20, 2022
20, 2022
WASHINGTON,
UNDER
THE SECURITIES ACT OF 1933
Georgia | | | 58-2508794 |
(State or
incorporation or | | | (I.R.S. Employer Identification |
322 South Main Street
Greenville, South Carolina 29601
Vice President and Chief service)Including Zip Code,including zip code, and Telephone Number, Including Area Code,telephone number, including area code, of Registrant’s Principal registrant’s principal executive offices)Offices)Deborah H. MerrillFinancialAdministrative Officer and President, Delta Group322 South Main StreetGreenville, SC 29601Address, Including Zip Code,address, including zip code, and Telephone Number, Including Area Code,telephone number, including area code, of Agentagent for Service)Melinda Davis Lux, Esq.550 South Main Street,400Greenville, South350029601(864)255-540028202public:public: From time to time after the effective date of this Registration Statement.
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, anon-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule12b-2 of the Exchange Act.
Large accelerated filer | | ☐ | | | | | Accelerated filer | | | ☒ | ||
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Non-accelerated filer | | ☐ | | | | | Smaller reporting company | | | ☒ | ||
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| | | | | | Emerging growth company | | | ☐ |
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities To Be Registered | Amount to be Registered(1) | Proposed Maximum Offering Price per Unit(1) | Proposed Maximum Offering Price(1)(2) | Amount of Registration Fee(3) | ||||
Common Stock, par value $0.01 per share | ||||||||
Preferred Stock, par value $0.01 per share | ||||||||
Debt Securities(4) | ||||||||
Warrants(5) | ||||||||
Units(6) | ||||||||
Total | $150,000,000 | $19,470 | ||||||
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20, 202218, 201917, 2019,19, 2022, the last reported sale price for our common stock on the NYSE American was $29.70$9.94 per share.2019.2022.
togethercollectively with our domestic wholly-owned subsidiaries, includingDTG2Go, LLC, Salt Life, LLC, M.J. Soffe, LLC (“Soffe”), DTG2Go, LLC (“DTG2Go”), Salt Life, LLC (“Salt Life”) and our other domestic and international subsidiaries, as appropriate to the context.
company. Withcompany with approximately 8,5008,600 employees worldwide, weworldwide. We design, manufacture, source, and market a diverse portfolio of core activewear and lifestyle apparel products under our primary brands of Salt Life®Life®, COAST®, Soffe®Soffe®, and Delta. We are a market leader in thedirect-to-garment on-demand, digital print and fulfillment industry, bringing DTG2GoDTG2Go’s proprietary technology and innovation to theour customers’ supply chain of our customers.chains. We specialize in selling casual and athletic products through a variety of distribution channels and tiers, including outdoor and sporting goods retailers, independent and specialty stores, better department stores andmid-tier retailers, mass merchants, ande-retailers,eRetailers, the U.S. military, and through ourbusiness-to-business ecommerce sites. digital platform. Our products are also made availabledirect-to-consumer on our websitesecommerce sites and in our branded retail stores. ThisOur diversified distribution allowsgo-to-market strategies allow us to capitalize on our strengths to provide ourin providing activewear and lifestyle apparel products to a broad and evolving customer base whose shopping preferences may span multiple retail channels.products. Moreproducts, with more than 90% of the apparel units that we sell are sewn in our own facilities. This allows us to offer a high degree of consistency and quality, leverage scale efficiencies, and react quickly to changes in trends within the marketplace. We have manufacturing operations located in the United States, El Salvador, Honduras, and Mexico, and we use domestic and foreign contractors as additional sources of production. Our distribution facilities are strategically located throughout the United States to better serve our customers withsame-day shipping on our catalog products and weekly replenishments to retailers.Through several acquisitions, we became a diversified branded apparel company with well-recognized brands in our portfolio, expanded product offerings, broadened distribution channels and customer reach, and increased leverage of our vertical manufacturing platform. We continue to monitor and evaluate our portfolio, making strategic acquisitions or exiting markets as needed to support our long-term growth and profitability goals.Our operations are managed and reported in two segments, Delta Group and Salt Life Group, which reflect the manner in which the business is managed and results are reviewed by our Chief Executive Officer, who is our chief operating decision maker. The Delta Group is comprised of the following business units primarily focused on core activewear styles: Delta Activewear (encompassing our core Delta Catalog business and FunTees private label business), DTG2Go, and Soffe. The Salt Life Group is comprised of our lifestyle brands focused on a broad range of apparel garments, headwear and related accessories to meet consumer preferences and fashion trends, and includes our Salt Life and Coast business units.322 South Main Street, Greenville, South Carolina 29601.2750 Premiere Parkway, Suite 100, Duluth, Georgia 30097. Our telephone number is864-232-5200.
19, 2022. the series, the number of shares offered and the liquidation value of the preferred stock; the price at which the preferred stock will be issued; the dividend rate, the dates on which the dividends will be payable and other terms relating to the payment of dividends on the preferred stock; the liquidation preference of the preferred stock; the voting rights of the preferred stock; whether the preferred stock is redeemable or subject to a sinking fund, and the terms of any such redemption or sinking fund; whether the preferred stock is convertible or exchangeable for any other securities, and the terms of any such conversion; and any additional rights, preferences, qualifications, limitations and restrictions of the preferred stock. decreasing the amount of earnings and assets available for distribution to holders of common stock; restricting dividends on common stock;6,988,8237,001,270 shares were issued and outstanding as of December 17, 2019.19, 2022. We are also authorized to issue up to 2,000,000 shares of preferred stock, par value $0.01 per share. No shares of preferred stock were outstanding as of December 17, 2019.
diluting the voting power of common stock;
impairing the liquidation rights of common stock; and
delaying, deferring or preventing a change in control of our Company.
authorize the issuance of our authorized but unissued shares of “blank check” preferred stock in one or more classes and in one or more series within any such class, with such preferences, limitations and relative rights granted to and imposed upon each class and series of preferred stock as determined by the board of directors in accordance withSection 14-2-602 of the Georgia Business Corporation Code;
require the unanimous written consent of our shareholders for them to take action without a meeting of shareholders;
require the board of directors, when evaluating any transaction involving control of the Company, to consider not only the consideration being offered in relation to the then current market price for the Company’s capital stock but also in relation to the then current value of the Company in a freely negotiated transaction and to the board’s estimated future value of the Company (including the unrealized value of its properties and assets) as an independent going concern, as well as other factors the board of directors deems relevant, such as the interests of employees, customers, suppliers and creditors of the Company and its subsidiaries, and the communities in which its facilities are located; and
provide that our shareholders shall elect the directors of the Company by the affirmative vote of the holders of a majority of the voting power of the shares of capital stock of the Company present in person or represented by proxy at the annual meeting of shareholders and entitled to vote for the election of directors, unless the number of nominees exceeds the number of directors to be elected, in which case the directors shall be elected by a plurality of the shares represented in person or by proxy at any such meeting and entitled to vote for the election of directors.
permit a special meeting of the shareholders to be called by the holders of a majority of shares outstanding and entitled to vote at such meeting;
prohibit the conduct of any business at a special meeting of shareholders other than the business specified in the notice of the meeting;
require the unanimous written consent of our shareholders for them to take action without a meeting of shareholders;
require shareholders to provide advance notice to us of any shareholder nominations for directors at an annual or special meeting of shareholders or to bring any proposal of other business before an annual meeting of shareholders;
provide that, except as otherwise provided by our Articles of Incorporation, each outstanding share having voting rights shall be entitled to one vote on each matter submitted to a vote at a meeting of the shareholders;
provide that our shareholders shall elect the directors of the Company by the affirmative vote of the holders of a majority of the voting power of the shares of capital stock of the Company present in person or represented by proxy at the annual meeting of shareholders and entitled to vote for the election of directors,
allow the board of directors to set the number of directors between two and fifteen and authorize our board of directors to fill vacant directorships;
allow our board of directors to alter, amend or repeal our Bylaws and adopt new bylaws; and
elect for the Company to be covered by the “business combination” provisions of the Georgia Business Corporation Code described below.
the title of the debt securities; the limit, if any, upon the aggregate principal amount or issue price of the securities of a series; the ranking of the specific series of debt securities relative to our and our subsidiaries’ other outstanding indebtedness; the price or prices at which the debt securities will be issued; the designation, aggregate principal amount and authorized denominations of the debt securities;
the issue date or dates of the series and the maturity date of the series;
whether the securities will be issued at par or at a premium over or a discount from their face amount;
the interest rate, if any, and the method for calculating the interest rate and basis upon which interest shall be calculated;
the right, if any, to extend interest payment periods and the duration of the extension;
the interest payment dates and the record dates for the interest payments;
the currency of denomination of the securities;
the place where we will pay principal, premium, if any, and interest, if any, and the place where the debt securities may be presented for transfer;
if payments of principal of, premium, if any, on or interest, if any, on the debt securities will be made in one or more currencies or currency units other than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to these payments will be determined;
if other than denominations of $1,000 or multiples of $1,000, the denominations the debt securities will be issued in;
whether the debt securities will be issued in the form of global securities or certificates;
the applicability of and additional provisions, if any, relating to the defeasance of the debt securities;
the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the principal amount;
the currency or currencies, if other than the currency of the United States, in which principal and interest will be paid;
the dates on which premium, if any, will be paid;
any addition to or change in the “Events of Default” described in this prospectus or in the indenture with respect to the debt securities and any change in the acceleration provisions described in this prospectus or in the indenture with respect to the debt securities;
any addition to or change in the covenants described in the prospectus or in the indenture with respect to the debt securities;
our right, if any, to defer payment of interest and the maximum length of this deferral period; and
other specific terms, including any additional events of default or covenants.
otherwise is subject to the prior claims of creditors of the subsidiary, except to the extent we may ourselves be recognized as a creditor of that subsidiary. Accordingly, the debt securities will be effectively subordinated to all existing and future liabilities of our subsidiaries, and holders of the debt securities should look only to our assets for payments on the debt securities.
the conversion or exchange price;
the conversion or exchange period;
provisions regarding the ability of us or the holder to convert or exchange the debt securities;
events requiring adjustment to the conversion or exchange price; and
provisions affecting conversion or exchange in the event of our redemption of the debt securities.
either we are the continuing corporation or the successor corporation or the person which acquires by sale, lease or conveyance substantially all our or our subsidiaries’ assets is a corporation organized under the laws of the United States, any state thereof, or the District of Columbia, and expressly assumes the due and punctual payment of the principal of, and premium, if any, and interest, if any, on all the debt securities and the performance of every covenant of the indenture to be performed or observed by us, by supplemental indenture satisfactory to the trustee, executed and delivered to the trustee by such corporation;
immediately after giving effect to such transactions, no Event of Default defined in the indentures and described under the caption “Events of Default and Remedies” below, or event which, after notice or lapse of time or both, would become an Event of Default, has happened and is continuing; and
�� | we have delivered to the trustee an officers’ certificate and an opinion of counsel each stating that such transaction and such supplemental indenture comply with the indenture provisions relating to merger, consolidation and sale of assets. |
we have delivered to the trustee an officers’ certificate and an opinion of counsel each stating that such transaction and such supplemental indenture comply with the indenture provisions relating to merger, consolidation and sale of assets.
The indentures in the forms initially filed as exhibits to the registration statement of which this prospectus is a part provide that upon any consolidation or merger with or into any other person or any sale, conveyance, lease, or other transfer of all or substantially all of our or our subsidiaries’ assets to any person, the successor person shall succeed, and be substituted for, us under the indenture and each series of outstanding debt securities, and we shall be relieved of all obligations under the indenture and each series of outstanding debt securities to the extent we were the predecessor person.
1. | default in paying interest on the debt securities when it becomes due and the default continues for a period of 30 days or more; |
2. | default in paying principal of, or premium, if any, on, the debt securities when due; |
3. | default is made in the payment of any sinking or purchase fund or analogous obligation when the same becomes due, and such default continues for 30 days or more; |
4. | default in the performance, or breach, of any covenant or warranty in the indenture (other than defaults specified in clause (1), (2) or (3) above) and the default or breach continues for a period of 60 days or more after we receive written notice of such default from the trustee or we and the trustee receive notice of such default from the holders of at least 25% in aggregate principal amount of the outstanding debt securities of the series; |
5. | certain events of bankruptcy, insolvency, reorganization, administration or similar proceedings with respect to us have occurred; and |
6. | any other Events of Default provided with respect to debt securities of that series that are set forth in the applicable prospectus supplement accompanying this prospectus. |
interest on any outstanding debt security, or in respect of a covenant or a provision that cannot be modified or amended without the consent of all holders of the debt securities of that series.
evidence a successor to the trustee;
cure ambiguities, defects or inconsistencies;
provide for the assumption of our obligations in the case of a merger or consolidation or transfer of all or substantially all of our assets that complies with the covenant described under “Merger, Consolidation or Sale of Assets”;
make any change that would provide any additional rights or benefits to the holders of the debt securities of a series;
secure the debt securities of a series;
establish the form or forms of debt securities of any series;
add additional Events of Default with respect to the debt securities of any series;
add additional provisions as may be expressly permitted by the Trust Indenture Act;
maintain the qualification of the indenture under the Trust Indenture Act; or
make any change that does not adversely affect in any material respect the interests of any holder of the debt securities of a series.
change the maturity date or the stated payment date of any payment of premium or interest payable on the debt securities;
reduce the principal amount, or extend the fixed maturity, of the debt securities;
change the method of computing the amount of principal or any interest of any debt security;
change or waive the redemption or repayment provisions of the debt securities;
change the currency in which principal, any premium or interest is paid or the place of payment;
reduce the percentage in principal amount outstanding of debt securities of any series which must consent to an amendment, supplement or waiver or consent to take any action;
impair the right to institute suit for the enforcement of any payment on the debt securities;
waive a payment default with respect to the debt securities;
reduce the interest rate or extend the time for payment of interest on the debt securities; or
adversely affect the ranking or priority of the debt securities of any series.
all debt securities of any series issued that have been authenticated and delivered have been delivered to the trustee for cancellation; or
all the debt securities of any series issued that have not been delivered to the trustee for cancellation have become due and payable, will become due and payable within one year, or are to be called for redemption within one year and we have made arrangements satisfactory to the trustee for the giving of notice of redemption by such trustee in our name and at our expense, and in each case, we have irrevocably deposited or caused to be deposited with the trustee sufficient funds to pay and discharge the entire indebtedness on the series of debt securities; and
we have paid or caused to be paid all other sums then due and payable under the indenture; and
we have delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that all conditions precedent under the indenture relating to the satisfaction and discharge of the indenture have been complied with.
the rights of holders of the debt securities to receive principal, interest and any premium when due;
our obligations with respect to the debt securities concerning issuing temporary debt securities, registration of transfer of debt securities, mutilated, destroyed, lost or stolen debt securities and the maintenance of an office or agency for payment for security payments held in trust;
the rights, powers, trusts, duties and immunities of the trustee; and
the defeasance provisions of the indenture.
we must irrevocably have deposited or caused to be deposited with the trustee as trust funds for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the holders of the debt securities of a series:
money in an amount; or
U.S. government obligations (or equivalent government obligations in the case of debt securities denominated in other than U.S. dollars or a specified currency) that will provide, not later than one day before the due date of any payment, money in an amount; or
a combination of money and U.S. government obligations (or equivalent government obligations, as applicable),
in the case of legal defeasance, we have delivered to the trustee an opinion of counsel stating that, under then applicable federal income tax law, the holders of the debt securities of that series will not recognize income, gain or loss for federal income tax purposes as a result of the deposit, defeasance and discharge to be effected and will be subject to the same federal income tax as would be the case if the deposit, defeasance and discharge did not occur;
in the case of covenant defeasance, we have delivered to the trustee an opinion of counsel to the effect that the holders of the debt securities of that series will not recognize income, gain or loss for federal
income tax purposes as a result of the deposit and covenant defeasance to be effected and will be subject to the same federal income tax as would be the case if the deposit and covenant defeasance did not occur;
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no Event of Default or default with respect to the outstanding debt securities of that series has occurred and is continuing at the time of such deposit after giving effect to the deposit or, in the case of legal defeasance, no default relating to bankruptcy or insolvency has occurred and is continuing at any time on or before the 91st day after the date of such deposit, it being understood that this condition is not deemed satisfied until after the 91st day;
the legal defeasance or covenant defeasance will not cause the trustee to have a conflicting interest within the meaning of the Trust Indenture Act, assuming all debt securities of a series were in default within the meaning of such Act;
the legal defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which we are a party;
if the debt securities are to be redeemed prior to the stated maturity date, notice shall have been given in accordance with the provisions of the indenture;
the legal defeasance or covenant defeasance will not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless the trust is registered under such Act or exempt from registration; and
we have delivered to the trustee an officers’ certificate and an opinion of counsel stating that all conditions precedent with respect to the legal defeasance or covenant defeasance have been complied with.
in the name of that depositary or its nominee. In those cases, one or more registered global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal or face amount of the securities to be represented by registered global securities. Unless and until it is exchanged in whole for securities in definitive registered form, a registered global security may not be transferred except as a whole by and among the depositary for the registered global security, the nominees of the depositary or any successors of the depositary or those nominees.
through participants will be governed by standing customer instructions and customary practices, as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name,” and will be the responsibility of those participants.
the title of the warrants; the designation, amount and terms of the securities for which the warrants are exercisable and the procedures and conditions relating to the exercise of such warrants; the designation and terms of the other securities, if any, with which the warrants are to be issued and the number of warrants issued with each such security; the price or prices at which the warrants will be issued; the aggregate number of warrants; any provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price of the warrants; the price or prices at which the securities purchasable upon exercise of the warrants may be purchased; if applicable, the date on and after which the warrants and the securities purchasable upon exercise of the warrants will be separately transferable; if applicable, a discussion of the material U.S. federal income tax considerations applicable to the warrants; any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants; the date on which the right to exercise the warrants shall commence and the date on which the right shall expire; if applicable, the maximum or minimum number of warrants which may be exercised at any time; the identity of the warrant agent; any mandatory or optional redemption provision; whether the warrants are to be issued in registered or bearer form; whether the warrants are extendible and the period or periods of such extendibility;
information with respect to book-entry procedures, if any; and
any other terms of the warrants.
to cure any ambiguity;
to correct or supplement any provision which may be defective or inconsistent with any other provisions; or
to add new provisions regarding matters or questions that we and the warrant agent may deem necessary or desirable and which do not adversely affect the interests of the warrant holders.
the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; the terms of the unit agreement governing the units; United States federal income tax considerations relevant to the units; and whether the units will be issued in fully registered global form.
to or through underwriting syndicates represented by managing underwriters; through one or more underwriters without a syndicate for them to offer and sell to the public; through dealers or agents; and to investors directly in negotiated sales. on or through the facilities of the NYSE American or any other securities exchange or quotation or trading service on which those securities may be listed, quoted or traded at the time of sale; and/or to or through a market maker otherwise than on the securities exchanges or quotation or trading services set forth above. the name or names of any underwriters, dealers or agents; the purchase price of the offered securities and the proceeds to us from such sale; any underwriting discounts and commissions or agency fees and other items constituting underwriters’ or agents’ compensation; any initial public offering price and any discounts or concessions allowed or paid to dealers; and any securities exchange on which such offered securities may be listed. at fixed prices, which may be changed; at market prices prevailing at the time of the sale; at varying prices determined at the time of sale; or at negotiated prices. whether that offering is being made to underwriters or through agents or directly; the securities’ purchase price or initial public offering price; and the proceeds we anticipate from the sale of the securities, if any. public or to dealers, at various times in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the securities will be subject to certain conditions. Unless indicated otherwise in a prospectus supplement, the underwriters will be obligated to purchase all the securities of the series offered if any of the securities are purchased.
We will file a supplement to this prospectus, if required, pursuant to Rule 424(b) under the Securities Act, if we enter into any material arrangement with a broker, dealer, agent or underwriter for the sale of securities through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer. Such prospectus supplement will disclose:
the name of any participating broker, dealer, agent or underwriter;
the number and type of securities involved;
the price at which such securities were sold;
any securities exchanges on which such securities may be listed;
the commissions paid or discounts or concessions allowed to any such broker, dealer, agent or underwriter where applicable; and
other facts material to the transaction.
Other than this prospectus, the applicable prospectus supplement and any applicable pricing supplement in electronic format, the information on our or any agent’s or dealer’s website and any information contained in any other website maintained by any agent or dealer:
is not part of this prospectus, the applicable prospectus supplement and any applicable pricing supplement or the registration statement of which they form a part;
has not been approved or endorsed by us or by any agent or dealer in its capacity as an agent or dealer, except, in each case, with respect to the respective website maintained by such entity; and
should not be relied upon by investors.
as of September 28, 2019, and for each of the years in thetwo-year period thenyear ended October 1, 2022, and the effectiveness of Delta Apparel, Inc. and Subsidiaries’ internal control over financial reporting as of September 28, 2019,October 1, 2022 have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance onupon such reports given on theirthe authority of such firm as experts in accounting and auditing.
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• | the information identified as incorporated by reference under Part III of our Annual Report onForm10-K for the fiscal year ended |
• | the description of our common stock, $0.01 par value per share, contained inExhibit 4.3 to our Annual Report on Form10-K for the fiscal year ended |
Item 14. Other Expenses of Issuance and Distribution.
Item 14. | Other Expenses of Issuance and Distribution. |
Registration Statement filing fee | $ | 2,085 | ||
Printing fees and expenses | * | |||
Legal fees | * | |||
Accounting fees | * | |||
Trustee and transfer agent fees | * | |||
Miscellaneous fees | * | |||
Total | * |
Registration Statement filing fee | | | $16,530 |
Printing fees and expenses | | | * |
Legal fees | | | * |
Accounting fees | | | * |
Trustee and transfer agent fees | | | * |
Miscellaneous fees | | | * |
Total | | | * |
* | Fees and expenses (other than the Registration Statement filing fee) will depend on the securities offered, the number of issuances and the nature of the offerings, and cannot be estimated at this time. |
Item 15. Indemnification of Directors and Officers
Item 15. | Indemnification of Directors and Officers |
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Section 14-2-857 of the GBCC provides that a corporation may indemnify and advance expenses to an officer of the corporation who is a party to a proceeding because he or she is an officer of the corporation to the same extent as a director and, if he or she is not a director, to such further extent as may be provided in its articles of incorporation,
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Item 16. Exhibits
Item 16. | Exhibits |
Item 17. Undertakings
Item 17. | Undertakings |
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. 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 SEC 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 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;
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. 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 SEC 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 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; |
(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.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(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. |
(4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
(ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(6) | 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 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to 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. |
(7) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions or otherwise, the registrant has been advised that in the opinion of the SEC 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. |
(8) | That, for purposes of determining any liability under the Securities Act of 1933: |
(i) | The information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective; and |
(ii) | Each post-effective amendment that contains a form of prospectus 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. |
(9) | To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act. |
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:TABLE OF CONTENTS
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) 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 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to 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.
(7) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions or otherwise, the registrant has been advised that in the opinion of the SEC 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.
(8) That, for purposes of determining any liability under the Securities Act of 1933:
(i) The information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective; and
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(ii) Each post-effective amendment that contains a form of prospectus 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.
(9) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act.
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Exhibit Number | | | Description |
1.1 | | ||
| |||
Form of Underwriting Agreement for Common Stock* | |||
| | ||
1.2 | | | Form of Underwriting Agreement for Preferred Stock* |
| | ||
1.3 | | | Form of Underwriting Agreement for Debt Securities* |
| | ||
| | Articles of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Company’s Form 10-12B filed on December 30, 1999) | |
| | ||
| | Articles of Amendment to Articles of Incorporation of the Company dated September 18, 2003 (incorporated by reference to Exhibit 3.1.2 to the Company’s Quarterly Report on Form10-Q filed on November 5, 2003) | |
| | ||
| | Articles of Amendment to Articles of Incorporation of the Company dated April 28, 2005 (incorporated by reference to Exhibit 3.1.3 to the Company’s Current Report on Form8-K filed on April 29, 2005) | |
| | ||
| | Articles of Amendment to Articles of Incorporation of the Company dated November 8, 2007 (incorporated by reference to Exhibit 3.1.4 to the Company’s Annual Report on Form10-K filed on August 28, 2009) | |
| | ||
| | Bylaws of the Company dated December 10, 1999 (incorporated by reference to Exhibit 3.2.1 to the Company’s Annual Report on Form10-K filed on August 28, 2009) | |
| | ||
| | Amendment to Bylaws of the Company adopted January 20, 2000 (incorporated by reference to Exhibit 3.2.2 to the Company’s Annual Report on Form10-K filed on August 28, 2009) | |
| | ||
| | Amendment to Bylaws of the Company adopted February 17, 2000 (incorporated by reference to Exhibit 3.2.3 to the Company’s Annual Report on Form10-K filed on August 28, 2009) | |
| | ||
| | Amendment to Bylaws of the Company adopted June 6, 2000 (incorporated by reference to Exhibit 3.2.4 to the Company’s Annual Report on Form10-K filed on August 28, 2009) | |
| | ||
| | Amendment to Bylaws of the Company dated August 17, 2006 (incorporated by reference to Exhibit 3.2.5 to the Company’s Annual Report on Form10-K filed on August 28, 2009) | |
| | ||
| | Amendment to Bylaws of the Company dated August 12, 2009 (incorporated by reference to Exhibit 3.2.6 to the Company’s Annual Report on Form 10-K filed on August 28, 2009) | |
| | ||
4.1 | | | Form of Certificate of Designations with respect to any preferred stock issued hereunder* |
| | ||
| | Form of Common Stock Certificate (incorporated by reference to Exhibit 4.2 to the Company’s Form 10/A (Amendment No. 2), filed on May 3, 2000) | |
| | ||
4.3 | | | Form of Warrant Agreement* |
| | ||
4.4 | | | Form of Warrant Certificate (included in Exhibit 4.3)* |
| | ||
4.5 | | | Form of Preferred Stock Certificate* |
| |
Exhibit Number | | | Description |
| | Form of Senior Indenture** | |
| | ||
| | Form of Subordinated Indenture** | |
| | ||
4.8 | | | Form of Senior Debt Security* |
| | ||
4.9 | | | Form of Subordinated Debt Security* |
| | ||
4.10 | | | Form of Unit Agreement* |
| | ||
| | Description of Securities (incorporated by reference to Exhibit 4.3 to the Company’s Annual Report on Form 10-K filed on November 21, 2019) | |
| | ||
| | Opinion of Womble Bond Dickinson (US) LLP** | |
| | ||
| | Consent of Ernst & Young LLP** |
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| |||
| Consent of Womble Bond Dickinson (US) LLP (included in Exhibit 5.1) | ||
| | ||
| | Power of Attorney is contained on the signature page to this registration statement** | |
| | ||
25.1 | | | Statement of Eligibility of Trustee on FormT-1 under the Senior Indenture+ |
| | ||
25.2 | | | Statement of Eligibility of Trustee on FormT-1 under the Subordinated Indenture+ |
| | ||
| | Filing Fee Table** |
* | To be filed subsequently by an amendment to this registration statement or by a Current Report on Form8-K of the Registrant and incorporated by reference therein. |
** | Filed herewith. |
+ | To be filed by amendment or, if applicable, pursuant to the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939, as amended. |
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| | |||||
DELTA APPAREL, INC. (Registrant) | ||||||
| | | | | ||
| | By: | | | /s/ Justin M. Grow | |
|
| | | Justin M. Grow | ||
| |
| ||||
| | | Executive Vice President and Chief
|
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Name | | | Title | | | Date |
| | |||||
/s/ Robert W. Humphreys
| | | Chairman and Chief Executive Officer (principal executive officer) | | | December |
Robert W. Humphreys | | | ||||
| | | | |||
/s/
| | | Vice President, Chief Assistant Treasurer (principal financial | |||
| | | December | |||
Nancy P. Bubanich | | | ||||
| | | | |||
/s/ Anita D. Britt | | | Director | | | December 20, 2022 |
Anita D. Britt | | | ||||
| | | | |||
/s/ J. Bradley Campbell | | | Director | | | December 20, 2022 |
J. Bradley Campbell | | | ||||
| | | | |||
/s/ Dr. George Jay Gogue | | | Director | | | December 20, 2022 |
Dr. George Jay Gogue | | | ||||
| | | | |||
/s/ Glenda E. Hood | | | Director | | | December 20, 2022 |
Glenda E. Hood | | | ||||
| | | | |||
/s/
| | Director | | | December | |
Sonya E. Medina | | | | | ||
| | | | |||
/s/ A. Alexander Taylor, II | | | Director | | | December 20, 2022 |
A. Alexander Taylor, II | | | ||||
| | | | |||
/s/ David G. Whalen | | | Director | | | December 20, 2022 |
David G. Whalen | | |
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