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As filed with the Securities and Exchange Commission on December 3, 1998.
Registration No. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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 1997 STOCK OPTION
AND RESTRICTED STOCK PLAN
(Full title of the Plan)
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GREGG L. ENGLES COPY TO: LISA N. TYSON
CHAIRMAN OF THE BOARD AND SUIZA FOODS CORPORATION
CHIEF EXECUTIVE OFFICER 3811 TURTLE CREEK BLVD.
SUIZA FOODS CORPORATION SUITE 1300
3811 TURTLE CREEK BLVD., SUITE 1300 DALLAS, TEXAS 75219
DALLAS, TEXAS 75219 (214) 528-0939
(214) 528-0939
(Name, address, and telephone number, WILLIAM A. MCCORMACK
including area code, of agent for service) HUGHES & LUCE, L.L.P.
1717 MAIN STREET, SUITE 2800
DALLAS, TEXAS 75201
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE(2)
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<S> <C> <C> <C> <C>
Common Stock, 1,000,000 $46.0625 $46,062,500 $12,805.38
$.01 par value
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</TABLE>
(1) Pursuant to Rule 416 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 December 2,
1998, in accordance with Rule 457(h) promulgated under the Securities Act
of 1933, as amended.
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EXPLANATORY NOTE
Suiza Foods Corporation (the "Registrant") has amended its 1997 Stock
Option and Restricted Stock Plan (the "Plan") to add 1,000,000 shares of its
common stock, par value $.01 per share (the "Common Stock"), to the number of
shares available for issuance upon the exercise of options granted or grants of
Common Stock made pursuant to the Plan. This Registration Statement on Form S-8
is filed in order to register such additional 1,000,000 shares of Common Stock.
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 the Registrant and Continental Can
Company, Inc., a subsidiary of the Registrant, are incorporated by reference in
this Registration Statement:
(a) Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, which contains the Registrant's audited financial statements
for the Registrant's last completed fiscal year (the "1997 Form 10-K").
(b) Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998.
(c) Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1998, as amended.
(d) Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998.
(e) Registrant's Current Reports on Form 8-K filed January 15, 1998,
February 18, 1998, February 25, 1998, March 9, 1998 (as amended on April 7,
1998), March 10, 1998, March 18, 1998, March 20, 1998, June 2, 1998 and
September 14, 1998.
(f) Annual Report on Form 10-K of Continental Can Company, Inc. for
the fiscal year ended December 31, 1997.
(g) Quarterly Report on Form 10-Q of Continental Can Company, Inc.
for the quarter ended March 31, 1998.
(h) All other 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 1997 Form 10-K.
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(i) The description of the Registrant's 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").
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.
No 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.
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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 Hughes & Luce, L.L.P. (contained in Exhibit 5.1)
23.2* Consent of Deloitte & Touche, LLP
23.3* Consent of Arthur Andersen LLP
23.4* Consent of KPMG Peat Marwick LLP
24.1* Power of Attorney (contained on signature page)
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* Filed herewith.
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;
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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.
(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 a 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, 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 or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Dallas, State of Texas, on this 3rd
day of December, 1998.
SUIZA FOODS CORPORATION
By: /s/ Michelle P. Goolsby
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Michelle P. Goolsby
Executive Vice President, General
Counsel and Secretary
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POWER OF ATTORNEY
We, the undersigned officers and directors of Suiza Foods Corporation,
hereby severally constitute and appoint Michelle P. Goolsby and Lisa N. Tyson,
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, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ GREGG L. ENGLES Chairman of the Board, Chief December 3, 1998
- ---------------------------------- Executive Officer and Director
Gregg L. Engles (Principal Executive Officer)
/s/ CLETES O. BESHEARS
- ---------------------------------- Director December 3, 1998
Cletes O. Beshears
/s/ HECTOR M. NEVARES
- ---------------------------------- Director December 3, 1998
Hector M. Nevares
/s/ STEPHEN L. GREEN
- ---------------------------------- Director December 3, 1998
Stephen L. Green
/s/ ROBERT L. KAMINSKI
- ---------------------------------- Director December 3, 1998
Robert L. Kaminski
/s/ DAVID F. MILLER
- ---------------------------------- Director December 3, 1998
David F. Miller
/s/ P. EUGENE PENDER
- ---------------------------------- Director December 3, 1998
P. Eugene Pender
/s/ JOSEPH S. HARDIN, JR.
- ---------------------------------- Director December 3, 1998
Joseph S. Hardin, Jr.
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ ALAN J. BERNON
- ---------------------------------- Director December 3, 1998
Alan J. Bernon
/s/ DELTON C. PARKS
- ---------------------------------- Director December 3, 1998
Delton C. Parks
/s/ JOHN R. MUSE
- ---------------------------------- Director December 3, 1998
John R. Muse
/s/ JIM L. TURNER
- ---------------------------------- Director December 3, 1998
Jim L. Turner
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
5.1* Opinion of Hughes & Luce, L.L.P.
23.1* Consent of Hughes & Luce, L.L.P. (contained in Exhibit 5.1)
23.2* Consent of Deloitte & Touche, LLP
23.3* Consent of Arthur Andersen LLP
23.4* Consent of KPMG Peat Marwick LLP
24.1* Power of Attorney (contained on signature page)
__________________
* Filed herewith
</TABLE>
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EXHIBITS 5.1 AND 23.1
[Hughes & Luce, L.L.P. Letterhead]
December 3, 1998
Suiza Foods Corporation
3811 Turtle Creek Blvd.
Suite 1300
Dallas, Texas 75219
Re: Registration Statement on Form S-8
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 an additional 1,000,000 shares (the
"Shares") of the Company's common stock, $.01 par value per share (the "Common
Stock"), issuable upon the exercise of options granted or grants of Common Stock
made pursuant to 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 December 3, 1998 (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 in accordance with 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.
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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 23.2
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 dated March 27, 1998,
appearing in the Annual Report on Form 10-K of Suiza Foods Corporation for the
year ended December 31, 1997, and our report dated February 6, 1998 (February
20, 1998 as to Note 11) with respect to the financial statements of Land-O-Sun
Dairies, L.L.C., appearing in the Current Report on Form 8-K filed March 9,
1998, as amended on April 7, 1998, of Suiza Foods Corporation.
/s/ DELOITTE & TOUCHE, LLP
Dallas, Texas
December 2, 1998
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EXHIBIT 23.3
CONSENT OF ARTHUR ANDERSEN LLP
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of Suiza Foods Corporation on Form S-8
of our report dated November 26, 1997 included in Suiza Foods Corporation's Form
10-K for the year ended December 31, 1997.
/s/ ARTHUR ANDERSEN LLP
Dallas, Texas
December 2, 1998
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EXHIBIT 23.4
CONSENT OF KPMG PEAT MARWICK LLP
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Suiza Foods Corporation of our report on the consolidated financial
statements of Continental Can Company, Inc., dated March 5, 1998 appearing in
the Annual Report on Form 10-K of Continental Can, Inc. for the year ended
December 31, 1997.
/s/ KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Melville, New York
December 2, 1998
