cdforms3may09.htm
As filed
with the Securities and Exchange Commission on May 6, 2009.
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
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Churchill
Downs Incorporated
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(Exact
name of registrant as specified in its charter)
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Kentucky
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61-0156015
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(State
or other jurisdiction
of
incorporation or organization)
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(I.R.S.
Employer
Identification
Number)
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700
Central Avenue
Louisville,
Kentucky 40208
(502)
636-4400
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(Address,
including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
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Robert
L. Evans
President
and Chief Executive Officer
Churchill
Downs Incorporated
700
Central Avenue
Louisville,
Kentucky 40208
(502)
636-4400
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(Name,
address, including zip code, and telephone number, including area code, of
agent for service)
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Copy
to:
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Caryn
F. Price, Esq.
Wyatt,
Tarrant & Combs, LLP
500
W. Jefferson Street, Suite 2800
Louisville,
Kentucky 40202
(502)
589-5235
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Approximate date of
commencement of proposed sale to the public: From time to time after the
effective date of this registration statement.
If the only
securities being registered on this Form are being offered pursuant to dividend
or interest reinvestment plans, please check the following box: ¨
If any of the
securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933,
other
than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box: x
If this Form
is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement
number of the earlier effective registration statement for the same
offering. ¨
If this Form
is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement
number of the earlier effective
registration statement for the same offering. ¨
If this Form
is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule
462(e) under the Securities Act, check the following box. ¨
If this Form
is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule
413(b) under the Securities Act, check the following box. ¨
Indicate by
check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See definitions
of “large accelerated filer”,
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act (Check one):
Large
accelerated filer ¨ Accelerated
filer x Non-accelerated
filer ¨
Smaller reporting company ¨
CALCULATION
OF REGISTRATION FEE
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Title
of Securities
to
be
Registered
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Amount
to
be
Registered
(1)
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Proposed
Maximum
Offering
Price
per
Share (2)
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Proposed
Maximum
Aggregate
Offering
Price
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Amount
Of
Registration
Fee
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Common
Stock, no
par value, and associated Preferred Share Purchase Rights
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200,000
shares
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$34.57 |
$6,914,000 |
$385.81 |
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(1) In the event
of a stock split, stock dividend or similar tranasaction involving the Common
Stock, in order to prevent dilution, the number of shares registered shall
automatically be increased to cover the additional shares in accordance with
Rule 416(a) un the Securities Act.
(2) 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 prices of the Common Stock as reported on the Nasdaq
Global Select Market on May 1, 2009 pursuant to Rule 457(c).
The registrant hereby amends this
registration statement on such date or dates as may be necessary to delay its
effective date until the registrant shall file a further amendment that
specifically states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or until
this registration statement shall become effective on such date as the
Securities and Exchange Commission, acting pursuant to Section 8(a), may
determine.
Subject
to Completion, dated May 6, 2009
PROSPECTUS
200,000
Shares
CHURCHILL DOWNS
INCORPORATED
Common
Stock
This
prospectus relates to the resale of up to 200,000 shares of our common stock
that may be sold by TVI Corp., the selling stockholder. The selling
stockholder obtained its shares of common stock on April 21, 1998 in connection
with our acquisition of a subsidiary from the selling
stockholder. We are not selling any securities under this prospectus
and will not receive any part of the proceeds from the sale.
Our
common stock is listed on the Nasdaq Global Select Market under the symbol
"CHDN". On May 1, 2009, the closing price of our common stock was
$33.90.
The
selling stockholder may offer its shares of common stock through public or
private transactions, on or off the Nasdaq Global Select Market, at prevailing
market prices, or at privately negotiated prices. We provide more
information about how the selling stockholder may sell its shares of common
stock in the section titled “Plan of Distribution” on page 17. We
will not be paying any underwriting discounts or commissions in this
offering. We will pay the expenses incurred in registering the
shares, including legal and accounting fees.
Investing
in our common stock involves risks. See "Risk Factors" beginning on
page 4 of this prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is May __,
2009.
You
should rely only on the information contained or incorporated by reference in
this prospectus. We have not, and the selling stockholder has not,
authorized any other person to provide you with different
information. If anyone provides you with different or inconsistent
information, you should not rely on it. We are not making an offer to
sell these securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in this
prospectus is accurate as of the date on the front cover of this prospectus
only. Our business, financial condition, results of operations and
prospects may have subsequently changed.
TABLE
OF CONTENTS
Page
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CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
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2
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OUR
COMPANY
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3
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RISK
FACTORS
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4
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USE
OF PROCEEDS
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16
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SELLING
STOCKHOLDER
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17
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PLAN
OF DISTRIBUTION
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17
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DESCRIPTION
OF CAPITAL STOCK
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19
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LEGAL
MATTERS
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20
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EXPERTS
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21
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WHERE
YOU CAN FIND MORE INFORMATION
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21
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CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Information
set forth in this prospectus contains various “forward-looking statements”
within the meaning of Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934. The Private Securities
Litigation Reform Act of 1995 (the “Act”) provides certain “safe harbor”
provisions for forward-looking statements. All forward-looking statements made
in this prospectus are made pursuant to the Act. The reader is cautioned that
such forward-looking statements are based on information available at the time
and/or management’s good faith belief with respect to future events, and are
subject to risks and uncertainties that could cause actual performance or
results to differ materially from those expressed in the statements.
Forward-looking statements speak only as of the date the statement was made. We
assume no obligation to update forward-looking information to reflect actual
results, changes in assumptions or changes in other factors affecting
forward-looking information. Forward-looking statements are typically identified
by the use of terms such as “anticipate,” “believe,” “could,” “estimate,”
“expect,” “intend,” “may,” “might,” “plan,” “predict,” “project,” “should,”
“will,” and similar words, although some forward-looking statements are
expressed differently. Although we believe that the expectations reflected in
such forward-looking statements are reasonable, we can give no assurance that
such expectations will prove to be correct. Important factors that could cause
actual results to differ materially from expectations include those factors
described in “Risk Factors” of this prospectus.
OUR
COMPANY
We are a
leading multi-jurisdictional owner and operator of pari-mutuel wagering
properties and businesses. Additionally, we offer gaming products through our
slot and video poker operations in Louisiana.
We manage
our operations through four operating segments as follows:
1. Racing
Operations, which includes:
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Churchill
Downs Racetrack (“Churchill Downs”) in Louisville, Kentucky, an
internationally known thoroughbred racing operation and home of the
Kentucky Derby since 1875;
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Arlington
Park Racecourse (“Arlington Park”), a thoroughbred racing operation in
Arlington Heights along with ten off-track betting facilities (“OTBs”) in
Illinois;
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Calder
Race Course (“Calder”), a thoroughbred racing operation in Miami Gardens,
Florida;
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Fair
Grounds Race Course (“Fair Grounds”), a thoroughbred racing operation in
New Orleans along with ten OTBs in
Louisiana.
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2. On-Line
Business, which includes:
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TwinSpires,
an advance deposit wagering (“ADW”) business that conducts pari-mutuel
wagering in 36 states;
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Bloodstock
Research Information Services (“BRIS”), a data service provider for the
equine industry;
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Our
equity investment in HRTV, LLC (“HRTV”), a horseracing television
channel.
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3. Gaming,
which includes:
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Video
Services, Inc. (“VSI”), the owner and operator of more than 700 video
poker machines in Louisiana;
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Fair
Grounds Slots, a slot facility in Louisiana, which operates approximately
600 slot machines.
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4. Other
Investments, which includes:
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Churchill
Downs Simulcast Productions, LLC (“CDSP”), a provider of television
production to the racing industry;
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Our
other minor investments.
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Our
principal executive offices are located at 700 Central Avenue, Louisville,
Kentucky 40208, and our telephone number is (502) 636-4400. Our
website is www.churchilldowns.com. The content of our website is not
a part of this prospectus.
RISK
FACTORS
You
should carefully consider the following factors before deciding to invest in our
common stock. In addition to risks and uncertainties in the ordinary
course of business that are common to all businesses, important factors that are
specific to our industry and company could materially impact our future
performance and results. The factors described below are the most significant
risks that could materially impact our business, financial condition and results
of operations. Additional risks and uncertainties that are not presently known
to us, that we currently deem immaterial or that are similar to those faced by
other companies in our industry or business in general may also impair our
business and operations. Should any risks or uncertainties develop into actual
events, these developments could have a material, adverse impact on our
business, financial condition and results of operations.
Risks
Related to the Company
In
addition to risks and uncertainties in the ordinary course of business that are
common to all businesses, important factors that are specific to our industry
and Company could materially impact our future performance and results. The
factors described below are the most significant risks that could materially
impact our business, financial condition and results of operations. Additional
risks and uncertainties that are not presently known to us, that we currently
deem immaterial or that are similar to those faced by other companies in our
industry or business in general may also impair our business and operations.
Should any risks or uncertainties develop into actual events, these developments
could have a material, adverse impact on our business, financial condition and
results of operations.
General
Economic Trends are Unfavorable
There is
a strong likelihood that the recent significant economic downturn has had, and
for the foreseeable future will continue to have, a negative impact on our
financial performance. The recent, severe economic downturn and adverse
conditions in local, regional, national and global markets has negatively
impacted our operations and will likely continue to do so in the near future.
During periods of economic contraction like that currently being experienced,
certain costs remain fixed or even increase, while revenues decline. Horseracing
and related activities, as well as the gaming services we provide, are similar
to other leisure activities in that they represent discretionary expenditures
likely to decline during economic downturns. In some cases, even the perception
of an impending economic downturn or the continuation of a recessionary climate
can be enough to discourage consumers from spending on leisure activities. For
example, one major horseracing company, Magna Entertainment Corporation (“MEC”),
filed bankruptcy in the United States Bankruptcy Court for the District
of Delaware on March 5, 2009. MEC owns several racetracks, including,
among others, Santa Anita, Gulfstream Park, Lone Star Park, Laurel and Pimlico.
It also owns Xpressbet, an ADW business. As such, it provides racing signals for
wagering at our racetracks and through TwinSpires.com for import simulcast
purposes and markets for export simulcast purposes. In addition, it is the
co-owner with the Company of TrackNet and HRTV. MEC also owns Amtote
International, Inc. (“Amtote”), a totalisator company that provides totalisator
services to Arlington Park, Calder, Fair Grounds and TwinSpires. We cannot
predict at this time what the effect will be of such bankruptcy on our
business, financial condition, or results of operations. We are closely
monitoring the bankruptcy proceedings for potential development opportunities
and the bankruptcy's potential impact on our business, financial condition or
results of operations.
We
Face Significant Competition
We
operate in a highly competitive industry with a large number of participants,
some of which have financial and other resources that are greater than ours. The
industry faces competition from a variety of sources for discretionary consumer
spending including spectator sports and other entertainment and gaming options.
Competitive gaming activities include traditional and Native American casinos,
video lottery terminals, state-sponsored lotteries and other forms of legalized
gaming in the U.S. and
other
jurisdictions. Additionally, web-based interactive gaming and
wagering is growing rapidly and affecting competition in our industry. We
anticipate competition in this area will become more intense as new web-based
ventures enter the industry.
Legalized
gaming is currently permitted in various forms in many U.S. states and Canada.
Other jurisdictions could legalize gaming in the future, and established gaming
jurisdictions could award additional gaming licenses or permit the expansion of
existing gaming operations. If additional gaming opportunities become available
near our racing operations, such gaming opportunities could have a material,
adverse impact on our business, financial condition, and results of
operations.
All of
our racetracks face competition in the simulcast market. Approximately 50,000
horse races are conducted annually in the U.S. Of these races, the Company hosts
approximately 4,100 races each year, or around eight percent of the total. As a
content provider, we compete for wagering dollars in the simulcast market with
other racetracks conducting races at or near the same times as our races. As a
racetrack operator, we also compete with other racetracks running live meets at
or near the same time as our races for horses. In recent years, this competition
has increased as more states legalize gaming allowing slot machines at
racetracks with mandatory purse contributions. Over 85 percent of pari-mutuel
handle is bet at off-track locations, either at other racetracks, OTBs, casinos,
or via the internet. As a content distributor, we compete for these dollars to
be wagered at our racetracks, OTBs and via our ADW business.
Calder,
our thoroughbred racetrack in Miami, Florida faces direct competition from
another thoroughbred racetrack in Miami, Florida. The two racetracks are located
approximately 6.5 miles apart. Under Florida law, racetracks are permitted to
race throughout the year, subject to an annual notification filed with the state
of Florida on March 31 of each year. As a result, Calder and the other
racetrack, respectively, may independently elect to host live races on the same
days. We believe that hosting live races on the same days could materially and
adversely impact our business, financial condition and results of
operations.
Web-based
businesses may offer consumers a wide variety of events to wager on, including
other racetracks and other sporting events. Unlike most on-line and web-based
gaming companies, our racetracks require significant and ongoing capital
expenditures for both their continued operations and expansion. We could also
face significantly greater costs in operating our business compared to these
gaming companies. We cannot offer the same number of gaming options as on-line
and Internet-based gaming companies. Many on-line and web-based gaming companies
are based off-shore and avoid regulation under U.S. state and federal laws.
These companies may divert wagering dollars from pari-mutuel wagering venues,
such as our racetracks. Our inability to compete successfully with these
competitors could have a material, adverse impact on our business, financial
condition, and results of operations.
The ADW
business is sensitive to changes and improvements to technology and new
products. Our ability to develop, implement and react to new technology and
products for our ADW business is a key factor in our ability to compete with
other ADW providers.
The
Popularity of Horse Racing is Declining
There has
been a general decline in the number of people attending and wagering on live
horse races at North American racetracks due to a number of factors, including
increased competition from other wagering and entertainment alternatives as
discussed above and unwillingness of customers to travel a significant distance
to racetracks with the increasing availability of off-track and ADW options.
Declining attendance at live horse racing events has prompted racetracks to rely
increasingly on revenues
from
simulcasting and ADW businesses. In addition, racetracks and other outlets may
be unable to pay amounts owed to us as a result of business difficulties. A
continued decrease in attendance at live events and in on-track wagering, as
well as increasing competition from other wagering and entertainment
alternatives in the simulcasting and ADW markets, could materially, adversely
impact our business, financial condition, and results of
operations.
We
Face Extensive Regulation from Various Authorities
The
operation of pari-mutuel wagering and gaming facilities is subject to extensive
state and local regulation. We depend on continued state approval of legalized
gaming in states where we operate. Our wagering and racing facilities, our ADW
business and our gaming operations must meet the licensing requirements of
various regulatory authorities. The failure to attain, loss of or material
change in our licenses, registrations, permits or approvals may materially limit
the number of races we conduct as well as our ability to operate slot machines,
and/or video poker devices, and could have a material, adverse impact on our
business, financial condition and results of operations. The high degree of
regulation in the gaming industry is a significant obstacle to our growth
strategy. Our expansion into ADW operations will likely require us to obtain
additional governmental approvals or, in some cases, amendments to current laws
governing such activities.
Changes
in Legislation and Regulation of Our Operations Could Affect Our
Business
Our
gaming operations exist at the discretion of the states where we conduct
business. Certain aspects of our gaming operations are also subject to federal
statutes or regulations. All of our pari-mutuel wagering operations are
contingent upon continued governmental approval of those operations as forms of
legalized gaming. Legislation to limit or prohibit gaming (pari-mutuel or
non-pari-mutuel) may be introduced in the future. Any restriction on or
prohibition of gaming operations could have a material, adverse impact on our
business, financial condition and results of operations. In addition, any
expansion of our gaming operations into gaming, such as slot machines, video
lottery terminals and other forms of non-pari-mutuel gaming, will likely require
various additional licenses, registrations, permits and approvals. The approval
process can be time-consuming and costly, and there is no assurance of success.
We have and continue to seek legal authority to offer gaming at our racetracks
where gaming is not currently permitted.
In
Illinois, the Illinois Racing Board has the authority to designate racetracks as
“host track” for the purpose of receiving host track revenues generated during
periods when no racetrack is conducting live races. Racetracks that are
designated as “host track” obtain and distribute out of state simulcast signals
for the State of Illinois. Under Illinois law, the “host track” is entitled to a
larger portion of commissions on the related pari-mutuel wagering. Failure to
designate Arlington Park as “host track” during this period could have a
material, adverse impact on our business, financial condition and results of
operations. In addition, Arlington Park is statutorily entitled to recapture as
revenues monies that are otherwise payable to Arlington Park’s purse account.
The right to recapture these revenues is subject to change every legislative
session.
These
statutory or regulatory established revenue sources are subject to change every
legislative session. The reduction or elimination of any one of them could have
a material, adverse impact on our business, financial condition and results of
operations. In addition, certain revenue sources are dedicated by legislation or
regulation and may be subject to change. State legislators may also decide to
legislate the amounts of certain sources of revenue. For example, certain states
mandate a fixed source market fee or require a negotiated source market fee as a
condition to obtain a license. The Virginia legislature recently mandated a 10%
statewide source market fee. It is uncertain whether this legislation will pass.
Legislative
and
regulatory changes to sources of revenue could have a material, adverse impact
in our business, financial condition and results of
operations.
The
passage of legislation permitting gaming at racetracks can be a long and
uncertain process. As a result, there can be no assurance that (1) jurisdictions
in which we own or operate racetracks will pass legislation permitting gaming,
(2) if jurisdictions pass such legislation, it will be permitted at our
racetracks, and (3) if gaming is permitted at our racetracks, it will be on
economically viable terms. If gaming legislation is enacted in any jurisdiction
where we own or operate a racetrack and we proceed to conduct gaming, there may
be significant costs and other resources to be expended, and there will be
significant risks involved, including the risk of changes in the enabling
legislation (such as a decision to prohibit, delay or remove gaming rights at
racetracks by the legislation regulatory act of the citizens, or other act) that
could have a material, adverse impact on our business, financial condition and
results of operations. We currently operate video poker devices and slot
machines in Louisiana, and we are applying for a permit to operate slot machines
in Florida.
In 2003,
the country of Antigua filed a formal complaint against the United States with
the World Trade Organization (“WTO”), challenging the United States’ ability to
enforce certain Federal gaming laws (Sections 1084, 1952 and 1955 of Title 18 of
the United States Code known as the Wire Act, the Travel Act and the Illegal
Gambling Business Act, respectively, and collectively the “Acts”) against
foreign companies that were accepting Internet wagers from residents of the
United States. At issue was whether the United States’ enforcement of the Acts
against foreign companies violated the General Agreement on Trade in Services
(“GATS”). In November 2004, a WTO panel ruled that the United States, as a
signatory of GATS, could not enforce the Acts against foreign companies that
were accepting Internet wagers from United States residents. The United States
appealed the ruling and, in April 2005, the WTO’s appellate body ruled that the
United States had demonstrated that the Acts were measures necessary to protect
public morals or maintain public order, but that the United States did not
enforce the Acts consistently between domestic companies and foreign companies
as required by GATS. The WTO’s appellate body specifically referenced the
Interstate Horseracing Act of 1978 (“IHA”), which appeared to authorize domestic
companies to accept Internet wagers on horse racing, as being inconsistent with
the United States’ stated policy against Internet wagering. In arguments and
briefs before the WTO’s appellate body, the United States argued that the Acts,
specifically the Wire Act, apply equally to domestic companies and foreign
companies and the IHA does not create an exception for domestic companies to
accept Internet wagering on horse racing. The WTO’s appellate body did not rule
on whether an exception for domestic U.S. companies was created under the IHA,
but recommended that the WTO’s Dispute Settlement Body request the United States
to bring measures found to be inconsistent with GATS into conformity with its
obligations under GATS. The United States was given until April 3, 2006 to bring
its policies in line with the ruling, assuming it believed any changes were
necessary. On April 10, 2006, the United States delegation to the WTO submitted
a brief report to the Chairman of the Dispute Settlement Body (“U.S. Report”)
stating that no changes are necessary to bring U.S. policies in line with the
ruling. In support of its position, the United States delegation informed the
Dispute Settlement Body that on April 5, 2006, the United States Department of
Justice confirmed the United States Government position regarding remote
wagering on horse racing in testimony before a subcommittee of the United States
House of Representatives. According to the U.S. Report, in that testimony, the
Department of Justice stated its view that regardless of the IHA, existing
criminal statutes prohibit the interstate transmission of bets or wagers,
including wagers on horse racing, and informed the subcommittee that it is
currently undertaking a civil investigation relating to a potential violation of
law regarding this activity. On January 25, 2007, the WTO compliance panel
issued its interim finding in response to the U.S. Report and found that the
United States has failed to comply with previous WTO rulings regarding
restrictions on access to the U.S. Internet gaming market. On March 30, 2007,
the final report was issued upholding all lower panel decisions. On May 4, 2007,
the United States Trade Representative (the “USTR”) announced that it had
initiated the formal process by the United States of
withdrawing
its GATS commitment to clarify an error that it had made in 1994 by including
gambling services in its schedule of commitments. The USTR stated that the
United States will use the WTO procedures for clarifying its commitments under
the GATS. The USTR also stated that the United States intends to modify its
services schedule by clearly defining gambling as an excluded commitment under
the GATS. The result of withdrawal would be that the United States would not be
obligated to provide foreign providers of gambling services access to the United
States market. Under GATS, countries seeking to alter their service trade
commitments must compensate trading partners that may potentially be negatively
impacted by the change. The U.S. has announced that it compensated certain
countries. At this time, the only remaining issue before the WTO appears to be
appropriate compensation to affected members of the treaty. The U.S. Government
has made offers of compensation to WTO members affected by the decision of the
U.S. to rule out any market access commitments regarding cross-border gambling
services. In December 2007, the WTO arbitrators awarded Antigua the right to
impose sanctions against United States’ intellectual property, including
copyrights, trademarks and patents, up to an annual amount of $21.0 million. The
arbitrators’ award is not subject to appeal under WTO rules. The USTR has made
no specific statement regarding how this will impact interstate gambling in
horse racing. One of the options available to Congress and the White House is to
prohibit or restrict substantially the conduct of interstate simulcast wagering
or advance deposit wagering. If the U.S. government elects to take such an
approach (including through any action by the Department of Justice), it will
have a material, adverse impact on our business, financial condition and results
of operations. Alternatively, if, as a result of the U.S. Government’s position,
offshore wagering is permitted in the United States, that could also have a
material, adverse impact on our business, financial condition and results of
operations.
We
May Face Government and Other Opposition Regarding Our Pari-Mutuel Wagering
Operations
During
2007, we launched TwinSpires, an ADW business that accepts advance deposit
wagers from customers of certain states who set up and fund an account from
which they may place wagers via telephone, mobile device or through the internet
at www.twinspires.com. The ADW business is heavily regulated, and laws governing
advance deposit wagering vary from state to state. We may accept advance deposit
wagers from residents of states where the law does not expressly address advance
deposit wagering. Some states have expressly authorized advance deposit wagering
by their own residents, some states have expressly prohibited pari-mutuel
wagering and/or advance deposit wagering and other states have expressly
authorized pari-mutuel wagering but have neither expressly authorized nor
expressly prohibited their residents from placing wagers through advance deposit
wagering hubs located in different states. We believe that an ADW business may
open accounts on behalf of and accept wagering instructions from residents of
states where pari-mutuel wagering is legal and where providing wagering
instructions to ADW businesses in other states is not expressly prohibited by
statute, regulations, or other governmental restrictions. However, state
attorneys general, regulators, and other law enforcement officials may interpret
state gaming laws, federal statutes, constitutional principles, and doctrines,
and the related regulations in a different manner than we do. In the past,
certain state attorneys general and other law enforcement officials have
expressed concern over the legality of interstate advance deposit wagering. In
December 2000, legislation was enacted in the United States that amends the IHA.
We believe that this amendment clarifies that inter-track simulcast wagering,
off-track betting and advance deposit wagering, as currently conducted by the
U.S. horse racing industry, are authorized under U.S. federal law. The amendment
may not be interpreted in this manner by all concerned, however, and there may
be challenges to these activities by both state and federal law enforcement
authorities, which could have a material, adverse impact on our business,
financial condition and results of operations, including the licenses we hold to
conduct horse racing and pari-mutuel wagering in the United States.
Our
expansion opportunities with respect to advance deposit wagering may be limited
unless more states amend their laws or regulations to permit advance deposit
wagering. Conversely, if states take affirmative action to make advance deposit
wagering expressly unlawful, this could have a material,
adverse
impact on our business, financial condition and results of operations. In
addition, the regulatory and legislative processes can be lengthy, costly and
uncertain. We may not be successful in lobbying state legislatures or regulatory
bodies to obtain or renew required legislation, licenses, registrations, permits
and approvals necessary to facilitate the operation or expansion of our ADW
business.
From time
to time, the United States Congress has considered legislation that would either
inhibit or restrict Internet gambling in general or inhibit or restrict the use
of certain financial instruments, including credit cards, to provide funds for
advance deposit wagering.
On
October 13, 2006, President Bush signed into law The Unlawful Internet Gambling
Enforcement Act of 2006 (“UIGEA”). This act prohibits those involved in the
business of betting or wagering from accepting any financial instrument,
electronic or otherwise, for deposit that is intended to be utilized for
unlawful Internet gambling. This act declares that nothing in the act may be
construed to prohibit any activity allowed by the IHA. This act also contains a
“Sense of Congress,” which explicitly states that it is not intended to
criminalize any activity currently permitted by federal law. The Secretary of
the Treasury was directed to promulgate regulations to enforce the provisions of
this act within 270 days. The Secretary was further directed to ensure the
regulations do not prohibit any activity which is excluded from the definition
of unlawful Internet gambling, including those activities legal under the IHA.
On October 1, 2007, the Treasury Department published proposed rules and
regulations that require U.S. financial firms participating in designated
payment systems to have policies and procedures reasonably designed to prevent
payments being made to gambling businesses in connection with “unlawful internet
gambling.” Activities permitted under IHA are specifically excluded from the
definition of “unlawful Internet gambling.” Comments on the proposed rules were
filed by numerous parties through December 12, 2007. Representatives of the
horse racing industry encouraged regulations to mirror statutory language
protecting activities under the IHA. Additionally, language was proposed
requiring financial service providers to create a separate merchant code for
activities under the IHA. Some financial service providers may be reluctant to
process transactions related to advance deposit wagering.
Furthermore,
many states have considered and are considering interactive and Internet gaming
legislation and regulations, which may inhibit our ability to do business in
such states, and anti-gaming conclusions and recommendations of other
governmental or quasi-governmental bodies could form the basis for new laws,
regulations, and enforcement policies that could have a material, adverse impact
on our business, financial condition and results of operations. The extensive
regulation by both state and federal authorities of gaming activities also can
be significantly affected by changes in the political climate and changes in
economic and regulatory policies. Such effects could be materially adverse to
the success of our advance deposit wagering operation.
We
believe that the prospect of raising significant additional revenue through
taxes and fees is one of the primary reasons that certain jurisdictions permit
legalized gaming. As a result, gaming companies are typically subject to
significant taxes and fees in addition to the normal federal, state, provincial
and local income taxes, and such taxes and fees may be increased at any time.
From time to time, legislators and officials have proposed changes in tax laws,
or changes to the administration of such laws, that affect the gaming industry.
For instance, U.S. legislators have proposed the imposition of a U.S. federal
tax on gross gaming revenues. In addition, the Kentucky General Assembly is
currently considering several proposed bills that would increase pari-mutuel
taxes. It is not possible to determine with certainty the likelihood of any such
changes in tax laws or their administration; however, if enacted, such changes
could have a material, adverse impact on our business, financial condition and
results of operations.
We
May Experience Resistance to Certain of Our Business Strategies
We have
entered into a reciprocal content swap agreement with MEC to exchange our
respective horseracing signals with each other. MEC and the Company have also
formed a venture, TrackNet, which serves as agent to MEC and the Company to sell
our wagering and video rights to third parties, including racetracks, OTBs,
casinos and other ADW providers. TrackNet also acts as agent to MEC and the
Company to purchase horseracing wagering and video rights from third parties to
make available through our respective outlets including our ADW platform. Other
industry participants may not agree to sell and decline to purchase our wagering
and video rights from the venture and/or to sell their wagering and video rights
to us through the venture. This resistance may reduce the distribution of our
wagering and video rights and/or our ability to purchase wagering and video
rights for our outlets, including our ADW platform, potentially having a
material, adverse impact on our business, financial condition and results of
operations. In addition, in the event that TVG, a major competitor of
TwinSpires.com, is able to sign other horseracing wagering and video rights
owners to exclusive agreements as has been its past business practices, those
wagering and video rights owners will not be able to make available their
wagering and video rights to TwinSpires.com through TrackNet, which could, in
turn, negatively impact our ability to retain and attract customers. TVG was
recently acquired by Betfair Group, Ltd., an e-gaming betting platform based in
Great Britain. The effect of this acquisition on our business is not known at
this time.
We also
own a fifty percent interest in a venture that owns and operates a horseracing
television channel, HRTV. HRTV serves as our primary distribution channel to
homes that rely on certain cable or satellite services for television delivery
of horse races. This investment has historically generated operating losses, and
we expect that to continue. In addition, HRTV may be unable to negotiate new
distribution agreements with cable companies and/or satellite companies,
resulting in a reduction in distribution. In addition, our customers may not
subscribe to the services needed to access our horse races or may be confused
about where to view our horse races. Any of these risks could have a material,
adverse impact on our business, financial condition and results of
operations.
We
May Not be Able to Attract Quality Horses and Trainers
To
provide high quality horse racing, we must attract the country’s top horses and
trainers. Our success in attracting the top horses and trainers largely depends
on the overall horse population available for racing and our ability to offer
and fund competitive purses. Various factors have led to declines in the horse
population in certain areas of the country, including competition from
racetracks in other areas, increased costs and changing economic returns for
owners and breeders, and the spread of various debilitating and contagious
equine diseases such as the neurologic form of Equine Herpes Virus—I and
Strangles, which is caused by the organism streptococcus equine. If any of our
racetracks is faced with a sustained outbreak of a contagious equine disease, or
if we are unable to attract horse owners to stable and race their horses at our
racetracks by offering a competitive environment, including improved facilities,
well-maintained racetracks, better conditions for backstretch personnel involved
in the care and training of horses stabled at our racetracks and a competitive
purse structure, our profitability could decrease. We also face increased
competition for horses and trainers from racetracks that are licensed to operate
slot machines and other electronic gaming machines that provide these racetracks
an advantage in generating new additional revenues for race purses and capital
improvements.
Any
decline in the number of suitable race horses could make it more difficult for
us to attract top horses and trainers. This, in turn, could force us to decrease
the size of our purses or other benefits we offer, to conduct fewer races or to
accept horses of a lower quality.
We
Experience Significant Seasonal Fluctuations in Operating Results
We
experience significant fluctuations in quarterly and annual operating results
due to seasonality and other factors. We have a limited number of live racing
days at our racetracks, and the number of live racing days varies from year to
year. The number of live racing days we can offer directly affects our results
of operations. A significant decrease in the number of live racing days and/or
live races could have a material, adverse impact on our business, financial
condition and results of operations. Our live racing schedule dictates that we
earn a substantial portion of our net earnings in the second quarter of each
year when the Kentucky Derby and the Kentucky Oaks races are run during the
first weekend in May. Business interruption, such as weather conditions, could
affect our ability to conduct our most popular races. Any adverse impact on our
races, including the Kentucky Derby, the Kentucky Oaks and key races at our
other racetracks could have a material, adverse impact on our business,
financial condition and results of operations.
Our
Business Depends on Providers of Totalisator Services
In
purchasing and selling our pari-mutuel wagering products, our customers depend
on information provided by United Tote Company and AmTote International, Inc.
These totalisator companies provide the computer systems that accumulate wagers,
record sales, calculate payoffs and display wagering data in a secure manner.
There are only three major vendors that provide this service in North America.
The loss of any one of these vendors as a provider of this critical service
would decrease competition and could result in an increase in the cost to obtain
these services. Because of the highly specialized nature of these services,
replicating these totalisator services would be expensive and could result in a
disruption of service. One vendor, Amtote, is owned by MEC. Amtote provides
totalisator services to Arlington Park, Calder, Fair Grounds and TwinSpires. MEC
has stated its ability to continue as a going concern is in substantial
doubt.
In
addition, we rely upon the totalisator companies’ computer systems to ensure the
integrity of our wagering process. A perceived lack of integrity in the wagering
systems could result in a decline in bettor confidence and could lead to a
decline in the amount wagered on horse racing. The failure of totalisator
companies to keep their technology current could limit our ability to serve
patrons effectively or develop new forms of wagering and/or affect the security
of the wagering process, thus affecting patron confidence in our
product.
We
May be Held Responsible for Contamination, Even if We Did Not Cause the
Contamination
Our
business is subject to a variety of federal, state and local governmental laws
and regulations relating to the use, storage, discharge, emission and disposal
of hazardous materials. In addition, environmental laws and regulations could
hold us responsible for the cost of cleaning up hazardous materials
contaminating real property that we own or operate (or previously owned or
operated) or properties at which we have disposed of hazardous materials, even
if we did not cause the contamination. If we fail to comply with environmental
laws or if contamination is discovered, a court or government agency could
impose severe penalties or restrictions on our operations or assess us with the
costs of taking remedial actions.
Inclement
Weather and Other Conditions May Affect Our Ability to Conduct Live
Racing
Since
horseracing, festivals and certain other entertainment events are conducted
outdoors, unfavorable weather conditions, including extremely high and low
temperatures, storms, tornadoes and hurricanes, could cause events to be
cancelled and/or wagering to suffer. If a business interruption were to occur
and continue for a significant length of time, at any of our racetracks, it
could materially, and
adversely
affect our business, financial condition and results of operations. Our
operations are subject to reduced patronage, disruptions or complete cessation
of operations due to severe weather conditions, natural disasters and other
casualties. During 2005, we sustained disruption to our operations at Calder in
Florida, Fair Grounds and our OTB locations in Louisiana due to the damage
caused by hurricanes. Any flood or other severe weather condition that could
lead to the loss of use of our other facilities for an extended period could
have a material, adverse impact on our business, financial condition and results
of operations.
We
May Not be Able to Complete Acquisition or Expansion Projects on Time, on Budget
or as Planned
We expect
to pursue expansion and acquisition opportunities, and we regularly evaluate
opportunities for development, including acquisitions or other strategic
corporate transactions which may expand our business operations.
We could
face challenges in identifying development projects that fit our strategic
objectives, identifying potential acquisition candidates and/or development
partners, negotiating projects on acceptable terms, and managing and integrating
the acquisition or development projects. The integration of new operations and
any other properties we may acquire or develop will require the dedication of
management resources that may temporarily divert attention from our day-to-day
business. The process of integrating new projects or acquired businesses may
also interrupt the activities of those businesses or our pre-existing
businesses, which could have a material, adverse impact on our business,
financial condition and results of operations. We cannot assure that any new
projects or acquired businesses will be completed or integrated
successfully.
Management
of new properties or business operations, especially in new geographic areas,
may require that we increase our managerial resources. We cannot assure that we
will be able to manage the combined operations effectively or realize any of the
anticipated benefits of our acquisitions or developments.
We
Depend on Agreements with Our Horsemen
The IHA,
as well as various state racing laws, require that we have written agreements
with the horsemen at our racetracks in order to simulcast races, and, in some
cases, conduct live racing. Certain industry groups negotiate these agreements
on behalf of the horsemen (the “Horsemen’s Groups”). These agreements provide
that we must receive the consent of the Horsemen’s Groups at the racetrack
conducting live races before we may allow third parties to accept wagers on
those races. In addition, the agreements between other racetracks and their
Horsemen’s Groups typically provide that those racetracks must receive consent
from the Horsemen’s Groups before we can accept wagers on their races. For
example, the Thoroughbred Owners of California, the Horsemen’s Group
representing horsemen in California, is currently withholding its consent for
Santa Anita to send its racing signal to Churchill Downs for import wagering.
Further, the IHA and various state laws, require that we have written agreements
with Horsemen’s Groups at our racetracks in order to simulcast races on an
export basis. If we fail to maintain these agreements, then we may not be
permitted to simulcast races on an export basis. In addition, our simulcasting
agreements are generally subject to the consent of these Horsemen’s Groups.
Failure to receive the consent of these Horsemen’s Groups for new and renewing
simulcast agreements could materially and adversely impact our business,
financial condition and results of operations.
We also
have written agreements with the Horsemen’s Groups with regards to the proceeds
of gaming machines in Louisiana and Florida. Florida law requires Calder to have
an agreement with the Florida Horsemen’s Benevolent and Protective Association,
Inc. (the “FHBPA”), governing the contribution of a portion of revenues from
slot machine gaming to purses on live thoroughbred races
conducted
at Calder and an agreement with the Florida Thoroughbred Breeders and Owners
Association (“FTBOA”) governing the contribution of a portion of revenues from
slot machines gaming to breeders’, stallion, and special racing awards on live
thoroughbred races conducted at Calder before Calder can receive a license to
conduct slot machine gaming. We have entered into the Calder Slots Agreement
with the FHBPA and reached an agreement with the FTBOA for the sharing of slot
revenue at Calder.
The
Company’s business was negatively impacted as a result of certain Horsemen’s
Groups refusing to give required consents during 2008. The FHBPA, the Kentucky
Horsemen’s Benevolent and Protective Association, Inc. (the “KHBPA”) and the
Kentucky Thoroughbred Association, Inc. (the “KTA”) withheld their consent under
the IHA for the exporting of racing signals from Churchill Downs and Calder to
national ADW businesses, including TwinSpires, during most of 2008. Kentucky
Horsemen’s Groups did consent to the export of racing signals of the Kentucky
Oaks, Kentucky Derby and Woodford Reserve Classic races on May 2 and May 3, 2008
to ADW businesses. Calder was precluded from exporting racing signals to any ADW
business except for New York Racing Association’s ADW business, which operates
on a limited basis outside the State of New York. In addition, for the spring
meet (April 26, 2008 through July 6, 2008) and the fall meet (October 26 through
November 29, 2008), no export of racing signals was made from Churchill Downs to
any ADW business. On December 22, 2008, the FHBPA granted consent to Calder to
export its racing signal to most ADW businesses through January 2, 2010. On
December 31, 2008, the KHBPA and the KTA gave their consent to the export of
Churchill Downs’ racing signals to ADW businesses, including TwinSpires for its
2009 spring racing meet (April 25 through July 5, 2009). However, we cannot
predict whether the KHBPA and the KTA will provide consent beyond the spring
racing meet of Churchill Downs. During the pendency of the dispute with the
Horsemen’s Groups, the Company experienced generalized decreases in live
attendance at its racetracks and reduced traffic on TwinSpires due to the more
limited racing content and wagering opportunities available to customers. On
November 11, 2008, the Company announced that it was reducing Churchill Downs
fall 2008 racing meet’s overnight schedule by 10% and stakes races by an
additional $150,000. Such reductions negatively impact the Company’s ability to
continue to attract high quality thoroughbreds to its racetracks.
Arlington
Park does not currently have the consent of the Illinois Thoroughbred
Association, its horsemen’s group, to simulcast its races on an export
basis. We cannot predict whether Arlington Park will receive the
consent. Its upcoming meet is from May 1, 2009 through September 27,
2009.
It is not
certain that we will be able to maintain agreements with, or to obtain required
consent from, our Horsemen’s Groups. The failure to maintain agreements with, or
obtain consents from, our horsemen on satisfactory terms or the refusal by a
Horsemen’s Group to consent to third parties accepting wagers on our races or
our accepting wagers on third parties’ races could have a material, adverse
impact on our business, financial condition and results of
operations.
We
Depend on Agreements with Other Constituents in the Industry
Various
state laws require that an ADW business, like TwinSpires, must have an agreement
in place with a racetrack located in a state before it can accept wagers from
residents of that state. For example, California law requires that an ADW
business must have an agreement with a racetrack in California as a condition to
accepting wagers from residents of California. Virginia law requires an ADW
business to have an agreement with the racetrack and horsemen in Virginia as a
condition to accepting wagers from residents of Virginia. There is no assurance
that we will be able to enter into agreements on acceptable terms in those
states where such agreements are required. Failure to enter into such agreements
could preclude TwinSpires from accepting wagers from residents of those states,
and could have a material, adverse impact on our business, financial condition
and results of operations.
We
Depend on Key Personnel
We are
highly dependent on the services of Robert L. Evans, our President and Chief
Executive Officer, and other members of our management team. Our inability to
retain key personnel could have a material, adverse impact on our business,
financial condition and results of operations.
We
May Not be Able to Adequately Insure Our Properties
The
significant damage and resulting insurance claims caused by (i) Hurricane
Katrina to the New Orleans, Louisiana area and our Fair Grounds facility and
OTBs; and (ii) Hurricane Wilma to South Florida and our Calder facility has
increased the costs of obtaining property coverage for our facilities and
significantly impacted our ability to obtain and maintain adequate property
coverage at our facilities. Our inability to obtain and maintain adequate
property coverage at reasonable prices could have a material, adverse impact on
our business, financial condition and results of operations.
We
May Experience Difficulty in Integrating Recent or Future Acquisitions into Our
Operations
On June
11, 2007, we acquired through two separate acquisitions certain of the assets
and businesses of America Tab and BRIS. These transactions resulted in our
acquiring an ADW business and two data services operations which produces
handicapping and pedigree reports sold to participants in the horse racing
industry, including horseplayers and racing-related publications. We may pursue
additional acquisitions in the future.
The
successful integration of newly acquired businesses into our operations will
require the expenditure of substantial managerial, operating, financial and
other resources and may also lead to a diversion of our attention from our
ongoing business concerns. We may not be able to successfully integrate these
businesses or realize projected revenue gains, cost savings and synergies in
connection with those acquisitions on the timetable contemplated, if at all.
Furthermore, the costs of integrating businesses we acquire could significantly
impact our short-term operating results. These costs could include:
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restructuring
charges associated with the
acquisitions;
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non-recurring
acquisition costs, including accounting and legal fees, investment banking
fees and recognition of transaction-related costs or liabilities;
and
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costs
of imposing financial and management controls (such as compliance with
Section 404 of the Sarbanes-Oxley Act of 2002) and operating,
administrative and information
systems.
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Although
we perform financial, operational and legal diligence on the businesses we
purchase, in light of the circumstances of each transaction, an unavoidable
level of risk remains regarding the actual condition of these businesses and our
ability to continue to operate them successfully and integrate them into our
existing operations. In any acquisition we make, we face risks which
include:
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the
risk that the acquired business may not further our business strategy or
that we paid more than the business was
worth;
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the
potential adverse impact on our relationships with partner companies or
third-party providers of technology or
products;
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the
possibility that we have acquired substantial undisclosed
liabilities;
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costs
and complications in maintaining required regulatory approvals or
obtaining further regulatory approvals necessary to implement the
acquisition in accordance with our
strategy;
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the
risks of acquiring businesses and/or entering markets in which we have
limited or no prior experience;
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the
potential loss of key employees or
customers;
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the
possibility that we may be unable to recruit additional managers with the
necessary skills to supplement the management of the acquired businesses;
and
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changes
to legal and regulatory guidelines, which may negatively affect
acquisitions.
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If we are
unsuccessful in overcoming these risks, our business, financial condition or
results of operations could be adversely affected.
Any
Infringement by Us on Intellectual Property Rights of Others Could Adversely
Affect Our Business, Financial Condition and Results of Operations or Result in
Litigation
In the
course of our business, we become aware of potentially relevant patents or other
intellectual property rights held by other parties. Many of our competitors as
well as other companies and individuals have obtained, and may be expected to
obtain in the future, patents or other intellectual property rights that concern
products or services related to the types of products and services we currently
offer or may plan to offer in the future. We evaluate the validity and
applicability of these intellectual property rights and determine in each case
whether we must negotiate licenses to incorporate or use the proprietary
technologies in our products. Claims of intellectual property infringement may
also require us to enter into costly royalty or license agreements. However, we
may not be able to obtain royalty or license agreements on terms acceptable to
us or at all. We also may be subject to significant damages or injunctions
against the development and sale of our products and services.
Our
results may be affected by the outcome of litigation within our industry and the
protection and validity of our intellectual property rights. For example, on May
17, 2007, ODS Technologies, L.P., d/b/a TVG Network filed a patent infringement
lawsuit related to account wagering platforms against MEC and Xpressbet, Inc.
Any litigation regarding patents or other intellectual property could be costly
and time consuming and could divert our management and key personnel from our
business operations. The complexity of the technology involved and the
uncertainty of litigation surrounding it has the effect of increasing the risks
associated with certain of our product offerings, particularly in the area of
advance deposit wagering. There can be no assurance that we would not become a
party to litigation surrounding our ADW business or that such litigation would
not cause us to suffer losses or disruption in our business
strategy.
Other
Risks
Many
other risks beyond our control could seriously disrupt our operations,
including:
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the
effect (including possible increases in the cost of doing business)
resulting from future war and terrorist activities or political
uncertainties;
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the
impact of interest rate fluctuations and systemic risk in the banking and
financial services industries;
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the
financial performance of our racing
operations;
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costs
associated with our efforts in support of gaming initiatives;
and
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costs
associated with Corporate
initiatives.
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Our
stock price is volatile.
The
market price of our stock has been volatile and may continue to be
volatile. Fluctuations in our operating profits, our announcement of
new wagering and gaming opportunities, the passage of legislation affecting
racing or gaming and developments affecting the racing or gaming industries
generally may have significant effects on the market price of our
stock. Moreover, the historical daily volume of shares of our stock
traded has been low, so relatively small changes in daily trading volume may
significantly affect our stock price. In addition, publicly held racing
companies have experienced price and trading volume fluctuations that are often
unrelated to the particular company's financial conditions or operating results.
A shift in market valuations of publicly held racing or gaming companies could
adversely affect the market price of our common stock, regardless of our
financial condition or operating results.
The
substantial number of shares that will be eligible for sale in the future may
adversely affect the market price of our common stock.
Sales of
a substantial number of shares of our common stock in the public market
following this offering could adversely affect the market price of our common
stock.
Certain
provisions of our charter, our bylaws and other factors may inhibit
takeovers.
Several
factors could inhibit an acquisition of Churchill Downs by a third
party. Our amended and restated articles of incorporation provide
that the board of directors is to consist of three approximately equal classes
of directors, of which one class is elected annually. Directors on
our board each serve for a term of three years. This staggered term
structure hinders the ability to acquire control through a proxy contest. Our
bylaws limit a shareholder's right to call special meetings. The
bylaws also require advance notice of shareholder nominations for directors and
shareholder proposals to be considered at our annual meeting. These
provisions in the articles and bylaws limit the ability of shareholders to take
actions that would facilitate an acquisition of Churchill Downs. We
also have a shareholder rights plan. This plan is designed to
discourage third parties from trying to acquire Churchill Downs without the
consent of its board of directors. All of these factors may make it more
difficult for a third person to acquire, or may discourage a third party from
trying to acquire, our stock. This could limit the price that some investors
might be willing to pay for our common stock.
USE
OF PROCEEDS
All net
proceeds from any sale of the common stock will go to the selling
stockholder. Accordingly, we will not receive any proceeds from the
sale of the common stock by the selling stockholder pursuant to this
prospectus.
SELLING
STOCKHOLDER
The
selling stockholder is TVI Corp. The selling stockholder's address is
30195 Chagrin Boulevard, Suite 310N, Pepper Pike, Ohio
44124. Pursuant to a Stock Purchase Agreement dated March 28, 1998,
between us and the selling stockholder, and an Agreement and Plan of Merger
dated April 17, 1998 by and among Churchill Downs, our wholly-owned subsidiary
RCA Acquisition Company, and Racing Corporation of America, we issued 200,000
shares of our common stock to the selling stockholder and paid the selling
stockholder a cash payment of $17,150,000 for the selling stockholder’s
wholly-owned subsidiary Racing Corporation of America. Pursuant to
the Stock Purchase Agreement and the Agreement and Plan of Merger, on June 18,
1998 our Board of Directors appointed the selling stockholder’s President,
Daniel Harrington, to serve as a director of the Company subject to re-election
by our shareholders at the next annual meeting of shareholders. Mr.
Harrington was most recently re-elected at the June 2008 annual meeting of
shareholders for a term expiring in 2011. The selling stockholder
holds no other position or office and has had no other material relationship
with us (or any of our predecessors or affiliates) within the past three years.
The selling stockholder owned 233,300 shares of common stock prior to this
offering, or approximately 1.72% of our common stock as of April 14, 2009, of
which 200,000 shares are being offered by this prospectus. We cannot
estimate the amount of the common stock that will be held by the selling
stockholder upon termination of this offering, because the selling stockholder
may offer all, part or none of the common stock it holds pursuant to the
offering contemplated by this prospectus and because the offering is not being
underwritten on a firm commitment basis.
PLAN
OF DISTRIBUTION
In any
sale of its shares, the selling stockholder may offer or sell any or all of its
shares from time to time (i) to or through underwriters or dealers, (ii)
directly to one or more other purchasers, (iii) through agents on a best-efforts
basis, or (iv) through a combination of these methods of sale. The
selling stockholder may also include donees or pledgees selling shares received
from the selling stockholder after the date of this prospectus.
The
selling stockholder may sell its shares at various times in one or more of the
following transactions:
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a
block trade in which a broker or dealer will attempt to sell the shares as
agent but may position and resell a portion of the block as principal to
facilitate the transaction;
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purchases
by a broker or dealer as principal and resale by such broker or dealer for
its account pursuant to this
prospectus;
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ordinary
brokerage transactions and transactions in which the broker solicits
purchasers;
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privately
negotiated transactions;
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a
combination of such methods of sale;
and
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any
other method permitted pursuant to applicable
law.
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Sales may
be made on the Nasdaq Global Select Market or otherwise at prices and at terms
then prevailing or at prices related to the then current market price, or in
negotiated transactions. In effecting sales, brokers or dealers engaged by the
selling stockholder may arrange for other brokers or dealers to participate.
Brokers or dealers will receive commissions or discounts from the selling
stockholder in
amounts
to be negotiated prior to the sale. In addition, any securities covered by this
prospectus which qualify for sale pursuant to SEC Rule 144 may be sold under
Rule 144 rather than pursuant to this prospectus.
The
selling stockholder and any underwriters, dealers or agents that participate in
the distribution of its shares may be deemed to be underwriters within the
meaning of the Securities Act of 1933, and any profit on the sale of their
shares by them and any discounts, commissions or concessions received by them
may be deemed to be underwriting discounts and commissions under the Securities
Act of 1933. The selling stockholder may sell its shares from time to time in
one or more transactions at a fixed offering price, at varying prices determined
at the time of sale or at negotiated prices. Prices will be determined by the
selling stockholder or by an agreement between the selling stockholder and
underwriters or dealers. Brokers or dealers acting in connection with the sale
of common stock contemplated by this prospectus may receive fees or commissions
in connection with stock sales.
At the
time a particular offer of the shares of common stock is made, to the extent
required under the Securities Act, an amendment to this prospectus or a
supplemental prospectus will be distributed. Such prospectus
supplement or post-effective amendment will be filed with the SEC to reflect the
disclosure of required additional information with respect to the distribution
of the shares of common stock, including without limitation the
following:
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·
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the
aggregate number of shares of common stock being offered and the terms of
the offering;
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·
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the
name or names of any underwriters, dealers or
agents;
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·
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the
purchase price paid by any underwriter for the selling stockholder's
shares;
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·
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any
discounts, commissions and other items constituting compensation from the
selling stockholder;
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·
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any
discounts, commissions or concessions allowed or reallowed or paid to
dealers, including the proposed selling price to the public;
and
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·
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if
the selling stockholder notifies Churchill Downs that a donee, pledgee,
transferee or other successor in interest intends to sell more than 1,000
shares.
|
If
necessary, a supplement to this prospectus and a post-effective amendment to the
registration statement of which this prospectus is a part, will be filed with
the SEC to reflect the disclosure of additional information with respect to the
distribution of the common stock. We may suspend the sale of shares
by the selling stockholder pursuant to this prospectus for certain periods of
time for certain reasons, including if the prospectus is required to be
supplemented or amended to include additional material information.
Underwriters
and purchasers that are deemed underwriters under the Securities Act may engage
in transactions that stabilize, maintain or otherwise affect the price of the
securities, including the entry of stabilizing bids. The selling
stockholder and any other persons participating in the sale or distribution of
the shares will be subject to the applicable provisions of the Exchange Act and
the rules and regulations promulgated thereunder including, without limitation,
Regulation M. These provisions may restrict certain activities of,
and limit the timing of, purchases by the selling stockholder or other persons
or entities. Furthermore, under Regulation M, persons engaged in a
distribution of securities are prohibited from simultaneously engaging in market
making and certain other activities with respect to such securities
for a
specified period of time prior to the commencement of such distribution, subject
to special exceptions or exemptions. In addition, the
anti-manipulation rules under the Exchange Act may apply to sales of the
securities in the market. All of these limitations may affect the
marketability of the shares and the ability of any person to engage in
market-making activities with respect to the securities.
We have
agreed to pay the expenses of registering the shares of common stock under the
Securities Act, including registration and filing fees, printing expenses,
administrative expenses and certain legal and accounting fees. The
selling stockholder will bear all discounts, commissions or other amounts
payable to underwriters, dealers or agents, as well as transfer taxes and
certain other expenses associated with the sale of securities.
In order
to comply with certain states securities laws, if applicable, the selling
stockholder will only sell its shares through registered or licensed brokers or
dealers. In certain states, the selling stockholder may need to register or
qualify for sale its shares in that state, unless an exemption from registration
or qualification is available.
DESCRIPTION
OF CAPITAL STOCK
Our
amended and restated articles of incorporation authorize us to issue up to
50,000,000 shares of common stock, no par value per share, and 250,000 shares of
preferred stock, no par value per share. As of April 14, 2009,
13,580,565 shares of common stock were outstanding. The following
summary of the rights of our common stock and preferred stock is not complete
and is qualified in its entirety by reference to our amended and restated
articles of incorporation and amended and restated bylaws, copies of which are
filed as exhibits to the registration statement of which this prospectus s a
part.
The
holders of our common stock have the right to one vote per share on all matters
which require their vote, except that in the election of directors, each holder
of common stock has as many votes as results from multiplying the number of
shares held by the shareholder by the number of directors to be elected. Each
common shareholder may divide the total number of votes the shareholder is
entitled to cast among the total number of directors to be elected, or
distribute the votes among any lesser number in any proportions the holder
determines. The board of directors is divided into three
approximately equal classes. Each class serves for a term of three
years, with one class up for election each year. Subject to rights of
any preferred shareholders, common shareholders have the right to receive any
dividends that the board of directors declares. If we liquidate,
dissolve or wind up our business, we will pay our preferred shareholders, if
any, before we pay our common shareholders, subject to the rights of creditors.
We will distribute the remaining available assets to our common shareholders, in
proportion to the number of shares that each common shareholder
holds. Shares of common stock are not redeemable and do not have
subscription, conversion or preemptive rights. There are no
redemption or sinking fund provisions available to the common
stock. All outstanding shares of common stock are fully paid and
non-assessable.
The board
of directors may issue shares of the preferred stock from time to time, in one
or more series, without shareholder approval. The board of directors
determines the designation, relative rights, preferences and limitations of each
series of preferred stock. The issuance of preferred stock may delay,
defer or prevent a change in control of Churchill Downs without further action
by the shareholders. It may also decrease the voting power and other
rights of the holders of common stock and may have the effect of decreasing the
market price of the common stock. At present, there are no shares of
preferred stock outstanding.
Under our
shareholder rights plan, which we adopted on March 13, 2008, we declared a
dividend of one preferred stock purchase right for each outstanding share of
common stock and each share of
common
stock issued after that date. The rights are transferable with the
common stock until they become exercisable. The rights will not be
exercisable until the distribution date described in the plan. The
rights expire on March 19, 2018 unless we redeem them earlier. When a
right becomes exercisable, it entitles the holder to purchase from us 1/1000th
of a share of preferred stock at a purchase price of $180, subject to adjustment
in certain circumstances. Under the rights plan, the plan distribution date will
not occur until any person or group acquires or makes a tender offer for 15% or
more of our outstanding common stock.
Until the
plan distribution date, the rights will be evidenced by the certificates for
common stock registered in the names of holders. As soon as practical
following the plan distribution date, we will mail separate certificates
evidencing the rights to common shareholders of record. Until a right
is exercised, the holder has no rights as a shareholder of Churchill
Downs.
If any
person or group acquires 15% or more of our common stock, rights holders will be
entitled to buy, for the purchase price, that number of 1/1000ths of a preferred
share equivalent to the number of shares of common stock that at the time have a
market value of twice the purchase price. If we are acquired in a
business combination, rights holders will be entitled to buy, for the purchase
price, that number of shares of the acquiring corporation that, at the time,
have a market value of twice the purchase price. The board has the
right to redeem the rights in certain circumstances for $0.01 per right, subject
to adjustment.
Duchossois
Industries and its shareholders will not be considered an
"Acquiring Person" (as defined in our rights plan) when their
beneficial ownership of our common stock is subject to, does not violate, and is
in compliance with, the Stockholders’ Agreement dated as of September 8, 2000
among Churchill Downs, Duchossois Industries and subsequent signatories
thereto.
The
rights plan is designed to protect our shareholders in the event of unsolicited
offers to acquire Churchill Downs and other coercive takeover tactics, which, in
the board's opinion, would impair its ability to represent shareholder
interests. The rights plan may make an unsolicited takeover more
difficult or less likely to occur or may prevent a takeover, even though it may
offer our shareholders the opportunity to sell their stock at a price above the
prevailing market rate and may be favored by a majority of our
shareholders.
The
Kentucky Business Corporation Act contains a business combination statute which
prohibits Kentucky corporations from engaging in a business combination with a
10% or greater shareholder or its affiliate or associate for five years
following the acquisition of such 10% or greater stake, unless the board, by a
majority vote of the continuing directors, approved the combination prior to the
10% or greater acquisition. If not previously approved by the board,
the 10% or greater shareholder or its affiliate or associate may effect a
business combination only after the expiration of a five year period and then
only with the approval of 80% of the outstanding shares and 66 2/3% of the
outstanding shares not owned by the 10% or greater shareholder, or if the
aggregate amount of the offer meets certain fair price
requirements.
LEGAL
MATTERS
Wyatt,
Tarrant & Combs, LLP, Louisville, Kentucky, will issue an opinion about the
legality of the shares of common stock offered by this prospectus for the
selling stockholder.
EXPERTS
The
financial statements and management’s assessment of the effectiveness of
internal control over financial reporting (which is included in Management’s
Report on Internal Control Over Financial Reporting) incorporated in this
prospectus by reference to the Annual Report on Form 10-K for the year ended
December 31, 2008 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, an independent registered public accounting firm,
given on the authority of said firm as experts in auditing and
accounting.
WHERE
YOU CAN FIND MORE INFORMATION
We have
filed with the SEC a registration statement on Form S-3 under the Securities
Act, of which this prospectus forms a part. The rules and regulations
of the SEC allow us to omit from this prospectus certain information included in
the registration statement. For further information about us and our
securities, you should refer to the registration statement and the exhibits
filed with the registration statement. With respect to the statements
contained in this prospectus regarding the contents of any agreement or any
other document, in each instance, the statement is qualified in all respects by
the complete text of the agreement or document, a coy of which has been filed as
an exhibit to the registration statement.
We file
annual, quarterly and special reports, proxy statements and other information
with the SEC under the Securities Exchange Act of 1934. You may read
and copy this information at the SEC’s Public Reference Room at 100 F Street,
N.E., Room 1580, Washington, D.C. 20549 at prescribed rates. You may obtain
information on the operating of the Public Reference Room by calling the SEC at
1-800-SEC-0330. The SEC also maintains an Internet website that
contains reports, proxy and information statements, and other information
regarding registrants, like us, that file electronically with the
SEC. The address of that website is www.sec.gov.
The SEC
allows us to "incorporate by reference" the information we file with them, which
means that we can disclose important information to you by referring you to
those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this
information. Any information so updated or superseded shall not be
deemed, except as so updated or superseded, to constitute a part of this
prospectus. We incorporate by reference the documents listed below
and any future information filed (rather than furnished) with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
between the date of this prospectus and the termination of the offering and also
between the date of the initial registration statement and prior to
effectiveness of the registration statement, provided, however, that we are not
incorporating any information furnished under any of Item 2.02 or Item 7.01 (or
corresponding information furnished under Item 9.01 or included as an exhibit)
of any past or present current report on Form 8-K that we file with the SEC,
unless otherwise specified in such report:
1. Annual
Report on Form 10-K for the fiscal year ended December 31, 2008 and the portions
of the Company’s Proxy Statement for the 2009 Annual Shareholders’ Meeting that
we incorporated by reference into the Form 10-K;
2.
Quarterly Report on Form 10-Q for the quarter ended March 31, 2009;
3. Current
Reports on Form 8-K filed January 20, 2009, February 12, 2009, March 4, 2009,
March 13, 2009 and April 27, 2009;
4. The
description of the Company’s Common Stock, no par value, contained in the
Current Report on Form 8-K dated December 14, 1998, and any amendment or report
filed for the purpose of updating such description; and
5. The
description of the Company’s Preferred Share Purchase Rights contained in the
Company’s Registration Statement on Form 8-A filed March 17, 2008.
These
documents may also be accessed on our website at www.churchilldowns.com. Except
as otherwise specifically incorporated by reference in this prospectus,
information contained in, or accessible through, our website is not a part of
this prospectus.
We will
furnish without charge to you, upon written or oral request, a copy of any or
all of the documents incorporated by reference, including exhibits to these
documents by writing or telephoning us at the following address:
Director
of Investor Relations
Churchill Downs
Incorporated
700
Central Avenue
Louisville,
Kentucky 40208
(502)
638-3896
PART II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
Item
14. Other Expenses of Issuance And Distribution.
The following table sets forth an
itemized statement of all expenses to be borne by the Company in its
registration of the shares registered hereunder. The selling stockholder will be
responsible for any and all selling commissions and similar brokerage charges in
connection with the sale of the shares registered hereunder. All amounts are
estimated, except for the SEC registration fee.
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SEC
registration fee
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$
385
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Legal
fees and expenses
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$
4,500*
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Accounting
fees and expenses
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$
8,000*
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Miscellaneous
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$
1,500 *
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Total
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$14,385
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* Estimated
Item
15. Indemnification of Directors and Officers.
Article XI of the Registrant's Amended
and 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
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, or while a
director, officer, employee or agent of the registrant, is or was serving the
registrant or any other legal entity in any capacity (including, without
limitation, as a director, officer, partner, manager, trustee, employee or agent
of another foreign or domestic corporation, partnership, joint venture, trust,
limited liability company, employee benefit plan or other enterprise) at the
request 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] 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 our directors and officers in connection with the performance
of their duties.
Item
16. Exhibits.
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Exhibit
Description of
Document
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4.1
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Articles
of Incorporation of the Company as amended through March 19, 2008 are
incorporated by reference to Exhibit 3.1 to the Company’s Report on Form
8-K dated March 20, 2008.
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4.2
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Amended
and Restated Bylaws of the Company are incorporated by reference to
Exhibit 3.1 of the Company’s Report on Form 8-K dated November 14,
2008.
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4.3
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Specimen
Stock Certificate is incorporated by reference to Exhibit 4(d) to the
Company’s Registration Statement on Form S-8, Registration No.
33-85012.
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4.4
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Rights
Agreement dated as of March 19, 2008, between Churchill Downs Incorporated
and National City Bank is incorporated by reference to Exhibit 4.1 to the
Company's Report on Form 8-K dated March 17,
2008.
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5
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Opinion
of Wyatt, Tarrant & Combs, LLP as to the legality of the
shares being registered.
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23.1
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Consent
of PricewaterhouseCoopers LLP.
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23.2
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Consent
of Wyatt, Tarrant & Combs, LLP (included in Exhibit
5).
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24
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Power
of Attorney (included on signature page of this Registration
Statement).
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Item
17. Undertakings.
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii) 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. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the effective registration
statement; and
(iii) 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)(i), (1)(ii) and (1)(iii) above do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Securities and Exchange Commission 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 or
is contained in a form of prospectus filed pursuant to Rule 424(b) that is a
part of the registration statement.
(2) 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.
(3) 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.
(4) That,
for purposes of determining any liability under the Securities Act of
1933,
(i) If
the registrant is relying on Rule 430B:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the
purpose of providing the information required by section 10(a) of the Securities
Act of 1933 shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of securities in
the offering described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such effective date.
(ii) If
the registrant is subject to Rule 430C, each prospectus filed pursuant to
Rule 424(b) as part of a registration statement relating to an offering, other
than registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be deemed to be part of
and included in the registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such first use, supersede or
modify any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document
immediately prior to such date of first use.
(5) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities: The
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424 of the Securities
Act;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b) The
undersigned registrant further 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 the registration
statement 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) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, 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 Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
(d) The
undersigned registrant hereby undertakes that:
(1) For
purposes of determining any liability under the Securities Act of 1933, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For
the purpose of determining any liability under the Securities Act of 1933, each
post-effective amendment that contains a form of prospectus 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.
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-3 and has duly caused this Registration Statement on Form S-3
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Louisville, Commonwealth of Kentucky, on May 6, 2009.
CHURCHILL
DOWNS INCORPORATED
By/s/ Robert L.
Evans
Robert
L. Evans, President and
Chief
Executive Officer
POWER
OF ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below does
hereby constitute and appoint Mr. Robert L. Evans and Mr. William E. Mudd and
each of them acting individually, as his true and lawful attorney-in-fact and
agent, with full power of each to act alone, with full powers of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign this Registration Statement (including all pre-effective and
post-effective amendments thereto and all registration statements filed pursuant
to Rule 462(b) which incorporate this registration statement by reference), 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 full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or his or
their 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-3 has been signed below by the following persons on the 6th day of
May, 2009 in the capacities indicated:
| /s/ Robert L.
Evans |
|
|
|
Robert L.
Evans
|
|
President,
Chief Executive |
| |
|
Officer
(Principal Executive |
| |
|
Officer) and
Director |
| /s/ William E.
Mudd |
|
|
| William E. Mudd |
|
Executive Vice
President and |
| |
|
Chief
Financial Officer |
| |
|
(Principal Financial
and |
| |
|
Accounting
Officer) |
|
/s/ Carl
F. Pollard
|
|
|
| Carl F.
Pollard |
|
Chairman of
the Board |
|
/s/ Leonard S.
Coleman, Jr.
|
|
|
| Leonard S. Coleman,
Jr. |
|
Director |
|
/s/ Craig J.
Duchossois
|
|
|
| Craig J. Duchossois |
|
Director |
|
/s/ Robert L.
Duchossois
|
|
|
| Richard L.
Duchossois |
|
Director |
|
/s/ Robert L.
Fealy
|
|
|
| Robert L. Fealy |
|
Director |
|
/s/ J. David
Grissom
|
|
|
| J. David Grissom |
|
Director |
|
/s/ Daniel P.
Harrington
|
|
|
| Daniel P. Harrington |
|
Director |
|
/s/ G. Watts
Humphrey, Jr.
|
|
|
| G. Watts Humphrey,
Jr. |
|
Director |
|
/s/ James F.
McDonald
|
|
|
| James F. McDonald |
|
Director |
|
/s/ Susan E.
Packard
|
|
|
| Susan E. Packard |
|
Director |
|
/s/ R. Alex
Rankin
|
|
|
| R. Alex Rankin |
|
Director |
|
/s/ Darrell R.
Wells
|
|
|
| Darrell R. Wells |
|
Director |
INDEX TO
EXHIBITS
|
EXHIBITS
|
DESCRIPTION
|
|
|
4.1
|
Articles
of Incorporation of the Company as amended through March 19, 2008 are
incorporated by reference to Exhibit 3.1 to the Company’s Report on Form
8-K dated March 20, 2008.
|
|
|
4.2
|
Amended
and Restated Bylaws of the Company are incorporated by reference to
Exhibit 3.1 of the Company’s Report on Form 8-K dated November 14,
2008.
|
|
|
4.3
|
Specimen
Stock Certificate is incorporated by reference to Exhibit 4(d) to the
Company’s Registration Statement on Form S-8, Registration No.
33-85012.
|
|
|
4.4
|
Rights
Agreement dated as of March 19, 2008, between the Company and Bank of
Louisville is incorporated by reference to Exhibit 4.1 to the Company's
Report on Form 8-K filed on March 17, 2008.
|
|
|
5
|
Opinion
and Consent of Wyatt, Tarrant & Combs, LLP as to the legality of the
shares being registered.
|
|
|
23.1
|
Consent
of PricewaterhouseCoopers LLP.
|
|
|
23.2
|
Consent
of Wyatt, Tarrant & Combs, LLP (included in Exhibit
5).
|
|
|
24
|
Power
of Attorney (included on the signature page of the Registration
Statement).
|
|
II-8