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As filed with the Securities and Exchange Commission on December 2, 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
COUNTRY FRESH, INC. 1989 STOCK OPTION PLAN(1)
1991 INCENTIVE AND NONSTATUTORY STOCK OPTION PLAN(2)
1992 INCENTIVE AND NONSTATUTORY STOCK OPTION PLAN(2)
1992 DIRECTOR STOCK OPTION PLAN(2)
1994 INCENTIVE AND NONSTATUTORY STOCK OPTION PLAN(2)
1996 DIRECTOR STOCK OPTION PLAN(2)
(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
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TITLE OF PROPOSED
EACH CLASS OF AMOUNT MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO TO BE OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED REGISTERED(3) PER SHARE OFFERING PRICE FEE
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Common Stock,
$.01 par value 1,850,000 $58.125(4) $107,531,250(4) $31,722
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Common Stock,
$.01 par value 2,957,987 $ 15.17(5) $ 44,872,663(5) $13,238
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Common Stock,
$.01 par value 229,068 $ 10.08(6) $ 2,309,005(6) $ 681
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Total $45,641
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(1) Originally sponsored by Country Fresh, Inc. and assumed by the registrant
pursuant to the merger between a wholly-owned subsidiary of the registrant
and Country Fresh, Inc. (the "Country Fresh Plan").
(2) Originally sponsored by The Morningstar Group Inc. and assumed by the
registrant pursuant to the merger between a wholly-owned subsidiary of the
registrant and The Morningstar Group Inc. (such plans are referred to
collectively as the "Morningstar Plans").
(3) Pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan(s) described
herein.
(4) With respect to the 1,850,000 shares registered for issuance under the
Suiza Foods Corporation 1997 Stock Option and Restricted Stock Plan, the
proposed maximum offering price per share is 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 November 28, 1997, in accordance with Rule
457(h) promulgated under the Securities Act of 1933, as amended.
(5) With respect to the 2,957,987 shares registered for issuance under the
Morningstar Plans, the proposed maximum offering price per share equals
the weighted average price at which outstanding options under the
Morningstar Plans may be exercised, in accordance with Rule 457(h)
promulgated under the Securities Act of 1933, as amended.
(6) With respect to the 229,068 shares registered for issuance under the
Country Fresh Plan, the proposed maximum offering price per share equals
the price at which outstanding options under the Country Fresh Plan may
be exercised, 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) Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as
amended.
(d) Quarterly Report on Form 10-Q for the quarter ended September 30,
1997.
(e) Current Report on Form 8-K filed July 14, 1997 (as amended on August
22, 1997).
(f) Current Report on Form 8-K filed September 29, 1997.
(g) Current Report on Form 8-K filed October 31, 1997.
(h) 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 end of the fiscal year covered by the 1996 Form 10-K.
(i) 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 001-12755), 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").
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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.
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 the corporation or is
or was serving in such a capacity at the request of the corporation for another
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.
<PAGE>
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 McGladrey & Pullen, LLP
23.3 Consent of Coopers & Lybrand L.L.P.
23.4 Consent of Hughes & Luce, L.L.P. (contained in Exhibit 5.1)
24.1 Power of Attorney (contained in signature page)
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 relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
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(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 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 this 1st
day of December, 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
- ---------------------- Chairman of the Board, Chief December 1, 1997
Gregg L. Engles Executive Officer and Director
(Principal Executive Officer)
/s/ Tracy L. Noll
- ---------------------- Vice President and Chief December 1, 1997
Tracy L. Noll Financial Officer (Principal
Financial and Accounting Officer)
- ---------------------- Vice Chairman of the Board December 1, 1997
Cletes O. Beshears and Director
/s/ Hector M. Nevares
- ---------------------- Vice Chairman of the Board December 1, 1997
Hector M. Nevares and Director
/s/ Gayle O. Beshears
- ---------------------- Director December 1, 1997
Gayle O. Beshears
- ---------------------- Director December 1, 1997
Stephen L. Green
/s/ Robert L. Kaminski
- ---------------------- Director December 1, 1997
Robert L. Kaminski
/s/ David F. Miller
- ---------------------- Director December 1, 1997
David F. Miller
- ---------------------- Director December 1, 1997
P. Eugene Pender
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/s/ Robert Piccinini
- ---------------------- Director December 1, 1997
Robert Piccinini
- ---------------------- Director December 1, 1997
Alan J. Bernon
- ---------------------- Director December 1, 1997
Delton C. Parks
- ---------------------- Director December 1, 1997
John R. Muse
/s/ Jim L. Turner
- ---------------------- Director December 1, 1997
Jim L. Turner
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[LETTERHEAD]
December 2, 1997
Suiza Foods Corporation
3811 Turtle Creek Blvd.
Suite 1300
Dallas, Texas 75219
Ladies and Gentlemen:
Re: Registration Statement on Form S-8 for various stock option plans
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 5,037,055 shares (the "Shares") of the
Company's common stock, $.01 par value per share, issuable under various
plans (the "Plans"). 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 December 2, 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 Plans, 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.
<PAGE>
Suiza Foods Corporation
December 2, 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
the 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,
/s/ HUGHES & LUCE, L.L.P.
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EXHIBIT 23.1
CONSENT OF DELOITTE & TOUCHE LLP
We consent to the incorporation by reference in this Registration Statement
of Suiza Foods Corporation on Form S-8 of our report on the consolidated
financial statements of Suiza Foods Corporation, dated February 18, 1997,
incorporated by reference in the Annual Report on Form 10-K of Suiza Foods
Corporation for the year ended December 31, 1996.
/s/ DELOITTE & TOUCHE, LLP
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DELOITTE & TOUCHE, LLP
Dallas, Texas
December 1, 1997
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EXHIBIT 23.2
CONSENT OF McGLADREY & PULLEN, LLP
We hereby consent to the incorporation by reference in this Registration
Statement of Suiza Foods Corporation on Form S-8 of our report dated March 10,
1997, except for Note 13 as to which the date is July 1, 1997, with respect to
the financial statements of Dairy Fresh, L.P., a Delaware limited partnership,
included in the Current Report on Form 8-K filed July 14, 1997, as amended on
August 22, 1997, of Suiza Foods Corporation.
/s/ McGLADREY & PULLEN, LLP
Winston-Salem, North Carolina
December 1, 1997
<PAGE>
EXHIBIT 23.3
CONSENT OF COOPERS & LYBRAND, L.L.P.
We hereby consent to the incorporation by reference in this Registration
Statement of Suiza Foods Corporation on Form S-8 of our report dated July 31,
1997, with respect to the combined financial statements of The Garelick
Companies, included in the Current Report on Form 8-K filed July 14, 1997, as
amended on August 22, 1997, of Suiza Foods Corporation.
/s/ COOPERS & LYBRAND L.L.P.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
December 1, 1997
