-----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, Kl0zXRgbnzO6qoZifEPWjJKKu22OZE3O9t+sceZyPrM0UY60YLtFkFtm3QYxP1pn JCvMolLsa8dzthsrSwE5Cg== 0000940944-05-000067.txt : 20050427 0000940944-05-000067.hdr.sgml : 20050427 20050427163438 ACCESSION NUMBER: 0000940944-05-000067 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20050427 DATE AS OF CHANGE: 20050427 EFFECTIVENESS DATE: 20050427 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: 333-124363 FILM NUMBER: 05776813 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-8dsp042705.txt FORM S-8 DSP 4-27-05 As filed with the Securities and Exchange Commission on April 27, 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 Savings 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 maximum Proposed maximum aggregate offering Title of securities to Amount to be offering price per price Amount of be registered registered (1) share registration fee ------------------------- -------------------- ---------------------- -------------------- ------------------- ------------------------- -------------------- ---------------------- -------------------- ------------------- Common Stock, without par value(2) 100,000 shares $30.24(3) $3,024,000(3) $356 ------------------------- -------------------- ---------------------- -------------------- -------------------
(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. In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the "Securities Act"), this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein. (3) Estimated solely for purposes of calculating the registration fee in accordance with Rules 457(c) and (h)(1) under the Securities Act, 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 April 25, 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"), or the Darden Savings Plan, 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) the report on Form 11-K for the Darden Savings Plan for the year ended April 30, 2004; (c) 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 reports on Form 10-Q for the fiscal quarters ended November 28, 2004 and February 27, 2005; (d) our current reports on Form 8-K dated September 28, 2004, December 15, 2004 (except as to Item 2.02 thereof) and March 22, 2005 (except as to Item 2.02 thereof); and (e) 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. Not applicable. 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). 5 Determination Letter from the Internal Revenue Service with respect to qualification of the Darden Savings Plan under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), and its status as an Employee Stock Ownership Plan under Code Section 4975(e)(7). 23 Consent of KPMG LLP. 24 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 (and, where applicable, each filing of the Darden Savings Plan's annual report pursuant to 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 27th day of April, 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 27th day of April, 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 and accounting officer) Linda J. Dimopoulos /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 Pursuant to the requirements of the Securities Act of 1933, the trustees (or other persons who administer the employee benefit plan) have 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 April 27, 2005. DARDEN SAVINGS PLAN By: Darden Restaurants, Inc., Named Administrative Fiduciary By: /s/ Daniel M. Lyons ------------------------------------------------ Daniel M. Lyons Senior Vice President, Human Resources 6 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). 5 Determination Letter from the Internal Revenue Service with respect to qualification of the Darden Savings Plan under Section 401 of the Internal Revenue Code of 1986, as amended ("Code"), and its status as an Employee Stock Ownership Plan under Code Section 4975(e)(7). 23 Consent of KPMG LLP. 24 Power of Attorney. EX-5 2 ex5irsletter_042705.txt EXHIBIT 5 IRS LETTER 042705 Exhibit 5 INTERNAL REVENUE SERVICE DEPARTMENT OF TREASURY P.O.BOX 2508 CINCINNATI, OH 45201 Employer Identification Number: Date: July 15, 2002 59-3305930 DLN: DARDEN RESTAURANTS INC 17007327007041 C/O PAUL H HAMBURGER Person to Contact: MCDERMOTT WILL EMERY GAIL HINKLEY ID# 52016 600 13TH ST. NEW Contact Telephone Number: WASHINGTON, DC 20005 - 0000 (877) 829-5500 Plan Name: DARDEN SAVINGS PLAN Plan Number: 044 Dear Applicant: We have made a favorable determination on the plan identified above based on the information you have supplied. Please keep this letter, the application forms submitted to request this letter and all correspondence with the Internal Revenue Service regarding your application for a determination letter in your permanent records. You must retain this information to preserve your reliance on this letter. Continued qualification of the plan under its present form will depend on its effect in operation. See section 1.401-1 (b) (3) of the Income Tax Regulations. We will review the status of the plan in operation periodically. The enclosed Publication 794 explains the significance and the scope of this favorable determination letter based on the determination requests selected on your application forms. Publication 794 describes the information that must be retained to have reliance on this favorable determination letter. The publication also provides examples of the effect of a plan's operation on its qualified status and discusses the reporting requirements for qualified plans. Please read Publication 794. This letter relates only to the status of you plan under the Internal Revenue Code. It is not a determination regarding the effect of other federal or local statutes. This determination is subject to your adoption of the proposed amendments submitted in your letter dated June 21, 2002. The proposed amendments should be adopted on or before the date prescribed by the regulations under Code section 401 (b). This determination letter is applicable for the amendment (s) executed on November 13, 2001. This plan satisfies the requirements of Code section 4975 (e) (7). This letter may not be relied on with respect whether the plan satisfies the requirements of section 401 (a) of the Code, as amended by the Economic Growth and Tax Relief Reconciliation Act of 2001, Pub L. 107-16. The requirement for employee benefits plans to file summary plan descriptions (SPD) with the U.S. Department of Labor was eliminated effective August 5, 1997. For more details, call 1-800-998-7542 for a free copy of the SPD card. We have sent a copy of this letter to your representative as indicated in the power of attorney. If you have questions concerning this matter, please contact the person whose name and telephone number are shown above. Sincerely yours, /s/Paul T. Shultz ----------------------------------- Paul T. Shultz Director, Employee Plans Rulings & Agreements Enclosures: Publication 794 EX-23 3 ex23kpmgconsent_42705.txt EXHIBIT 23 KPMG CONSENT 4-27-05 Exhibit 23 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. Our report refers to the restatement of the consolidated financial statements for all periods presented. /s/ KPMG LLP Orlando, FL April 26, 2005 EX-24 4 ex24poa_042705.txt EXHIBIT 24 POA 4-27-05 Exhibit 24 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 one or more Registration Statement(s) on Form S-8 of Darden Restaurants, Inc. and any or all amendments (including post-effective amendments), relating to the Darden Savings 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 or substitutes, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, this Power of Attorney has been signed on this 24th day of March, 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-----