As filed with the Securities and Exchange Commission on June 13, 2003
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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DAN RIVER INC.
(Exact name of registrant as specified in its charter)
Georgia 58-1854637
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2291 Memorial Drive 24541
Danville, Virginia (Zip Code)
(Address of principal executive offices)
DAN RIVER INC.
2003 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
Harry L. Goodrich, Esq. Copies to:
Dan River Inc. Mary A. Bernard
2291 Memorial Drive King & Spalding LLP
Danville, Virginia 24541 1185 Avenue of the Americas
(Name and address of agent for service) New York, New York 10036-4003
(434) 799-7000
(Telephone number, including area code, of agent for
service)
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Share(1) Aggregate Offering Price(1) Registration Fee
- --------------------------------------------------------------------------------------------------------------------
Class A Common Stock,
par value $.01 per
share 1,329,856 shares $2.98 $3,962,970.88 $320.60
- --------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of computing the registration fee
based on 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 June 12, 2003, in accordance with Rule 457(h) under
the Securities Act of 1933.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed by us with the Securities and
Exchange Commission are hereby incorporated by reference into this registration
statement as of their respective dates:
(a) Our Annual Report on Form 10-K for the fiscal year ended December
28, 2002;
(b) Our Quarterly Report on Form 10-Q for the fiscal quarter ended
March 29, 2003;
(c) Our Current Reports on Form 8-K filed on February 4, 2003, March
17, 2003, April 16, 2003, April 25, 2003 and June 12, 2003; and
(d) The description of our Class A Common Stock, par value $.01 per
share, contained in our registration statement on Form 8-A dated September 26,
1997, including any amendment or report filed for the purpose of updating such
description.
In addition, all documents filed by us pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, which we
refer to as 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 into this registration statement and to
be a part hereof from the date of the filing of such documents (we refer to such
documents, and the documents enumerated above, as the "Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this registration statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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
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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:
o any appropriation, in violation of the director's duties, of any of
our business opportunities,
o acts or omissions which involve intentional misconduct or a knowing
violation of law,
o unlawful corporate distributions, or
o 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:
o 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
o 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,
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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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 Amended and Restated Articles of Incorporation of Dan River
Inc. (incorporated by reference to Exhibit 3.1 in Amendment
No. 1 to Dan River's registration statement on Form S-1
(File No. 333-36479))
4.2 Bylaws of Dan River Inc. (incorporated by reference to
Exhibit 3.2 in Amendment No. 1 to Dan River's registration
statement on Form S-1 (File No. 333-36479))
4.3* Dan River Inc. 2003 Long-Term Incentive Plan
5.1* Opinion of King & Spalding LLP
23.1* Consent of Ernst & Young LLP
23.2 Consent of King & Spalding LLP (included as part of Exhibit
5.1)
24.1 Power of Attorney (included in signature pages).
*Filed herewith.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes as follows:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended, which we
refer to as the Securities Act,
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
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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.
(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, in the City of Danville, State of Virginia, on the 13th day of June,
2003.
DAN RIVER INC.
By: /s/ Joseph L. Lanier, Jr.
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Joseph L. Lanier, Jr.
Chairman of the Board and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Joseph L. Lanier, Jr., Richard L.
Williams, Barry F. Shea and Harry L. Goodrich and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for such person and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this registration statement, and
to file the same with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and any of them, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on the date indicated.
Signature Title Date
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/s/ Donald J. Keller Director June 13, 2003
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Donald J. Keller
/s/ Joseph L. Lanier, Jr. Chairman of the Board, June 13, 2003
- ------------------------------------------------------ Chief Executive Officer and
Joseph L. Lanier, Jr. Director (Principal
Executive Officer)
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/s/ Edward J. Lill Director June 13, 2003
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Edward J. Lill
/s/ John F. Maypole Director June 13, 2003
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John F. Maypole
/s/ Rainer H. Mimberg Director June 13, 2003
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Rainer H. Mimberg
/s/ Barry F. Shea Executive Vice President June 13, 2003
- ------------------------------------------------------ - Chief Financial Officer
Barry F. Shea (Principal Financial and
Accounting Officer)
/s/ Richard L. Williams President, Chief June 13, 2003
- ------------------------------------------------------ Operating Officer and
Richard L. Williams Director
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EXHIBIT INDEX
Exhibit
Number Description of Exhibit
------ ----------------------
4.1 Amended and Restated Articles of Incorporation of Dan River
Inc. (incorporated by reference to Exhibit 3.1 in Amendment
No. 1 to Dan River's registration statement on Form S-1
(File No. 333-36479))
4.2 Bylaws of Dan River Inc. (incorporated by reference to
Exhibit 3.2 in Amendment No. 1 to Dan River's registration
statement on Form S-1 (File No. 333-36479))
4.3* Dan River Inc. 2003 Long-Term Incentive Plan
5.1* Opinion of King & Spalding LLP
23.1* Consent of Ernst & Young LLP
23.2 Consent of King & Spalding LLP (included as part of Exhibit
5.1)
24.1 Power of Attorney (included in signature pages).
*Filed herewith.
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