<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 9, 1999.
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
DAN RIVER INC.
(Exact name of registrant as specified in its charter)
GEORGIA 58-1854637
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
DAN RIVER INC.
2291 MEMORIAL DRIVE
DANVILLE, VIRGINIA 24541
(804) 799-7000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
HARRY L. GOODRICH, ESQ.
2291 MEMORIAL DRIVE
DANVILLE, VIRGINIA 24541
(804) 799-7000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
MARY A. BERNARD
KING & SPALDING
1185 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 556-2100
--------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after the effective date of this Registration Statement, as determined in
light of market conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================================
Proposed Maximum Proposed Maximum
Title of Shares Amount to be Aggregate Price Aggregate Amount of
to be Registered Registered Per Share(1) Offering Price(1) Registration Fee
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, par value $.01
per share ................................. 9,224,263 $7.375 $68,028,939 $18,913.05
=================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
<PAGE> 3
PROSPECTUS
DAN RIVER INC.
9,224,263 SHARES CLASS A COMMON STOCK
(PAR VALUE $.01 PER SHARE)
---------------
This prospectus relates to the offering from time to time of up to
9,224,263 shares of Class A Common Stock of Dan River Inc. by certain of our
shareholders. We will not receive any of the proceeds from the sale of the
shares being offered. We are registering the resale of these shares, but the
registration of such shares does not necessarily mean that any of such shares
will be offered or sold by the selling shareholders.
The selling shareholders from time to time may offer and sell the shares
directly to purchasers or through agents, underwriters or dealers on terms to be
determined at the time of sale. If required, the names of any agents,
underwriters or dealers and any other required information will be set forth in
an accompanying prospectus supplement.
The Class A Common Stock is listed on the New York Stock Exchange under
the symbol "DRF." On April 7, 1999, the last sale price of the Class A Common
Stock as reported on the New York Stock Exchange Composite Tape was $7.625 per
share. Shares of Class A Common Stock offered pursuant to this prospectus are
listed on the New York Stock Exchange.
Investing in the Class A Common Stock involves certain risks. See "Risk
Factors" beginning on page 3 for a discussion of these risks.
Neither the Securities and Exchange Commission nor any State Securities
Commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is April __, 1999
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<S> <C>
About this Prospectus.............................................. 1
Where You Can Find More Information................................ 1
The Company........................................................ 2
Risk Factors....................................................... 3
Use of Proceeds.................................................... 7
Selling Shareholders............................................... 7
Plan of Distribution............................................... 9
Validity of Class A Common Stock................................... 9
Experts............................................................ 10
</TABLE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission using a "shelf" registration process.
Under this shelf process, certain of our shareholders (the "selling
shareholders") may sell up to an aggregate of 9,224,263 shares of Class A Common
Stock in one or more offerings. This prospectus provides you with a general
description of the Class A Common Stock. You should read this prospectus and any
applicable prospectus supplement provided to you together with the additional
information described under the heading "Where You Can Find More Information."
The registration statement that contains this prospectus (including the
exhibits to the registration statement) contains additional information about
our company and the securities offered under this prospectus. That registration
statement can be read at the SEC web site or at the SEC offices mentioned under
the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. The Company's SEC filings are available to the
public over the Internet at the SEC's web site at http://www.sec.gov. You may
also read and copy any document we file with the SEC at its public reference
facilities at 450 Fifth Street, N.W., Washington, D.C. 20549. You can also
obtain copies of the documents at prescribed rates by writing to the Public
Reference Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549.
Please call the SEC at 1-800-SEC-0330 for further information on the operation
of the public reference facilities. Our SEC filings are also available at the
office of the New York Stock Exchange, 20 Broad Street, New York, New York
10005. For further information on obtaining copies of the Company's filings at
the New York Stock Exchange, you should call (212-656-5282).
The SEC allows us to "incorporate by reference" into this prospectus the
information that we file with the SEC, which means that we disclose important
information to you by referring to such documents. The information incorporated
by reference is an important part of this prospectus and the accompanying
prospectus supplement. In addition, any information that we file with the SEC
subsequent to the date of this prospectus will automatically update this
prospectus. We incorporate by reference the documents listed below and any
filings that we make with the SEC under sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 after the initial filing of the registration
statement that contains this prospectus and
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<PAGE> 5
prior to the time that the selling shareholders sell all of the Class A Common
Stock offered by this prospectus:
- Annual Report on Form 10-K for fiscal year ended January 2,
1999.
- Current Reports on Form 8-K filed on October 27, 1998 and April
9, 1999.
- Current Report on Form 8-K/A Amendment No. 1 (to Form 8-K filed
on October 27, 1998) filed on April 9, 1999.
- The description of the Class A Common Stock included in our
Registration Statement on Form 8-A dated September 26, 1997.
You may request a copy of these filings (other than an exhibit to a
filing unless that exhibit is specifically incorporated by reference into that
filing) at no cost, by writing to or telephoning us at the following address:
General Counsel
Dan River Inc.
2291 Memorial Drive
Danville, Virginia 24541
(804) 799-7122
You should only rely on the information incorporated by reference or set
forth in this prospectus or any applicable prospectus supplement. We have not
authorized anyone else to provide you with different information. We are only
offering these securities in states where the offer is permitted. You should not
assume that the information in this prospectus or the applicable prospectus
supplement is accurate as of any date other than the dates on the front of such
documents.
THE COMPANY
Founded in 1882, we are a leading manufacturer and marketer of textile
products for the home fashions and apparel fabrics markets. We design,
manufacture and market a coordinated line of value-added home fashions products
consisting of bedroom furnishings such as comforters, sheets, pillowcases,
shams, bed skirts, decorative pillows and draperies. We also manufacture and
market a broad range of high quality woven cotton and cotton-blend apparel
fabrics and believe that we are the leading supplier of men's dress shirting
fabrics in the Western Hemisphere (based on net sales). As a result of the
acquisition of The Bibb Company in October 1998, we now manufacture and sell
specialty engineered textile products for use in making high-pressure hoses and
other industrial products.
The Company is incorporated under the laws of the State of Georgia. Our
principal executive offices are located at 2291 Memorial Drive, Danville,
Virginia 24541, and our telephone number is (804) 799-7000. Unless the context
otherwise requires, all references to the Company include its consolidated
subsidiaries.
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<PAGE> 6
RISK FACTORS
You should carefully consider the following factors and other
information in this prospectus before deciding to invest in shares of Class A
Common Stock.
CYCLICAL NATURE OF TEXTILE INDUSTRY
Domestic demand for textile products tends to vary with the business
cycle of the U.S. economy. In addition, the popularity, supply and demand for
particular textile products may change significantly from year to year based
upon prevailing fashion trends and other factors. These factors historically
have contributed to fluctuations in the sales and profitability of certain
textile products and in our results of operations. A decline in the demand for
textile products or an increase in the supply of textile products due to
expansion of capacity within the textile industry could have a material adverse
effect on our results of operations and financial condition. Changes in fashion
trends or deteriorating economic conditions also could have such a material
adverse effect.
The demand for our products and the level of our sales fluctuate
moderately during the year, based upon historical buying trends. Generally, we
experience increased retail demand for home fashions products during the fall
and Christmas holiday seasons and for apparel fabrics during the same seasons as
well as for Father's Day. As a result, we generally sell more home fashions
during our third and fourth fiscal quarters when demand for home fashions is
generally higher and more apparel fabrics during the first and second quarters
when demand for apparel fabrics is greatest.
INTENSE COMPETITION
We compete in the textile industry, which is highly competitive. We sell
our products primarily to domestic customers. Our competitors include large,
vertically integrated textile manufacturers as well as numerous smaller
companies specializing in limited segments of the market. These competitors are
both domestic and foreign, and include a number of companies that are larger
than we are and have greater financial resources. Increases in domestic capacity
and imports of foreign-made textile and apparel products are a significant
source of competition for us and for many domestic textile manufacturers.
Competition in the form of imported textile and apparel products, pricing
strategies of domestic competitors and the proliferation of newly styled fabrics
competing for fashion acceptance have affected our business environment. The
primary competitive factors in our industry are price, product styling and
differentiation, quality, manufacturing flexibility, delivery time and customer
service. The importance of each of these factors is determined by particular
customers and the characteristics of particular products. If one or more of our
competitors gains an advantage with respect to any key competitive factor, our
business could be materially adversely affected.
POSSIBLE ADVERSE EFFECT OF FLUCTUATIONS IN PRICE AND AVAILABILITY OF COTTON
Our primary raw material is cotton. By law, U.S. textile companies are
generally prohibited from importing cotton, subject to certain exceptions which
take effect primarily when U.S. cotton prices exceed world cotton prices for a
period of time. Any disparity between U.S. and world cotton prices could
create a competitive disadvantage for us and other domestic textile
manufacturers. The U.S. government has from time to time taken action to
improve price imbalances, but there can be no assurance that this will be the
case in the future. Cotton prices may increase or decrease depending on general
economic conditions, supply and
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<PAGE> 7
demand and other market variables at the time. Further, since cotton is an
agricultural product, its supply and quality are subject to forces of nature. To
the extent cotton prices increase for any reason, the increase could have a
material adverse effect on our results of operations and financial condition.
We purchase cotton primarily in the domestic market directly from
merchants or through brokers. Generally, we seek to purchase sufficient amounts
of cotton to cover existing order commitments; however, we may purchase cotton
in advance of orders on terms that we deem advantageous, and while we do not
speculate on the price of cotton, we may hedge prices from time to time through
forward contracts and in the futures and options markets. These transactions
could result in higher costs to us and are not guaranteed to protect us from
fluctuations in cotton prices.
SUBSTANTIAL CAPITAL REQUIREMENTS
The textile manufacturing industry is capital intensive. In order to
maintain our competitive position, we must continually modernize our
manufacturing processes, plants and equipment. This modernization process can
involve substantial capital investments. Over the last five fiscal years, we
have invested approximately $140 million in capital improvements. These capital
improvements are designed to reduce manufacturing costs, enhance manufacturing
flexibility and improve product quality and responsiveness to customers. We
generally finance our capital improvements with cash from operations, vendor
financing and borrowings under our credit facilities. If we cannot obtain
sufficient funds from these sources, we may be required to seek alternative
sources of financing or curtail or delay our capital spending plans. We cannot
be certain that such financing will be available when needed or, if available,
that it will be on terms acceptable to us. If we are unable to make capital
improvements necessary to continue modernizing our manufacturing operations and
reduce our costs, our competitive position could be adversely effected. This may
have a material adverse effect on our results of operations and financial
condition.
POSSIBLE ADVERSE EFFECT OF GOVERNMENT POLICY AND IMPORT REGULATIONS
The domestic textile market is subject to various U.S. governmental
policies affecting product supply. The extent of import protection afforded by
the U.S. government to domestic textile producers is subject to considerable
domestic political deliberation. Foreign producers of textile products that
compete with some of our products have labor cost advantages. Given the number
of these foreign producers, if import protections that protect us and other
domestic textile manufacturers are substantially eliminated, our business could
be materially, adversely affected. In January 1995, a multilateral trade
organization, the World Trade Organization ("WTO"), was established to replace
the General Agreement on Tariffs and Trade ("GATT"). This new body has set forth
the mechanisms to phase out over time quotas and duties on textile and clothing
trade. The implementation began in January 1995 with the phasing-out of quotas
and the reduction of duties to take place over a 10-year period. The selection
of products at each phase is made by each importing country and must be drawn
from each of the four main textile groups: tops and yarns, fabrics, made-up
textile products and apparel. The elimination of quotas and the reduction of
tariffs under the WTO may result in increased imports of certain textile
products and apparel into North America. These factors could make our products
less competitive against low cost imports from developing countries.
NAFTA, which was entered into by Canada, Mexico and the United States
and became effective on January 1, 1994, has created the world's largest
free-trade zone. The agreement contains safeguards that were sought by the U.S.
textile industry, including a rule of origin requirement that products be
processed in one of the three countries in order to benefit from NAFTA. NAFTA
will phase out all trade restrictions
4
<PAGE> 8
and tariffs on textiles and apparel among the three countries. In addition,
NAFTA requires merchandise to be made from yarns and fabrics originating in
North America in order to avoid trade restrictions. Thus, not only must apparel
be made from North American fabric but the fabric must be woven from North
American spun yarn. There can be no assurance that the removal of these barriers
to trade will not have a material adverse effect on our results of operations
and financial condition.
SUBSTANTIAL LEVERAGE; ABILITY TO SERVICE DEBT
We have substantial indebtedness and significant debt service
requirements. As of February 6, 1999, our aggregate outstanding indebtedness was
$347 million, which was 57% of our total capitalization as of such date. Our
high degree of leverage could have important consequences to our shareholders,
including the following:
- It may be difficult for us to obtain additional financing,
whether for working capital, capital expenditures, acquisitions
or other purposes;
- We must use a substantial portion of our cash from operations to
pay principal and interest on our indebtedness, which reduces
funds available for other purposes;
- We may be less flexible in planning for or reacting to changes
in market conditions; and
- We may be more vulnerable in the event of a downturn in our
business.
If we are unable to finance our business and expansion plans due to our
leverage, or if we default under our indebtedness, our business would be
materially, adversely affected.
IMPACT OF RESTRICTIVE COVENANTS ON ABILITY TO OBTAIN ADDITIONAL FINANCING
Our credit agreement and indenture governing our senior subordinated
notes restrict our ability to, among other things (i) incur additional
indebtedness, (ii) place liens on assets, (iii) sell assets, (iv) engage in
mergers or consolidations, (v) pay dividends, (vi) engage in certain
transactions with affiliates and (vii) enter into sale and leaseback
transactions. Under our credit agreement, we are also required to comply with
certain financial ratios. These limitations and requirements may restrict our
ability to obtain additional financing for working capital, capital
improvements, acquisitions or general corporate purposes.
ACQUISITION RISKS
We completed the acquisition of the New Cherokee Corporation in February
1997 and the acquisition of The Bibb Company in October 1998. In the future, we
may seek additional acquisition opportunities that enhance our business. We
cannot ensure that we will be successful in identifying suitable acquisition
candidates, completing acquisitions, integrating acquired operations into our
existing operations or expanding into new markets. We also cannot ensure that
future acquisitions will not have an adverse effect upon our operating results,
particularly in the fiscal quarters immediately following the completion of such
acquisitions while we are integrating the acquired business into our operations.
Once integrated, acquired operations may not achieve levels of revenues,
profitability or productivity comparable with those achieved by our existing
operations, or otherwise perform as expected. In addition, we compete for
acquisition and expansion opportunities with companies that have substantially
greater resources.
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<PAGE> 9
POTENTIAL UNFORESEEN ENVIRONMENTAL LIABILITIES OR COSTS
We are subject to various federal, state and local environmental laws
and regulations. These laws and regulations limit the discharge of pollutants
and the storage, handling and disposal of a variety of substances, including
some substances that contain constituents considered hazardous under
environmental laws. Our dyeing and finishing operations result in the discharge
of substantial quantities of wastewater and emissions to the atmosphere. Our
operations also are governed by laws and regulations relating to workplace
safety and worker health. Among other things, these laws and regulations
establish cotton dust, formaldehyde, asbestos and noise standards, and regulate
the use of hazardous chemicals in the workplace. Treatment costs of air
emissions and wastewater discharges, as well as other costs of environmental
compliance, have increased moderately over the past several years. We do not
know whether compliance with environmental or health and safety laws and
regulations will materially adversely affect our operations in the future. In
addition, we cannot predict what environmental or health and safety legislation
or regulations will be enacted in the future or how existing or future laws or
regulations will be enforced, administered or interpreted. We also are unable to
predict the amount of future expenditures which may be required in order to
comply with any such environmental or health and safety laws or regulations.
CUSTOMER CONCENTRATION
We market home fashions products, apparel fabrics and engineered
products to over 3,000 customers. During fiscal 1998, our top five home fashions
products customers and apparel fabrics customers accounted for 46% and 31%,
respectively, of our net sales attributable to home fashions products and
apparel fabrics. Our largest home fashions products customer and apparel fabrics
customer accounted for 13% and 4%, respectively, of our net sales in fiscal
1998. The loss of any of our top five home fashions products customers or
apparel fabrics customers could have a material adverse effect on our net sales
attributable to such product lines.
RELIANCE ON KEY MANAGEMENT
Our success depends upon the talents and efforts of a small number of
key management personnel, including Joseph L. Lanier, Jr., our Chairman and
Chief Executive Officer, Richard L. Williams, our President and Chief Operating
Officer, and Barry F. Shea, our Executive Vice President--Chief Financial
Officer. The loss of such management personnel could have an adverse effect on
our business.
SUBSTANTIAL INFLUENCE OF PRINCIPAL SHAREHOLDERS
As of March 31, 1999, certain of our senior executive officers and their
families controlled approximately 31% of the combined outstanding voting power
of all classes of our common stock. As a result, with limited exception, such
persons exert substantial influence with respect to all matters submitted to a
vote of holders of common stock, including election of our directors. Moreover,
pursuant to a voting agreement, Mr. Lanier votes all shares of our supervoting
common stock, the Class B Common Stock, which comprises approximately 30% of the
combined outstanding voting power of all classes of our common stock.
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<PAGE> 10
USE OF PROCEEDS
Dan River Inc. (the "Company") will not receive any of the proceeds from
the sale of the shares of Class A Common Stock offered by the selling
shareholders under this prospectus but has agreed to bear certain expenses
associated with registering such shares under Federal and state securities laws.
The Company is registering the shares for sale to provide the holders thereof
with freely tradeable securities, but the registration of such shares does not
necessarily mean that any of such shares will be offered or sold by the holders
thereof.
SELLING SHAREHOLDERS
The following table sets forth, as of March 31, 1999, (i) the names of
the selling shareholders, (ii) the number of shares of Class A Common Stock
owned by each selling shareholder prior to this offering and (iii) the maximum
number of shares of Class A Common Stock offered by each selling shareholder
under this prospectus. Because the selling shareholders may sell all, some or
none of the Class A Common Stock offered under this prospectus, no estimate can
be given as to the amount of Class A Common Stock that will be held by the
selling shareholders upon termination of the offering. See "Plan of
Distribution." None of the selling shareholders has, or within the past three
years has had, any position, office or other material relationship with the
Company or any of its predecessors or affiliates.
Of the 9,224,263 shares of Class A Common Stock covered by this
prospectus, (i) 2,515,540 shares were acquired by certain selling shareholders
pursuant to the Agreement and Plan of Merger (the "Merger Agreement"), dated
June 28, 1998, as amended, providing for the merger of DR Acquisition Corp., a
Delaware corporation and wholly owned subsidiary of the Company, with and into
The Bibb Company, a Delaware corporation ("Bibb") and (ii) 6,708,723 shares are
held by an existing shareholder of the Company. Pursuant to the Merger
Agreement, the Company agreed to file a shelf registration statement promptly
after the merger covering the Class A Common Stock received by certain of the
selling shareholders in the merger.
<TABLE>
<CAPTION>
NUMBER OF SHARES
BENEFICIALLY OWNED MAXIMUM NUMBER OF
NAME OF SELLING SHAREHOLDER PRIOR TO THE OFFERING SHARES BEING OFFERED
- ---------------------------------------------------------------- --------------------------- ------------------------
<S> <C> <C>
Mezzanine Investment Limited
Partnership BDR (1)............................................. 6,708,723 6,708,723
Franklin Custodian Funds, Inc.,
Income Series (2)............................................... 866,285 866,285
Franklin Valuemark Funds,
Income Securities Fund (2)...................................... 173,256 173,256
Merrill Lynch, Pierce, Fenner
& Smith Incorporated (2)......................................... 856,642 856,642
Penn Capital Management
Company, Inc. (2) (3)........................................... 619,357 619,357
---------- ----------
</TABLE>
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<PAGE> 11
<TABLE>
<S> <C> <C>
Total........................................................... 9,224,263 9,224,263
========= =========
</TABLE>
(1) Reflects shares of stock beneficially owned by Mezzanine Investment
Limited Partnership-BDR ("MILP") whose address is One Madison Avenue,
New York, New York 10010. The general partner of MILP is 23rd Street
Investments, Inc. ("23rd Street Investments"), a wholly-owned subsidiary
of Metropolitan Life Insurance Company. 23rd Street Investments has sole
voting and investment power with respect to the Class A Common Stock
beneficially owned by MILP. As a result, 23rd Street Investments is
deemed to beneficially own the shares of Class A Common Stock
beneficially owned by MILP.
(2) Represents shares acquired pursuant to the Merger Agreement.
(3) Reflects shares of stock beneficially owned by Penn Capital Management
Company, Inc. ("Penn Capital"). Richard and Marcia Hocker are directors
and majority shareholders of Penn Capital and exercise voting and
investment power with respect to the shares of Class A Common Stock
owned by Penn Capital. As a result, Richard and Marcia Hocker are deemed
to beneficially own all of the shares of Class A Common Stock
beneficially owned by Penn Capital. Mr. and Mrs. Hocker disclaim
beneficial ownership of all of the shares of Class A Common Stock owned
by Penn Capital other than 64,259 shares of Class A Common Stock.
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<PAGE> 12
PLAN OF DISTRIBUTION
The sale of Class A Common Stock by selling shareholders pursuant to
this prospectus may be effected from time to time in one or more transactions at
a fixed price or prices, which may be changed, at market prices prevailing at
the time of sale, at prices related to such prevailing market prices or at
negotiated prices.
The selling shareholders may from time to time offer and sell the shares
directly to purchasers or through agents, underwriters or dealers. Such sales
may be in the form of secondary distributions, exchange distributions, block
trades, ordinary brokerage transactions or a combination of such methods of
sale. Agents or underwriters acting on behalf of any selling shareholder may
receive compensation from the selling shareholder or from purchasers of the
Class A Common Stock for whom they act as agent in the form of discounts,
concessions or commissions. Underwriters may sell the Class A Common Stock to or
through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agents. Agents, underwriters and
dealers that participate in the distribution of Class A Common Stock may be
deemed to be underwriters for purposes of the Securities Act of 1933, as amended
(the "Act"), and any discounts, concessions or commissions received by them from
any selling shareholder and any profit on the resale of Class A Common Stock by
them may be deemed to be underwriting discounts and commissions under the Act.
At a time a particular offer of shares is made, a prospectus supplement,
if required, will be distributed that will set forth the names of any agents,
underwriters or dealers and any compensation from the selling shareholders and
any other required information.
In order to comply with the securities laws of certain states, if
applicable, the shares may be sold only through registered or licensed brokers
or dealers. In addition, in certain states, the shares may not be sold unless
they have been registered or qualified for sale in such state or an exemption
from such registration or qualification requirement is available and is complied
with.
We estimate that we will spend approximately $90,000 for expenses in
connection with the offering of shares by the selling shareholders.
Agents, underwriters or dealers may engage in transactions with or
perform services for us in the ordinary course of business.
VALIDITY OF CLASS A COMMON STOCK
The validity of the Class A Common Stock offered hereby will be passed
upon for the Company by King & Spalding, New York, New York.
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<PAGE> 13
EXPERTS
The consolidated financial statements of the Company appearing in the
Company's Annual Report on Form 10-K for the year ended January 2, 1999 have
been audited by Ernst & Young LLP, independent auditors, as set forth in their
report thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
The financial statements of The Bibb Company at January 3, 1998 and
December 28, 1996 and for the year ended January 3, 1998, the three months ended
December 28, 1996, the nine months ended September 28, 1996 and the year ended
December 30, 1995, incorporated herein by reference to the Company's Current
Report on Form 8-K filed on October 27, 1998, as amended by the Company's
Current Report on Form 8-K/A Amendment No. 1, have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their report with
respect thereto, and are incorporated herein in reliance upon the authority of
said firm as experts in giving said report.
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<PAGE> 14
================================================================================
9,224,263 Shares
DAN RIVER INC.
Common Stock
-------------
PROSPECTUS
-------------
April ___, 1999
================================================================================
<PAGE> 15
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
SEC registration fee.............................................................. $18,913
Legal fees and expenses........................................................... 20,000
Blue sky fees and expenses........................................................ 2,000
Accounting fees and expenses...................................................... 20,000
Printing expenses................................................................. 10,000
Miscellaneous..................................................................... 19,087
------
Total................................................................... $90,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Amended and Restated Articles of Incorporation (the
"Restated Charter") eliminate, to the fullest extent permitted by applicable
law, the personal liability of directors to the Company or its shareholders for
monetary damages for breaches of such directors' duty of care or other duties as
a director. This provision of the Restated Charter will limit the remedies
available to a shareholder in the event of breaches of any director's duties to
such shareholder or the Company. Under current Georgia law, the Restated Charter
does not provide for the elimination of or any limitation on the personal
liability of a director for (i) any appropriation, in violation of the
director's duties, of any business opportunity of the Company, (ii) acts or
omissions which involve intentional misconduct or a knowing violation of law,
(iii) unlawful corporate distributions or (iv) any transactions from which the
director received an improper personal benefit.
Under the Company's Bylaws, the Company shall indemnify to the fullest
extent permitted under the GBCC any person made a party to a proceeding because
he or she is or was a director or officer of the Company, if he or she acted in
a manner he or she believed in good faith to be in or not opposed to the best
interests of the Company and, in the case of any criminal proceeding, if he or
she had no reasonable cause to believe his or her conduct was unlawful. The
Company shall have the power to indemnify to the fullest extent permitted under
the GBCC any person made a party to a proceeding because he or she is or was an
employee or agent of the Company, if he or she acted in a manner he or she
believed in good faith to be in or not opposed to the best interests of the
Company and, in the case of any criminal proceeding, if he or she had no
reasonable cause to believe his or her conduct was unlawful.
Under the GBCC, a Georgia corporation may indemnify an individual who is
a party to a proceeding because he or she is or was a director, against
liability incurred in such proceeding, provided that such individual acted in
good faith and reasonably believed (a) in the case of conduct in his or her
official capacity, that such conduct was in the best interests of the
corporation, (b) in all other cases other than a criminal proceeding, that such
conduct was at least not opposed to the best interests of the corporation, and
(c) in the case of a criminal proceeding, that such individual had no reasonable
cause to believe that such conduct was unlawful. A Georgia corporation may not
indemnify a director under the GBCC (i) in connection with a proceeding by or in
the right of the corporation, except for reasonable expenses incurred
12
<PAGE> 16
by such director in connection with the proceeding, provided it is determined
that such director met the relevant standard of conduct set forth above, or (ii)
in connection with any proceeding with respect to conduct for which such
director was adjudged liable on the basis that he or she received an improper
personal benefit. Additionally, a Georgia corporation may, before final
disposition of a proceeding, advance funds to pay for or reimburse the
reasonable expenses incurred by a director who is a party to a proceeding
because he or she is a director, provided that such director delivers to the
corporation a written affirmation of his or her good faith belief that he or she
met the relevant standard of conduct or that the proceeding involves conduct for
which such director's liability has been properly eliminated by action of the
corporation, and a written undertaking by the director to repay any funds
advanced if it is ultimately determined that such director was not entitled to
such indemnification. The GBCC also allows a Georgia corporation to indemnify
directors made a party to a proceeding without regard to the above-referenced
limitations, if authorized by the articles of incorporation or a bylaw,
contract, or resolution duly adopted by a vote of the shareholders of the
corporation by a majority of votes entitled to be cast, excluding shares owned
or voted under the control of the director or directors who are not
disinterested.
The Company's directors and executive officers are insured against
damages from actions and claims incurred in the course of performing duties, and
the Company is insured against expenses incurred in defending lawsuits arising
from certain alleged acts against directors and executive officers.
ITEM 16. EXHIBITS
4.1 Amended and Restated Articles of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 to Registrant's
Registration Statement on Form S-1, File No. 333-36479).
4.2 By-laws of the Registrant (incorporated By Reference to Exhibit
3.2 to the Registrant's Registration Statement on Form S-1, File
No. 333-36479).
5.1 Opinion of King & Spalding.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of King & Spalding (included in their opinion filed as
exhibit 5.1).
ITEM 17. UNDERTAKINGS
The undersigned registrant (the "Registrant") hereby undertakes:
(1) To file, during any period in which offers or sales are 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. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be
13
<PAGE> 17
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 a 20% change in the
maximum aggregate offering price set 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 the
Registration Statement or any material change to such information
in the Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 of 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.
(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.
The undersigned Registrant hereby further 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.
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 provisions described under Item 15 above, 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.
14
<PAGE> 18
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Danville, State of Virginia, on April 8, 1999.
DAN RIVER INC.
By: /s/ Joseph L. Lanier
-------------------------------------------
Joseph L. Lanier
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Joseph L. Lanier, Jr., Richard L.
Williams, Barry F. Shea, Scott D. Batson and Harry L. Goodrich and each of them,
his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution for him and in his name, place and stead, in any
and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission granting
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that each of said attorneys-in-
fact, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities indicated on the 8th day of April, 1999.
15
<PAGE> 19
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/ Joseph L. Lanier, Jr.
- ----------------------------------- Chairman of the Board, Chief
Joseph L. Lanier, Jr. Executive Officer and Director
(Principal Executive Officer)
/s/ Barry F. Shea
- ----------------------------------- Executive Vice President -- Chief
Barry F. Shea Financial Officer (Principal Financial
and Accounting Officer)
/s/ Richard L. Williams
- ----------------------------------- Director
Richard L. Williams
/s/ Donald J. Keller
- ----------------------------------- Director
Donald J. Keller
/s/ Edward J. Lill
- ----------------------------------- Director
Edward J. Lill
/s/ John F. Maypole
- ----------------------------------- Director
John F. Maypole
</TABLE>
16
<PAGE> 20
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description Page No.
- ------- ----------- --------
<S> <C> <C>
4.1 Amended and Restated Articles of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 to Registrant's
Registration Statement on Form S-1, File No. 333-36479).
4.2 By-Laws of the Registrant (incorporated by reference to Exhibit 3.2
to the Registrant's Registration Statement on Form S-1, File No.
333-36479).
5.1 Opinion of King & Spalding.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of King & Spalding (included in their opinion filed as
exhibit 5.1).
</TABLE>
17
<PAGE> 1
EXHIBIT 5
April 8, 1999
Dan River Inc.
2291 Memorial Drive
Danville, Virginia 24541
Re: Dan River Inc.
Registration Statement on Form S-3
Gentlemen:
We have acted as counsel for Dan River Inc., a Georgia corporation
(the "Company"), in connection with the preparation of a Registration Statement
on Form S-3 (the "Registration Statement") to be filed with the Securities and
Exchange Commission relating to 9,224,263 shares of Class A Common Stock
outstanding as of the date hereof that may be sold by certain shareholders of
the Company (the "Shares").
As such counsel, we have examined and relied upon such records,
documents, certificates and other instruments as in our judgment are necessary
or appropriate to form the basis for the opinions hereinafter set forth. In all
such examinations, we have assumed the genuineness of signatures on original
documents and the conformity to such original documents of all copies submitted
to us as certified, conformed or photographic copies, and as to certificates of
public officials, we have assumed the same to have been properly given and to be
accurate.
The opinions expressed herein are limited in all respects to the
corporate law of the State of Georgia, and no opinion is expressed with respect
to the laws of any other jurisdiction or any effect which such laws may have on
the opinions expressed herein. This opinion is limited to the matters stated
herein, and no opinion is implied or may be inferred beyond the matters
expressly stated herein.
Based upon the foregoing, we are of the opinion that the Shares are
validly issued, fully paid and nonassessable.
This opinion is given as of the date hereof, and we assume no
obligation to advise you after the date hereof of facts or circumstances that
come to our attention or changes in law that occur which could affect the
opinions contained herein. This letter is being rendered solely for the benefit
of Dan River Inc. in connection with the matters addressed herein. This opinion
may not be furnished to or relied upon by any person or entity for any purpose
without our prior written consent.
We consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
/s/ KING & SPALDING
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<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts"
in the Registration Statement (Form S-3) and related Prospectus for the
registration of 9,224,263 shares of Class A Common Stock of the Company and to
the incorporation by reference therein of our report dated February 10, 1999,
with respect to the consolidated financial statements and schedule of Dan River
Inc. included in its Annual Report (Form 10-K) for the year ended January 2,
1999 filed with the Securities and Exchange Commission.
Ernst & Young LLP
Greensboro, North Carolina
April 8, 1999
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
March 9, 1998 included in Dan River Inc.'s Current Report on Form 8-K filed on
October 27, 1998, as amended by Dan River Inc.'s Current Report on Form 8-K/A
Amendment No. 1 filed on April 9, 1999, and to all references to our Firm
included in this registration statement.
ARTHUR ANDERSEN L.L.P.
Atlanta, Georgia
April 9, 1999
