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As filed with the Securities and Exchange Commission on June 14, 1999.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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.)
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)
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SUIZA FOODS CORPORATION 1997 STOCK OPTION
AND RESTRICTED STOCK PLAN
(Full title of the Plan)
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GREGG L. ENGLES COPY TO: LISA N. TYSON
CHAIRMAN OF THE BOARD AND SUIZA FOODS CORPORATION
CHIEF EXECUTIVE OFFICER 2515 MCKINNEY AVENUE,
SUIZA FOODS CORPORATION SUITE 1200
2515 MCKINNEY AVENUE, SUITE 1200 DALLAS, TEXAS 75201
DALLAS, TEXAS 75201 (214) 303-3400
(214) 303-3400
(Name, address, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------- ---------------------- ---------------------- ---------------------- ---------------------
TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE(2)
- -------------------------- ---------------------- ---------------------- ---------------------- ---------------------
<S> <C> <C> <C> <C>
Common Stock, 1,500,000 $ 34.625 $ 51,937,500 $ 14,439
$.01 par value
- -------------------------- ---------------------- ---------------------- ---------------------- ---------------------
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
registration statement also covers an undetermined additional amount of
shares of common stock to be offered or sold pursuant to the antidilution
provisions of the Suiza Foods Corporation 1997 Stock Option and Restricted
Stock Plan.
(2) 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 June 7, 1999, in
accordance with Rule 457(h) promulgated under the Securities Act of 1933, as
amended.
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EXPLANATORY NOTE
We have amended our 1997 Stock Option and Restricted Stock Plan (the
"Plan") to add 1,500,000 shares of our common stock to the number of shares
available for issuance upon the exercise of options granted or grants of common
stock made pursuant to the Plan. This Registration Statement on Form S-8 is
filed in order to register such additional 1,500,000 shares of common stock.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents that we have previously filed with the
Securities and Exchange Commission are incorporated by reference in this
Registration Statement:
(a) Our Annual Report on Form 10-K for the fiscal year ended December
31, 1998, which contains our audited financial statements for our last
completed fiscal year (the "1998 Form 10-K").
(b) Our Quarterly Report on Form 10-Q for the quarter ended March 31,
1999.
(c) Our Current Reports on Form 8-K filed February 12, 1999 and May 5,
1999.
(d) All other reports that we file pursuant to Sections 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since
the end of the fiscal year covered by the 1998 Form 10-K.
(e) The description of our common stock contained in our Registration
Statement on Form 8-A, dated February 19, 1997 (File Number 001-12755),
including any amendment or report filed for the purpose of updating such
description.
All documents that we subsequently file 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").
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.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
No applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our Certificate of Incorporation provides that no director of our
company will be personally liable to us 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.
Our certificate of Incorporation contains provisions requiring it to
indemnify its officers and directors to the fullest extent permitted by the
Delaware General Corporation Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS
5.1* Opinion of Lisa N. Tyson, Esq.
23.1* Consent of Lisa N. Tyson, Esq. (contained in Exhibit 5.1)
23.2* Consent of Deloitte & Touche, LLP
23.3* Consent of Arthur Andersen LLP
23.4 Consent of KPMG Peat Marwick LLP
24.1* Power of Attorney (contained on signature page)
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* Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) We hereby undertake:
(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 us pursuant to 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.
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(b) We hereby undertake that for purposes of determining any liability
under the Securities Act, each filing of our 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 us 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,
we have 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 us against such
liabilities (other than the payment by us of expenses incurred or paid by a
director, officer or controlling person 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, we will, unless in the
opinion of 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 a expressed in the Securities Act and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, we certify that we
have reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and we have duly caused this registration statement or
amendment thereto to be signed on our behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on this 9th day of June,
1999.
SUIZA FOODS CORPORATION
By: /s/ LISA N. TYSON
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Lisa N. Tyson
Vice President and
Assistant General Counsel
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POWER OF ATTORNEY
We, the undersigned officers and directors of Suiza Foods Corporation,
hereby severally constitute and appoint Michelle P. Goolsby and Lisa N. Tyson,
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, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ GREGG L. ENGLES
- ------------------------------ Chairman of the Board, Chief June 14, 1999
Gregg L. Engles Executive Officer and Director
(Principal Executive Officer)
/s/ HECTOR M. NEVARES
- ------------------------------ Director June 14, 1999
Hector M. Nevares
/s/ STEPHEN L. GREEN
- ------------------------------ Director June 14, 1999
Stephen L. Green
/s/ P. EUGENE PENDER
- ------------------------------ Director June 14, 1998
P. Eugene Pender
/s/ JOSEPH S. HARDIN, JR.
- ------------------------------ Director June 14, 1999
Joseph S. Hardin, Jr.
/s/ ALAN J. BERNON
- ------------------------------ Director June 14, 1999
Alan J. Bernon
/s/ JOHN R. MUSE
- ------------------------------ Director June 14, 1999
John R. Muse
/s/ JIM L. TURNER
- ------------------------------ Director June 14, 1999
Jim L. Turner
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
<S> <C>
5.1* Opinion of Lisa N. Tyson, Esq.
23.1* Consent of Lisa N. Tyson, Esq. (contained in Exhibit 5.1)
23.2* Consent of Deloitte & Touche, LLP
23.3* Consent of Arthur Andersen LLP
23.4 Consent of KPMG Peat Marwick LLP
24.1* Power of Attorney (contained on signature page)
</TABLE>
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* Filed herewith.
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EXHIBITS 5.1 AND 23.1
June 9, 1999
Suiza Foods Corporation
2515 McKinney Avenue
Suite 1200
Dallas, Texas 75201
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
I render this opinion 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 an additional 1,500,000 shares (the
"Shares") of the Company's common stock, $.01 par value per share (the "Common
Stock"), issuable upon the exercise of options granted or grants of Common Stock
made pursuant to the Suiza Foods Corporation 1997 Stock Option and Restricted
Stock Plan (the "Plan"). 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 9, 1999 (the "Registration Statement").
In connection with this opinion, I have examined such documents and records
of the Company and such statutes, regulations, and other instruments and
certificates as I have deemed necessary or advisable for the purposes of this
opinion. I have assumed that all signatures on all documents presented to me are
genuine, that all documents submitted to me as originals are accurate and
complete, and that all documents submitted to me as copies are true and correct
copies of the originals thereof. I have also relied upon such certificates of
public officials, 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, I am of the opinion that the Shares will be, if and
when issued and paid for in accordance with the Plan, 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 actually received by the Company for the
Shares exceeds the par value thereof.
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I consent to the use of this opinion as an exhibit to the Registration
Statement. In giving this consent, I do not admit that I am included in the
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/ LISA N. TYSON
Lisa N. Tyson
Vice President and
Assistant General Counsel
Suiza Foods Corporation
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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-8 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, 1998.
/s/ DELOITTE & TOUCHE, LLP
Dallas, Texas
June 9, 1999
S-8
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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-8
of our report dated November 26, 1997 included in Suiza Foods Corporation's Form
10-K for the year ended December 31, 1998.
/s/ ARTHUR ANDERSEN LLP
Dallas, Texas
June 9, 1999
