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As filed with the Securities and Exchange Commission on December 23, 1997
Registration No. 333-36663
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
POST-EFFECTIVE AMENDMENT NO. 1
ON FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------
PILLOWTEX CORPORATION
(Exact name of registrant as specified in its charter)
TEXAS 75-2147728
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification
Number)
4111 MINT WAY
DALLAS, TEXAS 75237
(Address of principal executive offices)
1995 EMPLOYEE STOCK OPTION PLAN OF FIELDCREST CANNON, INC.
DIRECTOR STOCK OPTION PLAN OF FIELDCREST CANNON, INC.
STOCK OPTION AGREEMENT,
DATED AS OF SEPTEMBER 11, 1991,
BETWEEN FIELDCREST CANNON, INC. AND JAMES M. FITZGIBBONS
(Full title of the plans)
CHARLES M. HANSEN, JR.
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
PILLOWTEX CORPORATION
4111 MINT WAY
DALLAS, TEXAS 75237
(214) 333-3225
(Name, address, and telephone number, of agent for service)
----------------------
Copies to:
TROY B. LEWIS, ESQ.
JONES, DAY, REAVIS & POGUE
2300 TRAMMELL CROW CENTER
2001 ROSS AVENUE
DALLAS, TEXAS 75201
(214) 220-3939
----------------------
This Post-Effective Amendment No. 1 covers 164,154 shares of the Registrant's
common stock, par value $0.01 per share, originally registered on a Registration
Statement on Form S-4 to which this is an amendment. The registration fees in
respect of such common stock were paid at the time of the original filing of the
Registration Statement on Form S-4 relating to such common stock.
This Registration Statement also pertains to an indeterminate number of
additional shares of common stock pursuant to anti-dilution and adjustment
provisions of the above-referenced plans and agreement.
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INTRODUCTORY STATEMENT
Pillowtex Corporation ("Pillowtex") hereby amends its Registration
Statement on Form S-4 (No. 333-36663) by filing this Post-Effective Amendment
on Form S-8 relating to shares of its common stock, par value $0.01 per share
(the "Pillowtex Common Stock"), issuable upon the exercise of options
("Options") granted under the 1995 Employee Stock Option Plan of Fieldcrest
Cannon, Inc., the Director Stock Option Plan of Fieldcrest Cannon, Inc., and
the Stock Option Agreement, dated as of September 11, 1991, between Fieldcrest
Cannon, Inc. and James M. Fitzgibbons (collectively, the "Stock Option Plans").
On December 19, 1997, pursuant to the Agreement and Plan of Merger,
dated as of September 10, 1997, among Pillowtex, Pegasus Merger Sub, Inc.
("Merger Sub") and Fieldcrest Cannon, Inc. ("Fieldcrest"), among other things,
(i) Merger Sub was merged with and into Fieldcrest, (ii) each outstanding share
of common stock, par value $1.00 per share, of Fieldcrest ("Fieldcrest Common
Stock") (other than any shares held in the treasury of Fieldcrest, by any of its
subsidiaries, directly or indirectly by Pillowtex, or by stockholders, if any,
who properly exercised their appraisal rights) was converted into the right to
receive (a) a cash payment in an amount equal to $27.00 and (b) 0.269 shares of
Pillowtex Common Stock, and (iii) Fieldcrest became a wholly owned subsidiary of
Pillowtex.
Prior to the effective time (the "Effective Time") of the merger of
Merger Sub with and into Fieldcrest (the "Merger"), the Options were exercisable
to purchase shares of Fieldcrest Common Stock. As a result of the Merger, each
Option to purchase Fieldcrest Common Stock outstanding at the Effective Time
(other than those in respect of which the election to receive cash in settlement
thereof was made in accordance with the Merger Agreement) was assumed by
Pillowtex and became an Option to acquire, on substantially the same terms and
subject to substantially the same conditions as were applicable under such
Option, a number of shares of Pillowtex Common Stock (increased to the nearest
whole share) equal to the product of (i) the number of shares of Fieldcrest
Common Stock for which such Option was exercisable immediately prior to the
Effective Time and (ii) 1.308, at an exercise price per share of Pillowtex
Common Stock (increased to the nearest whole cent) equal to the quotient
obtained by dividing (a) the exercise price per share of Fieldcrest Common Stock
subject to such Option immediately prior to the Effective Time by (b) 1.308.
This Post-Effective Amendment relates only to the shares of Pillowtex
Common Stock issuable upon exercise of Options granted under the Stock Option
Plans.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents which have been filed by Pillowtex with the Securities
and Exchange Commission (the "Commission") are hereby incorporated by reference
in this Registration Statement: (i) Annual Report on Form 10-K for the year
ended December 28, 1996; (ii) Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 29, 1997, June 28, 1997, and September 27, 1997; (iii)
Current Reports on Form 8-K, dated September 10, 1997 (as amended by an
amendment on Form 8-K/A) and November 21, 1997; (iv) Proxy Statement on Schedule
14A for the Annual Meeting of Shareholders held May 8, 1997; and (v)
Registration Statement on Form 8-A, effective March 17, 1993 (Commission File
No. 1-11756).
All documents and reports subsequently filed by Pillowtex pursuant to
Section 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the date of this Post-Effective Amendment on
Form S-8 to Registration Statement on Form S-4 and prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all such
securities remaining unsold are deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the dates of filing of such
documents or reports. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein is deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded will not
be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under the Texas Business Corporation Act ("TBCA"), a corporation may
indemnify a person who was, is, or is threatened to be made a named defendant or
respondent in any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, arbitrative, or investigative, any
appeal in such an action, suit, or proceeding, or any inquiry or investigation
that could lead to such an action, suit, or proceeding (a "proceeding"), because
the person is or was a director of the corporation or, while a director of the
corporation, is or was serving at the request of the corporation as a director,
officer, partner, venturer, proprietor, trustee, employee, agent, or similar
functionary of another foreign or domestic corporation, employee benefit plan,
other enterprise, or other entity, but only if it is determined in the manner
described below that the person: (i) conducted himself in good faith; (ii)
reasonably believed (a) in the case of conduct in his official capacity as a
director of the corporation, that his conduct was in the corporation's best
interests, and (b) in all other cases, that his conduct was at least not opposed
to the corporation's best interests; and (iii) in the case of any criminal
proceeding, had no reasonable cause to believe his conduct was unlawful. Except
to the extent described in the next following sentence, a director may not be
indemnified under the TBCA in respect of a proceeding in which the person is
found liable on the basis that personal benefit was improperly received by him,
whether or not the benefit resulted from an action taken in the person's
official capacity, or in which the person is found liable to the corporation. A
person may be indemnified as described in the second preceding sentence against
judgments, penalties (including excise and similar taxes), fines, settlements,
and reasonable expenses (including court costs and attorneys' fees) actually
incurred by the person in connection with a proceeding, except that if the
person is found liable to the corporation or is found liable on the basis that
personal benefit was improperly received by the person, the indemnification (i)
is limited to reasonable expenses (including court costs and attorneys' fees)
actually incurred by the person in connection with the proceeding and (ii) will
not be made in respect of any proceeding in which the person shall have been
found liable for willful or intentional misconduct in the performance of his
duty to the corporation.
Under the TBCA, a corporation must indemnify a director against reasonable
expenses (including court costs and attorneys' fees) incurred by him in
connection with a proceeding in which he is a named defendant or respondent
because he is or was a director of the corporation or, while a director of the
corporation, is or was serving at the request of the corporation as a director,
officer, partner, venturer, proprietor, trustee, employee, agent, or similar
functionary of another foreign or domestic corporation, employee benefit plan,
other enterprise, or other entity, if he has been wholly successful, on the
merits or otherwise, in the defense of the proceeding.
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Under the TBCA, if, in a suit for the indemnification required as described in
the immediately preceding sentence, a court of competent jurisdiction determines
that the director is entitled to such indemnification, the court will order
indemnification and will award to the director the expenses (including court
costs and attorneys' fees) incurred in securing the indemnification. Under the
TBCA, if, upon application of a director, a court of competent jurisdiction
determines, after giving any notice the court considers necessary, that the
director is fairly and reasonably entitled to indemnification in view of all the
relevant circumstances, whether or not he has met the requirements for
indemnification described in the first sentence of the immediately preceding
paragraph or has been found liable in the circumstances described in the second
sentence of such paragraph, the court may order the indemnification that the
court determines is proper and equitable, except that if the person is found
liable to the corporation or is found liable on the basis that personal benefit
was improperly received by the person, the indemnification will be limited to
reasonable expenses (including court costs and attorneys' fees) actually
incurred by the person in connection with the proceeding.
A determination that indemnification as described in the first sentence of
the second preceding paragraph is permissible must be made: (i) by a majority
vote of a quorum consisting of directors who at the time of the vote are not
named defendants or respondents in the proceeding; (ii) if such a quorum cannot
be obtained, by a majority vote of a committee of the board of directors,
designated to act in the matter by a majority vote of all directors, consisting
solely of two or more directors who at the time of the vote are not named
defendants or respondents in the proceeding; (iii) by special legal counsel
selected by the board of directors or a committee of the board by vote as
described in clauses (i) and (ii) above, or, if such a quorum cannot be obtained
and such a committee cannot be established, by a majority vote of all directors;
or (iv) by the shareholders in a vote that excludes the shares held by directors
who are named defendants or respondents in the proceeding. Under the TBCA,
authorization of indemnification and determination as to reasonableness of
expenses must be made in the same manner as the determination that
indemnification is permissible, except that if the determination that
indemnification is permissible is made by special legal counsel, authorization
of indemnification and determination as to reasonableness of expenses must be
made in the manner described in clause (iii) of the immediately preceding
sentence for the selection of special legal counsel; a provision contained in
the articles of incorporation, the bylaws, a resolution of shareholders or
directors, or an agreement that makes mandatory the indemnification permitted
under the TBCA will be deemed to constitute authorization of indemnification in
the manner required by the TBCA even though such provision may not have been
adopted or authorized in the same manner as the determination that
indemnification is permissible. The TBCA provides that reasonable expenses
(including court costs and attorneys' fees) incurred by a director who was, is,
or is threatened to be made a named defendant or respondent in a proceeding may
be paid or reimbursed by the corporation, in advance of the final disposition of
the proceeding and without the determination, authorization, or determination
described above, after the corporation receives a written affirmation by the
director of his good faith belief that he has met the standard of conduct
necessary for indemnification and a written undertaking by or on behalf of the
director to repay the amount paid or reimbursed if it is ultimately determined
that he has not met the standard or if it is ultimately determined that
indemnification of the director against expenses incurred by him in connection
with that proceeding is prohibited by the TBCA; a provision contained in the
articles of incorporation, the bylaws, a resolution of shareholders or
directors, or an agreement that makes mandatory the payment or reimbursement of
expenses permitted under the TBCA will be deemed to constitute authorization of
that payment or reimbursement.
Under the TBCA, an officer of the corporation must be indemnified as, and
to the same extent described in the second preceding paragraph, for a director.
A corporation may indemnify and advance expenses to an officer, employee, or
agent of the corporation to the same extent that it may indemnify and advance
expenses to directors as described above. In addition, under the TBCA, a
corporation may indemnify and advance expenses to persons who are not or were
not officers, employees, or agents of the corporation but who are or were
serving at the request of the corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another foreign or domestic corporation, employee benefit plan, other
enterprise, or other entity, to the same extent that it may indemnify and
advance expenses to directors.
Under the TBCA, a corporation may purchase and maintain insurance or
another arrangement on behalf of any person who is or was a director, officer,
employee, or agent of the corporation or who is or was serving at the request of
the corporation as a director, officer, partner, venturer, proprietor, trustee,
employee, agent, or similar functionary of another foreign or domestic
corporation, employee benefit plan, other enterprise, or other entity, against
any liability asserted against him and incurred by him in such a capacity or
arising out of his status
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as such a person, whether or not the corporation would have the power to
indemnify him against that liability under the TBCA.
The Pillowtex Articles do not address indemnification of directors,
officers, or other persons. However, the Pillowtex Bylaws provide that: (i)
Pillowtex will indemnify persons who are or were directors or officers (both in
their capacities as directors and officers and, if serving at the request of
Pillowtex as a director, officer, trustee, employee, agent, or similar
functionary of another foreign or domestic corporation, trust, partnership,
joint venture, sole proprietorship, employee benefit plan, or other enterprise,
in each of those capacities) to the full extent permitted by the TBCA; (ii)
Pillowtex will pay or reimburse, in advance of the final disposition of any
proceeding, to all persons who are or were directors or officers of Pillowtex
all reasonable expenses incurred by such persons to the full extent permitted by
the TBCA; and (iii) Pillowtex will indemnify persons who are or were employees
or agents (other than directors or officers), or persons who are not or were not
employees or agents but who are or were serving at the request of Pillowtex as
directors, officers, trustees, employees, agents, or similar functionaries of
another foreign or domestic corporation, trust, partnership, joint venture, sole
proprietorship, employee benefit plan or other enterprise (collectively,
together with the directors and officers, "Corporate Functionaries"), to the
full extent permitted by the TBCA. The Pillowtex Bylaws also provide that
Pillowtex may purchase or maintain insurance on behalf of any Corporate
Functionary against any liability asserted against him and incurred by him in
such a capacity or arising out of his status as a Corporate Functionary, whether
or not Pillowtex would have the power to indemnify him against the liability
under the TBCA or the Pillowtex Bylaws.
Pillowtex has entered into Indemnification Agreements with each of its
directors pursuant to which Pillowtex has agreed to indemnify the directors to
the full extent authorized or permitted by the TBCA.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
4.1 -- Agreement and Plan of Merger, dated as of September 10, 1997,
by and among Pillowtex Corporation, Pegasus Merger Sub, Inc.,
and Fieldcrest Cannon, Inc. (incorporated by reference to
Appendix A to the Joint Proxy Statement/Prospectus forming a
part of Pillowtex Corporation's Registration Statement on Form
S-4 (No. 333-36663) (the "S-4 Registration Statement"))
4.2 -- Amendment to Agreement and Plan of Merger, dated as of
September 23, 1997, by and among Pillowtex Corporation, Pegasus
Merger Sub, Inc., and Fieldcrest Cannon, Inc. (incorporated by
reference to Appendix A to the Joint Proxy Statement/Prospectus
forming a part of the S-4 Registration Statement)
4.3 -- Specimen of Certificate evidencing Common Stock (incorporated
by reference to Exhibit 4.2 to Pillowtex Corporation's Annual
Report on Form 10-K for the fiscal year ended December 31,
1993)
4.4 -- Restated Articles of Incorporation, as amended (incorporated by
reference to Exhibit 3.1 to Pillowtex Corporation's
Registration Statement on Form S-1 (No. 33-57314) filed on
January 22, 1993)
4.5 -- Statement of Resolution for Series A Redeemable Convertible
Preferred Stock of Pillowtex Corporation
4.6 -- Amended and Restated Bylaws, as amended (incorporated by
reference to Exhibit 3.2 to Pillowtex Corporation's Annual
Report on Form 10-K for the fiscal year ended December 30,
1994)
5.1 -- Opinion of Jones, Day, Reavis & Pogue (incorporated by
reference to Exhibit 5.1 to the S-4 Registration Statement)
23.1 -- Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1)
23.2 -- Consent of KPMG Peat Marwick LLP
24.1 -- Powers of Attorney (incorporated by reference to Exhibit 5.1 to
the S-4 Registration Statement)
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ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, 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 this 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 this 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 and of the estimated
maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement.
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8, or Form F-3, and 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
Commission by the registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment will be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time will 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 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 an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in this Registration Statement will be deemed to be a new Registration Statement
relating to the securities offered herein, and the offering of such securities
at that time will 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 Commission 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.
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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 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 Dallas, State of Texas on December 23, 1997.
PILLOWTEX CORPORATION
By /s/ CHARLES M. HANSEN, JR.
---------------------------------
Charles M. Hansen, Jr.
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on December 23, 1997.
<TABLE>
<CAPTION>
Signatures Title
---------- -----
<S> <C>
/s/ CHARLES M. HANSEN, JR. Chairman of the Board and Chief Executive Officer; Director
- ----------------------------------- (Principal Executive Officer)
Charles M. Hansen, Jr.
JEFFREY D. CORDES* President and Chief Operating Officer; Director
- ----------------------------------- (Principal Financial and Accounting Officer)
Jeffrey D. Cordes
CHRISTOPHER N. BAKER* Director
- -----------------------------------
Christopher N. Baker
KEVIN M. FINLAY* Director
- -----------------------------------
Kevin M. Finlay
SCOTT E. SHIMIZU* Director
- -----------------------------------
Scott E. Shimizu
MARY R. SILVERTHORNE* Director
- -----------------------------------
Mary R. Silverthorne
WILLIAM B. MADDEN* Director
- -----------------------------------
William B. Madden
M. JOSEPH MCHUGH* Director
- -----------------------------------
M. Joseph McHugh
PAUL G. GILLEASE* Director
- -----------------------------------
Paul G. Gillease
RALPH LA ROVERE* Director
- -----------------------------------
Ralph La Rovere
</TABLE>
*The undersigned, by signing his name hereto, does sign and execute this
Registration Statement pursuant to the Powers of Attorney executed on behalf of
the above-named officers and directors and filed herewith.
/s/ CHARLES M. HANSEN, JR.
---------------------------
Charles M. Hansen, Jr.
Attorney-in-Fact
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INDEX TO EXHIBITS
Exhibit No. Description
- ----------- -----------
4.1 Agreement and Plan of Merger, dated as of September
10, 1997, by and among Pillowtex Corporation, Pegasus
Merger Sub, Inc., and Fieldcrest Cannon, Inc.
(incorporated by reference to Appendix A to the Joint
Proxy Statement/Prospectus forming a part of
Pillowtex Corporation's Registration Statement on
Form S-4 (No. 333-36663) (the "S-4 Registration
Statement"))
4.2 Amendment to Agreement and Plan of Merger, dated as
of September 23, 1997, by and among Pillowtex
Corporation, Pegasus Merger Sub, Inc., and Fieldcrest
Cannon, Inc. (incorporated by reference to Appendix A
to the Joint Proxy Statement/Prospectus forming a
part of the S-4 Registration Statement)
4.3 Specimen of Certificate evidencing Common Stock
(incorporated by reference to Exhibit 4.2 to
Pillowtex Corporation's Annual Report on Form 10-K
for the fiscal year ended December 31, 1993)
4.4 Restated Articles of Incorporation, as amended
(incorporated by reference to Exhibit 3.1 to
Pillowtex Corporation's Registration Statement on
Form S-1 (No. 33-57314) filed on January 22, 1993)
4.5 Statement of Resolution for Series A Redeemable
Convertible Preferred Stock of Pillowtex Corporation
4.6 Amended and Restated Bylaws, as amended (incorporated
by reference to Exhibit 3.2 to Pillowtex
Corporation's Annual Report on Form 10-K for the
fiscal year ended December 30, 1994)
5.1 Opinion of Jones, Day, Reavis & Pogue (incorporated
by reference to Exhibit 5.1 to the S-4 Registration
Statement)
23.1 Consent of Jones, Day, Reavis & Pogue (included in
Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick LLP
24.1 Powers of Attorney (incorporated by reference to
Exhibit 5.1 to the S-4 Registration Statement)
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Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Pillowtex Corporation:
We consent to the use of our report incorporated herein by reference.
/s/ KPMG PEAT MARWICK LLP
Dallas, Texas
December 23, 1997
