EXHIBIT 10(k)
NON-NEGOTIABLE
PROMISSORY NOTE
$
___________________ _______________, 20__
FOR VALUE RECEIVED, (the "Maker") promises to pay to the order of GMRI,
Inc., a Florida corporation (which together with any successor, assignee or
endorsee is hereinafter referred to as the "Holder"), at 5900 Lake Ellenor
Drive, Orlando, Florida 32809, or at such other place as the Holder may
designate in writing, in lawful money of the United States of America, the
principal sum of ______________ and ____/100 Dollars ($_______), together
with interest as described below and in accordance with the following terms
and provisions:
1. Interest Rate; Default Interest Rate. Interest will accrue on the
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outstanding principal balance of this Note at a rate of ______% (the applicable
federal rate for mid-term loans with semi-annual compounding for the month in
which the Note is executed) per annum. In addition, after a default by the Maker
under this Note or under any document securing payment of this Note, interest
will accrue on the outstanding principal balance hereof at a rate equal to the
lesser of fifteen percent (15%) per annum or the maximum rate permitted by law.
2. Interest Payments. For so long as the Maker remains on the active
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payroll of Darden Restaurants, Inc. or any of its wholly owned subsidiaries (the
"Company"), accrued interest will be payable in arrears beginning in weekly
installments by automatic payroll deduction on each successive payroll payment
date of the Company during the term of this Note until all outstanding principal
and interest under this Note have been paid in full. If the Maker leaves the
active payroll of the Company prior to full and final payment of this Note and
does so without triggering a default or accelerated maturity under the Note,
then accrued interest will be payable in arrears in monthly installments
beginning on the first day of the first full calendar month following the
Maker's change in payroll status and continuing on the first day of each
successive calendar month until all outstanding principal and interest under
this Note have been paid in full. All prorations and other determinations of
interest payable under this Note will be calculated on the basis of the actual
number of days in the calendar week, calendar month or calendar year for which
such proration or determination is being made, and the actual number of days
during which the principal balance remains outstanding. Unpaid interest will be
compounded semiannually.
3. Principal Payments. Payment of the principal of this Note will be
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made in three installments on the fifth, sixth and seventh anniversary of the
date of this Note. Twenty-five percent (25%) of the then outstanding principal
balance of this Note will be due and payable on each of the fifth and sixth
anniversaries of the date hereof. On the seventh anniversary of the date of this
Note, the entire remaining outstanding principal balance together with all
accrued unpaid interest will be due and payable.
4. Security and Purpose of Loan. The Maker's payment and performance of
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all the terms and conditions of this Note are secured by a stock pledge
agreement of even date herewith executed by the Maker and the Holder (the
"Pledge Agreement"). The loan evidenced by this Note is made to assist the Maker
in satisfying the terms and conditions of the Fiscal 1998 Stock Purchase/Option
Award of Darden Restaurants, Inc. (the "2000 Award"). The Maker will use all
proceeds of the loan to purchase "Deposit Shares," as defined in the Special
Terms and Conditions of the 2000 Award, and for no other purpose.
5. Prepayment. This Note may be prepaid in whole or in part at any
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time without penalty. In addition, partial prepayments of principal will be made
by the Maker if required under the Pledge Agreement.
6. Default and Accelerated Maturity. If any amount under this Note or
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under the Pledge Agreement is not paid when due and such default continues for
five (5) days thereafter, the entire principal balance of this Note and all
accrued interest thereon will become immediately due and payable. If any
covenant, term, condition or other provision in this Note or in the Pledge
Agreement is not performed, fulfilled, satisfied or met as promised or required,
and such failure does not constitute a monetary default triggering acceleration
under the preceding sentence, then the Holder will notify the Maker of the
default. If the default is not fully rectified and cured within fifteen (15)
days after the date of the notice, the entire principal balance of this Note and
all accrued interest thereon will become immediately due and payable.
Without limiting the generality of the foregoing, the entire
outstanding principal balance of this Note, together with all accrued interest
thereon, will become immediately due and payable without notice on the following
dates:
(a) the date of any voluntary or involuntary termination of the Maker's
employment with the Company, provided that this subsection will not apply to
termination of the Maker's employment by (i) death of the Maker, provided the
debt evidenced by this Note is assumed in writing by all heirs, beneficiaries
and other persons or entities succeeding to the Maker's ownership interest in
all or any portion of the "Collateral" (as defined in the Pledge Agreement)
within ninety (90) days after the Maker's death, (ii) retirement after age 55
with at least ten years of service with the Company or its predecessors or (iii)
if approved in writing by the Holder in its sole discretion, early retirement;
(b) the date on which the "Collateral" (as defined in the Pledge
Agreement) is withdrawn from the pledge account securing this Note, provided
that if the "Collateral" is only partially withdrawn, principal and accrued
interest under this Note will be payable in the amounts specified in the Pledge
Agreement; and
(c) if the Maker has by that date failed to purchase and place on
deposit sufficient "Deposit Shares" to satisfy his or her "Minimum Eligibility
Requirement" as more particularly provided and as such terms are defined in the
Special Terms and Conditions of the 2000 Award.
7. Right of Set-Off. The Maker expressly agrees that, if a default or
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accelerated maturity occurs pursuant to Section 6 of this Note, the Holder has a
right of set-off to satisfy the debt evidenced by this Note. The right of
set-off will entitle the Holder (a) to withhold any payments owing from the
Company to the Maker, including but not limited to salary and bonus payments,
pension and retirement benefits, and expense reimbursements, and (b) to draw
upon any account maintained by the Company or its agent for the benefit of the
Maker or in the Maker's name. The Holder will provide written notice to the
Maker prior to exercising this right of set-off.
8. Late Charge. The Maker will pay to the Holder a late charge equal to
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five percent (5%) of any amount due under this Note but not received by the
Holder within fifteen (15) days after the due date. The Maker agrees that the
late charge will be collected not as a penalty, but as compensation to the
Holder for the costs of collecting the late payment. This provision will not be
construed to extend the due date for any amount required to be paid under this
Note. The Holder will have no obligation to accept any late payment not
accompanied by the required late charge.
9. Waiver; Extensions. Presentment, demand, notice of dishonor, the
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homestead exemption, and all other exemptions provided the Maker are waived. No
delay, failure or omission by the Holder in exercising any of its rights
hereunder or at law or in equity (including, without limitation, the right of
acceleration) will be construed as a novation of this Note or will operate as a
waiver or prevent the subsequent exercise of any or all of such rights.
Acceptance by the Holder of any sum payable under this Note, whether before, on
or after the due date of such payment, will not be a waiver of the Holder's
right to require prompt payment when due of all other sums payable under this
Note or to exercise any of the Holder's rights, powers or remedies under this
Note. No extension of the time for any payment under this Note will operate to
release, discharge, modify, or otherwise affect the liability of the Maker
unless the Holder agrees in writing.
10. Collection Costs, Documentary Stamp Tax and Other Expenses. The
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Maker will pay all costs, fees and expenses (including court costs and
attorneys' fees) incurred by the Holder in collecting or attempting to collect
any amount that becomes due under this Note or in seeking legal advice with
respect to a default under this Note. In addition, the Maker will pay all costs
and expenses arising out of the execution and delivery of this Note, including
but not limited to all documentary stamp taxes and other taxes that may be
charged or imposed by local, state or federal governments.
11. Governing Law; Usury. This Agreement will be governed by Florida
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Law. It is the intention of the Maker and the Holder to comply with the usury
laws of the United States and the State of Florida. Accordingly, it is agreed
that, notwithstanding any provision in this Note to the contrary, this Note will
not require the payment of, or permit the collection of interest in excess of
the maximum permitted by law.
12. Notices. All notices, requests, demands and other communications
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with respect to this Note will be in writing and will be delivered by hand, sent
prepaid by air courier or sent by the United States mail, certified, postage
prepaid, return receipt requested, at the addresses designated below:
If to Holder: GMRI, Inc.
Attn: Vice President - Compensation & Benefits
5900 Lake Ellenor Drive
Orlando, Florida 32809
If to Maker: ____________________________________________
____________________________________________
____________________________________________
Any notice, request, demand or other communication delivered or sent in
such manner will be deemed given or made when actually received by the intended
recipient. Rejection or other refusal to accept, or the inability to deliver
because of a changed address of which no notice was given, will be deemed to be
receipt of the notice, request, demand or other communication sent. The Maker or
the Holder may change its address by notifying the other party of the new
address in any manner permitted by this section.
13. Amendments Only in Writing. This Note or any provision hereof may
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be waived, changed, modified or discharged only by an agreement in writing
signed by the Maker and the Holder.
14. Time of Essence. TIME IS OF THE ESSENCE with respect to the
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performance by the Maker of each of its obligations hereunder.
15. Authorization for Payroll Deduction. The Maker authorizes the
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Company to deduct amounts due under this Note from payroll installments payable
by the Company to the Maker. The Maker agrees that all interest payments due
under this Note will be made by way of payroll deduction for so long as the
Maker remains on the Company's active payroll, and that no additional
authorization, consent or notice will be required for the Company to commence or
continue payroll deduction for these purposes.
IN WITNESS WHEREOF, the Maker has executed this Note in the County of
________________, _______________________________.
_______________________________________
Name:__________________________________
COUNTY OF __________________________
STATE OF __________________________
This instrument was executed before me and in my presence this ________
day of __________________, 2000, in ___________ County, ____________ by
___________________________.
_______________________________________
Notary Public
My Commission Expires:_________________
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT dated as of __________, 20__ (the "Agreement"), by
and between __________________ (the "Pledgor"), ______________ (the "Pledgor's
Spouse") and GMRI, Inc., a Florida corporation (the "Secured Party"), recites
and provides:
RECITALS
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The Pledgor has executed and delivered a promissory note of even date
herewith (the "Note") made by the Pledgor payable to the order of the Secured
Party in the principal amount of $__________, together with accrued interest
thereon at the rate of ___% (the applicable federal rate for mid-term loans with
semi-annual compounding for the month in which the Note is executed) per annum.
The Pledgor has agreed to pledge and deliver to the Secured Party as security
for the payment of the indebtedness evidenced by the Note, _____ shares of
common stock of Darden Restaurants, Inc., a Florida corporation, in accordance
with the terms and conditions set forth in this Agreement. The Pledgor's Spouse
has agreed to join in the execution of this Agreement to release all marital
property rights, if any, in and to the "Collateral" (defined below).
PLEDGE AGREEMENT
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NOW, THEREFORE, the parties to this Agreement agree as follows:
1. Pledge of Collateral. The Pledgor hereby assigns and delivers to the
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Secured Party, with appropriate stock powers and endorsements in blank or other
appropriate instruments of assignment, ______ shares of common stock of Darden
Restaurants, Inc. (Such securities, and any replacements or substitutions
thereof, and all accessions thereto, are referred to in this document as the
"Collateral"). All of the Collateral will be held by the Secured Party subject
to the terms and conditions of this Agreement.
2. Certificates. The Pledgor agrees to deliver promptly to the Secured
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Party, with stock powers or endorsements in blank or other appropriate
instruments of assignment, all certificates (if any) representing stock
dividends or stock splits or rights to purchase or subscribe for additional
stock, or other rights, accessions or increments with respect to any securities
constituting a portion of the Collateral. Such certificates (if any) will be
held by the Secured Party subject to the terms and conditions of this Agreement.
3. Secured Indebtedness. This pledge of the Collateral secures all
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indebtedness of the Pledgor to the Secured Party evidenced by the Note,including
any attorney's fees and other expenses incurred in the collection of the Note.
4. Satisfaction of Indebtedness. Upon payment of the entire indebtedness
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of the Pledgor to the Secured Party evidenced by the Note, this Agreement will
terminate and all the Collateral will be returned and delivered by the Secured
Party to the Pledgor.
5. Reduction of Collateral. The Secured Party has granted to the
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Pledgor a certain stock option award dated, pursuant to the Fiscal 1998 Stock
Purchase/Option Award of Darden Restaurants, Inc. (the "2000 Award").
Under certain circumstances, more particularly described in the Special Terms
and Conditions of the 2000 Award, the Pledgor may be entitled to reduce
the Collateral conditioned, however, on a pro rata payment of the indebtedness
evidenced by the Note. In the event the Pledgor becomes entitled to reduce the
Collateral under the 2000 Award, the Pledgor will notify the Secured Party and
simultaneously pay to the Secured Party an amount (the "Paydown") equal to
the principal then outstanding under the Note times a fraction, the numerator
of which equals the number of shares of common stock by which the Collateral is
to be reduced and the denominator of which equals the number of shares of common
stock comprising the Collateral prior to the reduction. The Secured Party will
apply the Paydown against the indebtedness evidenced by the Note and release
to the Pledgor the number of shares of common stock by which the Collateral is
to be reduced.
After full vesting of all Options granted to the Pledgor under the 2000
Award, provided the Pledgor is not then in default under this Agreement or under
the Note, the Pledgor may be entitled to reduce the Collateral upon making
payments of principal under the Note. The Pledgor will notify the Secured Party
at the time of the principal payment that a reduction of the Collateral is
requested. Upon receipt of the principal payment and the accompanying notice,
the Secured Party will reduce the Collateral by the number of shares of common
stock that equals the total of all shares then comprising the Collateral times a
fraction, the numerator of which is the amount of principal being paid and the
denominator of which is the total outstanding principal under the Note prior to
the payment.
Except as permitted by the 2000 Award or this Agreement, the Collateral
may not be reduced or otherwise released prior to the full and final payment of
all indebtedness evidenced by the Note.
6. Pledgor's Representation. The Pledgor represents, warrants and
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covenants that he or she is the lawful owner of all of the Collateral, free and
clear of all liens or claims of any sort whatsoever, other than the lien
established by this Agreement, and that he or she will maintain the Collateral
free of all such liens or claims until all indebtedness evidenced by the Note is
fully and finally paid.
7. Further Assurances. The Pledgor covenants and agrees to execute and
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deliver or cause to be executed and delivered, and to do or make or cause to be
done or made, upon the request of the Secured Party, any and all agreements,
instruments, acts or things, supplemental, confirmatory or otherwise, as may
reasonably be required by the Secured Party for the purpose of, or in connection
with, perfecting and completing the pledge of the Collateral in accordance with
the terms and conditions of this Agreement.
8. Dividends and Voting Rights. So long as there exists no event of
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default under this Agreement or under the Note, subject to the provisions of
paragraphs 2 and 9 hereof, the Pledgor will have and enjoy all rights attaching
to the Collateral, including the right to receive all dividends and the right to
exercise any and all voting rights.
9. Default and Remedies. In the event of any default by the Pledgor in
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the payment of any sum under this Agreement or any indebtedness of the Pledgor
evidenced by the Note, which default continues for a period of five (5)
days, or any other default under the Note or under this Agreement which
continues for a period of fifteen (15) days after written notice given by the
Secured Party to the Pledgor in accordance with the provisions of the Note, all
right, title and ownership in and to the Collateral will transfer ipso facto to
the Secured Party, at its option. The transfer of the Collateral to the Secured
Party will include all rights attaching to the Collateral, including the right
to receive all dividends and the right to exercise any and all voting rights.
Such transfer and delivery of the Collateral will be accepted by the Secured
Party in full or partial satisfaction of the outstanding indebtedness evidenced
by the Note, which indebtedness will be reduced by an amount equal to the value
of the Collateral on the date of its delivery to the Secured Party. The value of
the Collateral will be calculated on the basis of the closing price of Darden
Restaurants, Inc. common stock on the New York Stock Exchange on the date of
transfer to the Secured Party. If the value of the Collateral is insufficient to
discharge the outstanding indebtedness and other costs and expenses owed under
the Note and this Agreement, the Pledgor will remain liable for the deficiency.
If the value of the Collateral equals or exceeds the outstanding indebtedness
and other costs and expenses owed under the Note and this Agreement, the Secured
Party will transfer to the Pledgor any overage in the form of common stock of
Darden Restaurants, Inc. with a cash payment for any fractional share, and
thereafter the Pledgor will have no other or further liability arising from such
indebtedness.
10. Expenses. The Pledgor will pay any and all expenses related to the
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execution of this Agreement and pledge of the Collateral, including any
taxes or assessments imposed by local, state or federal governments. The Pledgor
will also pay all costs of collection and enforcement of this Agreement and the
Note (including reasonable attorneys' fees) in the event of default or failure
of the Pledgor to fulfill any term, covenant or condition under this Agreement,
the Note, or the 2000 Award. Any other expenses incurred in connection with this
Agreement or the pledge of the Collateral hereunder will be borne by the Secured
Party and will not be charged against or paid from the Collateral.
11. Binding Agreement; Governing Law. This Pledge Agreement will bind
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the parties hereto and their respective heirs, personal representatives,
successors and assigns. This Agreement will be governed by Florida Law.
12. Joinder of Pledgor's Spouse. The Pledgor's Spouse joins in the
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execution of this Agreement to evidence his or her consent to the pledge of the
Collateral by the Pledgor, and to release any and all marital rights that may
exist in and to the Collateral.
IN WITNESS WHEREOF, the Pledgor, the Pledgor's Spouse and the Secured
Party have executed or caused this Pledge Agreement to be executed in their
names as of the date first above written.
PLEDGOR PLEDGOR'S SPOUSE
_____________________________________ ____________________________________
Name:________________________________ Name:_______________________________
SECURED PARTY
GMRI, INC.
By: ______________________________________________
Title: ______________________________________________
COUNTY OF _________________________
STATE OF _________________________
This instrument was executed before me and in my presence this _______ day of
____________________, 20__, in ________ County, ___________, by _______________.
________________________________________
Notary Public
My Commission Expires:__________________
COUNTY OF ________________________
STATE OF ________________________
This instrument was executed before me and in my presence this ___ day of
____________, 20___, in _____________ County, _____________ by ________________.
________________________________________
Notary Public
My Commission Expires:__________________
COUNTY OF __________________________
STATE OF __________________________
The foregoing instrument was acknowledged before me this ___ day of __________,
20___, by _____________________________ of GMRI, Inc., a Florida
corporation, on behalf of the corporation.
________________________________________
Notary Public
My Commission Expires:__________________