Florida | 59-3305930 | |
(State or other jurisdiction of incorporation) | (IRS Employer Identification No.) |
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Exhibit Number | Description | |
10.1 | Master Confirmation, by Goldman Sachs & Co. to Darden Restaurants, Inc., dated July 31, 2014 | |
10.2 | Master Confirmation, by Wells Fargo Bank, National Association to Darden Restaurants, Inc., dated July 31, 2014 | |
10.3 | Supplemental Confirmation, by Goldman Sachs & Co. to Darden Restaurants, Inc., dated July 31, 2014 | |
10.4 | Supplemental Confirmation, by Wells Fargo Bank, National Association to Darden Restaurants, Inc., dated July 31, 2014 |
DARDEN RESTAURANTS, INC. | ||
By: | /s/ C. Bradford Richmond | |
C. Bradford Richmond | ||
Date: August 5, 2014 | Senior Vice President and Chief Financial Officer |
Exhibit Number | Description of Exhibit | |
10.1 | Master Confirmation, by Goldman Sachs & Co. to Darden Restaurants, Inc., dated July 31, 2014 | |
10.2 | Master Confirmation, by Wells Fargo Bank, National Association to Darden Restaurants, Inc., dated July 31, 2014 | |
10.3 | Supplemental Confirmation, by Goldman Sachs & Co. to Darden Restaurants, Inc., dated July 31, 2014 | |
10.4 | Supplemental Confirmation, by Wells Fargo Bank, National Association to Darden Restaurants, Inc., dated July 31, 2014 |
To: | Darden Restaurants, Inc. 1000 Darden Center Drive Orlando, Florida 32837 |
A/C: | 46882510 |
From: | Goldman, Sachs & Co. |
Re: | Accelerated Stock Buyback |
Ref. No: | As provided in the Supplemental Confirmation |
Date: | July 31, 2014 |
Trade Date: | For each Transaction, as set forth in the related Supplemental Confirmation. |
Buyer: | Counterparty |
Seller: | Dealer |
Shares: | Common stock, no par value per share, of Counterparty (Ticker: DRI) |
Exchange: | New York Stock Exchange |
Related Exchange(s): | All Exchanges. |
Obligation: | Applicable |
Prepayment Amount: | For each Transaction, as set forth in the related Supplemental Confirmation. |
Prepayment Date: | For each Transaction, as set forth in the related Supplemental Confirmation. |
VWAP Price: | For any Exchange Business Day, as determined by the Calculation Agent based on the New York 10b-18 Volume Weighted Average Price per Share for the regular trading session (including any extensions thereof) of the Exchange on such Exchange Business Day (without regard to pre-open or after hours trading outside of such regular trading session for such Exchange Business Day), as published by Bloomberg at 4:15 p.m. New York time (or 15 minutes following the end of any extension of the regular trading session) on such Exchange Business Day, on Bloomberg page “DRI.N <Equity> AQR_SEC” (or any successor thereto), or if such price is not so reported on such Exchange Business Day for any reason or is, in the Calculation Agent’s reasonable discretion, erroneous, such VWAP Price shall be as reasonably determined by the Calculation Agent. For purposes of calculating the VWAP Price, the Calculation Agent will include only those trades that are reported during the period of time during which Counterparty could purchase its own shares under Rule 10b-18(b)(2) and are effected pursuant to the conditions of |
Forward Price: | The average of the VWAP Prices for the Calculation Dates in the Calculation Period, subject to “Valuation Disruption” below. |
Adjustment Amount: | For each Transaction, as set forth in the related Supplemental Confirmation. |
Calculation Period: | The period from and including the Calculation Period Start Date to and including the Termination Date. |
Calculation Period Start Date: | For each Transaction, as set forth in the related Supplemental Confirmation. |
Termination Date: | The Scheduled Termination Date; provided that Dealer shall have the right to designate any Calculation Date on or after the First Acceleration Date to be the Termination Date (the “Accelerated Termination Date”) by delivering notice to Counterparty of any such designation prior to 11:59 p.m. New York City time on the Calculation Date immediately following the designated Accelerated Termination Date. |
Calculation Dates: | For each Transaction, any date that is both an Exchange Business Day and is set forth as a Calculation Date in the related Supplemental Confirmation and every other Scheduled Trading Day following the last Calculation Date set forth in such Supplemental Confirmation; provided that beginning three Exchange Business Days following any Other Transaction Termination Date for such Transaction, Calculation Date for such Transaction shall mean any Exchange Business Day. “Other Transaction Termination Date” means, for any Transaction, the termination date under any similar and substantially contemporaneous transaction entered into between Counterparty and another dealer, which other transaction shall have terms substantially identical to the terms of such Transaction, except for calculation dates that do not coincide with any Calculation Dates hereunder. Counterparty shall notify Dealer of any Other Transaction Termination Date on the earlier of such Other Transaction Termination Date and the date Counterparty is notified of such Other Transaction Termination Date. |
Scheduled Termination Date: | For each Transaction, as set forth in the related Supplemental Confirmation, subject to postponement as provided in “Valuation Disruption” below. |
First Acceleration Date: | For each Transaction, as set forth in the related Supplemental Confirmation. |
Valuation Disruption: | The definition of “Market Disruption Event” in Section 6.3(a) of the Equity Definitions is hereby amended by deleting the words “at any time during the one-hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be” and inserting the words “at any time on any Scheduled Trading Day during the Calculation Period or Settlement Valuation Period” after the word “material,” in the third line thereof. |
Settlement Procedures: | If the Number of Shares to be Delivered is positive, Physical Settlement shall be applicable; provided that Dealer does not, and shall not, make the agreement or the representations set forth in Section 9.11 of the Equity Definitions related to the restrictions or requirements imposed by applicable securities laws with respect to any Shares delivered by Dealer to Counterparty under any Transaction. If the Number of Shares to be Delivered is negative, then the Counterparty Settlement Provisions in Annex A shall apply. |
to be Delivered: | A number of Shares equal to (x)(a) the Prepayment Amount divided by (b) the Divisor Amount minus (y) the number of Initial Shares. |
Divisor Amount: | The greater of (i) the Forward Price minus the Forward Price Adjustment Amount and (ii) $1.00. |
Excess Dividend Amount: | For the avoidance of doubt, all references to the Excess Dividend Amount shall be deleted from Section 9.2(a)(iii) of the Equity Definitions. |
Settlement Date: | If the Number of Shares to be Delivered is positive, the date that is one Settlement Cycle immediately following the Termination Date. |
Settlement Currency: | USD |
Initial Share Delivery: | Dealer shall deliver a number of Shares equal to the Initial Shares to Counterparty on the Initial Share Delivery Date in accordance with Section 9.4 of the Equity Definitions, with the Initial Share Delivery Date deemed to be a “Settlement Date” for purposes of such Section 9.4. |
Initial Share Delivery Date: | For each Transaction, as set forth in the related Supplemental Confirmation. |
Initial Shares: | For each Transaction, as set forth in the related Supplemental Confirmation. |
Potential Adjustment Event: | Notwithstanding anything to the contrary in Section 11.2(e) of the Equity Definitions, an Extraordinary Dividend shall not constitute a Potential Adjustment Event. |
Extraordinary Dividend: | For any calendar quarter, any dividend or distribution on the Shares with an ex-dividend date occurring during such calendar quarter (other than any dividend or distribution of the type described in Section 11.2(e)(i) or Section 11.2(e)(ii)(A) of the Equity Definitions) (a “Dividend”) the amount or value of which (as determined by the Calculation Agent), when aggregated with the amount or value (as determined by the Calculation Agent) of any and all previous Dividends with ex-dividend dates occurring in the same calendar quarter, exceeds the Ordinary Dividend Amount. |
Ordinary Dividend Amount: | For each Transaction, as set forth in the related Supplemental Confirmation |
Method of Adjustment: | Calculation Agent Adjustment |
Payment: | If an ex-dividend date for any Dividend that is not an Extraordinary Dividend occurs during any calendar quarter occurring (in whole or in part) during the Relevant Dividend Period (as defined below) and is prior to the Scheduled Ex-Dividend Date for such calendar quarter, the Calculation Agent shall make such adjustment to the exercise, settlement, payment or any other terms of the relevant Transaction as the Calculation Agent determines appropriate to account for the economic effect on the Transaction of such event. |
Dates: | For each Transaction for each calendar quarter, as set forth in the related Supplemental Confirmation. |
(a) | Share-for-Share: Modified Calculation Agent Adjustment |
(b) | Share-for-Other: Cancellation and Payment |
(c) | Share-for-Combined: Component Adjustment |
Tender Offer: | Applicable; provided that (i) Section 12.1(d) of the Equity Definitions shall be amended by replacing “10%” in the third line thereof with “15%”, (ii) Section 12.1(l) of the Equity Definitions shall be amended (x) by deleting the parenthetical in the fifth line thereof, (y) by replacing “that” in the fifth line thereof with “whether or not such announcement” and (z) by adding immediately after the words “Tender Offer” in the fifth line thereof “, and any publicly announced change or amendment to such an announcement (including the announcement of an abandonment of such intention)” and (iii) Sections 12.3(a) and 12.3(d) of the Equity Definitions shall each be amended by replacing each occurrence of the words “Tender Offer Date” by “Announcement Date.” |
(a) | Share-for-Share: Modified Calculation Agent Adjustment or Cancellation and Payment, at the election of Dealer |
(b) | Share-for-Other: Modified Calculation Agent Adjustment or Cancellation and Payment, at the election of Dealer |
(c) | Share-for-Combined: Modified Calculation Agent Adjustment or Cancellation and Payment, at the election of Dealer |
Insolvency or Delisting: | Cancellation and Payment; provided that in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, NYSE MKT, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall be deemed to be the Exchange. |
(a) | Change in Law: Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) by replacing the word “Shares” where it appears in clause (X) |
(b) | Failure to Deliver: Applicable |
(c) | Insolvency Filing: Applicable |
(d) | Hedging Disruption: Applicable; provided that, notwithstanding anything in the Equity Definitions, the Hedging Party shall act in a commercially reasonable manner in acquiring, establishing, re-establishing, substituting, maintaining, unwinding or disposing of any transaction(s) or asset(s) it deems necessary to hedge the equity price risk of entering into and performing its obligations (any such activities, “Hedging Activities”) with respect to any Transaction. |
(e) | Increased Cost of Hedging: Applicable; provided that, notwithstanding anything in the Equity Definitions, the Hedging Party shall act in a commercially reasonable manner in conducting its Hedging Activities with respect to any Transaction. |
(f) | Loss of Stock Borrow: Applicable |
(g) | Increased Cost of Stock Borrow: Applicable |
Additional Termination Event(s): | Notwithstanding anything to the contrary in the Equity Definitions, if, as a result of an Extraordinary Event, any Transaction would be cancelled or terminated (whether in whole or in part) pursuant to Article 12 of the Equity Definitions, an Additional Termination Event (with such terminated Transaction(s) (or portions thereof) being the Affected Transaction(s) and Counterparty being the sole Affected Party) shall be deemed to occur, and, in lieu of Sections 12.7, 12.8 and 12.9 of the Equity Definitions, Section 6 of the Agreement shall apply to such Affected Transaction(s). |
The declaration by the Issuer of any Extraordinary Dividend, the ex-dividend date for which occurs or is scheduled to occur during the Relevant Dividend Period, will constitute an Additional Termination Event, with Counterparty as the sole Affected Party and all Transactions hereunder as the Affected Transactions. |
Period: | The period from and including the Calculation Period Start Date to and including the Relevant Dividend Period End Date. |
End Date: | If the Number of Shares to be Delivered is negative, the last day of the Settlement Valuation Period; otherwise, the Termination Date. |
Acknowledgements: | Applicable |
Transfer: | Notwithstanding anything to the contrary in the Agreement, Dealer may assign, transfer and set over all rights, title and interest, powers, privileges and remedies of Dealer under any Transaction, in whole or in part, to an affiliate of Dealer whose obligations are guaranteed by The Goldman Sachs Group, Inc. without the consent of Counterparty; provided that no Event of Default or Termination Event with respect to which Dealer (or the transferee) is the Defaulting Party or an Affected Party, as the case may be, is then continuing or would result therefrom, and Counterparty is not, and would not at the time of transfer reasonably be expected to be, required to make a payment to Dealer (or the transferee) in respect of an Indemnifiable Tax as a result of such transfer. Dealer shall provide written notice to Counterparty of any transfer of a Transaction promptly following the occurrence thereof. |
Dealer Payment Instructions: | Chase Manhattan Bank New York |
for Purpose of Giving Notice: | To be provided by Counterparty |
Purpose of Giving Notice: | Goldman, Sachs & Co. |
21. | Offices. |
By: | /s/ Williams R. White, III Name: Williams R. White, III Title: SVP and Treasurer |
To: | Darden Restaurants, Inc. |
From: | Goldman, Sachs & Co. |
Subject: | Accelerated Stock Buyback |
Ref. No: | [Insert Reference No.] |
Date: | [Insert Date] |
Trade Date: | [ ] |
Forward Price Adjustment Amount: | USD [ ] |
Calculation Period Start Date: | [ ] |
Scheduled Termination Date: | [ ] |
First Acceleration Date: | [ ] |
Prepayment Amount: | USD [ ] |
Prepayment Date: | [ ] |
Initial Shares: | [ ] Shares; provided that if, in connection with the Transaction, Dealer is unable to borrow or otherwise acquire a number of Shares equal to the Initial Shares for delivery to Counterparty on the Initial Share Delivery Date, the Initial Shares delivered on the Initial Share Delivery Date shall be reduced to such number of Shares that Dealer is able to so borrow or otherwise acquire; provided further that if the Initial Shares are reduced as provided in the preceding proviso, then Dealer shall use commercially reasonable efforts to borrow or otherwise acquire an additional number of Shares equal to the shortfall in the Initial Shares delivered on the Initial Share Delivery Date and shall deliver such additional Shares as promptly as practicable, and all Shares so delivered shall be considered Initial Shares. |
Initial Share Delivery Date: | [ ] |
Ordinary Dividend Amount: | For any calendar quarter, USD [ ] |
Scheduled Ex-Dividend Dates: | [ ] |
Termination Price: | USD [ ] per Share |
Additional Relevant Days: | The [ ] Calculation Dates immediately following the Calculation Period. |
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Settlement Currency: | USD |
Settlement Method Election: | Applicable; provided that (i) Section 7.1 of the Equity Definitions is hereby amended by deleting the word “Physical” in the sixth line thereof and replacing it with the words “Net Share” and (ii) the Electing Party may make a settlement method election only if the Electing Party represents and warrants to Dealer in writing on the date it notifies Dealer of its election that, as of such date, the Electing Party is not aware of any material non-public information concerning Counterparty or the Shares and is electing the settlement method in good faith and not as part of a plan or scheme to evade compliance with the federal securities laws. |
Electing Party: | Counterparty |
Election Date: | The earlier of (i) the Scheduled Termination Date and (ii) the second Calculation Date immediately following the Accelerated Termination Date (in which case the election under Section 7.1 of the Equity Definitions shall be made no later than 10 minutes prior to the open of trading on the Exchange on such second Exchange Business Day), as the case may be. |
Default Settlement Method: | Cash Settlement |
Amount: | The Number of Shares to be Delivered multiplied by the Settlement Price. |
Settlement Price: | The average of the VWAP Prices for the Calculation Dates in the Settlement Valuation Period, subject to Valuation Disruption as specified in the Master Confirmation. |
Settlement Valuation Period: | A number of Calculation Dates selected by Dealer in its commercially reasonable discretion, beginning on the Calculation Date immediately following the earlier of (i) the Scheduled Termination Date or (ii) the Calculation Date immediately following the Termination Date. |
Cash Settlement: | If Cash Settlement is applicable, then Buyer shall pay to Seller the absolute value of the Forward Cash Settlement Amount on the Cash Settlement Payment Date. |
Payment Date: | The date one Settlement Cycle following the last day of the Settlement Valuation Period. |
Procedures: | If Net Share Settlement is applicable, Net Share Settlement shall be made in accordance with paragraphs 2 through 7 below. |
Where | A = the number of authorized but unissued shares of the Counterparty that are not reserved for future issuance on the date of the determination of the Capped Number; and |
To: | Darden Restaurants, Inc. 1000 Darden Center Drive Orlando, Florida 32837 |
From: | Wells Fargo Bank, National Association |
Re: | Accelerated Stock Buyback |
Ref. No: | As provided in the Supplemental Confirmation |
Date: | July 31, 2014 |
Trade Date: | For each Transaction, as set forth in the related Supplemental Confirmation. |
Buyer: | Counterparty |
Seller: | Dealer |
Shares: | Common stock, no par value per share, of Counterparty (Ticker: DRI) |
Exchange: | New York Stock Exchange |
Related Exchange(s): | All Exchanges. |
Obligation: | Applicable |
Prepayment Amount: | For each Transaction, as set forth in the related Supplemental Confirmation. |
Prepayment Date: | For each Transaction, as set forth in the related Supplemental Confirmation. |
VWAP Price: | For any Exchange Business Day, as determined by the Calculation Agent based on the New York 10b-18 Volume Weighted Average Price per Share for the regular trading session (including any extensions thereof) of the Exchange on such Exchange Business Day (without regard to pre-open or after hours trading outside of such regular trading session for such Exchange Business Day), as published by Bloomberg at 4:15 p.m. New York time (or 15 minutes following the end of any extension of the regular trading session) on such Exchange Business Day, on Bloomberg page “DRI.N <Equity> AQR_SEC” (or any successor thereto), or if such price is not so reported on such Exchange Business Day for any reason or is, in the Calculation Agent’s reasonable discretion, erroneous, such VWAP Price shall be as reasonably determined by the Calculation Agent. For purposes of calculating the VWAP Price, the Calculation Agent will include only those trades that are reported during the period of time during which Counterparty could purchase its own shares under Rule 10b-18(b)(2) and are effected pursuant to the conditions of |
Forward Price: | The average of the VWAP Prices for the Calculation Dates in the Calculation Period, subject to “Valuation Disruption” below. |
Adjustment Amount: | For each Transaction, as set forth in the related Supplemental Confirmation. |
Calculation Period: | The period from and including the Calculation Period Start Date to and including the Termination Date. |
Calculation Period Start Date: | For each Transaction, as set forth in the related Supplemental Confirmation. |
Termination Date: | The Scheduled Termination Date; provided that Dealer shall have the right to designate any Calculation Date on or after the First Acceleration Date to be the Termination Date (the “Accelerated Termination Date”) by delivering notice to Counterparty of any such designation prior to 11:59 p.m. New York City time on the Calculation Date immediately following the designated Accelerated Termination Date. |
Calculation Dates: | For each Transaction, any date that is both an Exchange Business Day and is set forth as a Calculation Date in the related Supplemental Confirmation and every other Scheduled Trading Day following the last Calculation Date set forth in such Supplemental Confirmation; provided that beginning three Exchange Business Days following any Other Transaction Termination Date for such Transaction, Calculation Date for such Transaction shall mean any Exchange Business Day. “Other Transaction Termination Date” means, for any Transaction, the termination date under any similar and substantially contemporaneous transaction entered into between Counterparty and another dealer, which other transaction shall have terms substantially identical to the terms of such Transaction, except for calculation dates that do not coincide with any Calculation Dates hereunder. Counterparty shall notify Dealer of any Other Transaction Termination Date on the earlier of such Other Transaction Termination Date and the date Counterparty is notified of such Other Transaction Termination Date. |
Scheduled Termination Date: | For each Transaction, as set forth in the related Supplemental Confirmation, subject to postponement as provided in “Valuation Disruption” below. |
First Acceleration Date: | For each Transaction, as set forth in the related Supplemental Confirmation. |
Valuation Disruption: | The definition of “Market Disruption Event” in Section 6.3(a) of the Equity Definitions is hereby amended by deleting the words “at any time during the one-hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be” and inserting the words “at any time on any Scheduled Trading Day during the Calculation Period or Settlement Valuation Period” after the word “material,” in the third line thereof. |
Settlement Procedures: | If the Number of Shares to be Delivered is positive, Physical Settlement shall be applicable; provided that Dealer does not, and shall not, make the agreement or the representations set forth in Section 9.11 of the Equity Definitions related to the restrictions or requirements imposed by applicable securities laws with respect to any Shares delivered by Dealer to Counterparty under any Transaction. If the Number of Shares to be Delivered is negative, then the Counterparty Settlement Provisions in Annex A shall apply. |
to be Delivered: | A number of Shares equal to (x)(a) the Prepayment Amount divided by (b) the Divisor Amount minus (y) the number of Initial Shares. |
Divisor Amount: | The greater of (i) the Forward Price minus the Forward Price Adjustment Amount and (ii) $1.00. |
Excess Dividend Amount: | For the avoidance of doubt, all references to the Excess Dividend Amount shall be deleted from Section 9.2(a)(iii) of the Equity Definitions. |
Settlement Date: | If the Number of Shares to be Delivered is positive, the date that is one Settlement Cycle immediately following the Termination Date. |
Settlement Currency: | USD |
Initial Share Delivery: | Dealer shall deliver a number of Shares equal to the Initial Shares to Counterparty on the Initial Share Delivery Date in accordance with Section 9.4 of the Equity Definitions, with the Initial Share Delivery Date deemed to be a “Settlement Date” for purposes of such Section 9.4. |
Initial Share Delivery Date: | For each Transaction, as set forth in the related Supplemental Confirmation. |
Initial Shares: | For each Transaction, as set forth in the related Supplemental Confirmation. |
Potential Adjustment Event: | Notwithstanding anything to the contrary in Section 11.2(e) of the Equity Definitions, an Extraordinary Dividend shall not constitute a Potential Adjustment Event. |
Extraordinary Dividend: | For any calendar quarter, any dividend or distribution on the Shares with an ex-dividend date occurring during such calendar quarter (other than any dividend or distribution of the type described in Section 11.2(e)(i) or Section 11.2(e)(ii)(A) of the Equity Definitions) (a “Dividend”) the amount or value of which (as determined by the Calculation Agent), when aggregated with the amount or value (as determined by the Calculation Agent) of any and all previous Dividends with ex-dividend dates occurring in the same calendar quarter, exceeds the Ordinary Dividend Amount. |
Ordinary Dividend Amount: | For each Transaction, as set forth in the related Supplemental Confirmation |
Method of Adjustment: | Calculation Agent Adjustment |
Payment: | If an ex-dividend date for any Dividend that is not an Extraordinary Dividend occurs during any calendar quarter occurring (in whole or in part) during the Relevant Dividend Period (as defined below) and is prior to the Scheduled Ex-Dividend Date for such calendar quarter, the Calculation Agent shall make such adjustment to the exercise, settlement, payment or any other terms of the relevant Transaction as the Calculation Agent determines appropriate to account for the economic effect on the Transaction of such event. |
Dates: | For each Transaction for each calendar quarter, as set forth in the related Supplemental Confirmation. |
(a) | Share-for-Share: Modified Calculation Agent Adjustment |
(b) | Share-for-Other: Cancellation and Payment |
(c) | Share-for-Combined: Component Adjustment |
(a) | Share-for-Share: Modified Calculation Agent Adjustment or Cancellation and Payment, at the election of Dealer |
(b) | Share-for-Other: Modified Calculation Agent Adjustment or Cancellation and Payment, at the election of Dealer |
(c) | Share-for-Combined: Modified Calculation Agent Adjustment or Cancellation and Payment, at the election of Dealer |
Insolvency or Delisting: | Cancellation and Payment; provided that in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, NYSE MKT, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall be deemed to be the Exchange. |
(a) | Change in Law: Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) by replacing the word “Shares” where it appears in clause (X) thereof with the words “Hedge Position” and (iii) by immediately following the word “Transaction” in |
(b) | Failure to Deliver: Applicable |
(c) | Insolvency Filing: Applicable |
(d) | Hedging Disruption: Applicable; provided that, notwithstanding anything in the Equity Definitions, the Hedging Party shall act in a commercially reasonable manner in acquiring, establishing, re-establishing, substituting, maintaining, unwinding or disposing of any transaction(s) or asset(s) it deems necessary to hedge the equity price risk of entering into and performing its obligations (any such activities, “Hedging Activities”) with respect to any Transaction. |
(e) | Increased Cost of Hedging: Applicable; provided that, notwithstanding anything in the Equity Definitions, the Hedging Party shall act in a commercially reasonable manner in conducting its Hedging Activities with respect to any Transaction. |
(f) | Loss of Stock Borrow: Applicable |
(g) | Increased Cost of Stock Borrow: Applicable |
Additional Termination Event(s): | Notwithstanding anything to the contrary in the Equity Definitions, if, as a result of an Extraordinary Event, any Transaction would be cancelled or terminated (whether in whole or in part) pursuant to Article 12 of the Equity Definitions, an Additional Termination Event (with such terminated Transaction(s) (or portions thereof) being the Affected Transaction(s) and Counterparty being the sole Affected Party) shall be deemed to occur, and, in lieu of Sections 12.7, 12.8 and 12.9 of the Equity Definitions, Section 6 of the Agreement shall apply to such Affected Transaction(s). |
The declaration by the Issuer of any Extraordinary Dividend, the ex-dividend date for which occurs or is scheduled to occur during the Relevant Dividend Period, will constitute an Additional Termination Event, with Counterparty as the sole Affected Party and all Transactions hereunder as the Affected Transactions. |
Relevant Dividend Period: | The period from and including the Calculation Period Start Date to and including the Relevant Dividend Period End Date. |
End Date: | If the Number of Shares to be Delivered is negative, the last day of the Settlement Valuation Period; otherwise, the Termination Date. |
Acknowledgements: | Applicable |
Transfer: | Notwithstanding anything to the contrary in the Agreement, Dealer may assign, transfer and set over all rights, title and interest, powers, privileges and remedies of Dealer under any Transaction, in whole or in part, to an affiliate of Dealer whose obligations are guaranteed by Dealer without the consent of Counterparty; provided that no Event of Default or Termination Event with respect to which Dealer (or the transferee) is the Defaulting Party or an Affected Party, as the case may be, is then continuing or would result therefrom, and Counterparty is not, and would not at the time of transfer reasonably be expected to be, required to make a payment to Dealer (or the transferee) in respect of an Indemnifiable Tax as a result of such transfer. Dealer shall provide written notice to Counterparty of any transfer of a Transaction promptly following the occurrence thereof. |
Dealer Payment Instructions: | Wells Fargo Bank, N.A. |
for Purpose of Giving Notice: | To be provided by Counterparty |
Purpose of Giving Notice: | Wells Fargo Bank, National Association |
375 Park Avenue, 4th Floor |
MAC J0127-041 |
New York, NY 10152 |
Attention: Structuring Services Group |
Telephone No.: 212-214-6101 |
Facsimile No.: 212-214-5913 |
21. | Offices. |
22. | Arbitration. The Agreement, this Master Confirmation and each Supplemental Confirmation are subject to the following arbitration provisions: |
To: | Darden Restaurants, Inc. |
From: | Wells Fargo Bank, National Association |
Subject: | Accelerated Stock Buyback |
Ref. No: | [Insert Reference No.] |
Date: | [Insert Date] |
Trade Date: | [ ] |
Forward Price Adjustment Amount: | USD [ ] |
Calculation Period Start Date: | [ ] |
Scheduled Termination Date: | [ ] |
First Acceleration Date: | [ ] |
Prepayment Amount: | USD [ ] |
Prepayment Date: | [ ] |
Initial Shares: | [ ] Shares; provided that if, in connection with the Transaction, Dealer is unable to borrow or otherwise acquire a number of Shares equal to the Initial Shares for delivery to Counterparty on the Initial Share Delivery Date, the Initial Shares delivered on the Initial Share Delivery Date shall be reduced to such number of Shares that Dealer is able to so borrow or otherwise acquire; provided further that if the Initial Shares are reduced as provided in the preceding proviso, then Dealer shall use commercially reasonable efforts to borrow or otherwise acquire an additional number of Shares equal to the shortfall in the Initial Shares delivered on the Initial Share Delivery Date and shall deliver such additional Shares as promptly as practicable, and all Shares so delivered shall be considered Initial Shares. |
Initial Share Delivery Date: | [ ] |
Ordinary Dividend Amount: | For any calendar quarter, USD [ ] |
Scheduled Ex-Dividend Dates: | [ ] |
Termination Price: | USD [ ] per Share |
Additional Relevant Days: | The [ ] Calculation Dates immediately following the Calculation Period. |
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4. | 5. | 6. | |||
7. | 8. | 9. | |||
10. | 11. | 12. | |||
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28. | 29. | 30. | |||
31. | 32. | 33. | |||
34. | 35. | 36. | |||
37. | 38. | 39. | |||
40. | 41. | 42. | |||
43. | 44. | 45. | |||
46. | 47. | 48. | |||
49. | 50. | 51. | |||
52. | 53. | 54. | |||
55. | 56. | 57. | |||
58. | 59. | 60. | |||
61. | 62. | 63. | |||
64. | 65. | 66. |
67. | 68. | 69. | |||
70. | 71. | 72. | |||
73. | 74. | 75. | |||
76. | 77. | 78. | |||
79. | 80. | 81. | |||
82. | 83. | 84. |
Settlement Currency: | USD |
Settlement Method Election: | Applicable; provided that (i) Section 7.1 of the Equity Definitions is hereby amended by deleting the word “Physical” in the sixth line thereof and replacing it with the words “Net Share” and (ii) the Electing Party may make a settlement method election only if the Electing Party represents and warrants to Dealer in writing on the date it notifies Dealer of its election that, as of such date, the Electing Party is not aware of any material non-public information concerning Counterparty or the Shares and is electing the settlement method in good faith and not as part of a plan or scheme to evade compliance with the federal securities laws. |
Electing Party: | Counterparty |
Election Date: | The earlier of (i) the Scheduled Termination Date and (ii) the second Calculation Date immediately following the Accelerated Termination Date (in which case the election under Section 7.1 of the Equity Definitions shall be made no later than 10 minutes prior to the open of trading on the Exchange on such second Exchange Business Day), as the case may be. |
Default Settlement Method: | Cash Settlement |
Amount: | The Number of Shares to be Delivered multiplied by the Settlement Price. |
Settlement Price: | The average of the VWAP Prices for the Calculation Dates in the Settlement Valuation Period, subject to Valuation Disruption as specified in the Master Confirmation. |
Settlement Valuation Period: | A number of Calculation Dates selected by Dealer in its commercially reasonable discretion, beginning on the Calculation Date immediately following the earlier of (i) the Scheduled Termination Date or (ii) the Calculation Date immediately following the Termination Date. |
Cash Settlement: | If Cash Settlement is applicable, then Buyer shall pay to Seller the absolute value of the Forward Cash Settlement Amount on the Cash Settlement Payment Date. |
Payment Date: | The date one Settlement Cycle following the last day of the Settlement Valuation Period. |
Procedures: | If Net Share Settlement is applicable, Net Share Settlement shall be made in accordance with paragraphs 2 through 7 below. |
Where | A = the number of authorized but unissued shares of the Counterparty that are not reserved for future issuance on the date of the determination of the Capped Number; and |
To: | Darden Restaurants, Inc. |
From: | Goldman, Sachs & Co. |
Subject: | Accelerated Stock Buyback |
Ref. No: | [Insert Reference No.] |
Date: | July 31, 2014 |
Trade Date: | July 31, 2014 |
Forward Price Adjustment Amount: | USD 0.43 |
Calculation Period Start Date: | July 31, 2014 |
Scheduled Termination Date: | December 3, 2014 |
First Acceleration Date: | September 30, 2014 |
Prepayment Amount: | USD 250,000,000 |
Prepayment Date: | August 5, 2014 |
Initial Shares: | 4,318,721 Shares; provided that if, in connection with the Transaction, Dealer is unable to borrow or otherwise acquire a number of Shares equal to the Initial Shares for delivery to Counterparty on the Initial Share Delivery Date, the Initial Shares delivered on the Initial Share Delivery Date shall be reduced to such number of Shares that Dealer is able to so borrow or otherwise acquire; provided further that if the Initial Shares are reduced as provided in the preceding proviso, then Dealer shall use commercially reasonable efforts to borrow or otherwise acquire an additional number of Shares equal to the shortfall in the Initial Shares delivered on the Initial Share Delivery Date and shall deliver such additional Shares as promptly as practicable, and all Shares so delivered shall be considered Initial Shares. |
Initial Share Delivery Date: | October 1, 2014 |
Ordinary Dividend Amount: | For any calendar quarter, USD 0.55 |
Scheduled Ex-Dividend Dates: | October 10, 2014 |
Termination Price: | USD 23.16 per Share |
Additional Relevant Days: | The 3 Calculation Dates immediately following the Calculation Period. |
1. | July 31, 2014 | 2. | August 4, 2014 | 3. | August 6, 2014 |
4. | August 8, 2014 | 5. | August 12, 2014 | 6. | August 14, 2014 |
7. | August 18, 2014 | 8. | August 20, 2014 | 9. | August 22, 2014 |
10. | August 26, 2014 | 11. | August 28, 2014 | 12. | September 2, 2014 |
13. | September 4, 2014 | 14. | September 8, 2014 | 15. | September 10, 2014 |
16. | September 12, 2014 | 17. | September 16, 2014 | 18. | September 18, 2014 |
19. | September 22, 2014 | 20. | September 24, 2014 | 21. | September 26, 2014 |
22. | September 30, 2014 | 23. | October 2, 2014 | 24. | October 6, 2014 |
25. | October 8, 2014 | 26. | October 10, 2014 | 27. | October 14, 2014 |
28. | October 16, 2014 | 29. | October 20, 2014 | 30. | October 22, 2014 |
31. | October 24, 2014 | 32. | October 28, 2014 | 33. | October 30, 2014 |
34. | November 3, 2014 | 35. | November 5, 2014 | 36. | November 7, 2014 |
37. | November 11, 2014 | 38. | November 13, 2014 | 39. | November 17, 2014 |
40. | November 19, 2014 | 41. | November 21, 2014 | 42. | November 25, 2014 |
43. | November 28, 2014 | 44. | December 2, 2014 |
To: | Darden Restaurants, Inc. |
From: | Wells Fargo Bank, National Association |
Subject: | Accelerated Stock Buyback |
Date: | July 31, 2014 |
Trade Date: | July 31, 2014 |
Forward Price Adjustment Amount: | USD 0.43 |
Calculation Period Start Date: | August 1, 2014 |
Scheduled Termination Date: | December 4, 2014 |
First Acceleration Date: | September 30, 2014 |
Prepayment Amount: | USD 250,000,000 |
Prepayment Date: | August 5, 2014 |
Initial Shares: | 4,318,721 Shares; provided that if, in connection with the Transaction, Dealer is unable to borrow or otherwise acquire a number of Shares equal to the Initial Shares for delivery to Counterparty on the Initial Share Delivery Date, the Initial Shares delivered on the Initial Share Delivery Date shall be reduced to such number of Shares that Dealer is able to so borrow or otherwise acquire; provided further that if the Initial Shares are reduced as provided in the preceding proviso, then Dealer shall use commercially reasonable efforts to borrow or otherwise acquire an additional number of Shares equal to the shortfall in the Initial Shares delivered on the Initial Share Delivery Date and shall deliver such additional Shares as promptly as practicable, and all Shares so delivered shall be considered Initial Shares. |
Initial Share Delivery Date: | October 1, 2014 |
Ordinary Dividend Amount: | For any calendar quarter, USD 0.55 |
Scheduled Ex-Dividend Dates: | October 10, 2014 |
Termination Price: | USD 23.16 per Share |
Additional Relevant Days: | The 3 Calculation Dates immediately following the Calculation Period. |
1. | August 1, 2014 | 2. | August 5, 2014 | 3. | August 7, 2014 |
4. | August 11, 2014 | 5. | August 13, 2014 | 6. | August 15, 2014 |
7. | August 19, 2014 | 8. | August 21, 2014 | 9. | August 25, 2014 |
10. | August 27, 2014 | 11. | August 29, 2014 | 12. | September 3, 2014 |
13. | September 5, 2014 | 14. | September 9, 2014 | 15. | September 11, 2014 |
16. | September 15, 2014 | 17. | September 17, 2014 | 18. | September 19, 2014 |
19. | September 23, 2014 | 20. | September 25, 2014 | 21. | September 29, 2014 |
22. | October 1, 2014 | 23. | October 3, 2014 | 24. | October 7, 2014 |
25. | October 9, 2014 | 26. | October 13, 2014 | 27. | October 15, 2014 |
28. | October 17, 2014 | 29. | October 21, 2014 | 30. | October 23, 2014 |
31. | October 27, 2014 | 32. | October 29, 2014 | 33. | October 31, 2014 |
34. | November 4, 2014 | 35. | November 6, 2014 | 36. | November 10, 2014 |
37. | November 12, 2014 | 38. | November 14, 2014 | 39. | November 18, 2014 |
40. | November 20, 2014 | 41. | November 24, 2014 | 42. | November 26, 2014 |
43. | December 1, 2014 | 44. | December 3, 2014 |