As filed with the Securities and Exchange Commission on June 16, 2005
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Darling International Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware 36-2495346
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
251 O'Connor Ridge Boulevard, Suite 300
Irving, Texas 75038
972.717.0300
(Address of Principal Executive Offices)
DARLING INTERNATIONAL INC.
2004 OMNIBUS INCENTIVE PLAN
(Full Title of Plan)
Joseph R. Weaver, Jr.
General Counsel and Secretary
Darling International Inc.
251 O'Connor Ridge Boulevard, Suite 300
Irving, Texas 75038
972.717.0300
(Name, Address, and Telephone Number,
Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price Per Aggregate Offering Registration Fee
Share (2) Price (2)
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Common Stock, par value $0.01 per share 6,074,969 $3.70 $22,477,385 $2,646
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(1) The securities to be registered are issuable under the Darling
International Inc. 2004 Omnibus Incentive Plan. Pursuant to Rule 416(a) of
the General Rules and Regulations under the Securities Act of 1933, this
Registration Statement shall cover such additional securities as may be
offered or issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
(2) Estimated pursuant to Rule 457(c) and (h) solely for purposes of
calculating the registration fee. Estimated based on average of the high
and low prices of our common stock as reported on the American Stock
Exchange on June 10, 2005.
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PART I
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of this
Registration Statement on Form S-8 (this "Registration Statement") will be sent
or given to participants in the Darling International Inc. 2004 Omnibus
Incentive Plan as specified by Rule 428(b)(i) under the Securities Act of 1933
(the "Securities Act"). Such documents are not required to be, and are not
being, filed by Darling International Inc. with the Securities and Exchange
Commission, either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 under the Securities Act. Such
documents, together with the documents incorporated by reference herein pursuant
to Item 3 of Part II of this Registration Statement, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
Throughout this Registration Statement, the words "Darling," "we,"
"us," the "Company," and "our" refer to Darling International Inc. and its
consolidated subsidiaries.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Darling with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act") are incorporated by reference, as of their respective dates, in
this Registration Statement:
o Darling's Annual Report on Form 10-K for the fiscal year ended
January 1, 2005;
o Darling's Current Reports on Form 8-K filed with the Securities
and Exchange Commission on January 26, 2005, March 16, 2005,
March 17, 2005, May 12, 2005 and May 17, 2005; and
o the description of Darling's Common Stock, par value $0.01 per
share (the "Common Stock"), in Darling's registration statement
on Form 8-A (Registration No. 0-246201), filed September 4, 1997,
as amended, and including any amendment or report filed for the
purpose of updating such description.
In addition, all documents hereafter filed by Darling pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all such securities then remaining unsold shall
be deemed incorporated by reference in this Registration Statement and to be
part hereof from the date of filing of such documents. Any statement contained
herein or in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supercedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement. Copies of these documents
are not required to be filed with this Registration Statement.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify directors and officers, as well as
other employees and individuals, against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with any threatened, pending or completed actions,
suits or proceedings in which such person is made a party by reason of such
person being or having been a director, officer, employee or agent of such
corporation. The DGCL provides that Section 145 is not excluding other rights to
which those seeking indemnification may be entitled under any certificate of
incorporation, bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) for payments of unlawful
dividends or unlawful stock repurchases, redemptions or other distributions, or
(iv) for any transactions from which the director derived an improper personal
benefit. Article Ten of our Restated Certificate of Incorporation, as amended,
contains such a provision.
We have obtained a policy of directors' and officers' liability
insurance that insures our directors and officers against the cost of defense,
settlement or payment of a judgment under certain circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
Exhibit No. Description
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4.1 - Darling International Inc. 2004 Omnibus Incentive
Plan (incorporated by reference to Darling
International Inc.'s Report on Form 8-K dated May
17, 2005).
5.1 - Legal Opinion of Weil, Gotshal & Manges LLP (filed
herewith).
23.1 - Consent of Weil, Gotshal & Manges LLP (included in
Exhibit No. 5.1).
23.2 - Consent of KPMG LLP (filed herewith).
24.1 - Power of Attorney (included as part of the
signature page to this Registration Statement and
incorporated herein by reference).
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;
(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; 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) do not
apply if the information required to be included in a post-effective
amendment by the foregoing paragraphs is contained in periodic reports
filed with or furnished to the Securities and Exchange Commission by
the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
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(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 of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in
the Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant
to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed
by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Irving, State of Texas, on the 16 day of June, 2005.
DARLING INTERNATIONAL INC.
By: /s/ John O. Muse
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John O. Muse
Executive Vice President -
Finance and Administration
POWER OF ATTORNEY
The undersigned directors and officers hereby constitute and appoint
John O. Muse with full power to act and with full power of substitution and
resubstitution, our true and lawful attorney-in-fact with full power to execute
in our name and behalf in the capacities indicated below any and all amendments
to this Registration Statement on Form S-8 and, including post-effective
amendments to this Registration Statement on Form S-8, and to sign any and all
additional registration statements relating to the same offering of securities
as this Registration Statement on Form S-8 that are filed pursuant to the
requirements of the Securities Act of 1933, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission and hereby ratify and confirm that such
attorney-in fact or his substitute shall lawfully do or cause to be done by
virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of May 31, 2005.
Signature Title Date
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/s/ Randall C. Stuewe Chairman of the Board and May 31, 2005
----------------------------- Chief Executive Officer
Randall C. Stuewe
/s/ John. O. Muse Executive Vice President - Finance and May 31, 2005
----------------------------- Administration (Principal Financing and
John O. Muse Accounting Officer)
/s/ O. Thomas Albrecht Director May 31, 2005
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O. Thomas Albrecht
/s/ Kevin S. Flannery Director May 31, 2005
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Kevin S. Flannery
/s/ Fredric J. Klink Director May 31, 2005
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Fredric J. Klink
/s/ Charles Macaluso Director May 31, 2005
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Charles Macaluso
/s/ Michael Urbut Director May 31, 2005
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Michael Urbut
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EXHIBIT INDEX
Exhibit No. Description
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4.1 - Darling International Inc. 2004 Omnibus Incentive
Plan (incorporated by reference to Darling
International Inc.'s Report on Form 8-K dated May
17, 2005).
5.1 - Legal Opinion of Weil, Gotshal & Manges LLP (filed
herewith).
23.1 - Consent of Weil, Gotshal & Manges LLP (included in
Exhibit No. 5.1).
23.2 - Consent of KPMG LLP (filed herewith).
24.1 - Power of Attorney (included as part of the
signature page to this Registration Statement and
incorporated herein by reference).
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