As filed with the Securities and Exchange Commission
on August 21, 1998
Registration No. 333-_______________
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<S> <C> <C>
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
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.)
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700 Central Avenue
Louisville, Kentucky 40208
(Address of Principal Executive Offices)
CHURCHILL DOWNS INCORPORATED 1997 STOCK OPTION PLAN
(Full title of the plan)
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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.
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed maximum Proposed maximum Amount of
securities to be offering price aggregate offering registration
to be registered registered per share<F1> price<F1> fee
<S> <C> <C> <C> <C>
Common Stock, 300,000<F2> $30.75 $9,225,000 $2,721.38
no par value and shares
associated Preferred
Share Purchase
Rights<F3>
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[FN]
<F1> Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457. The maximum offering price per share is based on the average of
the high and low sale price of the Common Stock as reported by the Nasdaq Stock
Market on August 18, 1998, pursuant to Rule 457(h)(1).
<F2> The Registrant also registers hereby such indeterminate number of
additional shares as may be required to cover antidilutive adjustments under
the Churchill Downs Incorporated 1997 Stock Option Plan.
<F3> The Preferred Share Purchase Rights, prior to the occurrence of certain
events, are not evidenced separately from the Common Stock.
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:
A. The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997;
B. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998;
C. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1998;
D. The Registrant's Current Report on Form 8-K as filed on March 20,
1998;
E. The Registrant's Current Report on Form 8-K as filed on April 28,
1998, as amended by the Registrant's Current Report on Form 8-K/A as filed
on July 1, 1998, and as amended by the Registrant's Current Report on Form
8-K/A filed on July 10, 1998;
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; and
G. The description of the Registrant's Preferred Share Purchase
Rights contained in the Registrant's Registration Statement on Form 8-A
filed March 20, 1998 pursuant to Section 12(g) of the 1934 Act.
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.
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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.
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
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[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.
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 Securities Act of 1993;
[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
4
<PAGE>
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.
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
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.
5
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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 August 19, 1998.
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 19th day of August, 1998 in the capacities indicated:
SIGNATURE TITLE
/S/ THOMAS H. MEEKER President, Chief Executive
Thomas H. Meeker Officer (Principal Executive
Officer) and Director
/S/ VICKI L. BAUMGARDNER Vice President, Finance and Treasurer
Vicki L. Baumgardner (Principal Accounting Officer)
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/S/ ROBERT L. DECKER Senior Vice President, Finance and
Robert L. Decker Development, and Chief Financial
Officer (Principal Financial Officer)
/S/ CHARLES W. BIDWILL, JR.
Charles W. Bidwill, Jr. Director
William S. Farish Director
/S/ J. DAVID GRISSOM
J. David Grissom Director
/S/ SETH W. HANCOCK
Seth W. Hancock Director
/S/ DANIEL P. HARRINGTON
Daniel P. Harrington Director
/S/ G. WATTS HUMPHREY, JR.
G. Watts Humphrey, Jr. Director
/S/ FRANK B. HOWER, JR.
Frank B. Hower, Jr. Director
/S/ W. BRUCE LUNSFORD
W. Bruce Lunsford Director
/S/ CARL F. POLLARD
Carl F. Pollard Director
/S/ DENNIS D. SWANSON
Dennis D. Swanson Director
/S/ DARRELL R. WELLS
Darrell R. Wells Director
/S/ ARTHUR B. MODELL
Arthur B. Modell Director
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INDEX TO EXHIBITS
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<CAPTION>
Exhibit
NUMBER DESCRIPTION OF EXHIBIT PAGE
<S> <C> <C>
4(a) Churchill Downs Incorporated 1997 Stock
Option Plan incorporated by reference to
Exhibit 10(n) of the Registrant's report on
Form 10-K for the year ended December 31,
1997.
4(b) Amended and Restated Articles of In-
corporation of the Registrant incorporated by
reference to Exhibit 3(e) of the Registrant's
report on Form 10-Q for the fiscal quarter
ended June 30, 1998.
4(c) Restated Bylaws of the Registrant as amended
incorporated by reference to Exhibit 3(i) of
the Registrant's report on Form 10-Q for the
fiscal quarter ended June 30, 1998.
4(d) Specimen Stock Certificate incorporated by
reference to Exhibit 4(d) to the Registrant's
Registration Statement on Form S-8, File No.
33-85012.
4(e) Rights Agreement dated as of March 19, 1998
between the Registrant and Bank of Louisville
incorporated by reference to Exhibit 4.1 to
the Registrant's Current Report on Form 8-K
filed on March 20, 1998.
5 Opinion of Wyatt, Tarrant & Combs as to the 9
legality of the Common Stock.
23(a) Consent of PricewaterhouseCoopers LLP. 11
23(b) Consent of Wyatt, Tarrant & Combs (included
in Exhibit 5)
24 Power of Attorney (included on signature page 6
of this Registration Statement).
8
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EXHIBIT 5
[Wyatt, Tarrant & Combs Letterhead]
August 21, 1998
Board of Directors
Churchill Downs Incorporated
700 Central Avenue
Louisville, Kentucky 40208
Ladies and Gentlemen:
We have acted as counsel to Churchill Downs Incorporated, a
Kentucky corporation (the "Company"), in connection with 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") to register 300,000 shares
of the Company's common stock (the "Shares"), to be issued pursuant to the
Churchill Downs Incorporated 1997 Stock Option 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, to the
extent options are granted under the Plan, the Shares will be validly
authorized on the respective dates of exercise of any options under the
Plan, and that, on the dates of exercise, the options will have been duly
executed
9
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Board of Directors
Churchill Downs Incorporated
August 21, 1998
Page 2
and delivered and 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,
accordingly, do not purport to be experts on or express any opinion herein
concerning any law other than the laws of the Commonwealth of Kentucky and
the federal law of the United States.
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
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EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
on Form S-8 of our report dated March 7, 1998, except for Note 13, as to
which the date is March 28, 1998, on our audits of the consolidated
financial statements and consolidated financial statement schedule of
Churchill Downs Incorporated as of December 31, 1997, 1996 and 1995 and for
the years ended December 31, 1997, 1996 and 1995, which report is included
in the Annual Report on Form 10-K of Churchill Downs Incorporated for the
year ended December 31, 1997.
/s/ PricewaterhouseCoopers LLP
Louisville, Kentucky
August 19, 1998
11
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