As
filed
with the Securities and Exchange Commission on June 27, 2006. File
No.
333-_____________
UNITED
STATES
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 of
incorporation or organization)
|
(I.R.S. Employer Identification
Number)
|
|
700
Central Avenue, Louisville, Kentucky 40208
|
|
|
(Address of Principal Executive Offices) |
(Zip Code) |
|
Churchill
Downs Incorporated 2004 Restricted Stock Plan
|
|
|
(Full title of plan) |
|
|
Thomas
H. Meeker
President
and Chief Executive Officer
Churchill
Downs Incorporated
700
Central Avenue
Louisville,
Kentucky 40208
|
|
|
(Name and address of agent for service) |
|
|
(502)
636-4400
|
|
|
(Telephone number, including area code, of agent for service) |
|
CALCULATION
OF REGISTRATION FEE
|
Title
of Securities
to
be
Registered
|
Amount
to
be
Registered
|
Proposed
Maximum
Offering
Price
per
Share (1)
|
Proposed
Maximum
Aggregate
Offering
Price (1)
|
Amount
of
Registration
Fee (1)
|
|
Common
Stock, no par value and associated Preferred Share Purchase Rights
(2)
|
120,000
shares(3)
|
$36.79
|
$4,414,800
|
$472.38
|
| (1) |
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
National Market on June 21, 2006, pursuant to Rule
457(h).
|
| (2) |
The
Preferred Share Purchase Rights, prior to the occurrence of certain
events, are not evidenced separately from the Common
Stock.
|
| (3) |
The
Registrant also registers hereby such indeterminate number of additional
shares as may be required to cover antidilutive adjustments under
the
Churchill Downs Incorporated 2004 Restricted Stock
Plan.
|
Exhibit
Index on Page 7.
EXPLANATORY
NOTE
The
120,000 shares of Common Stock being registered pursuant to this registration
statement (the “Registration Statement”) are additional securities of the same
class as other securities for which registration statement No. 333-116734 on
Form S-8 was filed with the Securities and Exchange Commission (the
“Commission”) on June 22, 2004. Pursuant to General Instruction E to Form S-8,
the contents of such earlier registration statement are incorporated by
reference into this Registration Statement, except that the provisions contained
in Part II of such earlier registration statement are modified as set forth
in
this Registration Statement.
On
March
9, 2006, the Registrant’s Board of Directors adopted a proposal to amend the
2004 Restricted Stock Plan (as amended, “Plan”) to increase the aggregate number
of shares of Common Stock available for issuance thereunder by 120,000 shares,
which was approved by shareholders at the Annual Meeting of Shareholders on
June
15, 2006. Accordingly, this Registration Statement is being filed to register
the 120,000 additional shares of Common Stock.
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 fiscal year ended December 31,
2005 and the portions of the Registrant’s Proxy Statement for the 2006 Annual
Shareholders’ Meeting incorporated by reference therein.
(b) Report
on
Form 10-Q for the fiscal quarter ended March 31, 2006.
(c) The
Registrant’s Current Reports on Form 8-K filed January 5, 2006, March 10, 2006,
April 3, 2006, June 8, 2006 and June 21, 2006.
(d) The
description of the Registrant’s common stock, no par value (the “Common Stock”),
which is contained in the Registrant’s Current Report on Form 8-K filed December
14, 1998 and the Registrant’s Current Report on Form 8-K filed July 29, 2005,
pursuant to Section 13 of the Securities Exchange Act of 1934, and any amendment
or report filed for the purpose of updating such description.
(e) 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, as amended on Form 8-A/A filed June 30, 2000
and as amended on Form 8-A/A filed September 14, 2000.
2
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 of the shares of the
Common Stock offered have been sold or which deregisters all of the shares
of
Common Stock then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents.
Item
6. Indemnification of Directors and Officers.
Article
XI of the Registrant’s Amended and Restated Articles of Incorporation, as
amended, limits the liability of directors of the Registrant pursuant to the
Kentucky Business Corporation Act. Under this article, directors generally
are
personally liable to the Registrant or its shareholders for monetary damages
only in transactions involving conflicts of interest or improper personal
benefit for a director, intentional misconduct, violations of law, or unlawful
distributions.
The
Amended and Restated Bylaws of the Registrant require the Registrant to
indemnify and hold harmless each director and officer and permit the Registrant
to indemnify and hold harmless any other employee or agent of the Registrant
who
is, was or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or
investigative and whether formal or informal by reason of the fact that he
is or
was a director, officer, employee or agent of the Registrant, against all
liability and loss suffered and expenses (including any obligation to pay a
judgment, settlement, penalty or fine) incurred by such person to the fullest
extent permitted by law.
The
Amended and Restated Bylaws of the Registrant further provide that the
Registrant shall pay expenses (including attorneys’ fees) incurred by an officer
or director in defending any proceeding in advance of its final disposition,
provided, however, that the payment of such expenses shall be made only upon
receipt of an undertaking by the person to repay all amounts advanced if it
shall ultimately be determined that the person is not entitled to be
indemnified.
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.
|
3
| (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
8. Exhibits.
The
Exhibits listed on the Exhibit Index appearing on page 7 of this Registration
Statement are hereby incorporated by reference.
4
SIGNATURES
The
Registrant.
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 the 15th
day
of June, 2006.
CHURCHILL
DOWNS INCORPORATED
By:_/s/
Thomas H.Meeker______________
Thomas
H.
Meeker
President
and Chief Executive Officer
POWERS
OF
ATTORNEY
KNOW
ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Thomas H. Meeker and Rebecca C. Reed, and each of
them,
as his or her true and lawful attorney-in-fact and agent, with full power of
substitution, for him and her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments and post-effective amendments
to this Registration Statement, and to file the same with all exhibits thereto,
granting unto said attorney-in-fact and agent full power and authority to do
and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent may
lawfully do or cause to be done by virtue thereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons on the 15th day of June, 2006 in the
capacities indicated.
|
/s/
Carl F. Pollard
|
Chairman
of the Board (Director)
|
|
|
Carl
F. Pollard
|
||
|
/s/
Thomas H. Meeker
|
President
and Chief Executive Officer (Director and Principal Executive
Officer)
|
|
|
Thomas
H. Meeker
|
||
|
/s/
Michael E. Miller
|
Executive
Vice President and Chief Financial Officer (Principal Financial and
Accounting Officer)
|
|
|
Michael
E. Miller
|
||
5
|
/s/
Leonard S. Coleman, Jr.
|
Director
|
|
|
Leonard
S. Coleman, Jr.
|
||
|
/s/
Craig J. Duchossois
|
Director
|
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Craig
J. Duchossois
|
||
|
/s/
Richard L. Duchossois
|
Director
|
|
|
Richard
L. Duchossois
|
||
|
/s/
Robert L. Fealy
|
Director
|
|
|
Robert
L. Fealy
|
||
|
/s/
J. David Grissom
|
Director
|
|
|
J.
David Grissom
|
||
|
/s/
Seth W. Hancock
|
Director
|
|
|
Seth
W. Hancock
|
||
|
/s/
Daniel P. Harrington
|
Director
|
|
|
Daniel
P. Harrington
|
||
|
/s/
G. Watts Humphrey, Jr.
|
Director
|
|
|
G.
Watts Humphrey, Jr.
|
||
|
/s/
Susan Elizabeth Packard
|
Director
|
|
|
Susan
Elizabeth Packard
|
||
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/s/
Darrell R. Wells
|
Director
|
|
|
Darrell
R. Wells
|
6
INDEX
TO
EXHIBITS
|
Exhibit
Number
|
Description
of Exhibit
|
Page
|
|
4(a)
|
Amended
and Restated Articles of Incorporation of the Registrant (incorporated
herein by reference to Exhibit 4.1 to the Registrant’s Current Report on
Form 8-K filed July 29, 2005) (Commission File No. 0-1469).
|
|
|
4(b)
|
Amended
and Restated Bylaws of the Registrant (incorporated herein by reference
to
Exhibit 3(b) to the Registrant’s Report on Form 10-K for the year ended
December 31, 2005) (Commission File No. 0-1469).
|
|
|
4(c)
|
Specimen
Stock Certificate (incorporated herein by reference to Exhibit 4(d)
to the
Registrant’s Registration Statement on Form S-8, File No.
33-85012).
|
|
|
4(d)
|
Rights
Agreement dated as of March 19, 1998, between the Registrant and
Fifth
Third Bank as Rights Agent (incorporated herein by reference to Exhibit
4.1 to the Registrant’s Current Report on Form 8-K filed on March 20,
1998, Exhibit 4.1 to the Registrant’s Registration Statement on Form 8-A/A
filed June 30, 2000 and Exhibit 4.1 to the Registrant’s Registration
Statement on Form 8-A/A filed September 14, 2000) (Commission File
No.
0-1469).
|
|
|
4(e)
|
2004
Restricted Stock Plan, as amended (incorporated herein by reference
to
Exhibit 10.1 to the Registrant’s Report on Form 8-K filed June 21, 2006)
(Commission File No. 0-1469).
|
|
|
5
|
Opinion
and Consent of Wyatt, Tarrant & Combs, LLP as to the legality of the
shares being registered.
|
8
|
|
23(a)
|
Consent
of Wyatt, Tarrant & Combs (contained in Exhibit 5).
|
|
|
23(b)
|
Consent
of PricewaterhouseCoopers LLP.
|
10
|
|
24
|
Power
of Attorney (precedes signatures).
|
|
7
Exhibit
5
[Wyatt,
Tarrant & Combs, LLP letterhead]
June
23,
2006
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 120,000 shares (the “Shares”) of the Company’s common stock,
no par value, issuable under the 2004 Restricted Stock Plan, as amended (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.
Board
of
Directors
Churchill
Downs Incorporated
June
23,
2006
Page
2
We
express no opinion with respect to Shares issuable under the Plan which are
purchased by the Company on the open market or in private transactions and
are
not original issuance shares.
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, LLP
/s/
Wyatt, Tarrant & Combs,
LLP
Exhibit
23(b)
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
hereby
consent to the incorporation by reference in this Registration Statement on
Form
S-8 of our report dated March 13, 2006 relating to the consolidated financial
statements, financial statement schedule, management’s assessment of the
effectiveness of internal control over financial reporting and the effectiveness
of internal control over financial reporting of Churchill Downs Incorporated,
which appears in Churchill Downs Incorporated’s Annual Report on Form 10-K for
the year ended December 31, 2005.
/s/
PricewaterhouseCoopers LLP
PricewaterhouseCoopers
LLP
Louisville,
Kentucky
June
23,
2006