall be paid to the Participant (without interest) as soon as
administratively practicable following such lapse.
C. LEAVES OF ABSENCE. The employment relationship of a
Participant with a Participating Employer will be treated as continuing intact
while the Participant is on military, sick leave or other bona fide leave of
absence for a period not to exceed ninety (90) days, or for a longer period,
provided that the Participant's right to reemployment with the Participating
Employer is guaranteed either by statute or by contract. Where the period of
leave exceeds ninety (90) days and where the Participant's right to reemployment
is not guaranteed either by statute or contract, the employment relationship
will be deemed to have terminated on the 91st day of such leave.
D. LIMITATION ON WITHDRAWALS FROM ACCOUNT. A Participant may
not withdraw any amount in the Participant's Account except pursuant to Sections
9.C, 10.A or 10.B.
E. REINSTATEMENT OF PARTICIPATION. A Participant whose
participation in the Plan terminates may not elect to participate in the Plan
again until the next Plan Year. In addition, no Participant who is an officer or
director of the Company or a Participating Employer (as contemplated by Rule
16b-3 of the Exchange Act, or any successor rule or regulation) may participate
in the Plan again for at least six (6) months after termination of
participation.
11. STOCK RESERVED FOR PLAN.
A. NUMBER AND TYPE OF SHARES. A total of fifty thousand
(50,000) shares of Stock, which may consist of authorized but unissued shares or
treasury shares or both, are reserved for issuance under the Plan, subject to
adjustment upon changes in capitalization of the Company as provided in Section
11.C. If any option shall lapse or terminate for any reason as to any shares,
such shares of Stock shall again become available under the Plan.
<PAGE>
B. PRORATION OF AVAILABLE SHARES. Notwithstanding anything
herein to the contrary, if the total number of shares which would otherwise have
been acquired under the Plan on any date exceeds the number of shares of Stock
then available under the Plan, then the Committee may make such pro rata
allocation of the shares remaining available in such practicable manner as it
shall determine to be fair and equitable. The payroll deductions to be made
pursuant to the Participant authorizations shall be reduced accordingly and the
Committee shall give written notice of such reduction to each affected
Participant. Any payroll deductions in a Participant's Account not used to
purchase Stock shall be paid (without interest) to such Participant.
C. ADJUSTMENT PROVISION. If there is any change in the number
of outstanding shares of Stock by reason of any stock dividend, stock split-up
or similar transaction, the number of shares of Stock then remaining available
for issuance and the number of shares subject to any outstanding options shall
be correspondingly changed, without change in the aggregate option price.
Additionally, equitable adjustments shall be made in options to reflect any
other changes in the Stock, including changes resulting from a combination of
outstanding shares or other recapitalization, reorganization, sale, merger,
consolidation or similar transaction. The establishment of the Plan shall not
affect the Company's right to make adjustments, reclassifications,
reorganizations or changes in its capital or business structure or to merge,
consolidate, dissolve, liquidate, sell or otherwise transfer all or any part of
its business or assets.
D. DELIVERY OF SHARES. A Participant shall have no interest in,
or rights of a shareholder to, any shares of Stock covered by an option until
shares have been issued to the Participant. Stock to be delivered to a
Participant pursuant to the exercise of an option shall be issued in the name of
the Participant, or, if the Participant so directs by written notice delivered
to the Committee, in the names of the Participant and one other person
designated in the notice, as joint tenants with rights of survivorship, to the
extent permitted by applicable law.
E. RESTRICTIVE LEGENDS.
[1] FAILURE TO SATISFY HOLDING PERIOD REQUIREMENTS.
Certificates representing shares of Stock issued pursuant to the
Plan shall bear a restrictive legend stating that the shares
represented thereby may not be transferred before the expiration
of two (2) years from the date of grant of the option and one (1)
year from the date of transfer of the Stock to the Participant,
unless the Participant notifies the Company of the Participant's
intention to dispose of the Stock. Upon receipt of such notice by
the Committee, the Participant is free to dispose of the Stock.
<PAGE>
[2] INSIDERS. Certificates representing shares of
Stock issued pursuant to the Plan to any director or executive
officer of the Company or a Participating Employer within the
meaning of Section 16 of the Exchange Act shall bear a
restrictive legend stating that the shares represented thereby
may not be transferred before the expiration of six (6) months
from the date of the issuance of shares of Stock to the
Participant.
[3] OTHER LEGENDS. The Company shall be entitled to
place any other legends on certificates for shares of Stock
issued hereunder which it deems appropriate to effectuate the
terms of the Plan or to comply with any applicable law.
12. TRANSFERABILITY. Neither compensation deductions credited to a
Participant's Account nor any rights with regard to participation in the Plan,
exercise of any option or the right to receives shares of Stock under the Plan
may be assigned, transferred, pledged, or otherwise disposed of in any way by a
Participant other than by will or the laws of descent and distribution. Any such
attempted assignment, transfer, pledge, or other disposition shall be without
effect. An option granted under the Plan is exercisable during the Participant's
lifetime only by the Participant.
13. DESIGNATION OF BENEFICIARIES. A Participant may deliver to the
Committee a written designation (on a prescribed form) of a beneficiary or
beneficiaries who are to receive any Stock and cash payable to the Participant
but not delivered to the Participant because of the Participant's death before
such delivery. Such designation may be changed or revoked by delivery of written
notice to the Committee. Upon the death of a Participant and upon receipt by the
Committee of proof deemed adequate by it of the identity and existence of a
beneficiary or beneficiaries validly designated by such Participant, the Company
shall issue and deliver such Stock and pay such cash to such beneficiary or
beneficiaries. In the absence of the Company's receipt of such proof, or if the
Participant fails to designate any beneficiary who is living at the time of the
Participant's death, the Company shall issue and deliver such Stock and pay such
cash to the executor or administrator of the estate of such Participant, or if
no such executor or administrator has been appointed (to the knowledge of the
Committee), the Company, if and as the Committee may direct in its discretion,
shall issue and deliver such Stock and pay such cash to the spouse and/or any
one or more dependents or relatives of such Participant, or if no such spouse,
dependent or relative is known to the Committee, then to such other person or
persons as the Committee may designate in its discretion.
<PAGE>
14. AMENDMENT AND TERMINATION. The Plan may be amended or terminated
by the Compensation Committee of the Board at any time. Any amendment of the
Plan requires approval by the Company's stockholders within twelve (12) months
after such amendment's adoption by the Compensation Committee if it increases
the total number of shares of Stock available for issuance under the Plan, or
changes the class of corporations eligible to become Participating Employers or
the class of persons eligible to receive options under the Plan, or if the
Committee otherwise deems such approval necessary or advisable for purposes of
complying with Rule 16b-3 of the Exchange Act, or any successor rule or
regulation. Such stockholder approval shall mean approval by holders of a
majority of all the shares of the Stock which are voted in person or by proxy at
a duly held stockholders' meeting. No such amendment may be adopted which would
adversely affect any rights acquired by any person hereunder before the
effective date of such amendment, unless such amendment is necessary for the
Company to obtain a ruling it may request from the Internal Revenue Service with
respect to the Plan, or necessary for the plan to conform to the requirements of
Code Section 423 or any other applicable law.
15. NOTICES. Any notice or other communication by any person to the
Committee shall be deemed to have been duly given when actually received by a
member of the Committee, or when actually received by the Company addressed as
follows:
Churchill Downs Incorporated
700 Central Avenue
Louisville, Kentucky 40208
Attention: Board of Directors,
Compensation Committee
Any notice or other communication or any delivery of Stock or cash to any person
(other than the Committee) under or in connection with the Plan shall be deemed
to have been duly given or made when deposited in the United States mails,
postage prepaid, addressed to such person at the address last shown for such
person in the records of the Committee or any Participating Employer.
16. TAX WITHHOLDING. The Participating Employer shall have the right
to withhold from each Participant's compensation an amount equal to all
federal, state and local taxes which the Participating Employer is required
by law to withhold as a result of the Participant's participation in the
Plan or disposition of shares of Stock issued under the Plan.
17. NONGUARANTEE OF EMPLOYMENT. No provision of the Plan shall be
construed as giving any person any right he would not otherwise have to become
or remain an employee of a Participating Employer, or any other right not
expressly created by such provision.
<PAGE>
18. GOVERNING LAW. The Plan shall be governed by the laws of the
Commonwealth of Kentucky and any applicable federal laws.
Dated this _____ day of __________________________, 1995.
CHURCHILL DOWNS INCORPORATED
By:________________________________
Title:_____________________________
Board of Directors
Churchill Downs Incorporated
700 Central Avenue
Louisville, Kentucky 40208
Gentlemen:
We have acted as counsel to Churchill Downs Incorporated, a
Kentucky corporation (the "Company"), in connection with the registration of
50,000 shares of the Company's common stock (the "Shares"), on the Registration
Statement on Form S-8 (the "Registration Statement") being filed by the Company
with the Securities and Exchange Commission pursuant to the Securities Act of
1933, as amended (the "Act"). The Shares are issuable under the Churchill Downs
Incorporated 1995 Employee Stock Purchase Plan (the "Plan").
We have examined and are familiar with the Company, its
organization and proceedings related thereto. We have also examined such other
documents and procedures as we have considered necessary for the purpose of this
opinion.
We have assumed, for purposes of this opinion, that the Shares
will be validly authorized on the respective dates of issuance of the Shares
under the Plan and that, on the dates of issuance of the Shares under the Plan,
the obligations of the Company under the Plan will constitute the legal, valid
and binding obligations of the Company, enforceable against the Company in
accordance with their respective terms.
Based upon the foregoing and subject to the qualifications
hereinafter set forth, we are of the opinion that the Shares are duly authorized
and, when issued and sold in accordance with the Registration Statement, the
prospectus delivered to participants in the Plan pursuant to the requirements of
the Act, the pertinent provisions of any applicable state securities laws and
the Plan, will be duly and validly issued, fully paid and nonassessable.
We are members of the Bar of the Commonwealth of Kentucky and do
not purport to be experts on the laws of any jurisdiction other than the
Commonwealth of Kentucky and the Federal laws of the United States of America,
and we express no opinion as to the laws of any jurisdiction other than those
specified.
<PAGE>
Our opinion is directed to the Board of Directors of the Company
and may not be relied upon by any persons other than said directors, recipients
of the prospectus and participants in the Plan. We expressly disclaim any
responsibility for advising you of any change hereafter occurring in
circumstances touching or concerning the transaction which is the subject of
this opinion, including any changes in the law or in factual matters occurring
subsequent to the date of this opinion.
We hereby consent to the filing of this opinion, or copies
thereof, as an Exhibit to the Registration Statement. In giving this consent, we
do not thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Securities and Exchange Commission thereunder.
Sincerely,
WYATT, TARRANT & COMBS
/s/ Wyatt, Tarrant & Combs
---------------------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 of our report, which includes an explanatory paragraph for the
Company's change in its method of accounting for income taxes as of February 1,
1993, dated March 14, 1995 on our audits of the consolidated financial
statements and financial statement schedule of Churchill Downs Incorporated as
of December 31, 1994, December 31, 1993 and January 31, 1993 and for the year
ended December 31, 1994, for the eleven-month period ended December 31, 1993,
and for the year ended January 31, 1993, which report is included in Item 8 of
the Annual Report on Form 10-K filed March 31, 1995 (File No. 0-1469).
/s/ Coopers & Lybrand, L.L.P.
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COOPERS & LYBRAND, L.L.P.
Louisville, Kentucky
July 17, 1995