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As filed with the Securities and Exchange Commission on May 29, 1997.
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
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(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 1997 STOCK OPTION
AND RESTRICTED STOCK PLAN
(Full Title of Plan)
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GREGG L. ENGLES COPY TO:
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER WILLIAM A. MCCORMACK
SUIZA FOODS CORPORATION JON L. MOSLE
3811 TURTLE CREEK BLVD., SUITE 1300 HUGHES & LUCE, L.L.P.
DALLAS, TEXAS 75219 1717 MAIN STREET, SUITE 2800
(214) 528-0939 DALLAS, TEXAS 75201
(Name, Address, and Telephone Number,
including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
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<S> <C> <C> <C> <C>
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 1,150,000 $28.88 $33,212,000 $10,064
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</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this
registration statement also covers an indeterminate additional amount of
shares of Common Stock to be offered or sold pursuant to the antidilution
provisions of the Suiza Foods Corporation 1997 Stock Option and Restricted
Stock Plan.
(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 New York Stock Exchange on May 27, 1997, in
accordance with Rule 457(h) promulgated under the Securities Act of 1933,
as amended.
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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) Annual Report on Form 10-K for the fiscal year ended December 31,
1996, which contains the Registrant's audited financial statements for the
Registrant's last completed fiscal year (the "1996 Form 10-K").
(b) Quarterly Report on Form 10-Q for the quarter ended March 31, 1997.
(c) 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 1996 Form 10-K.
(d) 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 February 19, 1997, (File Number 001-127-55),
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, "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.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation provides 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, with certain limited exceptions.
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 only if such person acted in good faith and in a manner
such person reasonably believed to be in the best interests, or not opposed
to the best interests, of the corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his or her conduct
was unlawful.
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 Registrant's Certificate of Incorporation contains provisions
requiring it to indemnify its officers and directors to the fullest extent
permitted by the Delaware General Corporation Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
5.1* Opinion of Hughes & Luce, L.L.P.
23.1* Consent of Deloitte & Touche LLP
23.2* Consent of Hughes & Luce, L.L.P. (contained in Exhibit 5.1)
24.1* Power of Attorney (contained in signature page)
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*Filed herewith.
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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 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
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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 May 27,
1997.
SUIZA FOODS CORPORATION
By: /s/ Tracy L. Noll
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Tracy L. Noll
Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
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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 singly, our true and lawful attorneys with full power to
them, and each of them singly, to sign for us and in our names in the
capacities indicated below, the Registration Statement on Form S-8 filed
herewith, any other Registration Statement related to the same offering, and
any and all amendments (including post-effective amendments) to the
Registration Statement, and generally to do all things in our name and behalf
in the capacities indicated below to enable Suiza Foods Corporation to comply
with the provisions of the Securities Act of 1933, as amended, and all
requirements to the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our attorneys, or any of
them, to said Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
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/s/ Gregg L. Engles
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Gregg L. Engles Chairman of the Board, Chief May 27, 1997
Executive Officer and Director
(Principal Executive Officer)
/s/ Cletes O. Beshears
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Cletes O. Beshears Director May 27, 1997
/s/ Hector M. Nevares
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Hector M. Nevares Director May 27, 1997
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Gayle O. Beshears Director May 27, 1997
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Stephen L. Green Director May 27, 1997
/s/ Robert L. Kaminski
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Robert L. Kaminski Director May 27, 1997
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David F. Miller Director May 27, 1997
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/s/ P. Eugene Pender
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P. Eugene Pender Director May 27, 1997
/s/ Robert Piccinini
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Robert Piccinini Director May 27, 1997
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EXHIBIT 5.1
OPINION OF HUGHES & LUCE, L.L.P.
[Hughes & Luce, L.L.P. Letterhead]
May 28, 1997
Suiza Foods Corporation
3811 Turtle Creek Blvd.
Suite 1300
Dallas, Texas 75219
Ladies and Gentlemen:
Re: Registration Statement on Form S-8 for the SUIZA FOODS
CORPORATION 1997 STOCK OPTION AND RESTRICTED STOCK PLAN
Ladies and Gentlemen:
We render this opinion as counsel to Suiza Foods Corporation, a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, of 1,150,000 shares (the "Shares") of the
Company's common stock, $.01 par value per share, issuable under the SUIZA FOODS
CORPORATION 1997 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 May 29, 1997
(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
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 received by the Company for the Shares
exceeds the par value thereof.
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Suiza Foods Corporation
May 28, 1997
Page Two
We consent to the use of this opinion as an exhibit to the Registration
Statement. In giving this consent, we do not admit that we are included in this
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules and regulations of the Securities and
Exchange Commission promulgated thereunder.
Very truly yours,
HUGHES & LUCE, L.L.P.
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Suiza Foods Corporation on Form S-8 of our report dated February
18, 1997, appearing in the Annual Report on Form 10-K of Suiza Foods
Corporation for the year ended December 31, 1996.
DELOITTE & TOUCHE, LLP
Dallas, Texas
May 28, 1997
