<PAGE>
As filed with the Securities and Exchange Commission on April 14, 1998.
Registration No. 333-45749
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
POST-EFFECTIVE
AMENDMENT NO. 2
TO
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)
3811 TURTLE CREEK BLVD., SUITE 1300
DALLAS, TEXAS 75219
(214) 528-0939
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
----------------
Gregg L. Engles COPIES TO:
Chairman of the Board and William A. McCormack
Chief Executive Officer Jon L. Mosle
3811 Turtle Creek Blvd. Hughes & Luce, L.L.P.
Suite 1300 1717 Main Street, Suite 2800
Dallas, Texas 75219 Dallas, Texas 75201
(214) 528-0939 (214) 939-5500
(Name, address, and telephone number,
including area code, of agent for service)
----------------
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: / /
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act of 1933,
other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: /X/
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / ________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: / /
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BE COME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
<PAGE>
SUIZA FOODS CORPORATION
1,487,500 SHARES
COMMON STOCK
------------------------
This Prospectus relates to an offering of up to 1,487,500 shares of
common stock, par value $.01 per share (the "Common Stock"), of Suiza Foods
Corporation, a Delaware corporation (the "Company" or "Suiza Foods").
The Common Stock being registered is being offered for the account of
certain selling stockholders (the "Selling Stockholders") identified below
under the caption "Selling Stockholders." The shares underlying this offering
have already been issued to the Selling Stockholders, or will have been
issued to the Selling Stockholders prior to their sale pursuant to this
Prospectus. This offering is not part of the original issuance of the shares
of Common Stock, and the Company will not receive any proceeds from the sale
of shares of Common Stock offered hereby. The shares may be offered in
transactions on the New York Stock Exchange (the "NYSE"), in negotiated
transactions, or through a combination of such methods of distribution, at
prices relating to the prevailing market prices or at negotiated prices. See
"Plan of Distribution."
The Common Stock is quoted on the NYSE under the symbol "SZA." On
April 13, 1998 the last sale price of the Common Stock, as reported on the
NYSE, was $59.06 per share.
------------------------
The Common Stock offered hereby involves a high degree of risk. See
"Risk Factors" beginning on page 5.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE
------------------------
No dealer, salesman or any other person has been authorized to give any
information or to make and representations in connection with this offering
other than those contained in this Prospectus and, if given or made, such
other information and representations must not be relied upon as having been
authorized by the Company or the Selling Stockholders. Neither the delivery
of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of the Company since the date hereof or that the information
contained herein is correct as of any time subsequent to its date. This
Prospectus does not constitute an offer to sell, or a solicitation of any
offer to buy, any securities other than the registered securities to which it
relates. This Prospectus does not constitute an offer to sell, or a
solicitation of any offer to buy, such securities in any circumstances in
which such offer or solicitation is unlawful.
------------------------
The date of this Prospectus is April 14, 1998.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational reporting requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements, information statements
and other information with the Securities and Exchange Commission (the
"Commission"). Reports, proxy statements, information statements, and other
information filed by the Company with the Commission pursuant to the
requirements of the Exchange Act may be inspected and copied at Judiciary
Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549-1004 and at
the following regional offices of the Commission: New York Regional Office,
Seven World Trade Center, Suite 1300, New York, New York 10048; and Chicago
Regional Office, Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60606. Copies of such material may be obtained from
the Public Reference Room of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Company is a publicly held
corporation and its Common Stock is traded on the NYSE under the symbol
"SZA." Reports, proxy statements, information statements and other
information can also be inspected at the offices of the NYSE, 20 Broad
Street, New York, New York 10005. The Commission maintains a Web site that
contains reports, proxy statements, information statements and other
information regarding the Company. The Commission's Web site address is
http://www.sec.gov.
The Company intends to furnish its stockholders with annual reports
containing audited financial statements and such other periodic reports as it
may determine to furnish or as may be required by law.
The Company has filed with the Commission a Registration Statement on
Form S-3, (together with all exhibits thereto, the "Registration Statement")
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the shares of Common Stock offered hereby. This Prospectus does
not contain all information set forth in the Registration Statement. Certain
parts of the Registration Statement have been omitted in accordance with the
rules and regulations of the Commission. For further information, reference
is made to the Registration Statement which can be inspected at the public
reference rooms at the offices of the Commission.
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<PAGE>
DOCUMENTS INCORPORATED BY REFERENCE
The Company will provide without charge to each person to whom a copy
of this Prospectus is delivered, including any beneficial owner, upon the
written or oral request of such person, a copy of any or all of the documents
incorporated by reference herein (other than exhibits to such documents,
unless such exhibits are specifically incorporated by reference into the
information that this Prospectus incorporates). Requests should be directed
to:
Suiza Foods Corporation
3811 Turtle Creek Blvd.
Suite 1300
Dallas, Texas 75219
Attn: Corporate Secretary
(214) 528-0939
The 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:
(i) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997 (File No. 1-12755).
(ii) The Company'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).
(iii) The Company's Current Reports on Form 8-K filed September 29,
1997, October 31, 1997, December 10, 1997, January 15, 1998, February 25,
1998, and March 10, 1998 (File No. 1-12755).
(iv) The Company's Current Report on Form 8-K filed on March 9,
1998 (as subsequently amended on April 7, 1998), which includes the audited
financial statements of Land-O-Sun Dairies, L.L.C.
(v) The Annual Report on Form 10-K of Continental Can Company,
Inc. for the fiscal year ended December 31, 1997 (File No. 1-6690).
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<PAGE>
(vi) The description of the Common Stock contained in the Company'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.
(vii) The description of the Company's Common Stock Purchase Rights
contained in the Company'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 documents filed with the Commission by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of this Prospectus and prior to the termination of the offering relating to
this Prospectus will be deemed to be incorporated by reference into this
Prospectus and to be a part hereof from the date of filing of such documents.
Any statement incorporated or deemed to be incorporated by reference herein
will be deemed to be modified, replaced, or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement
so modified or superseded will be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
4
<PAGE>
THE COMPANY
Suiza Foods is a leading manufacturer and distributor of fresh milk
and related dairy products, shelf-stable and refrigerated food and beverage
products, frozen food products, coffee and plastic containers. Each of the
Company's operating subsidiaries is a leading competitor with an established
reputation for customer service and product quality. The Company's 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. The Company's customers in
the plastic container business include regional dairy manufacturers, bottled
water processors, other beverage manufacturers and consumer and industrial
products companies.
The Company has grown primarily through acquisitions. Through these
acquisitions, the Company has realized economies of scale and operating
efficiencies by eliminating duplicative manufacturing, distribution,
purchasing and administrative operations.
The Company is a Delaware corporation with its principal offices
located at 3811 Turtle Creek Boulevard, Suite 1300, Dallas, Texas 75219
(telephone number 214-528-0939).
RISK FACTORS
ANY INVESTMENT IN THE COMMON STOCK HEREBY INVOLVES A HIGH DEGREE OF
RISK. PROSPECTIVE INVESTORS SHOULD READ THIS ENTIRE PROSPECTUS CAREFULLY AND
SHOULD CONSIDER, AMONG OTHER THINGS, THE RISKS AND THE SPECULATIVE FACTORS
INHERENT IN AND AFFECTING THE COMPANY'S BUSINESS DESCRIBED BELOW AND
THROUGHOUT THIS PROSPECTUS.
RISKS ASSOCIATED WITH ACQUISITION STRATEGY
The Company's strategy is to continue to expand its dairy, food
distribution and packaging businesses primarily through acquisitions of
strong regional operators in new markets and consolidating or add-on
acquisitions. The Company's pending acquisition of Continental Can Company,
Inc., its recently completed acquisition of Land-O-Sun Dairies, L.L.C. and
other smaller pending acquisitions exemplify the Company's acquisition
strategy. The Company may encounter increased competition for acquisitions in
the future, which could result in acquisition prices that the Company does
not consider acceptable. There can be no assurance that the Company will find
suitable acquisition candidates at acceptable prices or succeed in
integrating acquired businesses into it's existing business or in retaining
key customers of acquired businesses. There can also be no assurance that
the Company will have sufficient available capital resources to realize its
acquisition strategy. See "--Substantial Indebtedness."
Although the Company often acquires operations in new markets
requiring minimal integration, the success of the Company's acquisition
strategy is also dependent on the ability of the Company to integrate add-on
acquisitions into the Company's existing operations. In addition, the
Company's recent growth has required, and is expected to
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<PAGE>
continue to require, a significant amount of management, operational and
financial resources. There can be no assurance that the integration of these
operations and future acquired operations will not result in unforeseen
difficulties, or require the investment of capital or absorb significant
management resources at levels higher than that anticipated by management, or
that the Company will realize meaningful economies of scale or operating
efficiencies from its acquisitions. The failure of the Company to
successfully integrate acquired operations could have a material adverse
effect on the Company.
COMPETITION
The Company's dairy and food distribution businesses are subject to
significant competition from dairy operations and large national food service
distributors that operate in the Company's markets. Competition in the dairy
processing, fruit drink and food distribution businesses is based primarily
on service, price, brand recognition, quality and breadth of product line.
Certain of the Company's competitors are large, well capitalized and may have
greater financial, operational and marketing resources than the Company.
The dairy industry has excess capacity and has been in the process of
consolidation for many years. Excess capacity has resulted from the
development of more efficient manufacturing techniques, the establishment of
captive dairy manufacturing operations by large grocery retailers and
relatively little growth in the demand for fresh milk products. Any
expansion of production capacity in one of the Company's regional markets
could have an adverse effect on the Company's operations.
The plastic packaging industry is also subject to significant
competition. the Company competes with larger independent manufacturing
companies and vertically integrated food and industrial companies that
operate captive plastic packaging facilities. The primary competitive factors
in the plastic packaging manufacturing industry are price, quality and
service. Many of the Company's competitors in the plastics industry are
larger and better capitalized than the Company, and have greater resources
than the Company.
The packaged ice business is also highly competitive. The Company
faces a number of competitors in the packaged ice business, including smaller
independent ice manufacturers, convenience and grocery retailers that operate
captive commercial ice plants and retailers that manufacture and package ice
at store locations. Competition exists primarily on a regional basis, with
service, price and quality as the principal competitive factors. A
significant increase in the utilization of captive commercial ice plants or
on-site manufacturing by operators of large retail chains served by the
Company could have an adverse effect on the Company's operations.
SUBSTANTIAL INDEBTEDNESS
The Company has substantial indebtedness. Under the Company's senior
credit facility, the Company can incur substantial amounts of additional
indebtedness in the future, and additional indebtedness has been, and, if the
Company's acquisition strategy is successful, will continue to be incurred in
connection with the Company's acquisitions.
6
<PAGE>
The senior credit facility and related debt service obligations may
(i) limit the Company's ability to obtain additional financing in the future;
(ii) require the Company to dedicate a significant portion of its cash flow
to the payment of principal and interest on its indebtedness, thereby
reducing the funds available to the Company for other purposes; (iii) limit
the Company's flexibility in planning for, or reacting to, changes in its
business and market conditions; and (iv) impose additional financial and
operational restrictions on the Company, including restrictions on dividends.
The Company's ability to make scheduled payments on its
indebtedness depends on its financial and operating performance, which is
subject to prevailing economic conditions and to financial, business and
other factors, some of which are beyond the Company's control. The Company
has pledged the stock of its subsidiaries (except for 35% of the capital
stock of Garrido y Compania) to secure its indebtedness under the senior
credit facility. The failure of the Company to comply with the financial and
other restrictive covenants under the senior credit facility may result in an
event of default which, if not cured or waived, could have a material adverse
effect on the Company. The Company has entered into various interest rate
agreements to reduce its exposure to interest rate fluctuations under the
senior credit facility, which have the effect of fixing the Company's
interest rate with respect to a portion of its indebtedness under the senior
credit facility. The Company remains subject to interest rate risk, however,
with respect to a substantial portion of its indebtedness.
GOVERNMENT REGULATION; RAW MATERIAL COSTS
The price of raw milk in the United States fluctuates based on supply
and demand, with minimum support prices established monthly on a regional
basis by federal or state government agencies. In 1996, Congress passed
legislation to phase out support prices over a specified period. There can
be no assurance that a material increase in milk prices in the United States
will not occur or that any such increase would not reduce the profitability
of the Company's operations and have a material adverse effect on the
Company. 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. It is
uncertain whether these proposals will be adopted in their current or another
form or, if adopted, what the impact of any final rules would have on the
market for dairy products. There can be no assurance that any changes in the
current Federal Milk Marketing Order program would not have a material effect
on the Company.
As a manufacturer and distributor of food products, the Company is
subject to federal, state and local laws and regulations governing the
manufacture (including composition and ingredients), labeling, packaging and
safety of food. The Federal Food and Drug Administration and various state
and local agencies are authorized to enforce these laws and regulations by
inspecting the Company's facilities and requiring remedial action where
necessary. Although the Company maintains quality control programs designed
to address these issues, an actual or perceived problem with the quality or
safety of products at any of the Company's facilities could
7
<PAGE>
lead to product withdrawals, product recalls, remediation expenses, temporary
plant closings and related negative publicity, any of which could have a
material adverse effect on the Company. The Company's operations are also
subject to other federal, Puerto Rico, state and local governmental
regulation.
DEPENDENCE ON KEY PERSONNEL
The future success of the Company's business operations is dependent
in part on the efforts and skills of certain key members of management. The
loss of any of its key members of management could have an adverse effect on
the Company. The Company has not obtained key man life insurance with
respect to any of its key members of management.
LIMITATIONS ON FAVORABLE TAX TREATMENT
Under Section 936 of the Code, a portion of the Company's income
derived from its dairy, fruit drink and plastic container manufacturing
operations in Puerto Rico qualifies for a tax credit that has the effect of
reducing or eliminating United States income taxes on income derived from
these operations. In the Revenue Reconciliation Act of 1993, the United
States Congress imposed certain limitations on the availability of the
Section 936 credit. In August 1996, Congress passed the Small Business Job
Protection Act of 1996 which contains further restrictions on the
availability of Section 936 credits and eliminates Section 936 altogether by
December 31, 2005. These limitations, combined with certain other provisions
in the Code that govern the allocation among affiliated corporations of
credits under Section 936, may limit the amount of tax credits available to
Suiza prior to the expiration of Section 936. In such event, the Company's
effective tax rate could be increased relative to historical rates, with a
corresponding adverse effect on the Company's net income.
ANTITAKEOVER PROVISIONS
The Company's Charter and the Company's Bylaws contain provisions
that may delay, defer or prevent a change in control of the Company. Among
other things, these provisions: (i) authorize the Company's Board to issue
preferred stock in series with the terms of each series to be fixed by the
Company's Board; (ii) divide the Company's Board into three classes so that
only approximately one-third of the total number of directors will be elected
each year; (iii) permit directors to be removed only for cause; and (iv)
specify advance notice requirements for stockholder proposals and director
nominations. In addition, the Company recently adopted a stockholder rights
plan, which will cause substantial dilution to a person or group that
attempts to acquire the Company in certain circumstances. Such stockholder
rights plan may also delay, defer or prevent a change of control of the
Company.
8
<PAGE>
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
This Prospectus contains or incorporates by reference
"forward-looking statements" within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act that are subject to risks
and uncertainties, including any projections of earnings, revenue or other
financial items, any statements of the plans, strategies and objectives of
management for future operations, any statements concerning proposed new
products or services, any statements regarding future economic conditions or
performance and any statement of assumptions underlying the foregoing. All
statements other than statements of historical fact included or incorporated
in this Prospectus, regarding the financial position, business strategy and
plans and objectives of management of the Company are forward-looking
statements. Although the Company believes that the expectations reflected in
such forward-looking statements, are reasonable, it cannot give any assurance
that such expectations will prove to be correct, and actual results could
differ materially from those projected or assumed in the forward-looking
statements. Important factors that could cause actual results to differ
materially from expectations ("Cautionary Statements") are disclosed under
"Risk Factors" and elsewhere in this Prospectus, including, without limitation,
in conjunction with the forward-looking statements included or incorporated
herein. All subsequent written and oral forward-looking statements
attributable to the Company or persons acting on their behalf are expressly
qualified in their entirety by the Cautionary Statements.
9
<PAGE>
SELLING STOCKHOLDERS
The table below sets forth information with respect to the beneficial
ownership of the Company's Common Stock by the Selling Stockholders
immediately prior to this offering and as adjusted to reflect the sale of
shares of Common Stock pursuant to the offering. All information with
respect to the beneficial ownership has been furnished by the Selling
Stockholders:
<TABLE>
Beneficial Ownership Beneficial Ownership
Prior to Offering After Offering (3)
---------------------------------- ----------------------
<S> <C> <C> <C> <C> <C>
Name of Beneficial Owner Number of Percent of Shares to Number of Percent of
- ------------------------ Shares (1) Class (2) be Sold Shares (3) Class
---------- --------- --------- --------- --------
C. Dean Metropoulos 850,000 2.6% 850,000 -0- -0-
Evan D. Metropoulos
Irrevocable Trust 318,750 1.0% 318,750 -0- -0-
J. Daren Metropoulos
Irrevocable Trust 318,750 1.0% 318,750 -0- -0-
</TABLE>
- -------------
(1) In each case, the indicated number of shares of Common Stock are issuable
upon exercise of stock options held by the Selling Stockholder (the
"Non-Qualified Options"). All of the Non-Qualified Options are immediately
exercisable.
(2) Computed based on Common Stock outstanding as of March 10, 1998, plus the
number of shares of Common Stock issuable upon exercise of the options
included in this table.
(3) Assumes all the shares of Common Stock that may be offered are sold.
PLAN OF DISTRIBUTION
The Common Stock being offered by the Selling Stockholders pursuant to
this Prospectus, including the common stock underlying the Non-Qualified
Options (collectively, the "Shares"), may be sold from time to time by the
Selling Stockholders, or by pledgees, donees, transferees or other successors
in interest, including, without limitation, Bear, Stearns & Co. Inc. and any
of its affiliates ("Bear Stearns"), regardless of whether such successors in
interest are successors in interest with respect to the Shares or the
Non-Qualified Options. 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. From time to time the Selling Stockholders may engage in short
sales, short sales versus the box, puts and calls and other derivatives
transactions involving securities issued by the Company, and may sell and
deliver the Shares or the Non-Qualified Options in connection therewith. Bear
Stearns may enter into derivatives transactions with the Selling Stockholders
involving the Shares or the Non-Qualified Options, engage in short sales in
connection with hedging such derivatives transactions, and cover any such
short sales by delivering the Shares. In addition, Bear Stearns may acquire
the Shares or the Non-Qualified Options from the Selling Stockholders by
purchase or as pledgee, exercise such Non-Qualified Options, and sell the
Shares in any manner described in this Prospectus.
In effecting sales, brokers or dealers engaged by the Selling
Stockholders may arrange for other brokers or dealers to participate. Brokers
or dealers will receive commissions or discounts from Selling Stockholders in
amounts to be negotiated immediately prior to the sale. The Selling
Stockholders 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 Act and a
portion of any proceeds or sales discounts, commissions or other compensation
may be deemed to be under writing compensation for purposes of the Act. 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.
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.
10
<PAGE>
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. 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.
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 reference into this Prospectus have
been audited by Coopers & Lybrand L.L.P., independent accountants, as stated
in their report which is incorporated herein by reference.
Such financial statements are incorporated herein by reference in
reliance upon the respective reports of such firms given upon their authority
as experts in accounting and auditing.
11
<PAGE>
1,487,500 SHARES
SUIZA FOODS CORPORATION
COMMON STOCK
-------------
PROSPECTUS
-------------
TABLE OF CONTENTS
Page
----
Available Information 2
Documents Incorporated by Reference 3
The Company 5
Risk Factors 5
Cautionary Statement Concerning 9
Forward-Looking Statements
Selling Stockholder 10
Plan of Distribution 10
Use of Proceeds 10
Legal Matters 10
Experts 11
April 14, 1998
<PAGE>
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table indicates the estimated expenses to be incurred in
connection with the offering described in this Registration Statement, all of
which will be paid by the Company.
Registration fee $28,578
Accounting fees and expenses 2,500
Legal fees and expenses 5,000
Blue Sky fees and expenses
(including counsel fees) 1,000
Miscellaneous expenses 2,022
-------
Total: $39,100
-------
-------
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation provides that no director of
the Company will be personally liable to the Company or any of its
stockholders for monetary damages arising from the director's breach of
fiduciary duty as a director, with certain limited exceptions.
Pursuant to the provisions of Section 145 of the Delaware General
Corporation Law, every Delaware corporation has the power to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (other than an
action by or in the right of the corporation) by reason of the fact that such
person is or was a director, officer, employee or agent of any corporation,
partnership, joint venture, trust or other enterprise, against any and all
expenses, judgments, fines and amounts paid in settlement and reasonably
incurred in connection with such action, suit or proceeding. The power to
indemnify applies only if such person acted in good faith and in a manner
such person reasonably believed to be in the best interests, or not opposed
to the best interests, of the corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his or her conduct
was unlawful.
The power to indemnify applies to actions brought by or in the right of
the corporation as well, but only to the extent of defense and settlement
expenses and not to any satisfaction of a judgment or settlement of the claim
itself, and with the further limitation that in such actions no
indemnification shall be made in the event of any adjudication of negligence
or misconduct unless the court, in its discretion, believes that in light of
all the circumstances indemnification should apply.
The Company's Certificate of Incorporation contains provisions requiring
it to indemnify its officers and directors to the fullest extent permitted by
the Delaware General Corporation Law.
II-1
<PAGE>
ITEM 16. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Index to
Exhibits on page II-6 of this Registration Statement, which Index is
incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information
in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) and 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new
II-2
<PAGE>
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and
controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer, or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Post-Effective Amendment No. 2 to Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Dallas,
State of Texas, on April 13, 1998.
SUIZA FOODS CORPORATION
By: /s/ TRACY L. NOLL
------------------------------------
Tracy L. Noll
Vice President, Secretary and Chief
Financial Officer
(Principal Financial and Accounting
Officer)
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ * Chairman of the Board, Chief April 13, 1998
- ---------------------- Executive Officer and Director
Gregg L. Engles (Principal Executive Officer)
II-4
<PAGE>
Signature Title Date
--------- ----- ----
/s/ * Director April 13, 1998
- ---------------------------
Alan J. Bernon
/s/ * Director April 13, 1998
- ---------------------------
Cletes O. Beshears
/s/ * Director April 13, 1998
- ---------------------------
Stephen L. Green
/s/ * Director April 13, 1998
- ---------------------------
Robert L. Kaminski
/s/ * Director April 13, 1998
- ---------------------------
David F. Miller, Sr.
/s/ * Director April 13, 1998
- ---------------------------
John R. Muse
Director , 1998
- --------------------------- -----------
Hector M. Nevares
/s/ * Director April 13, 1998
- ---------------------------
Delton C. Parks
/s/ * Director April 13, 1998
- ---------------------------
P. Eugene Pender
/s/ * Director April 13, 1998
- ---------------------------
Robert Piccinini
/s/ * Director April 13, 1998
- ---------------------------
Jim L. Turner
*By: /s/ TRACY L. NOLL
----------------------------------
Tracy L. Noll
Attorney-in-Fact
II-5
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibits
------- -----------------------
4.1 Specimen of Common Stock Certificate. (Filed Exhibit 4.1 to the
Company's Registration Statement on Form S-1, Registration
No. 333-1858, and incorporated herein by reference.)
**5.1 Opinion of Hughes & Luce, L.L.P.
**23.1 Consent of Hughes & Luce, L.L.P. (included in Exhibit 5.1)
*23.2 Consent of Deloitte & Touche LLP
*23.3 Consent of McGladrey & Pullen, LLP
*23.4 Consent of Coopers & Lybrand L.L.P.
*23.5 Consent of Arthur Andersen LLP
23.6 Consent of KPMG Peat Marwick LLP (Jerico, New York)
**24.1 Power of Attorney (included in Part II of this Registration
Statement)
- -------------
* Filed herewith.
** Previously filed.
II-6
<PAGE>
EXHIBIT 23.2
CONSENT OF DELOITTE & TOUCHE LLP
We consent to the incorporation by reference in this Post-Effective
Amendment No. 2 to Registration Statement of Suiza Foods Corporation on Form
S-3 (Registration No. 333-45749) of our report dated March 27, 1998 on 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, appearing in the Annual Report on Form 10-K of Suiza Foods
Corporation, and to the reference to us under the heading "Experts" in the
Prospectus which is part of the Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Dallas, Texas
April 13, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF MCGLADREY & PULLEN, LLP
We hereby consent to the incorporation by reference in this
Post-Effective Amendment No. 2 to Registration Statement of Suiza Foods
Corporation on Form S-3 (Registration No. 333-45749) 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
April 13, 1998
<PAGE>
EXHIBIT 23.4
CONSENT OF COOPERS & LYBRAND LLP
We hereby consent to the incorporation by reference in this
Post-Effective Amendment No. 2 to Registration Statement of Suiza Foods
Corporation on Form S-3 (Registration No. 333-45749) 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/ COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
April 13, 1998
<PAGE>
EXHIBIT 23.5
CONSENT OF ARTHUR ANDERSEN LLP
As independent public accountants, we hereby consent to the incorporation
by reference in this Post-Effective Amendment No. 2 to Registration Statement
of Suiza Foods Corporation on Form S-3 (Registration No. 333-45749) 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
April 13, 1998
<PAGE>
EXHIBIT 23.6
CONSENT OF KPMG PEAT MARWICK LLP
We consent to the incorporation by reference in the Post-Effective
Amendment No. 2 to Registration Statement on Form S-3 of Suiza Foods
Corporation and the related prospectus of our report dated March 5, 1998,
relating to the consolidated financial statements of Continental Can Company,
Inc. 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
Jericho, New York
April 13, 1998
