-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TNWVsqko7jScvzZkehE0v1ANmULg3NXEoMy0GbX/N+Tl8iaT4hZeosBGDKnxi4vj 84KKDmtdif1w293PyaKcKg== 0000950134-99-005488.txt : 19990615 0000950134-99-005488.hdr.sgml : 19990615 ACCESSION NUMBER: 0000950134-99-005488 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990614 EFFECTIVENESS DATE: 19990614 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SUIZA FOODS CORP CENTRAL INDEX KEY: 0000931336 STANDARD INDUSTRIAL CLASSIFICATION: ICE CREAM & FROZEN DESSERTS [2024] IRS NUMBER: 752559681 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-80641 FILM NUMBER: 99646123 BUSINESS ADDRESS: STREET 1: 2515 MCKINNEY AVENUE LB 30 STREET 2: SUITE 1200 CITY: DALLAS STATE: TX ZIP: 75201 BUSINESS PHONE: 2145289922 MAIL ADDRESS: STREET 1: 3811 TURTLE CREEK BLVD STREET 2: SUITE 1300 CITY: DALLAS STATE: TX ZIP: 75219 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on June 14, 1999. Registration No. 333- ----- - -------------------------------------------------------------------------------- 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) ----------------------- SUIZA FOODS CORPORATION 1997 STOCK OPTION AND RESTRICTED STOCK PLAN (Full title of the Plan) ----------------------- 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) ----------------------- CALCULATION OF REGISTRATION FEE
- -------------------------- ---------------------- ---------------------- ---------------------- --------------------- 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) - -------------------------- ---------------------- ---------------------- ---------------------- --------------------- Common Stock, 1,500,000 $ 34.625 $ 51,937,500 $ 14,439 $.01 par value - -------------------------- ---------------------- ---------------------- ---------------------- ---------------------
(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. 2 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. Page 2 3 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. Page 3 4 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) - ------------------------- * 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. Page 4 5 (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. Page 5 6 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 ------------------------------- Lisa N. Tyson Vice President and Assistant General Counsel Page 6 7 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:
Signature Title Date --------- ----- ---- /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
Page 7 8 INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION 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)
- ----------------------- * Filed herewith. EX-5.1 2 OPINION/CONSENT OF LISA N. TYSON, ESQ. 1 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. 2 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 EX-23.2 3 CONSENT OF DELOITTE & TOUCHE, LLP 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-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 EX-23.3 4 CONSENT OF ARTHUR ANDERSEN LLP 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-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 -----END PRIVACY-ENHANCED MESSAGE-----