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As filed with the Securities and Exchange Commission on January 31, 1997
Registration No.
----------------------------------
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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NEW RALCORP HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Missouri 43-1766315
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
800 Market Street, Suite 2900, St. Louis, Missouri 63101
(Address of principal executive offices) (Zip Code)
</TABLE>
RALCORP HOLDINGS, INC.
INCENTIVE STOCK PLAN
and
DEFERRED COMPENSATION PLAN FOR KEY EMPLOYEES
(Full title of the plan)
--------------------------
R. W. Lockwood, Esq., Secretary
RALCORP HOLDINGS, INC.
800 Market Street
Suite 2900
St. Louis, Missouri 63101
(Name and address of agent for service)
Telephone number of agent for service: 314-877-7000
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Approximate date of proposed commencement of sales pursuant to the Plan:
January 31, 1997
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed
Amount Proposed maximum
Title of securities to be maximum offering aggregate Amount of
being registered (a) registered price per share (b) offering registration fee
<S> <C> <C> <C> <C>
New Ralcorp
Holdings, Inc. 2,900,000 $8.42 $24,418,000.00 $18,419.30
Common Stock $.01 shares
par value
Deferred Compensation $1,000,000 N/A $ 1,000,000 $ 344.80
Obligations
Total Registration $ 8,764.10
Fee
</TABLE>
Notes: (a) In addition, pursuant to Rule 416(c) under the Securities Act of
1933, the registration statement also covers an indeterminable amount of
interests to be offered or sold pursuant to the employee benefit plan described
herein. (b) The pro forma book value of such share as of December 31, 1996.
There is no current market for the shares registered hereby, therefore,
pursuant to Rule 457(h)(1), the pro forma book value of the shares was used to
calculate the registration fee. (c) Deferred compensation obligations are
unsecured obligations of New Ralcorp Holdings, Inc. to pay deferred
compensation in the future in accordance with the terms of the Variable
Interest Option of the Ralcorp Holdings, Inc. Deferred Compensation Plan for
Key Employees.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Commission (File No. 001-12619) by
New Ralcorp Holdings, Inc. (hereinafter "the Company") are incorporated herein
by reference:
(i) The Company's Registration Statement on Form 10 declared effective on
December 27, 1996
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, 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. Any statement
incorporated by reference herein 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 document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such 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
The shares of Common Stock being offered pursuant to the Ralcorp Holdings,
Inc. Incentive Stock Plan have been registered under Section 12 of the
Securities Exchange Act of 1934, as amended. The unsecured obligations of the
Company to pay deferred compensation and matching contributions in the future
will be subject to the terms of the Ralcorp Holdings, Inc. Deferred
Compensation Plan for Key Employees (the "Deferred Plan") and to written
agreements with individual employees setting forth the specific terms and
conditions of any particular deferral. In addition, with respect to deferrals
into the Equity Option of the Deferred Plan, such deferrals will also be
subject to the terms of the Ralcorp Holdings, Inc. Incentive Stock Plan. The
Deferred Plan provides an opportunity for eligible employees of the Company and
certain of its affiliated subsidiaries to enter into agreements for the
deferral of cash bonuses and other compensation (the "Deferral Amounts").
This description is intended to be a general description of the securities
provided by the Deferred Plan and in the event of any conflict between the
description herein and the provisions of the Deferred Plan (which is filed as
an exhibit to this Registration Statement), the Deferred Plan shall be
conclusive. Deferrals pursuant to the Deferred Plan are permitted at the
discretion of the Nominating and Compensation Committee of the Company's Board
of Directors (the "Committee") which may delegate its authority to approve
non-officer deferrals to the Chief Executive Officer of the Company. Requests
for deferrals, and selection of deferral accounts, must be submitted prior to
the commencement of any calendar year in which bonuses or other compensation
sought to be deferred would otherwise be paid.
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Upon deferral, an unfunded Deferred Cash account (for the Variable
Interest Option) or Stock Equivalent account (for the Equity Option), in the
employee's name, will be credited with a cash balance equal to the Deferral
Amount or an appropriate number of Company Common Stock equivalents (equal in
value to the Deferral Amount, based upon current market value of the Common
Stock), respectively. In addition, Stock Equivalent accounts may also, in any
year authorized by the Committee, be credited with an additional matching
deferral. An employee will not be entitled to the matching deferral until he
or she has remained employed with the Company for a period of five years
following the deferral, provided that the employee does not thereafter leave
employment with the Company (other than because of normal retirement) without
the consent of the Chief Executive Officer. The matching deferral is also
subject to forfeiture if, during the two year period following distribution,
the employee engages in competition with the Company. Stock equivalents
credited to a Stock Equivalent account reflect the performance of Company
Common Stock but actual shares of Common Stock are not issued to such accounts,
and employees with account balances have no voting or other rights associated
with Common Stock ownership. Participants in the Deferred Plan are permitted
once each calendar year to transfer amounts that have been deferred for at
least one year (other than Company matching deferrals) between Deferred Cash
and Stock Equivalent accounts. Upon a Change in Control of the Company,
account balances in Stock Equivalent accounts will be automatically converted
into balances of equal value in Deferred Cash accounts.
Deferred Cash accounts are credited yearly, on November 1, with interest
equivalents based on the average of the daily close of business prime rates for
the 365 days of the year ended the immediately preceding October 31, as
established by Morgan Guaranty Trust Company of New York, or such other bank as
the Committee may designate. Stock Equivalent accounts are credited from time
to time with dividend equivalents if dividends are paid on Company Common
Stock. Appropriate adjustments will be made to Stock Equivalent account
balances to reflect any stock split-up, stock dividend, combination or
reclassification with respect to Company Common Stock, or the consolidation,
merger or sale of all or substantially all of the assets of the Company.
The balance in a Deferred Cash or Stock Equivalent account will generally
be paid to an employee only upon retirement or other termination of employment
with the Company.
The Deferred Plan is unfunded and the obligations of the Company to pay
deferred compensation and matching contributions are unsecured general
obligations of the Company to pay deferred compensation in the future in
accordance with the terms of the Deferred Plan (and the provisions of
individual agreements with employees). An employee's rights under such
obligations are not transferable other than by beneficiary designation, will or
the laws of descent and distribution, and any such rights may be exercised
during the lifetime of the employee only by him or by his guardian or legal
representative.
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The power to amend, modify or terminate the Plan at any time is reserved
to the Committee, except the Committee can authorize the Chief Executive
Officer of the Company to make such amendments as he deems appropriate,
including, but not limited to, resolving ambiguities, supplying omissions and
curing defects necessary to comply with federal tax law or regulations, or to
avoid loss of qualification or adverse tax consequences. Notwithstanding the
foregoing, no amendment, modification or termination which would reasonably be
considered to be adverse to a participant or beneficiary may apply to or affect
the terms of any deferral of compensation prior to the effective date of such
amendment, modification or termination, without the consent of the participant
or beneficiary affected thereby.
The obligations of the Company to pay deferred compensation and matching
contributions under the Plan are not, except as noted herein, convertible into
another security of the Company, and such obligations will not have the benefit
of a negative pledge or any other affirmative or negative covenant on the part
of the Company. No trustee has been appointed having the authority to take
action with respect to such obligations and each participant will be
responsible for acting independently with respect to, among other things, the
giving of notices, responding to any requests for consents, waivers or
amendments pertaining to the obligations, enforcing covenants and taking action
upon a default.
Item 5. Interests of Named Experts and Counsel
The validity of the issuance of the securities being registered has been
passed upon for the Company by R. W. Lockwood, Vice President, General Counsel
and Secretary for the Company. Mr. Lockwood is paid a salary by the Company
and participates in various employee benefit plans offered to employees
generally as well as in plans offered to a limited number of key employees.
Mr. Lockwood will be eligible to participate in the Plan.
The audited financial statements incorporated in this Registration
Statement by reference to the Company's Registration Statement on Form 10
declared effective on December 27, 1996 have been so incorporated in reliance
on the reports of Price Waterhouse, independent accountants, given on the
authority of said firm as experts in auditing and accounting. Price Waterhouse
has served as independent accountants to the Company and its former parent
since 1994.
Item 6. Indemnification of Directors and Officers.
Under the Missouri indemnification statute and the Company's Articles of
Incorporation, Ralcorp must indemnify any person who is or was a director or
officer of the Company, or as a director or officer of the Company is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise,
against any and all expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement, actually and reasonably incurred by him in
connection with any civil, criminal, administrative or investigative action,
proceeding or claim (including an action by or in the right of the Company), by
reason of the fact that he is or was serving in such capacity, provided that
such person's conduct is not finally adjudged to have been knowingly
fraudulent, deliberately dishonest or willful misconduct.
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The foregoing represents a summary of the general effect of Missouri law
and the Company's Articles of Incorporation for purposes of general description
only. Additional information regarding indemnification of directors and
officers can be found in the Missouri statutes, the Company's Articles of
Incorporation and its pertinent insurance contracts.
The Company has directors' and officers' insurance which protects each
director or officer from liability for actions taken in their capacity as
directors or officers. This insurance may provide broader coverage for such
individuals than may be required by the provisions of the Company's Articles of
Incorporation. The Company has entered (or will enter) into indemnification
contracts with the Company's directors and officers whereby the Company would
agree to indemnify them in substantively the same manner as provided in the
Company's Articles of Incorporation and to advance expenses of matters covered
by the indemnification contracts.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits
*(4.1) Articles of Incorporation of the Company (filed as Exhibit 3.1 to the
Company's Form 10 Registration Statement dated December 27, 1996).
*(4.2) Bylaws of the Company (filed as Exhibit 3.2 to the Company's Form 10
Registration Statement dated December 27, 1996).
*(4.3) Ralcorp Holdings, Inc. Incentive Stock Plan (filed as Exhibit 10.01 to
the Company's Form 10 Registration Statement dated December 27, 1996).
*(4.4) Shareholder Protection Rights Agreement (filed as Exhibit 4.1 to the
Company's Form 10 Registration Statement dated December 27, 1996).
*(4.5) Deferred Compensation Plan for Key Employees (filed as Exhibit 10.09
to the Company's Form 10 Registration Statement dated December 27,
1996).
(5)(23) Opinion of Counsel and Consent.
(23) Consent of Independent Accountants.
* Incorporated by reference.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
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(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 the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information in the
registration statement;
(iii) to include any material information with respect to the plan of
distribution of Company Common Stock 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 by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the 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 the time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby 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 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 for liabilities arising under the Securities
Act of 1933 may be required with respect to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed 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 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
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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.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that is 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 St. Louis, Missouri, as of the 31st
day of January 1997.
NEW RALCORP HOLDINGS, INC.
By:
---------------------------
J. R. Micheletto
Chief Executive Officer
and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person who signature appears
below constitutes and appoints Robert W. Lockwood and William E. Taylor, and
each of them, his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for and in his or her name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments), and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, 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 he or she might or could do in person, hereby
ratifying and confirming that all said attorneys-in-fact and agents or any of
them, or their or his or her substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities described as of January 31, 1997.
Signature Title
- --------- -----
Chairman of the Board and Director
- ------------------
William P. Stiritz
Director
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William H. Danforth
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Director
- ---------------------
William D. George, Jr.
Director
- ---------------------
Jack W. Goodall
Director
- ---------------------
David W. Kemper
Chief Executive Officer, President and Director
- --------------------- (Principal Executive and Financial Officer)
Joe R. Micheletto
Vice President and Controller (Principal Accounting
- --------------------- Officer)
Thomas Granneman
INDEX TO EXHIBITS
*(4.1) Articles of Incorporation of the Company (filed as Exhibit 3.1 to the
Company's Form 10 Registration Statement dated December 27, 1996).
*(4.2) Bylaws of the Company (filed as Exhibit 3.2 to the Company's Form 10
Registration Statement dated December 27, 1996).
*(4.3) Ralcorp Holdings, Inc. Incentive Stock Plan (filed as Exhibit 10.01 to
the Company's Form 10 Registration Statement dated December 27, 1996).
*(4.4) Shareholder Rights Protection Agreement (filed as Exhibit 4.1 to the
Company's Form 10 Registration Statement dated December 27, 1996).
*(4.5) Deferred Compensation Plan for Key Employees (filed as Exhibit 10.09
to the Company's Form 10 Registration Statement dated December 27,
1996).
(5)(23) Opinion of Counsel and Consent.
(23) Consent of Independent Accountants.
* Incorporated by reference.
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January 31, 1997
Ralcorp Holdings, Inc.
800 Market Street
Suite 2900
St. Louis, MO 63101
Re: Registration Statement on Form S-8 Relating to 2,900,000
Shares of Common Stock, Par Value $.01 Per Share, To Be
Issued Pursuant to the Ralcorp Holdings, Inc. Incentive Stock Plan
Gentlemen:
I am Vice President, General Counsel and Secretary of New Ralcorp Holdings,
Inc. (the "Company") and have represented the Company in connection with the
Ralcorp Holdings, Inc. Incentive Stock Plan (the "Plan"). I have examined such
documents, records and matters of law as I have deemed necessary for purposes
of this opinion letter, and based thereupon I am of the opinion that:
(1) The shares of common stock that may be issued pursuant to the Plan will
be, when issued in accordance with the Plan, duly authorized, validly
issued, fully paid and nonassessable.
(2) The participations in the Plan to be extended to participants in the Plan
will be, when extended in accordance with the Plan, validly issued.
I consent to the filing of this Opinion with the Plan's registration statement.
Sincerely,
Robert W. Lockwood
Vice President, General Counsel
and Secretary
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EXHIBIT (23)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated October 30, 1996 which apperas on
page F-1 of New Ralcorp Holdings, Inc.'s Registration Statement on Form 10. We
also consent to the reference to us under the heading "Interests of Named
Experts and Counsel" in such Registration Statement.
PRICE WATERHOUSE LLP
St. Louis, Missouri
January 29, 1997
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