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As filed with the Securities and Exchange Commission on December 21, 2000
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
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.)
2291 MEMORIAL DRIVE, DANVILLE, VIRGINIA 24541
(Address, including zip code, of registrant's principal executive offices)
DAN RIVER INC.
NONQUALIFIED 401(K) AND DEFERRED COMPENSATION PLAN
FOR
HIGHLY COMPENSATED EMPLOYEES AND DIRECTORS
(Full title of plan)
HARRY L. GOODRICH, ESQ.
DAN RIVER INC.
2291 MEMORIAL DRIVE
DANVILLE, VIRGINIA 24541
(Name and address of agent for service)
(804) 799-7000
(Telephone number, including area code, of agent for service)
COPIES TO:
MARY A. BERNARD
KING & SPALDING
1185 AVENUE OF THE AMERICAS
NEW YORK, NY 10036-4003
(212) 556-2100
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to to be Offering Price Aggregate Registration
be Registered Registered Per Obligation Offering Price Fee
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Deferred Compensation
Obligations (1)........ $6,000,000(2) 100% $6,000,000(2) $1,584
-----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Deferred Compensation Obligations are unsecured obligations of Dan
River Inc. to pay deferred compensation in the future in accordance
with the terms of the Dan River Inc. Nonqualified 401(k) and Deferred
Compensation Plan for Highly Compensated Employees and Directors as
effective as of January 1, 2001.
(2) Estimated solely for the purpose of determining the registration fee.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been previously filed by Dan River Inc.
(the "Company") with the Securities and Exchange Commission and are hereby
incorporated by reference into this Registration Statement as of their
respective dates:
(a) Annual Report on Form 10-K for the year ended January 1, 2000;
(b) Quarterly Report on Form 10-Q for the quarter ended April 1,
2000, Amendment No.1 to the Quarterly Report on Form 10-Q/A
for the quarter ended April 1, 2000, Quarterly Report on Form
10-Q for the quarter ended July 1, 2000, Amendment No.1 to the
Quarterly Report on Form 10-Q/A for the quarter ended July 1,
2000 and Quarterly Report on Form 10-Q for the quarter ended
September 30, 2000; and
(c) the Company's Current Report on Form 8-K dated October 12,
2000.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended (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 hereunder have been sold or that
deregisters all such securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
thereof from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Under the Dan River Inc. Nonqualified 401(k) and Deferred Compensation
Plan for Highly Compensated Employees and Directors as effective as of January
1, 2001 (the "Plan"), the Company will provide each employee of the Company or
an affiliate who is a Highly Compensated Employee (as defined in the Dan River
Inc. 401(k) Plan) for a calendar year after 2000 and who is designated by the
Compensation Committee of the Company's board of directors as eligible to
participate in this Plan for such year and each individual who is a member of
the Company's board of directors, other than an individual who is an employee of
the Company ("Non-Employee Director") for a calendar year after 2000 the
opportunity to elect to defer under the Plan all or a portion of his or her
salary and commissions and/or annual bonus and retainer or meeting fees. The
obligations of the Company under the Plan (the "Obligations") will be unsecured
general obligations of the Company to pay the deferred compensation in the
future in accordance with the terms of the Plan, and will rank pari passu with
other unsecured and unsubordinated indebtedness of the Company from time to time
outstanding. However, the right of the Company, and therefore the right of
creditors of the Company (including participants in the Plan), to participate in
the distribution of the assets of any subsidiary or affiliate of the Company
upon its liquidation or reorganization or otherwise is necessarily subject to
the claims of creditors of the subsidiary or affiliate, except to the extent
that claims of the Company itself as a creditor of the subsidiary or affiliate
may be recognized. To the extent compensation deferred under the Plan by a
Highly Compensated Employee is payable to such employee by an affiliate of the
Company, the Company will direct the affiliate to defer payment of such
compensation in accordance with the Plan and the Obligations arising from such
deferred compensation shall also be unsecured general obligations of the
affiliate of the Company, as applicable.
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The amount of compensation to be deferred by each Non-Employee Director
and each Highly Compensated Employee (each a "Participant") will be determined
in accordance with the Plan based on elections by each Participant. Each
Obligation will be payable on a date selected by the Compensation Committee
pursuant to the terms of the Plan. The Obligations with respect to Highly
Compensated Employee can be (at such an employee's election) either 401(k)
Obligations or Non-401(k) Obligations. The Highly Compensated Employee 401(k)
Obligations will be indexed to one or more benchmark return options (the
"Benchmark Return Options") individually chosen by each Highly Compensated
Employee from a list of investment alternatives. Each Highly Compensated
Employee's 401(k) Obligation will be adjusted to reflect the investment
experience, whether positive or negative, of the selected Benchmark Return
Options, including any appreciation or depreciation. Non-Employee Director
Obligations and Highly Compensated Employee Non-401(k) Obligations will be
adjusted periodically based on the interest credit rate set from time to time by
the Compensation Committee of the board of directors of the Company. The
Obligations will be denominated and be payable in United States dollars.
A Participant's right or the right of a Participant's beneficiary, if
any, to the Obligations cannot be alienated, assigned, commuted or otherwise
encumbered.
The Obligations are not subject to redemption, in whole or in part,
prior to the individual payment dates specified by each Participant, at the
option of the Company or through operation of a mandatory or optional sinking
fund or analogous provision. However, the Company reserves the right to amend or
terminate the Plan at any time, provided the balance credited to each
Participant's account immediately after any such amendment or termination shall
be no less than the balance credited to each such account immediately before
such amendment or termination and no amendment or termination shall adversely
affect the right of a Participant or his or her beneficiary, if any, to the
distribution of the balance of such Participant's deferred account.
The Obligations are not convertible into another security of the
Company. The Obligations will not have the benefit of a negative pledge or any
other affirmative or negative covenant on the part of the Company. No trustee
has been appointed having the authority to take action with respect to the
Obligations and each Participant will be responsible for acting independently
with respect to, among other things, the giving of notices, responding to any
requests for consents, waivers or amendments pertaining to the Obligations,
enforcing covenants and taking action upon default.
ITEM 5. INTEREST 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,
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- unlawful corporate distributions, or
- any transactions from which the director received an improper personal
benefit.
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. EXEMPTIONS 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))
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. Nonqualified 401(k) and Deferred Compensation
Plan for Highly Compensated Employees and Directors as
effective as of January 1, 2001
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement;
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933, as amended (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; and
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by 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 purposes 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.
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(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, Danville, State of Virginia, on the 21st day of December, 2000.
DAN RIVER INC.
By: /s/ Joseph L. Lanier, Jr.
-------------------------------------------
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 of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of the 21 day of December, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
-------------------------------------- ------------------------ -----------------
<S> <C> <C>
/s/ Donald J. Keller Director December 21, 2000
--------------------------------------
Donald J. Keller
/s/ Joseph L. Lanier, Jr. Chairman of the Board, December 21, 2000
-------------------------------------- Chief Executive Officer
Joseph L. Lanier, Jr. and Director (Principal
Executive Officer)
/s/ Edward J. Lill Director December 21, 2000
--------------------------------------
Edward J. Lill
/s/ John F. Maypole Director December 21, 2000
- ------------------------------------
John F. Maypole
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Barry F. Shea Executive Vice President- December 21, 2000
-------------------------------------- Chief Financial Officer
Barry F. Shea (Principal Financial and
Accounting Officer)
/s/ Richard L. Williams President, Chief December 21, 2000
-------------------------------------- Operating Officer and
Richard L. Williams Director
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION OF EXHIBIT PAGE NO.
------ ---------------------- ----------
<S> <C> <C>
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))
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. Nonqualified 401(k) and Deferred Compensation
Plan for Highly Compensated Employees and Directors as
effective as of January 1, 2001
</TABLE>
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