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As filed with the Securities and Exchange Commission on May 8, 2000
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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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.)
2291 MEMORIAL DRIVE 24541
DANVILLE, VIRGINIA (Zip Code)
(Address of principal executive offices)
DAN RIVER INC.
2000 LONG-TERM INCENTIVE PLAN
(Full title of the plans)
HARRY L. GOODRICH, ESQ. Copies to:
DAN RIVER INC. MARY A. BERNARD
2291 MEMORIAL DRIVE KING & SPALDING
DANVILLE, VIRGINIA 24541 1185 AVENUE OF THE AMERICAS
(Name and address of agent for service) NEW YORK, NEW YORK 10036-4003
(804) 799-7000
(Telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Class A Common Stock,
par value $.01 per share 2,000,000 shares $5.72 $11,440,000.00 $3,020.00
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee
pursuant to rule 457(h) based the average of the high and low sales
prices per share of Class A Common Stock of Dan River Inc. as reported
on the New York Stock Exchange on May 5, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by us with the Securities and
Exchange Commission are hereby incorporated by reference into this registration
statement as of their respective dates:
(a) Our Annual Report on Form 10-K for the fiscal year ended January 1,
2000;
(b) All reports filed by us pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended, which we refer to as the Exchange
Act, since January 1, 2000; and
(c) The description of our Class A Common Stock, par value $.01 per
share, contained in our registration statement on Form 8-A dated September 26,
1997, including any amendment or report filed for the purpose of updating such
description.
In addition, all documents filed by us pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
registration statement and prior to the filing of a post-effective amendment to
this registration statement that indicates that all securities offered hereby
have been sold or that deregisters all such securities then remaining unsold
shall be deemed to be incorporated by reference in this registration statement
and to be a part hereof from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our amended and restated articles of incorporation, which we refer to
as the Restated Charter, eliminate, to the fullest extent permitted by
applicable law, the personal liability of directors to us or our 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 us. 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:
- any appropriation, in violation of the director's duties, of
any of our business opportunities,
- acts or omissions which involve intentional misconduct or a
knowing violation of law,
- unlawful corporate distributions, or
- any transactions from which the director received an improper
personal benefit.
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Under our bylaws, we shall indemnify to the fullest extent permitted
under the Georgia Business Corporation Code, which we refer to as the GBCC, any
person made a party to a proceeding because he or she is or was a director or
officer of our company, if he or she acted in a manner he or she believed in
good faith to be in or not opposed to our best interests and, in the case of any
criminal proceeding, if he or she had no reasonable cause to believe his or her
conduct was unlawful. We 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 ours, if he or she acted in a manner he or
she believed in good faith to be in or not opposed to our best interests 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
(1) in the case of conduct in his or her official capacity, that such
conduct was in the best interests of the corporation,
(2) 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
(3) 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:
- in connection with a proceeding by or in the right of the
corporation, except for reasonable expenses incurred 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
- 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.
Our directors and executive officers are insured against damages from
actions and claims incurred in the course of performing duties, and we are
insured against expenses incurred in defending lawsuits arising from certain
alleged acts against directors and executive officers.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
4.1 Amended and Restated Articles of Incorporation of Dan
River Inc. (incorporated by reference to Exhibit 3.1 in
Amendment No. 1 to Dan River's registration statement on
Form S-1 (File No. 333-36479))
4.2 Bylaws of Dan River Inc. (incorporated by reference to
Exhibit 3.2 in Amendment No. 1 to Dan River's registration
statement on Form S-1 (File No. 333-36479))
4.3 Form of Indenture between Dan River Inc. and Marine
Midland Bank, N.A., as Trustee (including Form of Note)
(incorporated by reference to Exhibit 4.1 in Dan River's
Annual Report on Form 10-K for the fiscal year ended
January 1, 2000)
5.1 Opinion of King & Spalding
23.1 Consent of Ernst & Young LLP
23.2 Consent of King & Spalding (included as part of Exhibit
5.1)
99.1 Dan River Inc. 2000 Long-Term Incentive Plan (incorporated
by reference to Exhibit 10.16 in Dan River's Annual Report
on Form 10-K for the fiscal year ended January 1, 2000)
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes as follows:
(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, as amended,
which we refer to as the Securities Act,
(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 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 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 the registration statement or any material change to such
information in the registration statement;
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, 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
Section 15(d) of the Exchange Act that are incorporated by reference in
the registration statement.
(2) that, for the purpose of determining any liability
under the Securities Act, 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.
(b) The undersigned registrant hereby 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 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 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 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 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.
EXPERTS
Our consolidated financial statements incorporated herein by reference
to our Annual Report on Form 10-K for the year ended January 1, 2000 have been
audited by Ernst & Young LLP, independent auditors, as set forth in their report
thereon incorporated by reference therein and incorporated by reference herein.
Such consolidated financial statements are, and audited financial statements to
be included in subsequently filed documents will be, incorporated herein in
reliance upon the reports of Ernst & Young LLP pertaining to such financial
statements (to the extent covered by consents filed with the Securities and
Exchange Commission) given on the authority of such firm as experts in
accounting and auditing.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Danville, State of Virginia, on the 8th day of May,
2000.
DAN RIVER INC.
By: /s/ Joseph L. Lanier, Jr.
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Joseph L. Lanier, Jr.
Chairman of the Board and
Chief Executive Officer
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 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 such person 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, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and any of them, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities indicated
on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Donald J. Keller
- -------------------------------- Director May 8, 2000
Donald J. Keller
/s/ Joseph L. Lanier, Jr.
- -------------------------------- Chairman of the Board, May 8, 2000
Joseph L. Lanier, Jr. Chief Executive Officer
and Director (Principal
Executive Officer)
/s/ Edward J. Lill
- -------------------------------- Director May 8, 2000
Edward J. Lill
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
/s/ John F. Maypole
- -------------------------------- Director May 8, 2000
John F. Maypole
/s/ Barry F. Shea
- -------------------------------- Executive Vice President May 8, 2000
Barry F. Shea - Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Richard L. Williams
- -------------------------------- President, Chief May 8, 2000
Richard L. Williams Operating Officer and
Director
</TABLE>
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EXHIBIT INDEX
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION OF EXHIBIT PAGE NO.
------- ---------------------- ----------
4.1 Amended and Restated Articles of Incorporation
of Dan River Inc. (incorporated by reference to Exhibit
3.1 in Amendment No. 1 to Dan River's registration
statement on Form S-1 (File No. 333-36479))
4.2 Bylaws of Dan River Inc. (incorporated by reference to
Exhibit 3.2 in Amendment No. 1 to Dan River's registration
statement on Form S-1 (File No. 333-36479))
4.3 Form of Indenture between Dan River Inc. and Marine
Midland Bank, N.A., as Trustee (including Form of Note)
(incorporated by reference to Exhibit 4.1 in Dan River's
Annual Report on Form 10-K for the fiscal year ended
January 1, 2000)
5.1 Opinion of King & Spalding
23.1 Consent of Ernst & Young LLP
23.2 Consent of King & Spalding (included as part of Exhibit
5.1)
99.1 Dan River Inc. 2000 Long-Term Incentive Plan (incorporated
by reference to Exhibit 10.16 in Dan River's Annual Report
on Form 10-K for the fiscal year ended January 1, 2000)
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EXHIBIT 5.1
May 8, 2000
Dan River Inc.
2291 Memorial Drive
Danville, Virginia 24541
Re: Dan River Inc. - Registration Statement on Form S-8
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-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission relating to an aggregate of 2,000,000 shares of Class A
Common Stock (the "Shares") that may be issued pursuant to the Dan River Inc.
2000 Incentive Plan (the "Plan").
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.
For purposes of the opinion set forth in clause (ii) below, we have
assumed the following: (i) the Shares that may be issued under the Plan and
upon exercise of options issued under the Plan will continue to be duly
authorized on the dates of such issuance and (ii) on the date on which any
option is exercised, such option will have been duly executed, issued and
delivered by the Company and will constitute the legal, valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms.
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:
(i) The Shares are duly authorized.
(ii) When the Shares are issued under the Plan and upon
exercise of options issued under the Plan against payment therefor as
provided in the Plan, such Shares will be validly issued, fully paid
and non-assessable.
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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 opinion 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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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
this registration statement (Form S-8) pertaining to the Dan River Inc. 2000
Long-Term Incentive Plan and to the incorporation by reference therein of our
report dated February 4, 2000, except for the last paragraph in Note 14, as to
which the date is March 1, 2000, with respect to the consolidated financial
statements and schedule of Dan River Inc. incorporated by reference in its
Annual Report (Form 10-K) for the year ended January 1, 2000, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
May 5, 2000
