<PAGE>
================================================================================
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
Filed by the Registrant [X]
Filed by a Party other than the Registrant [_]
Check the appropriate box:
[X] Preliminary Proxy Statement [_] Confidential, for Use of the
Commission Only (as permitted by
Rule 14a-6(e)(2))
[_] Definitive Proxy Statement
[_] Definitive Additional Materials
[_] Soliciting Material Pursuant to Section 240.14a-11(c) or Section 240.14a-12
Suiza Foods Corporation
- --------------------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
Suiza Foods Corporation
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[_] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which
the filing fee is calculated and state how it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[_] Fee paid previously with preliminary materials.
[_] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
<PAGE>
SUIZA FOODS CORPORATION
3811 Turtle Creek Blvd.
Suite 1300
Dallas, Texas 75219
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD MAY 14, 1998
As a stockholder of Suiza Foods Corporation (the "Company"), you are hereby
given notice of and invited to attend in person or by proxy the Annual Meeting
of Stockholders of the Company (the "Meeting") to be held at the Crescent Court
Hotel, 400 Crescent Court, Dallas, Texas, on Thursday, May 14, 1998, at 10:00
a.m. local time, for the following purposes:
1. To elect four Class III directors to serve until the expiration of
their terms and until their successors are elected and qualified;
2. To amend the Company's Certificate of Incorporation to increase the
number of authorized shares of Common Stock, $.01 par value per share
(the "Common Stock"), from 100,000,000 shares to 500,000,000 shares;
3. To approve an increase in the number of shares of Common Stock
authorized for issuance under the Suiza Foods Corporation 1997 Stock
Option and Restricted Stock Plan from 3,000,000 shares to 4,000,000
shares;
4. To ratify the selection of Deloitte & Touche LLP as the Company's
independent auditors for fiscal year 1998; and
5. To transact such other business as may properly come before the
Meeting and any adjournment(s) thereof.
The Board of Directors has fixed the close of business on March 25, 1998 as
the record date (the "Record Date") for the determination of stockholders
entitled to notice of and to vote at the Meeting and any adjournment(s) thereof.
Only stockholders of record at the close of business on the Record Date are
entitled to notice of and to vote at the meeting.
YOU ARE CORDIALLY INVITED TO ATTEND THE MEETING. HOWEVER, WHETHER OR NOT
YOU EXPECT TO ATTEND, THE COMPANY DESIRES TO HAVE MAXIMUM REPRESENTATION AT THE
MEETING AND RESPECTFULLY REQUESTS THAT YOU SIGN, DATE, AND MAIL PROMPTLY THE
ENCLOSED PROXY IN THE POSTAGE PAID ENVELOPE PROVIDED. NO ADDITIONAL POSTAGE IS
REQUIRED IF MAILED IN THE UNITED STATES. A PROXY MAY BE REVOKED BY A STOCKHOLDER
AT ANY TIME PRIOR TO ITS USE AS SPECIFIED IN THE ENCLOSED PROXY STATEMENT.
By Order of the Board of Directors
GREGG L. ENGLES
Chairman of the Board and
Chief Executive Officer
Dallas, Texas
March 31, 1998
YOUR VOTE IS IMPORTANT.
PLEASE SIGN, DATE AND RETURN PROMPTLY THE
ENCLOSED PROXY CARD IN THE POSTAGE PAID ENVELOPE PROVIDED.
<PAGE>
SUIZA FOODS CORPORATION
3811 Turtle Creek Blvd.
Suite 1300
Dallas, Texas 75219
---------------------------
PROXY STATEMENT
---------------------------
FOR THE ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD MAY 14, 1998
---------------------------
This Proxy Statement is furnished in connection with the solicitation by
Suiza Foods Corporation (the "Company") of proxies to be voted at its Annual
Meeting of Stockholders to be held at 10:00 a.m. on Thursday, May 14, 1998, at
the Crescent Court Hotel, 400 Crescent Court, Dallas, Texas (the "Meeting") and
at any adjournment(s) thereof for the purposes set forth in the accompanying
Notice of Annual Meeting of Stockholders. This Proxy Statement and the enclosed
Proxy Card was first mailed or given to stockholders on or about March 31, 1998.
Any proxy may be revoked by a stockholder at any time prior to its use by
execution of another proxy bearing a later date, by written notice to the
Secretary of the Company at the address set forth above or by oral or written
statement at the Meeting. Shares represented by any proxy properly executed and
received prior to the Meeting will be voted at the Meeting in accordance with
the proxy or, if the proxy does not specify, in accordance with the
recommendation of the Board of Directors of the Company (the "Board").
Stockholders of record at the close of business on March 25, 1998 (the
"Record Date") are entitled to notice of and to vote at the Meeting. On the
Record Date, the Company had ________________ shares of common stock, par value
$.01 per share (the "Common Stock"), outstanding. Each share of Common Stock
outstanding on the Record Date is entitled to one vote on any matter submitted
to the holders of Common Stock for a vote. Stockholders are not entitled to
cumulate their votes in the election of directors.
A quorum for the Meeting requires the presence in person or by proxy of
stockholders entitled to cast a majority of the votes entitled to be cast at the
Meeting. If a quorum is not present, the Meeting may be adjourned from time to
time without further notice, if the time and place of the adjourned meeting are
announced at the Meeting, until a quorum is obtained. Shares held by
stockholders present at the meeting in person who do not vote on a particular
matter, ballots marked "abstain" with respect to a matter and "broker nonvotes"
that cannot be voted on a matter will be counted as present at the Meeting for
quorum purposes, but will be deemed not to have been cast and will have no legal
effect on the vote with respect to any such matter.
MATTERS TO BE BROUGHT BEFORE THE MEETING
PROPOSAL 1 - ELECTION OF DIRECTORS
The Board has proposed Alan J. Bernon, Gregg L. Engles, P. Eugene Pender
and Robert Piccinini as nominees for reelection as Class III directors to serve
for three year terms and until their successors are elected and qualified. A
plurality of the votes cast at the Meeting is required to elect each nominee.
Shares represented
<PAGE>
by proxies will be voted for the election of the nominees named below unless
authority to do so is withheld. If, at the time of the Meeting, a nominee should
be unable to serve, the shares represented by a proxy may be voted for a
substitute nominee to be designated by the Board. For information regarding each
of the nominees, see "Executive Officers and Directors".
THE BOARD RECOMMENDS A VOTE "FOR" EACH NOMINEE FOR
CLASS III DIRECTOR.
PROPOSAL 2 - APPROVAL OF INCREASE IN NUMBER OF AUTHORIZED SHARES OF COMMON STOCK
The Board has adopted, subject to stockholder approval, an amendment to the
Company's Certificate of Incorporation to increase the Company's number of
authorized shares of Common Stock from 100,000,000 shares to 500,000,000 shares.
The additional Common Stock to be authorized by adoption of the amendment
would have rights identical to the currently outstanding Common Stock of the
Company. Adoption of the proposed amendment and issuance of the Common Stock
would not affect the rights of the holders of currently outstanding Common Stock
of the Company, except for effects incidental to increasing the number of shares
of the Company's Common Stock outstanding, such as dilution of the earnings per
share and voting rights of current holders of Common Stock. The Company's Common
Stock has no preemptive rights. If the amendment is adopted, it will become
effective upon filing of a Certificate of Amendment of the Company's Certificate
of Incorporation with the Secretary of the State of Delaware.
If the amendment to the Company's Certificate of Incorporation is approved,
the increased number of authorized shares of Common Stock will be available for
issuance, from time to time, for such purposes and consideration, and on such
terms, as the Board may approve and no further vote of the stockholders of the
Company will be sought, except as required by applicable law or by the rules of
The New York Stock Exchange (the "NYSE"). Management believes that the limited
number of currently authorized but unissued shares of Common Stock unduly
restricts the Company's ability to respond to business needs and opportunities.
The availability of additional shares of Common Stock for issuance will afford
the Company flexibility in the future by assuring that there will be sufficient
authorized but unissued shares of Common Stock for possible acquisitions,
financing requirements, stock splits and other corporate purposes. The Company
has no definite plans for the use of the Common Stock for which authorization is
sought.
Pursuant to the requirements of the NYSE, on which the Company's Common
Stock is listed, stockholder approval is required (in addition to the initial
authorization of the shares) for the issuance of Common Stock (or securities
convertible into Common Stock) under certain circumstances. These circumstances
include the issuance of a number of shares equal to or in excess of 20% of the
number of shares outstanding before such issuance, the adoption of certain types
of stock option or purchase plans or other arrangements in which stock may be
acquired by officers or directors of the Company and issuances that would result
in a change of control of the Company.
The existence of additional authorized shares of Common Stock could have
the effect of rendering more difficult or discouraging hostile takeover
attempts. The Company is not aware of any existing or planned effort on the part
of any party to accumulate material amounts of voting stock, or to acquire the
Company by means of a merger, tender offer, solicitation of proxies in
opposition to management or otherwise, or to change the Company's management,
nor is the Company aware of any person having made any offer to acquire the
voting stock or assets of the Company.
2
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In addition to the 30,992,085 shares of Common Stock outstanding at March
15, 1998, the Board has reserved an aggregate of 18,727,012 additional shares
for future issuance, consisting of the following: (a) 4,558,731 shares reserved
for issuance upon exercise of options granted under stock option and employee
stock purchase plans adopted by the Company, of which options to purchase
2,077,920 shares are currently outstanding; (b) 2,650,707 shares reserved for
issuance upon exercise of outstanding stock options granted under plans adopted
by The Morningstar Group, Inc. ("Morningstar") and Country Fresh, Inc. ("Country
Fresh"), which were assumed by the Company in connection with its acquisition of
these companies; (d) 2,420,974 shares reserved for issuance in connection with
the Company's pending acquisition of Continental Can Company, Inc. ("Continental
Can"), including shares that will be issuable upon exercise of outstanding
options under Continental Can's existing stock option plans; (e) 1,428,600
shares reserved for issuance upon conversion of the trust issued redeemable
convertible preferred securities issued in connection with the Company's
acquisition of Land-O-Sun Dairies, L.L.C. in February 1998; (f) 7,668,000 shares
reserved for issuance upon conversion of the trust issued redeemable convertible
preferred securities issued by the Company in a private placement in March 1998.
Furthermore, for each share of Common Stock currently outstanding or reserved
for issuance as set forth above, an additional share of Common Stock is reserved
for issuance under the Rights Agreement between the Company and Harris Trust &
Savings Bank, as Rights Agent, dated March 6, 1998. As a result, the Company
currently has only 561,806 authorized but unissued and unreserved shares of
Common Stock available for future issuance. Accordingly, the Company will not
achieve the objectives of the proposed increase in shares available under the
1997 Stock Option and Restricted Stock Plan, which is described in Proposal 3
below, unless this proposal is also adopted.
The affirmative vote of the holders of a majority of the outstanding shares
of Common Stock will be required to approve this amendment to the Company's
Certificate of Incorporation. As a result, abstentions and broker non-votes will
have the same effect as votes against this proposal.
THE BOARD RECOMMENDS A VOTE "FOR" AMENDING THE COMPANY'S
CERTIFICATE OF INCORPORATION TO INCREASE THE NUMBER OF AUTHORIZED
SHARES OF COMMON STOCK.
PROPOSAL 3 - APPROVAL OF INCREASE IN SHARES AVAILABLE UNDER 1997 STOCK OPTION
AND RESTRICTED STOCK PLAN
THE 1997 PLAN
Effective as of February 24, 1997, the Board adopted the Suiza Foods
Corporation 1997 Stock Option and Restricted Stock Plan (the "1997 Plan"), which
was approved by the Company's stockholders at the Company's annual meeting held
May 13, 1997.
General. The 1997 Plan provides for grants of stock options ("Options")
and restricted stock ("Restricted Stock") to certain directors and to officers,
key employees and consultants of the Suiza Foods and its subsidiaries. The 1997
Plan is administered by a committee of non-employee directors (the "Stock Option
Committee") designated by the Board or by the entire Board as a whole.
Shares Issuable Through the 1997 Plan. A total of 3,000,000 shares of
Common Stock are currently authorized and reserved for issuance under the 1997
Plan upon the exercise of Options or grants of Restricted Stock. Proportionate
adjustments will be made to the number of shares of the Common Stock subject to
the 1997 Plan in the event of any recapitalization, stock dividend, stock split,
combination of shares or other change in the Common Stock. The Board or the
Stock Option Committee may also provide additional anti-dilution protection to a
participant under the terms of such participant's Option or Restricted Stock
agreement. Shares of Common
3
<PAGE>
Stock subject to Options or Restricted Stock grants that are canceled,
terminated or forfeited will again be available for issuance under the 1997
Plan.
The Stock Option Committee and the Board have granted 2,130,400 Stock
Options under the 1997 Plan as of March 15, 1998. Approval of the proposed
amendment to the 1997 Plan (the "Plan Amendment") will increase the number of
shares of Common Stock authorized for issuance under the 1997 Plan from
3,000,000 shares to 4,000,000 shares.
Administration of the 1997 Plan. The Board or the Stock Option Committee
administers the 1997 Plan and has authority to select the participants that will
be granted Options and Restricted Stock, to terminate the plan or accelerate
vesting of Options and Restricted Stock to determine the nature, extent, timing,
exercise price, vesting and duration of Options and Restricted Stock, to
prescribe all other terms and conditions consistent with the 1997 Plan, to
interpret the 1997 Plan, to establish any rules or regulations relating to the
1997 Plan that it determines to be appropriate, and to make any other
determination that it believes necessary or advisable for the proper
administration of the 1997 Plan.
Stock Options and Restricted Stock. From time to time, the Chief Executive
Officer of the Company will recommend to the Board or the Stock Option Committee
individuals he or she believes should receive Options or Restricted Stock
grants, the amount of shares of Common Stock he or she believes should be
subject to such Option or Restricted Stock grant, and, with respect to any
recommended Option, whether the Option should be a qualified or nonqualified
option. The Board or the Stock Option Committee will consider, but need not
accept, the Chief Executive Officer's grant recommendations. Each non-employee
director of the Company or its subsidiaries will receive nonqualified options to
purchase 7,500 shares of Common Stock on each June 30 that such director serves
on the Board; provided, that such number will be reduced to the extent (if any)
that such director receives options on such date under an automatic grant
pursuant to Suiza Food's 1995 Stock Option and Restricted Stock Plan (the "1995
Plan"). As of December 31, 1997, a total of approximately 7,050 employees of
the Company, including all of its officers and directors, are eligible to
participate in the 1997 Plan.
The Board or the Stock Option Committee may grant nonqualified stock
options or incentive stock options to purchase shares of Common Stock. The Board
or the Stock Option Committee will determine the number and exercise price of
the Options, and the time or times that the Options become exercisable, provided
that an Option exercise price may not be less than the fair market value of the
Suiza Common Stock on the date of grant. The Board or the Stock Option Committee
may award shares of Restricted Stock without requiring the payment of cash
consideration for such shares. The term of an Option will also be determined by
the Board or the Stock Option Committee, provided that the term of a qualified
Option may not exceed 10 years. The 1997 Plan provides that each grant of
Options or Restricted Stock will vest in accordance with the applicable Option
or Restricted Stock agreement. The Option exercise price may be paid in cash,
or, at the Company's option, in shares of Common Stock.
Termination of Employment. If a participant dies or becomes disabled, all
vested Options may be exercised at any time within one year (or their remaining
term of the Option, if less). If a participant ceases to be a Suiza Foods'
employee for any other reason, he or she must exercise any vested Options within
ninety days.
Amendments to the 1997 Plan. The Board or the Stock Option Committee may
amend or discontinue the 1997 Plan at any time subject to certain restrictions
set forth in the 1997 Plan. Except in limited circumstances, no amendment or
discontinuance may adversely affect any previously granted Option or Restricted
Stock award without the consent of the recipient thereof.
4
<PAGE>
FEDERAL INCOME TAX CONSEQUENCES
The following general description of federal income tax consequences is
based upon current statutes, regulations and interpretations and does not
purport to be complete. Reference should be made to the applicable provisions of
the Internal Revenue Code of 1986, as amended (the "Code"). There also may be
state, local and foreign income tax consequences applicable to transactions
involving Options or Restricted Stock. In addition, the following description
does not address specific tax consequences applicable to an individual
participant who receives an incentive Option and does not address special rules
that may be applicable to directors and officers.
Stock Options. Under existing federal income tax provisions, a participant
who receives stock options will not normally realize any income, nor will the
Company normally receive any deduction for federal income tax purposes, upon the
grant of an Option.
When a non-qualified stock option granted pursuant to the 1997 Plan is
exercised, the employee generally will realize ordinary income (compensation)
measured by the difference between the aggregate purchase price of the Common
Stock as to which the option is exercised and the aggregate fair market value of
the Common Stock on the exercise date, and the Company generally will be
entitled to a deduction in the year the Option is exercised equal to the amount
the employee is required to treat as ordinary income. Any taxable income
recognized in connection with a non-qualified stock option exercised by an
optionee who is also an employee of the Company will be subject to tax
withholding by the Company. The basis for determining gain or loss upon a
subsequent disposition of Common Stock acquired upon the exercise of a non-
qualified stock option will be the purchase price paid to the Company for the
Common Stock increased by an amount included in the optionee's taxable income
resulting from the exercise of such option. The holding period for determining
(i) whether gain or loss on such subsequent disposition is short-term or long-
term generally and (ii) the maximum tax rate applicable to gain on such
disposition begins on the date on which the optionee acquires the Common Stock.
An employee generally will not recognize any income upon the exercise of an
incentive stock option, but the exercise may, depending on particular factors
relating to the employee, subject the employee to the alternative minimum tax.
An employee will recognize capital gain or loss in the amount of the difference
between the exercise price and the sale price on the sale or exchange of stock
acquired pursuant to the exercise of an incentive stock option, provided that
the employee does not dispose of such stock within two years from the date of
grant and one year from the date of exercise of the incentive stock option (the
"Required Holding Periods"). An employee disposing of such shares before the
expiration of the Required Holding Periods will recognize ordinary income equal
to the lesser of (i) the difference between the option price and the fair market
value of the stock on the date of exercise, or (ii) the total amount of gain
realized. The remaining gain or loss is generally treated as short term or long
term gain or loss depending on how long the shares are held. Suiza Foods will
not be entitled to a federal income tax deduction in connection with the
exercise of an incentive stock option, except where the employee disposes of the
shares of Common Stock received upon exercise before the expiration of the
Required Holding Periods.
Restricted Stock. A restricted stock award is not currently taxable income
to a participant for so long as the stock is subject to a substantial risk of
forfeiture and cannot be transferred free of a substantial risk of forfeiture.
The participant will generally be taxed on compensation income equal to the fair
market value of the stock on the date the restrictions on the shares creating a
substantial risk of forfeiture lapse.
The participant may elect under Section 83(b) of the Code, however, to be
taxed immediately on the value of the shares awarded as of the date of grant.
Such an election must be made within 30 days after the award of shares and must
be filed with the Internal Revenue Service. If the participant makes the
Section 83(b) election and subsequently forfeits his or her shares, no deduction
is permitted with respect to the forfeiture.
5
<PAGE>
The participant's tax basis in shares acquired through a stock award equals
the amount of compensation income recognized upon vesting (or upon grant, in the
case of a Section 83(b) election). Generally, if the participant subsequently
sells the shares, any gain or loss will be capital.
REASONS FOR PROPOSAL
The 1997 Plan is designed to attract and retain the best available
personnel for positions of substantial responsibility and to provide incentives
to such personnel to promote the success of the business of the Company. The
Company is recommending the Plan Amendment in order to ensure that sufficient
shares are available under the 1997 Plan to reward and motivate existing
employees and to attract new employees in the future, particularly in light of
the rapid growth experienced by the Company.
The affirmative vote of the holders of a majority of the total votes cast
with respect to the Plan Amendment is required to approve the Plan Amendment. In
addition, approval of the proposal to increase the authorized number of shares
of Common Stock, which is described under Proposal 2 above, is also required in
order to allow the Company to achieve the benefits of the Plan Amendment by
granting additional Options and Restricted Stock under the 1997 Plan.
INTERESTS OF CERTAIN PERSONS IN MATTERS TO BE ACTED UPON
In considering whether to vote for approval of the Plan Amendment,
stockholders should be aware that each of the directors and executive officers
will be eligible for Option grants and Restricted Stock awards under the 1997
Plan.
THE SUIZA BOARD UNANIMOUSLY RECOMMENDS THAT THE SUIZA STOCKHOLDERS
VOTE "FOR" APPROVAL OF THE PLAN AMENDMENT.
PROPOSAL 4 - RATIFICATION OF SELECTION OF INDEPENDENT AUDITORS.
Deloitte & Touche LLP, independent certified public accountants, served as
independent auditors for the Company for the fiscal year ended December 31, 1997
and has reported on the Company's financial statements. The Board, upon the
recommendation of the Audit Committee, has selected Deloitte & Touche LLP as the
Company's independent auditors for fiscal year 1998 and recommends that the
stockholders ratify this selection. The Board has been advised that Deloitte &
Touche LLP has no relationship with the Company or its subsidiaries.
A representative of Deloitte & Touche LLP is expected to be present at the
Meeting, will have an opportunity to make a statement if he desires to do so and
is expected to be available to respond to appropriate questions.
Stockholder ratification is not required for the selection of Deloitte &
Touche LLP as the Company's independent auditors for fiscal year 1998 because
the Board has responsibility for selection of the Company's independent
auditors. The selection is being submitted for ratification with a view toward
soliciting the opinion of stockholders, which opinion will be taken into
consideration in future deliberations.
THE BOARD RECOMMENDS A VOTE "FOR" THE RATIFICATION OF DELOITTE &
TOUCHE LLP AS THE COMPANY'S INDEPENDENT AUDITORS.
6
<PAGE>
SECURITY OWNERSHIP OF CERTAIN
BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information believed by the Company
to be accurate based on information provided to it concerning the beneficial
ownership of Common Stock by: (i) each stockholder who is known by the Company
to own beneficially in excess of 5% of the outstanding Common Stock; (ii) each
director of the Company; (iii) each executive officer named in the Summary
Compensation Table; and (iv) all executive officers and directors as a group, as
of March 15, 1998.
<TABLE>
<CAPTION>
Number of Shares of
Beneficial Owner Common Stock Percent of Class (1)
---------------- ------------ --------------------
<S> <C> <C>
Gregg L. Engles.................................. 1,702,039 (2) 5.4%
Cletes O. Beshears............................... 207,637 (3) *
Hector M. Nevares................................ 438,805 (4) 1.4
G. Irwin Gordon.................................. 2,000 *
William P. Brick................................. 247,017 (5) *
L. Hollis Jones.................................. 279,800 (6) *
Tracy L. Noll.................................... 128,905 (7) *
Darron K. Ash.................................... 93,600 (6) *
William L. Estes................................. - -
Joseph B. Armes.................................. 25,250 (6) *
J. Michael Lewis................................. - -
Alan J. Bernon................................... 148,700 *
Stephen L. Green................................. 8,057 (8) *
Robert L. Kaminski............................... 536,646 1.7
David F. Miller.................................. 76,835 *
John R. Muse..................................... 21,250 (6) *
Delton C. Parks................................. 233,431 (9) *
P. Eugene Pender................................. 19,163 (10) *
Robert Piccinini................................. 14,970 (11) *
Jim L. Turner.................................... 37,851 (6) *
Pilgrim Baxter & Associates, Ltd................. 2,316,205 (12) 7.5
John Hancock Mutual Life Insurance Co............ 2,271,742 (13) 7.3
Scudder Kemper Investments, Inc.................. 1,592,318 (14) 5.1
All executive officers and directors as a
as a group (20 persons).................... 4,221,955 (15) 12.9
</TABLE>
- ------------------------
* Less than 1%
(1) Percentages are based on 30,992,085 shares of Common Stock outstanding as
of March 15, 1998, plus the total number of outstanding options held by a
particular individual that are exercisable within 60 days.
(2) Includes 464,867 shares subject to options that are exercisable within 60
days. Mr. Engles' address is 3811 Turtle Creek Blvd., Suite 1300, Dallas,
Texas 75219.
(3) Includes 158,865 shares subject to options that are exercisable within 60
days.
(4) Includes 69,264 shares held by Neva Holdings, Inc., a company wholly owned
by Mr. Nevares and his family, and 97,950 shares subject to options that
are exercisable within 60 days.
7
<PAGE>
(5) Includes 237,667 shares subject to options that are exercisable within 60
days.
(6) Consists entirely of shares subject to options that are exercisable within
60 days.
(7) Includes 121,558 shares subject to options that are exercisable within 60
days.
(8) Includes 7,500 shares subject to options that are exercisable within 60
days.
(9) Includes 229,068 shares subject to options that are exercisable within 60
days.
(10) Includes 3,950 shares owned indirectly through entities controlled by Mr.
Pender and 14,400 shares subject to options that are exercisable within 60
days.
(11) Includes 14,400 shares subject to options that are exercisable within 60
days.
(12) Consists of 1,761,790 shares as to which Pilgrim Baxter & Associates, Ltd.
("Pilgrim Baxter") has sole voting and dispositive power and 554,415 shares
as to which Pilgrim Baxter has sole dispositive power and shared voting
power. Pilgrim Baxter's address is 825 Duportail Road, Wayne, Pennsylvania
19087.
(13) Consists of 1,723,267 shares held by John Hancock Mutual Life Insurance
Company ("John Hancock") and 548,475 shares held by John Hancock Advisers,
Inc., an indirect, wholly owned subsidiary of John Hancock. John Hancock's
address is John Hancock Place, P.O. Box 111, Boston, Massachusetts 02117.
(14) Consists of 262,150 shares as to which Scudder Kemper Investments, Inc.
("Scudder") has sole voting and dispositive power, 888,000 shares as to
which Scudder has sole dispositive power and shared voting power and
442,168 shares as to which Scudder has sole dispositive power but no voting
power. Scudder's address is 345 Park Avenue, New York, New York 10154.
(15) Includes a total of 1,825,575 shares subject to options held by the
executive officers and directors that are exercisable within 60 days.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act of 1934, as amended (the "Exchange Act"),
requires the Company's executive officers and directors and persons who own more
than ten percent (10%) of a registered class of the Company's equity securities
(collectively, the "Reporting Persons") to file reports of ownership and changes
in ownership with the Securities and Exchange Commission and to furnish the
Company with copies of these reports. The Company believes that all filings
required to be made by the Reporting Persons during the fiscal year ended
December 31, 1997 were made on a timely basis.
8
<PAGE>
EXECUTIVE OFFICERS AND DIRECTORS
The following table sets forth certain information concerning the executive
officers and directors of the Company as of February 27, 1998.
<TABLE>
<CAPTION>
Name Age Position with the Company
---- --- -------------------------
<S> <C> <C>
Gregg L. Engles (1) (2)........ 40 Chairman of the Board and Chief Executive Officer
Cletes O. Beshears (2)......... 71 Vice Chairman of the Board
Hector M. Nevares (2).......... 47 Vice Chairman of the Board
G. Irwin Gordon................ 47 President and Chief Operating Officer
William P. Brick............... 46 President of Suiza Dairy Group, Executive Vice President
and Assistant Secretary
Tracy L. Noll.................. 49 Executive Vice President, Chief Financial Officer, Chief
Administrative Officer and Secretary
Darron K. Ash.................. 33 Vice President Integration/Synergies, Chief Financial
Officer of Morningstar Division and Assistant Secretary
William L. Estes............... 50 President and Chief Operating Officer Suiza Plastics Group
Joseph B. Armes................ 36 Executive Vice President, General Counsel and Assistant
Secretary
J. Michael Lewis............... 48 Vice President, Treasurer and Assistant Secretary
Alan J. Bernon (1)............. 43 Director
Stephen L. Green (3)(4)(5)..... 46 Director
Robert L. Kaminski............. 47 Director
David F. Miller................ 68 Director
John R. Muse................... 47 Director
Delton C. Parks................ 58 Director
P. Eugene Pender (1)(3)(4)(5).. 66 Director
Robert Piccinini (1)........... 55 Director
Jim L. Turner.................. 51 Director
</TABLE>
- -------------------
(1) Nominee for Class III Director.
(2) Member of the Executive Committee of the Board.
(3) Member of the Audit Committee of the Board.
(4) Member of the Compensation Committee of the Board.
(5) Member of the Stock Option Committee of the Board.
Gregg L. Engles. Mr. Engles joined the Company in October 1994 as Chairman
of the Board and Chief Executive Officer. Prior to the formation of the
Company, Mr. Engles served as Chairman of the Board and Chief Executive Officer
of Reddy Ice, Chairman of the Board of Suiza-Puerto Rico, and Chairman of the
Board of Velda Farms. Mr. Engles is a director of Talton Holdings, Inc.
Cletes O. Beshears. Mr. Beshears joined the Company in October 1994 as
director, President and Chief Operating Officer. In July 1997, Mr. Beshears
became Vice Chairman of the Board. Mr. Beshears relinquished the title of Chief
Operating Officer in October 1996 and President in June 1997. Mr. Beshears
served as President and Chief Executive Officer of Velda Farms from April 1994
to April 1995. From March 1988 to April 1994, Mr. Beshears provided consulting
services to companies pursuing acquisitions of dairy companies. From 1980 to
1988, Mr. Beshears served as Vice President of The Southland Corporation and
Chief Operating
9
<PAGE>
Officer of its Dairy Group. From 1965 to 1980, Mr. Beshears served as Division
Manager of several of The Southland Corporation's regional dairies, including
Velda Farms.
Hector M. Nevares. Mr. Nevares joined the Company as a director in October
1994. Mr. Nevares served as President of Suiza-Puerto Rico from June 1983 until
September 1996, having served in additional executive capacities at Suiza-Puerto
Rico since June 1974. In September 1996, Mr. Nevares became Vice Chairman of
the Board. Mr. Nevares is a director of First Federal Savings Bank, a public
company, in San Juan, Puerto Rico.
G. Irwin Gordon. Mr. Gordon joined the Company in September 1997 as
Executive Vice President and Chief Marketing Officer. In February 1998, Mr.
Gordon became President and Chief Operating Officer of the Company. Prior to
joining the Company, Mr. Gordon served in various capacities for PepsiCo, Inc.
beginning in March 1983, including most recently as Senior Vice President
Global Branding, from May 1996 until August 1997, Senior Vice President
Marketing from September 1992 until April 1996, and Region President Southern
Europe from November 1991 until August 1992. Prior to joining PepsiCo in 1983,
Mr. Gordon served in various capacities for Kellogg Company.
William P. Brick. Mr. Brick joined the Company in July 1996 as Executive
Vice President. In October 1996, Mr. Brick became Chief Operating Officer of
the Company, and in July 1997 became President of the Company. Prior to joining
the Company, Mr. Brick served as Vice President--Sales and Marketing for the
Metropoulos Management Group from February 1996 until June 1996. From August
1995 until January 1996, Mr. Brick served as Vice President--Sales and Marketing
for Ultra Products. From April 1995 until August 1995, Mr. Brick owned and
operated a private golf course in Ontario, Canada. Mr. Brick served in various
marketing capacities, including Vice President of Sales, for The Morningstar
Group, Inc. from October 1991 until December 1994. From 1988 until August 1991,
Mr. Brick served in various marketing capacities for Palm Dairies Inc. in
Calgary, Alberta.
Tracy L. Noll. Mr. Noll joined the Company in October 1994 as Vice
President, Chief Financial Officer and Secretary. In November 1997, Mr. Noll
became Executive Vice President and Chief Administrative Officer. Prior to
joining the Company, Mr. Noll served as Controller of Foxmeyer Corporation from
June 1994 until September 1994. From March 1988 until June 1994, Mr. Noll
served as Vice President and Chief Financial Officer of The Morningstar Group
Inc.
Darron K. Ash. Mr. Ash joined the Company in November 1997 in connection
with the Morningstar merger. From October 1994 until December 1995, Mr. Ash was
Vice President and Chief Financial Officer of Morningstar. From October 1994
until November 1995, Mr. Ash served as Corporate Controller of Morningstar.
Prior to joining Morningstar, Mr. Ash was a manager for Arthur Andersen LLP.
William L. Estes. Mr. Estes joined the Company in February 1998. From
November 1996 until February 1998, Mr. Estes served as President and Chief
Operating Officer of McKesson Corporation's McKesson Carrollton operations.
From December 1993 until November 1996, Mr. Estes served in various capacities
with Foxmeyer Health Corporation, most recently as President and Chief Operating
Officer. Prior to joining Foxmeyer, Mr. Estes served as Vice President and
Chief Operating Officer of The Body Shop, Inc. from October 1991 until December
1993. For the period from 1983 until 1991, Mr. Estes served in various
capacities with PepsiCo, Inc., primarily with its Frito-Lay, Inc. subsidiary.
Joseph B. Armes. Mr. Armes joined the Company in November 1997 in
connection with the Morningstar merger. From October 1996 until October 1997,
Mr. Armes served as Vice President and General
10
<PAGE>
Counsel of Morningstar. From 1991 until October 1996, he was associated with the
law firm of Weil, Gotshal & Manges LLP.
J. Michael Lewis. Mr. Lewis joined the Company in December 1997 as Vice
President, Treasurer and Assistant Secretary. From August 1994 until October
1997, Mr. Lewis served as Senior Vice President and Treasurer of Columbus Realty
Trust, a public real estate investment trust. From January 1981 until July
1994, Mr. Lewis served as Executive Vice President and Treasurer of Southland
Financial Corporation, and in the management of its successors thereto.
Alan J. Bernon. Mr. Bernon was elected to the Board in August 1997,
following the Company's acquisition of the Garelick Companies. From September
1985 until July 1997, Mr. Bernon served as President of the Garelick Companies.
Stephen L. Green. Mr. Green was elected to the Board in October 1994.
Mr. Green has served as a General Partner of Canaan Capital Partners, L.P., the
general partner of Canaan Capital Limited Partnership and Canaan Capital
Offshore Limited Partnership, C.V., principal stockholders of the Company, since
November 1991. From October 1985 until November 1991, Mr. Green served as
Managing Director of GE Capital Corporation's Corporate Finance Group. Mr. Green
is a director of Chartwell Re Corporation and CapMAC Holdings Inc., each of
which is a public company.
Robert L. Kaminski. Mr. Kaminski was elected to the Board in November
1994. Mr. Kaminski has served as President of Robert Kaminski Interests, Inc.
since 1984 and has been a principal in KECC since 1988. Robert Kaminski
Interests, Inc. and KECC are both investment banking and consulting firms.
David F. Miller. Mr. Miller was elected to the Board in March 1997. Prior
to his retirement in 1990, Mr. Miller served as Vice Chairman of the Board and
Chief Operating Officer of J.C. Penney, Inc. ("J.C. Penney") since 1987. At the
time of his retirement, Mr. Miller had served in various capacities for J.C.
Penney for a total of 37 years. Mr. Miller is a director of Winn-Dixie Stores,
Inc.
John R. Muse. Mr. Muse was elected to the Board in November 1997, in
connection with the Company's merger with Morningstar. Mr. Muse co-founded
Hicks, Muse, Tate & Furst Incorporated in 1989 and has recently been named Chief
Operating Officer. Prior to the formation of Hicks Muse, Mr. Muse headed the
investment/merchant banking activities of Prudential Securities for the
southwest region of the United States from 1984 to 1989. Mr. Muse is Chairman
of Atrium Companies, Inc. and Hat Brands, Inc. and serves as director of Olympus
Real Estate Corporation, Arnold Palmer Golf Management Co. and Sunrise
Television Corp.
Delton C. Parks. Mr. Parks was elected to the Board in November 1997,
following the Company's acquisition of Country Fresh. From 1980 until October
1997, Mr. Parks served as President and Chief Executive Officer of Country
Fresh.
P. Eugene Pender. Mr. Pender was elected to the Board in October 1994.
Prior to his retirement in December 1987, Mr. Pender served as Vice President
and Controller of The Southland Corporation. Thereafter, Mr. Pender served as a
consultant to The Southland Corporation until March 1991.
Robert Piccinini. Mr. Piccinini was elected to the Board in November 1995.
Mr. Piccinini has served as Chairman of the Board and Chief Executive Officer of
Save Mart Supermarkets since 1985. Prior to 1985, Mr. Piccinini served in a
number of capacities at Save Mart, including President from 1981 to 1985 and
Vice President from 1971 to 1981.
11
<PAGE>
Jim L. Turner. Mr. Turner was elected to the Board in November 1997, in
connection with the Morningstar merger. Since March 1985, Mr. Turner has served
as the Chairman, President and Chief Executive Officer of Dr Pepper Bottling
Holdings, Inc. and Dr Pepper Bottling Company of Texas. Mr. Turner is a
director of All American Bottling Corporation.
BOARD OF DIRECTORS AND MEETINGS
The Board is divided into three classes serving staggered three-year terms.
Directors for each class will be elected at the annual meeting of stockholders
held in the year in which the term for such class expires and will serve for
three years. The terms of Alan J. Bernon, Gregg L. Engles, P. Eugene Pender and
Robert Piccinini will expire at the 1998 annual meeting and, if reelected, at
the 2001 annual meeting; the terms of John R. Muse, Delton C. Parks, Robert L.
Kaminski and Stephen L. Green will expire at the 1999 annual meeting; and the
terms of Cletes O. Beshears, David F. Miller, Hector M. Nevares and Jim L.
Turner will expire at the 2000 annual meeting.
The business of the Company is managed under the direction of the Board.
The Board meets during the Company's fiscal year to review significant
developments affecting the Company and to act on matters requiring Board
approval. The Board held six meetings during the fiscal year ended December 31,
1997. All of the Company's directors participated in each meetings, except that
Mr. Piccinini was unable to attend two meetings and Mr. Kaminski was unable to
attend one meeting. The Board also acted by unanimous written consent on five
occasions.
COMMITTEES OF THE BOARD
The Board has established Audit, Compensation and Stock Option Committees,
which devote attention to specific subjects and assist the Board in the
discharge of its responsibilities. The functions of each committee and its
current members are described below.
Audit Committee. The Audit Committee consists of at least two members
appointed by the Board from directors, a majority of whom are neither officers
nor employees of the Company or its subsidiaries. The Audit Committee
recommends to the Board the appointment of a firm of independent certified
public accountants to conduct audits of the books, records and accounts of the
Company and monitors the performance, findings and reports of, and approves the
fee arrangement with the independent certified public accountants. The Audit
Committee also reviews accounting objectives and procedures of the Company and
makes reports and recommendations to the Board as it deems appropriate. The
Audit Committee currently consists of Mr. Pender (chairman) and Mr. Green. The
Audit Committee held one formal meeting during the fiscal year ended December
31, 1997.
Compensation Committee. The Compensation Committee consists of two members
of the Board who are neither officers nor employees of the Company. The
Compensation Committee determines the compensation of the Chief Executive
Officer and, with the assistance of management, of senior executive employees of
the Company (including salary, bonus and benefits). The Compensation Committee
will also administer the Purchase Plan, if such plan is approved by the
stockholders herein. The Compensation Committee currently consists of Mr.
Pender (chairman) and Mr. Green. The Compensation Committee held two formal
meetings during the fiscal year ended December 31, 1997.
Stock Option Committee. The Stock Option Committee consists of two
members, Messrs. Pender and Green, neither of whom are employees or officers of
the Company. The Stock Option Committee administers all
12
<PAGE>
of the Company's stock option and restricted stock plans (collectively, the
"Stock Option Plans"). In general, the Stock Option Committee construes,
interprets and administers the Stock Option Plans and the provisions of the
options granted thereunder, prescribes and amends rules for the operation of the
Stock Option Plans and makes all other determinations necessary or advisable for
implementation and administration of the Stock Option Plans. The Stock Option
Committee has full and final authority to select the key employees to whom
awards are granted, the number of shares of Common Stock subject to awards and
the terms of awards, including the exercise price and vesting period of options.
During the fiscal year ended December 31, 1997, the Stock Option Committee held
one formal meeting and acted by unanimous consent on several occasions.
COMPENSATION OF DIRECTORS
The Company pays its unaffiliated outside directors an annual fee of
$15,000, payable quarterly, plus a fee of $1,000 for each board meeting
attended. (As referred to herein, an unaffiliated outside director is a director
who is not an employee or officer of the Company or any of its subsidiaries, nor
a beneficial owner of 345,000 or more shares of Common Stock, nor an employee or
affiliate of a beneficial owner of 345,000 or more shares of Common Stock; the
Company's current unaffiliated outside directors are Messrs. Pender, Green,
Muse, Turner and Piccinini). The Company also pays its unaffiliated outside
directors $1,000 annually for serving on a board committee and an additional
$2,000 annually for chairing any such committee. The Company reimburses its
directors for expenses incurred in attending board and committee meetings.
Directors are eligible to receive stock options and restricted stock awards
pursuant to the 1995 Plan and the 1997 Plan, and in certain cases may elect to
receive grants of restricted stock with a value on the date of grant equal to
150% of the cash compensation described above. During 1997, Messrs. Green,
Miller, Pender and Piccinini received grants of 557, 471, 813 and 570 shares of
Common Stock, respectively, pursuant to the 1997 Plan in lieu of cash
compensation.
13
<PAGE>
EXECUTIVE COMPENSATION AND OTHER INFORMATION
SUMMARY COMPENSATION TABLE
The following table sets forth the annual cash compensation paid or accrued
by the Company to its Chief Executive Officer and its other four and most highly
compensated executive officers for the year ended December 31, 1997
(collectively, the "Named Executive Officers"). Each of these individuals other
than Mr. Nevares receives compensation from Suiza Management Corporation, a
wholly owned subsidiary of the Company. Mr. Nevares, who was formerly the
President of the Company's Puerto Rico dairy subsidiaries (collectively, "Suiza-
Puerto Rico"), receives compensation from Suiza-Puerto Rico.
<TABLE>
<CAPTION>
LONG TERM
ANNUAL COMPENSATION COMPENSATION
---------------------------------------- -----------------------
SHARES
OTHER ANNUAL RESTRICTED UNDERLYING
NAME AND COMPENSATION STOCK OPTION
PRINCIPAL POSITION YEAR SALARY BONUS $(1) AWARDS (#) GRANTS (#)
- ------------------------- ------ -------- -------- ------------ ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Gregg L. Engles.......... 1997 $500,000 $600,000 -- -- 353,000
Chairman of the 1996 420,000 210,000 -- -- 13,800
Board and Chief
Executive Officer
Hector M. Nevares........ 1997 317,250 288,000 -- -- 60,000
Vice Chairman of 1996 294,000 97,020 -- -- 5,175
the Board
William P. Brick......... 1997 305,000 291,000 -- -- 213,000
President of Suiza 1996 241,817 106,590 -- 6,250 50,000
Dairy Group and
Executive Vice
President
L. Hollis Jones.......... 1997 225,000 200,000 1,369,785 (2) -- 108,375
Former President and 1996 169,231 200,000 -- -- 170,000
Chief Operating
Officer
Tracy L. Noll............ 1997 210,000 168,000 -- -- 73,000
Executive Vice 1996 170,000 70,000 -- -- 6,900
President and Chief
Financial Officer
</TABLE>
- ------------------
(1) Except as indicated, none of the Named Executive Officers received any
other compensation, except for perquisites and other personal benefits that
did not exceed the lesser of $50,000 or 10% of the total annual salary and
bonus reported for the named executive officer.
(2) Consists of special bonuses paid to Mr. Jones by Morningstar in connection
with the Company's acquisition of Morningstar in November 1998.
14
<PAGE>
During 1997, options to purchase an aggregate of 1,489,933 shares of
Common Stock at fair market value as of the date of grant were granted under the
Company's Stock Option Plans, and options to purchase an additional 1,243,096
were granted under Morningstar's 1997 stock option plan, which was assumed by
the Company in connection with its acquisition of Morningstar. The following
table provides information regarding stock options granted during 1997 to the
Named Executive Officers.
<TABLE>
<CAPTION>
OPTION GRANTS DURING 1997
INDIVIDUAL GRANTS
-------------------------------------------------------
% OF TOTAL POTENTIAL REALIZABLE
OPTIONS VALUE AT ASSUMED
NUMBER OF GRANTED ANNUAL RATES OF STOCK
SECURITIES TO PRICE APPRECIATION FOR
UNDERLYING EMPLOYEES EXERCISE OPTION TERM (1)
OPTIONS DURING PRICE EXPIRATION -------------------------
NAME GRANTED (#) 1997 ($/SHARE) DATE 5% 10%
- ----------------------- ---------- --------- ---------- ---------- ---------- -----------
<S> <C> <C> <C> <C> <C> <C>
Gregg L. Engles........ 53,000 1.9% $20.25 01/01/07 $ 674,961 $ 1,710,484
300,000 11.0 29.25 05/13/07 5,518,550 13,985,090
Hector M. Nevares...... 60,000 2.2 29.25 05/13/07 1,103,710 2,797,018
William P. Brick....... 13,000 0.5 20.25 01/01/07 165,557 419,553
200,000 7.3 29.25 05/13/07 3,679,034 9,323,393
L. Hollis Jones........ 127,500 4.7 27.06 04/25/07 2,169,781 5,498,651
Tracy L. Noll.......... 13,000 0.5 20.25 01/01/07 165,557 419,553
60,000 2.2 29.25 05/13/07 1,103,710 2,797,018
</TABLE>
- --------------
(1) The 5% and 10% assumed annual rates of compounded stock price appreciation
are mandated by the rules of the Securities and Exchange Commission. The
actual value, if any, that an executive officer may realize will depend on
the excess of the stock price over the exercise price on the date the
option is exercised. There is no assurance the value realized by an
executive officer will be at or near the assumed 5% or 10% levels.
15
<PAGE>
The following table provides information regarding the exercise of stock
options during 1997 and the year-end option values.
<TABLE>
<CAPTION>
AGGREGATED OPTION EXERCISES AND YEAR-END OPTION VALUES
NUMBER OF SECURITIES VALUE OF UNEXERCISED
UNDERLYING UNEXERCISED IN-THE-MONEY OPTIONS AT
SHARES OPTIONS AT YEAR END (#) YEAR END ($)(1)
ACQUIRED ON VALUE -------------------------- --------------------------------
NAME EXERCISE (#) REALIZED(1) EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
- --------------------------- ------------ ----------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Gregg L. Engles............ -- -- 336,600 168,200 $11,647,508 $6,414,646
Hector M. Nevares.......... -- -- 72,725 26,950 2,587,431 1,062,206
William P. Brick........... -- -- 176,667 86,333 5,388,333 3,083,917
L. Hollis Jones............ -- -- 306,000 -- 12,333,160 --
Tracy L. Noll.............. 25,000 $696,000 77,050 55,475 2,793,947 2,302,419
</TABLE>
- ---------------------
(1) Reflects the actual prices at which shares were sold in the market on the
date of exercise, less the exercise price applicable to such shares.
(2) The value of in-the-money options at year-end is based on the fair market
value of $58.50 per share of Common Stock, which was the closing price for
the Company's Common Stock on December 31, 1997, as reported on the New
York Stock Exchange.
EMPLOYMENT AGREEMENTS AND OTHER ARRANGEMENTS
The Company entered into an employment agreement with Mr. Engles in March
1995, pursuant to which Mr. Engles serves as Chairman of the Board and Chief
Executive Officer of the Company. The employment agreement originally provided
that Mr. Engles would receive an annual base salary of $420,000, as well as
incentive cash bonuses. The Board is required to review cash compensation
arrangements for Mr. Engles annually and to provide for such increases as may be
warranted in accordance with the Company's policies. Mr. Engles' employment
agreement was amended during 1997 to increase his base salary to $500,000. The
agreement had an initial term of three years, but has been extended until March
31, 1999. The agreement may be terminated by the Company prior to completion of
the term upon the death or disability of Mr. Engles, "with cause", or in the
event Mr. Engles materially breaches the agreement. As defined in the
agreement, the term "with cause" means any termination of the employee for: (i)
commission of an act of fraud or embezzlement against the Company; (ii)
conviction of a felony or a crime involving moral turpitude; (iii) gross
negligence or willful misconduct in performing the employee's duties; or (iv)
breach of fiduciary duty in connection with the employee's employment. Mr.
Engles' employment agreement also contains a two-year noncompetition provision,
which applies if he is terminated with cause or if he materially breaches the
agreement.
Hector M. Nevares serves as Vice Chairman of the Board and receives an
annual base salary of $320,000 and an annual bonus equal to 45% of his base
salary, pursuant to an employment agreement entered into in December 1993 and as
subsequently amended. Mr. Nevares may earn up to an additional 27% (or a
combined maximum of up to 60%) of his annual base salary if certain minimum
levels of operating income are met at Suiza-Puerto Rico. Based on operating
income at Suiza-Puerto Rico during 1997, Mr. Nevares received an incentive cash
bonus of $288,000 for 1997. The Company is required to review Mr. Nevares' cash
compensation arrangements annually and provide for such increases as may be
warranted in accordance with the Company's policies. The agreement had an
initial term expiring on December 15, 1996, but has been extended until March
31, 1999. This Agreement is terminable by the Company prior to the completion
of its term only upon the death or disability of Mr. Nevares or "for cause". As
defined in Mr. Nevares' employment agreement, the term "for cause" means any
termination of the employee for: (i) misconduct or action damaging or
detrimental to the Company; (ii) engaging in conduct that would constitute a
crime; (iii) the use, possession, sale, transportation, distribution or being
under the influence of a controlled substance other than as prescribed by a
16
<PAGE>
licensed physician; or (iv) misappropriation of the Company's funds or
conviction of a crime involving a felony. Mr. Nevares' employment agreement
contains a five-year non-compete provision, which applies upon termination of
his employment agreement for any reason.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Compensation decisions concerning the executive officers of the Company
for 1997 were made by the Compensation Committee of the Board. Messrs. Pender
and Green served as members of the Compensation Committee during the fiscal year
ended December 31, 1997.
COMPENSATION COMMITTEE'S AND STOCK OPTION COMMITTEE'S REPORT ON EXECUTIVE
COMPENSATION
The Compensation Committee is responsible for recommending to the full
Board salary amounts for the Company's Chief Executive Officer and the other
executive officers and making the final determination regarding bonus
arrangements to such persons. The Stock Option Committee is responsible for
making the final determination regarding awards of stock options and restricted
stock to such persons.
Compensation to executive officers is designed to attract and retain highly
capable executives, to motivate the performance of executives in support of the
achievement of the Company's strategic financial and operating performance
objectives and to reward performance that meets this standard. The Company is
engaged in highly competitive businesses and must attract and retain qualified
executives in order to be successful. In 1997, executive compensation was
comprised of the following elements:
Base Salary. The base salary for the Chief Executive Officer and the
other executive officers of the Company was determined after review of
publicly available information concerning the base salaries of executives
with similar responsibilities in companies engaged in businesses similar to
the Company's, the responsibilities of each executive officer and the
subjective evaluation of such officer's contribution to the Company. In
connection with this review, the Compensation Committee engaged an
independent compensation consulting firm to provide information concerning
comparable compensation levels at other publicly held companies and other
relevant information.
Annual Incentive Compensation. Year-end cash bonuses are designed to
motivate the Chief Executive Officer and the other executive officers to
achieve annual financial and other goals based on the strategic financial
and operating performance objectives of the Company. In conjunction with
the Compensation Committee's review of the strategic and operating plans of
the Company, the Compensation Committee established target performance
levels for the executive officers based on the Company's consolidated net
income. Bonus amounts were paid to the executive officers based on the
target performance level reached.
Stock Option Plan. The Stock Option Plans form the basis of the
Company's long-term incentive plan for its executive officers. The
Compensation Committee believes that a significant portion of executive
compensation should be dependent on value created for the stockholders.
Stock options are generally granted annually, at fair market value on the
date of the grant. In selecting recipients for option grants and in
determining the size of such grants, the Stock Option Committee considers
various factors such as the earnings levels of the Company and the
contributions of the individual recipient to the Company. During 1997, the
Chief Executive Officer and certain other executive officers and key
employees of the Company received stock options with vesting provisions
tied to the market performance of the Common Stock (the "Price-
17
<PAGE>
Based Options"). When the Price-Based Options were granted in May 1997, the
market price of the Common Stock was $29.50 per share. Since that date,
increases in the market price of the Common Stock have resulted in all of
the Price-Based Options vesting in full.
Benefits. Executive officers also receive benefits typically offered
to executives by companies engaged in businesses similar to the Company's
core businesses and various benefits generally available to employees of
the Company (such as health insurance). It is the Company's policy to
qualify compensation paid to executive officers for deductibility under
applicable provisions of the Internal Review Code, including Section
162(m).
1997 Compensation of Chief Executive Officer. Mr. Engles' base salary
for 1997 was $500,000. Mr. Engles' bonus potential was up to 120% of base
salary, with a potential range of 0% to 120% of base salary. Mr. Engles'
1997 cash bonus, which was based on the degree of attainment of financial
goals established in 1996 and 1997, reflects the fact that in 1997 the
Company's net income increased substantially. In 1997, Mr. Engles received
options to purchase 353,000 shares, of which 300,000 were Price-Based
Options. In making these option grants, the Stock Option Committee
considered the factors described above under "-- Stock Option Plan."
Stephen L. Green
P. Eugene Pender
Members of the Compensation Committee
and the Stock Option Committee
CORPORATE PERFORMANCE GRAPH
The following graph compares the cumulative total return of the Common
Stock during the period commencing April 17, 1996, the date public trading of
the Common Stock began following the Company's initial public offering, to
December 31, 1997, with the Standard & Poor's 500 Stock Index (the "S&P 500
Index") and a peer group index (the "Peer Group Index") of United States
companies within Standard Industrial Codes 2020 to 2029 (dairy products). The
S&P 500 Index includes 500 United States companies in the industrial,
transportation, utilities and financial sectors and is weighted by market
capitalization. The graph depicts the results of investing $100 in the Common
Stock, the S&P 500 Index and the Peer Group Index at closing prices on April 17,
1996, and assumes that all dividends were reinvested.
<TABLE>
<CAPTION>
April 17, 1996 December 31, 1996 December 31, 1997
-------------- ----------------- -----------------
<S> <C> <C> <C>
Suiza Foods Corporation 100.00 132.79 390.57
S&P 500 Index 100.00 117.48 156.82
Peer Group Index 100.00 112.44 195.21
</TABLE>
The stock price performance depicted in the Corporate Performance Graph is
not necessarily indicative of future price performance. The Corporate
Performance Graph will not be deemed to be incorporated by reference in any
filing by the Company under the Securities Act or the Exchange Act.
18
<PAGE>
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Velda Farms purchases a portion of its requirements for frozen concentrated
orange juice from an entity in which Messrs. Engles and Kaminski collectively
own a minority limited partner interest. Velda Farms has no written agreement
with this supplier, and all purchases are based on purchase orders. Management
of Velda Farms monitors the market price for frozen concentrated orange juice by
maintaining contact with a number of potential suppliers and purchases the
product from the supplier offering the lowest price, inclusive of delivery and
other service charges. Management believes that the terms of the purchase orders
are at least as favorable to the Company as could be obtained in an arm's-length
transaction with an unaffiliated third party. Purchases by Velda Farms from this
supplier totaled $1.4 million for the fiscal year ended December 31, 1997.
An affiliate of Mr. Piccinini purchases fresh milk from Model Dairy.
Sales of fresh milk by Model Dairy to this entity totaled approximately $12.0
million for the fiscal year ended December 31, 1997. This entity is Model
Dairy's largest customer. In addition, Model Dairy purchases certain supplies
and products used in its business, primarily plastic bottles and cottage cheese,
from this entity. Purchases of these items by Model Dairy from this entity
totaled approximately $1.5 million for the fiscal year ended December 31, 1997.
In August 1996, the Company entered into a financial advisory agreement
with an affiliate of Mr. Nevares, pursuant to which the affiliate provides
investment banking and consulting services concerning certain tax credits
generated by the Company's Puerto Rico dairy operations. During 1997, the
Company paid this entity a total of $499,000 under this agreement in connection
with the sale by the Company of a portion of the Puerto Rico tax credits. The
agreement expired in April 1997.
In July 1997, the Company entered into a consulting agreement with Mr.
Beshears, pursuant to which Mr. Beshears serves as a consultant to the Company
for dairy acquisitions. Pursuant to this agreement, Mr. Beshears receives an
annual consulting fee of $250,000 ($125,000 for fiscal year 1997). In addition,
Mr. Beshears is entitled to a transaction fee equal to 1% of the purchase price
of any acquisition that Mr. Beshears introduces to the Company that is
ultimately consummated. In connection with the Company's acquisitions of Dairy
Fresh, L.P. and Country Fresh, Inc. during 1997, Mr. Beshears received an
aggregate of $1,335,681 in transaction fees. In connection with the Company's
acquisition of Land-O-Sun Dairies, L.L.C. in February 1998, Mr. Beshears
received a transaction fee of $2,600,000. The consulting agreement expires
December 31, 1998.
In March 1998, Mr. Jones resigned as an officer of the Company and agreed
to become an exclusive consultant to the Company, for a term of one year,
focusing on acquisitions and strategic development. In such capacity, Mr. Jones
will report directly to Mr. Engles and will receive a consulting fee of $10,000
per month.
STOCKHOLDER PROPOSALS
A proper proposal submitted by a stockholder in accordance with applicable
rules and regulations for presentation at the Company's 1998 annual meeting that
is received at the Company's principal executive office, 3811 Turtle Creek
Blvd., Suite 1300, Dallas, Texas 75219, Attention: Tracy L. Noll, by December
5, 1998, will be included in the Company's proxy statement and form of proxy for
that meeting.
Stockholders wanting to present proposals for action at the next annual
meeting must give written notice by certified mail, in accordance with Article
II, Section 3 of the Company's Bylaws, to the Secretary of the Company at the
address set forth on the cover page of this Proxy Statement no later than March
1 of any calendar year; provided however, that in the event less than 35 days'
notice of an annual meeting of stockholders is given, such notice by a
stockholder must be made and delivered to the Secretary of the Company not later
than the close of business on the seventh day following the day on which the
notice of annual meeting is mailed. Stockholder proposals may be presented to
the annual meeting in person by the stockholder submitting such proposal or a
representative who is qualified under Delaware law to present the proposal on
the stockholder's behalf. The chairman presiding at any meeting of the
stockholders may, in his sole discretion, refuse to allow a
19
<PAGE>
stockholder or the stockholder's representative to present any proposal which
the Company would not be required to include in a proxy statement pursuant to
any rule promulgated by the Securities and Exchange Commission.
PERSONS MAKING THE SOLICITATION
The enclosed proxy is solicited on behalf of the Board of Directors of the
Company. The cost of soliciting proxies in the accompanying form will be paid
by the Company. Officers of the Company may solicit proxies by mail, telephone
or telegraph. Upon request, the Company will reimburse brokers, dealers, banks
and trustees, or their nominees, for reasonable expenses incurred by them in
forwarding proxy material to beneficial owners of shares of the Common Stock.
OTHER MATTERS
The Board is not aware of any matter to be presented for action at the
meeting other than the matters set forth herein. Should any other matter
requiring a vote of stockholders arise, the proxies in the enclosed form confer
upon the person or persons entitled to vote the shares represented by such
proxies discretionary authority to vote the same in accordance with their best
judgment in the interest of the Company.
FINANCIAL STATEMENTS
A copy of the 1997 Annual Report of the Company containing audited
financial statements accompanies this Proxy Statement. The consolidated balance
sheets of Suiza Food Corporation and subsidiaries as of December 31, 1997 and
1996, and the related consolidated statements of operations, stockholders'
equity, and cash flows for each of the three years in the period ended December
31, 1997 contained on pages ____ through ____ of the 1997 Annual Report to
Stockholders of Suiza Food Corporation and the Selected Financial Data and
Management's Discussion and Analysis of Financial Condition and Results of
Operations contained on pages ____ through ____ of such Annual Report are
incorporated by this reference in this Proxy Statement. The remainder of the
Annual Report does not constitute a part of the proxy solicitation material.
THE COMPANY WILL PROVIDE, WITHOUT CHARGE, TO EACH PERSON TO WHOM A COPY OF
THIS PROXY STATEMENT IS DELIVERED, UPON THE WRITTEN OR ORAL REQUEST OF SUCH
PERSON AND BY FIRST CLASS MAIL OR OTHER EQUALLY PROMPT MEANS WITHIN ONE BUSINESS
DAY OF RECEIPT OF SUCH REQUEST, A COPY OF THE COMPANY'S ANNUAL REPORT ON FORM
10-K. REQUESTS SHOULD BE DIRECTED TO TRACY L. NOLL, SUIZA FOODS CORPORATION,
3811 TURTLE CREEK BLVD., SUITE 1300, DALLAS, TEXAS 75219.
By Order of the Board of Directors,
GREGG L. ENGLES
Chairman of the Board and
Chief Executive Officer
March 31, 1998
20
<PAGE>
SUIZA FOODS CORPORATION
1997 STOCK OPTION AND RESTRICTED STOCK PLAN
1. Purpose of the Plan. This Plan shall be known as the Suiza Foods
-------------------
Corporation 1997 Stock Option and Restricted Stock Plan. The purpose of the Plan
is to attract and retain the best available personnel for positions of
substantial responsibility and to provide incentives to such personnel to
promote the success of the business of Suiza Foods Corporation and its
subsidiaries.
Certain options granted under this Plan are intended to qualify as
"incentive stock options" pursuant to Section 422 of the Internal Revenue Code
of 1986, as amended from time to time, while certain other options granted under
the Plan will constitute nonqualified options.
2. Definitions. As used herein, the following definitions shall
-----------
apply:
"Board" means the Board of Directors of the Corporation.
"Common Stock" means the Common Stock, $.01 par value per share,
of the Corporation. Except as otherwise provided herein, all Common Stock issued
pursuant to the Plan shall have the same rights as all other issued and
outstanding shares of Common Stock, including but not limited to voting rights,
the right to dividends, if declared and paid, and the right to pro rata
distributions of the Corporation's assets in the event of liquidation.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Committee" means the committee described in Section 19 that
administers the Plan or, if no such committee has been appointed, the full
Board.
"Consultant" means any consultant or advisor who renders bona fide
services to the Corporation or one of its Subsidiaries, which services are not
in connection with the offer or sale of securities in a capital-raising
transaction.
"Corporation" means Suiza Foods Corporation, a Delaware
corporation.
"Date of Grant" means the date on which an Option is granted or
Restricted Stock is awarded pursuant to this Plan or, if the Board or the
Committee so determines, the date specified by the Board or the Committee as the
date the award is to be effective.
"Employee" means any officer or other key employee of the
Corporation or one of its Subsidiaries (including any director who is also an
officer or key employee of the Corporation or one of its Subsidiaries).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" means the closing sale price (or average of
the quoted closing bid and asked prices if there is no closing sale price
reported) of the Common Stock on the
1
<PAGE>
trading day immediately prior to the date specified as reported by the principal
national exchange or trading system on which the Common Stock is then listed or
traded. If there is no reported price information for the Common Stock, the Fair
Market Value will be determined by the Board or the Committee, in its sole
discretion. In making such determination, the Board or the Committee may, but
shall not be obligated to, commission and rely upon an independent appraisal of
the Common Stock.
"Non-Employee Director" means an individual who is a "non-employee
director" as defined in Rule 16b-3 under the Exchange Act and also an "outside
director" within the meaning of Treasury Regulation (S) 1.162-27(e)(3).
"Nonqualified Option" means any Option that is not a Qualified
Option.
"Option" means a stock option granted pursuant to Section 6 of
this Plan.
"Optionee" means any Employee, Consultant or director who receives
an Option.
"Participant" means any Employee, Consultant or director who
receives an Option or Restricted Stock pursuant to this Plan.
"Plan" means this Suiza Foods Corporation 1997 Stock Option and
Restricted Stock Plan, as amended from time to time.
"Qualified Option" means any Option that is intended to qualify as
an "incentive stock option" within the meaning of Section 422 of the Code.
"Restricted Stock" means Common Stock awarded to an Employee,
Consultant or director pursuant to Section 7 of this Plan.
"Rule 16b-3" means Rule 16b-3 of the rules and regulations under
the Exchange Act, as Rule 16b-3 may be amended from time to time, and any
successor provisions to Rule 16b-3 under the Exchange Act.
"Subsidiary" means any now existing or hereinafter organized or
acquired company of which more than fifty percent (50%) of the issued and
outstanding voting stock is owned or controlled directly or indirectly by the
Corporation or through one or more Subsidiaries of the Corporation.
3. Term of Plan. The Plan has been adopted by the Board effective as
------------
of February 24, 1997. To permit the granting of Qualified Options under the
Code, and to qualify awards of Options or Restricted Stock hereunder as
"performance based" under Section 162(m) of the Code, the Plan will be submitted
for approval by the stockholders of the Corporation by the affirmative votes of
the holders of a majority of the shares of Common Stock then issued and
outstanding, for approval no later than the next annual meeting of stockholders.
If the Plan is not so approved by the stockholders of the Corporation, then any
Options previously granted
2
<PAGE>
under the Plan will be Nonqualified Options, regardless of whether the option
agreements relating thereto purport to grant Qualified Options. The Plan shall
continue in effect until terminated pursuant to Section 19(a).
4. Shares Subject to the Plan. Except as otherwise provided in
--------------------------
Section 18 hereof, the aggregate number of shares of Common Stock issuable upon
the exercise of Options or upon the grant of Restricted Stock pursuant to this
Plan shall be 3,000,000 shares. Such shares may either be authorized but
unissued shares or treasury shares. The Corporation shall, during the term of
this Plan, reserve and keep available a number of shares of Common Stock
sufficient to satisfy the requirements of the Plan. If an Option should expire
or become unexercisable for any reason without having been exercised in full, or
Restricted Stock should fail to vest and be forfeited in whole or in part for
any reason, then the shares that were subject thereto shall, unless the Plan has
terminated, be available for the grant of additional Options or Restricted Stock
under this Plan, subject to the limitations set forth above.
5. Eligibility. Qualified Options may be granted under Section 6 of
-----------
the Plan to such Employees of the Corporation or its Subsidiaries as may be
determined by the Board or the Committee. Nonqualified Options may be granted
under Section 6 of the Plan to such Employees, Consultants and directors of the
Corporation or its Subsidiaries as may be determined by the Board or the
Committee. Restricted Stock may be granted under Section 7 of the Plan to such
Employees, Consultants and directors of the Corporation or its Subsidiaries as
may be determined by the Board or the Committee. Subject to the limitations and
qualifications set forth in this Plan, the Board or the Committee shall also
determine the number of Options or shares of Restricted Stock to be granted, the
number of shares subject to each Option or Restricted Stock grant, the exercise
price or prices of each Option, the vesting and exercise period of each Option
and the vesting and/or forfeiture provisions relating to Restricted Stock,
whether an Option may be exercised as to less than all of the Common Stock
subject thereto, and such other terms and conditions of each Option or grant of
Restricted Stock, if any, as are consistent with the provisions of this Plan. In
connection with the granting of Qualified Options, the aggregate Fair Market
Value (determined at the Date of Grant of a Qualified Option) of the shares with
respect to which Qualified Options are exercisable for the first time by an
Optionee during any calendar year (under all such plans of the Optionee's
employer corporation and its parent and subsidiary corporations as defined in
Section 424(e) and (f) of the Code, or a corporation or a parent or subsidiary
corporation of such corporation issuing or assuming an Option in a transaction
to which Section 424(a) of the Code applies (collectively, such corporations
described in this sentence are hereinafter referred to as "Related
Corporations")) shall not exceed $100,000 or such other amount as from time to
time provided in Section 422(d) of the Code or any successor provision.
6. Grant of Options. Except as provided in Section 19(b), the Board
----------------
or the Committee shall determine the number of shares of Common Stock to be
offered from time to time pursuant to Options granted hereunder and shall grant
Options under the Plan. The grant of Options shall be evidenced by Option
agreements containing such terms and provisions as are approved by the Board or
the Committee and executed on behalf of the Corporation by an appropriate
officer. In connection with the granting of any Options under the Plan, the
aggregate
3
<PAGE>
number of shares of Common Stock issuable to any single Participant shall not
exceed the number of shares subject to the Plan referred to in Section 4.
Unless the Board or the Committee determines otherwise with
respect to a particular year, each Non-Employee Director will automatically be
granted a Nonqualified Option to purchase 7,500 shares of Common Stock (subject
to adjustment pursuant to Section 18 hereof), at an exercise price equal to the
Fair Market Value of the Common Stock on the Date of Grant, on June 30 of each
year; provided that such number of shares will be reduced to the extent (if any)
that such director receives options on such date under an automatic grant
pursuant to the Corporation's 1995 Stock Option and Restricted Stock Plan.
7. Restricted Stock. The Board or the Committee shall determine the
----------------
number of shares of Common Stock to be granted as Restricted Stock from time to
time under the Plan. The grant of Restricted Stock shall be evidenced by
Restricted Stock agreements containing such terms and provisions as are approved
by the Board or the Committee and executed on behalf of the Corporation by an
appropriate officer.
8. Time of Grant of Options. The date of grant of an Option or
------------------------
Restricted Stock under the Plan shall be the date on which the Board or the
Committee awards the Option or Restricted Stock or, if the Board or the
Committee so determines, the date specified by the Board or the Committee as the
date the award is to be effective. Notice of the grant shall be given to each
Participant to whom an Option or Restricted Stock is granted promptly after the
date of such grant.
9. Price. The exercise price for each share of Common Stock subject
-----
to an Option (the "Exercise Price") granted pursuant to Section 6 of the Plan
shall be determined by the Board or the Committee at the Date of Grant;
provided, however, that (a) the Exercise Price for any Option shall not be less
than 100% of the Fair Market Value of the Common Stock at the Date of Grant, and
(b) if the Optionee owns on the Date of Grant more than 10 percent of the total
combined voting power of all classes of stock of the Corporation or its parent
or any of its subsidiaries, as more fully described in Section 422(b)(6) of the
Code or any successor provision (such stockholder is referred to herein as a
"10-Percent Stockholder"), the Exercise Price for any Qualified Option granted
to such Optionee shall not be less than 110% of the Fair Market Value of the
Common Stock at the Date of Grant. The Board or the Committee in its discretion
may award shares of Restricted Stock under Section 7 of the Plan to Participants
without requiring the payment of cash consideration for such shares.
10. Vesting. Subject to Section 12 of this Plan, each Option and
-------
Restricted Stock award under the Plan shall vest or be subject to forfeiture in
accordance with the provisions set forth in the applicable Option agreement or
Restricted Stock agreement. The Board or the Committee may, but shall not be
required to, permit acceleration of vesting or termination of forfeiture
provisions upon any sale of the Corporation or similar transaction. A
Participant's Option or Restricted Stock agreement may contain such additional
provisions with respect to vesting as the Board or the Committee may specify.
4
<PAGE>
11. Exercise. A Participant may pay the Exercise Price of the shares
--------
of Common Stock as to which an Option is being exercised by the delivery of
cash, check or, at the Corporation's option, by the delivery of shares of Common
Stock having a Fair Market Value on the date immediately preceding the exercise
date equal to the Exercise Price.
If the shares to be purchased are covered by an effective
registration statement under the Securities Act of 1933, as amended, any Option
granted under the Plan may be exercised by a broker-dealer acting on behalf of
an Optionee if (a) the broker-dealer has received from the Optionee or the
Corporation a fully-and duly-endorsed agreement evidencing such Option, together
with instructions signed by the Optionee requesting the Corporation to deliver
the shares of Common Stock subject to such Option to the broker-dealer on behalf
of the Optionee and specifying the account into which such shares should be
deposited, (b) adequate provision has been made with respect to the payment of
any withholding taxes due upon such exercise, and (c) the broker-dealer and the
Optionee have otherwise complied with Section 220.3(e)(4) of Regulation T, 12
CFR Part 220, or any successor provision.
12. When Qualified Options May be Exercised. No Qualified Option
---------------------------------------
shall be exercisable at any time after the expiration of ten (10) years from the
Date of Grant; provided, however, that if the Optionee with respect to a
-------- -------
Qualified Option is a 10-Percent Stockholder on the Date of Grant of such
Qualified Option, then such Option shall not be exercisable after the expiration
of five (5) years from its Date of Grant. In addition, if an Optionee of a
Qualified Option ceases to be an employee of the Corporation or any Related
Corporation for any reason, such Optionee's vested Qualified Options shall not
be exercisable after (a) 90 days following the date such Optionee ceases to be
an employee of the Corporation or any Related Corporation, if such cessation of
service is not due to the death or permanent and total disability (within the
meaning of Section 22(e)(3) of the Code) of the Optionee, or (b) twelve months
following the date such Optionee ceases to be an employee of the Corporation or
any Related Corporation, if such cessation of service is due to the death or
permanent and total disability (as defined above) of the Optionee. Upon the
death of an Optionee, any vested Qualified Option exercisable on the date of
death may be exercised by the Optionee's estate or by a person who acquires the
right to exercise such Qualified Option by bequest or inheritance or by reason
of the death of the Optionee, provided that such exercise occurs within both the
remaining option term of the Qualified Option and twelve months after the date
of the Optionee's death. This Section 12 only provides the outer limits of
allowable exercise dates with respect to Qualified Options; the Board or the
Committee may determine that the exercise period for a Qualified Option shall
have a shorter duration than as specified above.
13. Option Financing. Upon the exercise of any Option granted under
----------------
the Plan, the Corporation may, but shall not be required to, make financing
available to the Participant for the purchase of shares of Common Stock pursuant
to such Option on such terms as the Board or the Committee may specify.
14. Withholding of Taxes. The Board or the Committee shall make such
--------------------
provisions and take such steps as it may deem necessary or appropriate for the
withholding of any taxes that the Corporation is required by any law or
regulation of any governmental authority to withhold in
5
<PAGE>
connection with any Option or Restricted Stock including, but not limited to,
withholding the issuance of all or any portion of the shares of Common Stock
subject to such Option or Restricted Stock until the Participant reimburses the
Corporation for the amount it is required to withhold with respect to such
taxes, canceling any portion of such issuance in an amount sufficient to
reimburse the Corporation for the amount it is required to withhold or taking
any other action reasonably required to satisfy the Corporation's withholding
obligation.
15. Conditions Upon Issuance of Shares. The Corporation shall not be
----------------------------------
obligated to sell or issue any shares upon the exercise of any Option granted
under the Plan or to deliver Restricted Stock unless the issuance and delivery
of shares complies with all provisions of applicable federal and state
securities laws and the requirements of any national exchange or trading system
on which the Common Stock is then listed or traded.
As a condition to the exercise of an Option or the grant of
Restricted Stock, the Corporation may require the person exercising the Option
or receiving the grant of Restricted Stock to make such representations and
warranties as may be necessary to assure the availability of an exemption from
the registration requirements of applicable federal and state securities laws.
The Corporation shall not be liable for refusing to sell or issue
any shares covered by any Option or for refusing to issue Restricted Stock if
the Corporation cannot obtain authority from the appropriate regulatory bodies
deemed by the Corporation to be necessary to sell or issue such shares in
compliance with all applicable federal and state securities laws and the
requirements of any national exchange or trading system on which the Common
Stock is then listed or traded. In addition, the Corporation shall have no
obligation to any Participant, express or implied, to list, register or
otherwise qualify the shares of Common Stock covered by any Option or Restricted
Stock.
No Participant will be, or will be deemed to be, a holder of any
Common Stock subject to an Option unless and until such Participant has
exercised his or her Option and paid the purchase price for the subject shares
of Common Stock. Each Qualified Option under this Plan shall be transferable
only by will or the laws of descent and distribution and shall be exercisable
during the Participant's lifetime only by such Participant. Each nonqualified
Option under this Plan shall be transferable only by will, the laws of descent
and distribution, pursuant to a domestic relations order issued by a court of
competent jurisdiction, or to a trust established by the Participant for estate
planning purposes.
16. Restrictions on Shares. Shares of Common Stock issued pursuant
----------------------
to the Plan may be subject to restrictions on transfer under applicable federal
and state securities laws. The Board may impose such additional restrictions on
the ownership and transfer of shares of Common Stock issued pursuant to the Plan
as it deems desirable; any such restrictions shall be set forth in any Option
agreement entered into hereunder.
17. Modification of Options. Except as provided in Section 19(b) of
-----------------------
this Plan, at any time and from time to time, the Board or the Committee may
execute an instrument providing for modification, extension or renewal of any
outstanding Option, provided that no such modification,
6
<PAGE>
extension or renewal shall impair the Option without the consent of the holder
of the Option. Notwithstanding the foregoing, in the event of such a
modification, substitution, extension or renewal of a Qualified Option, the
Board or the Committee may increase the exercise price of such Option if
necessary to retain the qualified status of such Option.
18. Effect of Change in Stock Subject to the Plan. In the event that
---------------------------------------------
each of the outstanding shares of Common Stock (other than shares held by
dissenting stockholders) shall be changed into or exchanged for a different
number or kind of shares of stock of the Corporation or of another corporation
(whether by reason of merger, consolidation, recapitalization, reclassification,
split-up, combination of shares or otherwise), or in the event a stock split or
stock dividend occurs, then there shall be substituted for each share of Common
Stock then subject to Options or Restricted Stock awards or available for
Options or Restricted Stock awards the number and kind of shares of stock into
which each outstanding share of Common Stock (other than shares held by
dissenting stockholders) shall be so changed or exchanged, or the number of
shares of Common Stock as is equitably required in the event of a stock split or
stock dividend, together with an appropriate adjustment of the Exercise Price.
The Board may, but shall not be required to, provide additional anti-dilution
protection to a Participant under the terms of the Participant's Option or
Restricted Stock agreement.
19. Administration.
--------------
(a) The Plan shall be administered by the Board or by a committee
of the Board comprised solely of two or more Non-Employee Directors appointed by
the Board (the "Committee"). Options and Restricted Stock may be granted under
Sections 6 and 7, respectively, only (i) by the Board as a whole, or (ii) by
majority agreement of the members of the Committee. Option agreements and
Restricted Stock agreements, in the forms as approved by the Board or the
Committee, and containing such terms and conditions consistent with the
provisions of this Plan as are determined by the Board or the Committee, may be
executed on behalf of the Corporation by the Chairman of the Board, the
President or any Vice President of the Corporation. The Board or the Committee
shall have complete authority to construe, interpret and administer the
provisions of this Plan and the provisions of the Option agreements and
Restricted Stock agreements granted hereunder; to prescribe, amend and rescind
rules and regulations pertaining to this Plan; to suspend or discontinue this
Plan; and to make all other determinations necessary or deemed advisable in the
administration of the Plan. The determinations, interpretations and
constructions made by the Board or the Committee shall be final and conclusive.
No member of the Board or the Committee shall be liable for any action taken, or
failed to be taken, made in good faith relating to the Plan or any award
thereunder, and the members of the Board or the Committee shall be entitled to
indemnification and reimbursement by the Corporation in respect of any claim,
loss, damage or expense (including attorneys' fees) arising therefrom to the
fullest extent permitted by law.
(b) Although the Board or the Committee may suspend or discontinue
the Plan at any time, all Qualified Options must be granted within ten (10)
years from the effective date of the Plan or the date the Plan is approved by
the stockholders of the Corporation, whichever is earlier.
7
<PAGE>
(c) Subject to any applicable requirements of Rule 16b-3 or of any
national exchange or trading system on which the Common Stock is then listed or
traded, the Board may amend any provision of this Plan in any respect in its
discretion.
20. Continued Employment Not Presumed. Nothing in this Plan or any
---------------------------------
document describing it nor the grant of any Option or Restricted Stock shall
give any Participant the right to continue in the employment of the Corporation
or affect the right of the Corporation to terminate the employment of any such
person with or without cause.
21. Liability of the Corporation. Neither the Corporation, its
----------------------------
directors, officers or employees or the Committee, nor any Subsidiary which is
in existence or hereafter comes into existence, shall be liable to any
Participant or other person if it is determined for any reason by the Internal
Revenue Service or any court having jurisdiction that any Qualified Option
granted hereunder does not qualify for tax treatment as an incentive stock
option under Section 422 of the Code.
22. GOVERNING LAW. THE PLAN SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF STATE OF TEXAS AND THE UNITED STATES, AS APPLICABLE,
WITHOUT REFERENCE TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
23. Severability of Provisions. If any provision of this Plan is
--------------------------
determined to be invalid, illegal or unenforceable, such invalidity, illegality
or unenforceability shall not affect the remaining provisions of the Plan, but
such invalid, illegal or unenforceable provision shall be fully severable, and
the Plan shall be construed and enforced as if such provision had never been
inserted herein.
8
<PAGE>
FRONT OF PROXY CARD
-------------------
SUIZA FOODS CORPORATION
BOARD OF DIRECTORS PROXY FOR THE ANNUAL MEETING
OF STOCKHOLDERS AT 10:00 A.M. THURSDAY, MAY 14, 1998
CRESCENT COURT HOTEL, 400 CRESCENT COURT, DALLAS, TEXAS
The undersigned stockholder of Suiza Foods Corporation (the "Company")
hereby appoints Gregg L. Engles and Tracy L. Noll or either of them, as proxies,
each with full powers of substitution, to vote the shares of the undersigned at
the above-stated Annual Meeting and at any adjournment(s) thereof:
________________________________________________________________________
(1) Election of Alan J. Bernon, Gregg L. Engles, P. Eugene Pender and
Robert Piccinini as Class III Directors
FOR all nominees (except as WITHHOLD AUTHORITY
provided to the contrary below) [ ] to vote for all nominees [ ]
(INSTRUCTION: TO WITHHOLD AUTHORITY TO VOTE FOR ANY INDIVIDUAL
NOMINEE, WRITE THAT NOMINEE'S NAME HERE):
________________________________________________________________________
(2) Approval of an Amendment to the Company's Certificate of Incorporation
to increase the number of authorized shares of Common Stock from
100,000,000 shares to 500,000,000 shares.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
________________________________________________________________________
(3) Approval of an Amendment to Suiza Foods Corporation 1997 Stock Option
and Restricted Stock Plan to increase the number of shares of Common
Stock authorized for issuance from 3,000,000 to 4,000,000.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
________________________________________________________________________
(4) Ratification of the selection of Deloitte & Touche LLP as the
Company's independent auditors for the fiscal year 1998.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
________________________________________________________________________
(5) In their discretion, the proxies are authorized to vote upon such
other business or matters as may properly come before the meeting or
any adjournment thereof.
(CONTINUED AND TO BE SIGNED ON THE REVERSE SIDE)
<PAGE>
BACK OF PROXY CARD
------------------
(CONTINUED FROM REVERSE SIDE)
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS AND WILL
BE VOTED IN ACCORDANCE WITH THE SPECIFICATIONS MADE ON THE REVERSE SIDE. IF A
CHOICE IS NOT INDICATED WITH RESPECT TO ITEMS (1), (2), (3) AND (4) THIS PROXY
WILL BE VOTED "FOR" SUCH ITEM. THE PROXIES WILL USE THEIR DISCRETION WITH
RESPECT TO ANY MATTER REFERRED TO IN ITEM (5). THIS PROXY IS REVOCABLE AT ANY
TIME BEFORE IT IS EXERCISED.
Receipt herewith of the Company's Annual Report and Notice of Meting
and Proxy Statement, dated March 31, 1998, is hereby acknowledged.
Dated: , 1998
-------------------------
--------------------------------------
--------------------------------------
(Signature(s) of Stockholder(s))
(Joint owners must EACH sign. Please sign EXACTLY
as your name(s) appear(s) on this card. When
signing as attorney, trustee, executor,
administrator, guardian or corporate officer,
please give your FULL title.)
PLEASE SIGN, DATE AND MAIL TODAY.
