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As filed with the Securities and Exchange Commission on August 30, 1996.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
SUIZA FOODS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 75-2559681
-------------------------------- ---------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
3811 TURTLE CREEK BLVD.
SUITE 1300
DALLAS, TEXAS 75219
(214) 528-0939
(Address, including Zip Code, and Telephone Number, including Area
Code, of Registrant's Principal Executive Offices)
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SUIZA FOODS CORPORATION 1995
STOCK OPTION AND RESTRICTED STOCK PLAN
(Full Title of Plan)
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GREGG L. ENGLES COPY TO:
CHAIRMAN OF THE BOARD AND WILLIAM A. MCCORMACK, ESQ.
CHIEF EXECUTIVE OFFICER HUGHES & LUCE, L.L.P.
3811 TURTLE CREEK BLVD. 1717 MAIN STREET, SUITE 2800
SUITE 1300 DALLAS, TEXAS 75201
DALLAS, TEXAS 75219 (214) 939-5500
(214) 528-0939
(Name, Address, and Telephone Number,
including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF EACH CLASS AMOUNT MAXIMUM MAXIMUM AMOUNT OF
OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE
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Common Stock,
$.01 par value 1,069,500 17.19 $18,384,705 $6,340
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(1) An indeterminate number of additional shares of Common Stock may be issued
if the anti-dilution adjustment provisions of the plans become operative.
(2) Estimated solely for the purpose of calculating the registration fee on the
basis of the average of the high and low price paid per share of Common
Stock, as reported on the Nasdaq National Market on Thursday, August 29,
1996, in accordance with Rule 457(h) promulgated under the Securities Act
of 1933, as amended.
Page 1 of 13 sequentially numbered pages.
The Index to Exhibits is on page 8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by Suiza Foods Corporation (the
"Registrant") are incorporated by reference in this Registration Statement:
(a) Final Prospectus dated April 17, 1996 filed pursuant to Rule
424(b) of the Securities Act of 1933, as amended (the "Securities Act"),
relating to the Registrant's Registration Statement on Form S-1, as amended
(Reg. No. 333-1858), and the Registrant's Registration Statement under
Rule 462(b) of the Securities Act (Reg. No. 333-03698) (collectively the
"Form S-1 Registration Statement"), which contains audited financial
statements of the Registrant for the Registrant's last completed fiscal year
(the "Final Prospectus").
(b) All reports filed by the Registrant pursuant to Sections 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the Final Prospectus.
(c) The description of the Registrant's common stock, par value
$.01 per share (the "Common Stock"), contained in the Registrant's
Registration Statement on Form 8-A, dated March 30, 1996, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment to this Registration Statement which indicates
that all of the shares of Common Stock offered have been sold or which
deregisters all of such shares 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 filing of such documents (such documents, and the
documents enumerated above, being hereinafter referred to as "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
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.
II-1
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation provides, consistent
with the provisions of the Delaware General Corporation Law, that no director
of the Registrant will be personally liable to the Registrant or any of its
stockholders for monetary damages arising from the director's breach of
fiduciary duty as a director. This does not apply, however, with respect to
any action for unlawful payments of dividends, stock purchase or redemptions,
nor does it apply if the director: (i) has breached his duty of loyalty to
the Registrant and its stockholders; (ii) does not act in good faith or, in
failing to act, does not act in good faith; (iii) has acted in a manner
involving intentional misconduct or a knowing violation of law or, in failing
to act, has acted in a manner involving intentional misconduct or a knowing
violation of law; or (iv) has derived an improper personal benefit. The
provisions of the Certificate of Incorporation eliminating liability of
directors for monetary damages do not affect the standard of conduct to which
directors must adhere, nor do such provisions affect the availability of
equitable relief. In addition, such limitations on personal liability do not
affect the availability of monetary damages under causes of action based on
federal law.
Pursuant to the provisions of Section 145 of the Delaware General
Corporation Law, every Delaware corporation has the power to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (other than an
action by or in the right of the corporation) by reason of the fact that such
person is or was a director, officer, employee or agent of any corporation,
partnership, joint venture, trust or other enterprise, against any and all
expenses, judgments, fines and amounts paid in settlement and reasonably
incurred in connection with such action, suit or proceeding. The power to
indemnify applies to actions brought by or in the right of the corporation as
well, but only to the extent of defense and settlement expenses and not to
any satisfaction of a judgment or settlement of the claim itself, and with
the further limitation that in such actions no indemnification shall be made
in the event of any adjudication of negligence or misconduct unless the
court, in its discretion, believes that in light of all the circumstances
indemnification should apply.
The Underwriting Agreement between the Registrant and Bear, Stearns
& Co. Inc. and Piper Jaffray, Inc., as representatives of the underwriters
named therein, a form of which was filed as Exhibit 1.1 to the Company's Form
S-1 Registration Statement, contains agreements of indemnity between the
Registrant and the Underwriters as to certain liabilities, including
liabilities under the Securities Act, and in certain circumstances provides
for indemnification of the Registrant's officers and directors. In addition,
the Registrant intends to purchase and maintain insurance on behalf of its
directors and executive officers insuring them against any liability asserted
against them in their capacities as directors or executive officers or
arising out of such status.
II-2
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Index
to Exhibits on page II-7 of this Registration Statement, which Index is
incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The 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;
(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;
(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 the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement 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 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
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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 by the Registrant for liabilities
arising under the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described in
Item 6, or otherwise, the Registrant has been advised that in the opinion of
the 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 by the Registrant 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 Dallas, State of Texas, on August
29, 1996.
SUIZA FOODS CORPORATION
By: /s/ Gregg L. Engles
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Gregg L. Engles,
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
We, the undersigned officers and directors of Suiza Foods Corporation,
hereby severally constitute and appoint Gregg L. Engles and Tracy L. Noll, and
each of them, our true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for each of us in our name, place and stead,
in any and all capacities, to sign Suiza Food Corporation's Registration
Statement on Form S-8, and any other Registration Statement relating to the same
offering, and any and all amendments thereto (including post-effective
amendments), and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
and hereby grant to such attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as each of us might
or could do in person, hereby ratifying and confirming all that said attorneys-
in-fact and agents or any of them or his or their substitute or 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 below by the following persons in the capacities and
on the dates indicated.
/s/ Gregg L. Engles Chairman of the Board and Chief August 29, 1996
- -------------------------- Executive Officer
Gregg L. Engles
/s/ Cletes O. Beshears President, Chief Operating Officer August 29, 1996
- -------------------------- and Director
Cletes O. Beshears
/s/ Hector M. Nevares President of Suiza-Puerto Rico August 29, 1996
- -------------------------- and Director
Hector M. Nevares
/s/ Gayle O. Beshears President of Reddy Ice and Director August 29, 1996
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Gayle O. Beshears
II-5
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/s/ Tracy L. Noll Vice President, Chief Financial August 29, 1996
- -------------------------- Officer and Secretary
Tracy L. Noll
/s/ P. Eugene Pender Director August 29, 1996
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P. Eugene Pender
/s/ Stephen Green Director August 29, 1996
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Stephen Green
/s/ Robert L. Kaminski Director August 29, 1996
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Robert L. Kaminski
/s/ Robert Piccinini Director August 29, 1996
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Robert Piccinini
Director August , 1996
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Robert Bartholomew
II-6
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INDEX TO EXHIBITS
Exhibit Sequentially
Number Exhibit Numbered Page
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4.1 Specimen form of Common Stock certificate of the
Registrant (filed as Exhibit 4.1 to the Registrant's
Registration Statement on Form S-1
(Registration No. 333-1858) and incorporated herein
by this reference).
4.2 Amended and Restated Reorganization Agreement
(filed as Exhibit 2.1 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-1858)
and incorporated herein by this reference).
4.3 Certificate of Incorporation of the Registrant
(filed as Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-1858)
and incorporated herein by this reference).
4.4 Certificate of Amendment of Certificate of
Incorporation of the Registrant (filed as
Exhibit 3.2 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-1858)
and incorporated herein by this reference).
4.5 Certificate of Correction of Certificate of Amendment
of Certificate of Incorporation of the Registrant
(filed as Exhibit 3.3 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-1858)
and incorporated herein by this reference).
4.6 Certificate of Amendment of Certificate of
Incorporation of the Registrant (filed as
Exhibit 3.4 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-1858)
and incorporated herein by this reference).
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Exhibit Sequentially
Number Exhibit Numbered Page
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4.7 Bylaws of the Registrant (filed as Exhibit 3.5 to the
Registrant's Registration Statement on Form S-1
(Registration No. 333-1858) and incorporated herein
by this reference).
4.8 Registration Rights (Exhibit G(2 to Amended and
Restated Reorganization Agreement) (filed as
Exhibit 4.2 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-1858)
and incorporated herein by this reference).
4.9 Suiza Foods Corporation Exchange Stock Option and
Restricted Stock Option Plan (filed as Exhibit 10.1
to the Registrant's Registration Statement on
Form S-1 (Registration No. 333-1858) and
incorporated herein by this reference).
4.10 Exchange Stock Option and Restricted Stock Agreement
between the Company and Cletes O. Beshears (filed as
Exhibit 10.2 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-1858)
and incorporated herein by this reference).
4.11 Exchange Stock Option Agreement between the Company
and Gayle O. Beshears (filed as Exhibit 10.3 to the
Registrant's Registration Statement on Form S-1
(Registration No. 333-1858) and incorporated herein
by this reference).
4.12 Exchange Stock Option Agreement between the Company
and Gayle O. Beshears (filed as Exhibit 10.4 to the
Registrant's Registration Statement on Form S-1
(Registration No. 333-1858) and incorporated herein
by this reference).
4.13 Suiza Foods Corporation 1995 Stock Option and
Restricted Stock Plan (filed as Exhibit 10.5 to the
Registrant's Registration Statement on Form S-1
(Registration No. 333-1858) and incorporated herein
by this reference).
II-8
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Exhibit Sequentially
Number Exhibit Numbered Page
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4.14 Form of Option Agreement granted March 31, 1995
between Suiza Foods Corporation and
Messrs. Gregg L. Engles, Cletes O. Beshears,
Hector M. Nevares, Gayle O. Beshears and Tracy L. Noll
(filed as Exhibit 10.6 to the Registrant's
Registration Statement on Form S-1 (Registration
No. 333-1858) and incorporated herein by this
reference).
4.15 Form of Option Agreement granted January 1, 1996
between Messrs. Gregg L. Engles, Cletes O. Beshears,
Hector M. Nevares, Gayle O. Beshears, Tracy L. Noll
and Robert Piccinini (filed as Exhibit 10.7 to the
Registrant's Registration Statement on Form S-1
(Registration No. 333-1858) and incorporated herein
by this reference).
5.1 Opinion of Hughes & Luce, L.L.P. 11
23.1 Consent of Hughes & Luce, L.L.P.
(Contained in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP 12
24.1 Powers of Attorney (contained at Page II-5)
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EXHIBIT 5.1
[Hughes & Luce, L.L.P. Letterhead]
August 30, 1996
Suiza Foods Corporation
3811 Turtle Creek Boulevard
Suite 1300
Dallas, Texas 75219
Re: Registration Statement on Form S-8 for the Suiza Foods Corporation
1995 Stock Option and Restricted Stock Plan
Ladies and Gentlemen:
We have acted as special counsel to Suiza Foods Corporation, a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, of 1,069,500 shares (the "Shares") of the
Company's common stock, $.01 par value per share, issuable under the Suiza Foods
Corporation 1995 Stock Option and Restricted Stock Plan (the "Plan"). The
Shares are being registered pursuant to a registration statement on Form S-8 to
be filed with the Securities and Exchange Commission on or about August 30, 1996
(the "Registration Statement").
In connection with this opinion, we have examined such documents and
records of the Company and such statutes, regulations and other instruments and
certificates as we have deemed necessary or advisable for the purposes of this
opinion. We have assumed that all signatures on all documents presented to us
are genuine, that all documents submitted to us as originals are accurate and
complete and that all documents submitted to us as copies are true and correct
copies of the originals thereof. We have also relied upon such certificates of
public officials, corporate agents and officers of the Company and such other
certifications with respect to the accuracy of material factual matters
contained therein which were not independently established.
Based on the foregoing, we are of the opinion that the Shares will be, if
and when issued and paid for pursuant to the Plan, validly issued, fully paid
and nonassessable, assuming the Company maintains an adequate number of
authorized but unissued shares of common stock available for such issuance, and
further assuming that the consideration actually received by the Company for the
Shares exceeds the par value thereof.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Hughes & Luce, L.L.P.
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EXHIBIT 23.2
INDEPENDENT AUDITOR'S CONSENT
We consent to the use in this Registration Statement of Suiza Foods
Corporation on Form S-8 of our reports on the consolidated financial statements
of Suiza Foods Corporation dated February 18, 1996 (February 29, 1996 as to Note
13); the combined financial statements of Pre-Acquisition Suiza-Puerto Rico
dated April 15, 1994; and the financial statements of the Pre-Acquisition Velda
Farms dated November 4, 1994, appearing in the Registrant's Final Prospectus
dated April 17, 1996, filed pursuant to Rule 424(b) of the Securities Act,
incorporated by reference into this Registration Statement, and to the
reference to us therein under the heading "Experts" incorporated by reference
into this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Dallas, Texas
August 30, 1996
