<PAGE> 1
As filed with the Securities and Exchange Commission on December 23, 1998.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SUIZA FOODS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 75-2559681
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2515 MCKINNEY AVENUE, SUITE 1200
DALLAS, TEXAS 75201
(214) 303-3400
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
---------------
Gregg L. Engles COPIES TO:
Chairman of the Board and William A. McCormack
Chief Executive Officer Hughes & Luce, L.L.P.
2515 McKinney Avenue 1717 Main Street, Suite 2800
Suite 1200 Dallas, Texas 75201
Dallas, Texas 75201 (214) 939-5500
(214) 303-3400
(Name, address, and telephone number,
including area code, of agent for service)
---------------
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: |_|
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act of 1933,
other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: |X|
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_| ________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: |_|
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SHARES TO BE TO BE AGGREGATE PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) FEE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 32,574 shares $41.16 $1,340,746 $396
=====================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee on the
basis of the average of the high and low price paid per share of the Common
Stock, as reported on the New York Stock Exchange on December 16, 1998, in
accordance with Rules 457(c) and (h)(1) promulgated under the Securities
Act of 1933, as amended.
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BE COME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE> 2
SUIZA FOODS CORPORATION
32,574 SHARES
COMMON STOCK
------------------------------------
The stockholder identified below under the caption "Selling
Stockholder" may offer to sell up to 32,574 shares of our common stock.
We have already issued to the selling stockholder the shares being
offered by the selling stockholder, or we will issue the shares being offered by
the selling stockholder prior to the sale of the shares. This offering is not
part of the original issuance of the shares of common stock. We will not receive
any of the proceeds from the selling stockholder's sale of their shares. The
selling stockholder may offer the shares in transactions on the New York Stock
Exchange, in negotiated transactions, or through a combination of these methods.
The selling stockholder may offer the shares at prices relating to the
prevailing market prices or at negotiated prices.
The common stock is quoted on the NYSE under the symbol "SZA." On
December 22, 1998 the last sale price of the common stock, as reported on the
NYSE, was $45.63 per share.
------------------------------------
INVESTING IN THE COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD
PURCHASE ONLY IF YOU CAN AFFORD A COMPLETE LOSS. SEE "RISK FACTORS" BEGINNING ON
PAGE 4.
------------------------------------
The Securities and Exchange Commission and state securities regulators have not
approved or disapproved these securities, or determined if the prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
------------------------------------
You should rely only on the information contained in this document or
that we have referred you to. We have not authorized anyone to provide you with
information that is different from that contained in this Prospectus. The
selling stockholder may offer to sell, and seek offers to buy, shares of common
stock only in jurisdictions where offers and sales are permitted. The
information contained in this Prospectus is accurate only as of the date of this
Prospectus, regardless of the time of delivery of this Prospectus or of any sale
of the common stock.
This Prospectus is dated December 23, 1998.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information 1
Incorporation of Certain Documents by Reference 2
The Company 4
Risk Factors 4
Cautionary Statement Concerning
Forward -Looking Statements 9
Selling Stockholder 11
Plan of Distribution 11
Use of Proceeds 12
Legal Matters 12
Experts 12
</TABLE>
We are a Delaware corporation. Our principal executive offices are
located at 2515 McKinney Avenue, Suite 1200, Dallas, Texas 75201, and our
telephone number is 214-303-3400. We maintain a worldwide web site at
http://www.suizafoods.com. In this Prospectus, the "Company," "Suiza," "we,"
"us" and "our" refer to Suiza Foods Corporation and its subsidiaries, unless the
context otherwise requires. In addition, "Common Stock" refers to our Common
Stock, $0.01 par value per share.
<PAGE> 4
AVAILABLE INFORMATION
Suiza Foods Corporation (the "Company" or "Suiza") is subject to the
informational reporting requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and, in accordance therewith, files reports, proxy
statements, information statements and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy statements, information
statements and other information filed by the Company with the Commission
pursuant to the requirements of the Exchange Act may be inspected and copied at
Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549-1004
and at the following regional offices of the Commission: New York Regional
Office, Seven World Trade Center, Suite 1300, New York, New York 10048; and
Chicago Regional Office, Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60606. Copies of such material may be obtained
from the Public Reference Room of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Information on the operation of the
Public Reference Section is available by calling the Commission at
1-800-SEC-0330. The Company is a publicly held corporation and its Common Stock
is traded on the NYSE under the symbol "SZA." Reports, proxy statements,
information statements and other information can also be inspected at the
offices of the NYSE, 20 Broad Street, New York, New York 10005. The Commission
maintains a Web site that contains reports, proxy statements, information
statements and other information regarding the Company. The Commission's Web
site address is http://www.sec.gov. Statements made in this Prospectus
concerning the contents of any document referred to herein are not necessarily
complete.
The Company intends to furnish its stockholders with annual reports
containing audited financial statements and such other periodic reports as it
may determine to furnish or as may be required by law.
The Company has filed with the Commission a Registration Statement on
Form S-3, (together with all exhibits thereto, the "Registration Statement")
under the Securities Act of 1933, as amended (the "Securities Act") with respect
to the Common Stock offered hereby. This Prospectus, which constitutes a part of
the Registration Statement, does not contain all of the information set forth in
the Registration Statement, certain items of which are contained in exhibits to
the Registration Statement, as permitted by the rules and regulations of the
Commission. For further information with respect to the Company and the
securities offered by this Prospectus, reference is made to the Registration
Statement, including the exhibits thereto, and the financial statements and
notes incorporated by reference as a part thereof, which are on file at the
offices of the Commission and may be obtained upon payment of the fee prescribed
by the Commission, or may be examined without charge at the offices of the
Commission. Statements made in this Prospectus concerning the contents of any
contract, agreement or other document referred to herein are not necessarily
complete, and, in each such instance, are qualified in all respects by reference
to the applicable documents filed with the Commission. The Registration
Statement and the exhibits thereto filed by the Company with the Commission may
be inspected and copied at the locations described above.
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<PAGE> 5
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Suiza will provide without charge to each person to whom a copy of this
Prospectus is delivered, including any beneficial owner of the securities
offered hereby, upon the written or oral request of such person, a copy of any
or all of the documents incorporated by reference herein (other than exhibits to
such documents, unless such exhibits are specifically incorporated by reference
into the information that this Prospectus incorporates). Requests should be
directed to:
Suiza Foods Corporation
2515 McKinney Avenue
Suite 1200
Dallas, Texas 75201
Attn: Corporate Secretary
(214) 303-3400
The following documents previously filed with the Commission pursuant to
the Securities Act and the Exchange Act are incorporated herein by reference and
shall be deemed a part hereof:
1. Suiza's Annual Report on Form 10-K for the fiscal year ended December 31,
1997 (File No. 1-12755).
2. Suiza's Quarterly Reports on Form 10-Q for the quarters ended March 31,
1998, June 30, 1998 and September 30, 1998.
3. Suiza's Current Report on Form 8-K filed July 14, 1997 (as amended on
August 22, 1997), which includes the audited financial statements of Dairy
Fresh L.P. and The Garelick Companies (File No. 1-12755).
4. Suiza's Current Report on Form 8-K filed March 9, 1998 (as amended by
Current Report on Form 8-K/A filed April 7, 1998), which includes the
audited financial statements of Land-O-Sun Diaries, L.L.C. (File No.
1-12755).
5. Suiza's Current Reports on Form 8-K filed January 15, 1998, February 18,
1998, February 25, 1998, March 10, 1998, March 18, 1998, March 20, 1998,
June 2, 1998, September 14, 1998 and December 18, 1998.
6. Continental Can Company, Inc.'s ("Continental Can") Annual Report on Form
10-K for the year ended December 31, 1997 (File No. 1-6690).
7. Continental Can's Quarterly Report on Form 10-Q for the quarter ended March
31, 1998 (File No. 1-6690).
8. The description of the Common Stock contained in Suiza's Registration
Statement on Form 8-A filed on February 19, 1997 (File No. 1-12755),
including any amendments or reports filed for the purpose of updating such
description.
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<PAGE> 6
9. The description of the Common Stock Purchase Rights contained in Suiza's
Registration Statement on Form 8-A filed on March 10, 1998 (File No.
1-12755), including any amendments or reports filed for the purpose of
updating such description
All reports and other documents filed by Suiza pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of this Offering shall be deemed to be
incorporated by reference herein and to be a part hereof from the dates of
filing of such reports and documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified, replaced or superseded for purposes of this Prospectus to the
extent that a statement contained herein, or in any other subsequently filed
document that also is incorporated or deemed to be incorporated by reference
herein, modifies, replaces or supersedes the earlier statement. Any statement so
modified, replaced or superseded shall not be deemed, except as so modified,
replaced or superseded, to constitute a part of this Prospectus.
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<PAGE> 7
PROSPECTUS SUMMARY
You should read this summary together with the more detailed
information and our financial statements and notes appearing elsewhere in, or
incorporated by reference in, this Prospectus. You should carefully consider,
among other things, the matters set forth in "Risk Factors."
THE COMPANY
We are a leading manufacturer and distributor of fresh milk and related
dairy products and plastic packaging in the United States. We also manufacture,
distribute and market refrigerated, shelf-stable and frozen food products. Each
of our operating subsidiaries is a leading competitor in its market, with an
established reputation for customer service and product quality. Our dairy
subsidiaries market their products through extensive distribution networks to a
diverse group of customers, including convenience stores, grocery stores,
schools and institutional food service customers. Our customers in the plastic
packaging business include regional dairy manufacturers, bottled water
processors, beverage manufacturers, and consumer and industrial products
companies. We have grown primarily through an successful aggressive strategy,
having consummated 26 acquisitions since our initial public offering in April
1996.
We are a Delaware corporation with its principal offices located at
2515 McKinney Avenue, Suite 1200, Dallas, Texas 75201 (telephone number
214-303-3400).
RISK FACTORS
You should carefully consider the following risk factors and warnings
before making an investment decision. The risks described below are not the only
ones facing our company. Additional risks that we do not yet know of or that we
currently think are immaterial may also impair our business operations. If any
of the following risks actually occur, our business, financial condition or
results of operations could be materially adversely affected. In such case, the
price of the Common Stock could decline, and you may lose all or part of your
investment. You should also refer to the other information set forth in this
Prospectus, including our financial statements and the related notes.
This Prospectus contains forward-looking statements. These statements
refer to future events or our future financial performance. In some cases, you
can identify forward-looking statements by terminology such as "may," "will,"
"should," "expects," "anticipates," "plans," "believes," "estimates,"
"predicts," "potential" or "continue" or the negative of such terms and other
comparable terminology. These statements are only predictions. Actual events or
results may differ materially. In evaluating these statements, you should
specifically consider various factors, including the risks outlined below. These
factors may cause our actual results to differ materially from any
forward-looking statement.
4
<PAGE> 8
WE MAY HAVE DIFFICULTIES IN EXECUTING OUR ACQUISITION STRATEGY
We intend to expand our dairy, food distribution and plastic packaging
businesses primarily through acquisitions. Acquisitions are subject to various
risks, including:
-- increased competition for acquisitions, which could result in higher
acquisition prices;
-- inability to find suitable acquisition candidates at acceptable
prices;
-- insufficient capital resources to complete acquisitions; inability to
enter into definitive agreements for desired acquisitions;
-- inability to successfully integrate acquired companies;
-- inability to retain key customers of acquired companies; and
-- inability to complete planned acquisitions due to governmental
constraints.
We also cannot assure you that any such acquisitions, if consummated, will
be advantageous to us. If we fail to successfully pursue our acquisition
strategy, our business, financial condition and results of operations could be
materially or adversely affected.
WE MAY HAVE DIFFICULTIES MANAGING OUR GROWTH
We have expanded our operations rapidly in recent years. We intend to
continue expansion in the foreseeable future. This rapid growth places a
significant demand on management, financial and operational resources. The
integration of businesses we have acquired or will acquire in the future may (1)
result in unforeseen difficulties; (2) require us to invest more capital than we
expected or (3) use our management resources more than we expected. If we fail
to successfully integrate businesses that we have acquired, our business,
financial condition and results of operations will be materially or adversely
affected.
WE OPERATE IN HIGHLY COMPETITIVE MARKETS
Our dairy and food distribution businesses are subject to significant
competition. Our principal competitors are dairy operations and large national
food service distributors that operate in our markets. We compete in the dairy
and food distribution businesses on the basis of a number of factors, including
service, price, brand recognition, quality and breadth of product line. Certain
of our competitors are large, well capitalized and may have greater financial,
operational and marketing resources than we do.
The dairy industry has excess capacity and has been in the process of
consolidation for many years. Excess capacity has resulted from the development
of more efficient manufacturing techniques, the establishment of captive dairy
manufacturing operations by large grocery retailers and relatively little growth
in the demand for fresh milk products. We could be adversely affected by any
expansion of production capacity in one of our regional markets.
The plastic packaging industry is also subject to significant competition.
Our principal competitors are larger independent manufacturing companies and
vertically integrated food and industrial companies that operate captive plastic
packaging manufacturing facilities. We compete
5
<PAGE> 9
in the plastic packaging industry on the basis of a number of factors, including
price, quality and service. Many of our competitors in the plastics industry are
larger and better capitalized than us, and have greater resources than we do.
We expect to encounter additional competition as we address new markets. We
cannot be sure that we will compete successfully against our competitors in the
future. If we fail to compete successfully against our current or future
competitors, our business, financial condition and results of operations will be
materially or adversely affected.
WE HAVE SUBSTANTIAL INDEBTEDNESS AND MAY INCUR ADDITIONAL INDEBTEDNESS
We have substantial indebtedness. Under our senior credit facility, we can
incur substantial amounts of additional indebtedness in the future. We have
pledged the stock of our significant subsidiaries to secure our indebtedness
under our senior credit facility. The senior credit facility and related debt
service obligations may:
-- limit our ability to obtain additional financing in the future;
-- require us to dedicate a significant portion of our cash flow to the
payment of principal and interest on its indebtedness, thereby
reducing the funds we have available for other purposes;
-- limit our flexibility in planning for, or reacting to, changes in its
business and market conditions; and
-- impose on us additional financial and operational restrictions,
including restrictions on dividends.
Our ability to make scheduled payments on our indebtedness depends on our
financial and operating performance. Our financial and operating performance is
subject to prevailing economic conditions and to financial, business and other
factors, some of which are beyond our control. If we do not comply with the
financial and other restrictive covenants under our senior credit facility, we
may default under our senior credit facility. If we default under our senior
credit facility, and this default is not cured or waived, our business,
financial condition and results of operations could be materially and adversely
affected.
We periodically enter into various interest hedging agreements. These
agreements limit the amount of interest that we pay. This reduces our exposure
to interest rate fluctuations. To the extent that the amount of indebtedness
outstanding under our senior credit facility exceeds the amount of indebtedness
covered by any such hedging agreements, we may be exposed to the risk that
higher interest rates will materially increase our interest expense.
OUR RAW MATERIAL COSTS COULD INCREASE
The price of raw milk in the United States changes due to supply and
demand. Currently, federal or state government agencies establish minimum
support prices monthly on a regional basis. In 1996, Congress passed legislation
to phase out support prices over a specified period. We cannot guarantee that
raw milk prices in the United States will not increase materially.
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<PAGE> 10
Volatility in raw milk prices or in the cost of other raw materials we use could
reduce the profitability of our operations, which could have a material adverse
effect on us. The raw materials that we primarily use are raw milk, butter fat
and resin. We cannot be sure that the prices of these raw materials will not
increase. If the prices of these raw materials do increase, our business,
financial conditions and results of operations could be materially or adversely
affected. The United States Department of Agriculture has recently proposed a
number of changes to the Federal Milk Marketing Order program, including changes
in pricing classifications for certain dairy products. We do not know if these
proposals will be adopted in their current or another form. We do not know what
the impact of any final rules would be on the market for dairy products. We
cannot guarantee that any changes in the current Federal Milk Marketing Order
program would not have a material adverse effect on us.
WE COULD BE ADVERSELY AFFECTED BY CHANGES IN REGULATIONS
As a manufacturer and distributor of food products, we are subject to
federal, state and local laws and regulations relating to:
-- manufacturing (including composition and ingredients);
-- labeling;
-- packaging; and
-- safety.
The United States Food and Drug Administration and various state and local
agencies enforce these laws and regulations by inspecting our facilities and
requiring remedial action if necessary. An actual or perceived problem with the
quality or safety of products at any of our facilities could lead to:
-- product withdrawals;
-- product recalls;
-- remediation expenses;
-- temporary plant closings; and
-- related negative publicity.
Any of these events could have a material or adverse effect on our business,
financial condition and results of operations. Our operations are also subject
to other federal, Puerto Rico, state and local governmental regulation.
LOSS OF KEY PERSONNEL COULD ADVERSELY AFFECT OUR BUSINESS
Our success depends largely on the skills, experience and performance of
some key members of our management. The loss of any key members of our
management may materially or adversely affect our business, financial condition
and results of operations. We have not obtained key man life insurance with
respect to any of our key members of management.
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<PAGE> 11
RISKS RELATING TO YEAR 2000 PROBLEMS MAY ADVERSELY AFFECT OUR BUSINESS
Some computers, software and other equipment include computer code in which
calendar year data is abbreviated to only two digits. As a result, some of these
systems could fail to operate or fail to produce correct results because they
may interpret "00" to mean 1900, rather than 2000 -- widely known as the "Year
2000 Problem". These problems are likely to increase in frequency and severity
as the year 2000 approaches. The Year 2000 Problem affects some of our
computers, software and other equipment. If we fail to properly recognize and
address the Year 2000 Problem in our systems, our business, financial condition
and results of operations could be materially and adversely affected.
We believe that we have identified most of the major computers, software
and other equipment used in connection with our internal operations that must be
modified, upgraded or replaced to minimize the possibility of a material
disruption to our business. We have commenced the process of modifying,
upgrading and replacing major systems that have been assessed as adversely
affected, and we expect to complete this process before the occurrence of any
material disruption of our business. We have commenced the process of
identifying other computers, software and other equipment that may be affected
by the Year 2000 Problem, and determining whether remedial action is needed. We
expect to complete this process by mid-1999.
The Year 2000 Problem also affects some of our customers and major
suppliers of computers, software, and other equipment. We have discussed the
Year 2000 Problem with some of these customers and suppliers, but we cannot
guarantee that they will resolve any or all Year 2000 Problems. If our customers
and suppliers fail to resolve Year 2000 Problems, our business could be
materially disrupted.
PROVISIONS OF OUR CERTIFICATE OF INCORPORATION, BYLAWS AND DELAWARE LAW COULD
DETER TAKEOVER ATTEMPTS
Some provisions in our Certificate of Incorporation and Bylaws could delay,
defer, prevent or make more difficult a merger, tender offer, or proxy contest
involving our company that our stockholders might view as being in their best
interests, including a change of control that might result in a price higher
than the market price for shares of our common stock. Among other things, these
provisions:
-- authorize our Board of Directors to issue preferred stock in series
with the terms of each series to be fixed by our Board of Directors;
-- divide our Board of Directors into three classes so that only
approximately one-third of the total number of directors will be
elected each year;
-- permit directors to be removed only for cause; and
-- specify advance notice requirements for stockholder proposals and
director nominations.
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<PAGE> 12
In addition, with certain exceptions, Section 203 of the Delaware General
Corporation Law restricts certain mergers and other business combinations
between us and any holder of 15% or more of our voting stock.
We also have a stockholder rights plan. Under this plan, after the
occurrence of specified events, our stockholders will be able to buy stock from
us or our successor at reduced prices. These rights will not extend, however, to
persons participating in takeover attempts without the consent of our Board of
Directors. Accordingly, this plan could delay, defer or prevent a change of
control of our company.
WE MAY BE SUBJECT TO PRODUCT LIABILITY CLAIMS
We sell food products for human consumption. The sale of food products for
human consumption involves risks such as:
-- unauthorized third parties tampering with the products;
-- product contamination or spoilage, including contamination by foreign
objects, substances, chemicals, aflatoxin and other agents; and
-- residues being introduced to the products while they are being grown,
stored, handled or transported.
There can therefore be no assurance that consumption of our products will not
cause a health-related illness in the future or that we will not be subject to
claims or lawsuits relating to such matters. There can also be no assurance that
we will not incur claims or liabilities for which we are not insured or that
exceed our insurance coverages. If we are subject to such claims, our business,
financial condition and results of operations could be materially or adversely
affected.
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
This Prospectus contains or incorporates by reference certain
forward-looking statements. These statements involve known and unknown risks,
uncertainties and other factors that may cause our or our industry's actual
results, levels of activity, performance or achievements to be materially
different from any future results, levels of activity, performance or
achievements expressed or implied by such forward-looking statements. Such
factors include, among others, those listed under "Risk Factors" and elsewhere
in this Prospectus.
Among the key factors that may have a direct bearing on our results and
financial condition are (1) risks associated with our acquisition strategy,
including our ability to integrate the operations of our acquired businesses and
realize operating efficiencies; (2) risks relating to our leverage position; (3)
risks associated with intense competition in our industries; (4) the impact of
governmental regulations affecting the dairy industry; (5) risks associated with
volatility in the costs of raw goods such as butterfat and (6) the impact of
extreme weather conditions.
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<PAGE> 13
In some cases, you can identify forward-looking statements by terminology
such as "may," "will," "should," "expects," "anticipates," "plans," "believes,"
"estimates," "predicts," "potential" or "continue" or the negative of such terms
or other comparable terminology.
Although we believe that the expectations reflected in the forward-looking
statements are reasonable, we cannot guarantee future results, levels of
activity, performance or achievements.
Moreover, neither we nor any other person assumes responsibility for the
accuracy and completeness of any such forward-looking statements. We are under
no duty to update any of the forward-looking statements after the date of this
Prospectus to conform such statements to actual results.
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<PAGE> 14
SELLING STOCKHOLDER
The table below sets forth information with respect to the beneficial
ownership of the common stock of Suiza by the selling stockholder immediately
prior to this offering and as adjusted to reflect the sale of shares of common
stock pursuant to the offering. The selling stockholder does not own in excess
of one percent (1%) of the outstanding common stock of Suiza. All information
with respect to the beneficial ownership has been furnished by the selling
stockholder:
<TABLE>
<CAPTION>
Beneficial Ownership Beneficial Ownership
Prior to Offering After Offering (2)
-------------------------------------- -----------------------
Number of Percent of Shares to Number of Percent of
Name of Beneficial Owner Shares Class (1) be Sold (2) Shares Class
- ------------------------ ---------- ------------ --------- ---------- -------
<S> <C> <C> <C> <C> <C>
Wesperada, Limited 32,574 0.093% 32,574 -0- -0-
</TABLE>
- ---------------
(1) Computed based on common stock outstanding as of September 30, 1998.
(2) Assumes all the shares of common stock that may be offered are sold.
PLAN OF DISTRIBUTION
The common stock being offered by the selling stockholder pursuant to
this Prospectus may be sold from time to time by the selling stockholder, or by
pledgees, donees, transferees or other successors in interest. Such sales may be
made on one or more exchanges or in the over-the-counter market, or otherwise at
prices and on terms then prevailing or at prices related to the then-current
market price of the common stock, or in negotiated transactions. The shares may
be sold by one or more of the following methods: (a) a block trade in which the
broker or dealer so engaged will attempt to sell the shares as agent but may
position and resell a portion of the block as principal to facilitate the
transaction; (b) purchases by a broker or dealer as principal and resale by such
broker or dealer for its account pursuant to this Prospectus; (c) an exchange
distribution in accordance with the rules of such exchange; and (d) ordinary
brokerage transactions and transactions in which the broker solicits purchasers.
In addition, any securities covered by this Prospectus which qualify for sale
pursuant to Rule 144 or Rule 145 under the Act may be sold under either of such
rules rather than pursuant to this Prospectus. From time to time the selling
stockholder may engage in short sales, short sales versus the box, puts and
calls and other transactions in securities issued by the Company or derivatives
thereof, and may sell and deliver the Shares in connection therewith.
In effecting sales, brokers or dealers engaged by the selling
stockholder may arrange for other brokers or dealers to participate. Brokers or
dealers will receive commissions or discounts from selling stockholder in
amounts to be negotiated immediately prior to the sale. The selling stockholder
and agents who execute orders on their behalf may be deemed to be underwriters
as that term is defined in Section 2(11) of the Securities Act and a portion of
any proceeds or sales discounts, commissions or other compensation may be deemed
to be underwriting compensation for purposes of the Act.
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<PAGE> 15
USE OF PROCEEDS
The Company will not receive any proceeds from this offering.
LEGAL MATTERS
The validity of the common stock offered hereby will be passed upon for
the Company by Hughes & Luce, L.L.P., Dallas, Texas. William A. McCormack, a
partner with Hughes & Luce, L.L.P., beneficially owns 41,795 shares of Common
Stock.
EXPERTS
The consolidated financial statements of Suiza Foods Corporation as of
December 31, 1997 and 1996 and for each of the three years in the period ended
December 31, 1997 have been incorporated in this Prospectus by reference from
the Suiza Foods Corporation Annual Report on Form 10-K for the year ended
December 31, 1997. Such consolidated financial statements, except The
Morningstar Group Inc.'s consolidated financial statements as of December 31,
1996 and for each of the two years in the period ended December 31, 1996, which
have been consolidated with those of Suiza Foods Corporation, have been audited
by Deloitte & Touche LLP, independent auditors, as stated in their report which
is incorporated herein by reference, and has been so incorporated in reliance
upon the reports of such firm upon their authority as experts in accounting and
auditing. The consolidated financial statements of The Morningstar Group Inc. as
of December 31, 1996 and for each of the two years in the period ended December
31, 1996 (consolidated with those of Suiza Foods Corporation for those periods
and which are not presented separately) have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their report which is
incorporated herein by reference, and has been so incorporated in reliance upon
the reports of such firm upon their authority as experts in accounting and
auditing.
The consolidated financial statements of Continental Can Company, Inc.
as of December 31, 1997 and 1996 and for each of the three years in the period
ended December 31, 1997 incorporated by reference in this Prospectus have been
audited by KPMG Peat Marwick LLP, independent auditors, as stated in their
report which is incorporated herein by reference.
The financial statements of Dairy Fresh, L.P., a Delaware limited
partnership, as of December 31, 1996 and 1995 and for the years then ended and
the period from July 1, 1994 (date of acquisition) to December 31, 1994,
incorporated by reference into this Prospectus have been audited by McGladrey &
Pullen, LLP, independent auditors, as stated in their report which is
incorporated herein by reference.
The combined financial statements of The Garelick Companies, as of
September 30, 1996 and 1995 and for each of the three years in the period ended
September 30, 1996, incorporated by
12
<PAGE> 16
reference into this Prospectus have been audited by PricewaterhouseCoopers
L.L.P., independent accountants, as stated in their report which is incorporated
herein by reference.
13
<PAGE> 17
32,574 SHARES
SUIZA FOODS CORPORATION
COMMON STOCK
------------
PROSPECTUS
------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Available Information 1
Incorporation of Certain Documents by Reference 2
The Company 4
Risk Factors 4
Cautionary Statement Concerning 9
Forward -Looking Statements
Selling Stockholder 11
Plan of Distribution 11
Use of Proceeds 12
Legal Matters 12
Experts 12
</TABLE>
December 23, 1998
<PAGE> 18
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table indicates the estimated expenses to be incurred in
connection with the offering described in this Registration Statement, all of
which will be paid by the Company.
<TABLE>
<S> <C>
Registration fee $ 396
Accounting fees and expenses 2,500
Legal fees and expenses 5,000
Blue Sky fees and expenses (including counsel fees) 1,000
Miscellaneous expenses 2,000
--------
Total: $ 10,896
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation provides that no director of
the Company will be personally liable to the Company or any of its stockholders
for monetary damages arising from the director's breach of fiduciary duty as a
director, with certain limited exceptions.
Pursuant to the provisions of Section 145 of the Delaware General
Corporation Law, every Delaware corporation has the power to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (other than an
action by or in the right of the corporation) by reason of the fact that such
person is or was a director, officer, employee or agent of any corporation,
partnership, joint venture, trust or other enterprise, against any and all
expenses, judgments, fines and amounts paid in settlement and reasonably
incurred in connection with such action, suit or proceeding. The power to
indemnify applies only if such person acted in good faith and in a manner such
person reasonably believed to be in the best interests, or not opposed to the
best interests, of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The power to indemnify applies to actions brought by or in the right of
the corporation as well, but only to the extent of defense and settlement
expenses and not to any satisfaction of a judgment or settlement of the claim
itself, and with the further limitation that in such actions no indemnification
shall be made in the event of any adjudication of negligence or misconduct
unless the court, in its discretion, believes that in light of all the
circumstances indemnification should apply.
The Company's Certificate of Incorporation contains provisions
requiring it to indemnify its officers and directors to the fullest extent
permitted by the Delaware General Corporation Law.
II-1
<PAGE> 19
ITEM 16. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Index to
Exhibits on page II-6 of this Registration Statement, which Index is
incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) and 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new
II-2
<PAGE> 20
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
II-3
<PAGE> 21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dallas, State of Texas, on December 23, 1998.
SUIZA FOODS CORPORATION
By: /S/ GREGG L. ENGLES
-------------------------------------
Gregg L. Engles
Chairman of the Board,
Chief Executive Officer and Director
POWER OF ATTORNEY
We, the undersigned officers and directors of Suiza Foods Corporation,
hereby severally constitute and appoint Gregg L. Engles and Tracy L. Noll, and
each of them, our true and law attorneys-in-fact and agents, with full power of
substitution and resubstitution, for each of us in our name, place and stead, in
any and all capacities, to sign Suiza Food Corporation's Registration Statement
on Form S-3, and any other Registration Statement relating to the same offering,
and any and all amendments thereto (including post-effective amendments), and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, and hereby grant to such
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as each of us might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them or his or their substitute or substitutes may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
- -------------------------- ------------------------------- ------------------
<S> <C> <C>
/S/ GREGG L. ENGLES Chairman of the Board, Chief December 23, 1998
- -------------------------- Executive Officer and Director
Gregg L. Engles (Principal Executive Officer)
- --------------------------- Director
Alan J. Bernon
/S/ CLETES O. BESHEARS Director December 23, 1998
- ---------------------------
Cletes O. Beshears
</TABLE>
II-4
<PAGE> 22
<TABLE>
<S> <C> <C>
/S/ STEPHEN L. GREEN Director December 23, 1998
- --------------------------
Stephen L. Green
/s/ JOSEPH S. HARDIN, JR. Director December 23, 1998
- --------------------------
Joseph S. Hardin, Jr.
/s/ ROBERT L. KAMINSKI Director December 23, 1998
- --------------------------
Robert L. Kaminski
/s/ DAVID F. MILLER, SR. Director December 23, 1998
- --------------------------
David F. Miller, Sr.
/s/ JOHN R. MUSE Director December 23, 1998
- --------------------------
John R. Muse
/s/ HECTOR M. NEVARES Director December 23, 1998
- --------------------------
Hector M. Nevares
/s/ DELTON C. PARKS Director December 23, 1998
- --------------------------
Delton C. Parks
/s/ P. EUGENE PENDER Director December 23, 1998
- --------------------------
P. Eugene Pender
Director
- --------------------------
Jim L. Turner
/S/ BARRY A. FROMBERG Executive Vice President December 23, 1998
- -------------------------- and Chief Financial Officer
Barry A. Fromberg (Principal Financial and
Accounting Officer)
</TABLE>
II-5
<PAGE> 23
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Description of Exhibits
- -------------- -----------------------
<S> <C>
4.1 Specimen of Common Stock Certificate. (Filed Exhibit 4.1 to the Company's
Registration Statement on Form S-1, Registration No. 333-1858, and incorporated
herein by reference.)
5.1 Opinion of Hughes & Luce, L.L.P.
23.1 Consent of Hughes & Luce, L.L.P. (included in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of KPMG Peat Marwick LLP
23.4 Consent of McGladrey & Pullen, LLP
23.5 Consent of PricewaterhouseCoopers L.L.P.
23.6 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included in Part II of this Registration Statement)
</TABLE>
II-6
<PAGE> 1
EXHIBIT 5.1
HUGHES & LUCE, L.L.P.
1717 Main Street, Suite 2800
Dallas, Texas 75201
December 23, 1998
Suiza Foods Corporation
2515 McKinney Avenue, Suite 1200
Dallas, Texas 75201
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Suiza Foods Corporation, a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, of 32,574 shares (the "Shares") of the
Company's common stock, $.01 par value per share (the "Common Stock"), issued
pursuant to that certain Warrant issued by the Company to Wesperada, Limited.
The Shares are being registered pursuant to a registration statement on Form S-3
to be filed with the Securities and Exchange Commission on or about December 23,
1998 (the "Registration Statement").
In rendering this opinion, we have examined and relied upon executed
originals, counterparts or copies of such documents, records and certificates
(including certificates of public officials and officers of the Company) as we
considered necessary or appropriate for enabling us to express the opinions set
forth herein. In all such examinations, we have assumed the authenticity and
completeness of all documents submitted to us as originals and the conformity to
originals and completeness of all documents submitted to us as photostatic,
conformed, notarized or certified copies.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and are validly issued, fully paid and nonassessable.
This opinion may be filed as an exhibit to the Registration Statement.
We also consent to the reference to this firm as having passed on the validity
of the Common Stock under the caption "Legal Matters" in the Prospectus. In
giving this consent, we do not admit that we are included in the category of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ HUGHES & LUCE, L.L.P.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF DELOITTE & TOUCHE LLP
We consent to the incorporation by reference in this Registration
Statement of Suiza Foods Corporation on Form S-3 of our report dated March 27,
1998, appearing in the Annual Report on Form 10-K of Suiza Foods Corporation for
the year ended December 31, 1997, and our report dated February 6, 1998
(February 20, 1998 as to Note 11) with respect to the financial statements of
Land-O-Sun Dairies, L.L.C., appearing in the Current Report on Form 8-K filed
March 9, 1998, as amended on April 7, 1998, of Suiza Foods Corporation.
/s/ DELOITTE & TOUCHE LLP
Dallas, Texas
December 21, 1998
<PAGE> 1
EXHIBIT 23.3
CONSENT OF KPMG PEAT MARWICK LLP
We consent to the incorporation by reference in the Registration
Statement on Form S-3 of Suiza Foods Corporation of our report on the
consolidated financial statements of Continental Can Company, Inc., dated March
5, 1998 appearing in the Annual Report on Form 10-K of Continental Can Company,
Inc. for the year ended December 31, 1997; and to the reference to our firm
under the heading "Experts" in this Prospectus, which is part of such
Registration Statement.
/s/ KPMG PEAT MARWICK LLP
KPMG PEAT MARWICK LLP
Melville, New York
December 22, 1998
<PAGE> 1
EXHIBIT 23.4
CONSENT OF MCGLADREY & PULLEN, LLP
We hereby consent to the incorporation by reference in this
Registration Statement of Suiza Foods Corporation on Form S-3 of our report
dated March 10, 1997, except for Note 13 as to which the date is July 1, 1997,
with respect to the financial statements of Dairy Fresh, L.P., a Delaware
limited partnership, included in the Current Report on Form 8-K filed July 14,
1997, as amended on August 22, 1997, of Suiza Foods Corporation, and to the
reference to us under the heading "Experts" in the Prospectus which is part of
such Registration Statement.
/s/ McGLADREY & PULLEN, LLP.
Winston-Salem, North Carolina
December 22, 1998
<PAGE> 1
EXHIBIT 23.5
CONSENT OF PRICEWATERHOUSECOOPERS LLP
We hereby consent to the incorporation by reference in this
Registration Statement of Suiza Foods Corporation on Form S-3 of our report
dated July 31, 1997, with respect to the combined financial statements of The
Garelick Companies, included in the Current Report on Form 8-K filed July 14,
1997, as amended on August 22, 1997, of Suiza Foods Corporation, and to the
reference to us under the heading "Experts" in this Prospectus which is part of
such Registration Statement.
/s/ PRICEWATHERHOUSECOOPERS LLP
Boston, Massachusetts
December 22, 1998
<PAGE> 1
EXHIBIT 23.6
CONSENT OF ARTHUR ANDERSEN LLP
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of Suiza Foods
Corporation on Form S-3 of our report dated November 26, 1997, included in Suiza
Foods Corporation's Form 10-K for the year ended December 31, 1997 and to all
references to our firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Dallas, Texas
December 21, 1998
