<PAGE> 1
As filed with the Securities and Exchange Commission on June 3, 1998.
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
SUIZA FOODS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 75-2559681
-------------------------------- ----------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
3811 TURTLE CREEK BLVD., SUITE 1300
DALLAS, TEXAS 75219
(214) 528-0939
(Address, including Zip Code, and Telephone Number, including Area
Code, of Registrant's Principal Executive Offices)
-----------------------
CONTINENTAL CAN COMPANY, INC. 1988 RESTRICTED STOCK OPTION PLAN(1)
CONTINENTAL CAN COMPANY, INC. 1988 DIRECTOR OPTION PLAN(1)
CONTINENTAL CAN COMPANY, INC. 1990 STOCK OPTION PLAN FOR NON-EMPLOYEE
DIRECTORS(1)
CONTINENTAL CAN COMPANY, INC. 1992 RESTRICTED STOCK PLAN FOR NON-EMPLOYEE
DIRECTORS(1)
CONTINENTAL CAN COMPANY, INC. 1995 RESTRICTED STOCK PLAN(1)
CONTINENTAL CAN COMPANY, INC. STOCK OPTION AGREEMENTS(1)
(Full Title of Plan)
-----------------------
GREGG L. ENGLES COPY TO:
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER WILLIAM A. MCCORMACK
SUIZA FOODS CORPORATION JON L. MOSLE
3811 TURTLE CREEK BLVD., SUITE 1300 HUGHES & LUCE, L.L.P.
DALLAS, TEXAS 75219 1717 MAIN STREET, SUITE 2800
(214) 528-0939 DALLAS, TEXAS 75201
(Name, Address, and Telephone Number,
including Area Code, of Agent for Service)
-----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================================
TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(2) PER SHARE(3) OFFERING PRICE(3) FEE
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock,
$.01 par value 276,095 $ 57.54 $ 15,886,506.3 $ 4,686.52
============================================================================================================================
</TABLE>
(1) Originally sponsored by Continental Can Company, Inc. and assumed by
the registrant pursuant to the merger between a wholly-owned
subsidiary of the registrant and Continental Can Company, Inc.
(2) In addition, pursuant to Rule 416(a) under the Securities Act of 1933,
this registration also covers additional shares of Common Stock as may
become issuable pursuant to the antidilution provisions of the employee
benefit plan(s) described herein and pursuant to Rule 416(c) under the
Securities Act of 1933, this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plan(s) and agreements described herein.
(3) Estimated solely for the purpose of calculating the registration fee on
the basis of the average of the high and low price paid per share of
Common Stock, as reported on the New York Stock Exchange on May 28,
1998, in accordance with Rule 457(h) promulgated under the Securities
Act of 1933, as amended.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents (File No. 001-12755) heretofore filed with the
Securities and Exchange Commission (the "Commission") by Suiza Foods
Corporation (the "Registrant") are incorporated by reference in this
Registration Statement:
(a) Annual Report on Form 10-K for the fiscal year ended December
31, 1997.
(b) Quarterly Report on Form 10-Q for the quarter ended March 31,
1998.
(c) 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.
(d) Current Reports on Form 8-K filed January 15, 1998, February
25, 1998 and March 10, 1998.
(e) Current Report on Form 8-K filed March 9, 1998 (as
subsequently amended on April 17, 1998), which includes the audited financial
statements of Land-O-Sun Dairies, L.C.C.
(f) Annual Report on Form 10-K for the fiscal year ended December
31, 1997 of Continental Can Company, Inc. (File No. 1-6690).
(g) The description of the Registrant's common stock, par value
$.01 per share (the "Common Stock"), contained in the Registrant's Registration
Statement on Form 8-A, dated February 19, 1997, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to this Registration Statement which indicates that
all of the shares of Common Stock offered have been sold or which deregisters
all of such shares then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents (such documents, and the documents enumerated
above, "Incorporated Documents").
<PAGE> 3
Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation provides that no director
of the Registrant will be personally liable to the Registrant or any of its
stockholders for monetary damages arising from the director's breach of
fiduciary duty as a director, with certain limited exceptions.
Pursuant to the provisions of Section 145 of the Delaware General
Corporation Law, every Delaware corporation has the power to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (other than an
action by or in the right of the corporation) by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation or
is or was serving in such a capacity at the request of the corporation for
another corporation, partnership, joint venture, trust or other enterprise,
against any and all expenses, judgments, fines and amounts paid in settlement
and reasonably incurred in connection with such action, suit or proceeding.
The power to indemnify applies only if such person acted in good faith and in a
manner such person reasonably believed to be in the best interests, or not
opposed to the best interests, of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
The power to indemnify applies to actions brought by or in the right of
the corporation as well, but only to the extent of defense and settlement
expenses and not to any satisfaction of a judgment or settlement of the claim
itself, and with the further limitation that in such actions no indemnification
shall be made in the event of any adjudication of negligence or misconduct
unless the court, in its discretion, believes that in light of all the
circumstances indemnification should apply.
The Registrant's Certificate of Incorporation contains provisions
requiring it to indemnify its officers and directors to the fullest extent
permitted by the Delaware General Corporation Law.
<PAGE> 4
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<S> <C>
5.1 Opinion of Hughes & Luce, L.L.P.
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of KPMG Peat Marwick, LLP
23.4 Consent of McGladrey & Pullen, LLP
23.5 Consent of Coopers & Lybrand L.L.P.
23.6 Consent of Hughes & Luce, L.L.P. (contained in Exhibit 5.1)
24.1 Power of Attorney (contained in signature page)
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Registrant pursuant to
<PAGE> 5
Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The Registrant hereby undertakes that for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification by the Registrant for liabilities
arising under the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described in
Item 6, or otherwise, the Registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification by the Registrant against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dallas, State of Texas, on this 2nd day of
June, 1998.
SUIZA FOODS CORPORATION
By: /s/ TRACY L. NOLL
--------------------------------------------
Tracy L. Noll
Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
<PAGE> 7
POWER OF ATTORNEY
We, the undersigned officers and directors of Suiza Foods Corporation,
hereby severally constitute and appoint Gregg L. Engles and Tracy L. Noll, and
each of them singly, our true and lawful attorneys with full power to them, and
each of them singly, to sign for us and in our names in the capacities
indicated below, the Registration Statement on Form S-8 filed herewith, any
other Registration Statement related to the same offering, and any and all
amendments (including post-effective amendments) to the Registration Statement,
and generally to do all things in our name and behalf in the capacities
indicated below to enable Suiza Foods Corporation to comply with the provisions
of the Securities Act of 1933, as amended, and all requirements to the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Gregg L. Engles Chairman of the Board, Chief June 2, 1998
- ------------------------------- Executive Officer and Director
Gregg L. Engles (Principal Executive Officer)
/s/ Cletes O. Beshears Vice Chairman of the Board June 2, 1998
- ------------------------------- and Director
Cletes O. Beshears
/s/ Hector M. Nevares Vice Chairman of the Board June 2, 1998
- ------------------------------- and Director
Hector M. Nevares
/s/ Stephen L. Green Director June 2, 1998
- -------------------------------
Stephen L. Green
/s/ Robert L. Kaminski Director June 2, 1998
- -------------------------------
Robert L. Kaminski
/s/ David F. Miller Director June 2, 1998
- -------------------------------
David F. Miller
/s/ P. Eugene Pender Director June 2, 1998
- -------------------------------
P. Eugene Pender
/s/ Joseph S. Hardin, Jr. Director June 2, 1998
- -------------------------------
Joseph S. Hardin, Jr.
/s/ Alan J. Bernon Director June 2, 1998
- -------------------------------
Alan J. Bernon
/s/ Delton C. Parks Director June 2, 1998
- -------------------------------
Delton C. Parks
/s/ John R. Muse Director June 2, 1998
- -------------------------------
John R. Muse
/s/ Jim L. Turner Director June 2, 1998
- -------------------------------
Jim L. Turner
</TABLE>
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
<S> <C>
5.1 Opinion of Hughes & Luce, L.L.P.
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of KPMG Peat Marwick, LLP
23.4 Consent of McGladrey & Pullen, LLP
23.5 Consent of Coopers & Lybrand L.L.P.
23.6 Consent of Hughes & Luce, L.L.P. (contained in Exhibit 5.1)
24.1 Power of Attorney (contained in signature page)
</TABLE>
<PAGE> 1
EXHIBIT 5.1
[Hughes & Luce, LLP Letterhead]
June 3, 1998
Suiza Foods Corporation
3811 Turtle Creek Blvd.
Suite 1300
Dallas, Texas 75219
Ladies and Gentlemen:
Re: Registration Statement on Form S-8 for various stock option
plans and agreements
Ladies and Gentlemen:
We render this opinion as special counsel to Suiza Foods Corporation,
a Delaware corporation (the "Company"), in connection with the registration
under the Securities Act of 1933, as amended, of 276,095 shares (the
"Shares") of the Company's common stock, $.01 par value per share, issuable
under various plans (the "Plans"). The Shares are being registered pursuant to
a registration statement on Form S-8 to be filed with the Securities and
Exchange Commission on or about June 3, 1998 (the "Registration Statement").
In connection with this opinion, we have examined such documents and
records of the Company and such statutes, regulations and other instruments and
certificates as we have deemed necessary or advisable for the purposes of this
opinion. We have assumed that all signatures on all documents presented to us
are genuine, that all documents submitted to us as originals are accurate and
complete and that all documents submitted to us as copies are true and correct
copies of the originals thereof. We have also relied upon such certificates of
corporate agents and officers of the Company and such other certifications with
respect to the accuracy of material factual matters contained therein which
were not independently established.
Based on the foregoing, we are of the opinion that the Shares will be,
if and when issued and paid for pursuant to the Plans, validly issued, fully
paid and nonassessable, assuming the Company maintains an adequate number of
authorized but unissued shares of common stock available for such issuance, and
further assuming that the consideration received by the Company for the Shares
exceeds the par value thereof.
<PAGE> 2
Suiza Foods Corporation
June 3, 1998
Page Two
We consent to the use of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we are
included in this category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ HUGHES & LUCE, L.L.P.
Hughes & Luce, L.L.P.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF DELOITTE & TOUCHE LLP
We consent to the incorporation by reference in this Registration
Statement of Suiza Foods Corporation on Form S-8 of our report dated March 27,
1998, appearing in the Annual Report on Form 10-K of Suiza Foods Corporation
for the year ended December 31, 1997.
DELOITTE & TOUCHE, LLP
Dallas, Texas
June 3, 1998
<PAGE> 1
EXHIBIT 23.2
CONSENT OF ARTHUR ANDERSEN LLP
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of Suiza Foods
Corporation on Form S-8 of our report dated November 26, 1997, included in
Suiza Foods Corporation's Form 10-K for the year ended December 31, 1997 and to
all references to our firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Dallas, Texas
June 3, 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-8 of Suiza Foods Corporation of our report on the
consolidated financial statements of Continental Can Company, Inc., dated March
5, 1998, appearing in the Annual Report on Form 10-K of Continental Can
Company, Inc. for the year ended December 31, 1997.
KPMG PEAT MARWICK LLP
Jericho, New York
June 3, 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-8 of our report
dated March 10, 1997, except for Note 13 as to which the date is July 1, 1997,
with respect to the financial statements of Dairy Fresh, L.P., a Delaware
limited partnership, included in the Current Report on Form 8-K filed July 14,
1997, as amended on August 22, 1997, of Suiza Foods Corporation.
MCGLADREY & PULLEN, LLP
Winston-Salem, North Carolina
June 3, 1998
<PAGE> 1
EXHIBIT 23.5
CONSENT OF COOPERS & LYBRAND L.L.P.
We hereby consent to the incorporation by reference in this
Registration Statement of Suiza Foods Corporation on Form S-8 of our report
dated July 31, 1997, with respect to the combined financial statements of The
Garelick Companies, included in the Current Report on Form 8-K filed July 14,
1997, as amended on August 22, 1997, of Suiza Foods Corporation.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
June 1, 1998
