<PAGE> 1
As filed with the Securities and Exchange Commission on May 5, 1999.
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
incorporation or organization) Identification No.)
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
Chairman of the Board and Chief Executive Officer
2515 McKinney Avenue, Suite 1200
Dallas, Texas 75201
(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>
=======================================================================================================================
TITLE OF SHARES AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED TO BE AGGREGATE PRICE AGGREGATE REGISTRATION
REGISTERED PER UNIT(1) OFFERING PRICE(1) FEE
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 77,233 $34-5/8(2) $2,674,192.60(2) $743.43
=======================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Calculated pursuant to Rule 457(c) of the Securities Act of 1933, as
amended, based upon the high and low price per share of Suiza Foods
Corporation on April 28, 1999, as reported by the New York Stock Exchange.
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.
THE INFORMATION IN THIS PRELIMINARY PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. THESE SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PRELIMINARY
PROSPECTUS IS NOT AN OFFER TO SELL NOR DOES IT SEEK AN OFFER TO BUY THESE
SECURITIES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE> 2
SUBJECT TO COMPLETION, DATED MAY 5, 1999.
SUIZA FOODS CORPORATION
77,233 SHARES
COMMON STOCK
We issued 77,233 shares of our common stock to Thompson Beverage
Systems, L.P. on March 4, 1999 pursuant to an exemption from the registration
requirements of the Securities Act of 1933. This Prospectus relates to the
offering and sale of those shares by Thompson Beverage Systems, L.P. Thompson
Beverage Systems, L.P. is offering all of the shares to be sold in this
offering and will receive all of the proceeds from this offering. This offering
is not part of our original issuance of the shares.
Thompson Beverage Systems, L.P. may offer the shares
o in transactions on the New York Stock Exchange,
o in negotiated transactions, or
o through a combination of these methods.
Our common stock is quoted on the NYSE under the symbol "SZA." On May
3, 1999, the last reported sale price of our common stock, as reported on the
NYSE, was $36 per share. If Thompson Beverage Systems, L.P. offers the shares in
negotiated transaction(s), the offering prices may or may not relate to the
prevailing market price of our common stock on the NYSE.
------------------------------------
INVESTING IN OUR 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 2.
------------------------------------
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. Thompson
Beverage Systems, L.P. 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 shares.
This prospectus is dated May 5, 1999.
<PAGE> 3
THE COMPANY
o We are a leading manufacturer and distributor of dairy products and a
leading manufacturer of rigid plastic packaging in the United States.
o Our net sales during the year ended December 31, 1998 were approximately
$3.3 billion, of which approximately $2.8 billion (or approximately 85%)
was contributed by our dairy operations and approximately $500 million (or
approximately 15%) was contributed by our packaging operations.
o We have grown primarily through an aggressive acquisition and integration
strategy that we intend to continue. We entered the dairy business in
December 1993 when we acquired Suiza Dairy Corporation, a regional dairy
processor located in Puerto Rico. Since our acquisition of Suiza Dairy, we
have grown our dairy business primarily through an aggressive acquisition
strategy. Since our acquisition of Suiza Dairy in 1993, we have completed
31 dairy acquisitions, including 13 during 1998 and 3 during 1999 to date.
We entered the packaging business in August 1997 when we acquired Franklin
Plastics, Inc. as part of our acquisition of a related dairy business. We
have grown our packaging business through the acquisition of Continental
Can Company, Inc. in May 1998 and seven other smaller acquisitions during
1998.
o On April 29, 1999, we announced that we have agreed to sell a majority
interest in our U.S. plastic packaging operations to Consolidated Container
Company LLC, a newly formed company to be controlled by affiliates of
Vestar Capital Partners III, L.P., a private equity firm. Consolidated
Container will be formed by combining our U.S. packaging operations
(Franklin Plastics, Inc. and Plastic Containers, Inc.) with the operations
of Vestar's Reid Plastics Holdings, Inc. Consolidated Container will assume
approximately $135 million of existing Suiza debt, and will repay to us our
intercompany debt and preferred stock investment of approximately $367
million at closing. We will own approximately a 43% interest in the new
venture. We expect the transaction to close on or about July 1, 1999.
Our principal executive office is located at 2515 McKinney Avenue, Suite
1200, Dallas, TX 75201. Our telephone number is (214) 303-3400. We maintain a
worldwide web site at www.suizafoods.com. We are a Delaware corporation. In this
prospectus, "we," "us," "our" and "Suiza" refer to Suiza Foods Corporation and
its subsidiaries, unless the context otherwise requires.
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RISK FACTORS
Before investing in the shares offered by Thompson Beverage Systems, L.P.,
you should carefully consider the following risk factors and warnings, in
addition to all of the other information we have provided to you in this
prospectus. Also, you should be aware that the risks described below are not the
only ones facing us. Additional risks that we do not yet know of may also have
an adverse effect on us. If any of those risks or any of the risks described
below actually occur, our business, financial condition, results of operations
or prospects could be adversely affected. In that case, the price of our common
stock could decline, and you could lose all or part of your investment.
This prospectus contains or incorporates by reference certain statements
about our future that are not statements of historical fact. In some cases, you
can identify these statements by terminology such as "may", "will", "should",
"expects", "anticipates", "plans", "believes", "estimates", "intends",
"predicts", "potential" or "continue" or the negative of such terms and other
comparable terminology. These statements are only predictions, and in evaluating
those statements, you should specifically consider the risks outlined below.
Actual performance or results may differ materially and adversely.
WE MAY HAVE DIFFICULTIES EXECUTING OUR ACQUISITION STRATEGY, WHICH COULD AFFECT
OUR GROWTH AND FINANCIAL CONDITION.
We intend to expand our business primarily through acquisitions. Our ability
to expand through acquisitions is subject to various risks, including
o limitations on our financing sources,
o rising acquisition prices,
o increased antitrust constraints on our proposed acquisitions and
acquisition strategy, and
o fewer suitable acquisition candidates.
If we are not able to expand our business through acquisitions at the rate
we have planned, our stock price may be adversely affected.
IF WE FAIL TO EFFECTIVELY MANAGE OUR GROWTH, OUR BUSINESS COULD BE ADVERSELY
AFFECTED.
We have expanded our operations rapidly in recent years and intend to
continue this expansion. This rapid growth places a significant demand on our
management and our financial and operational resources. Our growth strategy is
subject to various risks, including
o inability on our part to successfully integrate or operate acquired
businesses,
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o inability to retain key customers of acquired businesses, and
o inability to realize or delays in realizing expected benefits from our
increased size.
The integration of businesses we have acquired or may acquire in the future may
also require us to invest more capital than we expected or require more time and
effort by management than we expected. If we fail to effectively manage the size
and growth of our business, our operations and financial results will be
affected, both materially and adversely.
OUR FAILURE TO SUCCESSFULLY COMPETE COULD ADVERSELY AFFECT OUR PROSPECTS AND
FINANCIAL RESULTS.
Our dairy and packaging businesses are subject to intense competition. We
have many competitors in each of our major product, service and geographic
markets, and some of these competitors are larger, more established and better
capitalized. If we fail to successfully compete against our competitors, our
business will be adversely affected.
Our dairy business is subject to significant competition from dairy
operations and large national food service distributors that operate in our
markets. Competition in the dairy business is based primarily on
o service,
o price,
o brand recognition,
o quality, and
o breadth of product line.
The dairy industry has excess production capacity and has been
consolidating for many years. This excess production capacity is the result of
o improved manufacturing techniques,
o the establishment of captive dairy operations by large grocery
retailers, and
o limited growth in the demand for fresh milk products.
We could be adversely affected by any expansion of capacity by our existing
competitors or by new entrants in our markets.
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We compete in the packaging business on the basis of a number of factors,
including price, quality and service. Our principal competitors in this business
are larger independent manufacturing companies and vertically integrated food
and industrial companies that operate captive packaging manufacturing
facilities.
OUR SUBSTANTIAL DEBT AND OTHER FINANCIAL OBLIGATIONS EXPOSE US TO RISKS THAT
COULD ADVERSELY AFFECT OUR FINANCIAL CONDITION.
As of December 31, 1998, we had substantial debt and other financial
obligations, including
o $933.0 million of borrowings (including $719.5 million under our senior
credit facility, $46.2 million under our subsidiary lines of credit and
$167.3 million of subsidiary debt obligations), and
o $682.9 million of 5.0% preferred securities and 5.5% preferred
securities.
Those amounts compare to our stockholders' equity of $655.8 million as of
December 31, 1998.
Our senior credit facility provides us with a line of credit of up to $1
billion to be used for general corporate and working capital purposes. As of
December 31, 1998, we would have been able to borrow an additional $246.2
million under our senior credit facility. We have pledged the stock of some of
our subsidiaries to secure this facility and the assets of other subsidiaries to
secure other indebtedness. Our senior credit facility and related debt service
obligations
o limit our ability to obtain additional financing in the future without
obtaining prior consent,
o require us to dedicate a significant portion of our cash flow to the
payment of principal and interest on our debt, which reduces the funds
we have available for other purposes,
o limit our flexibility in planning for, or reacting to, changes in our
business and market conditions, and
o impose on us additional financial and operational restrictions.
Our ability to make scheduled payments on our debt and other financial
obligations 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 this facility. Upon default, our
lenders could accelerate the indebtedness under this facility, foreclose against
their collateral or seek other remedies.
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INCREASES IN OUR RAW MATERIAL COSTS COULD ADVERSELY AFFECT OUR PROFITABILITY.
The most important raw materials that we use in our operations are raw milk,
cream (including butterfat) and high density polyethylene resin. The prices of
these materials increase and decrease depending on supply and demand and, in
some cases, governmental regulation. In many cases, we are not able to pass on
the increased price of raw materials to our customers due primarily to timing
problems. Therefore, volatility in the cost of our raw materials can adversely
affect our profitability and financial performance.
CHANGES IN REGULATIONS COULD ADVERSELY AFFECT MANY ASPECTS OF OUR BUSINESS.
Under the Federal Milk Marketing Order program, the federal government and
several state agencies establish minimum regional prices paid to producers for
raw milk. In 1996, the U.S. Congress passed legislation to phase out the Federal
Milk Marketing Order program. This program is currently scheduled to be phased
out by October 1999. The U.S. Department of Agriculture has also recently
proposed changes to this program, including changes in pricing classifications
for certain dairy products. We do not know whether the Department of Agriculture
will adopt its proposed changes in their current or another form, and we do not
know what effect any final changes or the termination of this federal program
will have on the market for dairy products. In addition, various states have
adopted or are considering adopting compacts among milk producers, which would
establish minimum prices paid by milk processors, including us, to raw milk
producers. We do not know whether new compacts will be adopted or the extent to
which these compacts would affect the prices we pay for milk.
As a manufacturer and distributor of food products, we are subject to
federal, state and local laws and regulations relating to
o food quality,
o manufacturing standards,
o labeling, and
o packaging.
Our operations are subject to other federal, foreign, state and local
governmental regulation, including laws and regulations relating to occupational
health and safety, labor, discrimination and other matters. Material changes in
these laws and regulations could have positive or adverse effects on our
business.
OUR BUSINESS INVOLVES RISKS OF PRODUCT LIABILITY CLAIMS WHICH COULD RESULT IN
SIGNIFICANT COSTS.
We sell food products for human consumption, which involves risks such as
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o product contamination or spoilage,
o product tampering, and
o other adulteration of food products.
Consumption of an adulterated, contaminated or spoiled product may result in
personal illness or injury. We could be subject to claims or lawsuits relating
to an actual or alleged illness or injury, and we could incur liabilities that
are not insured or that exceed our insurance coverages.
An actual or alleged problem with the quality or safety of products at any
of our facilities could result in
o product withdrawals,
o product recalls,
o negative publicity,
o temporary plant closings, and
o substantial costs of compliance.
Any of these events could have a material and adverse effect on our financial
condition.
LOSS OF KEY PERSONNEL COULD ADVERSELY AFFECT OUR BUSINESS.
Our success depends to a large extent on the skills, experience and
performance of our executive management. The loss of one or more of these
persons could hurt our business. We do not maintain key man life insurance on
any of our executive officers or directors.
FAILURE TO COMPLETE THE SALE OF OUR PACKAGING BUSINESS COULD AFFECT OUR
LIQUIDITY AND OUR STOCK PRICE.
On April 29, 1999, we announced that we have agreed to sell a majority
interest in our U.S. plastic packaging operations to Consolidated Container
Company LLC, a newly formed company to be controlled by affiliates of Vestar
Capital Partners III, L.P., a private equity firm. Consolidated Container will
be formed by combining our U.S. packaging operations (Franklin Plastics, Inc.
and Plastic Containers, Inc.) with the operations of Vestar's Reid Plastics
Holdings, Inc. Consolidated Container will assume approximately $135 million of
existing Suiza debt, and will repay to us our intercompany debt and preferred
stock investment of approximately $367 million at closing. We will own
approximately a 43% interest in the new venture. We expect the transaction to
close on or about July 1, 1999. Completion of the proposed transaction is
subject to a number of conditions, including obtaining third party consents to
the transaction and the consummation of financing of Consolidated Container.
There can be no assurance that the
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proposed transaction will close by July 1, 1999 or ever. If the transaction is
not completed, we may not have sufficient capital to pursue our present
acquisition strategy without raising additional funds through the sale of equity
or incurring more expensive indebtedness, either of which could have a material
adverse effect on the market price of our common stock.
YEAR 2000 PROBLEMS FOR US OR OUR SUPPLIERS OR CUSTOMERS COULD INCREASE OUR
LIABILITIES OR EXPENSES AND IMPACT OUR PROFITABILITY.
We are in the process of addressing our Year 2000 computer issues. If we do
not complete the necessary systems modifications on a timely basis or if
important service providers, suppliers or customers are unable to resolve their
Year 2000 issues in a timely manner, our operations could be adversely affected
and we could experience increased liabilities and expenses as a result.
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,
prevent or make more difficult a merger, tender offer, proxy contest or change
of control. Our stockholders might view any such transaction as being in their
best interests since the transaction could result in a higher stock price than
the current market price for our common stock. Among other things, our
certificate of incorporation and bylaws
o 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,
o divide our board of directors into three classes so that only
approximately one-third of the total number of directors is elected each
year,
o permit directors to be removed only for cause, and
o specify advance notice requirements for stockholder proposals and
director nominations.
In addition, with some exceptions, the Delaware General Corporation Law
restricts mergers and other business combinations between us and any stockholder
that acquires 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 do not extend, however, to
persons participating in takeover attempts without the consent of our board of
directors. Accordingly, this plan could delay, defer, make more difficult or
prevent a change of control.
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ENVIRONMENTAL REGULATIONS COULD RESULT IN CHARGES OR INCREASE OUR COSTS OF DOING
BUSINESS.
We, like others in similar businesses, are subject to a variety of federal,
foreign, state and local environmental laws and regulations including, but not
limited to, those regulating waste water and stormwater, air emissions, storage
tanks and hazardous materials. We believe that we are in material compliance
with these laws and regulations. Future developments, including increasingly
stringent regulations, could require us to make currently unforeseen
environmental expenditures.
AVAILABILITY OF SIGNIFICANT AMOUNTS OF COMMON STOCK FOR SALE COULD ADVERSELY
AFFECT OUR STOCK PRICE.
The availability of shares for sale under this prospectus or the future sale
of a substantial number of shares of common stock in the public market, or the
perception that these sales could occur, could adversely affect the prevailing
market price.
Approximately 33,711,318 shares of common stock were outstanding as of March
25, 1999. All of the shares of common stock that Thompson Beverage Systems, L.P.
is offering in this prospectus will be eligible for immediate resale in the
public market without restriction under Federal securities laws, except for any
shares that are acquired by an affiliate of ours.
In addition to the shares outstanding upon completion of this offering,
there are additional shares of common stock that may be available for resale in
the public market, including
o 3,419,102 shares of common stock that our employees and directors had
the current right to purchase pursuant to stock options that we had
issued as of March 31, 1999,
o 1,855,551 additional shares of common stock that our employees and
directors had the future right to purchase pursuant to stock options
that we had issued as of March 31, 1999, and
o 9,096,104 shares of common stock that were issuable as of March 31,
1999, upon conversion of the 5.0% preferred securities and 5.5%
preferred securities.
We expect to continue to issue options to reward performance and encourage
retention. The exercise of any additional options we issue could adversely
affect the prevailing market price of the common stock. We believe that
substantially all of these shares of common stock will be freely tradable under
the federal securities laws, subject to limitations. These limitations include
vesting provisions in option and restricted stock agreements and volume and
manner of sale restrictions under Rule 144 of the Securities Act of 1933. The
future sale of a substantial number of shares of common stock in the public
market following this offering, or the perception that these sales could occur,
could adversely affect the prevailing market price of our common stock.
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INCORPORATION OF DOCUMENTS BY REFERENCE
We furnish our stockholders with annual reports containing audited
financial statements and other appropriate reports. We also file annual,
quarterly and current reports, proxy statements and other information with the
Securities and Exchange Commission. Instead of repeating in this prospectus
information that we have already filed with the Securities and Exchange
Commission, we refer you to the documents listed below that we have previously
filed with the Securities and Exchange Commission. Those documents are
considered to be part of this prospectus. Any documents that we file with the
Securities and Exchange Commission in the future will also be considered to be a
part of this prospectus and will automatically update and supersede the
information in this prospectus.
o Our Annual Report on Form 10-K for the year ended December 31, 1998.
o Our Definitive Proxy Statement on Schedule 14A filed April 13, 1999.
o Our Report on Form 8-K filed February 12, 1999.
o Our Report on Form 8-K filed May 5, 1999.
o The description of our common stock contained in our Registration
Statement on Form 8-A filed on February 19, 1997, including any amendments
or reports filed for the purpose of updating such description.
o Our Report on Form 8-K filed March 9, 1998 (as amended on April 7, 1998),
which includes the audited financial statements of Land-O-Sun Dairies,
L.L.C.
o Continental Can Company, Inc.'s Annual Report on Form 10-K for the year
ended December 31, 1997.
o Continental Can Company, Inc.'s Quarterly Report on Form 10-Q for the
quarter ended March 31, 1998.
o The description of common stock purchase rights contained in our
Registration Statement on Form 8-A filed on March 10, 1998, including any
amendments or reports filed for the purpose of updating such description.
To obtain a copy of any document that we have incorporated by reference into
this prospectus, please write or call us at
Suiza Foods Corporation
2515 McKinney Avenue, Suite 1200
Dallas, Texas 75201
Fax No. 214/303-3499; Telephone No. 214/303-3400
Attention: Investor Relations.
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We have filed a registration statement with the Securities and Exchange
Commission to register the securities that Thompson Beverage Systems, L.P. is
offering you. This prospectus is a part of that registration statement. As
allowed by the Securities and Exchange Commission's rules, we have not included
in this prospectus all of the information that is included in the registration
statement. You may obtain a copy of the registration statement, or a copy of any
other filing we have made with the Securities and Exchange Commission, directly
from the Securities and Exchange Commission. You may either
o read and copy any reports, statements or other information we have filed
with the Securities and Exchange Commission at the Securities and Exchange
Commission's public reference room at 450 Fifth Street, N.W., Washington,
D.C., or
o obtain copies of documents that we have filed with the Securities and
Exchange Commission on the Securities and Exchange Commission's internet
web site at http://www.sec.gov.
You can get more information about the Securities and Exchange Commission's
public reference room by calling the Securities and Exchange Commission at
1-800-SEC-0330.
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SELLING STOCKHOLDER
The table below sets forth information about the beneficial ownership
of the common stock offered by this prospectus by Thompson Beverage Systems,
L.P. immediately prior to this offering and as adjusted to reflect the sale of
shares of common stock in the offering. Thompson Beverage Systems, L.P. does not
own in excess of one percent (1%) of our outstanding common stock. All
information about the beneficial ownership has been furnished by Thompson
Beverage Systems, L.P.
<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>
Thompson Beverage Systems, L.P. 77,233 * 77,233 -0- -0-
</TABLE>
- --------------------------------
* Less than 1%
(1) Computed based on common stock outstanding as of May 3, 1999.
(2) Assumes all the shares of common stock that may be offered are sold.
PLAN OF DISTRIBUTION
The sale of the shares offered in this prospectus may be effected from
time to time directly or by one or more broker-dealers or agents in one or more
transactions on the NYSE, in negotiated transactions, or through a combination
of such methods of distribution, at prices related to prevailing market prices
or at negotiated prices.
In the event one or more broker-dealers or agents agree to sell the
shares, they may do so by purchasing the shares as principals or by selling the
shares as agent for Thompson Beverage Systems, L.P.. Any such broker-dealers may
receive compensation in the form of discounts, concessions, or commissions from
Thompson Beverage Systems, L.P. or the purchasers of the shares for which such
broker-dealer may act as agent or to whom they sell as principal, or both (which
compensation as to a particular broker-dealer may be in excess of customary
compensation).
Under applicable rules and regulations under the Securities Exchange
Act of 1934, any person engaged in a distribution of the shares may not
simultaneously engage in market-making activities with respect to our common
stock for the applicable period under Regulation M of the Exchange Act prior to
the commencement of such distribution. In addition and without limiting the
foregoing, Thompson Beverage Systems, L.P. will be subject to applicable
provisions of the Securities Exchange Act of 1934 and the rules and regulations
thereunder, including, without limitation, Regulation M, which provisions may
limit the timing of purchases and sales of the shares by Thompson Beverage
Systems, L.P.. All of the foregoing may affect the marketability of the shares.
In order to comply with certain states' securities laws, if applicable,
our common stock will be sold in such jurisdictions only through registered or
licensed brokers or dealers. In certain states, our
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common stock may not be sold unless it has been registered or qualified for sale
in such state or an exemption from registration or qualification is available
and is complied with.
No dealer, salesperson or other person is authorized to give any
information or to represent anything not contained in this prospectus. You must
not rely on any unauthorized information or representations. This prospectus is
an offer to sell only the shares offered hereby, but only under the
circumstances and in jurisdictions where it is lawful to do so. The information
contained in this prospectus is current only as of its date.
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USE OF PROCEEDS
We will not receive any proceeds from this offering.
LEGAL MATTERS
The validity of the common stock offered by this prospectus will be
passed upon for us 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 our common stock.
EXPERTS
Our consolidated financial statements as of December 31, 1998, 1997 and
1996 and for each of the three years in the period ended December 31, 1998 have
been incorporated in this prospectus by reference from our Annual Report on Form
10-K for the year ended December 31, 1998. Those 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 ours, have been
audited by Deloitte & Touche LLP, independent auditors, as stated in their
report which is incorporated in this prospectus 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, which are
consolidated with ours 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 in this prospectus 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 LLP, independent auditors, as stated in their report which is
incorporated in this prospectus by reference.
The above financial statements are incorporated in this prospectus by
reference in reliance upon the respective reports of such firms given upon their
authority as experts in accounting and auditing.
13
<PAGE> 16
TABLE OF CONTENTS
Page
----
The Company 1
Risk Factors 2
Incorporation of Documents by Reference 9
Selling Stockholder 11
Plan of Distribution 11
Use of Proceeds 13
Legal Matters 13
Experts 13
77,233 SHARES
SUIZA FOODS CORPORATION
COMMON STOCK
------------
PROSPECTUS
------------
May 5, 1999
<PAGE> 17
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 us.
<TABLE>
<S> <C>
Registration fee $ 743.43
Accounting fees and expenses 7,500
Legal fees and expenses 5,000
Miscellaneous expenses 2,000
-----------
Total: $ 15,243.43
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our certificate of incorporation provides that none of our directors
will be personally liable to us or any of our stockholders for monetary damages
arising from the director's breach of fiduciary duty as a director, with certain
limited exceptions.
Under 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 the 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.
Our Certificate of Incorporation contains provisions requiring us to
indemnify our officers and directors to the fullest extent permitted by the
Delaware General Corporation Law.
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 in this registration statement by reference.
II-1
<PAGE> 18
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 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.
II-2
<PAGE> 19
(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> 20
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 May 5, 1999.
SUIZA FOODS CORPORATION
By: /s/ GREGG L. ENGLES
--------------------------------
Gregg L. Engles
Chairman of the Board,
Chief Executive Officer and
Director
II-4
<PAGE> 21
POWER OF ATTORNEY
We, the undersigned officers and directors of Suiza Foods Corporation,
hereby severally constitute and appoint Gregg L. Engles and Lisa N. Tyson, 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 May 5, 1999
- ---------------------------------- Executive Officer and Director
Gregg L. Engles (Principal Executive Officer)
/s/ ALAN J. BERNON Director May 5, 1999
- ----------------------------------
Alan J. Bernon
/s/ CLETES O. BESHEARS Director May 5, 1999
- ----------------------------------
Cletes O. Beshears
/s/ STEPHEN L. GREEN Director May 5, 1999
- ----------------------------------
Stephen L. Green
/s/ JOSEPH S. HARDIN, JR. Director May 5, 1999
- ----------------------------------
Joseph S. Hardin, Jr.
/s/ ROBERT L. KAMINSKI Director May 5, 1999
- ----------------------------------
Robert L. Kaminski
/s/ DAVID F. MILLER, SR. Director May 5, 1999
- ----------------------------------
David F. Miller, Sr.
</TABLE>
II-5
<PAGE> 22
<TABLE>
<S> <C> <C>
/s/ JOHN R. MUSE Director May 5, 1999
- ----------------------------------
John R. Muse
/s/ HECTOR M. NEVARES Director May 5, 1999
- ----------------------------------
Hector M. Nevares
/s/ DELTON C. PARKS Director May 5, 1999
- ----------------------------------
Delton C. Parks
/s/ P. EUGENE PENDER Director May 5, 1999
- ----------------------------------
P. Eugene Pender
/s/ JIM L. TURNER Director May 5, 1999
- ----------------------------------
Jim L. Turner
/s/ BARRY A. FROMBERG Executive Vice President May 5, 1999
- ---------------------------------- and Chief Financial Officer
Barry A. Fromberg (Principal Financial and
Accounting Officer)
</TABLE>
II-6
<PAGE> 23
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibits
-------- -----------------------
<S> <C>
4.1 Specimen of Common Stock Certificate. (Filed as Exhibit 4.1 to
our Registration statement on Form S-1, Registration No.
333-1858, and incorporated in this prospectus by reference).
5.1* Opinion of Hughes & Luce, L.L.P.
23.1* Consent of Hughes & Luce, L.L.P. (Contained in its opinion
filed as Exhibit 5.1).
23.2* Consent of Deloitte & Touche LLP
23.3* Consent of Arthur Andersen LLP
23.4* Consent of KPMG LLP
24.1* Power of Attorney. (Contained on pages II-5 and II-6 of this
Registration Statement).
</TABLE>
- ------------------------
* Filed herewith
<PAGE> 1
Exhibit 5.1
May 5, 1999
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 77,233 shares (the "Shares") of the
Company's common stock, $.01 par value per share (the "Common Stock"), issued by
the Company to Thompson Beverage Systems, L.P. 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 May 5, 1999 (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 February
11, 1999, appearing in the Annual Report on Form 10-K of Suiza Foods Corporation
for the year ended December 31, 1999 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. We also
consent to the reference to us under the heading "Experts" in the prospectus,
which is part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Dallas, Texas
April 29, 1999
<PAGE> 1
EXHIBIT 23.3
CONSENT OF ARTHUR ANDERSEN LLP
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of Suiza Foods
Corporation on Form S-3 of our report dated November 26, 1997, included in Suiza
Foods Corporation's Form 10-K for the year ended December 31, 1998 and to all
references to our firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
Dallas, Texas
April 30, 1999
<PAGE> 1
EXHIBIT 23.4
CONSENT OF KPMG LLP
We consent to incorporation by reference in the Registration Statement
on Form S-3 of Suiza Foods Corporation of our report dated March 5, 1998,
relating to the consolidated financial statements of Continental Can Company,
Inc. for the year ended December 31, 1997, which report appears in the December
31, 1997, Annual Report on Form 10-K of Continental Can Company, and to the
reference to our firm under the heading "Experts" in this Prospectus, which is
part of such Registration Statement.
/s/ KPMG LLP
Melville, New York
April 30, 1999
