<PAGE>
As filed with the Securities and Exchange Commission on August 22, 1997.
Registration No. 333-
-------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-3
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)
--------------
Gregg L. Engles COPIES TO:
Chairman of the Board and William A. McCormack
Chief Executive Officer Jon L. Mosle
3811 Turtle Creek Blvd. Hughes & Luce, L.L.P.
Suite 1300 1717 Main Street, Suite 2800
Dallas, Texas 75219 Dallas, Texas 75201
(214) 528-0939 (214) 939-5500
(Name, address, and telephone number,
including area code, of agent for service)
--------------
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box: / /
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box: /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
---------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
---------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: / /
<TABLE>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SHARES TO BE AGGREGATE PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) FEE
- ------------------------------------------------------------------------------------
Common Stock,
$.01 par value 400,263 $41.00(2) $16,410,783.00(2) $4,972.96
- ------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Calculated pursuant to Rule 457(c) of the Securities Act of 1933, as
amended, based upon the high and low price per share of Suiza Foods
Corporation on August 19, 1997, as reported by the New York Stock Exchange.
--------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BE COME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
<PAGE>
SUIZA FOODS CORPORATION
400,263 SHARES
COMMON STOCK
--------------
This Prospectus relates to an offering of up to 400,263 shares of common
stock, par value $.01 per share (the "Common Stock"), of Suiza Foods
Corporation, a Delaware corporation (the "Company" or "Suiza Foods").
The Common Stock being registered is being offered for the accounts of
Plainview Ice and Cold Storage, Inc., Donald L. Johnson, Richard Johnson,
Benjamin and Janice Townend, Alan J. Bernon and Peter M. Bernon stockholders
of the Company (the "Selling Stockholders"). See "Selling Stockholders."
The Company will not receive any proceeds from the sale of shares of Common
Stock offered hereby. The shares may be offered in transactions on the New
York Stock Exchange (the "NYSE"), in negotiated transactions, or through a
combination of such methods of distribution, at prices relating to the
prevailing market prices or at negotiated prices. See "Plan of Distribution."
The Common Stock is quoted on the NYSE under the symbol "SZA." On
August 20, 1997 the last sale price of the Common Stock, as reported on the
NYSE, was $41.00 per share.
--------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE
--------------
No dealer, salesman or any other person has been authorized to give any
information or to make and representations in connection with this offering
other than those contained in this Prospectus and, if given or made, such
other information and representations must not be relied upon as having been
authorized by the Company or the Selling Stockholders. Neither the delivery
of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of the Company since the date hereof or that the information
contained herein is correct as of any time subsequent to its date. This
Prospectus does not constitute an offer to sell, or a solicitation of any
offer to buy, any securities other than the registered securities to which it
relates. This Prospectus does not constitute an offer to sell, or a
solicitation of any offer to buy, such securities in any circumstances in
which such offer or solicitation is unlawful.
--------------
The date of this Prospectus is August 21, 1997.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational reporting requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements, information statements
and other information with the Securities and Exchange Commission (the
"Commission"). Reports, proxy statements, information statements, and other
information filed by the Company with the Commission pursuant to the
requirements of the Exchange Act may be inspected and copied at Judiciary
Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549-1004 and at
the following regional offices of the Commission: New York Regional Office,
Seven World Trade Center, Suite 1300, New York, New York 10048; and Chicago
Regional Office, Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60606. Copies of such material may be obtained from
the Public Reference Room of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Company is a publicly held
corporation and its Common Stock is traded on the NYSE under the symbol
"SZA." Reports, proxy statements, information statements and other
information can also be inspected at the offices of the NYSE, 20 Broad
Street, New York, New York 10005. The Commission maintains a Web site that
contains reports, proxy statements, information statements and other
information regarding the Company. The Commission's Web site address is
http://www.sec.gov.
The Company intends to furnish its stockholders with annual reports
containing audited financial statements and such other periodic reports as it
may determine to furnish or as may be required by law.
The Company has filed with the Commission a Registration Statement on
Form S-3, (together with all exhibits thereto, the "Registration Statement")
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the shares of Common Stock offered hereby. This Prospectus does
not contain all information set forth in the Registration Statement. Certain
parts of the Registration Statement have been omitted in accordance with the
rules and regulations of the Commission. For further information, reference
is made to the Registration Statement which can be inspected at the public
reference rooms at the offices of the Commission.
2
<PAGE>
DOCUMENTS INCORPORATED BY REFERENCE
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, including any beneficial owner, upon the
written or oral request of such person, a copy of any or all of the documents
incorporated by reference herein (other than exhibits to such documents,
unless such exhibits are specifically incorporated by reference into the
information that this Prospectus incorporates). Requests should be directed
to:
Suiza Foods Corporation
3811 Turtle Creek Blvd.
Suite 1300
Dallas, Texas 75219
Attn: Corporate Secretary
(214) 528-0939
The (i) audited financial statements of Pre-Acquisition Velda Farms,
Garrido & Compania, Inc. and Subsidiaries, Swiss Dairy, a Corporation and
Model Dairy, Inc. included in the Company's Final Prospectus dated January
22, 1997 and filed with the Commission pursuant to Rule 424(B) on January 23,
1997 (File No. 333-18263); (ii) Company's Annual Report on Form 10-K, which
contains audited financial statements for the fiscal year ended December 31,
1996, (iii) all reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the Form 10-K, and (iv) a description of the Common Stock
contained in the Company's registration statement on Form 8-A, dated February
19, 1997 (File No. 001-127-55), including any amendment or reports filed for
the purpose of updating such description, are hereby incorporated by
reference into this Prospectus.
All documents filed with the Commission by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of this Prospectus and prior to the termination of the offering relating to
this Prospectus will be deemed to be incorporated by reference into this
Prospectus and to be a part hereof from the date of filing of such documents.
Any statement incorporated or deemed to be incorporated by reference herein
will be deemed to be modified, replaced, or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement
so modified or superseded will be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
3
<PAGE>
THE COMPANY
Suiza Foods is a leading manufacturer and distributor of fresh milk
products, refrigerated ready-to-serve fruit drinks and coffee in Puerto Rico,
fresh milk and related dairy products in Florida, California and Nevada, and
packaged ice in Florida and the southwestern United States.
The Company conducts its dairy operations primarily through its Puerto
Rico dairy subsidiaries, Velda Farms, Inc., Swiss Dairy Corporation, Model
Dairy, Inc., Dairy Fresh, Inc. and Garelick Farms, Inc., its plastics
operations through Franklin Plastics, Inc. and its ice operations through
Reddy Ice Corporation. Each of these subsidiaries is a strong regional
competitor with an established reputation for customer service and product
quality. The Company's dairy and ice subsidiaries market their products
through extensive distribution networks to a diverse group of customers,
including convenience stores, grocery stores, schools and institutional food
service customers. The Company has grown primarily through acquisitions.
Through these acquisitions, the Company has realized economies of scale and
operating efficiencies by eliminating duplicative manufacturing,
distribution, purchasing and administrative operations.
The Company is a Delaware corporation with its principal offices located
at 3811 Turtle Creek Boulevard, Suite 1300, Dallas, Texas 75219 (telephone
number 214-528-0939).
RISK FACTORS
ANY INVESTMENT IN THE COMMON STOCK HEREBY INVOLVES A HIGH DEGREE OF
RISK. PROSPECTIVE INVESTORS SHOULD READ THIS ENTIRE PROSPECTUS CAREFULLY AND
SHOULD CONSIDER, AMONG OTHER THINGS, THE RISKS AND THE SPECULATIVE FACTORS
INHERENT IN AND AFFECTING THE COMPANY'S BUSINESS DESCRIBED BELOW AND
THROUGHOUT THIS PROSPECTUS.
POTENTIAL LIMITATIONS ON EXPANSION
The Company intends to grow principally through acquisitions of dairy
and ice operations or other food related businesses. The Company will
evaluate specific acquisition opportunities based on market conditions and
economic factors existing at the time and intends to pursue favorable
opportunities as they arise. There can be no assurance that the Company will
find suitable acquisition candidates or succeed in integrating any acquired
business into the Company's existing business or in retaining key customers
of acquired businesses. There can also be no assurance that the Company will
have sufficient available capital resources to realize its acquisition
strategy.
COMPETITION
The Company's dairy, fruit drink, food distribution and ice businesses
are subject to significant competition from regional dairy operations and
large national food service distributors that operate in the Company's
markets. Competition in the dairy processing, fruit
4
<PAGE>
drink and food distribution businesses is based primarily on service, price,
brand recognition, quality and breadth of product line. Many of the
Company's competitors are larger, better capitalized and have greater
financial, operational and marketing resources than the Company.
The dairy industry has excess capacity and has been in the process of
consolidation for many years. Excess capacity has resulted from the
development of more efficient manufacturing techniques, the establishment of
captive dairy manufacturing operations by large grocery retailers and
relatively little growth in the demand for fresh milk products. The
increased use of captive dairy manufacturing operations by the Company's
customers could have an adverse effect on the Company's operations.
The plastic container manufacturing industry is also subject to
significant competition. The Company competes with larger independent
manufacturing companies and vertically integrated food and industrial
companies that operate captive plastic container manufacturing facilities.
The primary competitive factors in the plastic container manufacturing
industry are price, quality and service. Many of the companies competitors
are larger and better capitalized than the Company, and have greater
resources than the Company.
The packaged ice business is also highly competitive. The Company faces
a number of competitors in the packaged ice business, including smaller
independent ice manufacturers, convenience and grocery retailers that operate
captive commercial ice plants and retailers that manufacture and package ice
at store locations. Competition exists primarily on a regional basis, with
service, price and quality as the principal competitive factors. A
significant increase in the utilization of captive commercial ice plants or
on-site manufacturing by operators of large retail chains served by the
Company could have an adverse effect on the Company's operations.
SUBSTANTIAL INDEBTEDNESS
The Company has substantial indebtedness. The Company's senior credit
facility and related debt service obligations (i) limit the Company's ability
to obtain additional financing in the future; (ii) require the Company to
dedicate a significant portion of the Company's cash flow to the payment of
principal and interest on its indebtedness, thereby reducing the funds
available to the Company for other purposes; (iii) limit the Company's
flexibility in planning for, or reacting to, changes in its business and
market conditions; and (iv) impose additional financial and operational
restrictions on the Company, including restrictions on dividends.
The Company's ability to make scheduled payments on its indebtedness
depends on its financial and operating performance, which is subject to
prevailing economic conditions and to financial, business and other factors,
some of which are beyond the Company's control. The Company has pledged
substantially all of its assets, including the stock of its operating
subsidiaries (except for 35% of the capital stock of its Garrido y Compania,
Inc. subsidiary), to secure the Company's indebtedness under the senior
credit facility. The failure of the Company to comply with the financial and
other restrictive covenants under the senior credit facility may result in an
event of default which, if not cured or waived, could have a material adverse
effect on the Company. The Company has entered into various interest rate
agreements to reduce its
5
<PAGE>
exposure to interest rate fluctuations under the senior credit facility.
These agreements have the effect of fixing the Company's interest rate with
respect to a portion of its indebtedness under the senior credit facility.
GOVERNMENT REGULATION; RAW MATERIAL COSTS
The supply and price of milk in Puerto Rico are regulated under Puerto
Rico law. The government of Puerto Rico establishes an industry-wide
production ceiling and sets the prices that may be charged for milk at the
dairy farm level and the maximum prices that may be charged at the processor
and retail levels. These prices are reviewed on an annual basis and remain
fixed unless changed by the government. The price controls in Puerto Rico
make the Company vulnerable to increases in the costs of manufacturing,
packaging and distributing its products. There can be no assurance that the
Company's operating results will not be adversely affected by price levels
set by the government.
The price of raw milk in the mainland United States fluctuates based on
supply and demand, with minimum support prices established monthly on a
regional basis by federal and/or state government agencies. Congress has
recently passed legislation to phase out support prices over a specified
period. There can be no assurance that a material increase in milk prices in
the mainland United States will not occur or that any such increase would not
reduce the profitability of the Company's operations.
The Company's operations are also subject to other federal, Puerto Rico,
state and local governmental regulation.
SEASONALITY OF ICE BUSINESS
The Company's ice business is seasonal, with its highest sales occurring
during the second and third calendar quarters. Because the Company's results
of operations for its ice business depend significantly on sales during its
peak season, adverse weather during this season (such as an unusually mild or
rainy period) could have a disproportionate impact on the Company's results
of operations for the full year.
DEPENDENCE ON KEY PERSONNEL
The future success of the Company's business operations is dependent in
part on the efforts and skills of certain key members of management,
including Gregg L. Engles, Chairman and Chief Executive Officer of the
Company. The loss of any of its key members of management could have an
adverse effect on the Company. The Company has not obtained key man life
insurance with respect to any of its key members of management.
LIMITATIONS ON FAVORABLE TAX TREATMENT
Under Section 936 of the Internal Revenue Code of 1986, as amended, a
portion of the Company's income derived from its dairy, fruit drink and
plastic bottle operations in Puerto Rico
6
<PAGE>
qualifies for a tax credit that has the effect of reducing or eliminating
United States income taxes on income derived from these operations. In the
Revenue Reconciliation Act of 1993, the United States Congress imposed
certain limitations on the availability of the Section 936 credit. In August
1996, Congress passed the Small Business Job Protection Act of 1996 which
contains further restrictions on the availability of Section 936 credits and
eliminates Section 936 altogether by December 31, 2005. These limitations,
combined with certain other provisions in the tax code that govern the
allocation among affiliated corporations of credits derived under Section
936, may limit the amount of the tax credit available to the Company prior to
the expiration of Section 936.
ANTITAKEOVER PROVISIONS
The Company's charter and bylaws contain provisions that may delay,
defer or prevent a change in control of the Company. Among other things,
these provisions: (i) authorize the Board of Directors to issue preferred
stock in series with the terms of each series to be fixed by the Board of
Directors; (ii) divide the Board of Directors into three classes so that only
approximately one-third of the total number of directors will be elected each
year; (iii) permit directors to be removed only for cause; and (iv) specify
advance notice requirements for stockholder proposals and director
nominations.
7
<PAGE>
SELLING STOCKHOLDERS
The table below sets forth information with respect to the beneficial
ownership of the Company's Common Stock by the Selling Stockholders immediately
prior to this offering and as adjusted to reflect the sale of shares of Common
Stock pursuant to the offering. All information with respect to the beneficial
ownership has been furnished by the Selling Stockholders:
<TABLE>
Beneficial Ownership Beneficial Ownership
Prior to Offering After Offering(1)
---------------------------------- -----------------------
Number of Percent of Shares to Number of Percent of
Name of Beneficial Owner Shares Class be Sold Shares Class
- ------------------------ --------- -------- --------- --------- ----------
<S> <C> <C> <C> <C> <C>
Plainview Ice and Cold Storage, Inc.(2) 3,000 * 3,000 -0- -0-
Donald L. Johnson (2) 3,000 * 3,000 -0- -0-
Richard Johnson (2) 3,000 * 3,000 -0- -0-
Benjamin Townend and Janice Townend (3) 93,863 * 93,863 -0- -0-
Alan J. Bernon (4) 148,700 1.0 148,700 -0- -0-
Peter M. Bernon (4) 148,700 1.0 148,700 -0- -0-
</TABLE>
- --------------
* Less than 1%.
(1) Assumes all the shares of Common Stock that may be offered are sold.
(2) The address for each of these stockholders is 505 W. 47th, Amarillo,
Texas 79110.
(3) The address for each of these stockholders is 4219 Nova Lane, Lantana,
Florida 33462.
(4) The address for each of these stockholders is c/o Garelick Companies,
1199 West Central Street, Franklin, Massachusetts 02038-0923.
PLAN OF DISTRIBUTION
The sale of the Common Stock offered hereby may be effected from time to
time directly, or by one or more broker-dealers or agents, in one or more
transactions (which may involve crosses and block transactions) on the NYSE, in
negotiated transactions, or through a combination of such methods of
distribution, at prices related to prevailing market prices or at negotiated
prices.
If one or more broker-dealers or agents agree to sell the Common Stock,
they may do so by purchasing the Common Stock as principals or by selling the
Common Stock as agent for the Selling Stockholders. Any such broker-dealers may
receive compensation in the form of discounts, concessions, or commissions from
the Selling Stockholders or the purchasers of the shares of Common Stock for
which such broker-dealer may act as agent or to whom they sell as principal, or
both (which compensation as to a particular broker-dealer may be in excess of
customary compensation).
USE OF PROCEEDS
The Company will not receive any proceeds from this offering.
8
<PAGE>
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for the
Company by Hughes & Luce, L.L.P., Dallas, Texas. William A. McCormack, a
partner with Hughes & Luce, L.L.P., beneficially owns 41,795 shares of Common
Stock.
EXPERTS
The consolidated financial statements of Suiza Foods Corporation as of
December 31, 1996 and 1995 and for each of the three years in the period ended
December 31, 1996; the financial statements of Pre-Acquisition Velda Farms as of
April 9, 1994 and December 31, 1994 and for the period from January 1, 1994 to
April 9, 1994 and for the year ended December 31, 1993; and the financial
statements of Swiss Dairy, a Corporation, as of December 30, 1995 and December
31, 1994 and for each of the three years in the period ended December 30, 1995
incorporated by reference into this Prospectus have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their reports which are
incorporated herein by reference. The consolidated financial statements of
Garrido & Compania, Inc. as of June 30, 1996 and 1995 and for each of the years
in the three year period ended June 30, 1996 have been audited by KPMG Peat
Marwick LLP, independent auditors, as stated in their report which is
incorporated herein by reference. The financial statements of Model Dairy, Inc.
as of October 31, 1995 and 1994 and for the years then ended have been audited
by Barnard, Vogler & Co., independent auditors, as stated in their report which
is incorporated herein by reference. Such financial statements are incorporated
herein by reference in reliance upon the respective reports of such firms given
upon their authority as experts in accounting and auditing.
9
<PAGE>
400,263 SHARES
SUIZA FOODS CORPORATION
COMMON STOCK
----------
PROSPECTUS
----------
TABLE OF CONTENTS
Page
----
Available Information 2
Documents Incorporated by Reference 3
The Company 4
Risk Factors 4
Selling Stockholders 8
Plan of Distribution 8
Use of Proceeds 8
Legal Matters 9
Experts 9
August 21, 1997
<PAGE>
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table indicates the estimated expenses to be incurred in
connection with the offering described in this Registration Statement, all of
which will be paid by the Company.
Registration fee $ 4,973
Accounting fees and expenses 5,000
Legal fees and expenses 10,000
Blue Sky fees and expenses (including
counsel fees) 1,500
Miscellaneous expenses 2,000
-------
Total: $23,473
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation provides that no director of the
Company will be personally liable to the Company 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 Company'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.
II-1
<PAGE>
ITEM 16. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Index to
Exhibits on page II-6 of this Registration Statement, which Index is
incorporated herein by reference.
ITEM 17. 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.
(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 the
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 and 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.
(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.
(b) The undersigned Registrant hereby undertakes 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) and 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
II-2
<PAGE>
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.
(c) 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 Commission 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.
II-3
<PAGE>
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-3 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
21, 1997.
SUIZA FOODS CORPORATION
By: /s/ Tracy L. Noll
------------------------------------------
Tracy L. Noll
Vice President, Secretary and Chief
Financial Officer
(Principal Financial and Accounting
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 law 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-3, 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 of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Gregg L. Engles Chairman of the Board, Chief August 21, 1997
- ------------------- Executive Officer and Director
Gregg L. Engles (Principal Executive Officer)
/s/ Tracy L. Noll Vice President, Secretary and August 21, 1997
- ------------------- Chief Financial Officer
Tracy L. Noll (Principal Financial and Accounting
Officer)
II-4
<PAGE>
Signature Title Date
--------- ----- ----
/s/ Alan J. Bernon Director August 21, 1997
- ---------------------
Alan J. Bernon
- --------------------- Director August __, 1997
Cletes O. Beshears
- --------------------- Director August __, 1997
Hector M. Nevares
- --------------------- Director August __, 1997
Gayle O. Beshears
/s/ Stephen L. Green Director August 21, 1997
- ---------------------
Stephen L. Green
/s/ Robert L. Kaminski Director August 21, 1997
- ---------------------
Robert L. Kaminski
Director August __, 1997
- ---------------------
David F. Miller
/s/ P. Eugene Pender Director August 21, 1997
- ---------------------
P. Eugene Pender
/s/ Robert Piccinini Director August 21, 1997
- ---------------------
Robert Piccinini
II-5
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibits
- ------- -----------------------
4.1 Specimen of Common Stock Certificate.
(Filed Exhibit 4.1 to the Company's
Registration Statement on Form S-1,
Registration No. 333-1858, and incorporated
herein by reference.)
*5.1 Opinion of Hughes & Luce, L.L.P.
*23.1 Consent of Hughes & Luce, L.L.P. (included in Exhibit 5.1)
*23.2 Consent of Deloitte & Touche LLP
*23.3 Consent of KPMG Peat Marwick LLP
*23.4 Consent of Barnard, Vogler & Co.
*24.1 Power of Attorney (included in Part II of this Registration Statement)
- ---------------------
* Filed Herewith.
II-6
<PAGE>
EXHIBIT 5.1
OPINION OF HUGHES & LUCE, L.L.P.
[HUGHES & LUCE, L.L.P. LETTERHEAD]
August 21, 1997
Suiza Foods Corporation
3811 Turtle Creek Blvd.
Suite 1300
Dallas, Texas 75219
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 (the "Act"), of 400,263 shares of the
Company's common stock, par value $.01 per share (the "Common Stock") held by
Plainview Ice and Cold Storage, Inc., Donald L. Johnson, Richard Johnson,
Benjamin and Janice Townend, Alan J. Bernon and Peter M. Bernon (the "Selling
Stockholders") as described in the Registration Statement of the Company on
Form S-3 (the "Registration Statement") filed with the Securities and
Exchange Commission.
In rendering this opinion, we have examined and relied upon executed
originals, counterparts or copies of such documents, records and certificates
(including certificates of public officials and officers of the Company) as
we considered necessary or appropriate for enabling us to express the
opinions set forth herein. In all such examinations, we have assumed the
authenticity and completeness of all documents submitted to us as originals
and the conformity to originals and completeness of all documents submitted
to us as photostatic, conformed, notarized or certified copies.
Based on the foregoing, we are of the opinion that such shares of Common
Stock have been duly authorized, validly issued, fully paid and nonassessable.
This opinion may be filed as an exhibit to the Registration Statement.
We also consent to the reference to this firm as having passed on the
validity of such shares of Common Stock under the caption "Legal Matters" in
the prospectus that constitutes a part of the Registration Statement. In
giving this consent, we do not admit that we are included in the category of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
HUGHES & LUCE, L.L.P.
<PAGE>
EXHIBIT 23.2
CONSENT OF DELOITTE & TOUCHE LLP
We consent to the incorporation by reference in this Registration
Statement of Suiza Foods Corporation on Form S-3 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; and of our reports on the
financial statements of Pre-Acquisition Velda Farms, dated November 4, 1994,
and Swiss Dairy, a Corporation, dated August 28, 1996, appearing in the final
prospectus of Suiza Foods Corporation dated January 22, 1997 and filed with
the Securities and Exchange Commission pursuant to Rule 424(B) on January 23,
1997 (File No. 333-18263), and to the reference to us under the heading
"Experts" in the Prospectus, which is part of such Registration Statement.
Deloitte & Touche LLP
Dallas, Texas
August 21, 1997
<PAGE>
EXHIBIT 23.3
CONSENT OF KPMG PEAT MARWICK LLP
We consent to the incorporation by reference in the Registration
Statement on Form S-3 of Suiza Foods Corporation and the related prospectus
of our report dated August 23, 1996, with respect to the consolidated balance
sheets of Garrido & Compania, Inc. and Subsidiaries as of June 30, 1996 and
1995, and the related consolidated statements of earnings, changes in
stockholders' equity, and cash flows for each of the years in the three-year
period ended June 30, 1996, appearing in the final prospectus of Suiza Foods
Corporation dated January 22, 1997 and filed with the Securities and Exchange
Commission pursuant to Rule 424(B) on January 23, 1997 (File No. 333-18263),
and to the reference to us under the heading "Experts" in this Prospectus,
which is part of such Registration Statement.
KPMG PEAT MARWICK LLP
San Juan, Puerto Rico
August 21, 1997
<PAGE>
EXHIBIT 23.4
CONSENT OF BARNARD, VOGLER & CO.
We consent to the incorporation by reference in this Registration
Statement of Suiza Foods Corporation on Form S-3 of our report dated December
14, 1995, with respect to the balance sheets of Model Dairy, Inc. as of
October 31, 1995 and 1994, and the related statements of earnings and
retained earnings, and cash flows for the years then ended, appearing in the
final prospectus of Suiza Foods Corporation dated January 22, 1997 and filed
with the Securities and Exchange Commission pursuant to Rule 424(B) on
January 23, 1997 (File No. 333-18263), and to the reference to us under the
heading "Experts" in the Prospectus, which is part of such Registration
Statement.
BARNARD, VOGLER & CO.
Reno, Nevada
August 21, 1997
