<PAGE> 1
As filed with the Securities and Exchange Commission on February 11, 2000
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.)
2515 MCKINNEY AVENUE, SUITE 1200
DALLAS, TEXAS 75201
(Address of Principal Executive Offices)
SUIZA FOODS CORPORATION
EXECUTIVE DEFERRED COMPENSATION PLAN
(Full title of the plan)
---------------
<TABLE>
<S> <C>
Gregg L. Engles Copy to: Suzan E. Fenner, Esq.
Chairman of the Board and Chief Executive Officer Gardere & Wynne, L.L.P.
Suiza Foods Corporation 1601 Elm Street
2515 McKinney Avenue, Suite 1200 Suite 3000
Dallas, Texas 75201 Dallas, Texas 75201
(214) 303-3400 (214) 999-4576
</TABLE>
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Proposed maximum Proposed maximum
TITLE OF SECURITIES Amount to be offering price per aggregate offering Amount of
TO BE REGISTERED(1) registered unit(2) price registration fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Deferred Compensation Obligations $15,000,000 100% $15,000,000(2) $3,960.00
- ------------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 120,000 shares(3)(4) $43.7185(3) $ 5,246,220(3) $1,385.00
========================================================================================================================
</TABLE>
(1) The Deferred Compensation Obligations and the Common Stock registered
herein are unsecured obligations of Suiza Foods Corporation to pay
deferred compensation in the future in accordance with the terms of
the Suiza Foods Corporation Executive Deferred Compensation Plan.
(2) Calculated pursuant to Rule 457(h) under the Securities Act solely
for the purpose of calculating the registration fee, based on an
estimated amount of $15,000,000 Deferred Compensation Obligations to
be offered under the Plan.
(3) 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 on February 7, 2000, as reported
on the New York Stock Exchange, Inc. for the Common Stock to be
offered under the Plan.
(4) Pursuant to Rule 416 under the Securities Act of 1933, this
registration statement also covers an indeterminate number of shares
as may be required to cover possible adjustments under the Plan by
reason of any stock dividend, stock split, share combination,
exchange of shares, recapitalization, merger, consolidation,
separation, reorganization, liquidation or the like, of or by the
Registrant.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10 PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
*This Registration Statement on Form S-8 (the "Registration Statement")
is being filed by Suiza Foods Corporation (the "Company" or "Registrant")
with respect to the Suiza Foods Corporation Executive Deferred
Compensation Plan (the "Plan"), referred to on the cover of this
Registration Statement. Information required by Part I to be contained in
the Section 10(a) prospectus is omitted from the Registration Statement
in accordance with Rule 428 under the Securities Act of 1933, as amended
(the "Securities Act") and the Note to Part I of Form S-8. The
document(s) containing the information required in Part I of this
Registration Statement will be sent or given to each participant in the
Plan, as specified by Rule 428(b)(1) under the 1933 Act. Such document(s)
are not being filed with the Securities and Exchange Commission (the
"Commission") but constitute (together with the documents incorporated by
reference into this Registration Statement pursuant to Item 3 of Part II
hereof) a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Commission are
incorporated by reference in this Registration Statement.
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998, filed pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
(File No. 001-12755);
(2) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since December 31, 1998; and
(3) The description of the Registrant's Common Stock contained in the
Registrant's 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.
In addition, 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 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Under the Plan, the Company will provide eligible employees of the
Company and its affiliates with the opportunity to elect to defer a specified
percentage of their future cash compensation. Eligibility for participation in
the Plan will be determined by the Compensation Committee of the Board (the
"Committee") which will select participants from a select group of individuals
who are highly-compensated or who are providing services to the Company or an
affiliate in key positions of management and responsibility. The obligations of
the Company under the Plan (the "Obligations") will be unsecured general
obligations of the Company to pay the compensation deferred in accordance with
the terms of the Plan, and will rank equally with other unsecured and
unsubordinated indebtedness of the Company from time to time outstanding. The
right of the Company, hence the right of creditors of the Company
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<PAGE> 3
(including participants in the Plan) to participate in a distribution of the
assets of any of its subsidiaries upon their liquidation or reorganization or
otherwise, necessarily is subject to the prior claims of creditors of the
subsidiary, except to the extent that claims of the Company itself as a creditor
may be recognized.
Although the benefits under the Plan will be paid from the general assets
of the Company, the Company has established a "rabbi trust" known as the Suiza
Foods Corporation Executive Deferred Compensation Plan Trust, to assist with
benefit payments under certain circumstances. Amounts held under the rabbi trust
may only be used to pay Plan benefits or to satisfy the claims of the Company's
general creditors.
The amount of compensation to be deferred under the Plan by each
participant will be determined by the Committee, in accordance with the Plan,
based on elections by the participant, will be made from the participant's
annual compensation, including bonuses and commissions, and will be posted to a
bookkeeping account in the name of the participant (the "Account"). The Account
will also be credited with any matching contributions and discretionary profit
sharing contributions made by a participant's employer pursuant to the terms of
the Company's 401(k) plan which the participant is not eligible to receive under
the 401(k) plan because of deferrals under this Plan.
The participant shall designate the types of investments, including life
insurance policies, in which his or her Account will be deemed to be invested
for purposes of determining the amount of earnings to be credited to that
Account. Other than life insurance policies, the investment options that are
available are determined by the Committee from time to time. The Committee shall
credit to each participant's Account an amount equal to the interest, earnings
or losses that would have resulted to the Account if the amounts credited to the
Account were invested as elected by the participant. If the participant
designates a deemed investment in a life insurance policy, the rate of earnings
to be credited to such participant's Account shall be as set forth in a
split-dollar life insurance agreement or other agreement concerning such a
policy.
In addition to the other investments which the participant may designate
in which such participant's Account shall be deemed to be invested for the
purposes of determining the amount of earnings to be credited to that Account, a
participant who is an Executive Officer of the Company or a Chief Operating
Officer of an Affiliate may designate that all or a portion of such
participant's bonus which is deferred pursuant to the Plan shall be deemed to be
invested in shares of Common Stock of the Company ("Company Stock"). If a
participant makes such an election, the Committee shall credit to the
participant's Account the number of shares that could have been purchased on the
open market using the closing price on the date on which the bonus otherwise
would have been paid and applying a 15% discount to the purchase price. If the
participant makes such a designation with respect to a bonus, such designation
shall remain in force throughout the participant's participation in the Plan and
the participant shall not be entitled to change such designation. A participant
who makes such a designation with respect to bonuses paid in one year can make
another investment designation for bonuses paid in other years.
Each Account generally will be payable on a date selected by the
participant in accordance with the terms of the Plan. When a participant is
eligible for a distribution under the terms of the Plan, if his or her Account
balance is more than $25,000, the amount credited to the participant's Account
will be paid in cash (except for any portion of his Account invested in Company
Stock) to the participant in either a lump sum distribution or substantially
equal annual installments over five, 10 or 15 years, as elected by the
participant when he or she began participating in the Plan. If the amount
credited to a participant's Account is $25,000 or less at the time distribution
of the Account is to commence, payment will be made in a lump sum. If the
participant has selected installment payments, all remaining amounts credited to
a participant's Account shall be distributed in a lump sum, at such time as the
value of such remaining amounts is $25,000 or less. Payments made to a
participant's beneficiary due to the participant's death will be made in a lump
sum.
If a participant has designated that all or a portion of a bonus be
deferred pursuant to the Plan and deemed to be invested in Company Stock, then
the following rules shall apply to that portion of the participant's Account:
(1) If the participant becomes entitled to a distribution from
the Plan and such distribution is as a result of the participant's
termination of employment because of death, disability, or retirement on
or after age 65, then such participant be entitled to a distribution of
the portion of his Account which is deemed to be invested in Company
Stock and such distribution shall be made in shares of Company Stock.
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<PAGE> 4
(2) If a participant is entitled to a distribution for a reason
other than death, disability, or retirement on or after age 65, or if a
participant elects to take an in-service withdrawal as allowed by the
Plan, the participant shall be entitled to receive:
(a) 100% of any Company Stock that has been credited to
the participant's Account for two or more years as of the date
of the termination or request for withdrawal, as the case may be,
and
(b) 85% of the number of shares of Company Stock which
have not been credited to such participant's Account for at least
two years as of the date of termination or request for
withdrawal, as the case may be.
All distributions or withdrawals of the portion of a participant's
Account which is deemed to be invested in Company Stock shall be made
solely in shares of Company Stock, plus cash for any fractional shares.
The Obligations will be denominated and payable in United States dollars;
provided, however, that shares of Company Stock held in any Account shall be
distributed.
A participant's right or the right of any other person to the Account
cannot be assigned, alienated, sold, garnished, transferred, pledged or
encumbered.
The Company reserves the right to amend or terminate the Plan at any time,
except that no such amendment or termination shall adversely affect the right of
a participant to the balance of his or her Account as of the date of such
amendment or termination. The Obligations are not convertible into another
security of the Company.
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.
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<PAGE> 5
The Company carries insurance policies in standard form indemnifying its
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 the 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.
4.1 Suiza Foods Corporation Executive Deferred Compensation Plan
(incorporated by reference to Exhibit 10.3 to the Registrant's
Form 10-Q Report for the quarterly period ended June 30, 1999).
4.2* Amendment No. 1 to the Suiza Foods Corporation Executive
Deferred Compensation Plan.
5.1* Opinion of Gardere & Wynne, L.L.P.
23.1* Consent of Deloitte & Touche LLP
23.2 Consent of Gardere & Wynne, L.L.P. (included as part of Exhibit
5.1)
24.1* Power of Attorney (set forth on the signature pages of this
Registration Statement)
- ----------------
*Filed herewith.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, 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.
II-4
<PAGE> 6
(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.
The undersigned Registrant hereby further 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) 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
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has 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
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.
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<PAGE> 7
SIGNATURES
The Registrant. 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 February 11, 2000.
SUIZA FOODS CORPORATION
(Registrant)
By: /s/ Gregg L. Engles
------------------------------------------
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 February 11, 2000.
<TABLE>
<CAPTION>
Name Title
---- -----
<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/ Hector M. Nevares Director
- ------------------------------
Hector M. Nevares
/s/ Stephen L. Green Director
- ------------------------------
Stephen L. Green
/s/ P. Eugene Pender Director
- ------------------------------
P. Eugene Pender
/s/ Joseph S. Hardin, Jr. Director
- ------------------------------
Joseph S. Hardin, Jr.
</TABLE>
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<PAGE> 8
<TABLE>
<S> <C>
/s/ Alan J. Bernon Director
- ------------------------------
Alan J. Bernon
/s/ John R. Muse Director
- ------------------------------
John R. Muse
/s/ Jim L. Turner Director
- ------------------------------
Jim L. Turner
/s/ Pete S. Schenkel Director
- ------------------------------
Pete S. Schenkel
</TABLE>
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<PAGE> 9
The Plan. Pursuant to the requirements of the Securities Act, on behalf of
the Compensation Committee, which is responsible for the administration of the
Plan, the members of the Compensation Committee have duly caused this
Registration Statement to be signed, by the undersigned, hereto duly authorized,
in the City of Dallas, State of Texas, on February 11, 2000.
<TABLE>
<CAPTION>
Name Title
---- -----
<S> <C>
/s/ P. Eugene Pender Committee Member
- ------------------------------
P. Eugene Pender
/s/ Joseph S. Hardin, Jr. Committee Member
- ------------------------------
Joseph S. Hardin, Jr.
/s/ Stephen L. Green Committee Member
- ------------------------------
Stephen L. Green
</TABLE>
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<PAGE> 10
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Number Description
------ -----------
<S> <C>
4.1 Suiza Foods Corporation Executive Deferred Compensation Plan
(incorporated by reference to Exhibit 10.3 to the Registrant's
Form 10-Q Report for the quarterly period ended June 30, 1999).
4.2* Amendment No. 1 to the Suiza Foods Corporation Executive
Deferred Compensation Plan.
5.1* Opinion of Gardere & Wynne, L.L.P.
23.1* Consent of Deloitte & Touche LLP
23.2 Consent of Gardere & Wynne, L.L.P. (included as part of Exhibit
5.1)
24.1* Power of Attorney (set forth on the signature pages of this
Registration Statement)
</TABLE>
- ------------------
*Filed herewith.
<PAGE> 1
AMENDMENT NO. 1
TO SUIZA FOODS CORPORATION
EXECUTIVE DEFERRED COMPENSATION PLAN
EFFECTIVE JANUARY 1, 2000
This Amendment No. 1, effective January 1, 2000 unless otherwise noted
herein, is adopted by Suiza Foods Corporation (the "Company"), a corporation
formed under the laws of the State of Delaware.
WHEREAS, the Company established the Suiza Foods Corporation Executive
Deferred Compensation Plan (the "Plan") for the exclusive benefit of a select
group of management and highly compensated employees of the Company and its
Affiliates effective July 1, 1999;
WHEREAS, the Company now desires to amend the Plan to add a limited
ability to invest in Company stock;
WHEREAS, the Company desires to make certain other amendments to the
Plan to clarify that employees of employers who are not members of the same
controlled group of entities with the Company are also eligible to participate
in the Plan;
NOW, THEREFORE, the Company hereby amends the Plan as follows:
1. Section 1.2 is hereby amended effective July 1, 1999 to read as
follows:
"Affiliate" shall mean a member of a controlled group of
corporations (as defined in Section 414(b) of the Code), a group of
trades or businesses (whether or not incorporated) which are under
common control (as defined in Section 414(c) of the Code), or an
affiliated service group (as defined in Section 414(m) of the Code) of
which the Company is a member; any entity otherwise required to be
aggregated with the Company pursuant to Section 414(o) of the Code or
the regulations issued thereunder; and any other entity in which the
Company has an ownership interest and to which the Company elects to
make participation in the Plan available.
2. Article I is hereby amended by adding Section 1.18 to the end
thereof reading as follows:
1.18 "Company Stock" shall mean the common stock of the
Company.
3. Article III of the Plan is hereby amended by adding the following
Section 3.5 to the end thereof:
3.5 In addition to the other investments which the Participant
may designate in which such Participant's Account shall be deemed to be
invested for the purposes of determining the amount of earnings to be
credited to that Account, a Participant who is an Executive Officer of
the Company or a Chief Operating Officer of an Affiliate may designate
that all or a portion of such Participant's bonus be deemed to be
invested in Company Stock. If a Participant makes such an election, the
Committee shall credit to the Participant's Account the number of
shares that could have been purchased on the open market using the
closing price on the date on which the bonus otherwise would have been
paid and applying a 15% discount to the purchase price. If the
Participant makes such a designation with respect to a bonus, such
designation shall remain in force throughout the Participant's
participation in the Plan and the Participant shall not be entitled to
change such designation. A Participant who makes such a designation
with respect to bonuses paid in one year can make another investment
designation for bonuses paid in other years.
Exhibit 4.2 - Page 1
<PAGE> 2
4. Section 4.3 is hereby amended to read as follows:
4.3 Except as provided in Section 4.4, after a Participant's
termination of employment for any reason other than death or
Disability, such Participant shall be entitled to the entire value of
all amounts credited to the Account of such Participant, determined as
of the Valuation Date coincident with or preceding the date of
distribution.
5. Article IV is hereby amended by adding the following Section 4.4 to
the end thereof:
4.4 If a Participant has designated that all or a portion of a
bonus that otherwise would be paid to such Participant shall be
deferred pursuant to the Plan and deemed to be invested in Company
Stock, then the following rules shall apply to that portion of the
Participant's Account:
(1) If the Participant becomes entitled to a distribution from
the Plan and such distribution is as a result of the Participant's
termination of employment because of death, Disability, or retirement
on or after age 65, then such Participant shall be entitled to a
distribution of the portion of his Account which is deemed to be
invested in Company Stock and such distribution shall be made in shares
of Company Stock.
(2) If a Participant is entitled to a distribution for a
reason other than death, Disability, or retirement on or after age 65,
or if a Participant elects to take an in-service withdrawal as
authorized in Article VI, the Participant shall be entitled to receive:
(a) 100% of any Company Stock that has been credited
to the Participant's account for two or more years as of the
date of the termination or request for withdrawal, as the case
may be, and
(b) 85% of the number of shares of Company Stock
which have not been credited to such Participant's Account for
at least two years as of the date of termination or request
for withdrawal, as the case may be.
All distributions or withdrawals of the portion of a Participant's
Account which is deemed to be invested in Company Stock shall be made
solely in shares of Company Stock, plus cash for any fractional shares.
In the case of an in-service withdrawal, the reductions and limitations
of Article VI shall apply to the amount determined pursuant to this
Section 4.4(2).
6. The first paragraph of Section 5.1 is hereby amended to read as
follows:
5.1 In the case of a Participant who terminates employment
with the Company, the amount credited to the Participant's Account
(provided it is more than $25,000) shall be paid in cash (except as
otherwise provided in Section 4.4), to the Participant, at the time the
distribution of the Account is to commence, from among the following
optional forms of benefit as elected by the Participant on the form
provided by Company upon his or her initial participation in the Plan:
(1) a lump sum distribution;
(2) substantially equal annual installments over five (5)
years;
(3) substantially equal annual installments over ten (10)
years; or
(4) substantially equal annual installments over fifteen (15)
years.
If a portion of the Participant's Account is invested in Company Stock,
and an installment form of payment is elected, then the distribution
shall be deemed to be made on a pro rata basis out of the other
investment options in which amounts credited to a Participant's Account
are deemed to be invested first, and then, after all such other amounts
are distributed, from the portion of the Participant's Account which is
deemed to be invested in Company Stock. Notwithstanding the
Participant's distribution election, if the amount credited to a
Participant's Account is $25,000 or less, at the time distribution of
the Account is to commence, payment will be made in a lump sum, and
even if installment payments have commenced under this Section 5.1, at
such time as the value of such
Exhibit 4.2 - Page 2
<PAGE> 3
remaining amounts is $25,000 or less, all remaining amounts credited to
a Participant's Account shall be distributed in a lump sum.
7. Section 5.2 is hereby amended to read as follows:
5.2 Payment of a Participant's benefit on account of death
shall be made in a lump sum delivered in cash except as otherwise
provided in Section 4.4. Payment of a Participant's death benefit shall
be made to the Beneficiary of such Participant as soon as practicable
following the Committee's receipt of proper notice of such
Participant's death.
8. The last sentence of Section 6.1 is hereby amended to read as
follows:
All hardship withdrawals shall be paid in a lump sum delivered
in cash or in shares of Company Stock, to the extent that Section 4.4
applies.
9. The last sentence of Section 6.2 is hereby amended to read as
follows:
Any withdrawals under this Section 6.2 shall be made in a
single lump sum delivered in cash or in shares of Company Stock, to the
extent that Section 4.4 applies.
10. The first paragraph of Section 6.3 is hereby amended to read as
follows:
6.3 (UNSCHEDULED IN-SERVICE WITHDRAWALS): Notwithstanding any
other provision herein to the contrary, prior to the end of any
calendar month, a Participant who is actively employed or has started
receiving installment payments, (as provided in Section 5.1 above) may
elect to accelerate the date on which payment of his benefit hereunder
would otherwise be made, using a form provided by and filed with the
Committee. Upon such election, the amount to which such Participant is
entitled shall be any whole percentage, from ten percent (10%) to
ninety percent (90%) of the benefit otherwise payable hereunder, which
shall be distributed in one lump sum, in cash (or in shares of Company
Stock to the extent that Section 4.4 applies), as soon as
administratively practicable after the end of the calendar month in
which the early distribution election is made. Ten percent (10%) of any
amounts withdrawn from such Participant's Account shall be forfeited as
of the date of such distribution.
11. Section 6.4 is hereby amended to read as follows:
6.4 Withdrawals shall be charged pro rata to the investment
options in which the amounts credited to a Participant's Account are
deemed to be invested pursuant to Section 3.4 hereof. If a withdrawal
exceeds the amount of a Participant's Account which is deemed to be
invested pursuant to Section 3.4 hereof, then such withdrawals shall be
charged to the portion of the Participant's Account which is deemed to
be invested in Company Stock as provided in Section 3.5 hereof.
IN WITNESS WHEREOF, the Company has caused this Amendment No. 1 to be
executed this 16th day of November, 1999.
COMPANY:
SUIZA FOODS CORPORATION
By: /s/ Michelle P. Goolsby
----------------------------------------------
Michelle P. Goolsby, Executive Vice President
Exhibit 4.2 - Page 3
<PAGE> 1
[GARDERE & WYNNE, L.L.P. LETTERHEAD]
February 11, 2000
Board of Directors
Suiza Foods Corporation
2515 McKinney Avenue
Suite 1200
Dallas, TX 75201
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 (the "Securities Act"), on Form S-8 (the
"Registration Statement") of (i) $15,000,000 of the Company's deferred
compensation obligations (the "Obligations"), which are issuable under the Suiza
Foods Corporation Executive Deferred Compensation Plan, as effective July 1,
1999 (the "Plan") and (ii) 120,000 shares of common stock, $0.01 par value
("Common Stock") of the Company which may be issued or transferred from time to
time under the Plan, as amended effective January 1, 2000.
We have assisted the Company in the preparation of, and are familiar with,
the Registration Statement of the Company to be filed with the Securities and
Exchange Commission on February 11, 2000 for the registration under the
Securities Act of the Obligations and the Common Stock relative to the Plan.
With respect to the foregoing, we have examined and have relied on
originals or copies, certified or otherwise identified to our satisfaction, of
such corporate records, documents, orders, certificates and other instruments as
in our judgment are necessary or appropriate to enable us to render the opinion
expressed below.
Exhibit 5.1 - Page 1
<PAGE> 2
Board of Directors
Suiza Foods Corporation
February 11, 2000
Page 2
Based on the foregoing, we are of the opinion that the Obligations have
been duly authorized and, when issued in accordance with the terms of the Plan
and conditions set forth in the Plan, will be valid and binding obligations of
the Company. The 120,000 shares of Common Stock which from time to time may be
issued or transferred under the Plan in accordance with appropriate proceedings
of the Compensation Committee of the Board of Directors of the Company, when so
issued and sold at prices in excess of the par value of the Common Stock in
accordance with the provisions of the Plan will be duly and validly authorized
and issued by the Company and fully paid and nonassessable.
We hereby consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
GARDERE & WYNNE, L.L.P.
By: /s/ SUZAN E. TENNER
Partner
Exhibit 5.1 - Page 2
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
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.
DELOITTE & TOUCHE LLP
Dallas, Texas
February 8, 2000
