<PAGE> 1
REGISTRATION NO. 333-18849
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
GENERAL MILLS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 2043 41-0274440
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
NUMBER ONE GENERAL MILLS BOULEVARD
(MAIL: P.O. BOX 1113)
MINNEAPOLIS, MINNESOTA 55426 (MAIL: 55440)
(612) 540-2311
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
SIRI S. MARSHALL, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
GENERAL MILLS, INC.
NUMBER ONE GENERAL MILLS BOULEVARD
MINNEAPOLIS, MINNESOTA 55426
(612) 540-2311
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
WITH COPIES TO
<TABLE>
<S> <C>
STEVEN A. ROSENBLUM, ESQ. WILLIAM F. SEABAUGH, ESQ.
WACHTELL, LIPTON, ROSEN & KATZ BRYAN CAVE LLP
51 WEST 52ND STREET ONE METROPOLITAN SQUARE
NEW YORK, NY 10019-6150 211 NORTH BROADWAY
(212) 403-1000 ST. LOUIS, MISSOURI 63102
(314) 259-2000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of the Registration Statement.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") sets forth conditions and limitations governing the indemnification of
officers, directors, and other persons.
The Registrant's By-laws provide as follows:
(a) The Registrant shall 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, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he or she is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the Registrant as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in 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 such
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the Registrant, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that such
conduct was unlawful.
(b) The Registrant shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Registrant to procure a judgment in its favor by
reason of the fact that the person is or was a director, officer, employee or
agent of the Registrant, or is or was serving at the request of the Registrant
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by the person in connection with the
defense or settlement of such action or suit if the person acted in good faith
and in a manner the person reasonably believed to be in or not opposed to the
best interests of the Registrant and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Registrant unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of the
Registrant has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b), or in defense
of any claim, issue or matter therein, the person shall be indemnified or
reimbursed against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith.
(d) Any indemnification under sub-sections (a) and (b) (unless ordered by a
court) shall be made by the Registrant only as authorized in the specific case
upon a determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because the person has met the applicable
standard of conduct set forth in subsections (a) and (b) of this section. Such
determination shall be made (1) by the board of directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director
in defending a civil, criminal, administrative or investigative action, suit or
proceeding shall be paid by the Registrant in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately
be determined that such person is not entitled to be
II-1
<PAGE> 3
indemnified by the Registrant as authorized in this section. Such expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this section shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
(g) The Registrant shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Registrant, or is or was serving at the request of the Registrant as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against any liability asserted against any such person
and incurred by any such person in any such capacity, or arising out of his or
her status as such, whether or not the Registrant would have the power to
indemnify such person against such liability under the provisions of this
section.
(h) For purposes of these provisions, references to the Registrant shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as the person would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of these provisions, references to other enterprises shall
include employee benefit plans; references to fines shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to serving at the request of the Registrant shall include any service
as a director, officer, employee or agent of the Registrant which imposes duties
on, or involves services by, such director, officer, employee, or agent with
respect to an employee benefit plan, its participants, or beneficiaries; and a
person who acted in good faith and in a manner he or she reasonably believed to
be in the interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner not opposed to the best interests
of the Registrant as referred to in these provisions.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, these provisions shall, unless otherwise provided when authorized
or ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
The Registrant's Restated Certificate of Incorporation provides that a
director shall not be personally liable to the Registrant or its stockholders
for monetary damages for any breach of fiduciary duty by such director as a
director; provided, however, that a director shall be liable to the extent
provided by applicable law (i) for breach of the director's duty of loyalty to
the Registrant or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (such section relates generally to the
liability of directors for authorizing the unlawful payment of dividends or the
unlawful purchase or redemption of a corporation's stock), or (iv) for any
transaction from which the director derived an improper personal benefit. No
amendment to or repeal of these provisions shall apply to or have any effect on
the liability or alleged liability of any director of the Registrant for or with
respect to any acts or omissions of such director occurring prior to such
amendment.
The Registrant has insurance to indemnify its directors and officers,
within the limits of the Registrant's insurance policies, for those liabilities
in respect of which such indemnification insurance is permitted under the laws
of the State of Delaware.
II-2
<PAGE> 4
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits.
<TABLE>
<S> <C>
2.1 Agreement and Plan of Merger, dated as of August 13, 1996
and amended as of October 25, 1996, by and among Ralcorp
Holdings, Inc. ("Ralcorp"), the Registrant and General Mills
Missouri, Inc. ("General Mills Missouri"), included as Annex
A in the Proxy Statement/Prospectus included as part of this
Registration Statement. The Registrant agrees to furnish
supplementally a copy of any omitted exhibit or schedule to
the Commission upon request.
2.2 Form of Reorganization Agreement by and among Ralcorp, New
Ralcorp Holdings, Inc. ("New Ralcorp"), Ralston Foods, Inc.
("Foods"), Chex Inc. ("Branded Subsidiary") and the
Registrant, included as Annex B in the Proxy
Statement/Prospectus included as part of this Registration
Statement. The Registrant agrees to furnish supplementally a
copy of any omitted exhibit or schedule to the Commission
upon request.
2.3 Form of Tax Sharing Agreement between Ralcorp and New
Ralcorp.* The Registrant agrees to furnish supplementally a
copy of any omitted exhibit or schedule to the Commission
upon request.
2.4 Form of Transition Services -- Supply Agreement between
Ralcorp and New Ralcorp.* The Registrant agrees to furnish
supplementally a copy of any omitted exhibit or schedule to
the Commission upon request.
2.5 Form of Technology Agreement by and among Ralcorp, New
Ralcorp and the Branded Subsidiary.* The Registrant agrees
to furnish supplementally a copy of any omitted exhibit or
schedule to the Commission upon request.
2.6 Form of Trademark Agreement by and among Ralcorp, New
Ralcorp and the Branded Subsidiary.* The Registrant agrees
to furnish supplementally a copy of any omitted exhibit or
schedule to the Commission upon request.
3.1 Copy of Registrant's Restated Certificate of Incorporation,
as amended to date (incorporated herein by reference to
Exhibit 3.1 to Registrant's Annual Report on Form 10-K for
the fiscal year ended May 28, 1995).
3.2 Copy of Registrant's By-Laws, as amended to date
(incorporated herein by reference to Exhibit 3 to
Registrant's Report on Form 8-K dated December 11, 1995).
4.1 Copy of Indenture between Registrant and Continental
Illinois National Bank and Trust Company of Chicago, as
amended to date by Supplemental Indentures Nos. 1 through 8
(incorporated herein by reference to Exhibit 4 to
Registrant's Annual Report on Form 10-K for the fiscal year
ended May 31, 1992 and to Exhibit 4(b) to Registrant's
Current Report on Form 8-K filed January 8, 1993).
4.2 Copy of Rights Agreement dated as of December 11, 1995
between Registrant and Norwest Bank Minnesota, N.A.
(incorporated herein by reference to Exhibit 1 to
Registrant's Report on Form 8-K dated December 11, 1995).
4.3 Copy of Indenture between Registrant and First Trust of
Illinois, National Association dated February 1, 1996
(incorporated herein by reference to Exhibit 4.1 to
Registrant's Registration Statement on Form S-3 effective
February 23, 1996).
5.1 Opinion of Wachtell, Lipton, Rosen & Katz as to the legality
of the shares being issued.*
8.1 Opinion of Wachtell, Lipton, Rosen & Katz as to certain tax
matters.*
8.2 Opinion of Bryan Cave LLP as to certain tax matters.*
8.3 Joint Opinion of Wachtell, Lipton, Rosen & Katz and Bryan
Cave LLP as to certain tax matters.
10.1 Copy of Stock Option and Long-Term Incentive Plan of 1988,
as amended to date (incorporated herein by reference to
Exhibit 10.1 to Registrant's Annual Report on Form 10-K for
the fiscal year ended May 29, 1994).
</TABLE>
- ---------------
* Previously filed.
II-3
<PAGE> 5
10.2 Copy of Stock Option and Long-Term Incentive Plan of 1984,
as amended to date (incorporated herein by reference to
Exhibit 10.2 to Registrant's Annual Report on Form 10-K for
the fiscal year ended May 29, 1994).
10.3 Distribution Agreement with Darden Restaurants, Inc. dated
May 12, 1995 (incorporated herein by reference to Exhibit 2
to Registrant's Report on Form 8-K dated May 28, 1995).
10.4 Copy of Executive Incentive Plan, as amended to date
(incorporated herein by reference to Appendix B to
Registrant's Proxy Statement pursuant to Section 14(a) of
the Securities Exchange Act of 1934, dated August 22, 1996).
10.5 Copy of Management Continuity Agreement (incorporated herein
by reference to Exhibit 4 to Registrant's Report on Form 8-K
dated December 11, 1995).
10.6 Copy of Supplemental Retirement Plan, as amended to date
(incorporated herein by reference to Exhibit 10.6 to
Registrant's Annual Report on Form 10-K for the fiscal year
ended May 29, 1994).
10.7 Copy of Executive Survivor Income Plan, as amended to date
(incorporated herein by reference to Exhibit 10.7 to
Registrant's Annual Report on Form 10-K for the fiscal year
ended May 26, 1996).
10.8 Copy of Executive Health Plan, as amended to date
(incorporated herein by reference to Exhibit 10.8 to
Registrant's Annual Report on Form 10-K for the fiscal year
ended May 26, 1996).
10.9 Copy of Supplemental Savings Plan, as amended to date
(incorporated herein by reference to Exhibit 10.9 to
Registrant's Annual Report on Form 10-K for the fiscal year
ended May 29, 1994).
10.10 Copy of 1996 Compensation Plan for Non-Employee Directors
(incorporated herein by reference to Appendix C to
Registrant's Proxy Statement pursuant to Section 14(a) of
the Securities Exchange Act of 1934, dated August 22, 1996).
10.11 Copy of General Mills, Inc. 1995 Salary Replacement Stock
Option Plan (incorporated herein by reference to Exhibit
10.11 to Registrant's Annual Report on Form 10-K for the
fiscal year ended May 26, 1996).
10.12 Copy of Deferred Compensation Plan, as amended to date
(incorporated herein by reference to Exhibit 10.12 to
Registrant's Annual Report on Form 10-K for the fiscal year
ended May 28, 1995).
10.13 Copy of Supplemental Benefits Trust Agreement dated February
9, 1987, as amended and restated as of September 26, 1988
(incorporated herein by reference to Exhibit 10.13 to
Registrant's Annual Report on Form 10-K for the fiscal year
ended May 29, 1994).
10.14 Copy of Supplemental Benefits Trust Agreement dated
September 26, 1988 (incorporated herein by reference to
Exhibit 10.14 to Registrant's Annual Report on Form 10-K for
the fiscal year ended May 29, 1994).
10.15 Copy of Agreements dated November 29, 1989 by and between
General Mills, Inc. and Nestle, S.A. (incorporated herein by
reference to Exhibit 10.15 to Registrant's Annual Report on
Form 10-K for the fiscal year ended May 28, 1995).
10.16 Copy of Protocol and Addendum No. 1 to Protocol of Cereal
Partners Worldwide (incorporated herein by reference to
Exhibit 10.16 to Registrant's Annual Report on Form 10-K for
the fiscal year ended May 26, 1996).
10.17 Copy of 1990 Salary Replacement Stock Option Plan, as
amended to date (incorporated herein by reference to Exhibit
10.18 to Registrant's Annual Report on Form 10-K for the
fiscal year ended May 29, 1994).
- ---------------
* Previously filed.
II-4
<PAGE> 6
10.18 Copy of Addendum No. 2 dated March 16, 1993 to Protocol of
Cereal Partners Worldwide (incorporated herein by reference
to Exhibit 10.19 to Registrant's Annual Report on Form 10-K
for the fiscal year ended May 30, 1993).
10.19 Copy of Agreement dated July 31, 1992 by and between General
Mills, Inc. and PepsiCo, Inc. (incorporated herein by
reference to Exhibit 10.20 to Registrant's Annual Report on
Form 10-K for the fiscal year ended May 30, 1993).
10.20 Copy of Stock Option and Long-Term Incentive Plan of 1993,
as amended to date (incorporated herein by reference to
Exhibit 10.21 to Registrant's Annual Report on Form 10-K for
the fiscal year ended May 29, 1994).
10.21 Copy of Standstill Agreement with CPC International, Inc.
dated October 17, 1994 (incorporated herein by reference to
Exhibit 10(a) to Registrant's Quarterly Report on Form 10-Q
for the period ended February 26, 1995).
10.22 Copy of Addendum No. 3 effective as of March 15, 1993 to
Protocol of Cereal Partners Worldwide (incorporated herein
by reference to Exhibit 10(b) to Registrant's Quarterly
Report on Form 10-Q for the period ended February 26, 1995).
11 Statement of Computation of Earnings per Share (incorporated
herein by reference to Exhibit 11 of Registrant's Quarterly
Report on Form 10-Q for the quarterly period ended November
24, 1996).
12 Statement of Ratio of Earnings to Fixed Charges
(incorporated herein by reference to Exhibit 12 of
Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended November 24, 1996).
21 List of Subsidiaries of General Mills, Inc. (incorporated
herein by reference to Exhibit 21 to Registrant's Annual
Report on Form 10-K for the fiscal year ended May 26, 1996).
23.1 Consent of KPMG Peat Marwick LLP.*
23.2 Consent of Price Waterhouse LLP.*
23.3 Consent of Wachtell, Lipton, Rosen & Katz (included in
Exhibit 5.1).
23.4 Consent of Wachtell, Lipton, Rosen & Katz (included in
Exhibits 8.1 and 8.3).
23.5 Consent of Bryan Cave LLP (included in Exhibits 8.2 and
8.3).
23.6 Consent of Price Waterhouse LLP.*
24.1 Power of Attorney.*
24.2 Power of Attorney.*
24.3 Power of Attorney.*
24.4 Power of Attorney.*
24.5 Power of Attorney.*
24.6 Power of Attorney.*
24.7 Power of Attorney.*
24.8 Power of Attorney.*
24.9 Power of Attorney.*
24.10 Power of Attorney.*
24.11 Power of Attorney.*
24.12 Power of Attorney.*
27 Financial Data Schedule (incorporated herein by reference to
Exhibit 27 to Registrant's Quarterly Report on Form 10-Q for
the quarterly period ended November 24, 1996).
- ---------------
* Previously filed.
II-5
<PAGE> 7
(b) Financial Statement Schedules.
Schedule II -- Valuation and Qualifying Accounts (incorporated by reference
from the Registrant's Annual Report on Form 10-K for the fiscal year ended May
26, 1996).
(c) Report, Opinion or Appraisal.
Opinion of Lehman Brothers, Inc. (included as Appendix C in the Proxy
Statement/Prospectus included as part of this Registration Statement).
ITEM 22. UNDERTAKINGS
(a) 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 provisions described under Item 20, 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 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.
(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) The undersigned Registrant hereby undertakes as follows: that prior to
any public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this Registration Statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other items of the applicable form.
(d) The Registrant undertakes that every prospectus: (i) that is filed
pursuant to paragraph (c) immediately preceding, or (ii) that purports to meet
the requirements of Section 10(a)(3) of the Act and is used in connection with
an offering of securities subject to Rule 415, will be filed as a part of of an
amendment to the Registration Statement and will not be used until such
amendment is effective, and that, for purposes 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 offering
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(e) The undersigned Registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11 or 13 of this Form, within one business day of receipt of such
request, and to send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of the Registration Statement through the date
of responding to the request.
(f) The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
II-6
<PAGE> 8
(g) The undersigned Registrant hereby undertakes:
1. To file during any period in which offers and sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of 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; and
(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.
2. That for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(h) The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment to the Registration Statement any opinion of tax
counsel with respect to the tax consequences of the transactions contemplated by
the Registration Statement that is delivered to the Registrant at or prior to
the closing of such transactions.
II-7
<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this Post-Effective Amendment to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Minneapolis, State of Minnesota, on February 5, 1997.
GENERAL MILLS, INC.
By: /s/ SIRI S. MARSHALL
------------------------------------
Siri S. Marshall
Senior Vice President and General
Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment to the Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C> <C>
Chairman of the Board and
- ------------------------------------ Chief Executive Officer
Stephen W. Sanger
Director
- ------------------------------------
Richard M. Bressler
Director
- ------------------------------------
Livio D. DeSimone
Director
- ------------------------------------
William T. Esrey
Director, President
- ------------------------------------
Charles W. Gaillard
Director /s/ SIRI S. MARSHALL
- ------------------------------------ -----------------------------------
Judith Richards Hope Siri S. Marshall
Attorney-in-fact
Director February 5, 1997
- ------------------------------------
Kenneth A. Macke
Director
- ------------------------------------
Michael D. Rose
Director
- ------------------------------------
A. Michael Spence
Director
- ------------------------------------
Dorothy A. Terrell
Director, Vice Chairman
- ------------------------------------ (Principal Financial
Raymond G. Viault Officer)
Director
- ------------------------------------
C. Angus Wurtele
/s/ KENNETH L. THOME Senior Vice President, February 5, 1997
- ------------------------------------ Financial Operations
Kenneth L. Thome (Principal Accounting
Officer)
</TABLE>
II-8
<PAGE> 10
EXHIBIT INDEX
Exhibits required by S-K item 601:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- ------- -------------------
<C> <S>
2.1 Agreement and Plan of Merger, dated as of August 13, 1996
and amended as of October 25, 1996, by and among Ralcorp
Holdings, Inc. ("Ralcorp"), the Registrant and General Mills
Missouri, Inc. ("General Mills Missouri"), included as Annex
A in the Proxy Statement/ Prospectus included as part of
this Registration Statement. The Registrant agrees to
furnish supplementally a copy of any omitted exhibit or
schedule to the Commission upon request.
2.2 Form of Reorganization Agreement by and among Ralcorp, New
Ralcorp Holdings, Inc. ("New Ralcorp"), Ralston Foods, Inc.
("Foods"), Chex Inc. ("Branded Subsidiary") and the
Registrant, included as Annex B in the Proxy
Statement/Prospectus included as part of this Registration
Statement. The Registrant agrees to furnish supplementally a
copy of any omitted exhibit or schedule to the Commission
upon request.
2.3 Form of Tax Sharing Agreement between Ralcorp and New
Ralcorp.* The Registrant agrees to furnish supplementally a
copy of any omitted exhibit or schedule to the Commission
upon request.
2.4 Form of Transition Services -- Supply Agreement between
Ralcorp and New Ralcorp.* The Registrant agrees to furnish
supplementally a copy of any omitted exhibit or schedule to
the Commission upon request.
2.5 Form of Technology Agreement by and among Ralcorp, New
Ralcorp and the Branded Subsidiary.* The Registrant agrees
to furnish supplementally a copy of any omitted exhibit or
schedule to the Commission upon request.
2.6 Form of Trademark Agreement by and among Ralcorp, New
Ralcorp and the Branded Subsidiary.* The Registrant agrees
to furnish supplementally a copy of any omitted exhibit or
schedule to the Commission upon request.
3.1 Copy of Registrant's Restated Certificate of Incorporation,
as amended to date (incorporated herein by reference to
Exhibit 3.1 to Registrant's Annual Report on Form 10-K for
the fiscal year ended May 28, 1995).
3.2 Copy of Registrant's By-Laws, as amended to date
(incorporated herein by reference to Exhibit 3 to
Registrant's Report on Form 8-K dated December 11, 1995).
4.1 Copy of Indenture between Registrant and Continental
Illinois National Bank and Trust Company of Chicago, as
amended to date by Supplemental Indentures Nos. 1 through 8
(incorporated herein by reference to Exhibit 4 to
Registrant's Annual Report on Form 10-K for the fiscal year
ended May 31, 1992 and to Exhibit 4(b) to Registrant's
Current Report on Form 8-K filed January 8, 1993).
4.2 Copy of Rights Agreement dated as of December 11, 1995
between Registrant and Norwest Bank Minnesota, N.A.
(incorporated herein by reference to Exhibit 1 to
Registrant's Report on Form 8-K dated December 11, 1995).
4.3 Copy of Indenture between Registrant and First Trust of
Illinois, National Association dated February 1, 1996
(incorporated herein by reference to Exhibit 4.1 to
Registrant's Registration Statement on Form S-3 effective
February 23, 1996).
5.1 Opinion of Wachtell, Lipton, Rosen & Katz as to the legality
of the shares being issued.*
8.1 Opinion of Wachtell, Lipton, Rosen & Katz as to certain tax
matters.*
8.2 Opinion of Bryan Cave LLP as to certain tax matters.*
8.3 Joint Opinion of Wachtell, Lipton, Rosen & Katz and Bryan
Cave LLP as to certain tax matters.
</TABLE>
- ---------------
* Previously filed.
II-9
<PAGE> 11
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- ------- -------------------
<C> <S>
10.1 Copy of Stock Option and Long-Term Incentive Plan of 1988,
as amended to date (incorporated herein by reference to
Exhibit 10.1 to Registrant's Annual Report on Form 10-K for
the fiscal year ended May 29, 1994).
10.2 Copy of Stock Option and Long-Term Incentive Plan of 1984,
as amended to date (incorporated herein by reference to
Exhibit 10.2 to Registrant's Annual Report on Form 10-K for
the fiscal year ended May 29, 1994).
10.3 Distribution Agreement with Darden Restaurants, Inc. dated
May 12, 1995 (incorporated herein by reference to Exhibit 2
to Registrant's Report on Form 8-K dated May 28, 1995).
10.4 Copy of Executive Incentive Plan, as amended to date
(incorporated herein by reference to Appendix B to
Registrant's Proxy Statement pursuant to Section 14(a) of
the Securities Exchange Act of 1934, dated August 22, 1996).
10.5 Copy of Management Continuity Agreement (incorporated herein
by reference to Exhibit 4 to Registrant's Report on Form 8-K
dated December 11, 1995).
10.6 Copy of Supplemental Retirement Plan, as amended to date
(incorporated herein by reference to Exhibit 10.6 to
Registrant's Annual Report on Form 10-K for the fiscal year
ended May 29, 1994).
10.7 Copy of Executive Survivor Income Plan, as amended to date
(incorporated herein by reference to Exhibit 10.7 to
Registrant's Annual Report on Form 10-K for the fiscal year
ended May 26, 1996).
10.8 Copy of Executive Health Plan, as amended to date
(incorporated herein by reference to Exhibit 10.8 to
Registrant's Annual Report on Form 10-K for the fiscal year
ended May 26, 1996).
10.9 Copy of Supplemental Savings Plan, as amended to date
(incorporated herein by reference to Exhibit 10.9 to
Registrant's Annual Report on Form 10-K for the fiscal year
ended May 29, 1994).
10.10 Copy of 1996 Compensation Plan for Non-Employee Directors
(incorporated herein by reference to Appendix C to
Registrant's Proxy Statement pursuant to Section 14(a) of
the Securities Exchange Act of 1934, dated August 22, 1996).
10.11 Copy of General Mills, Inc. 1995 Salary Replacement Stock
Option Plan (incorporated herein by reference to Exhibit
10.11 to Registrant's Annual Report on Form 10-K for the
fiscal year ended May 26, 1996).
10.12 Copy of Deferred Compensation Plan, as amended to date
(incorporated herein by reference to Exhibit 10.12 to
Registrant's Annual Report on Form 10-K for the fiscal year
ended May 28, 1995).
10.13 Copy of Supplemental Benefits Trust Agreement dated February
9, 1987, as amended and restated as of September 26, 1988
(incorporated herein by reference to Exhibit 10.13 to
Registrant's Annual Report on Form 10-K for the fiscal year
ended May 29, 1994).
10.14 Copy of Supplemental Benefits Trust Agreement dated
September 26, 1988 (incorporated herein by reference to
Exhibit 10.14 to Registrant's Annual Report on Form 10-K for
the fiscal year ended May 29, 1994).
10.15 Copy of Agreements dated November 29, 1989 by and between
General Mills, Inc. and Nestle, S.A. (incorporated herein by
reference to Exhibit 10.15 to Registrant's Annual Report on
Form 10-K for the fiscal year ended May 28, 1995).
</TABLE>
- ---------------
* Previously filed.
II-10
<PAGE> 12
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- ------- -------------------
<C> <S>
10.16 Copy of Protocol and Addendum No. 1 to Protocol of Cereal
Partners Worldwide (incorporated herein by reference to
Exhibit 10.16 to Registrant's Annual Report on Form 10-K for
the fiscal year ended May 26, 1996).
10.17 Copy of 1990 Salary Replacement Stock Option Plan, as
amended to date (incorporated herein by reference to Exhibit
10.18 to Registrant's Annual Report on Form 10-K for the
fiscal year ended May 29, 1994).
10.18 Copy of Addendum No. 2 dated March 16, 1993 to Protocol of
Cereal Partners Worldwide (incorporated herein by reference
to Exhibit 10.19 to Registrant's Annual Report on Form 10-K
for the fiscal year ended May 30, 1993).
10.19 Copy of Agreement dated July 31, 1992 by and between General
Mills, Inc. and PepsiCo, Inc. (incorporated herein by
reference to Exhibit 10.20 to Registrant's Annual Report on
Form 10-K for the fiscal year ended May 30, 1993).
10.20 Copy of Stock Option and Long-Term Incentive Plan of 1993,
as amended to date (incorporated herein by reference to
Exhibit 10.21 to Registrant's Annual Report on Form 10-K for
the fiscal year ended May 29, 1994).
10.21 Copy of Standstill Agreement with CPC International, Inc.
dated October 17, 1994 (incorporated herein by reference to
Exhibit 10(a) to Registrant's Quarterly Report on Form 10-Q
for the period ended February 26, 1995).
10.22 Copy of Addendum No. 3 effective as of March 15, 1993 to
Protocol of Cereal Partners Worldwide (incorporated herein
by reference to Exhibit 10(b) to Registrant's Quarterly
Report on Form 10-Q for the period ended February 26, 1995).
11 Statement of Computation of Earnings per Share (incorporated
herein by reference to Exhibit 11 of Registrant's Quarterly
Report on Form 10-Q for the quarterly period ended November
24, 1996).
12 Statement of Ratio of Earnings to Fixed Charges
(incorporated herein by reference to Exhibit 12 of
Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended November 24, 1996).
21 List of Subsidiaries of General Mills, Inc. (incorporated
herein by reference to Exhibit 21 to Registrant's Annual
Report on Form 10-K for the fiscal year ended May 26, 1996).
23.1 Consent of KPMG Peat Marwick LLP.*
23.2 Consent of Price Waterhouse LLP.*
23.3 Consent of Wachtell, Lipton, Rosen & Katz (included in
Exhibit 5.1).
23.4 Consent of Wachtell, Lipton, Rosen & Katz (included in
Exhibits 8.1 and 8.3).
23.5 Consent of Bryan Cave LLP (included in Exhibits 8.2 and
8.3).
23.6 Consent of Price Waterhouse LLP.*
24.1 Power of Attorney.*
24.2 Power of Attorney.*
24.3 Power of Attorney.*
24.4 Power of Attorney.*
24.5 Power of Attorney.*
24.6 Power of Attorney.*
24.7 Power of Attorney.*
24.8 Power of Attorney.*
</TABLE>
- ---------------
* Previously filed.
II-11
<PAGE> 13
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- ------- -------------------
<C> <S>
24.9 Power of Attorney.*
24.10 Power of Attorney.*
24.11 Power of Attorney.*
24.12 Power of Attorney.*
27 Financial Data Schedule (incorporated herein by reference to
Exhibit 27 to Registrant's Quarterly Report on Form 10-Q for
the quarterly period ended November 24, 1996).
</TABLE>
- ---------------
* Previously filed.
II-12
<PAGE> 1
WACHTELL, LIPTON, ROSEN & KATZ BRYAN CAVE LLP
51 West 52nd Street 700 Thirteenth Street, N.W.
New York, New York 10019 Washington, D.C. 20005-3960
(212) 403-1000 (202) 508-6000
Facsimile: (212) 403-2000 Facsimile: (202) 508-6200
January 31, 1997
Board of Directors
Ralcorp Holdings, Inc.
800 Market Street
St. Louis, MO 63101
Board of Directors
General Mills, Inc.
Number One General Mills Blvd.
Minneapolis, MN 55426
Re: JOINT TAX OPINION - PROPOSED
SPIN-OFF AND MERGER TRANSACTIONS
--------------------------------
Ladies and Gentlemen:
This opinion letter is being furnished jointly by Bryan Cave LLP, as
special counsel to Ralcorp Holdings, Inc. ("Ralcorp"), a Missouri corporation,
and Wachtell, Lipton, Rosen & Katz, as special counsel to General Mills, Inc.
("GMI"), a Delaware corporation, pursuant to Section 6.1(e) of the Agreement
and Plan of Merger, dated August 13, 1996, as amended, by and between Ralcorp,
GMI and General Mills Missouri, Inc. ("GMI Sub"), a wholly-owned subsidiary of
GMI (the "Merger Agreement").
<PAGE> 2
The opinions expressed herein relate to certain federal income tax
consequences of, and in connection with, the following transactions
(collectively, the "Transactions"):
(1) the statutory merger of Ralston Foods, Inc.
("Foods"), a Nevada corporation, with and into New Ralcorp
Holdings, Inc. ("New Ralcorp"), a Missouri corporation and
wholly-owned subsidiary of Ralcorp (the "Reincorporation
Merger");
(2) the transfer by New Ralcorp of its branded cereal
and snacks business to Chex Inc. ("Branded Sub"), a Delaware
corporation, in exchange for all of the Branded Sub stock (the
"Branded Contribution"), followed by New Ralcorp's
distribution of the Branded Sub stock to Ralcorp (the
"Internal Spin-off");
(3) the transfer by Ralcorp to New Ralcorp of cash,
certain miscellaneous assets, and certain obligations of
Ralcorp not associated with its branded cereal and snacks
business (the "Dropdown");
(4) the pro rata distribution by Ralcorp, to its
shareholders, of all the stock of New Ralcorp and certain
associated stock purchase rights (the "Distribution"); and
(5) the merger of GMI Sub with and into Ralcorp (the
"Merger"), pursuant to which Ralcorp will become a
wholly-owned subsidiary of GMI and the Ralcorp shareholders
will exchange their Ralcorp stock for shares of GMI stock and
certain associated stock purchase rights.
INFORMATION AND ASSUMPTIONS RELIED UPON
The information upon which we have relied in rendering these opinions was
obtained from discussions with Ralcorp and GMI personnel and our review of
various documents and other materials relating to the Transactions, including:
(i) the agreements through which the
- 2 -
<PAGE> 3
parties intend to effectuate the Transactions (collectively, the
"Agreements"),(1) namely, the Merger Agreement, the Reorganization Agreement,
dated January 31, 1997, by and between Ralcorp, Foods, New Ralcorp, Branded Sub
and GMI, and certain related agreements (the "Ancillary Agreements"); (ii)
required Securities and Exchange Commission ("SEC") filings, namely, the Form
10 registration statement (including the information statement contained
therein), and the Form S-4 registration statement (including the proxy
statement-prospectus contained therein); (iii) the attached Ralcorp Tax
Representation Letter (Exhibit 1) and GMI Tax Representation Letter (Exhibit
2), respectively executed by officers of Ralcorp and GMI; and (iv) such other
documents and materials as we have deemed necessary or appropriate.
We have assumed (i) the authenticity of all documents submitted to us as
originals; (ii) the conformity to original documents of all documents submitted
to us as copies; (iii) the consummation of the Transactions in all material
respects, in accordance with the provisions of the Agreements and exhibits
thereto (as set forth in the forms of the Agreements included as exhibits to
the SEC Form 10 and Form S-4); and (iv) the accuracy and completeness, at the
time the Transactions are consummated, of all statements and representations
contained in the Ralcorp and GMI Tax Representation Letters (which statements
and representations we have neither investigated nor verified).
OPINIONS
Based on the foregoing information, assumptions and representations, and
our consideration of presently applicable provisions of the Internal Revenue
Code and Treasury
- ------------------
(1) Capitalized terms used herein and not otherwise defined shall have the
meanings attributed thereto in the Agreements.
- 3 -
<PAGE> 4
regulations, published revenue rulings and procedures, judicial authorities,
and such other authorities as we have considered relevant, it is our opinion
that --
A. REGARDING THE REINCORPORATION MERGER
1. For federal income tax purposes, the Reincorporation Merger
will constitute a mere change in identity, form or place of
organization of Foods and therefore will qualify as a
"reorganization" within the meaning of Section 368(a)(1)(F) of the
Internal Revenue Code.(2) Foods and New Ralcorp will each be a "party
to the reorganization" within the meaning of Section 368(b).
2. No gain or loss will be recognized to Foods on the transfer
of its assets to New Ralcorp, and the assumption by New Ralcorp of
the liabilities of Foods, pursuant to the Reincorporation Merger.
(Sections 361(a) and 357(a).)
3. The basis of the assets of Foods received by New Ralcorp will
be the same as the basis of such assets in the hands of Foods
immediately prior to the Reincorporation Merger. (Section 362(b).)
4. No gain or loss will be recognized by New Ralcorp upon the
receipt of the assets of Foods pursuant to the Reincorporation
Merger. (Section 1032(a).)
5. The holding period of the Foods assets received by New
Ralcorp will include the period during which such assets were held
by Foods prior to the Reincorporation Merger. (Section 1223(2).)
6. No gain or loss will be recognized by Ralcorp upon the
receipt of New Ralcorp stock pursuant to the Reincorporation Merger,
solely in exchange for its shares of Foods stock. (Section
354(a)(1).)
7. The basis of the New Ralcorp stock received by Ralcorp will
be the same as Ralcorp's basis in the Foods stock immediately before
the Reincorporation Merger. (Section 358(a)(1).)
8. The holding period of the New Ralcorp stock received by
Ralcorp will include the period during which the Foods stock
surrendered in exchange therefor was held by Ralcorp, provided that
such shares were held as capital assets on the date of the
Reincorporation Merger. (Section 1223(1).)
- ----------------
(2) All statutory references are to the Internal Revenue Code of 1986, as
amended.
- 4 -
<PAGE> 5
B. REGARDING THE BRANDED CONTRIBUTION AND THE INTERNAL SPIN-OFF
1. The transfer by New Ralcorp to Branded Sub of the assets of
its branded cereal and snacks business (the "Branded Assets"),
subject to certain liabilities associated with such business in
exchange for all of the stock of Branded Sub (the "Branded
Contribution"), and the subsequent distribution of the Branded Sub
stock by New Ralcorp to Ralcorp (the "Internal Spin-off"), will
qualify as a "reorganization" within the meaning of Section
368(a)(1)(D). New Ralcorp and Branded Sub will each be a "party to
the reorganization" within the meaning of Section 368(b).
2. No gain or loss will be recognized by New Ralcorp upon the
transfer of the Branded Assets, subject to certain liabilities, in
exchange for the stock of Branded Sub. (Sections 361(a) and
357(a).)
3. No gain or loss will be recognized by Branded Sub upon the
receipt of the Branded Assets in exchange for Branded Sub stock.
(Section 1032(a).)
4. The basis of the Branded Assets received by Branded Sub will
be the same as the basis of such assets in the hands of New Ralcorp
immediately prior to the Branded Contribution. (Section 362(b).)
5. The holding period of the Branded Assets received by Branded
Sub will include the holding period of such assets in the hands of
New Ralcorp at the time of the Branded Contribution. (Section
1223(2).)
6. No gain or loss will be recognized by (and no amount will
otherwise be included in the gross income of) Ralcorp upon the
receipt of the Branded Sub stock from New Ralcorp pursuant to the
Internal Spin-off. (Section 355(a)(1).)
7. No gain or loss will be recognized by New Ralcorp upon the
distribution of the Branded Sub stock to Ralcorp pursuant to the
Internal Spin-off. (Section 361(c)(1).)
8. Ralcorp's basis in the stock of New Ralcorp and Branded Sub
immediately following the Internal Spin-off will be determined by
allocating its basis in the New Ralcorp stock immediately before the
Internal Spin-off in accordance with Section 1.358-2(a)(2) of the
Treasury regulations. (Sections 358(a)(1) and (b).)
9. The holding period of the Branded Sub stock received by
Ralcorp pursuant to the Internal Spin-off will include the holding
period of the New Ralcorp stock with respect to which the
distribution of the Branded Sub stock was made, provided
- 5 -
<PAGE> 6
such stock is held by Ralcorp as a capital asset on the date of the
Internal Spin-off. (Section 1223(1).)
10. The earnings and profits of New Ralcorp will be allocated
between New Ralcorp and Branded Sub in accordance with Section
1.312-10 of the Treasury regulations. (Section 312(h).)
C. REGARDING THE DROPDOWN AND THE DISTRIBUTION
1. The transfer of cash and miscellaneous assets by Ralcorp to
New Ralcorp following the Internal Spin-off (the "Dropdown"), and
the subsequent distribution of the New Ralcorp stock by Ralcorp to
the Ralcorp shareholders (the "Distribution"), will constitute a
"reorganization" described in Section 368(a)(1)(D). Ralcorp and New
Ralcorp will each be a "party to the reorganization" within the
meaning of Section 368(b). The Dropdown will also constitute a
transaction described in Section 351.
2. No gain or loss will be recognized to Ralcorp upon the
transfer of property and any liabilities of Ralcorp to New Ralcorp
pursuant to the Dropdown. (Section 361(a) or 351(a), and Section
357(a).)
3. No gain or loss will be recognized by (and no amount will be
included in the gross income of) the Ralcorp shareholders upon their
receipt in the Distribution of New Ralcorp stock and New Ralcorp
Rights associated with such stock. (Section 355(a)(1); Rev. Rul.
90-11, 1990-1 C.B. 10.)
4. No gain or loss will be recognized to Ralcorp as a result of
the Distribution. (Section 361(c) or 355(c).)
5. The basis of the Ralcorp stock and the New Ralcorp stock in
the hands of the Ralcorp shareholders immediately after the
Distribution will be the same as the basis of the Ralcorp stock held
by such shareholders immediately before the Distribution, allocated
in accordance with Sections 1.358-2(a)(2) and (a)(4) of the Treasury
regulations. (Sections 358(a) and (b)(2).)
6. The holding period of the New Ralcorp stock received by the
Ralcorp shareholders in the Distribution will include the holding
period of the Ralcorp stock with respect to which the Distribution
is made, provided such stock is held as a capital asset on the date
of the Distribution. (Section 1223(1).)
7. The earnings and profits of Ralcorp immediately before the
Distribution will be allocated between Ralcorp and New Ralcorp in
accordance with Section 1.312-10 of the Treasury regulations.
(Section 312(h).)
- 6 -
<PAGE> 7
D. REGARDING THE MERGER
1. The statutory merger of GMI Sub with and into Ralcorp will be
treated for federal income tax purposes as an acquisition by GMI of
all the issued and outstanding shares of Ralcorp stock solely in
exchange for voting shares of GMI stock and associated GMI Rights
and, as such, will qualify as a "reorganization" within the meaning
of Section 368(a)(1)(B). (Rev. Rul. 67-448, 1967-2 C.B. 144.) GMI,
GMI Sub and Ralcorp will each be a "party to the reorganization"
within the meaning of Section 368(b).
2. The Ralcorp shareholders will not recognize gain or loss on
the receipt of GMI stock and associated GMI Rights solely in
exchange for Ralcorp stock. (Section 354(a)(1), Rev. Rul. 90-11,
1990-1 C.B. 10.)
3. GMI will not recognize gain or loss upon the receipt of the
Ralcorp stock solely in exchange for GMI stock and associated GMI
Rights. (Section 1032(a).)
4. Each Ralcorp shareholder's basis in the GMI stock received in
the Merger (including any fractional shares deemed received) will be
the same as the basis of the Ralcorp stock surrendered in exchange
therefor. (Section 358(a)(1).)
5. Each Ralcorp shareholder's holding period for the GMI stock
received in the Merger will include the period during which the
shareholder held the Ralcorp stock surrendered in exchange therefor,
provided that the Ralcorp stock surrendered was a capital asset in
the hands of the exchanging shareholder on the date of the Merger.
(Section 1223(1).)
6. GMI's basis in the Ralcorp stock acquired in the Merger will
equal the aggregate basis of such shares in the hands of the
exchanging Ralcorp shareholders immediately before the Merger.
(Section 362(b); Rev. Proc. 81-70, 1981-2 C.B. 729.)
7. GMI's holding period for the Ralcorp stock received in the
Merger will include the period during which the Ralcorp stockholders
held such stock. (Section 1223(2).)
8. The payment of cash by GMI to Ralcorp shareholders in lieu of
the issuance of fractional shares of GMI stock will be treated under
Section 302(a) as having been paid by GMI in redemption of
fractional shares of GMI to which such shareholders would have been
entitled had fractional shares been issued in the Merger. (Rev. Rul.
66-365, 1966-2 C.B. 116; Rev. Proc. 77-41, 1977-2 C.B. 574.)
- 7 -
<PAGE> 8
9. Cash payments by Ralcorp to Ralcorp shareholders who dissent
from the Merger should be treated by such shareholders as received
in redemption of their Ralcorp shares, subject to the conditions and
limitations of Section 302.
SCOPE AND LIMITATIONS OF OPINION LETTER
This opinion letter addresses only those federal income tax consequences
described in the numbered "Opinions" set forth above. No opinion is expressed
regarding any other federal tax consequences, or any state, local or foreign
tax consequences, that may result from or in connection with the Transactions.
Nor is any opinion expressed as to the tax consequences of the Distribution or
the Merger to Ralcorp shareholders who may be subject to specially applicable
tax regimes or provisions under the Internal Revenue Code, including, without
limitation, insurance companies, tax-exempt organizations, financial
institutions or broker-dealers, persons who acquired their Ralcorp stock in
compensatory transactions or who do not hold Ralcorp stock as capital assets,
foreign corporations, partnerships or trusts, and persons who are neither
citizens nor residents of the United States.
No ruling has been sought or obtained from the Internal Revenue Service
with respect to any of the Transactions, and none of the opinions rendered
herein is binding on the Internal Revenue Service or the courts. Furthermore,
no assurance can be given that the federal income tax consequences of the
Transactions might not be adversely affected by future legislation or
administrative pronouncements which have or may have retroactive effect.
- 8 -
<PAGE> 9
We understand that references to this opinion letter and the undersigned
special counsel will appear in the SEC filings for the Transactions, and that a
copy of this opinion letter will be submitted to the SEC as an exhibit to such
filings. We hereby consent to such references and submissions.
Very truly yours,
/s/ Bryan Cave LLP /s/ Wachtell, Lipton, Rosen & Katz
- --------------------- -------------------------------------
BRYAN CAVE LLP WACHTELL, LIPTON, ROSEN & KATZ
Attachments
1. Ralcorp Tax Representation Letter
2. GMI Tax Representation Letter
- 9 -
<PAGE> 10
[Ralcorp Holdings, Inc. Letterhead]
EXHIBIT 1
January 31, 1997
Bryan Cave LLP
One Metropolitan Square
211 North Broadway
St. Louis, Missouri 63102
Attn: William F. Seabaugh, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019-6150
Attn: Steven A. Rosenblum, Esq.
Dear Sirs:
The undersigned officers of Ralcorp Holdings, Inc. ("Ralcorp"),
Ralston Foods, Inc. ("Foods"), New Ralcorp Holdings, Inc. ("New Ralcorp"), and
Chex Inc. ("Branded Sub") are delivering this letter (the "Ralcorp Tax
Representation Letter") in connection with the federal income tax opinions (the
"Opinions") to be rendered by Bryan Cave LLP and Wachtell, Lipton, Rosen and
Katz (together, "Counsel"), pursuant to Art. 6.1(e) of the Agreement and Plan of
Merger, dated August 13, 1996, as amended (the "Merger Agreement"), by and
between Ralcorp, General Mills, Inc. ("GMI") and General Mills Missouri, Inc.
("GMI Sub").
The Opinions and the Ralcorp Representation Letter relate to the
following transactions (collectively, the "Transactions"), which are to be
consummated pursuant to various agreements (collectively, the "Agreements"),
including the Merger Agreement, a Reorganization
<PAGE> 11
Agreement, dated January 31, 1997, by and between Ralcorp, Foods, New Ralcorp,
Branded Sub and GMI, and certain related agreements (the "Ancillary
Agreements"): (i) the merger of Foods into New Ralcorp (the "Reincorporation
Merger"); (ii) the transfer by New Ralcorp of its Branded Cereal/Snacks Business
to Branded Sub (the "Branded Contribution"), followed by the distribution of the
Branded Sub stock by New Ralcorp to Ralcorp (the "Internal Spin-off"); (iii) the
transfer by Ralcorp to New Ralcorp of cash, certain miscellaneous assets, and
certain obligations of Ralcorp not associated with the Branded Cereal/Snacks
Business (the "Dropdown"); (iv) the distribution of the New Ralcorp stock by
Ralcorp to its shareholders (the "Distribution"); and (v) the merger of GMI Sub,
a wholly-owned subsidiary of GMI, with and into Ralcorp (the "Merger").
Recognizing that Counsel will rely upon this letter in delivering the
Opinions, we hereby represent and certify that:
1. The information presented in the Form 10 Registration Statement filed
with the Securities and Exchange Commission ("SEC") on behalf of New
Ralcorp on December 27, 1996, and the Form S-4 Proxy Statement -
Prospectus filed with the SEC by GMI on December 27, 1996, is true,
correct and complete in all material aspects insofar as such
information relates to the involvement in the Transactions of Ralcorp,
Foods, New Ralcorp and Branded Sub (prior to the Merger).
2. The Transactions will be effectuated substantially in accordance with
the terms and conditions of the Agreements, as set forth in the copies
thereof included as exhibits to the SEC Form 10. None of the material
terms or conditions of the
2
<PAGE> 12
Agreements has been waived or modified, and neither Ralcorp, Foods,
New Ralcorp nor Branded Sub has any plan or intention to waive or
modify any material term or condition.
3. Ralcorp, Foods, New Ralcorp and Branded Sub will be validly formed
corporations at the time of the Transactions, and each will be fully
empowered to engage in the Transactions.
4. Ralcorp was formed as a Missouri corporation on January 19, 1994, as a
wholly-owned subsidiary of Ralston Purina Company, a Missouri
corporation ("RPC"). On April 1, 1994, RPC transferred certain of its
businesses into Ralcorp and subsidiaries of Ralcorp (the "Ralcorp
Group") and distributed the Ralcorp stock pro rata to its Class A
common shareholders (the "Prior Spin-off"). The Internal Revenue
Service issued a private letter ruling (the "Ruling Letter")
principally to the effect that the transactions incident to the Prior
Spin-off qualified for nonrecognition treatment under sections 351 and
355 of the Internal Revenue Code of 1986, as amended (the "Code").
Except as indicated in a supplemental ruling request filed by RPC and
Ralcorp on December 3, 1996, the information upon which the Ruling
Letter was based has not changed. Ralcorp has no reason to believe
that the Ruling Letter will be revoked.
3
<PAGE> 13
5. Ralcorp files a consolidated federal income tax return, on a September
30 fiscal year basis, as common parent of the Ralcorp Group.
6. Immediately prior to the Transactions, Ralcorp's outstanding capital
stock will consist of approximately 33 million shares of a single
class of $.01 par value common stock traded over the New York Stock
Exchange. Each share of the Ralcorp stock is entitled to one vote on
all matters voted on by shareholders, including the election of
directors.
7. To the best of Ralcorp's knowledge, immediately prior to the
Transactions, no person, foreign or otherwise, will own 5 percent or
more of the stock, other than (i) a bank and trust company which holds
Ralcorp shares solely in a fiduciary capacity for the beneficial
owners of such shares (none of whom, to the best of Ralcorp's
knowledge owns a 5 percent or greater interest); (ii) a mutual fund
which is a regulated investment company for federal income tax
purposes; and (iii) the Ralcorp Holdings, Inc. Savings Investment Plan
(the "SIP"), which holds Ralcorp stock on behalf of numerous plan
participants.
8. Ralcorp shareholders hold rights (the "Ralcorp Rights") which entitle
them to purchase shares of Ralcorp stock in the event of certain
substantial acquisitions of Ralcorp stock by any person or group of
affiliated persons The principal purpose for the adoption of the plan
providing for the Ralcorp Rights is to establish a
4
<PAGE> 14
mechanism by which Ralcorp can, in the future, provide shareholders
with rights to purchase stock of Ralcorp at substantially less than
fair market value as a means of responding to unsolicited offers to
acquire Ralcorp. As permitted under the plan, the Ralcorp Rights will
be redeemed immediately prior to the Merger for $.05 per Right.
Payment of the redemption amount (the "Rights Redemption Obligation")
cannot be made until after the Merger closing date. In order to
relieve Ralcorp and GMI of any administrative burdens with respect to
discharging the Rights Redemption Obligation, New Ralcorp will assume
such obligation prior to the Distribution and make the required
payment as soon as practicable after the Merger.
9. Except for the Ralcorp Rights, unexercised employee stock options, and
rights existing under the terms of the SIP, no conversion, redemption
or other rights to acquire additional Ralcorp stock presently exist or
will exist immediately prior to the Transactions.
10. Ralcorp Foods was incorporated in Nevada on January 26, 1994 in
conjunction with the Prior Spin-off. All of its outstanding capital
stock has since been owned by Ralcorp, and will be owned by Ralcorp at
the time of the Reincorporation.
11. New Ralcorp was incorporated in Missouri on October 23, 1996, as a
wholly-owned subsidiary of Ralcorp. Its outstanding capital stock
consists of 1,000
5
<PAGE> 15
shares of a single class of common stock, all of which is owned by
Ralcorp. Prior to the Distribution the number of shares of
outstanding New Ralcorp stock will be increased through stock splits,
so that immediately prior to the Distribution, Ralcorp will own the
number of shares of New Ralcorp stock to be distributed to Ralcorp
shareholders pursuant to the Distribution.
12. On December 18, 1996, New Ralcorp adopted a shareholder rights plan
(the "New Ralcorp Rights Plan") substantially similar to, and having
the same principal purpose as, the Ralcorp Rights Plan (as described
at par. 8, above).
13. Prior to the Branded Contribution, Branded Sub will be incorporated in
Delaware as a wholly-owned subsidiary of New Ralcorp.
14. Neither Ralcorp, Foods, New Ralcorp or Branded Sub is, or at the time
of any of the Transactions will be, (i) an "investment company" within
the meaning of Code section 368(a)(2)(F)(iii) and (iv), or (ii) under
the jurisdiction of a court in a title 11 or similar case within the
meaning of Code section 368(a)(3)(A).
15. The Reincorporation Merger will constitute a statutory merger under
the laws of Nevada and Missouri. The purpose of the Reincorporation
Merger is to effectuate a change in the corporate domicile of Foods
from Nevada to Missouri.
6
<PAGE> 16
16. The fair market value of the New Ralcorp stock received by Ralcorp in
the Reincorporation Merger will be approximately equal to the fair
market value of the Foods stock surrendered in exchange therefor.
17. Ralcorp has no plan or intention to sell, exchange or otherwise
dispose of the New Ralcorp stock received in the Reincorporation
Merger, except by way of the Distribution. To the best of our
knowledge, there is no plan or intention by any shareholder of Ralcorp
to sell, exchange or otherwise dispose of (i) any of the New Ralcorp
stock received in the Distribution, or (ii) any of the GMI stock
received in the Merger (except for fractional shares of GMI stock
deemed received and redeemed for cash).
18. Immediately following the Reincorporation Merger, Ralcorp will own all
of the outstanding New Ralcorp stock, and will own such stock solely
by reason of its ownership of Foods stock immediately prior to the
Reincorporation Merger.
19. New Ralcorp has no plan or intention to issue additional shares of its
stock following the Reincorporation Merger.
20. Immediately after the Reincorporation Merger and prior to the Branded
Contribution, New Ralcorp will possess the same assets and liabilities
as those possessed by Foods immediately prior to the Reincorporation
Merger, except for
7
<PAGE> 17
assets used to pay expenses incurred in connection with the
Reincorporation Merger. Assets used to pay Reincorporation Merger
expenses will, in the aggregate, constitute less than one percent of
the net assets of Foods. Prior to the Reincorporation Merger, Foods
will make no distribution in respect of its stock or otherwise.
21. At the time of the Reincorporation Merger, Foods will not have
outstanding any warrants, options, convertible securities, or any
other type of right pursuant to which any person could acquire stock
in Foods.
22. New Ralcorp has no plan or intention to reacquire any of its stock
issued in the Reincorporation Merger.
23. New Ralcorp has no plan or intention to sell or otherwise dispose of
any of the assets of Foods acquired in the Reincorporation Merger,
except for (i) the transfer of the assets of the Branded Cereal/Snacks
Business pursuant to the Branded Contribution; and (ii) dispositions
of assets made in the ordinary course of business.
24. The liabilities of Foods to be assumed by New Ralcorp in the
Reincorporation Merger, plus any liabilities of Foods to which the
transferred assets are subject,
8
<PAGE> 18
will have been incurred by Foods in the ordinary course of its
business and will be associated with the assets being transferred.
25. Following the Reincorporation Merger, New Ralcorp will continue the
historic business of Foods or use a significant portion of Food's
historic business assets in a business.
26. Ralcorp, Foods and New Ralcorp will pay their respective expenses, if
any, incurred in connection with the Reincorporation Merger.
27. All of the outstanding stock of Branded Sub will be distributed by New
Ralcorp to Ralcorp pursuant to the Internal Spin-off, and will be
received by Ralcorp solely in its capacity as the sole shareholder of
New Ralcorp.
28. At the time of the Internal Spin-off, the Private Label Cereal
Business and the Branded Cereal/Snacks Business will each have been
actively conducted throughout the preceding 5-year period within the
meaning of Treas. Reg. Section 1.355-3(b) -- by Foods/New Ralcorp
since April 1, 1994, and by RPC prior to April 1, 1994. Neither of
such businesses will have been acquired during such period by RPC from
a non-member of the RPC affiliated group, or by Foods/New Ralcorp from
a non-member of the Ralcorp affiliated group, in a transaction in
which gain or loss was recognized for federal income tax purposes.
9
<PAGE> 19
29. Following the Internal Spin-off, New Ralcorp will be engaged in the
active conduct of the Private Label Cereal Business, and Branded Sub
will be engaged in the Branded Cereal/Snacks Business, each
independently and with separate employees.
30. The Branded Contribution and the Internal Spin-off are motivated
wholly or in substantial part by one or more of the following
corporate business purposes: (i) to facilitate the acquisition of the
Branded Cereal/Snacks Business by GMI (via the Merger), following the
separation of the other Ralcorp businesses not wanted by GMI (via the
Distribution); (ii) to enable New Ralcorp to concentrate its cereal
operations on the private label side, where it perceives itself to be
less vulnerable to the types of industry-wide competitive pressures
that exist in the branded cereal markets; and (iii) to enable New
Ralcorp to better focus on the operations of its Baby Food Business.
31. The total adjusted basis and fair market value of the assets
transferred pursuant to the Branded Contribution will each equal or
exceed the sum of any liabilities assumed by Branded Sub plus any
liabilities to which the transferred assets are subject. Any
liabilities assumed or to which the transferred assets are subject
were or will have been incurred by New Ralcorp (or by its predecessor,
Foods) in the ordinary course of business and will be associated with
the assets transferred.
10
<PAGE> 20
32. None of the property transferred by New Ralcorp pursuant to the
Branded Contribution will have been acquired by New Ralcorp as part of
a plan of liquidation of another corporation.
33. New Ralcorp will have neither accumulated its receivables (other than
in the ordinary course of business), nor made an extraordinary payment
of its payables, in anticipation of the Branded Contribution.
34. No intercorporate debt will exist between New Ralcorp and Branded Sub
before or after the Internal Spin-off, except for any such
indebtedness that may arise out of (i) indemnification obligations or
other post-closing adjustments or events contemplated by the Merger
Agreement, or (ii) transitional operating and support arrangements
under the Ancillary Agreements.
35. There is no plan or intention by Ralcorp to sell, exchange, or
otherwise dispose of any stock in New Ralcorp after the Internal
Spin-off, except pursuant to the Distribution.
36. Following the Internal Spin-off and prior to the Distribution, Ralcorp
will own all of the outstanding stock of Branded Sub; and prior to
the Distribution and the
11
<PAGE> 21
Merger, Ralcorp will own all of the outstanding stock of Branded Sub
and New Ralcorp.
37. There is no plan or intention to cause Branded Sub to purchase or
otherwise reacquire any of its outstanding stock prior to the Merger.
38. There is no plan or intention to liquidate New Ralcorp, to merge New
Ralcorp with any other corporation, or to sell or otherwise dispose of
the assets of New Ralcorp except in the ordinary course of business.
Nor prior to the Merger, is there any such plan or intention with
respect to Branded Sub or its assets, or with respect to Ralcorp or
its assets, other than in connection with the Merger.
39. None of the stock of New Ralcorp or Branded Sub held by Ralcorp
immediately after the Internal Spin-off will constitute "disqualified
stock" within the meaning of Code section 355(d)(3).
40. Pursuant to the Distribution, Ralcorp will distribute all of the
outstanding stock of New Ralcorp pro rata to the Ralcorp shareholders,
on the basis of one share of New Ralcorp Common Stock (and one New
Ralcorp Right) for each share of Ralcorp Common Stock held. As of the
time of the Distribution, the New Ralcorp Rights will not have been
separated from the New Ralcorp stock to which they relate.
12
<PAGE> 22
41. No part of the New Ralcorp stock distributed in the Distribution will
be received by any Ralcorp shareholder as a creditor, employee, or in
any capacity other than as a shareholder of the corporation.
42. No debt securities of New Ralcorp, and no cash or other property, will
be distributed to any Ralcorp shareholder pursuant to the
Distribution.
43. Ralcorp is, and at the time of the Distribution will be, a holding
company which does not directly conduct an active trade or business.
44. Immediately after the Distribution, (i) at least 90 percent of the
fair market value of the gross assets of Ralcorp will consist of the
stock of Branded Sub, and (ii) Branded Sub will be controlled by
Ralcorp within the meaning of Code section 368(c), and be directly
engaged in the active conduct of the Branded Cereal/Snacks Business.
45. Following the Distribution, New Ralcorp will continue to directly and
actively conduct its Private Label Cereal Business, and Ralcorp will
continue to actively conduct (through Branded Sub) its Branded
Cereal/Snacks Business, independently and with separate employees.
13
<PAGE> 23
46. The Private Label Cereal Business and the Branded Cereal/Snacks
Business will each have been actively and continuously conducted,
within the meaning of Treas. Reg. 1.355-3(b), throughout the 5-year
period preceding the Distribution -- by Foods/New Ralcorp since April
1, 1994, and by RPC prior to April 1, 1994. Neither of such
businesses will have been acquired during such period by RPC from a
non-member of the RPC affiliated group, or by Ralcorp from a
non-member of the Ralcorp affiliated group, in a transaction in which
gain or loss was recognized for federal income tax purposes.
47. The Distribution is motivated wholly or in substantial part by one or
more of the same corporate business purposes that motivate the
Internal Spin-off, as described at par. 30, above.
48. The total adjusted basis and fair market value of the assets
transferred pursuant to the Dropdown will each equal or exceed the sum
of the Rights Redemption Obligation and any other liabilities of
Ralcorp assumed (or taken subject to) by New Ralcorp pursuant to the
Dropdown.
49. None of the property transferred by Ralcorp to New Ralcorp in
connection with the Dropdown will have been acquired by Ralcorp as
part of a plan of liquidation of another corporation.
14
<PAGE> 24
50. No intercorporate debt will exist between Ralcorp and New Ralcorp at
the time of the Distribution.
51. To the best of Ralcorp's knowledge, there is no plan or intention by
any shareholder of Ralcorp to sell, exchange, transfer by gift or
otherwise dispose of any stock in either Ralcorp or New Ralcorp after
the Distribution, except for (i) the exchange of Ralcorp stock for GMI
stock pursuant to the Merger, or (ii) the redemption of Ralcorp stock
pursuant to an exercise of dissenters' rights in connection with the
Merger.
52. There is no plan or intention by New Ralcorp, directly or through any
subsidiary corporation, to purchase, redeem or otherwise reacquire any
of its outstanding stock after the Distribution, other than through
stock purchases meeting all of the requirements of section 4.05(1)(b)
of Rev. Proc. 96-30.
53. There is no plan or intention, following the Distribution, to
liquidate New Ralcorp, to merge New Ralcorp with any other
corporation, or to sell or otherwise dispose of the assets of New
Ralcorp, except in the ordinary course of business. Nor, prior to the
Merger, is there any such plan or intention with respect to Ralcorp or
its assets.
15
<PAGE> 25
54. Immediately before the Distribution, Ralcorp will report on its
federal income tax return for the taxable year in which the
Distribution occurs, items of income, gain, loss, deduction and
credit, if any, which are required to be taken into account by the
applicable consolidated return intercompany transaction regulations;
and Ralcorp's excess loss account with respect to the New Ralcorp
stock, if any, will be included in income on such return.
55. Except as may be provided otherwise under the Ancillary Agreements
with respect to certain transitional operations and support
arrangements, payments made following the Internal Spin-off in
connection with transactions between New Ralcorp and Ralcorp or
Branded Sub will be for fair market value based on terms and
conditions arrived at by the parties bargaining at arm's length.
56. Ralcorp, New Ralcorp, Branded Sub and the shareholders of Ralcorp will
each pay their own expenses, if any, incurred in connection with the
Dropdown, the Internal Spin-off, the Branded Contribution and the
Distribution, except that Ralcorp and GMI will share equally expenses
incurred in connection with printing and/or mailing of the Form 10
Registration Statement and the Proxy Statement-Prospectus filed with
the SEC.
57. There have been, and presently are, no negotiations, agreements or
arrangements with respect to transactions or events which, if treated
as consummated before the
16
<PAGE> 26
Distribution, would result in Ralcorp not being in "control" of New
Ralcorp, within the meaning of Code section 368(c), immediately prior
to the Distribution. There is no plan or intention for New Ralcorp to
issue additional shares of its capital stock following the
Distribution, or for Ralcorp to issue additional shares of its capital
stock prior to the Merger.
58. Immediately after the Distribution and prior to the Merger, no person,
or group of persons who are treated as "one person" under the rules of
Code section 355(d)(7), will hold stock in Ralcorp or New Ralcorp
which (i) was acquired via a "purchase" transaction (as defined in
section 355(d)(5)) within the 5-year period preceding the
Distribution, and (ii) constitutes a 50 percent or greater interest in
Ralcorp or New Ralcorp in terms of either voting power or value.
59. Ralcorp has decided to dispose of its Branded Cereal/Snacks Business
via the Merger because (i) certain adverse competitive pressures have
recently developed in the branded cereal industry; (ii) it desires to
concentrate its cereal operations on the private label side; and (iii)
the receipt of GMI stock in the Merger will enable Ralcorp's
shareholders to continue their investments in a larger and more
diversified consumer foods company.
60. The ratio for the exchange of shares pursuant to the Merger was agreed
to based upon arm's length negotiations. The fair market value of
the GMI stock received
17
<PAGE> 27
by each Ralcorp shareholder (after taking into account any cash
received in lieu of fractional shares) will be approximately equal to
the fair market value of the Ralcorp stock surrendered in exchange
therefor.
61. To the best of Ralcorp's knowledge, there is no plan or intention by
any Ralcorp shareholder to sell, exchange, transfer by gift, or
otherwise dispose of any shares of GMI stock received in the Merger
(except for dispositions of fractional GMI shares deemed received in
the Merger and redeemed for cash by GMI).
62. Ralcorp and the Ralcorp shareholders will each pay their respective
expenses, if any, incurred in connection with the Merger, except that
Ralcorp and GMI will share equally expenses incurred in connection
with printing and/or mailing of the Form 10 Registration Statement and
the Proxy Statement-Prospectus filed with the SEC.
63. GMI will acquire the Ralcorp stock solely in exchange for GMI voting
stock (together with one GMI Right per each GMI share issued). No
Ralcorp stock or Ralcorp Rights will be redeemed for cash furnished by
GMI. No liabilities of the Ralcorp stockholders will be assumed by
GMI, nor will any of the Ralcorp stock exchanged in the Merger be
subject to any liabilities. As of the time of the Merger, the Ralcorp
Rights will be subject to the Rights Redemption Obligation; and none
of the cash required to pay such obligation will be furnished by GMI.
18
<PAGE> 28
64. At the time of the Merger, Ralcorp will not have outstanding any
warrants, options, convertible securities, or any other type of
rights, pursuant to which any person could acquire stock in Ralcorp
that, if exercised or converted, would affect GMI's acquisition or
retention of "control" of Ralcorp, as defined in Code section 368(c).
65. Any dissenting Ralcorp stockholders to the Merger will be paid cash
out of Ralcorp funds (and not out of any funds directly or indirectly
supplied by GMI or GMI Sub). Holders of not more than 5 percent of
the Ralcorp stock will exercise dissenters' rights.
66. At the time of the Merger, there will be no intercorporate
indebtedness existing between Ralcorp and GMI or GMI Sub that was
issued or acquired or will be settled at a discount.
67. At the time of the Merger, the fair market value of the Ralcorp assets
will exceed the sum of its liabilities plus the liabilities, if any,
to which its assets are subject.
68. The payment of cash in lieu of fractional shares of GMI stock is
solely for the purpose of avoiding the expense and inconvenience to
GMI of issuing fractional shares and does not represent separately
bargained-for consideration. The total
19
<PAGE> 29
cash consideration that will be paid to the Ralcorp stockholders
instead of issuing fractional shares of GMI stock will not exceed one
percent of the total consideration that will be paid in the Merger to
the Ralcorp stockholders in exchange for their shares of Ralcorp
stock. The fractional share interests of each Ralcorp stockholder
will be aggregated, and the cash-out arrangements are designed so that
no stockholder should receive cash in an amount equal to or greater
than the value of one full share of GMI stock.
69. None of the compensation received by any Ralcorp stockholder-employee
will be separate consideration for, or allocable to, any shares of
Ralcorp stock exchanged in the Merger. None of the shares of GMI stock
received by any Ralcorp stockholder-employee will be separate
consideration for, or allocable to, any employment agreement. The
compensation paid to any Ralcorp stockholder-employee will be for
services actually rendered and will be commensurate with amounts paid
to third parties bargaining at arm's length for similar services.
IN WITNESS WHEREOF, the undersigned have executed this Ralcorp Tax
Representation Letter, on behalf of the corporations named, this 31st day of
January, 1997.
RALCORP HOLDINGS, INC.
By: /s/ Robert W. Lockwood
---------------------------
Name: Robert W. Lockwood
Title: Vice President,
General Counsel & Secretary
20
<PAGE> 30
RALSTON FOODS, INC.
By: /s/ Robert W. Lockwood
---------------------------
Name: Robert W. Lockwood
Title: Secretary
NEW RALCORP HOLDINGS, INC.
By: /s/ Robert W. Lockwood
---------------------------
Name: Robert W. Lockwood
Title: Vice President,
General Counsel & Secretary
CHEX INC.
By: /s/ Robert W. Lockwood
---------------------------
Name: Robert W. Lockwood
Title: President
21
<PAGE> 31
[General Mills, Inc. Letterhead]
EXHIBIT 2
January 31, 1997
Bryan Cave LLP
One Metropolitan Square
211 North Broadway
St. Louis, Missouri 63102
Attn: William F. Seabaugh, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019-6150
Attn: Steven A. Rosenblum, Esq.
Dear Sirs:
The undersigned officers of General Mills, Inc. ("GMI") and General
Mills Missouri, Inc. ("GMI Sub") are delivering this letter (the "GMI Tax
Representation Letter") in connection with the federal income tax opinions (the
"Opinions") to be rendered by Bryan Cave LLP and Wachtell, Lipton, Rosen and
Katz (together, "Counsel"), pursuant to Art. 6.1(e) of the Agreement and Plan
of Merger, dated August 13, 1996, as amended (the "Merger Agreement"), by and
between GMI, GMI Sub and Ralcorp Holdings, Inc. ("Ralcorp").
The Opinions and the GMI Representation Letter relate to the following
transactions (collectively, the "Transactions"), which are to be consummated
pursuant to various agreements (collectively, the "Agreements"), including the
Merger Agreement, a Reorganization Agreement, dated January 31, 1997, by and
between Ralcorp, Ralcorp Foods, Inc. ("Foods"), New Ralcorp Holdings, Inc. ("New
Ralcorp"), Chex Inc. ("Branded Sub") and
<PAGE> 32
GMI, and certain related agreements (the "Ancillary Agreements"): (i) the merger
of Foods into New Ralcorp (the "Reincorporation Merger"); (ii) the transfer by
New Ralcorp of its Branded Cereal/Snacks Business to Branded Sub (the "Branded
Contribution"), followed by the distribution of the Branded Sub stock by New
Ralcorp to Ralcorp (the "Internal Spin-off"); (iii) the transfer by Ralcorp to
New Ralcorp of cash, certain miscellaneous assets, and certain obligations of
Ralcorp not associated with the Branded Cereal/Snacks Business (the "Dropdown");
(iv) the distribution of the New Ralcorp stock by Ralcorp to its shareholders
(the "Distribution"); and (v) the merger of GMI Sub, a wholly owned subsidiary
of GMI, with and into Ralcorp (the "Merger").
Recognizing that Counsel will rely upon this letter in delivering the
Opinions, we hereby represent and certify that:
1. The information presented in the Form 10 Registration Statement
filed with the Securities and Exchange Commission ("SEC") on
behalf of New Ralcorp on December 27, 1996, and the Proxy Statement -
Prospectus filed with the SEC on behalf of Ralcorp on December 27,
1996, is true, correct and complete in all material aspects insofar
as such information relates to the involvement in the Transactions of
GMI, GMI Sub and Branded Sub (after the Merger).
2. Insofar as GMI and GMI Sub are parties thereto, the Transactions will
be effectuated substantially in accordance with the terms and
conditions of the Agreements, as set forth in the copies thereof
included as exhibits to the SEC Form 10. None of the material terms
or conditions of the Agreements has been waived or modified by GMI or
GMI Sub, and neither GMI, GMI Sub nor Branded
- 2 -
<PAGE> 33
Sub (after the Merger) has any plan or intention to waive or modify
any material term or condition.
3. GMI and GMI Sub will be validly formed corporations at the
time of the Merger, and each will be fully empowered to engage in
the Merger.
4. GMI is a Delaware corporation engaged directly and through
subsidiaries in the manufacture and sale of branded cereal and other
packaged food products. It files a consolidated federal income tax
return, on a fiscal year basis, as common parent of an affiliated
group of corporations including itself and its domestic
subsidiaries.
5. GMI Sub was incorporated in Missouri on August 6, 1996, for purposes
of effectuating the Merger. All of its outstanding capital
stock is, and at the time of the Merger will be, owned by GMI.
6. The outstanding capital stock of GMI consists of a single
class of $.10 par value common stock, which stock is widely held and
listed on the New York Stock Exchange. The holders of the GMI
common stock are entitled to one vote per share on all matters voted
on by shareholders, including the election of directors.
7. GMI shareholders have shareholder rights (the "GMI Rights")
that are attached to the common stock and which entitle them to
purchase shares of GMI stock in the event of certain substantial
acquisitions of GMI stock by any person or affiliated persons. The
principal purpose for the adoption of the plan providing for the GMI
Rights is to establish a mechanism by which GMI can, in the future,
provide shareholders with rights to purchase GMI stock at
substantially less
- 3 -
<PAGE> 34
than fair market value as a means of responding to unsolicited offers
to acquire GMI.
8. GMI has decided to acquire Ralcorp via the Merger because it
believes that the addition of "Chex" and Ralcorp's other well-known
branded cereal and snack products will provide new growth
opportunities for its overall food business.
9. GMI desires to acquire only the Branded Cereal/Snacks
Business now conducted by Foods, utilizing solely GMI voting common
stock as consideration for the acquisition. It would not have
agreed to the Merger unless Ralcorp had agreed to previously dispose
of all of its other businesses via the Branded Contribution, the
Internal Spin-off, the Dropdown and the Distribution.
10. GMI further desires that the GMI stock issued in the Merger be widely
disseminated among a large group of shareholders. It would not have
agreed to acquire Branded Sub via an exchange of shares with Ralcorp
(rather than acquiring Ralcorp from the Ralcorp shareholders). Nor
would it have agreed to an alternative tax-free transaction in which
Ralcorp assets were combined with GMI assets in a corporation,
partnership, limited liability company or other form of joint venture.
11. The ratio for the exchange of shares pursuant to the Merger
was agreed to based on arm's-length negotiations. The fair market
value of the GMI stock (and associated GMI Rights) to be issued in
the Merger to each Ralcorp shareholder (after taking into account
any cash received in lieu of fractional shares) is intended to be
approximately equal to the fair market value of the Ralcorp stock
surrendered in exchange therefor.
- 4 -
<PAGE> 35
12. GMI will acquire the Ralcorp stock solely in exchange for
shares of GMI voting stock (together with one GMI Right per each GMI
share issued). No Ralcorp stock will be redeemed for cash furnished
by GMI. No liabilities of any Ralcorp stockholder will be assumed
by GMI, nor will any of the Ralcorp stock exchanged in the Merger be
subject to any liabilities. As of the time of the Merger, the GMI
Rights will not have been separated from the stock to which they
relate.
13. GMI has not owned, directly or indirectly, any stock of
Ralcorp since Ralcorp's inception. Nor, during the past five years,
has it owned, directly or indirectly, any stock of Ralston Purina
Company.
14. GMI has no plan or intention to cause Ralcorp to issue
additional shares of its stock following the Merger, so as to result
in GMI losing "control" of Ralcorp within the meaning of section
368(c) of the Internal Revenue Code (the "Code").
15. Following the Merger, Branded Sub will continue to actively
conduct, independently and with separate employees, the Branded
Cereal/Snacks Business which was conducted prior to the Merger by
New Ralcorp (and, prior to the Reincorporation Merger, by Foods).
16. GMI has no plan or intention following the Merger (i) to
liquidate Ralcorp; (ii) to merge Ralcorp into another corporation;
(iii) to cause Ralcorp to sell or otherwise dispose of any of its
assets (including the stock or assets of Branded Sub), except for
dispositions made in the ordinary course of business; (iv) to sell
or otherwise dispose of any of the Ralcorp stock acquired in the
Merger; or (v) to cause more than 10 percent of the fair market
value of the gross assets of Ralcorp to be attributable to assets
other than the Branded Sub stock.
- 5 -
<PAGE> 36
17. Neither GMI nor GMI Sub is, nor at the Merger will be, (i) an
"investment company" as defined in Code sections 368(a)(2)(F)(iii)
and (iv), or (ii) under the jurisdiction of a court in a Title 11 or
similar case within the meaning of Code section 368(a)(3)(A).
18. No funds of GMI or GMI Sub will be used, directly or
indirectly, to pay cash to Ralcorp stockholders who dissent to the
Merger.
19. No intercorporate indebtedness will exist before the Merger
between GMI and New Ralcorp, or after the Merger between GMI,
Ralcorp or Branded Sub, on the one hand, and New Ralcorp on the
other hand, except for any such indebtedness that may arise out of
(i) indemnification obligations or other post-closing adjustments or
events contemplated by the Merger Agreement, or (ii) transitional
operating and support arrangements under the Ancillary Agreements.
20. Except as may be provided otherwise under the Ancillary
Agreements with respect to certain transitional operational and
support arrangements, payments made following the Distribution in
connection with transactions between New Ralcorp and Ralcorp or
Branded Sub will be for fair market value based on terms and
conditions arrived at by the parties bargaining at arm's length.
21. The payment of cash in lieu of fractional shares of GMI stock
is solely for the purpose of avoiding the expense and inconvenience
to GMI of issuing fractional shares and does not represent
separately bargained-for consideration. The total cash
consideration that will be paid to the Ralcorp stockholders instead
of issuing fractional shares of GMI stock will not exceed one
percent of the total
- 6 -
<PAGE> 37
consideration that will be paid in the Merger to the Ralcorp
stockholders in exchange for their shares of Ralcorp stock. The
fractional share interests of each Ralcorp stockholder will be
aggregated, and the cash-out arrangements are designed so that no
stockholder should receive cash in an amount equal to or greater than
the value of one full share of GMI stock.
22. None of the compensation received by any Ralcorp
stockholder-employee will be separate consideration for, or
allocable to, any shares of Ralcorp stock exchanged by such
stockholder-employee in the Merger. None of the shares of GMI stock
received in the Merger by any Ralcorp stockholder-employee will be
separate consideration for, or allocable to, any employment
agreement. The compensation paid to any Ralcorp
stockholder-employee will be for services actually rendered and will
be commensurate with amounts paid to third parties bargaining at
arm's-length for similar services.
23. There is no plan or intention by GMI, directly or through any
subsidiary corporation, to purchase, redeem or otherwise reacquire
any of its outstanding stock after the Distribution, other than
through stock purchases meeting all of the requirements of section
4.05(1)(b) of Rev. Proc. 96-30.
24. GMI and GMI Sub will each pay their respective expenses
incurred in connection with the Merger, except that GMI and Ralcorp
will share equally expenses incurred for printing and/or mailing of
the Form 10 Registration Statement and the Proxy
Statement-Prospectus filed with the SEC.
25. To the extent, if any, that the Net Assets Adjustment under
Section 2.3 of the Merger Agreement results in a post-Merger payment
by New Ralcorp to Ralcorp,
- 7 -
<PAGE> 38
Ralcorp will utilize the funds from such payment to reduce
intercompany indebtedness, to the extent then existing, of Ralcorp to
GMI or any GMI affiliate.
IN WITNESS WHEREOF, the undersigned have executed this GMI Tax
Representation Letter, on behalf of the corporations named, this 31st day of
January, 1997.
GENERAL MILLS, INC.
By: /s/ Ernest M. Harper, Jr.
___________________________
Ernest M. Harper, Jr.
Vice President
GENERAL MILLS MISSOURI, INC.
By: /s/ Ivy S. Bernhardson
___________________________
Ivy S. Bernhardson
Vice President
- 8 -
