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As filed with the Securities and Exchange Commission on August 2, 2000
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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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
(Address of Principal Executive Offices)
SUIZA FOODS CORPORATION
1997 STOCK OPTION AND RESTRICTED STOCK PLAN
(Full title of the plan)
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Gregg L. Engles
Chairman of the Board and Chief Executive Officer
Suiza Foods Corporation
2515 McKinney Avenue, Suite 1200
Dallas, Texas 75201
(214) 303-3400
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) SHARE (2) PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value 2,000,000 shares $45.71875 $91,437,500 $26,974.06
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</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,
which has been calculated pursuant to Rule 457(h) based on the average of
the high and low prices for the common stock on July 28, 2000, as
reported on the New York Stock Exchange, Inc.
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EXPLANATORY NOTE
We have amended our 1997 Stock Option and Restricted Stock Plan (the
"Plan") to add 2,000,000 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 2,000,000 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:
(1) Our Annual Report on Form 10-K for the fiscal year ended
December 31, 1999 which contains our audited financial
statements for our last completed fiscal year;
(2) Our Quarterly Report on Form-10Q for the quarter ended March
31, 2000;
(3) Our Current Reports on Form 8-K dated January 11, 2000 and
March 20, 2000, as amended;
(4) All other reports that we have filed pursuant to Section 13(a)
or 15(d) of the Exchange Act after December 31, 1999; and
(5) The description of our Common Stock contained in our
Registration Statement on Form 8-A, as filed with the
Commission on February 19, 1997, including any amendments or
reports 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 securities
offered have been sold or which deregisters all securities 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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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 our 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 us to
indemnify our officers and directors to the fullest extent permitted by the
Delaware General Corporation Law.
We carry insurance policies in standard form indemnifying our
directors and officers against liabilities arising from certain acts performed
by them in their respective capacities as such. The policies also provide for
reimbursement of our company for any sums it may be required or permitted to pay
pursuant to applicable law to its directors and officers by way of
indemnification against liabilities incurred by them in their capacities as
such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
5.1* Opinion of Lisa N. Tyson, Esq.
10.1* Second Amended and Restated Suiza Foods Corporation 1997
Stock Option and Restricted Stock Plan
23.1 Consent of Lisa N. Tyson, Esq. (Contained in Exhibit 5.1)
23.2* Consent of Deloitte & Touche, L.L.P.
23.3* Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (set forth on the signature pages of this
Registration Statement)
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* Filed herewith
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ITEM 9. UNDERTAKINGS.
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 of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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 this Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that the undertakings set forth in paragraphs (1)(i) and
(1)(ii) above do not apply if the information required to be included in a
post-effective amendment by these paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
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.
We hereby further undertake 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) or Section 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 this 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
our company pursuant to the foregoing provisions, or otherwise, we have been
advised that in the opinion of the Securities and Exchange 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 us of
expenses incurred or paid by a director, officer or controlling person of our
company 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 our counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by us is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
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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 July 31, 2000.
SUIZA FOODS CORPORATION
(Registrant)
By: /s/ GREGG L. ENGLES
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Gregg L. Engles, Chairman of the Board and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears in this Registration Statement in any capacity hereby constitutes and
appoints Barry A. Fromberg and Michelle P. Goolsby and each of them (with full
power in each of them to act alone), his true and lawful attorney-in-fact and
agent, with full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and to file the same
with the Securities and Exchange Commission, with all exhibits thereto, and
other documents in connection therewith, granting unto said attorneys-in-fact
and agents, full power and authority to do and perform each and every act and
thing requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on July 31, 2000.
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Name Title
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<S> <C>
/s/ GREGG L. ENGLES Chairman of the Board and Chief Executive Officer
------------------------------------------------------- (Principal Executive Officer)
Gregg L. Engles
/s/ BARRY A. FROMBERG Executive Vice President and Chief Financial Officer
------------------------------------------------------- (Principal Financial and Accounting Officer)
Barry A. Fromberg
/s/ PETE SCHENKEL Director, Vice Chairman
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Pete Schenkel
/s/ HECTOR M. NEVARES Director, Vice Chairman
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Hector M. Nevares
/s/ ALAN J. BERNON Director
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Alan J. Bernon
</TABLE>
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<TABLE>
<S> <C>
/s/ STEPHEN L. GREEN Director
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Stephen L. Green
/s/ JOSEPH S. HARDIN, JR. Director
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Joseph S. Hardin, Jr.
/s/ JOHN R. MUSE Director
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John R. Muse
/s/ P. EUGENE PENDER Director
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P. Eugene Pender
/s/ JIM L. TURNER Director
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Jim L. Turner
</TABLE>
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INDEX TO EXHIBITS
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Exhibit
Number Exhibit
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<S> <C>
5.1* Opinion of Lisa N. Tyson, Esq.
10.1* Second Amended and Restated Suiza Foods Corporation 1997
Stock Option and Restricted Stock Plan
23.1 Consent of Lisa N. Tyson, Esq. (Contained in Exhibit 5.1)
23.2* Consent of Deloitte & Touche, L.L.P.
23.3* Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (set forth on the signature pages of this
Registration Statement)
</TABLE>
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* Filed herewith
