As filed with the Securities and Exchange Commission on November 14, 2005
Registration Statement No. 333-_____
--------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SYSCO CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 74-1648137
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1390 ENCLAVE PARKWAY
HOUSTON, TEXAS 77077-2099
(Address, including zip code, of registrant's principal executive offices)
2005 SYSCO CORPORATION MANAGEMENT INCENTIVE PLAN
2005 SYSCO CORPORATION NON-EMPLOYEE DIRECTORS STOCK PLAN
(Full Title of Plans)
MICHAEL C. NICHOLS
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
1390 ENCLAVE PARKWAY
HOUSTON, TEXAS 77077-2099
(281) 584-1390
(Name and address, including zip code, and telephone number,
including area code,
of agent for service)
COPY TO:
B. JOSEPH ALLEY, JR., ESQ.
ARNALL GOLDEN GREGORY LLP
171 17TH STREET, NW
SUITE 2100
ATLANTA, GEORGIA 30363
CALCULATION OF REGISTRATION FEE
------------------------------------------------------------------------------------------------------------------------
Title of each class of Proposed maximum Proposed maximum
registration Amount to be offering price per aggregate Amount of
securities to be registered registered(1) share(2) offering price(2) fee
------------------------------------------------------------------------------------------------------------------------
Common Stock, $1.00 par value 2,800,000 $30.16 $84,448,000 $9940.00
Common Stock, $1.00 par value 550,000 $30.16 $16,588,000 $1952.00
---------- ---------- --------
Total 3,350,000 $101,036,000 $11,892.00
------------------------------------------------------------------------------------------------------------------------
(1) Includes an indeterminate number of additional shares that may be issued to
adjust the number of shares issued pursuant to the employee benefit plans
described herein as the result of any future stock split, stock dividend or
similar adjustment of SYSCO's outstanding common stock.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rules 457(c) and (h) based on the average of the high and low sales
prices of the Company's Common Stock on November 7, 2005, as reported by
the New York Stock Exchange.
PART II
Item 3. Incorporation of Documents by Reference.
-----------------------------------------------
The following documents filed with the Securities and Exchange Commission
are incorporated by reference herein:
(a) The description of SYSCO's common stock set forth in SYSCO's Form 8-A
Registration Statement (File No. 001-06544), and any amendment or
report filed for the purpose of updating such description, including
the description contained in SYSCO's Current Report on Form 8-K filed
on October 26, 2000;
(b) SYSCO's Annual Report on Form 10-K for the fiscal year ended July 2,
2005;
(c) SYSCO's Quarterly Report on Form 10-Q for the quarter ended October 1,
2005;
(d) SYSCO's Current Report on Form 8-K filed with the Securities and
Exchange Commission on August 15, 2005;
(e) SYSCO's Current Report on Form 8-K filed with the Securities and
Exchange Commission on September 1, 2005;
(f) SYSCO's Current Report on Form 8-K filed with the Securities and
Exchange Commission on September 14, 2005;
(g) SYSCO's Current Report on Form 8-K filed with the Securities and
Exchange Commission on September 20, 2005;
(h) SYSCO's Current Report on Form 8-K filed with the Securities and
Exchange Commission on September 20, 2005; and
(i) SYSCO's Current Report on Form 8-K filed with the Securities and
Exchange Commission on November 10, 2005.
All documents filed by SYSCO pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
after the filing of this Registration Statement on Form S-8 (and prior to a
filing of any post-effective amendment to this Registration Statement which
indicates that all securities offered hereby have been sold or which
de-registers all securities remaining unsold), shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of the filing of such reports and documents.
Item 4. Description of Securities.
Not applicable.
II-1
Item 5. Interests of Named Experts and Counsel.
Certain legal matters in connection with the common stock covered by this
registration statement are being passed upon by Arnall Golden Gregory LLP,
Atlanta, Georgia. As of November 14, 2005, attorneys with Arnall Golden Gregory
LLP who participated in the preparation of this registration statement
beneficially owned an aggregate of approximately 105,000 shares of SYSCO.
Jonathan Golden, the sole stockholder of Jonathan Golden P.C. (a partner of
Arnall Golden Gregory LLP), is a director of SYSCO.
Item 6. Indemnification of Directors and Officers.
Charter and Bylaws. SYSCO's Certificate of Incorporation and Bylaws provide
for indemnification of SYSCO's directors and officers against all expense,
liability and loss reasonably incurred in connection with any proceeding arising
by reason of the fact that such person is or was a director or officer of the
Registrant, to the fullest extent permitted by Delaware General Corporation Law
(except that, generally, indemnification is not available for proceedings
brought by the director or officer). This indemnification extends also to
directors or officers who serve as agents for any entity at SYSCO's request,
including, for example, persons who serve as agents for SYSCO's employee benefit
plans. In addition, SYSCO's Certificate of Incorporation includes a provision
eliminating, to the fullest extent permitted by Delaware law, the personal
liability of directors for monetary damages for breaches of fiduciary duty.
SYSCO may also advance expenses incurred by a director or officer in defending a
proceeding before the final disposition of the proceeding so long as the officer
or director undertakes to repay the advanced amounts in the event it is
ultimately determined that he or she is not entitled to be indemnified. SYSCO
may only advance expenses incurred by a director or officer in his or her
capacity as a director or officer and not in any other capacity such as service
to an employee benefit plan.
Delaware Law. Delaware General Corporation Law currently requires SYSCO to
indemnify a director or officer for all expenses incurred by him or her
(including attorney's fees) when he or she is successful (on the merits or
otherwise) in defense of any proceeding brought by reason of the fact that he or
she is or was a director or officer of SYSCO. In addition, with respect to all
proceedings other than proceedings by or in the right of the corporation,
Delaware law allows SYSCO to indemnify a director or officer against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement,
even if the director or officer is not successful on the merits, if he or she:
o acted in good faith;
o acted in a manner he or she reasonably believed to be in or not
opposed to the best interests of the corporation; and
o in the case of a criminal proceeding, had no reasonable cause to
believe his or her conduct was unlawful.
SYSCO may indemnify directors and officers with respect to proceedings brought
by or in the right of the corporation to the same extent as with respect to
other proceedings, except that if the director or officer is held liable to
SYSCO in the proceeding, then SYSCO may not indemnify the director or officer
II-2
unless a court determines that even though he or she was held liable to SYSCO,
the officer or director is nonetheless fairly and reasonably entitled to
indemnification.
Except for indemnification mandated by law or ordered by a court, SYSCO may
not indemnify an Agent without a formal determination that the required criteria
have been met. In the case of officers and directors, the determination must be
made by a majority of the disinterested directors (or a committee appointed by
them), independent legal counsel in a written opinion, or the stockholders.
SYSCO may advance expenses incurred by a current officer or director in
defending a proceeding before the final disposition of the proceeding, if the
officer or director undertakes to repay the advanced amounts in the event it is
ultimately determined that he or she is not entitled to be indemnified. SYSCO
may advance expenses to other Agents upon whatever terms and conditions it deems
appropriate.
Plan Provisions and Other Contractual Arrangements. Certain of SYSCO's
employee benefit plans provide indemnification of directors and other agents
against certain claims arising from administration of such plans. In addition,
SYSCO's Executive Severance Agreements entitle executive officers to require an
indemnification agreement from SYSCO before taking any action otherwise required
by the officer's Severance Agreement for the purpose of minimizing adverse tax
consequences resulting from potential "parachute" payments under the Internal
Revenue Code.
D&O Insurance. SYSCO maintains liability insurance for its directors and
officers covering, subject to certain exceptions, any actual or alleged
negligent act, error, omission, misstatement, misleading statement, neglect or
breach of duty by such directors or officers, individually or collectively, in
the discharge of their duties in their capacity as directors and officers of the
Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
----------- -----------
4(a) Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3(a) to
SYSCO's Annual Report on Form 10-K for the fiscal
year ended June 28, 1997).
4(b) Certificate of Amendment of Certificate of
Incorporation dated November 9, 1999, increasing
authorized shares (incorporated by reference to
Exhibit 3(d) to SYSCO's Quarterly Report on Form
10-Q for the quarter ended January 1, 2000).
II-3
4(c) Certificate of Amendment to Restated Certificate
of Incorporation dated December 9, 2003,
increasing authorized shares (incorporated by
reference to Exhibit 3(e) to SYSCO's Quarterly
Report on Form 10-Q for the quarter ended December
27, 2003).
4(d) Form of Amended Certificate of Designation,
Preferences and Rights of Series A Junior
Participating Preferred Stock (incorporated by
reference to Exhibit 3(c) to SYSCO's Annual Report
on Form 10-K for the fiscal year ended June 29,
1996).
4(e) Amended and Restated Bylaws of SYSCO Corporation
dated February 8, 2002 (incorporated by reference
to Exhibit 3(b) to SYSCO's Quarterly Report on
Form 10-Q for the quarter ended December 29,
2001).
4(f) Amended and Restated Shareholder Rights Agreement
dated May 20, 1996 (incorporated by reference to
Exhibit (1) to SYSCO's Registration Statement on
Form 8-A/A filed on May 29, 1996).
4(g) Amendment to Amended and Restated Shareholders
Rights Agreement dated June 30, 1999 (incorporated
by reference to Exhibit (1) to SYSCO's
Registration Statement of Form 8-A/A filed on July
16, 1999).
5* Opinion of counsel as to legality of securities
being registered.
15* Letter from Ernst & Young LLP re: Unaudited
Financial Statements
23.1* Consent of Arnall Golden Gregory LLP (included in
opinion filed as Exhibit 5)
II-4
23.2* Consent of Ernst & Young LLP
24* Power of Attorney (included on signature page).
99.1 2005 Management Incentive Plan (incorporated by
reference to Annex B in the SYSCO's Definitive
Proxy Statement on Schedule 14A filed with the
Securities and Exchange Commission on September
30, 2005)
99.2 2005 Non-Employee Directors Stock Plan
(incorporated by reference to Annex C in the
SYSCO's Definitive Proxy Statement on Schedule 14A
filed with the Securities and Exchange Commission
on September 30, 2005) * filed herewith.
____________________
* filed herewith.
II-5
Item 9. Undertakings.
The undersigned registrant hereby undertakes as follows:
(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 ("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 (1)(i) and (1)(ii) shall not apply
if the information required to be included in a post-effective
amendment by those 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 ("Exchange Act") that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the 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.
(4) That, for purposes of determining any liability under the Act, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act 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.
(5) Insofar as indemnification for liabilities arising under the Act 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 Act and is, therefore, unenforceable. In the event
II-6
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 Act and will be governed by the final adjudication of
such issue.
II-7
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 Houston, State of Texas, on November 14, 2005.
SYSCO CORPORATION
By: /s/ Richard J. Schnieders
-------------------------------------
Richard J. Schnieders
Chairman of the Board, Chief Executive
Officer, and President
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 date indicated. Each person whose signature appears below
hereby constitutes and appoints Michael C. Nichols and John K. Stubblefield,
Jr., or any one of them, as such person's true and lawful attorney-in-fact and
agent with full power of substitution for such person and in such person's name,
place and stead, in any and all capacities, to sign and to file with the
Securities and Exchange Commission, any and all amendments and post-effective
amendments to this Registration Statement, with exhibits thereto and other
documents in connection therewith, granting unto said attorney-in-fact and agent
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or any
substitute therefor, may lawfully do or cause to be done by virtue thereof.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Richard J. Schnieders Chairman of the Board, Chief Executive Officer, and Nov. 14, 2005
------------------------------------ President (principal executive officer)
Richard J. Schnieders
/s/ John K. Stubblefield, Jr. Executive Vice President, Finance and Chief Nov. 14, 2005
------------------------------------ Financial Officer (principal financial officer), and
John K. Stubblefield, Jr. Director
/s/ G. Mitchell Elmer Vice President, Controller, and Chief Accounting Nov. 14, 2005
------------------------------------ Officer (principal accounting officer)
G. Mitchell Elmer
II-8
/s/ Colin G. Campbell
------------------------------------ Director Nov. 14, 2005
Colin G. Campbell
/s/ John M. Cassaday
------------------------------------ Director Nov. 14, 2005
John M. Cassaday
/s/ Judith B. Craven
------------------------------------ Director Nov. 14, 2005
Judith B. Craven
/s/ Jonathan Golden
------------------------------------ Director Nov. 14, 2005
Jonathan Golden
/s/ Joseph A. Hafner, Jr.
------------------------------------ Director Nov. 14, 2005
Joseph A. Hafner, Jr.
/s/ Richard G. Merrill
------------------------------------ Director Nov. 14, 2005
Richard G. Merrill
/s/ Phyllis S. Sewell
------------------------------------ Director Nov. 14, 2005
Phyllis S. Sewell
/s/ Richard G. Tilghman
------------------------------------ Director Nov. 14, 2005
Richard G. Tilghman
/s/ Jackie M. Ward
------------------------------------ Director Nov. 14, 2005
Jackie M. Ward
II-9
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
4(a) Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3(a) to
SYSCO's Annual Report on Form 10-K for the fiscal
year ended June 28, 1997).
4(b) Certificate of Amendment of Certificate of
Incorporation dated November 9, 1999, increasing
authorized shares (incorporated by reference to
Exhibit 3(d) to SYSCO's Quarterly Report on Form
10-Q for the quarter ended January 1, 2000).
4(c) Certificate of Amendment to Restated Certificate
of Incorporation dated December 9, 2003,
increasing authorized shares (incorporated by
reference to Exhibit 3(e) to SYSCO's Quarterly
Report on Form 10-Q for the quarter ended December
27, 2003).
4(d) Form of Amended Certificate of Designation,
Preferences and Rights of Series A Junior
Participating Preferred Stock (incorporated by
reference to Exhibit 3(c) to SYSCO's Annual Report
on Form 10-K for the fiscal year ended June 29,
1996).
4(e) Amended and Restated Bylaws of SYSCO Corporation
dated February 8, 2002 (incorporated by reference
to Exhibit 3(b) to SYSCO's Quarterly Report on
Form 10-Q for the quarter ended December 29,
2001).
4(f) Amended and Restated Shareholder Rights Agreement
dated May 20, 1996 (incorporated by reference to
Exhibit (1) to SYSCO's Registration Statement on
Form 8-A/A filed on May 29, 1996).
4(g) Amendment to Amended and Restated Shareholders
Rights Agreement dated June 30, 1999 (incorporated
by reference to Exhibit (1) to SYSCO's
Registration Statement of Form 8-A/A filed on July
16, 1999).
5* Opinion of counsel as to legality of securities
being registered.
15* Letter from Ernst & Young LLP re: Unaudited
Financial Statements
23.1* Consent of Arnall Golden Gregory LLP (included in
opinion filed as Exhibit 5)
23.2* Consent of Ernst & Young LLP
24* Power of Attorney (included on signature page).
99.1 2005 Management Incentive Plan (incorporated by
reference to Annex B in the SYSCO's Definitive
Proxy Statement on Schedule 14A filed with the
Securities and Exchange Commission on September
30, 2005)
99.2 2005 Non-Employee Directors Stock Plan
(incorporated by reference to Annex C in the
SYSCO's Definitive Proxy Statement on Schedule 14A
filed with the Securities and Exchange Commission
on September 30, 2005) * filed herewith.
____________________
* filed herewith.