-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WKJdQc5I/QIAhwm94JAn292H0bj7T4klLRR8IABQ+nkxm9TyStIP9S3c2yncZyst F3XDPE4zZI0MvMngLFGypw== 0000940944-05-000039.txt : 20050204 0000940944-05-000039.hdr.sgml : 20050204 20050204151941 ACCESSION NUMBER: 0000940944-05-000039 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20050204 DATE AS OF CHANGE: 20050204 EFFECTIVENESS DATE: 20050204 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DARDEN RESTAURANTS INC CENTRAL INDEX KEY: 0000940944 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 593305930 STATE OF INCORPORATION: FL FISCAL YEAR END: 0526 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-122560 FILM NUMBER: 05576919 BUSINESS ADDRESS: STREET 1: 5900 LAKE ELLENOR DR CITY: ORLANDO STATE: FL ZIP: 32809 BUSINESS PHONE: 4072454000 MAIL ADDRESS: STREET 1: 5900 LAKE ELLENOR DRIVE CITY: ORLANDO STATE: FL ZIP: 32809 FORMER COMPANY: FORMER CONFORMED NAME: GENERAL MILLS RESTAURANTS INC DATE OF NAME CHANGE: 19950313 S-8 1 s-8espp_020405.txt FORM S-8 EMPLOYEE STOCK PURCHASE PLAN 2/4/05 As filed with the Securities and Exchange Commission on February 4, 2005 Registration No. 333- ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 DARDEN RESTAURANTS, INC. (Exact name of registrant as specified in its charter) Florida 59-3305930 (State or other jurisdiction (I.R.S. employer of incorporation or organization) identification no.) 5900 Lake Ellenor Drive Orlando, Florida 32809 (Address of principal executive offices) (Zip code) Darden Restaurants, Inc. Employee Stock Purchase Plan (Full title of the plan) Paula J. Shives, Esq. Senior Vice President, General Counsel and Secretary Darden Restaurants, Inc. 5900 Lake Ellenor Drive Orlando, Florida 32809 (407) 245-4000 (Name, address and telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE
- ------------------------- -------------------- -------------------- ------------------- ------------------- Proposed Proposed maximum Title of securities to Amount to be maximum offering aggregate Amount of be registered registered (1) price per share offering price registration fee - ------------------------- -------------------- -------------------- ------------------- ------------------- Common Stock, without par value(2) 1,500,000 shares $29.19(3) $43,785,000(3) $5,153.50 - ------------------------- -------------------- -------------------- ------------------- -------------------
(1) The number of shares of common stock being registered is subject to adjustment to prevent dilution resulting from stock splits, stock dividends or similar transactions. (2) Includes rights to purchase shares of Series A Participating Cumulative Preferred Stock, which rights are attached to and trade with the common stock. (3) Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(c) and (h)(1) under the Securities Act of 1933, as amended, based on the average of the high and low sales prices of the common stock traded on the New York Stock Exchange as reported in the consolidated reporting system on February 2, 2005. PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents, which have been filed with the Securities and Exchange Commission (the "SEC") by Darden Restaurants, Inc. ("we," "us" or "Darden"), are incorporated by reference in this registration statement: (a) our annual report on Form 10-K, as amended by Amendment No. 1 on Form 10-K/A for the fiscal year ended May 30, 2004; (b) our quarterly report on Form 10-Q, as amended by Amendment No. 1 on Form 10-Q/A for the fiscal quarter ended August 29, 2004 and our quarterly report on Form 10-Q for the fiscal quarter ended November 28, 2004; (c) our current reports on Form 8-K dated September 28, 2004 and December 15, 2004 (except as to Item 2.02 thereof); and (d) the description of our common stock and preferred stock purchase rights contained in any registration statement or report filed by us under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), including any amendment or report filed for the purpose of updating such description. In addition, all documents filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold, or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the respective dates of filing of such documents. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Douglas E. Wentz, who has given an opinion of counsel with respect to the securities to which the registration statement relates, is an employee and officer (Senior Associate General Counsel and Assistant Secretary) of Darden. Mr. Wentz is a participant in the Darden Restaurants, Inc. Employee Stock Purchase Plan. 2 Item 6. Indemnification of Directors and Officers. Florida law contains provisions permitting and, in some situations, requiring Florida corporations to provide indemnification to their officers and directors for losses and litigation expense incurred in connection with their service to the corporation in those capacities. Our articles of incorporation and bylaws contain provisions requiring us to indemnify our directors and officers to the fullest extent permitted by law. Among other things, these provisions provide indemnification for officers and directors against liabilities for judgments in and settlements of lawsuits and other proceedings and for the advancement and payment of fees and expenses reasonably incurred by the director or officer in defense of any such lawsuit or proceeding. Our articles of incorporation also provide that if Florida law is amended to further eliminate or limit the liability of directors, then the liability of our directors shall be eliminated or limited, without further shareholder action, to the fullest extent permissible under Florida law as so amended. In addition, our articles of incorporation and bylaws authorize us to purchase insurance for our directors and officers insuring them against certain risks as to which we may be unable lawfully to indemnify them. We maintain such insurance coverage for our officers and directors as well as insurance coverage to reimburse Darden for potential costs of our corporate indemnification of officers and directors. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. 4.1 Articles of Incorporation (incorporated herein by reference to Exhibit 3(a) to our registration statement on Form 10 effective May 5, 1995). 4.2 Bylaws (incorporated by reference to Exhibit 3(b) to our Annual Report on Form 10-K for the fiscal year ended May 25, 2003). 4.3 Rights Agreement dated as of May 28, 1995, as amended May 23, 1996, between Darden and Wells Fargo Bank Minnesota, National Association (formerly Norwest Bank Minnesota, N.A.) as amended May 23, 1996, assigned to Wachovia Bank, National Association (formerly known as First Union National Bank) as Rights Agent, as of September 29, 1997 (incorporated by reference to Exhibit 4(a) to our annual report on Form 10-K for the fiscal year ended May 31, 1998). 4.4 Indenture dated as of January 1, 1996, between Darden and Wells Fargo Bank Minnesota, National Association (formerly Norwest Bank Minnesota, N.A.), as trustee (incorporated by reference to our current report on Form 8-K filed on February 9, 1996). 5.1 Opinion of Counsel. 23.1 Consent of Counsel (included in Exhibit 5.1). 23.2 Consent of KPMG LLP. 24.1 Power of Attorney. 3 Item 9. 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, as amended (the "Securities Act"); (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 SEC pursuant to Rule 424(b) under the Securities Act if, in the aggregate, the changes in volume and price represent no more than a 20% 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 (a)(1)(i) and (a)(1)(ii) above will not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act, 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. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act 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 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 SEC 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. 4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Orlando, State of Florida, on the 4th day of February, 2005. DARDEN RESTAURANTS, INC. By: /s/ Clarence Otis, Jr. ------------------------------------- Clarence Otis, Jr. Chief Executive Officer and Director Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated on the 4th day of February, 2005. Signature Title - ------------------------------------- --------------------------------------- /s/ Clarence Otis, Jr. Chief Executive Officer and Director - ------------------------------------- (principal executive officer) Clarence Otis, Jr. /s/ Linda J. Dimopoulos Senior Vice President and Chief - ------------------------------------- Financial Officer (principal financial Linda J. Dimopoulos and accounting officer) /s/Andrew H. Madsen Director - ------------------------------------- Andrew H. Madsen /s/Paula J. Shives Senior Vice President, General Counsel - ------------------------------------- and Secretary Paula J. Shives Attorney-in-fact for: Leonard L. Berry Director Odie C. Donald Director David H. Hughes Director Joe R. Lee Chairman of the Board Cornelius McGillicuddy, III Director Michael D. Rose Director Maria A. Sastre Director Jack A. Smith Director Blaine Sweatt, III Director Rita P. Wilson Director 5 EXHIBIT INDEX 4.1 Articles of Incorporation (incorporated herein by reference to Exhibit 3(a) to our registration statement on Form 10 effective May 5, 1995). 4.2 Bylaws (incorporated by reference to Exhibit 3(b) to our Annual Report on Form 10-K for the fiscal year ended May 25, 2003). 4.3 Rights Agreement dated as of May 28, 1995, as amended May 23, 1996, between Darden and Wells Fargo Bank Minnesota, National Association (formerly Norwest Bank Minnesota, N.A.) as amended May 23, 1996, assigned to Wachovia Bank, National Association (formerly known as First Union National Bank) as Rights Agent, as of September 29, 1997 (incorporated by reference to Exhibit 4(a) to our annual report on Form 10-K for the fiscal year ended May 31, 1998). 4.4 Indenture dated as of January 1, 1996, between Darden and Wells Fargo Bank Minnesota, National Association (formerly Norwest Bank Minnesota, N.A.), as trustee (incorporated by reference to our current report on Form 8-K filed on February 9, 1996). 5.1 Opinion of Counsel. 23.1 Consent of Counsel (included in Exhibit 5.1). 23.2 Consent of KPMG LLP. 24.1 Power of Attorney. EX-5 2 ex5point1_020405.txt S-8 EXHIBIT 5.1 OPINION OF COUNSEL 2/4/05 Exhibit 5.1 DARDEN RESTAURANTS ----------------------------------------------------------------------- Red Lobster(R) The Olive Garden(R) Bahama Breeze(R) Smokey Bones(R) Douglas E. Wentz Senior Associate General Counsel February 4, 2005 Board of Directors Darden Restaurants, Inc. 5900 Lake Ellenor Drive Orlando, Florida 32809 Ladies and Gentlemen: I am Senior Associate General Counsel and Assistant Secretary of Darden Restaurants, Inc., a Florida corporation (the "Company"), and I have acted as counsel to the Company in connection with the Company's registration statement on Form S-8 (the "Registration Statement") relating to the registration by the Company of 1,500,000 shares of Common Stock, without par value (the "Common Stock") of Darden Restaurants, Inc. ("Darden") and associated rights to purchase shares of Series A Participating Cumulative Preferred Stock ("Rights"), to be issued from time to time under the Darden Restaurants, Inc. Employee Stock Purchase Plan (the "Plan"). In rendering my opinions set forth below, I have examined such documents and reviewed such questions of law as I have deemed relevant or necessary as the basis for my opinions as set forth below. Based on the foregoing, I am of the opinion that the shares of Common Stock and related Rights, when issued, delivered and paid for in accordance with the terms of the Plan, will be validly issued, fully paid and non-assessable. My opinion expressed above is limited to the laws of the State of Florida. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement, and to the use of my name under the caption "Interests of Named Experts and Counsel". Very truly yours, /s/ Douglas E. Wentz Douglas E. Wentz 5900 Lake Ellenor Drive - P.O. Box 593330 - Orlando, Florida 32859-3330 (407) 245-5811 Fax: (407) 245-4844 E-mail: dwentz@darden.com EX-23 3 ex23point2_020405.txt S-8 EXHIBIT 23.2 CONSENT OF KPMG 2/4/05 Exhibit 23.2 Consent of Independent Registered Public Accounting Firm The Board of Directors Darden Restaurants, Inc.: We consent to the incorporation by reference in the registration statement on Form S-8 of Darden Restaurants, Inc. of our report dated June 18, 2004, except as to Note 2, which is as of December 30, 2004, relating to the consolidated balance sheets of Darden Restaurants, Inc. and subsidiaries as of May 30, 2004 and May 25, 2003, and the related consolidated statements of earnings, changes in stockholders' equity and accumulated other comprehensive income, and cash flows for each of the fiscal years in the three-year period ended May 30, 2004, which report is included in the Registrant's Form 10-K/A Amendment No. 1 to the Annual Report on Form 10-K of Darden Restaurants, Inc. for the year ended May 30, 2004. /s/ KPMG LLP Orlando, FL February 3, 2005 EX-24 4 ex24point1_020405.txt S-8 EXHIBIT 24.1 POWER OF ATTORNEY 2/4/05 Exhibit 24.1 POWER OF ATTORNEY KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Joe R. Lee, Linda J. Dimopoulos and Paula J. Shives, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for and in his or her name, place and stead, in any and all capacities, to sign a Registration Statement on Form S-8 of Darden Restaurants, Inc. and any or all amendments (including post-effective amendments) thereto, relating to the Darden Restaurants, Inc. Employee Stock Purchase Plan, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as might or could be done in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitute of substitutes, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, this Power of Attorney has been signed on this 15th day of June, 2004, by the following persons. /s/ Leonard L. Berry /s/ Michael D. Rose --------------------------------- --------------------------------- Leonard L. Berry Michael D. Rose /s/ Odie C. Donald /s/ Maria A. Sastre --------------------------------- --------------------------------- Odie C. Donald Maria A. Sastre /s/David H. Hughes /s/ Jack A. Smith --------------------------------- --------------------------------- David H. Hughes Jack A. Smith /s/ Joe R. Lee /s/ Blaine Sweatt, III --------------------------------- --------------------------------- Joe R. Lee Blaine Sweatt, III /s/ Cornelius McGillicuddy, III /s/ Rita P. Wilson --------------------------------- --------------------------------- Cornelius McGillicuddy, III Rita P. Wilson -----END PRIVACY-ENHANCED MESSAGE-----