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As filed with the Securities and Exchange Commission on November 10, 1998
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
DANVILLE, VIRGINIA 24541
(Address of principal executive offices)
THE BIBB COMPANY 1997 OMNIBUS STOCK INCENTIVE PLAN
DAN RIVER INC. AMENDED AND RESTATED STOCK OPTION PLAN, AS AMENDED
DAN RIVER INC. 1997 STOCK INCENTIVE PLAN
DAN RIVER INC. 1997 STOCK PLAN FOR OUTSIDE DIRECTORS
(Full title of the plans)
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, NEW YORK 10036-4003
(212) 556-2100
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to to be Offering Aggregate Registration
be Registered Registered Price Offering Fee
Per Share Price
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Class A Common
Stock, par value $.01 3,108,101 $8.74(1) $27,149,738(1) $7,548.00
per share shares
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(1) Estimated solely for the purpose of computing the registration fee
pursuant to rule 457(h) based on (i) with respect to 1,819,101 shares
being offered pursuant to outstanding stock options, the aggregate
exercise price of such options, which is equal to $15,633,203
(reflecting an average exercise price of approximately $8.59 per share)
and (ii) with respect to 1,289,000 shares, 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 November 6, 1998.
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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 Dan River Inc. (the "Company")
with the Securities and Exchange Commission are hereby incorporated by
reference into this Registration Statement as of their respective dates:
(a) The Annual Report on Form 10-K for the fiscal year ended January 3,
1998;
(b) All reports filed by the Company pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") since January 3, 1998; and
(c) The description of the Company's Class A Common Stock contained in
the Company's 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 the Company 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. INTEREST OF NAMED EXPERTS AND COUNSEL.
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Amended and Restated Articles of Incorporation (the
"Restated Charter") eliminate, to the fullest extent permitted by
applicable law, the personal liability of directors to the Company or its
shareholders for monetary damages for breaches of such directors' duty of
care or other duties as a director. This provision of the Restated Charter
will limit the remedies available to a shareholder in the event of breaches
of any director's duties to such shareholder or the Company. Under current
Georgia law, the Restated Charter does not provide for the elimination of
or any limitation on the personal liability of a director for (i) any
appropriation, in violation of the director's duties, of any business
opportunity of the Company, (ii) acts or omissions which involve
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intentional misconduct or a knowing violation of law, (iii) unlawful
corporate distributions or (iv) any transactions from which the director
received an improper personal benefit.
Under the Company's Bylaws, the Company shall indemnify to the fullest
extent permitted under the GBCC any person made a party to a proceeding
because he or she is or was a director or officer of the Company, if he or
she acted in a manner he or she believed in good faith to be in or not
opposed to the best interests of the Company and, in the case of any
criminal proceeding, if he or she had no reasonable cause to believe his or
her conduct was unlawful. The Company shall have the power to indemnify to
the fullest extent permitted under the GBCC any person made a party to a
proceeding because he or she is or was an employee or agent of the Company,
if he or she acted in a manner he or she believed in good faith to be in or
not opposed to the best interests of the Company and, in the case of any
criminal proceeding, if he or she had no reasonable cause to believe his or
her conduct was unlawful.
Under the GBCC, a Georgia corporation may indemnify an individual who is a
party to a proceeding because he or she is or was a director, against
liability incurred in such proceeding, provided that such individual acted
in good faith and reasonably believed (a) in the case of conduct in his or
her official capacity, that such conduct was in the best interests of the
corporation, (b) in all other cases other than a criminal proceeding, that
such conduct was at least not opposed to the best interests of the
corporation, and (c) in the case of a criminal proceeding, that such
individual had no reasonable cause to believe that such conduct was
unlawful. A Georgia corporation may not indemnify a director under the GBCC
(i) in connection with a proceeding by or in the right of the corporation,
except for reasonable expenses incurred by such director in connection with
the proceeding, provided it is determined that such director met the
relevant standard of conduct set forth above, or (ii) in connection with
any proceeding with respect to conduct for which such director was adjudged
liable on the basis that he or she received an improper personal benefit.
Additionally, a Georgia corporation may, before final disposition of a
proceeding, advance funds to pay for or reimburse the reasonable expenses
incurred by a director who is a party to a proceeding because he or she is
a director, provided that such director delivers to the corporation a
written affirmation of his or her good faith belief that he or she met the
relevant standard of conduct or that the proceeding involves conduct for
which such director's liability has been properly eliminated by action of
the corporation, and a written undertaking by the director to repay any
funds advanced if it is ultimately determined that such director was not
entitled to such indemnification. The GBCC also allows a Georgia
corporation to indemnify directors made a party to a proceeding without
regard to the above-referenced limitations, if authorized by the articles
of incorporation or a bylaw, contract, or resolution duly adopted by a vote
of the shareholders of the corporation by a majority of votes entitled to
be cast, excluding shares owned or voted under the control of the director
or directors who are not disinterested.
The Company's directors and executive officers are insured against damages
from actions and claims incurred in the course of performing duties, and
the Company is insured against expenses incurred in defending lawsuits
arising from certain alleged acts against directors and executive officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
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ITEM 8. EXHIBITS.
4.1 -- Amended and Restated Articles of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to
Registrant's Registration Statement on Form S-1, File No.
333-36479).
4.2 -- By-Laws of the Registrant (incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form
S-1, File No. 333-36479)
4.3 -- Form of Indenture between the Company and Marine Midland
Bank, N.A., as Trustee (including Form of Note) (incorporated
by reference to Exhibit 4 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended January 1, 1994)
5.1 -- Opinion of King & Spalding
23.1 -- Consent of King & Spalding (included as part of Exhibit 5.1)
23.2 -- Consent of Ernst & Young LLP
23.4 -- Consent of Pugh & Company, P.C.
23.5 -- Consent of Arthur Andersen LLP
99.1 -- The Bibb Company 1997 Omnibus Stock Incentive Plan
99.2 -- Dan River Inc. Amended and Restated Stock Option Plan and
form of Option Agreement, as amended as of December 30, 1994
(incorporated by reference to Exhibit 10.14.1 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994)
99.3 -- Dan River Inc. 1997 Stock Incentive Plan (incorporated by
reference to Exhibit 10.16 to the Registrant's Registration
Statement on Form S-1, File No. 333-36479)
99.4 -- Dan River Inc. 1997 Stock Plan for Outside Directors
(incorporated by reference to Exhibit 10.19 to the
Registrant's Registration Statement on Form S-1, File No.
333-36479)
99.5 -- Dan River Inc. Amended and Restated Stock Option Plan and
form of Option Agreement in effect prior to December 30, 1994
(incorporated by reference to Exhibit 10.14 to the
Registrant's Registration Statement on Form S-1, No. 33-70442)
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ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, 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. 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;
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.
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(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
The consolidated financial statements of the Company incorporated herein
by reference to the Company's Annual Report on Form 10-K for the year ended
January 3, 1998 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 incorporated by reference herein in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
The financial statements of The Bibb Company at January 3, 1998 and
December 28, 1996 and for the year ended January 3, 1998, the three months
ended December 28, 1996, the nine months ended September 28, 1996 and the
year ended December 30, 1995, incorporated herein by reference to the
Company's Current Report on Form 8-K filed on October 14, 1998 have been
audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report with respect thereto, and are incorporated herein
in reliance upon the authority of said firm as experts in giving said
report.
The financial statements of The New Cherokee Corporation for the three
years in the period ended September 28, 1996 incorporated herein by
reference to the Company's Current Report on Form 8-K/A Amendment No. 1
filed on April 18, 1997, have been audited by Pugh & Company, P.C.,
independent auditors, as set forth in their report thereon and incorporated
herein by reference. Such financial statements are incorporated herein by
reference upon such report given upon 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 10th day of
November, 1998.
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, Scott D. Batson and Harry L. Goodrich and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for 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
as of the 10th day of November, 1998.
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SIGNATURE TITLE
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/s/ Joseph L. Lanier, Jr.
- --------------------------------------- Chairman of the Board, Chief
Joseph L. Lanier, Jr. Executive Officer and Director
(Principal Executive Officer)
/s/ Barry F. Shea
- --------------------------------------- Executive Vice President --
Barry F. Shea Chief Financial Officer (Principal
Financial and Accounting Officer)
/s/ Richard L. Williams
- --------------------------------------- Director
Richard L. Williams
/s/ Donald J. Keller
- --------------------------------------- Director
Donald J. Keller
/s/ Edward J. Lill
- --------------------------------------- Director
Edward J. Lill
/s/ John F. Maypole
- --------------------------------------- Director
John F. Maypole
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EXHIBIT INDEX
Exhibit Description Page No.
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4.1 Amended and Restated Articles of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to
Registrant's Registration Statement on Form S-1, File No. 333-
36479)
4.2 By-Laws of the Registrant (incorporated by reference to Exhibit
3.2 to the Registrant's Registration Statement on Form S-1, File
No. 333-36479)
4.3 Form of Indenture between the Company and Marine Midland
Bank, N.A., as Trustee (including Form of Note) (incorporated
by reference to Exhibit 4 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended January 1, 1994)
5.1 Opinion of King & Spalding
23.1 Consent of King & Spalding (included as part of Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
23.4 Consent of Pugh & Company, P.C.
23.5 Consent of Arthur Andersen LLP
99.1 The Bibb Company 1997 Omnibus Stock Incentive Plan
99.2 Dan River Inc. Amended and Restated Stock Option Plan and
form of Option Agreement, as amended as of December 30,
1994 (incorporated by reference to Exhibit 10.14.1 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994)
99.3 Dan River Inc. 1997 Stock Incentive Plan (incorporated by
reference to Exhibit 10.16 to the Registrant's Registration
Statement on Form S-1, File No. 333-36479)
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Exhibit Description Page No.
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99.4 Dan River Inc. 1997 Stock Plan for Outside Directors
(incorporated by reference to Exhibit 10.19 to the Registrant's
Registration Statement on Form S-1, File No. 333-36479)
99.5 Dan River Inc. Amended and Restated Stock Option Plan and
form of Option Agreement in effect prior to December 30, 1994
(incorporated by reference to Exhibit 10.14 to the Registrant's
Registration Statement on Form S-1, No. 33-70442)
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