SEC Filings

Definitive proxy statement relating to merger or acquisition

DEFM14A
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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

 

SCHEDULE 14A

Proxy Statement Pursuant to Section 14(a) of the

Securities Exchange Act of 1934

 

 

Filed by the Registrant  ☒                             Filed by a Party other than the Registrant  ☐

Check the appropriate box:

 

  Preliminary Proxy Statement
  Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
  Definitive Proxy Statement
  Definitive Additional Materials
  Soliciting Material Pursuant to §240.14a-12

BellRing Brands, Inc.

(Name of Registrant as Specified In Its Charter)

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

Payment of Filing Fee (Check the appropriate box):

  No fee required.
  Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
  1.  

Title of each class of securities to which transaction applies:

 

     

  2.  

Aggregate number of securities to which transaction applies:

 

     

  3.  

Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):

 

     

  4.  

Proposed maximum aggregate value of transaction:

 

     

  5.  

Total fee paid:

 

     

  Fee paid previously with preliminary materials:
  Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the form or schedule and the date of its filing.
  1.  

Amount previously paid:

 

     

  2.  

Form, Schedule or Registration Statement No.:

 

     

  3.  

Filing Party:

 

     

  4.  

Date Filed:

 

     

 

 

 


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LOGO

LETTER TO STOCKHOLDERS—YOUR VOTE IS VERY IMPORTANT

BellRing Brands, Inc.

2503 S. Hanley Road

St. Louis, Missouri 63144

Dear BellRing Brands, Inc. Stockholder:

You are cordially invited to attend the special meeting of stockholders of BellRing Brands, Inc. (“BellRing”), to be held at 10:00 a.m. Central Time on March 8, 2022. The meeting is being held to vote on actions associated with the separation of BellRing and Post Holdings, Inc. (“Post”). A notice of the special meeting and the proxy statement/prospectus accompany this letter.

BellRing intends to hold the special meeting in person at 2600 S. Hanley Rd., St. Louis, Missouri 63144 and make its list of stockholders entitled to vote at the special meeting available at its corporate headquarters during the 10-day period prior to the date of the special meeting. However, BellRing is sensitive to the public health and travel concerns its stockholders may have and recommendations that public health officials may issue in light of the COVID-19 pandemic. As a result, the board of directors of BellRing (the “BellRing Board of Directors”) may determine to hold the special meeting virtually in addition to, or in lieu of, holding the special meeting in person, and may determine to make its stockholder list available electronically during the 10-day period prior to the date of the special meeting, in addition to, or in lieu of, making it available at its corporate headquarters. In such event, BellRing will announce that fact as promptly as practicable after making this determination, and details on how to participate in the special meeting or access the stockholder list, as applicable, will be made available in the press release announcing such determination and will also be posted on its website at https://bellring.com. BellRing encourages you to check its website prior to the special meeting if you plan to attend. Any such announcement would also be filed with the Securities and Exchange Commission as additional proxy soliciting material.

After careful consideration, based on the recommendation of a special committee of independent and disinterested directors of the BellRing Board of Directors (the “BellRing Special Committee”), the BellRing Board of Directors has approved a transaction agreement and plan of merger (the “transaction agreement”) among BellRing, Post, BellRing Distribution, LLC (“New BellRing”) and BellRing Merger Sub Corporation (“Merger Sub”). On October 26, 2021, BellRing, Post, New BellRing and Merger Sub entered into the transaction agreement that provides for, among other things, the merger of Merger Sub with and into BellRing (the “merger”), with BellRing surviving and becoming a subsidiary of New BellRing, a new public holding company and the successor issuer to BellRing.

Prior to the completion of the transactions contemplated by the transaction agreement, Post will cause New BellRing to convert into a Delaware corporation and provide for the authorization and issuance of shares of New BellRing Common Stock. Post will distribute to the holders of common stock of Post, par value $0.01 per share (“Post Common Stock”) a number of shares of New BellRing Common Stock to be determined by Post in its sole discretion but, in any event, equal to at least 80.1% of the then-outstanding shares of New BellRing Common Stock (the “distribution,” and such number of shares distributed, the “distributed amount”) by means of a pro rata distribution by Post of the distributed amount of shares of New BellRing Common Stock then owned beneficially and of record by Post (the “spin-off”). The distribution of 80.1% of the then-outstanding shares of New BellRing Common Stock is expected to represent the distribution of 78,076,819 shares (with an estimated value of approximately $2.024 billion based on the closing price on the New York Stock Exchange (the “NYSE”) of the shares of Class A common stock of BellRing, par value $0.01 per share (“BellRing Class A Common Stock”) as of January 14, 2022 of $25.92).


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Following the distribution, Merger Sub and BellRing will complete the merger. Pursuant to the merger, each share of BellRing Class A Common Stock outstanding immediately prior to the merger will be converted into the right to receive (i) an amount of per share cash consideration equal to a pro rata portion of the amount by which the aggregate principal amount of New BellRing’s newly issued debt securities and senior secured term loan credit facility and/or revolving credit facility exceeds the amount of cash required to repay the outstanding indebtedness of BellRing under its credit agreement (as described further in the proxy statement/prospectus accompanying this letter) and (ii) one share of New BellRing Common Stock (collectively, the “merger consideration”). The share consideration is estimated to be approximately $1.008 billion in value of New BellRing Common Stock (calculated based on the closing price of $25.92 on the NYSE of BellRing Class A Common Stock as of January 14, 2022, and assuming the issuance of 38,887,851 shares of New BellRing Common Stock to BellRing stockholders (based on the number of outstanding shares of BellRing Class A Common Stock on January 14, 2022)).

Immediately following the completion of the transactions contemplated by the transaction agreement, assuming that Post distributes 80.1% of the shares of New BellRing Common Stock held by it in connection with the distribution, (i) holders of shares of BellRing Class A Common Stock as of immediately prior to the merger are expected to own approximately 28.5% of the outstanding shares of New BellRing Common Stock, (ii) holders of shares of Post Common Stock as of immediately prior to the distribution are expected to own approximately 57.3% of the outstanding shares of New BellRing Common Stock, and (iii) Post is expected to own approximately 14.2% of the outstanding shares of New BellRing Common Stock.

The New BellRing Common Stock is expected to be listed on the NYSE under the ticker symbol “BRBR”.

These are very important transactions, and the special meeting is being called to ask such stockholders to consider and vote on (i) a proposal to adopt the transaction agreement in accordance with its terms and the Delaware General Corporation Law (the “DGCL” and, such proposal, the “transaction agreement proposal”) and (ii) a proposal to adjourn or postpone the special meeting, if necessary or appropriate, to solicit additional proxies if there are not sufficient votes at the time of the special meeting to adopt the transaction agreement in accordance with its terms and the DGCL (such proposal, the “adjournment proposal” and, together with the transaction agreement proposal, the “proposals”). Information about the special meeting and the specifics of the proposed transactions is contained in the proxy statement/prospectus accompanying this letter. We urge you to read this proxy statement/prospectus, and the documents incorporated by reference into this proxy statement/prospectus, carefully and in their entirety. In particular, please see the section of this proxy statement/prospectus entitled “Risk Factors” beginning on page 29.

The transactions are conditioned upon, among other things, the approval of (i) holders of a majority in voting power of the outstanding shares of BellRing Class A Common Stock and Class B common stock of BellRing, par value $0.01 per share (“BellRing Class B Common Stock” and, together with the BellRing Class A Common Stock, the “BellRing Common Stock”) and (ii) holders (other than Post, New BellRing or any of their respective affiliates) of a majority in voting power of the outstanding shares of BellRing Common Stock (other than shares of BellRing Common Stock owned or controlled by Post, New BellRing or any of their respective affiliates). Pursuant to the transaction agreement, Post, which currently beneficially owns the sole outstanding share of BellRing Class B Common Stock representing 67% of the total voting power of the outstanding BellRing Common Stock, has agreed to vote such share in favor of the adoption of the transaction agreement.

The BellRing Special Committee was formed for the purpose of evaluating the transactions contemplated by the transaction agreement. The BellRing Special Committee has unanimously (i) determined that the transaction agreement and the transactions contemplated therein, including the merger, are advisable and in the best interests of BellRing and its stockholders (other than Post, New BellRing or any of their respective affiliates), (ii) declared advisable and in the best interests of BellRing and its stockholders (other than Post, New BellRing or any of their respective affiliates) that BellRing enter into the transaction agreement and (iii) recommended that the BellRing Board of Directors approve and declare advisable the transaction agreement and approve the execution, delivery and performance of the transaction agreement and the completion of the transactions contemplated therein, including the merger, and recommend to BellRing stockholders that they adopt the transaction agreement.


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The BellRing Board of Directors, based on the recommendation of the BellRing Special Committee, has unanimously (i) determined that the transaction agreement and the transactions contemplated therein, including the merger, are advisable and in the best interests of BellRing and its stockholders, (ii) approved and declared advisable the transaction agreement and approved the execution, delivery and performance of the transaction agreement and the completion of the transactions contemplated therein, including the merger, and (iii) directed that the transaction agreement be submitted to BellRing stockholders for adoption and recommended that stockholders of BellRing adopt the transaction agreement.

Your vote on these matters is very important, regardless of the number of shares you own. Whether or not you plan to attend the special meeting, please vote as soon as possible to make sure that your shares are represented at the special meeting. If you do not vote, it will have the same effect as voting against the transaction agreement.

The BellRing Board of Directors, based on the recommendation of the BellRing Special Committee, has approved and declared advisable the transaction agreement and recommends that you vote “FOR” the proposals.

We look forward to successfully completing these transactions.

Sincerely,

/s/ Darcy Horn Davenport

Darcy Horn Davenport

President and Chief Executive Officer

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these transactions or the New BellRing Common Stock to be issued in the merger or determined whether this proxy statement/prospectus is accurate or adequate. Any representation to the contrary is a criminal offense.

This proxy statement/prospectus is dated February 3, 2022 and is expected first to be mailed to stockholders on or about that date.


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NOTICE OF SPECIAL MEETING OF STOCKHOLDERS

BellRing Brands, Inc.

2503 S. Hanley Road

St. Louis, Missouri 63144

February 3, 2022

Notice is hereby given that BellRing will hold a special meeting of its stockholders on March 8, 2022 at 10:00 a.m. Central Time.

The purpose of the special meeting is to consider and act upon the following:

 

  1.

to adopt the transaction agreement in accordance with its terms and the DGCL; and

 

  2.

to adjourn or postpone the special meeting, if necessary or appropriate, to solicit additional proxies if there are not sufficient votes at the time of the special meeting to adopt the transaction agreement in accordance with its terms and the DGCL.

BellRing intends to hold the special meeting in person at 2600 S. Hanley Rd., St. Louis, Missouri 63144 and make its list of stockholders entitled to vote at the special meeting available at its corporate headquarters during the 10-day period prior to the date of the special meeting. However, BellRing is sensitive to the public health and travel concerns its stockholders may have and recommendations that public health officials may issue in light of the COVID-19 pandemic. As a result, the BellRing Board of Directors may determine to hold the special meeting virtually in addition to, or in lieu of, holding the special meeting in person, and may determine to make its stockholder list available electronically during the 10-day period prior to the date of the special meeting, in addition to, or in lieu of, making it available at the corporate headquarters. In such event, BellRing will announce that fact as promptly as practicable after making this determination, and details on how to participate in the special meeting or access the stockholder list, as applicable, will be made available in the press release announcing such determination and will also be posted on its website at https://bellring.com. BellRing encourages you to check its website prior to the special meeting if you plan to attend. Any such announcement would also be filed with the Securities and Exchange Commission as additional proxy soliciting material.

The close of business on February 1, 2022 has been fixed as the record date for the determination of stockholders entitled to receive notice of and to vote at the special meeting or any adjournment or postponement thereof. This notice of the meeting and the proxy statement/prospectus and proxy card are first being sent or made available to stockholders on or about February 3 , 2022.

The BellRing Special Committee has unanimously (i) determined that the transaction agreement and the transactions contemplated therein, including the merger, are advisable and in the best interests of BellRing and its stockholders (other than Post, New BellRing or any of their respective affiliates), (ii) declared advisable and in the best interests of BellRing and its stockholders (other than Post, New BellRing or any of their respective affiliates) that BellRing enter into the transaction agreement and (iii) recommended that the BellRing Board of Directors approve and declare advisable the transaction agreement and approve the execution, delivery and performance of the transaction agreement and the completion of the transactions contemplated therein, including the merger, and recommend to BellRing stockholders that they adopt the transaction agreement.

The BellRing Board of Directors, based on the recommendation of the BellRing Special Committee, has unanimously (i) determined that the transaction agreement and the transactions contemplated therein, including the merger, are advisable and in the best interests of BellRing and its stockholders, (ii) approved and declared advisable the transaction agreement and approved the execution, delivery and performance of the transaction agreement and the completion of the transactions contemplated therein, including the merger, and (iii) directed that the transaction agreement be submitted to BellRing stockholders for adoption and recommended that stockholders of BellRing adopt the transaction agreement.


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The BellRing Board of Directors, based on the recommendation of the BellRing Special Committee, recommends that you vote “FOR” the transaction agreement proposal and “FOR” the adjournment proposal.

If the transaction agreement proposal is not approved, the transactions cannot be completed.

Your vote is important. Please note that if you hold your shares through a bank, broker or other nominee, your bank, broker or other nominee cannot vote your shares on any matter at the special meeting in the absence of your specific instructions as to how to vote. In order for your vote to be counted, please make sure that you submit your vote to your bank, broker or other nominee.

 

By order of the Board of Directors,
  /s/ Craig L. Rosenthal
  Craig L. Rosenthal
  Senior Vice President, General Counsel and Secretary
 

 

St. Louis, Missouri

  February 3, 2022


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ADDITIONAL INFORMATION

This proxy statement/prospectus incorporates by reference important business and financial information about BellRing from documents that are not included in or delivered with this proxy statement/prospectus. This information is available to you without charge upon request. For a more detailed description of the information incorporated by reference into this proxy statement/prospectus and how you may obtain it, please see the section of the accompanying proxy statement/prospectus entitled “Where You Can Find More Information; Incorporation by Reference” beginning on page 129.

Any person may request a copy of the documents incorporated by reference into this proxy statement/prospectus, without charge, by written or telephonic request, directed to BellRing or its proxy solicitor at the following contacts:

BellRing Brands, Inc.

2503 S. Hanley Road

St. Louis, Missouri 63144

Telephone: (314) 644-7600

Georgeson LLC

1290 Avenue of the Americas, 9th Floor

New York, New York 10104

Telephone: (866) 482-5136 (toll free)

You also may obtain any of the documents incorporated by reference into this proxy statement/prospectus from BellRing or from the Securities and Exchange Commission (the “SEC”) through the SEC’s website at www.sec.gov. Documents of BellRing are also available from BellRing at bellring.com, without charge, excluding any exhibits to those documents that are not specifically incorporated by reference as an exhibit to this proxy statement/prospectus. The information contained in BellRing’s website and the website of any other entity referred to herein is for additional information purposes only and is not incorporated by reference. The information about how you can obtain documents that are incorporated by reference into this proxy statement/prospectus at these websites is being provided only for your convenience.

To obtain timely delivery of the documents, you must request them no later than five business days before the date of the special meeting or no later than March 1, 2022.

 

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ABOUT THIS PROXY STATEMENT/PROSPECTUS

This document, which forms a part of a registration statement on Form S-4 filed with the SEC by New BellRing, constitutes a prospectus of New BellRing under Section 5 of the Securities Act of 1933, as amended (the “Securities Act”), with respect to the shares of New BellRing Common Stock to be issued to BellRing stockholders in the merger. BellRing’s website address is provided as an inactive textual reference only. Information contained on BellRing’s website is for additional information purposes only and is not incorporated by reference into this prospectus, and you should not consider such additional information as part of this prospectus. This document also constitutes a proxy statement under Section 14(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules thereunder, and a notice of meeting with respect to the special meeting of BellRing stockholders.

No one has been authorized to provide you with information that is different from that contained in, or incorporated by reference into, this proxy statement/prospectus. None of BellRing, Post or New BellRing takes any responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. This proxy statement/prospectus is dated February 3, 2022. You should not assume that the information contained in this proxy statement/prospectus is accurate as of any date other than that date. You should not assume that the information incorporated by reference into this proxy statement/prospectus is accurate as of any date other than the date of such information.

This proxy statement/prospectus does not constitute an offer to sell, or the solicitation of an offer to buy, any securities, or the solicitation of a proxy, in any jurisdiction to or from any person to whom it is unlawful to make any such offer or solicitation.

 

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TABLE OF CONTENTS

 

QUESTIONS AND ANSWERS ABOUT THE TRANSACTIONS AND THE SPECIAL MEETING

     1  

SUMMARY

     17  

SUMMARY HISTORICAL FINANCIAL DATA

     27  

RISK FACTORS

     29  

CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

     38  

UNAUDITED PRO FORMA COMBINED FINANCIAL STATEMENTS OF NEW BELLRING

     40  

MARKET PRICE INFORMATION

     45  

DESCRIPTION OF THE COMPANIES

     46  

THE TRANSACTIONS

     48  

APPRAISAL RIGHTS

     70  

BOARD OF DIRECTORS AND MANAGEMENT OF NEW BELLRING FOLLOWING THE PROPOSED TRANSACTIONS

     76  

MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES

     77  

THE TRANSACTION AGREEMENT AND PLAN OF MERGER

     81  

ANCILLARY AGREEMENTS

     97  

CERTAIN INFORMATION RELATING TO NEW BELLRING AND BELLRING

     101  

DESCRIPTION OF NEW BELLRING CAPITAL STOCK

     102  

NEW BELLRING SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

     108  

BELLRING SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

     109  

CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

     112  

COMPARISON OF RIGHTS OF NEW BELLRING AND BELLRING STOCKHOLDERS BEFORE AND AFTER THE TRANSACTIONS

     113  

THE SPECIAL MEETING

     119  

PROPOSAL NO. 1—THE TRANSACTION PROPOSAL

     125  

PROPOSAL NO. 2—THE ADJOURNMENT PROPOSAL

     126  

LEGAL MATTERS

     127  

EXPERTS

     128  

HOUSEHOLDING OF PROXY MATERIALS

     129  

WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BY REFERENCE

     130  

ANNEX A. TRANSACTION AGREEMENT AND PLAN OF MERGER

     A-1  

ANNEX B. FORM OF BELLRING BRANDS, INC. CERTIFICATE OF INCORPORATION

     B-1  

ANNEX C. FORM OF BELLRING BRANDS, INC. BYLAWS

     C-1  

ANNEX D. FORM OF AMENDED AND RESTATED MASTER SERVICES AGREEMENT

     D-1  

ANNEX E. FORM OF REGISTRATION RIGHTS AGREEMENT

     E-1  

ANNEX F. FORM OF TAX MATTERS AGREEMENT

     F-1  

ANNEX G. DELAWARE GENERAL CORPORATION LAW SECTION 262

     G-1  

 

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QUESTIONS AND ANSWERS ABOUT THE TRANSACTIONS AND THE SPECIAL MEETING

The following are some of the questions that you may have and answers to those questions. These questions and answers, as well as the following summary, are not meant to be a substitute for the information contained in or incorporated by reference into this proxy statement/prospectus, and this information is qualified in its entirety by the more detailed descriptions and explanations contained elsewhere in this proxy statement/prospectus. You are urged to read this proxy statement/prospectus in its entirety prior to making any decision. Additional important information is contained in the Annexes to, and the documents incorporated by reference into, this proxy statement/prospectus. For a description of, and instructions as to how to obtain, this additional information, please see the section of this proxy statement/prospectus entitled “Where You Can Find More Information; Incorporation by Reference” beginning on page 130.

Q: Why am I receiving this document?

A: BellRing Brands, Inc. (“BellRing”), Post Holdings, Inc. (“Post”), BellRing Distribution, LLC (“New BellRing”) and BellRing Merger Sub Corporation (“Merger Sub”) have entered into the transaction agreement and plan of merger (the “transaction agreement”) pursuant to which, among other things, (i) Post will distribute a portion of its interest in BellRing to Post’s shareholders and (ii) Merger Sub will merge with and into BellRing, with BellRing surviving and becoming a subsidiary of New BellRing, a new public holding company and the successor issuer to BellRing. In order to complete the transactions contemplated by the transaction agreement, (x) holders of a majority in voting power of the outstanding shares of BellRing Class A Common Stock and Class B common stock of BellRing, par value $0.01 per share (“BellRing Class B Common Stock” and, together with the BellRing Class A Common Stock, the “BellRing Common Stock”) and (y) holders (other than Post, New BellRing or any of their respective affiliates) of a majority in voting power of the outstanding shares of BellRing Common Stock must affirmatively vote in favor of adoption of the transaction agreement (together, the “BellRing stockholder approval”). BellRing is holding a special meeting of its stockholders (the “special meeting”) in order to obtain the BellRing stockholder approval. The parties cannot complete the transactions unless the BellRing stockholder approval has been obtained.

This proxy statement/prospectus includes important information about the transactions and the special meeting. BellRing stockholders should read this proxy statement/prospectus, and the documents incorporated by reference into this proxy statement/prospectus, carefully and in their entirety. A copy of the transaction agreement is attached as Annex A to this proxy statement/prospectus. The enclosed voting materials allow BellRing stockholders to submit a proxy to vote their shares without attending the special meeting. The vote of BellRing stockholders is very important and BellRing encourages its stockholders to submit a proxy to vote their shares as soon as possible. Please follow the instructions set forth on the enclosed proxy card (or on the voting instruction form provided by the record holder if shares of BellRing Common Stock are held in the name of a bank, broker or other nominee).

 

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Q: What are the transactions described in this document?

A: BellRing and Post, the beneficial owner of (i) the sole outstanding share of BellRing Class B Common Stock currently representing 67% of the total voting power of the outstanding BellRing Common Stock and (ii) approximately 97.5 million nonvoting common units (the “BellRing LLC Units”) of BellRing Brands, LLC (“BellRing LLC”), a subsidiary of BellRing (which represented approximately 71.5% of the outstanding BellRing LLC Units as of January 14, 2022, the most recent practicable date prior to the date of this proxy statement/prospectus), have entered into a transaction agreement involving the separation of BellRing from Post through the contribution of Post’s interests in BellRing and BellRing LLC to New BellRing, which initially will be 100% owned by Post, and the distribution of a portion of New BellRing Common Stock to holders of Post Common Stock. The transaction agreement includes a separation transaction by Post, a debt exchange, a distribution and a merger. Each set of transactions is summarized below:

The Separation

Post Contribution

Pursuant to the transaction agreement and in connection with a series of corporate separation transactions (the “separation”), Post will contribute to New BellRing (i) all of the BellRing LLC Units held by it and the sole outstanding share of BellRing Class B Common Stock and (ii) an amount in cash equal to the amount of the Post negative capital account, in exchange for (x) senior unsecured notes issued by New BellRing (such notes, the “New BellRing debt securities”) in an amount described under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—New BellRing Debt Financing” beginning on page 81 and (y) limited liability company interests of New BellRing.

The “Post negative capital account” is an amount equal to the estimated taxable gain Post would realize if Post were to dispose of its interest in BellRing LLC for no consideration other than a release of Post’s share of BellRing LLC’s liabilities allocable to Post under the U.S. Internal Revenue Code (the “IRC”), as determined by Post in its reasonable discretion. The amount of the Post negative capital account will be determined prior to the date on which the New BellRing debt financing transactions described under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—New BellRing Debt Financing” beginning on page 75 are pursued, and therefore is not known as of the date of this proxy statement/prospectus. As of September 30, 2021, the most recent practicable date prior to the date of this proxy statement/prospectus, Post’s good faith estimate of the Post negative capital account, assuming the disposal of its interest in BellRing LLC occurred on such date, is approximately $569.3 million.

Pursuant to the transaction agreement, Post will also undertake certain other transactions to effect the separation as described in the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—The Separation—Other Separation Transactions” beginning on page 81.

After giving effect to the separation, New BellRing will own the sole outstanding share of BellRing Class B Common Stock and all of the BellRing LLC Units beneficially owned by Post prior to the separation.

New BellRing Debt Financing

New BellRing Maximum Debt Amount

The aggregate principal amount of the indebtedness that will be incurred by New BellRing in connection with the transactions, including the New BellRing debt securities and the New BellRing loans, will not exceed the New BellRing maximum debt amount. The “New BellRing maximum debt amount” is an amount, determined by Post in good faith in consultation with BellRing, not to exceed the lesser of (i) $1 billion and (ii) the maximum amount of indebtedness that would result in the New BellRing leverage ratio not exceeding 4.00x on a pro forma basis after giving effect to the transactions. The “New BellRing leverage ratio” is the ratio of New BellRing and

 

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its subsidiaries’ consolidated indebtedness to New BellRing and its subsidiaries’ consolidated earnings before interest, taxes, depreciation and amortization, in each case, calculated in a manner consistent with the definition of “Total Net Leverage Ratio” under the BellRing LLC credit agreement for the most recently completed four fiscal quarters of BellRing for which financial statements are available.

The New BellRing maximum debt amount will depend on various factors, including the earnings of BellRing and its subsidiaries, and will be determined prior to the date on which the New BellRing debt financing transactions are pursued. Accordingly, the New BellRing maximum debt amount is not known as of the date of this proxy statement/prospectus.

New BellRing Debt Securities

Pursuant to the transaction agreement, prior to the distribution, New BellRing will issue to Post the New BellRing debt securities. The aggregate principal amount of the New BellRing debt securities (the “New BellRing debt securities amount”) issued to Post will equal (i) the Post negative capital account plus (ii) (x) the excess of the aggregate principal amount of the New BellRing debt over the BellRing LLC debt repayment amount multiplied by (y) the percentage of the outstanding BellRing LLC Units held by Post. As of January 14, 2022, the most recent practicable date prior to the date of this proxy statement/prospectus, Post held approximately 71.5% of the outstanding BellRing LLC Units. Certain additional terms of the New BellRing debt securities are described in the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—New BellRing Debt Financing—New BellRing Debt Securities” beginning on page 82.

Post Debt Exchange

Following the issuance of such New BellRing debt securities but prior to the distribution, Post will exchange the New BellRing debt securities issued to it by New BellRing for satisfaction of certain debt obligations of Post in the debt exchange. Following the debt exchange, the exchanging parties, or their affiliates, are expected to sell the New BellRing debt securities to third-party investors. Certain additional terms of the debt exchange are described in the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—New BellRing Debt Financing—Post Debt Exchange” beginning on page 82.

New BellRing Loans

In addition to the New BellRing debt securities and pursuant to the transaction agreement, New BellRing will enter into a senior secured term loan credit facility and/or revolving credit facility under the terms described in the transaction agreement (the “New BellRing loans,” and together with the New BellRing debt securities, the “New BellRing debt”). The aggregate principal amount of the New BellRing loans will not exceed, together with the New BellRing debt securities amount, the New BellRing maximum debt amount. Certain additional terms of the New BellRing loans are described in the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—New BellRing Debt Financing—New BellRing Loans” beginning on page 82.

As a result of these financing transactions, the indebtedness of New BellRing immediately following the completion of the transactions is expected to be greater than the indebtedness of BellRing as of the date of this proxy statement/prospectus.

The Distribution

Following the separation, and prior to the effective time of the merger, Post will distribute at least 80.1% of the then-outstanding shares of New BellRing Common Stock (the “distribution,” and, such number of shares distributed, the “distributed amount”) by means of either (i) a pro rata distribution by Post of the distributed amount of shares of New BellRing Common Stock then owned beneficially and of record by Post (the “spin-off”) or (ii) an offer to exchange outstanding shares of Post Common Stock held by such holders for shares of New

 

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BellRing Common Stock (the “exchange offer”). If Post elects to effect the distribution as an exchange offer and the exchange offer is not fully subscribed, Post will distribute the remaining shares of New BellRing Common Stock to holders of shares of Post Common Stock in order for the total number of shares distributed to be equal to at least the distributed amount (the “clean-up spin-off”). As of the date of this proxy statement/prospectus, Post expects to distribute the shares of New BellRing Common Stock to shareholders of Post pursuant to a spin-off.

In addition, within twelve months following the distribution, Post may, in its sole discretion, transfer any or all of its remaining shares of New BellRing Common Stock in exchange for certain debt obligations or otherwise to its shareholders on terms to be determined by Post (the “equity exchange”).

The Merger

Following the completion of the separation and distribution, Merger Sub will merge with and into BellRing (the “merger”), and BellRing will be the surviving corporation in the merger (the effective time of such merger, the “merger effective time”). As a result of the merger, BellRing will become a direct, wholly owned subsidiary of New BellRing, with New BellRing as the new public parent company of BellRing.

Pursuant to the merger, holders of shares of BellRing Class A Common Stock will be entitled to receive, with respect to each share of BellRing Class A Common Stock, (i) the per share cash consideration and (ii) one share of New BellRing Common Stock. The “per share cash consideration” will be an amount in cash equal to (i) the aggregate cash consideration amount divided by (ii) the number of shares of BellRing Class A Common Stock issued and outstanding as of immediately prior to the merger effective time. The “aggregate cash consideration amount” will be an amount equal to (x) the excess of the aggregate principal amount of the New BellRing debt over the BellRing LLC debt repayment amount multiplied by (y) the percentage of the outstanding BellRing LLC Units that is held by BellRing. An example calculation of the per share cash consideration under certain assumed conditions is set forth under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—Merger Consideration” beginning on page 84.

The separation, debt exchange, distribution and merger are referred to collectively as the “transactions.” The terms of the transactions are set forth in the transaction agreement, which is described in this proxy statement/prospectus and attached to this proxy statement/prospectus as Annex A.

Q: Who is entitled to vote at the special meeting?

A: Only holders of BellRing Common Stock as of the record date for the special meeting, which is the close of business on February 1, 2022, are entitled to receive notice of, and vote at, the special meeting or any adjournment or postponement thereof. As of the close of business on the BellRing record date, there were 38,887,851 shares of BellRing Class A Common Stock and one share of BellRing Class B Common Stock issued and outstanding.

Q: What am I being asked to vote on?

A: BellRing stockholders are being asked to adopt the transaction agreement. As part of the transactions, Merger Sub will merge with and into BellRing, with BellRing as the surviving corporation. Following the merger, BellRing will be a wholly owned subsidiary of New BellRing, which will be a new public holding company and the successor issuer to BellRing. Please see the section of this proxy statement/prospectus entitled “Proposal No. 1—The Transaction Agreement Proposal” on page 125.

You are also being asked to vote on the adjournment or postponement of the special meeting, if necessary or appropriate, to solicit additional proxies if there are not sufficient votes at the time of the special meeting to adopt the transaction agreement in accordance with its terms and the DGCL. Please see the section of this proxy statement/prospectus entitled “Proposal No. 2—The Adjournment Proposal” on page 126.

No vote of Post shareholders of any class is required in connection with the transactions. New BellRing stockholders are not being requested to vote on the transactions, which have already been approved by Post as the sole owner of New BellRing prior to the distribution.

 

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Q: How do I attend the special meeting?

A: If you are a stockholder of BellRing, you can attend the special meeting on March 8, 2022 at 10:00 a.m. Central Time. BellRing intends to hold the special meeting in person at 2600 S. Hanley Rd., St. Louis, Missouri 63144.

If your shares of BellRing Common Stock are registered directly in your name with Computershare Trust Company, N.A. as transfer agent for BellRing (the “transfer agent”), you are considered the stockholder of record with respect to those shares. As the stockholder of record, you have the right to vote, or to grant a proxy for your vote, directly to BellRing, or to a third party, to vote at the special meeting. If you choose to vote your shares in person at the special meeting, please bring your enclosed proxy card and current, government-issued photo identification. If your shares of BellRing Common Stock are held by a bank, broker or other nominee, you are considered the beneficial owner of shares held in “street name,” and your bank, broker, or other nominee is considered the stockholder of record with respect to those shares. Your bank, broker or other nominee will provide you, as the beneficial owner, a package describing the procedure for voting your shares. You should follow the instructions provided by them to vote your shares. You are invited to attend the special meeting; however, you may not vote these shares in person at the special meeting unless you bring an account statement or letter from your broker, bank or other nominee indicating that you were the holder of your shares as of February 1, 2022, the record date for the special meeting, or you obtain a signed legal proxy, executed in your favor, from your bank, broker, or other nominee that holds your shares, giving you the right to vote the shares in person at the special meeting, and you bring the signed legal proxy to the special meeting.

However, BellRing is sensitive to the public health and travel concerns its stockholders may have and recommendations that public health officials may issue in light of the COVID-19 pandemic. As a result, the BellRing Board of Directors may determine to hold the special meeting virtually in addition to, or in lieu of, holding the special meeting in person. In such event, BellRing will announce that fact as promptly as practicable after making this determination, and details on how to participate in the special meeting or access the stockholder list, as applicable, will be made available in the press release announcing such determination and will also be posted on its website at https://bellring.com. BellRing encourages you to check its website prior to the special meeting if you plan to attend. Any such announcement would also be filed with the SEC as additional proxy soliciting material.

Q: What will I receive in the merger?

A: Pursuant to the merger, holders of shares of BellRing Class A Common Stock will be entitled to receive, with respect to each share of BellRing Class A Common Stock, (i) the per share cash consideration and (ii) one share of New BellRing Common Stock.

The “per share cash consideration” will be an amount in cash equal to (i) the aggregate cash consideration amount divided by (ii) the number of shares of BellRing Class A Common Stock issued and outstanding as of immediately prior to the merger effective time. The “aggregate cash consideration amount” will be an amount equal to (x) the excess of the aggregate principal amount of the New BellRing debt over the BellRing LLC debt repayment amount multiplied by (y) the percentage of the outstanding BellRing LLC Units that is held by BellRing. As of January 14, 2022, the most recent practicable date prior to the date of this proxy statement/prospectus, BellRing held approximately 28.5% of the outstanding BellRing LLC Units.

The following table sets forth the per share cash consideration under the “Illustrative Per Share Cash Consideration” column based on an assumed aggregate principal amount of the New BellRing debt under the “Principal Amount of New BellRing Debt” column set forth opposite such amount. Each of the illustrative per share cash consideration amounts is also based on the following additional assumptions:

 

   

The BellRing LLC debt repayment amount will be $520 million (which was the BellRing LLC debt repayment amount as of January 14, 2022, the most recent practicable date prior to the date of this proxy statement/prospectus).

 

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The percentage of the outstanding BellRing LLC Units that is held by BellRing will be 28.5%, which was the percentage held by BellRing as of January 14, 2022, the most recent practicable date prior to the date of this proxy statement/prospectus; and

 

   

The number of shares of BellRing Class A Common Stock issued and outstanding will be 38,887,851, which was the number of issued and outstanding shares as of January 14, 2022, the most recent practicable date prior to the date of this proxy statement/prospectus.

There can be no assurance that these assumptions will prove to be accurate, and the actual per share cash consideration will likely differ, and may differ materially, from the per share cash consideration shown under the “Illustrative Per Share Cash Consideration” column.

 

Principal Amount of New BellRing Debt

  

Illustrative Per Share Cash Consideration

$950 million

  

$3.15

$975 million

  

$3.33

$1 billion

  

$3.52

Q: What will Post receive in the transactions?

A: Pursuant to the transaction agreement and in connection with the separation, Post will contribute to New BellRing (i) all of the BellRing LLC Units held by it and the sole outstanding share of BellRing Class B Common Stock and (ii) an amount in cash equal to the Post negative capital account, in exchange for (x) New BellRing debt securities in an amount described under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—New BellRing Debt Financing” beginning on page 81 and (y) limited liability company interests of New BellRing. Post intends to transfer the New BellRing indebtedness received in the separation to certain of Post’s existing creditors in exchange for satisfaction of certain of Post’s outstanding indebtedness. The “Post negative capital account” is discussed in the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger” beginning on page 80. As of September 30, 2021, the most recent practicable date prior to the date of this proxy statement/prospectus, Post’s good faith estimate of the Post negative capital account, assuming the disposal of its interest in BellRing LLC occurred on such date, is approximately $569.3 million.

Q: What will happen to my BellRing equity awards in the transactions?

A: At the effective time of the merger, New BellRing will assume all outstanding unexercised and unexpired options to purchase shares of BellRing Class A Common Stock and outstanding restricted stock units (“RSUs”) with respect to shares of BellRing Class A Common Stock outstanding under the BellRing Brands, Inc. 2019 Long-Term Incentive Plan (the “2019 BellRing LTIP”). The equity awards under the 2019 BellRing LTIP will continue to have and be subject to the same terms and conditions in the 2019 BellRing LTIP and related agreements and New BellRing will assume all performance obligations of BellRing under the 2019 BellRing LTIP and related agreements. However, such equity awards will be in reference to the number of shares of New BellRing Common Stock equal to the number of shares of BellRing Class A Common Stock that were subject to the BellRing equity award immediately prior to the effective time of the merger, and such awards may also be adjusted to account for the cash consideration payable to holders of BellRing Class A Common Stock in the merger.

Q: Who will control New BellRing after the transactions?

A: It is not expected that any person or group will hold a majority interest in New BellRing immediately following the completion of the transactions. Because Post currently owns more than 50% of the voting power of all of the outstanding BellRing Common Stock, BellRing is a “controlled company” under the NYSE corporate governance standards and is eligible to rely on certain exemptions from the NYSE corporate governance requirements; however, BellRing does not currently rely on any of these exemptions. Following the transactions, New BellRing will not be a “controlled company.”

 

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Q: How will New BellRing Common Stock trade?

A: Following the completion of the transactions, shares of New BellRing Common Stock are expected to trade on the NYSE under the ticker symbol “BRBR”.

Q: Will New BellRing as the successor public company have a new name?

A: No. In connection with the its conversion into a Delaware corporation and the merger, New BellRing will change its name to BellRing Brands, Inc., and BellRing will change its name to BellRing Intermediate Holdings, Inc.

Q: How will my ownership in BellRing change as a result of the transactions?

A: After the transactions, you will own shares of New BellRing Common Stock and will not own any shares of BellRing Common Stock.

Immediately following the completion of the transactions, assuming that Post distributes 80.1% of the shares of New BellRing Common Stock held by it in connection with the distribution, (x) holders of shares of BellRing Class A Common Stock as of immediately prior to the merger are expected to own approximately 28.5% of the outstanding shares of New BellRing Common Stock, (y) holders of shares of Post Common Stock as of immediately prior to the distribution are expected to own approximately 57.3% of the outstanding shares of New BellRing Common Stock, and (z) Post is expected to own approximately 14.2% of the outstanding shares of New BellRing Common Stock.

Q: How will my rights in BellRing change as a result of the transactions?

A: After the transactions, your rights as a stockholder will be governed by the certificate of incorporation and bylaws of New BellRing, rather than the current amended and restated certificate of incorporation and amended and restated bylaws of BellRing. However, under the governing documents of New BellRing, your rights as a stockholder of New BellRing will be substantially similar to your rights as a stockholder of BellRing. Please see the section of this proxy statement/prospectus entitled “Comparison of Rights of New BellRing and BellRing Stockholders Before and After the Transactions” beginning on page 113.

Q: Will the transactions affect the current operations of BellRing? What about the future?

A: The transactions are not expected to have a material effect on the conduct of day-to-day operations by BellRing. Upon completion of the transactions, it is expected that Robert V. Vitale, the current Executive Chairman of BellRing, would become Executive Chairman of New BellRing and Darcy Horn Davenport, the current President and Chief Executive Officer of BellRing, would become President and Chief Executive Officer of New BellRing. All of the other officers of BellRing are expected to serve in the same positions at New BellRing.

In connection with the transactions, Post, New BellRing, BellRing and BellRing LLC, among other parties, have agreed to amend and restate that certain master services agreement dated as of October 21, 2019, pursuant to which Post will continue to provide, or cause to be provided, certain services to New BellRing following the completion of the transactions. In general, the services to be provided by Post will begin on the date of the completion of the transactions and will continue for the periods specified in the amended and restated master services agreement to be entered into among Post, New BellRing, BellRing (as surviving corporation of the merger) and BellRing LLC at the completion of the transactions (the “amended and restated master services agreement”), but not to exceed three years, subject to any subsequent extension or earlier termination as agreed to by the parties. Please see the section of this proxy statement/prospectus entitled “Ancillary Agreements—Amended and Restated Master Services Agreement” beginning on page 96.

 

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Q: Will there be any change to the BellRing Board of Directors after the transactions?

A: It is expected that all of the directors of BellRing as of immediately prior to the transactions will be directors of New BellRing at the completion of the merger.

Q: What is the accounting treatment for the transactions?

A: After the completion of the transactions, New BellRing’s consolidated statements of operations will no longer reflect net earnings attributable to noncontrolling interests, which will result in a higher effective tax rate more closely aligned with other C corporations in the United States (the “U.S.”). Furthermore, the noncontrolling interests amount on New BellRing’s consolidated balance sheet immediately prior to completion of the transactions will be reclassified, resulting in a decrease to stockholders’ deficit.

Q: What are the U.S. federal income tax consequences to me of the merger?

A: The merger (or the alternative transaction structure under circumstances described in the transaction agreement) is intended to qualify as a “reorganization” within the meaning of Section 368(a) of the IRC. Completion of the merger is conditioned on, among other things, the receipt by BellRing of a tax opinion from Simpson Thacher & Bartlett LLP (or another nationally recognized accounting firm or law firm), dated the date on which the merger is completed, to the effect that the merger (or the alternative transaction structure under circumstances described in the transaction agreement) will be treated as a “reorganization” within the meaning of Section 368(a) of the IRC or, alternatively, as a transaction qualifying for nonrecognition of gain and loss under Section 351 of the IRC. Provided that the merger (or the alternative transaction structure under circumstances described in the transaction agreement) qualifies as a “reorganization” under Section 368(a) of the IRC, a U.S. holder (as defined in the section of this proxy statement/prospectus entitled “Material U.S. Federal Income Tax Consequences” beginning on page 76) will recognize gain (but not loss) in an amount equal to the lesser of (i) the excess, if any, of (x) the sum of the cash and the fair market value of the New BellRing Common Stock received over (y) such U.S. holder’s tax basis in its BellRing Class A Common Stock and (ii) the amount of cash received by such U.S. holder. Generally, any gain recognized upon the exchange will be capital gain, and any such capital gain will be long-term capital gain if the holding period for such shares of BellRing Class A Common Stock is more than one year. Depending on certain facts specific to such U.S. holder, gain could instead be characterized as ordinary dividend income.

A more detailed discussion of the material U.S. federal income tax consequences of the merger can be found in the section of this proxy statement/prospectus entitled “Material U.S. Federal Income Tax Consequences” beginning on page 76. The tax consequences of the merger to any particular holder of BellRing Class A Common Stock will depend on that stockholder’s particular facts and circumstances. Accordingly, you are urged to consult your tax advisor to determine your tax consequences from the merger, including the effect of any state, local, estate or gift or non-U.S. tax laws and of changes in applicable tax laws.

Q: How will I determine for U.S. federal income tax purposes the tax basis I will have in the shares of New BellRing Common Stock that I receive in the merger?

A: The aggregate tax basis of a U.S. holder (as defined in the section of this proxy statement/prospectus entitled “Material U.S. Federal Income Tax Consequences” beginning on page 76) in the shares of New BellRing Common Stock received will be equal to such U.S. holder’s aggregate tax basis in its BellRing Class A Common Stock surrendered in exchange for the New BellRing Common Stock increased by the amount of taxable gain, if any, such U.S. holder recognizes on the exchange and decreased by the amount of cash received. If a U.S. holder of BellRing Class A Common Stock acquired different blocks of BellRing Class A Common Stock at different times or at different prices, such U.S. holder’s holding period and basis will be determined separately with respect to each block of BellRing Class A Common Stock. Please see the section of this proxy statement/prospectus entitled “Material U.S. Federal Income Tax Consequences” beginning on page 76.

 

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Q: What stockholder approvals are needed in connection with the transactions?

A: Approval of the transaction agreement requires the affirmative vote of (i) holders of a majority in voting power of the outstanding shares of BellRing Common Stock and (ii) holders (other than Post, New BellRing or any of their respective affiliates) of a majority in voting power of the outstanding shares of BellRing Common Stock (other than shares of BellRing Common Stock owned or controlled by Post, New BellRing or any of their respective affiliates), in each case in favor of adoption of the transaction agreement. Pursuant to the transaction agreement, Post has agreed to cause the sole outstanding share of BellRing Class B Common Stock, which is beneficially owned by it and currently represents 67% of the total voting power of the outstanding BellRing Common Stock, to be voted in favor of adoption of the transaction agreement.

No vote of Post shareholders of any class is required in connection with the transactions. New BellRing stockholders are not being requested to vote on the transactions, which have already been approved by Post as the sole owner of New BellRing prior to the distribution.

Q: What is the recommendation of the BellRing Special Committee and the BellRing Board of Directors?

A: On October 26, 2021, the BellRing Special Committee unanimously (i) determined that the transaction agreement and the transactions contemplated therein, including the merger, are advisable and in the best interests of BellRing and its stockholders (other than Post, New BellRing or any of their respective affiliates), (ii) declared advisable and in the best interests of BellRing and its stockholders (other than Post, New BellRing or any of their respective affiliates) that BellRing enter into the transaction agreement and (iii) recommended that the BellRing Board of Directors approve and declare advisable the transaction agreement and approve the execution, delivery and performance of the transaction agreement and the completion of the transactions contemplated therein, including the merger, and recommend to BellRing stockholders that they adopt the transaction agreement.

On October 26, 2021, the BellRing Board of Directors, based on the recommendation of the BellRing Special Committee, unanimously (i) determined that the transaction agreement and the transactions contemplated therein, including the merger, are advisable and in the best interests of BellRing and its stockholders, (ii) approved and declared advisable the transaction agreement and approved the execution, delivery and performance of the transaction agreement and the completion of the transactions contemplated therein, including the merger, and (iii) directed that the transaction agreement be submitted to BellRing stockholders for adoption and recommended that stockholders of BellRing adopt the transaction agreement.

The BellRing Board of Directors, based on the recommendation of the BellRing Special Committee, recommends that you vote “FOR” the transaction agreement proposal and “FOR” the adjournment proposal.

Q: What were the factors that the BellRing Special Committee and the BellRing Board of Directors considered when making determinations about the entry by BellRing into the transaction agreement and when making their respective recommendations?

A: In reaching its determinations and recommendations, the BellRing Special Committee consulted with BellRing management and received advice from its own legal advisor and its own financial advisor, and considered the following potentially positive factors, which are not intended to be exhaustive and are not presented in any relative order of importance:

 

   

the increase in BellRing’s independence of ownership, eliminating Post’s majority voting control of BellRing Common Stock and the BellRing Board of Directors, as well as Post’s majority ownership of the BellRing LLC Units;

 

   

the enhanced independence of governance by BellRing, permitting BellRing to increase or accelerate growth and investment plans, make independent cash flow deployment decisions and consider other strategic alternatives such as mergers and acquisitions;

 

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the enhanced liquidity of BellRing Common Stock in the public trading market by increasing the float of New BellRing’s shares immediately after the transactions are completed as compared to the number of beneficial owners of BellRing Common Stock prior to the transactions;

 

   

the removal of the perceived “overhang” with respect to the BellRing Common Stock that currently exists as a result of Post’s majority voting control of BellRing Common Stock, including the fact that such overhang could be depressing the market price of the BellRing Common Stock;

 

   

the simplification of BellRing’s capital structure and reduction in the reporting and administrative burden of maintaining an additional class of equityholders in BellRing LLC;

 

   

the transactions will allow Post to dispose of a substantial portion of its ownership in BellRing and BellRing LLC in an orderly manner that should be less disruptive to the public trading market for the shares of BellRing Common Stock than open market sales;

 

   

the enhanced attractiveness of BellRing’s equity-based compensation plans, thereby increasing BellRing’s ability to attract and retain quality executives and other employees;

 

   

the ability of BellRing to take advantage of the robust debt financing markets in connection with the incurrence of indebtedness by New BellRing in the transactions;

 

   

the fact that a portion of the merger consideration in connection with the transactions will be payable in cash to holders of BellRing Class A Common Stock; and

 

   

the transactions should allow New BellRing to become eligible for index inclusion because it is expected that, following the completion of the transactions, New BellRing will satisfy the S&P Index criteria related to public float that BellRing does not currently satisfy.

The BellRing Special Committee also considered the following uncertainties, risks and potentially negative factors in its deliberations concerning the transactions, which are not intended to be exhaustive and are not presented in any relative order of importance:

 

   

the incurrence by New BellRing of indebtedness in connection with the transactions could limit New BellRing’s ability to fund working capital, capital expenditures and other general corporate purposes, to accommodate growth by reducing funds otherwise available for other corporate purposes, and to compete and plan for, or react to, changes in its business or industry or economic conditions;

 

   

the restrictions under the New BellRing indebtedness that do not provide New BellRing with maximum flexibility with regard to paying down such indebtedness;

 

   

the risk that the full strategic and financial benefits expected to result from the transactions may not be realized fully or at all or may take longer to realize than expected;

 

   

the provisions of the transaction agreement placing restrictions on BellRing’s operations during the period between the signing of the transaction agreement and the completion of the transactions;

 

   

under the restrictions to be agreed to by New BellRing under the tax matters agreement with Post, including the restrictions that for the two-year period following completion of the transactions, and subject to certain exceptions, New BellRing (i) would be prohibited from entering into any agreement, understanding, arrangement or substantial negotiations pursuant to which any person or persons would, directly or indirectly, acquire or have the right to acquire New BellRing equity interests and (ii) would be prohibited from selling or transferring, or ceasing to actively engage in, its active trade or business for purposes of Section 355(b) of the IRC;

 

   

by becoming independent from Post, BellRing would lose any positive perceptions from which it may benefit as a result of being associated with a company of Post’s stature and industry recognition;

 

   

the possible diversion of management’s time and attention from BellRing’s ongoing business due to the substantial time and effort necessary to complete the transactions;

 

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the fact that the negotiation, consideration and performance of the transactions have required and will require BellRing to incur various costs and expenses; and

 

   

the fact that certain executive officers and directors of BellRing have or may have interests with respect to the transactions in addition to their interests as stockholders of BellRing. Please see the section of this proxy statement/prospectus entitled “The Transactions—Interests of Directors and Executive Officers in the Transactions” beginning on page 65.

The BellRing Special Committee concluded, however, that the uncertainties, risks and potentially negative factors relevant to the transactions were outweighed by the potential benefits.

The BellRing Special Committee also considered a number of factors relating to the procedural safeguards involved in the negotiation of the transactions, including those discussed below, each of which it believed supported its determination and recommendation and provided assurance of the fairness of the transactions to BellRing’s stockholders (other than Post and its affiliates):

 

   

the fact that the BellRing Special Committee was established by the BellRing Board of Directors and was authorized and was delegated all of the power and authority of the BellRing Board of Directors to investigate, evaluate and negotiate the transactions;

 

   

the fact that the BellRing Special Committee is comprised solely of independent and disinterested directors, who are not officers or employees of BellRing or representatives of Post;

 

   

the fact that the BellRing Special Committee had no obligation, and was aware that it had no obligation, to recommend that the BellRing Board of Directors approve the transactions and had the power to “say no” to any proposal from Post and/or to terminate any and all negotiations with Post at any time;

 

   

the fact that the BellRing Special Committee held six formal meetings during the course of negotiations with Post to discuss the status of the negotiations with Post and to review the terms of the proposed transaction agreement and the ancillary agreements contemplated by the transactions and that during such time the BellRing Special Committee had, together with its own legal advisor and its own financial advisor, full access as needed to BellRing management;

 

   

the fact that the BellRing Special Committee considered the scope of the due diligence investigation of BellRing and Post conducted by members of BellRing management and evaluated the results thereof;

 

   

the fact that, at the direction of the BellRing Special Committee, with the assistance of its own legal advisor and its own financial advisor, active negotiations occurred with representatives of Post regarding the transaction agreement and the ancillary agreements contemplated by the transactions;

 

   

the fact that, in its view, the material terms of the transaction agreement and the ancillary agreements, taken as a whole, were reasonable for an arms’-length transaction of this type, including as it relates to the representations and warranties made by Post, New BellRing and BellRing in the transaction agreement, the restrictions on the operation of BellRing’s business from the signing of the transaction agreement until the completion of the transactions and the other covenants of BellRing in the transaction agreement and the conditions to each party’s obligation to complete the transactions;

 

   

the fact that the transactions are conditioned on the adoption of the transaction agreement by holders (other than Post, New BellRing or any of their respective affiliates) of a majority in voting power of the outstanding shares of BellRing Common Stock (other than shares of BellRing Common Stock owned or controlled by Post, New BellRing or any of their respective affiliates); and

 

   

the fact that, under the transaction agreement, the BellRing Special Committee has the ability, under certain circumstances, to change, qualify, withhold, withdraw or modify its recommendations that stockholders vote to adopt the transaction agreement.

 

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In reaching its determination and recommendations, the BellRing Board of Directors considered the following factors, which are not intended to be exhaustive and are not presented in any relative order of importance:

 

   

the BellRing Special Committee unanimously (i) determined that the transaction agreement and the transactions contemplated therein, including the merger, are advisable and in the best interests of BellRing and its stockholders (other than Post, New BellRing or any of their respective affiliates), (ii) declared advisable and in the best interests of BellRing and its stockholders (other than Post, New BellRing or any of their respective affiliates) that BellRing enter into the transaction agreement and (iii) recommended that the BellRing Board of Directors approve and declare advisable the transaction agreement and approve the execution, delivery and performance of the transaction agreement and the completion of the transactions contemplated therein, including the merger, and recommend to BellRing stockholders that they adopt the transaction agreement; and

 

   

the fact that the BellRing Special Committee consists solely of BellRing directors who are not members of BellRing management, who are not and will not be (or are not expected to be) affiliated with Post and who do not otherwise have a material interest in the transactions, other than their interest described under the section of this proxy statement/prospectus entitled “The Transactions—Interests of Directors and Executive Officers in the Transactions” beginning on page 65.

Please see the section of this proxy statement/prospectus entitled “The Transactions—Recommendations of the BellRing Special Committee and BellRing Board of Directors and Reasons for the Transactions” beginning on page 58.

Q: Are there any conditions to completion of the transactions?

A: Yes. Completion of the transactions is subject to a number of conditions, including, among others:

 

   

the separation and the distribution having been completed in accordance with the transaction agreement and applicable law;

 

   

receipt of the affirmative vote “FOR” the transaction agreement proposal by (i) holders of a majority in voting power of the outstanding shares of BellRing Common Stock and (ii) holders (other than Post, New BellRing or any of their respective affiliates) of a majority in voting power of the outstanding shares of BellRing Common Stock (other than shares of BellRing Common Stock owned or controlled by Post, New BellRing or any of their respective affiliates);

 

   

no law, injunction, judgment or ruling prohibiting the completion of the transactions or making the completion of the transactions illegal is in effect;

 

   

the New BellRing registration statements having been declared effective by the SEC and not being subject to any stop order or any initiated or threatened proceedings seeking a stop order;

 

   

the shares of New BellRing Common Stock deliverable to certain stockholders of BellRing in the merger, as contemplated in the transaction agreement, having been approved for listing on the NYSE, subject to official notice of issuance;

 

   

Post’s receipt of an opinion from Ernst & Young LLP (the “355 tax opinion”), in form and substance reasonably satisfactory to Post, to the effect that the distribution, together with certain contributions made by Post to New BellRing, will qualify as a tax-free “reorganization” within the meaning of Sections 368(a) and 355 of the IRC and a distribution eligible for nonrecognition within the meaning of Sections 355 and 361 of the IRC, and that the debt exchange and equity exchange will each qualify as a distribution in connection with the separation and distribution eligible for nonrecognition under Section 361(c) of the IRC; and

 

   

BellRing’s receipt of an opinion from Simpson Thacher & Bartlett LLP (the “BellRing tax opinion” and, together with the 355 tax opinion, the “tax opinions”), in form and substance reasonably

 

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satisfactory to BellRing, to the effect that the merger (or the alternative transaction structure under circumstances described in the transaction agreement) will qualify as a “reorganization” within the meaning of Section 368(a) of the IRC or, alternatively, as a transaction qualifying for nonrecognition of gain and loss under Section 351 of the IRC.

For a description of the conditions precedent to the transactions, please see the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—Conditions to Completion of the Transactions” beginning on page 91.

Q: What happens if the transactions are not completed?

A: If the transactions are not completed for any reason, New BellRing will not issue any shares of New BellRing common stock to the holders of BellRing Class A Common stock. BellRing will remain a public company with shares of BellRing Class A Common Stock continuing to be traded on the NYSE. For additional information regarding the circumstances under which the transaction agreement may be terminated, please see the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—Termination” beginning on page 94.

Q: Does BellRing have to pay any termination fee to Post if the transaction agreement is not approved by the BellRing stockholders or if the transaction agreement is otherwise terminated?

A: No. There is no termination fee payable in connection with the transactions.

Q: Are there risks associated with the transactions?

A: Yes. The material risks and uncertainties associated with the transactions are discussed in the section of this proxy statement/prospectus entitled “Risk Factors” beginning on page 29 and the section of this proxy statement/prospectus entitled “Cautionary Statement Regarding Forward-Looking Statements” beginning on page 38.

Q: What do I need to do now?

A: After carefully reading and considering the information contained in this proxy statement/prospectus, please respond by completing, signing and dating the enclosed proxy card (or the voting instruction form provided by the record holder if shares of BellRing Common Stock are held in the name of a bank, broker or other nominee) and returning it in the enclosed postage-paid envelope, or by submitting your proxy or voting instruction by telephone or through the Internet, as soon as possible so that your shares may be represented and voted at the special meeting. Stockholders of record can authorize someone other than the individual(s) named on the proxy card or notice to attend the special meeting and vote on their behalf by crossing out the individual(s) named on the proxy card or notice and inserting the name, address and email address of the individual being authorized. We ask that you request registration of an authorized representative for the special meeting by forwarding an image of your updated proxy card or notice to the transfer agent either by email to legalproxy@computershare.com or by mail to the transfer agent to BellRing Brands Legal Proxy, P.O. Box 43001, Providence, Rhode Island 02940.

Beneficial owners of shares can authorize someone other than the individual(s) named on the legal proxy obtained from their banks, brokers or other nominees to attend the special meeting or vote on their behalf by providing a written authorization to the individual being authorized along with a legal proxy. Contact information for the authorized individual, including name, address and email address, should be provided to register the authorized representative. Requests for registration of an authorized representative for the special meeting, along with the contact information specified above and an image of your legal proxy, should be directed to the transfer agent either by email to legalproxy@computershare.com or by mail to the transfer agent, BellRing Brands Legal Proxy, P.O. Box 43001, Providence, Rhode Island 02940.

 

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Q: How do I vote if my broker holds my shares in “street name”?

A: If you hold shares registered in the name of a broker, bank or other nominee, that broker, bank or other nominee has enclosed or will provide a voting instruction card for use in directing your broker, bank or other nominee how to vote those shares. Your bank, broker or other nominee will vote your shares of BellRing Common Stock only if you provide instructions on how to vote. You should follow the directions provided by your bank, broker or other nominee regarding how to instruct your bank, broker or other nominee to vote your shares. Without instructions, your shares will not be voted, which will have the effect of a vote against the transaction agreement.

Q: What is a “broker non-vote”?

A: A “broker non-vote” results when banks, brokers and other nominees return a valid proxy but do not vote on a particular proposal because (i) they do not have discretionary authority to vote on the matter because it is “non-routine” in nature, (ii) they have not received specific voting instructions from the beneficial owner of such shares, and (iii) at least one “routine” matter for which they do have discretionary authority to cast a vote appears on the same proxy. In such a case, the brokers would physically cross out the proposals on which they do not have voting discretion, and the crossed out proposals are the broker non-votes. If, as here, however, the only proposals at a meeting are non-routine, there will be no broker discretionary voting on at least one proposal. Thus, there will be no broker non-votes present at the special meeting.

Q: What if I do not vote or abstain?

A: If you do not vote or abstain from voting on the transaction agreement proposal, it will have the same effect as a vote against the transaction agreement proposal. If you do not vote on the adjournment proposal and your shares are not present in person or by proxy at the special meeting, your failure to vote on the adjournment proposal will have no effect on the adjournment proposal. However, if you direct an “abstention” from voting on the adjournment proposal with respect to your shares or if your shares are otherwise present in person or by proxy at the special meeting, your abstention or failure to vote on the adjournment proposal will have the same effect as a vote against the adjournment proposal.

Shares that are not voted and are not present in person or by proxy at the special meeting will not count towards the establishment of a quorum, which is necessary to vote on the transaction agreement proposal at the special meeting. However, if your shares are not voted at the special meeting but are still present in person or by proxy at the special meeting (including as a result of your directing an “abstention” from voting on any matter to be brought before the special meeting), or if your shares are voted on at least one of the matters before the special meeting, they will count towards the establishment of a quorum. If a quorum of stockholders is not present in person or by proxy at the meeting, no vote will be taken on the proposals, although it is expected that a quorum will be present at the special meeting because Post committed in the transaction agreement to vote its shares at the special meeting. If you sign the enclosed proxy card but do not indicate how you want to vote, your shares of BellRing Common Stock will be voted for the proposals.

Q: Can I change my vote after I have delivered my proxy?

A: Yes. If you have properly completed and submitted your proxy card or submitted a proxy to vote your shares by Internet or telephone, if you are a record holder of BellRing Common Stock, you can revoke such proxy and change your vote by:

 

   

sending a signed notice of revocation to the corporate secretary of BellRing that is received prior to the special meeting stating that you revoke your proxy;

 

   

properly completing, signing and dating a new proxy card bearing a later date and properly submitting it so that it is received prior to the special meeting;

 

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submitting a new proxy via telephone or by logging onto the Internet website specified on the proxy card in the same manner a stockholder would to submit its proxy electronically or by calling the toll-free number specified on the proxy card prior to the special meeting, in each case if you are eligible to do so and following the instructions on the proxy card; or

 

   

attending the special meeting and voting in person.

Simply attending the special meeting will not revoke a proxy. In the event of multiple online or telephone proxies by a stockholder, each proxy will supersede the previous proxy and the last proxy given will be deemed to be the final proxy of the stockholder unless such proxy is revoked at the special meeting.

If you hold shares in “street name” through your bank, broker or other nominee, and have directed such person to vote your shares and wants to change your vote, you should instruct such person to change your vote, or if in the alternative if you wish to vote in person at the special meeting, you must obtain a proxy from the record holder of your shares and you should bring to the special meeting a letter from the bank, broker or other nominee confirming its beneficial ownership of the shares and that the bank, broker or other nominee is not voting the shares at the special meeting.

Q: What will happen if the special meeting is adjourned or postponed?

A: Although it is not currently expected, the special meeting may be adjourned or postponed, if necessary or appropriate, for the purpose of soliciting additional proxies if there are not sufficient votes at the time of the special meeting to approve the transaction agreement proposal. Any adjournment of the special meeting may be made at the special meeting if approved by the affirmative vote of the holders of a majority of the votes present in person or by proxy at the special meeting. Any adjournment or postponement of the special meeting for the purpose of soliciting additional proxies will allow BellRing stockholders who have already sent in their proxies to revoke them at any time prior to their use at the special meeting as adjourned or postponed.

The proposal to approve the adjournment or postponement of the special meeting, if necessary or appropriate, relates only to an adjournment or postponement of the special meeting occurring for purposes of soliciting additional proxies for the approval of the transaction agreement proposal. The BellRing Board of Directors retains full authority to adjourn or postpone the special meeting for any other purpose, including the absence of a quorum, or to postpone the special meeting before it is convened, without the consent or approval of any stockholders.

Q: Do I have appraisal rights?

A: Yes. Holders of shares of BellRing Class A Common Stock that are issued and outstanding immediately prior to the effective time of the merger are entitled to appraisal rights under Section 262 of the DGCL (“Section 262”). If a stockholder successfully exercises and perfects its appraisal rights under Section 262, its shares will not be converted into the right to receive the merger consideration contemplated by the transaction agreement, and instead will solely be entitled to the appraisal rights granted under Section 262. Additionally, if a stockholder fails to properly exercise and perfect its appraisal rights pursuant to Section 262, its shares of BellRing Class A Common Stock will be converted solely into the right to receive the merger consideration contemplated by the transaction agreement, without interest. Please see the section of this proxy statement/prospectus entitled “Appraisal Rights” beginning on page 69. The relevant provisions of Section 262 are attached as Annex G to this proxy statement/prospectus.

Q: When will the transactions occur?

A: The transactions are expected to close in the first calendar quarter of 2022, subject to the receipt of the BellRing stockholder approval and the satisfaction or waiver of other conditions to completion.

 

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Q: How will shares of New BellRing be distributed to me?

A: Prior to the effective time of the merger, New BellRing will deposit with the exchange agent for your benefit the shares of New BellRing Common Stock issuable to you in the merger. At the effective time of the merger, BellRing will instruct the exchange agent to make book-entry credits for the shares of New BellRing Common Stock that you are entitled to receive. Since shares of New BellRing Common Stock will be in uncertificated book-entry form, you will receive share ownership statements in place of physical share certificates. If the merger is completed, New BellRing will be the successor issuer to BellRing and New BellRing stock will be listed on the NYSE and BellRing Common Stock will cease to be listed. Shares of New BellRing are expected to trade on the NYSE under the ticker “BRBR”.

Q: Whom should I call with other questions?

A: If you have questions about the transactions, the special meeting or if you need assistance in voting your shares, you should contact: Georgeson LLC toll-free at (866) 482-5136.

Q: Where can I find more information regarding BellRing, Post and New BellRing?

A: You can find more information about BellRing, Post and New BellRing from the various sources described in the section of this proxy statement/prospectus entitled “Where You Can Find More Information; Incorporation by Reference” beginning on page 130.

 

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SUMMARY

The following summary contains certain information described in more detail elsewhere in this prospectus. It does not contain all of the details concerning the transactions, including information that may be important to you. To better understand the transactions, you should carefully review this entire document and the documents to which it refers. Please see the section of this proxy statement/prospectus entitled “Where You Can Find More Information; Incorporation by Reference” beginning on page 130.

The Parties (Page 46)

BellRing Brands, Inc.

BellRing Brands, Inc.

2503 S. Hanley Road

St. Louis, Missouri 63144

Telephone: (314) 644-7600

BellRing, together with its subsidiaries, is a leader in the global convenient nutrition category, aiming to enhance the lives of its consumers by providing them with highly nutritious, great-tasting products they can enjoy throughout the day. BellRing’s primary brands, Premier Protein and Dymatize, target a broad range of consumers and compete in all major product forms, including ready-to-drink (“RTD”) protein shakes, other RTD beverages and powders. BellRing’s products are distributed across a diverse network of channels including club, food, drug and mass (“FDM”), eCommerce, specialty and convenience.

BellRing was incorporated in the State of Delaware on March 20, 2019 in connection with the initial public offering of its BellRing Class A Common Stock (the “IPO”). Upon completion of a series of transactions in connection with the IPO, BellRing LLC became the holder of Post’s active nutrition business, which, effective as of Post’s quarter ended June 30, 2015, and until the completion of BellRing’s IPO, had been comprised of Premier Nutrition Company, LLC (“Premier Nutrition”), Dymatize Enterprises, LLC (“Dymatize”), the PowerBar brand and Active Nutrition International GmbH (“Active Nutrition International”).

Because Post currently owns more than 50% of the voting power of all of the outstanding BellRing Common Stock, BellRing is a “controlled company” under the NYSE corporate governance standards and is eligible to rely on certain exemptions from the NYSE corporate governance requirements; however, BellRing does not currently rely on any of these exemptions.

At the completion of the transactions, BellRing will change its name to BellRing Intermediate Holdings, Inc.

Post Holdings, Inc.

Post Holdings, Inc.

2503 S. Hanley Road

St. Louis, Missouri 63144

Telephone: (314) 644-7600

Post is a Missouri corporation incorporated on September 22, 2011. It is a consumer packaged goods holding company operating in the center-of-the-store, refrigerated, foodservice, food ingredient and convenient nutrition food categories. It participates in the private brand food category, including through its investment with third parties in 8th Avenue Food & Provisions, Inc. (“8th Avenue”). Post’s products are sold through a variety of channels, including grocery, club and drug stores, mass merchandisers, foodservice, food ingredient and eCommerce. As of September 30, 2021, Post operates in five reportable segments: Post Consumer Brands, Weetabix, Foodservice, Refrigerated Retail and BellRing Brands. The Post Consumer Brands segment includes the North American ready-to-eat (“RTE”) cereal business and Peter Pan nut butters; the Weetabix segment includes primarily the United Kingdom (the “U.K.”) RTE cereal and muesli business; the Foodservice segment includes primarily egg and potato products; the Refrigerated Retail segment includes primarily side dish, egg,

 

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cheese and sausage products; and the BellRing Brands segment includes RTD protein shakes and other RTD beverages, powders and nutrition bars.

In its year ended September 30, 2013, Post acquired Premier Nutrition, which, at the time, was a marketer and distributor of high quality protein shakes and nutrition bars under the Premier Protein brand and nutritional supplements under the Joint Juice brand. Premier Nutrition, Inc. was founded in 1997, and Joint Juice, Inc. was founded in 1999. In 2011, Joint Juice, Inc. acquired the Premier Protein brand and related assets from Premier Nutrition, Inc. via a corporate restructuring, and the resulting entity assumed the name Premier Nutrition Corporation. Effective September 30, 2019, Premier Nutrition Corporation converted to a limited liability company and changed its corporate name to Premier Nutrition Company, LLC.

In its year ended September 30, 2014, Post acquired Dymatize, which, at the time, was a manufacturer and marketer of high-quality protein powders and nutritional supplements under the Dymatize brand. Dymatize was founded in 1994.

In its year ended September 30, 2015, Post acquired the PowerBar brand and Active Nutrition International. The PowerBar brand was founded in 1986.

As of January 14, 2022, Post owned approximately 97.5 million BellRing LLC Units, representing approximately 71.5% of the economic interests in BellRing LLC. Following the completion of the transactions contemplated by the transaction agreement, Post expects to retain approximately 14.2% of the issued and outstanding shares of New BellRing Common Stock.

BellRing Distribution, LLC

BellRing Distribution, LLC

2503 S. Hanley Road

St. Louis, Missouri 63144

Telephone: (314) 644-7600

New BellRing is a wholly owned subsidiary of Post, formed in the State of Delaware on October 20, 2021 for the purpose of effecting the transactions. Immediately prior to the distribution, Post will cause New BellRing to convert into a Delaware corporation and the units representing limited liability company interests of New BellRing shall be converted into additional shares of New BellRing Common Stock. Prior to the completion of the transactions, Post will distribute at least 80.1% of its shares of New BellRing Common Stock to holders of Post Common Stock. In the merger, each holder of shares of BellRing Class A Common Stock will be entitled to receive, with respect to each share of Class A Common Stock held by such holder, (i) an amount of per share cash consideration equal to a pro rata portion of the amount by which the aggregate principal amount of the New BellRing debt exceeds the amount of cash required to repay the outstanding indebtedness of BellRing under its credit agreement as described under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—Merger Consideration” beginning on page 84 and (ii) one share of New BellRing Common Stock. At the completion of the transactions, New BellRing, named BellRing Brands, Inc., will be a public company, the successor issuer to BellRing and listed under the ticker symbol “BRBR” on the NYSE, and will not be a “controlled company.”

BellRing Merger Sub Corporation

BellRing Merger Sub Corporation

2503 S. Hanley Road

St. Louis, Missouri 63144

Telephone: (314) 644-7600

 

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Merger Sub is a newly formed corporation, incorporated in the State of Delaware on October 20, 2021, for the purpose of effecting the merger. In the merger, Merger Sub will merge with and into BellRing with BellRing as the surviving company.

The Transaction Agreement (Page 80)

The transaction agreement provides for a separation transaction by Post, a debt exchange, a distribution and a merger. Each set of transactions is summarized below.

The Separation

Post Contribution

Pursuant to the transaction agreement and in connection with the separation, Post will contribute to New BellRing (i) all of the BellRing LLC Units held by it and the sole outstanding share of BellRing Class B Common Stock and (ii) an amount in cash equal to the amount of the Post negative capital account, in exchange for (x) New BellRing debt securities in an amount described under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—New BellRing Debt Financing” beginning on page 81 and (y) limited liability company interests of New BellRing.

The “Post negative capital account” is an amount equal to the estimated taxable gain Post would realize if Post were to dispose of its interest in BellRing LLC for no consideration other than a release of Post’s share of BellRing LLC’s liabilities allocable to Post under the IRC, as determined by Post in its reasonable discretion. The amount of the Post negative capital account will be determined prior to the date on which the New BellRing debt financing transactions described under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—New BellRing Debt Financing” beginning on page 81 are pursued, and therefore is not known as of the date of this proxy statement/prospectus. As of September 30, 2021, the most recent practicable date prior to the date of this proxy statement/prospectus, Post’s good faith estimate of the Post negative capital account, assuming the disposal of its interest in BellRing LLC occurred on such date, is approximately $569.3 million.

Pursuant to the transaction agreement, Post will also undertake certain other transactions to effect the separation as described in the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—The Separation—Other Separation Transactions” beginning on page 82.

After giving effect to the separation, New BellRing will own the sole outstanding share of BellRing Class B Common Stock and all of the BellRing LLC Units beneficially owned by Post prior to the separation.

New BellRing Debt Financing

New BellRing Maximum Debt Amount

The aggregate principal amount of the indebtedness that will be incurred by New BellRing in connection with the transactions, including the New BellRing debt securities and the New BellRing loans (as defined below), will not exceed the New BellRing maximum debt amount. The “New BellRing maximum debt amount” is an amount, determined by Post in good faith in consultation with BellRing, not to exceed the lesser of (i) $1 billion and (ii) the maximum amount of indebtedness that would result in the New BellRing leverage ratio not exceeding 4.00x on a pro forma basis after giving effect to the transactions. The “New BellRing leverage ratio” is the ratio of New BellRing and its subsidiaries’ consolidated indebtedness to New BellRing and its subsidiaries’ consolidated earnings before interest, taxes, depreciation and amortization, in each case, calculated in a manner consistent with the definition of “Total Net Leverage Ratio” under the BellRing LLC credit agreement for the most recently completed four fiscal quarters of BellRing for which financial statements are available.

 

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The New BellRing maximum debt amount will depend on various factors, including the earnings of BellRing and its subsidiaries, and will be determined prior to the date on which the New BellRing debt financing transactions are pursued. Accordingly, the New BellRing maximum debt amount is not known as of the date of this proxy statement/prospectus.

New BellRing Debt Securities

Pursuant to the transaction agreement, prior to the distribution, New BellRing will issue to Post the New BellRing debt securities. The aggregate principal amount of the New BellRing debt securities (the “New BellRing debt securities amount”) issued to Post will equal (i) the Post negative capital account plus (ii) (x) the excess of the aggregate principal amount of the New BellRing debt over the BellRing LLC debt repayment amount multiplied by (y) the percentage of the outstanding BellRing LLC Units that is held by Post. As of January 14, 2022, the most recent practicable date prior to the date of this proxy statement/prospectus, Post held approximately 71.5% of the outstanding BellRing LLC Units. Certain additional terms of the New BellRing debt securities are described in the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—New BellRing Debt Financing—New BellRing Debt Securities” beginning on page 82.

Post Debt Exchange

Following the issuance of such New BellRing debt securities but prior to the distribution, Post expects to exchange the New BellRing debt securities issued to it by New BellRing for satisfaction of certain debt obligations of Post in the debt exchange. Following the debt exchange, the exchanging parties, or their affiliates, are expected to sell the New BellRing debt securities to third-party investors. Certain additional terms of the debt exchange are described in the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—New BellRing Debt Financing—Post Debt Exchange” beginning on page 82.

New BellRing Loans

Additionally, pursuant to the transaction agreement, New BellRing will enter into the New BellRing loans. The aggregate principal amount of the New BellRing loans will not exceed, together with the New BellRing debt securities amount, the New BellRing maximum debt amount. Certain additional terms of the New BellRing loans are described in the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—New BellRing Debt Financing—New BellRing Loans” beginning on page 82.

As a result of these financing transactions, the indebtedness of New BellRing immediately following the completion of the transactions is expected to be greater than the indebtedness of BellRing as of the date of this proxy statement/prospectus.

The Distribution

Following the separation, and prior to the effective time of the merger, Post will complete the distribution. Post may elect to distribute its shares of New BellRing Common Stock through a spin-off, an exchange offer or as a combination of a spin-off and an exchange offer with or without a clean-up spin-off. As of the date of this proxy statement/prospectus, Post expects to distribute the shares of New BellRing Common Stock to shareholders of Post pursuant to a spin-off.

In addition, within twelve months following the distribution, Post may, in its sole discretion, transfer any or all of its remaining shares of New BellRing Common Stock for certain debt obligations or otherwise to its shareholders in the equity exchange.

The Merger

Following the completion of the separation and distribution, Merger Sub will merge with and into BellRing, and BellRing will be the surviving corporation in the merger. As a result of the merger, BellRing will become a

 

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direct, wholly owned subsidiary of New BellRing, with New BellRing as the new public parent company of BellRing.

Pursuant to the merger, holders of shares of BellRing Class A Common Stock will be entitled to receive, with respect to each share of BellRing Class A Common Stock, (i) the per share cash consideration and (ii) one share of New BellRing Common Stock. The “per share cash consideration” will be an amount in cash equal to (i) the aggregate cash consideration amount divided by (ii) the number of shares of BellRing Class A Common Stock issued and outstanding as of immediately prior to the merger effective time. The “aggregate cash consideration amount” will be an amount equal to (x) the excess of the aggregate principal amount of the New BellRing debt over the BellRing LLC debt repayment amount multiplied by (y) the percentage of the outstanding BellRing LLC Units that is held by BellRing. An example calculation of the per share cash consideration under certain assumed conditions is set forth under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—Merger Consideration” beginning on page 84.

The separation, debt exchange, distribution and merger are referred to collectively as the “transactions.” The terms of the transactions are set forth in the transaction agreement, which is described in this proxy statement/prospectus and attached to this proxy statement/prospectus as Annex A.

Conditions to Completion

Completion of the transactions is subject to a number of conditions, including, among others:

 

   

the separation and distribution have been completed in accordance with the transaction agreement and applicable law;

 

   

receipt of the affirmative vote “FOR” the transaction agreement proposal by (i) holders of a majority in voting power of the outstanding shares of BellRing Common Stock and (ii) holders (other than Post, New BellRing or any of their respective affiliates) of a majority in voting power of the outstanding shares of BellRing Common Stock (other than shares of BellRing Common Stock owned or controlled by Post, New BellRing or any of their respective affiliates);

 

   

no law, injunction, judgment or ruling prohibiting the completion of the transactions or merger or making the completion of the transactions or merger illegal is in effect;

 

   

the New BellRing registration statements having been declared effective by the SEC and not being subject to any stop order or initiated or threatened proceedings seeking a stop order;

 

   

the shares of New BellRing Common Stock deliverable to certain stockholders of BellRing in the merger, as contemplated in the transaction agreement, having been approved for listing on the NYSE, subject to official notice of issuance;

 

   

BellRing’s receipt of the BellRing tax opinion that the merger (or the alternative transaction structure under circumstances described in the transaction agreement) will qualify as a “reorganization” within the meaning of Section 368(a) of the IRC, or, alternatively, as a transaction qualifying for nonrecognition of gain and loss under Section 351 of the IRC; and

 

   

Post’s receipt of the 355 tax opinion that the distribution, together with certain contributions made by Post to New BellRing, will qualify as a tax-free reorganization within the meaning of Sections 368(a) and 355 of the IRC and a distribution eligible for nonrecognition within the meaning of Sections 355 and 361 of the IRC, and that the debt exchange and equity exchange will each qualify as a distribution in connection with the separation and distribution eligible for nonrecognition under Section 361(c) of the IRC.

 

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Termination

The transaction agreement may be terminated:

 

   

by mutual consent of New BellRing and BellRing;

 

   

by any of the parties if the merger has not been completed by July 26, 2022;

 

   

by any of the parties if the merger is permanently enjoined;

 

   

by any of the parties if the BellRing stockholder approval is not obtained;

 

   

by BellRing, on the one hand, and Post or New BellRing, on the other hand, upon an incurable material breach of the transaction agreement by the other party or parties, or upon a material breach of the transaction agreement by the other party or parties that is not cured within 30 days; or

 

   

by Post or New BellRing if the BellRing Special Committee withdraws or modifies its recommendation to the BellRing stockholders regarding the merger.

BellRing’s Reasons for the Transactions

In the course of reaching their decision to approve and declare advisable the transaction agreement and the transactions contemplated thereby, the BellRing Special Committee considered a number of factors in its deliberations. Those factors are described in the section of this proxy statement/prospectus entitled “The Transactions—Recommendations of the BellRing Special Committee and BellRing Board of Directors and Reasons for the Transactions” beginning on page 58.

Accounting Treatment (Page 67)

After the completion of the transactions, BellRing’s Up-C structure will no longer be in place. As a result, New BellRing’s consolidated statements of operations will no longer reflect net earnings attributable to noncontrolling interests, which will result in a higher effective tax rate more closely aligned with other C-corporations in the U.S. Furthermore, the noncontrolling interest amount on New BellRing’s consolidated balance sheet immediately prior to completion of the transactions will be reclassified, resulting in a decrease to stockholders’ deficit.

Material U.S. Federal Income Tax Consequences of the Merger (Page 76)

The merger (or the alternative transaction structure under circumstances described in the transaction agreement) is intended to qualify as a “reorganization” within the meaning of Section 368(a) of the IRC. Provided that the merger (or the alternative transaction structure under circumstances described in the transaction agreement) qualifies as a “reorganization” under Section 368(a) of the IRC, the material U.S. federal income tax consequences to a U.S. holder (as defined in the section of this proxy statement/prospectus entitled “Material U.S. Federal Income Tax Consequences” beginning on page 76) will generally be as follows:

 

   

a U.S. holder will recognize gain (but not loss) in an amount equal to the lesser of (1) the excess, if any, of (i) the sum of the cash and the fair market value of the New BellRing Common Stock received over (ii) such U.S. holder’s tax basis in its BellRing Class A Common Stock and (2) the amount of cash received by such U.S. holder;

 

   

a U.S. holder’s aggregate tax basis in the shares of New BellRing Common Stock received will be equal to such U.S. holder’s aggregate tax basis in its BellRing Class A Common Stock surrendered in exchange for the New BellRing Common Stock increased by the amount of taxable gain, if any, such U.S. holder recognizes on the exchange and decreased by the amount of cash received; and

 

   

a U.S. holder’s holding period for the New BellRing Common Stock received in the merger will include the holding period for the BellRing Class A Common Stock surrendered in the merger.

 

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A more detailed discussion of the material U.S. federal income tax consequences of the merger can be found in the section of this proxy statement/prospectus entitled “Material U.S. Federal Income Tax Consequences” beginning on page 76. The tax consequences of the merger to any particular holder of BellRing Class A Common Stock will depend on that stockholder’s particular facts and circumstances. Accordingly, you are urged to consult your tax advisor to determine your tax consequences from the merger, including the effect of any state, local, estate or gift or non-U.S. tax laws and of changes in applicable tax laws.

Voting by Directors and Executive Officers of BellRing (Page 65)

As of the close of business on January 14, 2022, the most recent practicable date prior to the date of this proxy statement/prospectus, BellRing’s directors, executive officers and their respective affiliates held 329,867 shares of BellRing Class A Common Stock (including any RSUs that vest within 60 days of January 14, 2022, any vested RSUs deferred by directors until retirement from the BellRing Board of Directors and shares of BellRing Class A Common Stock which could be acquired upon the exercise of vested options or options that vest within 60 days of January 14, 2022) and zero shares of BellRing Class B Common Stock. This is expected to represent less than 1% of the voting power of the shares of BellRing Common Stock expected to be outstanding and entitled to vote as of the record date for the special meeting. BellRing currently expects that its directors and executive officers will vote their shares of BellRing Common Stock in favor of the proposals to be considered at the special meeting, although none of them is obligated to do so.

Interests of Directors and Executive Officers in the Transactions (Page 65)

You should be aware that some of the directors and officers of BellRing have interests in the merger that may be in addition to or differ from those of BellRing’s stockholders, including:

 

   

the continued employment of BellRing’s executive officers as New BellRing’s executive officers and the continued service of BellRing’s directors as directors of New BellRing;

 

   

the indemnification, advancement and exculpation of officers and directors of BellRing by New BellRing for their services as such up to the time of the completion of the merger;

 

   

the fact that Robert V. Vitale is a member of the board of directors of Post (the “Post Board of Directors”), and President and Chief Executive Officer, of Post, as well as the Executive Chairman of the BellRing Board of Directors. As of January 14, 2022, Post held approximately 97.5 million BellRing LLC Units, equal to approximately 71.5% of the economic interest in BellRing LLC, and one share of BellRing Class B Common Stock, which represented 67% of the total voting power of the outstanding BellRing Common Stock;

 

   

the fact that Jennifer Kuperman is a member of the Post Board of Directors as well as a member of the BellRing Board of Directors; and

 

   

the fact that Mr. Vitale is expected to remain Executive Chairman of the board of directors of New BellRing (the “New BellRing Board of Directors”), and Ms. Kuperman is expected to remain a member of the New BellRing Board of Directors, following the completion of the transactions.

Listing (Page 68)

If the merger is completed, New BellRing will be a successor issuer to BellRing and New BellRing stock will be listed on the NYSE and BellRing Common Stock will cease to be listed. It is anticipated that shares of New BellRing will be listed on the NYSE under the ticker symbol “BRBR”.

Regulatory Approvals (Page 68)

The completion of the transactions is not subject to the receipt of any regulatory approvals.

 

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Appraisal Rights (Page 69)

Holders of shares of BellRing Class A Common Stock that are issued and outstanding immediately prior to the effective time of the merger are entitled to appraisal rights under Section 262. If a stockholder successfully exercises and perfects its, his or her appraisal rights under Section 262, such stockholder’s shares will not be converted into the right to receive the merger consideration contemplated by the transaction agreement, and instead will solely be entitled to the appraisal rights granted under Section 262. Additionally, if a stockholder fails to properly exercise and perfect its appraisal rights pursuant to Section 262, such stockholder’s shares of BellRing Class A Common Stock will be converted solely into the right to receive the merger consideration contemplated by the transaction agreement, without interest. Please see the section of this proxy statement/prospectus entitled “Appraisal Rights” beginning on page 69. The relevant provisions of Section 262 are attached as Annex G to this proxy statement/prospectus.

Visual Representation of the Transactions

Current Structure

 

 

LOGO

Separation

 

 

LOGO

 

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Distribution

 

 

LOGO

 

(1)

Sole outstanding share of BellRing Class B Common Stock will be automatically cancelled upon completion of the distribution.

Merger

 

 

LOGO

 

(1)

Each share of BellRing Class A Common Stock will be automatically converted into the right to receive the per share cash consideration and one share of New BellRing Common Stock.

Structure Following the Transaction

 

 

LOGO

 

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Recent Developments

As disclosed in BellRing’s Annual Report on Form 10-K for the year ended September 30, 2021 filed on November 19, 2021 (the “Form 10-K”), on November 12, 2020, the BellRing Board of Directors approved a $60 million share repurchase authorization. Repurchases of BellRing Class A Common Stock may be made from time to time in the open market, private purchases, through forward, derivative, alternative, accelerated repurchase or automatic purchase transactions, or otherwise.

On December 7, 2021, BellRing entered into a 10b5-1 plan, through which it intends to repurchase up to $25 million of shares of BellRing Class A Common Stock, not to exceed 1 million shares of BellRing Class A Common stock, pursuant to the share repurchase authorization, subject to a maximum price of $25.00 per share and other volume limitations. Such 10b5-1 plan was terminated on December 23, 2021. As of December 23, 2021, BellRing had deployed approximately $18.06 million to repurchase approximately 773,722 shares of BellRing Class A Common Stock through a combination of open market transactions and the 10b5-1 plan. As of the date of this proxy statement/prospectus, all shares repurchased are held as treasury stock.

 

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SUMMARY HISTORICAL FINANCIAL DATA

Summary Historical Consolidated and Combined Financial Data of BellRing

The following tables present summary historical financial data of BellRing and should be read in conjunction with BellRing’s “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the financial statements and the related footnotes thereto incorporated by reference into this proxy statement/prospectus.

Effective October 21, 2019, the financial results of BellRing LLC and its subsidiaries are consolidated with BellRing, and 71.2% of the consolidated net earnings of BellRing LLC are allocated to the redeemable noncontrolling interest (“NCI”). The calculation of the NCI is based on Post’s ownership percentage of BellRing LLC Units during each period and reflects the historical entitlement of Post to a portion of the consolidated net earnings of BellRing LLC.

The condensed consolidated and combined statements of operations and cash flows data for the year ended September 30, 2021, 2020 and 2019, and the condensed consolidated balance sheets data as September 30, 2021 and 2020, have been derived from the audited consolidated financial statements of BellRing included in the Form 10-K and related notes incorporated by reference into this proxy statement/prospectus. The summary historical financial information included below is not necessarily indicative of New BellRing’s future performance.

We have not presented summary historical condensed financial and other data for New BellRing because New BellRing is a newly formed entity and has not had any corporate activity since its formation other than the issuance of limited liability company interests in connection with its initial capitalization, has had no business transactions or activities to date, and had no assets or liabilities during the periods presented in this section. Following the transactions described in this proxy statement/prospectus, New BellRing will be the successor issuer to BellRing and its ownership interest in BellRing and its subsidiaries will be its sole material asset.

 

     Year Ended September 30,  
dollars in millions    2021      2020      2019  

Statements of Operations Data

        

Net sales

   $ 1,247.1    $ 988.3    $ 854.4

Cost of goods sold

     860.9      650.3      542.6
  

 

 

    

 

 

    

 

 

 

Gross profit

     386.2      338.0      311.8

Selling, general and administrative expenses

     167.1      151.8      127.1

Amortization of intangible assets

     51.2      22.2      22.2

Other operating income, net

     (0.1              
  

 

 

    

 

 

    

 

 

 

Operating profit

     168.0      164.0      162.5

Interest expense, net

     43.2      54.7       

Loss on refinancing of debt (a)

     1.6                
  

 

 

    

 

 

    

 

 

 

Earnings before income taxes

     123.2      109.3      162.5

Income tax expense

     8.8      9.2      39.4
  

 

 

    

 

 

    

 

 

 

Net earnings including redeemable noncontrolling interest

     114.4      100.1      123.1

Less: Net earnings attributable to redeemable noncontrolling interest

     86.8      76.6      123.1
  

 

 

    

 

 

    

 

 

 

Net earnings available to Class A common stockholders

   $ 27.6    $ 23.5    $

Earnings Per Share of Class A Common Stock

        

Basic

   $ 0.70      $ 0.60      $  

Diluted

   $ 0.70      $ 0.60      $  

Statements of Cash Flows Data

        

Depreciation and amortization

   $ 53.7    $ 25.3    $ 25.3

Cash provided by (used in):

        

Operating activities

   $ 226.1    $ 97.2    $ 98.3

Investing activities

     (1.6      (2.1      (3.2

Financing activities

     (120.9      (52.6      (100.2

 

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dollars in millions    As of September 30,  
     2021      2020  

Balance Sheet Data

     

Cash and cash equivalents

   $ 152.6    $ 48.7

Working capital (excluding cash, cash equivalents and current portion of long-term debt)

     100.5      152.2

Total assets

     696.5      653.5

Debt, including current portion

     597.5      686.4

Other liabilities

     21.9      29.8

Redeemable noncontrolling interest

     2,997.3        2,021.6  

Total stockholders’ deficit (b)

     (3,062.8      (2,182.6

 

(a)

During the year ended September 30, 2021, BellRing recognized $1.6 million of losses related to refinancing fees incurred in conjunction with the refinancing of the BellRing LLC credit agreement. See Note 15 within “Notes to Consolidated Financial Statements” incorporated by reference into this proxy statement/prospectus for additional information on the debt.

(b)

On October 21, 2019, BellRing completed the IPO. For additional information about the IPO, see Note 1 within “Notes to Consolidated Financial Statements” incorporated by reference into this proxy statement/prospectus.

 

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RISK FACTORS

You should carefully consider the following risks, together with the other information contained or incorporated by reference into this proxy statement/prospectus and the exhibits hereto. Some of the risks described below relate principally to the business and the industry in which BellRing will operate after the transactions, while others relate principally to the transactions. The remaining risks relate principally to the securities markets generally and ownership of shares of BellRing Common Stock. For a discussion of additional uncertainties associated with forward-looking statements in this proxy statement/prospectus, please see the section of this proxy statement/prospectus entitled “Cautionary Statement Regarding Forward-Looking Statements.” In addition, you should consider the risks associated with BellRing’s business that appear in the Form 10-K, which is incorporated by reference into this proxy statement/prospectus.

Risks Related to the Transactions

The completion of the transactions is subject to numerous conditions, which may not be satisfied or waived, and the transactions may not occur.

The obligations of BellRing and Post to complete the transactions are subject to a number of conditions, including, among other things: (i) the adoption of the transaction agreement by (x) holders of a majority in voting power of the outstanding shares of BellRing Common Stock and (y) holders (other than Post, New BellRing or any of their respective affiliates) of a majority in voting power of the outstanding shares of BellRing Common Stock (other than shares of BellRing Common Stock owned or controlled by Post, New BellRing or any of their respective affiliates), (ii) the absence of any law or order from any court or governmental authority restraining, enjoining or prohibiting the transactions, (iii) receipt of opinions with respect to the intended tax treatment of the merger, (iv) the applicable registration statements of New BellRing having become effective under the Securities Act, and (v) the shares of New BellRing Common Stock to be distributed in the distribution and issued in the merger having been approved for listing on the NYSE, subject to official notice of issuance. No assurance can be given that any of the foregoing conditions or the other conditions set forth in the transaction agreement will be satisfied or waived. For more information regarding the conditions to the completion of the transactions, please see the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—Conditions to Completion of the Transactions” beginning on page 91.

BellRing and Post may not be able to complete the transactions on the terms described in this proxy statement/prospectus or on other acceptable terms or at all because of a number of factors, including, among other things: (i) the occurrence of any event, change or other circumstances that could give rise to the termination of the transaction agreement, (ii) the failure to obtain adequate financing sources for the New BellRing debt securities to be issued to Post and to be used to fund the cash portion of the per share cash consideration payable to BellRing stockholders in the merger, (iii) any other failure of BellRing or Post to satisfy the conditions described above or other conditions set forth in the transaction agreement, and (iv) the effect of the announcement of the transactions on the ability of BellRing to retain and hire key personnel and maintain relationships with its customers, suppliers, operating results and business generally.

BellRing may be unable to achieve some or all of the benefits that it expects to achieve through the transactions.

BellRing may be unable to achieve the full strategic and financial benefits expected to result from the transactions, or such benefits may be delayed or may never occur at all. The transactions are expected to provide the following benefits, among others:

 

   

the increase in BellRing’s independence of ownership, eliminating Post’s majority voting control of BellRing Common Stock and the BellRing Board of Directors, as well as Post’s majority ownership of the BellRing LLC Units;

 

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the enhanced independence of governance by BellRing, permitting BellRing to increase or accelerate growth and investment plans, make independent cash flow deployment decisions and consider other strategic alternatives such as mergers and acquisitions;

 

   

the enhanced liquidity of BellRing Common Stock in the public trading market by increasing the float of New BellRing’s shares immediately after the transactions are completed as compared to the number of beneficial owners of BellRing Common Stock prior to the transactions;

 

   

the removal of the perceived “overhang” with respect to the BellRing Common Stock that currently exists as a result of Post’s majority voting control of BellRing Common Stock, including the fact that such overhang could be depressing the market price of the BellRing Common Stock;

 

   

the simplification of BellRing’s capital structure and reduction in the reporting and administrative burden of maintaining an additional class of equityholders in BellRing LLC;

 

   

the transactions will allow Post to dispose of a substantial portion of its ownership in BellRing and BellRing LLC in an orderly manner that should be less disruptive to the public trading market for the shares of BellRing Common Stock than open market sales;

 

   

the enhanced attractiveness of BellRing’s equity-based compensation plans, thereby increasing BellRing’s ability to attract and retain quality executives and other employees;

 

   

the ability of BellRing to take advantage of the robust debt financing markets in connection with the incurrence of indebtedness by New BellRing in the transactions;

 

   

the fact that a portion of the merger consideration in connection with the transactions with be payable in cash to holders of BellRing Class A Common Stock; and

 

   

the fact that New BellRing should become eligible for index inclusion because it is expected that, following the completion of the transactions, New BellRing will satisfy the S&P Index criteria related to public float that BellRing does not currently satisfy.

BellRing may not achieve these or other anticipated benefits for a variety of reasons, including, among others:

 

   

New BellRing will likely incur significant indebtedness in connection with the transactions, with New BellRing incurring indebtedness resulting in pro forma net leverage of up to 4.00x;

 

   

the transactions will require meaningful amounts of time and effort which could divert management’s attention from the operation and growth of BellRing’s business and other strategic endeavors;

 

   

New BellRing will be required to bear a number of non-recurring costs in connection with the transactions, including financial, legal and other advisory fees, financing fees, SEC filing fees and expenses, printing expenses and other related charges; and

 

   

after a certain period following the completion of the transactions, New BellRing will no longer benefit from certain services provided by Post to New BellRing under a master services agreement, including certain legal, finance, internal audit, treasury, information technology, support, human resources, insurance and tax services, meaning New BellRing’s costs and expenses related to such support functions may increase following the completion of the transactions.

In addition, following the completion of the transactions, the anticipated operational, financial, strategic and other benefits of such transaction to BellRing and its stockholders may not be achieved. An inability to realize the full extent of the anticipated benefits of the transactions, as well as any delays encountered in the process, could have an adverse effect on New BellRing’s business, financial condition, results of operations and cash flows, and also may negatively affect New BellRing’s ability to successfully execute New BellRing’s growth strategy.

For additional factors considered by the BellRing Special Committee and BellRing Board of Directors in connection with their evaluation of the transactions, please see the section of this proxy statement/prospectus

 

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entitled “The Transactions—Recommendations of the BellRing Special Committee and BellRing Board of Directors and Reasons for the Transactions” beginning on page 58.

The amount of the cash consideration to be paid to BellRing stockholders in the merger depends on a number of factors, some of which are outside of the control of BellRing and Post and will not be known until shortly prior to the completion of the transactions.

In the merger, each share of BellRing Class A Common Stock issued and outstanding immediately prior to the effective time of the merger, other than any dissenting shares and shares owned by BellRing or its subsidiaries, will be automatically converted into the right to receive (i) an amount of per share cash consideration equal to a pro rata portion of the amount by which the aggregate principal amount of the New BellRing debt exceeds the amount of cash required to repay the outstanding indebtedness of BellRing under its credit agreement as described under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—Merger Consideration” beginning on page 84 and (ii) one share of New BellRing Common Stock.

The aggregate principal amount of the New BellRing debt and the amount of cash required to repay the outstanding indebtedness of BellRing under its credit agreement will be determined prior to the date on which the New BellRing debt financing transactions are pursued, and therefore are not known as of the date of this proxy statement/prospectus. Further, the aggregate principal amount of New BellRing’s newly issued debt securities depends, in part, on the earnings of BellRing and its subsidiaries, which depends on numerous factors and is not fully within the control of BellRing or Post.

An example calculation of the per share cash consideration under certain assumed conditions is set forth in the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—Merger Consideration” beginning on page 84.

Officers and directors of BellRing have certain interests in the merger that are different from, or in addition to, the interests of BellRing stockholders. These interests may be perceived to have affected their decision to support or approve the transactions.

BellRing officers and directors have certain interests in the merger that are different from, or in addition to, the interests of stockholders of BellRing. Please see the section of this proxy statement/prospectus entitled “The Transactions—Interests of Directors and Executive Officers in the Transactions” beginning on page 65.

If holders of Post Common Stock who receive New BellRing Common Stock in the transactions sell that stock immediately, it could cause a decline in the market price of New BellRing Common Stock.

All of the shares of New BellRing Common Stock to be issued in the transactions will be registered with the SEC under the registration statements, including the registration statement on Form S-4 of which this proxy statement/prospectus forms a part, and therefore will be immediately available for resale in the public market, except with respect to shares issued in the transactions to certain affiliates (as that term is defined in Rule 405 of the Securities Act). The number of holders of shares of New BellRing Common Stock immediately after the merger will be substantially larger than the current number of holders of shares of BellRing Common Stock.

Holders of shares of Post Common Stock who are not directors, officers or affiliates of Post may elect to sell any shares New BellRing Common Stock they receive immediately after the transactions. Directors, officers and other affiliates of Post may immediately resell the New BellRing Common Stock they receive under Rule 144 of the Securities Act under certain conditions, one of which limits the amount of shares to the greater of 1% of the outstanding shares or the average weekly volume of trading of New BellRing Common Stock for the four weeks prior to their proposed sale. As a result of future sales of such common stock, or the perception that these sales could occur, the market price of New BellRing Common Stock may decline and could decline significantly before or at the time the transactions are completed, or immediately thereafter. If this occurs, or if other holders

 

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of shares of New BellRing Common Stock sell significant amounts of shares of New BellRing Common Stock immediately after the transactions are completed, it is likely that these sales would cause a decline in the market price of New BellRing Common Stock.

Risks Related to New BellRing after Completion of the Transactions

New BellRing’s business will be subject to the same risks as BellRing’s business.

Following the merger, and the completion of the transactions, New BellRing will be the successor issuer to, and public company holding company parent of, BellRing. There are no additional assets or operations being combined with BellRing or New BellRing as a result of the transactions. As a result, the operations of New BellRing will consist entirely of the operations of BellRing and New BellRing will be subject to the same risks as BellRing. The risks of BellRing as described under “Risk Factors” in the Form 10-K are incorporated by reference into this proxy statement/prospectus. Please see the section of this proxy statement/prospectus entitled “Where You Can Find More Information; Incorporation by Reference” beginning on page 130.

New BellRing will have a substantial amount of indebtedness following the transactions, which could materially adversely affect its financial condition.

New BellRing’s level of indebtedness will increase as a result of the transactions. As of September 30, 2021, BellRing had $609.9 million of indebtedness outstanding (of which $481.2 million was long-term indebtedness). On a pro forma basis after giving effect to the transactions, New BellRing will have pro forma net leverage of up to 4.00x. In connection with the transactions, New BellRing will enter into a senior secured term loan credit facility and/or revolving credit facility with respect to the New BellRing loans, and issue the New BellRing debt securities (with the aggregate principal amount of the New BellRing loans and the New BellRing debt securities not to exceed the lesser of (i) $1 billion and (ii) the maximum amount of indebtedness that would result in the New BellRing leverage ratio not exceeding 4.00x). For additional information regarding the New BellRing debt, please see the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—New BellRing Debt Financing” beginning on page 81.

Following the merger, BellRing and its subsidiaries will guarantee (i) the New BellRing loans on a secured first-lien basis on the closing date of the merger and (ii) the New BellRing debt securities on a senior unsecured basis on or as promptly as practicable after the date that is two weeks following the closing date of the merger, in each case, pari passu in right of payment with other senior debt of BellRing and its subsidiaries. Despite its level of indebtedness, New BellRing expects to continue to have the ability to borrow additional debt.

After the completion of the transactions, New BellRing’s indebtedness could have important consequences to New BellRing, including:

 

   

limiting its ability to fund working capital and capital expenditures;

 

   

limiting its ability to accommodate growth by reducing funds otherwise available for other corporate purposes and to strengthen its competitive position, which in turn could prevent New BellRing from fulfilling its obligations under its indebtedness;

 

   

limiting its operational flexibility due to the covenants contained in its debt agreements;

 

   

requiring it to dispose of significant assets in order to satisfy its debt service and other obligations if it is not able to satisfy these obligations from cash from operations or other sources;

 

   

to the extent that New BellRing’s debt is subject to floating interest rates, increasing New BellRing’s vulnerability to fluctuations in market interest rates;

 

   

limiting New BellRing’s ability to buy back shares of New BellRing Common Stock or pay cash dividends;

 

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limiting its flexibility in planning for, or reacting to, changes in its business or industry or economic conditions, thereby limiting its ability to compete with companies that are not as highly leveraged; and

 

   

increasing its vulnerability to economic downturns.

New BellRing’s ability to generate sufficient cash flow from operations to make scheduled payments on New BellRing’s debt will depend on a range of economic, competitive and business factors, many of which are outside of its control. There can be no assurance that New BellRing’s business will generate sufficient cash flow from operations to make these payments. If New BellRing is unable to meet its expenses and debt obligations, New BellRing may need to refinance all or a portion of its indebtedness before maturity, sell assets or issue additional equity. New BellRing may not be able to refinance any of its indebtedness (including pursuant to the terms of such indebtedness), sell assets or issue additional equity on commercially reasonable terms or at all, which could cause New BellRing to default on its obligations and impair its liquidity. New BellRing’s inability to generate sufficient cash flow to satisfy its debt obligations, or to refinance its debt obligations on commercially reasonable terms, would have a material adverse effect on New BellRing’s business, financial condition and results of operations, as well as on New BellRing’s ability to satisfy its debt obligations.

New BellRing may be unable to take certain actions because such actions could jeopardize the tax-free status of the distribution by Post of New BellRing Common Stock, and such restrictions could be significant.

To preserve the tax-free treatment of the distribution by Post of New BellRing Common Stock, for the initial two-year period following the distribution, New BellRing will be prohibited, except in limited circumstances, from taking or failing to take certain actions that would prevent the distribution and related transactions from being tax-free, including: (i) issuing any equity securities or securities that could possibly be converted into New BellRing’s equity securities, including as acquisition currency for a merger or acquisition (but excluding certain equity compensation for New BellRing employees); (ii) redeeming or repurchasing New BellRing equity securities or New BellRing debt or (iii) entering into any transaction pursuant to which New BellRing stock would be acquired, whether by merger or otherwise. These restrictions will not apply if New BellRing delivers an unqualified “will”-level tax opinion of a nationally recognized accounting firm or law firm (“BellRing tax counsel”) in form and substance reasonably satisfactory to Post or a ruling from the U.S. Internal Revenue Service (the “IRS”) that the action will not cause the transactions to fail to qualify for their intended tax treatment.

If the distribution by Post of New BellRing Common Stock is completed, New BellRing may be responsible for U.S. federal income tax liabilities that relate to such distribution.

The completion of the distribution by Post of New BellRing Common Stock is conditioned on the receipt by Post of the 355 tax opinion to the effect that the distribution, together with certain contributions made by Post to New BellRing, will qualify as a tax-free reorganization under Sections 368(a) and 355 of the IRC and a distribution eligible for nonrecognition within the meaning of Sections 355 and 361 of the IRC. The completion of the distribution is also conditioned on the receipt by BellRing of the BellRing tax opinion to the effect that the merger of Merger Sub with and into BellRing (or the alternative transaction structure under circumstances described in the transaction agreement) will qualify as a “reorganization” within the meaning of Section 368(a) of the IRC or, alternatively, as a transaction qualifying for nonrecognition of gain and loss under Section 351 of the IRC. The 355 tax opinion and the BellRing tax opinion will not be binding on the IRS. Accordingly, the IRS may reach conclusions with respect to the distribution that are different from the conclusions reached in the opinions. The tax opinions will be based on certain factual statements and representations, which, if incomplete or untrue in any material respect, could alter either or both of the tax advisors’ conclusions. We are not aware of any facts or circumstances that would cause any such factual statements or the opinion of the tax advisors to be incomplete or untrue.

If all or a portion of the distribution does not qualify as a tax-free transaction for any reason, including because any of the factual statements or representations in the legal opinions are incomplete or untrue, Post may recognize a substantial gain for U.S. federal income tax purposes.

 

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Even if the distribution otherwise qualifies as a tax-free transaction for U.S. federal income tax purposes, the distribution will be taxable to Post (but not to Post shareholders) pursuant to Section 355(e) of the IRC if there are (or have been) one or more acquisitions (including issuances), directly or indirectly (including through acquisitions of such stock after the completion of the transactions), of New BellRing stock or the stock of Post, representing 50% or more, measured by vote or value, of the stock of any such corporation and the acquisition or acquisitions are deemed to be part of a plan or series of related transactions that include the distribution. The process for determining whether an acquisition is part of a plan under these rules is complex, inherently factual in nature, and subject to a comprehensive analysis of the facts and circumstances of the particular case. In general, any acquisition of New BellRing Common Stock within two years before or after the distribution (with certain exceptions, including public trading by less-than-5% stockholders and certain compensatory stock issuances) generally will be presumed to be part of such a plan unless that presumption is rebutted. The resulting tax liability would be substantial.

New BellRing has agreed not to enter into certain transactions that could cause any portion of the distribution to be taxable to Post, including under Section 355(e) of the IRC. Pursuant to a tax matters agreement with Post (the “tax matters agreement”), New BellRing will agree to indemnify Post for any tax liabilities resulting from such transactions or other actions New BellRing takes, and Post has agreed to indemnify New BellRing for any tax liabilities resulting from transactions entered into by Post. These obligations may discourage, delay or prevent a change of control of New BellRing.

In addition, pursuant to the tax matters agreement, if and to the extent the distribution does not qualify as a tax-free transaction, such failure to qualify as a tax-free transaction gives rise to adjustments to the tax basis of assets held by New BellRing and its subsidiaries, and New BellRing is not required to indemnify Post for any tax liabilities resulting from such failure to qualify as a tax-free transaction, Post shall be entitled to periodic payments from New BellRing equal to 85% of the tax savings arising from the aggregate increase to the tax basis of assets held by New BellRing and its subsidiaries resulting from such failure and Post and New BellRing shall negotiate in good faith the terms of a tax receivable agreement to govern the calculation of such payments applying the principles of, and adhering as closely as practicable to, the existing tax receivable agreement between Post and BellRing. For more information, please see the section of this proxy statement/prospectus entitled “Ancillary Agreements—Tax Matters Agreement” beginning on page 97.

Tax legislation could materially adversely affect New BellRing’s financial results.

New BellRing is subject to the tax laws and regulations of the U.S. federal, state and local governments, as well as non-U.S. jurisdictions. From time to time, various legislative initiatives may be proposed that could materially adversely affect New BellRing’s tax positions. There can be no assurance that New BellRing’s effective tax rate will not be materially adversely affected by legislation resulting from these initiatives. The overall impact of any new legislative initiatives is uncertain and New BellRing’s business and financial condition could be materially adversely affected.

Risks Related to New BellRing’s Structure

New BellRing’s certificate of incorporation and bylaws and provisions of Delaware law may discourage or prevent strategic transactions, including a takeover of New BellRing, even if such a transaction would be beneficial to New BellRing’s stockholders.

Provisions that will be contained in New BellRing’s certificate of incorporation and bylaws and provisions of the DGCL could delay or prevent a third party from entering into a strategic transaction with us, as applicable, even if such a transaction would benefit New BellRing’s stockholders. For example, New BellRing’s certificate of incorporation and bylaws will:

 

   

divide the members of the New BellRing Board of Directors into three classes with staggered three-year terms, which may delay or prevent a change of New BellRing management or a change of control;

 

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authorize the issuance of “blank check” preferred stock that could be issued by New BellRing upon approval of the New BellRing Board of Directors to increase the number of outstanding shares of capital stock, making a takeover more difficult and expensive;

 

   

provide that directors may be removed from office only for cause and that any vacancy or newly created directorships on the New BellRing Board of Directors may only be filled by a majority of New BellRing’s directors then in office, which may make it difficult for other stockholders to reconstitute the New BellRing Board of Directors;

 

   

provide that special meetings of the stockholders may be called only upon the request of a majority of the New BellRing Board of Directors or by the chairman of the New BellRing Board of Directors or New BellRing’s chief executive officer;

 

   

prohibit stockholder action by written consent and require that any action to be taken by the stockholders be taken at an annual or special meeting of stockholders; and

 

   

require advance notice to be given by stockholders for any stockholder proposals or director nominees.

These restrictions and provisions could keep New BellRing from pursuing relationships with strategic partners and from raising additional capital, which could impede New BellRing’s ability to expand its business and strengthen its competitive position. These restrictions also could limit stockholder value by impeding a sale of New BellRing.

New BellRing’s certificate of incorporation will provide that the Court of Chancery of the State of Delaware is the exclusive forum for substantially all disputes between New BellRing and its stockholders, which could limit New BellRing stockholders’ ability to obtain a favorable judicial forum for disputes with New BellRing or its directors, officers or employees.

New BellRing’s certificate of incorporation will provide that the Court of Chancery of the State of Delaware (the “Court of Chancery”) (or, if the Court of Chancery does not have subject matter jurisdiction, the federal district court for the State of Delaware) is the exclusive forum for the following types of actions or proceedings under Delaware statutory or common law:

 

   

any derivative action or proceeding brought on New BellRing’s behalf;

 

   

any action asserting a breach of fiduciary duty;

 

   

any action asserting a claim against New BellRing arising pursuant to the DGCL; and

 

   

any action asserting a claim against New BellRing that is governed by the internal affairs doctrine.

This provision would not apply to suits brought to enforce a duty or liability created by the Exchange Act, for which the U.S. federal courts have exclusive jurisdiction. Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all Securities Act actions. Accordingly, both state and federal courts have jurisdiction to entertain such claims. However, New BellRing’s certificate of incorporation also will provide that U.S. federal courts will, to the fullest extent permitted by law, be the sole and exclusive forum for the resolution of any complaint asserting a cause of action or proceeding arising under the Securities Act. While the Delaware courts have determined that choice of forum provisions are facially valid, a stockholder may nevertheless seek to bring a claim in a venue other than that designated in New BellRing’s exclusive forum provision. Although New BellRing’s certificate of incorporation will contain the exclusive forum provision described above, it is possible that a court could find that such a provision is inapplicable for a particular claim or action or that such provision is unenforceable. The exclusive forum provision shall not relieve New BellRing of its duties to comply with the federal securities laws and the rules and regulations thereunder, and New BellRing stockholders will not be deemed to have waived New BellRing’s compliance with these laws, rules and regulations.

 

 

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This choice of forum provision may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with New BellRing or its directors, officers, or other employees and may discourage these types of lawsuits. Alternatively, if a court were to find the choice of forum provision contained in New BellRing’s certificate of incorporation to be inapplicable or unenforceable in an action, New BellRing may incur additional costs associated with resolving such action in other jurisdictions.

Risks Related to Owning Shares of New BellRing Common Stock

An active trading market for New BellRing Common Stock may never develop or be sustained.

Prior to the completion of the transactions, there has not been a public trading market for shares of New BellRing Common Stock. There can be no assurance that an active trading market for New BellRing Common Stock will develop or, if developed, that any market will be sustained. Accordingly, there can be no assurance of the likelihood that you will be able to sell your shares of New BellRing Common Stock when you wish to do so, the prices that you may be able to obtain for your shares, or the liquidity of any trading market.

The market price of New BellRing Common Stock may be volatile and you may lose all or part of your investment.

The market price of New BellRing Common Stock could fluctuate significantly, and you may not be able to resell your shares of New BellRing Common Stock at or above the price at which your shares were acquired. Those fluctuations could be based on various factors, including those described in this proxy statement/prospectus in the section entitled “Risk Factors—Risks Related to the Transactions” beginning on page 29 and the following:

 

   

New BellRing’s operating performance and the performance of New BellRing’s competitors and fluctuations in New BellRing’s operating results;

 

   

the public’s reaction to New BellRing’s press releases, other public announcements and filings with the SEC;

 

   

changes in earnings estimates or recommendations by research analysts who follow New BellRing or other companies in New BellRing’s industry;

 

   

global, national or local economic, legal and regulatory factors unrelated to New BellRing’s performance;

 

   

announcements by New BellRing or its competitors of new products, services, strategic investments or acquisitions;

 

   

actual or anticipated variations in New BellRing’s or its competitors’ operating results, and New BellRing’s and its competitors’ growth rates;

 

   

failure by New BellRing or its competitors to meet analysts’ projections or guidance New BellRing or its competitors may give to the market;

 

   

changes in laws or regulations, or new interpretations or applications of laws and regulations, that are applicable to New BellRing’s business;

 

   

changes in accounting standards, policies, guidance, interpretations or principles;

 

   

the arrival or departure of key personnel;

 

   

the number of shares publicly traded;

 

   

future sales or issuances of shares of New BellRing Common Stock, including sales, distributions or issuances by New BellRing, its officers or directors and its significant stockholders; and

 

   

other developments affecting New BellRing, its industry or its competitors.

 

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In addition, in recent years the stock market has experienced significant price and volume fluctuations that have affected and continue to affect the market prices of equity securities of many companies. These fluctuations have often been unrelated or disproportionate to the operating performance of those companies. These broad market fluctuations, as well as general economic, political and market conditions such as recessions or interest rate changes, may cause declines in the market price of New BellRing Common Stock and you may not realize any return on your investment in New BellRing and may lose some or all of your investment.

As it primarily operates in a single industry, New BellRing is especially vulnerable to these factors to the extent that they affect its industry or its products. In the past, securities class action litigation has often been initiated against companies following periods of volatility in their stock price. This type of litigation could result in substantial costs and divert New BellRing management’s attention and resources, and also could require New BellRing to make substantial payments to satisfy judgments or to settle litigation.

If securities or industry analysts publish inaccurate or unfavorable research about New BellRing’s business, New BellRing’s stock price and trading volume could decline.

The trading market for New BellRing Common Stock is influenced in part by the research and reports that securities or industry analysts publish about New BellRing or its business. If one or more of the analysts who cover New BellRing downgrades New BellRing Common Stock or publishes inaccurate or unfavorable research about New BellRing’s business, New BellRing’s stock price could decline. If one or more of these analysts ceases coverage of New BellRing or fails to publish reports on New BellRing regularly, demand for New BellRing Common Stock could decrease, which could cause New BellRing’s stock price and trading volume to decline.

New BellRing does not intend to pay dividends for the foreseeable future.

New BellRing may retain future earnings, if any, for future operations, expansion and debt repayment. New BellRing has not paid cash dividends to date and has no current plans to pay any cash dividends for the foreseeable future. As a result of its current dividend policy, you may not receive any return on an investment in shares of New BellRing Common Stock unless you sell shares of your New BellRing Common Stock for a price greater than that which you paid for it. Any future determination to declare and pay cash dividends will be at the discretion of the New BellRing Board of Directors and will depend on, among other things, New BellRing’s financial condition, results of operations, cash requirements, contractual restrictions and such other factors as the New BellRing Board of Directors deems relevant. New BellRing’s ability to pay dividends depends on its receipt of cash dividends from its operating subsidiaries, which may further restrict its ability to pay dividends as a result of the laws of their jurisdictions of organization or agreements of its subsidiaries, including agreements governing its indebtedness.

 

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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

This proxy statement/prospectus (including information included or incorporated by reference into this proxy statement/prospectus) contains certain statements relating to future events and each of Post’s, New BellRing’s and BellRing’s intentions, beliefs, expectations and predictions for the future, including statements concerning future business conditions and prospects, growth opportunities and estimates of growth, the outlook for each of Post’s, New BellRing’s and BellRing’s business, the expected benefits of the transactions, and the expected timing of completion of the transactions described in this proxy statement/prospectus based upon information currently available. Any such statements, other than statements of historical fact, are forward-looking statements. These forward-looking statements are sometimes identified from the use of forward-looking words such as “believe,” “should,” “could,” “potential,” “continue,” “expect,” “project,” “estimate,” “predict,” “anticipate,” “aim,” “intend,” “plan,” “forecast,” “target,” “is likely,” “will,” “can,” “may” or “would” or the negative of these terms or similar expressions. These forward-looking statements are based upon current assumptions and expectations of each of Post’s, New BellRing’s and BellRing’s management.

Such forward-looking statements are subject to risks and uncertainties that could cause each of Post’s, New BellRing’s and BellRing’s actual results, performance and achievements to differ materially from those expressed in, or implied by, these statements included in this proxy statement/prospectus. These forward-looking statements are subject to various risks and uncertainties, many of which are outside of BellRing’s control. Important factors that could cause actual results and expectations to differ materially from those indicated by such forward-looking statements include, without limitation, the risks and uncertainties set forth under the section entitled “Risk Factors” in this proxy statement/prospectus and under the caption “Risk Factors” found under Item 1A of the Form 10-K, which are incorporated by reference into this proxy statement/prospectus. These risks and uncertainties include risks relating to:

 

   

BellRing’s ability to obtain the requisite stockholder approval to complete the transactions;

 

   

other conditions to the completion of the transactions not being satisfied;

 

   

a material adverse change, event or occurrence affecting BellRing or Post prior to the completion of the transactions delaying the transactions or causing BellRing or Post to abandon the transactions;

 

   

the possibility that the transactions may involve unexpected costs, liabilities or delays;

 

   

the possibility that there may be delays in completing the transactions, or the transactions may not be completed at all;

 

   

the possibility that the failure to complete the transactions could adversely affect the market price of BellRing Common Stock as well as BellRing’s business, financial condition and results of operations;

 

   

the possibility that if completed, the transactions may not be successful or achieve their anticipated benefits;

 

   

the incurrence by New BellRing of significant indebtedness in connection with the transactions, resulting in pro forma net leverage of up to 4.00x;

 

   

the businesses of each respective company being negatively impacted as a result of uncertainty surrounding the transactions;

 

   

diversion of BellRing management’s time and attention in connection with the transactions;

 

   

disruptions from the transactions harming relationships with customers, employees or suppliers;

 

   

dependence upon broad-based acceptance of New BellRing’s products and services;

 

   

the presence of competitors with greater financial resources than New BellRing and their strategic response to New BellRing’s products;

 

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the possibility that conditions of the capital markets during the periods covered by the forward-looking statements may have an adverse effect on each company’s businesses, financial condition, results of operations and cash flows;

 

   

uncertainties regarding future prices, industry capacity levels and demand for each company’s products, raw materials and energy costs and availability, changes in governmental regulations or the adoption of new laws or regulations that may make it more difficult or expensive to operate each company’s businesses or manufacture its products before or after the transactions, each company’s ability to generate sufficient cash flow from its businesses before and after the transactions, future economic conditions in the specific industries to which its respective products are sold and global economic conditions;

 

   

future compliance with debt covenants and access to capital;

 

   

BellRing and New BellRing may be unable to timely satisfy all conditions to the financings required in connection with the transactions;

 

   

BellRing’s inability to take certain actions because such actions could jeopardize the tax-free status of the proposed distribution;

 

   

BellRing’s possible responsibility for U.S. federal tax liabilities related to the proposed distribution; and

 

   

other risks and uncertainties included under “Risk Factors” in this proxy statement/prospectus or listed from time to time in Post’s and BellRing’s public filings with the SEC.

In addition, other factors besides those listed here could adversely affect each of New BellRing’s and BellRing’s business and results of operations. Other unknown or unpredictable factors could also have a material adverse effect on each of New BellRing’s and BellRing’s actual future results, performance, or achievements. For a further discussion of these and other risks and uncertainties, please see the section of this proxy statement/prospectus entitled “Risk Factors” beginning on page 29. As a result of the foregoing, readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this proxy statement/prospectus. None of Post, New BellRing or BellRing undertakes, and each expressly disclaims, any duty to update any forward-looking statement whether as a result of new information, future events or changes in its respective expectations, except as required by law.

Because forward-looking statements are based on estimates and assumptions that are subject to significant business, economic and competitive uncertainties, many of which are beyond each of Post’s, New BellRing’s and BellRing’s control or are subject to change, actual results could be materially different and any or all of these forward-looking statements may turn out to be wrong. Forward-looking statements speak only as of the date made and can be affected by assumptions each of Post, New BellRing and BellRing might make or by known or unknown risks and uncertainties. Many factors mentioned in this proxy statement/prospectus and in Post’s and BellRing’s annual and quarterly reports will be important in determining future results. Consequently, none of Post, New BellRing or BellRing can assure you that expectations or forecasts expressed in such forward-looking statements will be achieved. Actual future results may vary materially.

 

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UNAUDITED PRO FORMA COMBINED FINANCIAL STATEMENTS OF NEW BELLRING

The unaudited pro forma combined financial statements of New BellRing for the year ended September 30, 2021 give effect to the transactions, as described below. The unaudited pro forma combined balance sheet gives effect to the transactions as if they had occurred on September 30, 2021 and the unaudited pro forma combined statement of operations gives effect to the transactions as if they had occurred on October 1, 2020. The unaudited pro forma combined financial statements were prepared using the accounting for transactions between entities under common control under U.S. generally accepted accounting principles, or GAAP, which is subject to change and interpretation. Both New BellRing and BellRing are controlled by Post and as such, the transactions were accounted for as a transfer of interests under common control in accordance with Accounting Standards Codification Topic 805-50-15-6. Accordingly, the consolidated financial statements of New BellRing will recognize the assets and liabilities received in the transaction at their historical carrying amounts, as reflected in the historical consolidated financial statements of BellRing. The unaudited pro forma combined financial statements have been prepared by BellRing’s management and is based on BellRing’s historical financial statements and the assumptions and adjustments described in the notes to the unaudited pro forma combined financial information below. The presentation of the unaudited pro forma financial statements is prepared in conformity with Article 11 of Regulation S-X rules effective January 1, 2021.

New BellRing’s historical financial information for the year ended September 30, 2021 has been derived from BellRing’s consolidated financial statements and the related notes incorporated by reference into this proxy statement/prospectus.

The unaudited pro forma combined financial statements have been prepared to include transaction accounting and autonomous entity adjustments to reflect the financial condition and results of operations as if New BellRing were a separate stand-alone entity.

Transaction accounting adjustments that reflect the effects of BellRing’s legal separation from Post include the following adjustments:

 

   

adjustments for the completion of the separation under the terms described in the transaction agreement;

 

   

adjustments for the (i) issuance of the New BellRing debt and (ii) the repayment of BellRing’s outstanding indebtedness under the BellRing LLC credit agreement;

 

   

adjustments for the dissolution of BellRing’s Up-C structure, including the reversal of the liability related to the tax receivable agreement between BellRing and Post and the resulting tax impacts of a higher effective tax rate more closely aligned with other C-corporations;

 

   

adjustments for the distribution; and

 

   

adjustments for the merger, as a result of which, BellRing will become a direct, wholly owned subsidiary of New BellRing, with New BellRing as the new public parent company of BellRing and the successor issuer to BellRing.

Autonomous entity adjustments of incremental expense or other changes necessary to reflect the operations and financial position of BellRing as an autonomous entity when BellRing was previously part of Post include the following adjustments:

 

   

adjustments for incremental costs expected to be incurred under the amended and restated master services agreement between New BellRing and Post; and

 

   

adjustments to deferred taxes related to the anticipated termination of BellRing LLC’s partnership structure for U.S. federal, state and local income tax purposes.

The unaudited pro forma combined financial statements should be read in conjunction with the accompanying notes to the unaudited pro forma combined financial statements and BellRing’s “Management’s Discussion and

 

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Analysis of Financial Condition and Results of Operations” incorporated by reference into this proxy statement/prospectus. In addition, the unaudited pro forma combined financial statements were based on and should be read in conjunction with the separate audited consolidated financial statements of BellRing as of September 30, 2021 and 2020 and for the years ended September 30, 2021, 2020 and 2019, and the related notes incorporated by reference into this proxy statement/prospectus. Please see the section of this proxy statement/prospectus entitled “Where You Can Find More Information; Incorporation by Reference” beginning on page 130.

The unaudited pro forma combined financial statements have been presented for informational purposes only. The pro forma information is not necessarily indicative of what New BellRing’s financial position or results of operations actually would have been had the transactions been completed as of the dates indicated. In addition, the unaudited pro forma combined financial statements do not purport to project New BellRing’s future financial position or operating results. In addition, the unaudited pro forma combined financial statements include adjustments which are preliminary and have been made solely for the purpose of providing unaudited pro forma combined financial statements prepared in accordance with the rules and regulations of the SEC. There can be no assurance that such revisions will not result in material changes.

The unaudited pro forma combined financial statements may not reflect all cost savings, operating synergies or revenue enhancements that New BellRing may achieve as a result of the transactions or the costs necessary to achieve these cost savings, operating synergies and revenue enhancements. The unaudited pro forma combined financial statements also do not reflect all future costs that may be incurred in the future as a result of these transactions or the costs to transition certain corporate functions from Post to BellRing.

Unaudited Pro Forma Consolidated Statement of Operations

For the Year Ended September 30, 2021

(in millions, except per share data)

 

     BellRing
Historical
    Transaction
Accounting
Adjustments
    Autonomous
Entity
Adjustments
    Pro
Forma
 

Net Sales

   $ 1,247.1   $ —       $ —       $ 1,247.1

Cost of goods sold

     860.9     —         —         860.9
  

 

 

   

 

 

   

 

 

   

 

 

 

Gross Profit

     386.2     —         —         386.2

Selling, general and administrative expenses

     167.1     8.8 (h)      2.8 (k)      178.7

Amortization of intangible assets

     51.2     —         —         51.2

Other operating expenses, net

     (0.1     —         —         (0.1
  

 

 

   

 

 

   

 

 

   

 

 

 

Operating Profit

     168.0     (8.8     (2.8     156.4

Interest expense, net

     43.2     14.0 (i)      —         57.2

Loss on refinancing of debt

     1.6     —         —         1.6
  

 

 

   

 

 

   

 

 

   

 

 

 

Earnings before Income Taxes

     123.2     (22.8     (2.8     97.6

Income tax expense

     8.8     16.2 (d)      (1.3 )(l)      23.7
  

 

 

   

 

 

   

 

 

   

 

 

 

Net Earnings Including Redeemable Noncontrolling Interest

     114.4     (39.0     (1.5     73.9

Less: Net earnings attributable to redeemable noncontrolling interest

     86.8     (86.8 )(e)      —         —    
  

 

 

   

 

 

   

 

 

   

 

 

 

Net Earnings

   $ 27.6   $ 47.8     $ (1.5   $ 73.9
  

 

 

   

 

 

   

 

 

   

 

 

 

Earnings per share of Class A Common Stock:

        

Basic

   $ 0.70     —         —       $ 0.54

Diluted

   $ 0.70     —         —       $ 0.54

Weighted-average shares of Class A Common Stock Outstanding (in millions of shares):

 

   

Basic

     39.5     97.5 (j)      —         137.0

Diluted

     39.7     97.5 (j)      —         137.2

See accompanying Notes to Unaudited Pro Forma Condensed Consolidated Financial Information.

 

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Unaudited Pro Forma Consolidated Balance Sheet

As of September 30, 2021

(in millions, except per share data)

 

     BellRing
Historical
    Transaction
Accounting
Adjustments
    Autonomous
Entity
Adjustments
    Pro
Forma
 

Current Assets

        

Cash and cash equivalents

   $ 152.6   $ (122.9 ) (a)    $ —       $ 29.7

Receivables, net

     103.9     —         —       $ 103.9

Inventories

     117.9     —         —       $ 117.9

Prepaid expenses and other current assets

     13.7     —         —       $ 13.7
  

 

 

   

 

 

   

 

 

   

 

 

 

Total Current Assets

     388.1     (122.9     —         265.2

Property, net

     8.9     —         —         8.9

Goodwill

     65.9     —         —         65.9

Intangible assets, net

     223.1     —         —         223.1

Other assets

     10.5     0.6  (b)      —         11.1
  

 

 

   

 

 

   

 

 

   

 

 

 

Total Assets

   $ 696.5   $ (122.3   $ —       $ 574.2
  

 

 

   

 

 

   

 

 

   

 

 

 

Current Liabilities

        

Current portion of long-term debt

   $ 116.3   $ (116.3 ) (b)    $ —       $ —  

Accounts payable

     91.9     —         —       $ 91.9

Other current liabilities

     43.1     —    (c)      —         43.1
  

 

 

   

 

 

   

 

 

   

 

 

 

Total Current Liabilities

     251.3     (116.3     —         135.0

Long-term debt

     481.2     460.6  (b)      —         941.8

Deferred income taxes

     7.6     3.2  (d)      (7.4 ) (l)      3.4

Other liabilities

     21.9     (10.2 ) (c)      —         11.7
  

 

 

   

 

 

   

 

 

   

 

 

 

Total Liabilities

     762.0     337.3       (7.4     1,091.9

Redeemable noncontrolling interest

     2,997.3     (2,997.3 ) (e)      —         —    

Stockholders’ Deficit

        

Preferred stock

     —         —         —         —    

Common stock

     0.4       1.0  (f)      —         1.4  

Accumulated deficit

     (3,059.7     2,535.1  (a,b,c,d,e,f,g)      7.4  (l)      (517.2

Accumulated other comprehensive loss

     (3.5     1.6  (g)      —         (1.9
  

 

 

   

 

 

   

 

 

   

 

 

 

Total Stockholders’ Deficit

     (3,062.8     2,537.7       7.4       (517.7
  

 

 

   

 

 

   

 

 

   

 

 

 

Total Liabilities and Stockholders’ Deficit

   $ 696.5   $ (122.3   $ —       $ 574.2
  

 

 

   

 

 

   

 

 

   

 

 

 

See accompanying Notes to Unaudited Pro Forma Condensed Consolidated Financial Information.

 

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Notes to Unaudited Pro Forma Consolidated Financial Information

Transaction Accounting Adjustments

(a) Reflects (i) proceeds of $569.3, which represents Post’s good faith estimate of the Post negative capital account, received in connection with the issuance by New BellRing of approximately $885.3 aggregate principal amount of New BellRing debt securities (with the remaining $316.0 representing incremental value to Post in connection with such issuance), plus (ii) $66.7 aggregate principal amount of New BellRing loans expected to be drawn at the completion of the transactions in connection with New BellRing’s entry into a $250.0 credit agreement, less (iii) the repayment of the outstanding indebtedness under the BellRing LLC credit agreement of $609.9, net of excess cash that may be used to repay such indebtedness (including any fees and other obligations with respect thereto) on or prior to the completion of the transactions (which is estimated to be approximately $102.9), less (iv) the payment by New BellRing of an aggregate cash consideration amount of $129.0 to BellRing stockholders in connection with the merger, less (v) payment of transaction, debt issuance and deferred financing fees of $20.0. Upon the distribution, the sole outstanding share of BellRing Class B Common Stock will be cancelled with no consideration to New BellRing.

(b) Reflects (i) the entry by New BellRing into a $250.0 credit agreement governing the New BellRing loans, of which $66.7 aggregate principal amount is expected to be drawn at the completion of the transactions, (ii) the issuance by New BellRing of approximately $885.3 aggregate principal amount of New BellRing debt securities, in each case of clauses (i) and (ii), net of aggregate debt issuance costs of $10.2, and (iii) the repayment of the outstanding indebtedness under the BellRing LLC credit agreement of $609.9, net of debt issuance costs. In connection with the New BellRing debt incurrence and the repayment of the outstanding indebtedness under the BellRing LLC credit agreement, deferred financing fees of $1.4 and $0.8 were deferred and reversed, respectively. Actual borrowings incurred may differ from these estimates. Pursuant to the transaction agreement, the amount of New BellRing debt incurred will not exceed the lesser of (i) $1 billion and (ii) the maximum amount of indebtedness that would result in the New BellRing leverage ratio not exceeding 4.00x on a pro forma basis after giving effect to the transactions. The $952.0 aggregate principal amount of New BellRing debt reflected in these unaudited pro forma combined financial statements is based on the assumption that the amount in clause (ii) of the foregoing sentence will be less than $1 billion and approximately equal to $952.0. All existing BellRing debt will be extinguished in connection with the transaction.

The $885.3 aggregate principal amount of New BellRing debt securities is expected to reflect the issuance of a single tranche of senior notes with a term of ten years and bear interest at an assumed rate of 6.0%. The credit agreement is expected to consist of a $250.0 revolving credit facility with a $20.0 letter of credit subfacility that will mature in five years. The credit agreement will permit New BellRing to borrow in U.S. Dollars, Euros or Pounds Sterling. Borrowings under the credit agreement are expected to bear interest, at the option of New BellRing, at an annual rate, subject to certain adjustments, equal to (i) Term SOFR (based on the secured overnight financing rate) or (ii) the Base Rate (based on the prime rate), plus a margin of 3.00%-3.75% for Term SOFR loans or 2.00%-2.75% for Base Rate loans, depending on New BellRing’s secured net leverage ratio. Commitment fees on the daily unused amount of commitments under the credit agreement will accrue at a rate of 0.25%-0.375% depending on New BellRing’s secured net leverage ratio. For additional information on the interest rate expense adjustment, please see Note (i) of these “Notes to Unaudited Pro Forma Consolidated Financial Information.”

(c) The BellRing historical financial statements include a $10.5 liability, which will be relieved as described below, recorded pursuant to the existing tax receivable agreement between BellRing and Post with respect to disproportionate allocations of tax benefits under Section 704(c) of the IRC between BellRing and Post as a result of the dissolution of the BellRing Up-C structure in connection with the transactions. A $0.3 million payment by BellRing to Post with respect to periods prior to the completion of the transactions is expected and recorded in “Other current liabilities.” No other amounts are expected to become payable under the existing tax receivable agreement. The adjustment of $10.2 in “Other liabilities” reflects the reversal of the remaining existing tax receivable liability. The existing tax receivable agreement between BellRing and Post will remain in effect should any tax benefits covered under the existing tax receivable agreement with respect to periods prior to the completion of the transactions accrue in future periods, but the existing

 

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tax receivable agreement will no longer be applicable for tax benefits that accrue with respect to periods after the completion of the transactions. In addition, no early termination payment or fee will be paid or received by either BellRing or Post, in connection with the transactions.

(d) Reflects the resulting tax impacts of a higher effective tax rate more closely aligned with other C-corporations in the U.S. Prior to the transactions, BellRing took into account for U.S. federal, state and local income tax purposes its 28.8% distributive share of items of income, gain, loss and deduction of BellRing LLC.

(e) Reflects the removal of the noncontrolling interest in BellRing LLC, as it will be 100% owned by New BellRing upon completion of the transactions.

(f) Reflects the contribution by Post of all BellRing LLC Units to New BellRing.

(g) Reflects the removal of the unamortized interest rate swap losses associated with the BellRing LLC term loan outstanding under the BellRing LLC credit agreement.

(h) Reflects $8.4 of estimated transaction costs resulting from the separation and distribution as well as the removal of income previously recorded related to the tax receivable agreement. Actual transaction costs incurred may differ from the estimates.

(i) Reflects expense of $57.2 related to the incurrence of the New BellRing debt and the removal of expense of $43.2 related to previously outstanding indebtedness under the BellRing LLC credit agreement. For the New BellRing debt, interest expense was calculated using a weighted-average interest rate of 5.0% (including interest on the principal balance of the senior notes and borrowings and unused commitment fees under the credit agreement). An assumed 0.125% increase or decrease in the stated interest rates assumed for the New BellRing debt would increase or decrease pro forma interest expense by approximately $1.4 for the year ended September 30, 2021 (assuming the principal balance of the New BellRing debt outstanding upon completion of the transactions does not change from the amount originally incurred).

(j) Pro forma weighted-average shares for basic and diluted earnings per share were adjusted to reflect the contribution by Post of all of the BellRing LLC Units to New BellRing.

Autonomous Entity Adjustments

(k) Reflects $5.0 estimated expense under the amended and restated master services agreement to be entered into between New BellRing and Post offset by the removal of $2.2 of expense incurred under BellRing LLC’s existing master services agreement with Post.

(l) Reflects the income tax effects of pro forma adjustments related to the amended and restated master services agreement described in note (k) above and the adjustment to deferred taxes related to the anticipated termination of BellRing LLC’s partnership structure for U.S. federal, state and local income tax purposes.

 

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MARKET PRICE INFORMATION

New BellRing

Historical market price information for the New BellRing Common Stock is not provided because there is no public market for the New BellRing Common Stock.

BellRing

Shares of BellRing Class A Common Stock are traded on the NYSE under the ticker symbol “BRBR”. The closing price of the BellRing Class A Common Stock on October 26, 2021, the last trading day before announcement of the execution of the transaction agreement was $26.48. As of February 1, 2022, the record date for the special meeting, the most recent closing price for the BellRing Class A Common Stock was $24.59.

Historical market price information for the BellRing Class B Common Stock is not provided because there is no public market for the BellRing Class B Common Stock.

 

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DESCRIPTION OF THE COMPANIES

BellRing Brands, Inc.

BellRing Brands, Inc.

2503 S. Hanley Road

St. Louis, Missouri 63144

Telephone: (314) 644-7600

BellRing, together with its subsidiaries, is a leader in the global convenient nutrition category, aiming to enhance the lives of its consumers by providing them with highly nutritious, great-tasting products they can enjoy throughout the day. Its primary brands, Premier Protein and Dymatize, target a broad range of consumers and compete in all major product forms, including RTD protein shakes, other RTD beverages and powders. BellRing’s products are distributed across a diverse network of channels including club, FDM, eCommerce, specialty and convenience.

BellRing was incorporated in the State of Delaware on March 20, 2019 in connection with its IPO. Upon completion of a series of transactions in connection with the IPO, BellRing LLC became the holder of Post’s active nutrition business, which, effective as of Post’s quarter ended June 30, 2015, and until the completion of BellRing’s IPO, had been comprised of Premier Nutrition, Dymatize, the PowerBar brand and Active Nutrition International.

Because Post currently owns more than 50% of the voting power of all of the outstanding BellRing Common Stock, BellRing is a “controlled company” under the NYSE corporate governance standards and is eligible to rely on certain exemptions from the NYSE corporate governance requirements; however, BellRing does not currently rely on any of these exemptions.

At the completion of the transactions, BellRing will change its name to BellRing Intermediate Holdings, Inc.

Post Holdings, Inc.

Post Holdings, Inc.

2503 S. Hanley Road

St. Louis, Missouri 63144

Telephone: (314) 644-7600

Post is a consumer packaged goods holding company operating in the center-of-the-store, refrigerated, foodservice, food ingredient and convenient nutrition food categories. Post also participates in the private brand food category, including through its investment with third parties in 8th Avenue. Post’s products are sold through a variety of channels, including grocery, club and drug stores, mass merchandisers, foodservice, food ingredient and eCommerce. As of September 30, 2021, Post operates in five reportable segments: Post Consumer Brands, Weetabix, Foodservice, Refrigerated Retail and BellRing Brands. The Post Consumer Brands segment includes the North American RTE cereal and Peter Pan nut butters; the Weetabix segment includes primarily the U.K. RTE cereal and muesli business; the Foodservice segment includes primarily egg and potato products; the Refrigerated Retail segment includes primarily side dish, egg, cheese and sausage products; and the BellRing Brands segment includes RTD protein shakes and other RTD beverages, powders and nutrition bars.

On February 3, 2012, Post completed its legal separation via a tax free spin-off from its former parent company. On February 6, 2012, Post Common Stock began trading on the NYSE under the ticker symbol “POST”.

In its year ended September 30, 2013, Post acquired Premier Nutrition, which, at the time, was a marketer and distributor of high quality protein shakes and nutrition bars under the Premier Protein brand and nutritional supplements under the Joint Juice brand. Premier Nutrition, Inc. was founded in 1997, and Joint Juice, Inc. was

 

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founded in 1999. In 2011, Joint Juice, Inc. acquired the Premier Protein brand and related assets from Premier Nutrition, Inc. via a corporate restructuring, and the resulting entity assumed the name Premier Nutrition Corporation. Effective September 30, 2019, Premier Nutrition Corporation converted to a limited liability company and changed its corporate name to Premier Nutrition Company, LLC.

In its year ended September 30, 2014, Post acquired Dymatize, which, at the time, was a manufacturer and marketer of high-quality protein powders and nutritional supplements under the Dymatize brand. Dymatize was founded in 1994.

In its year ended September 30, 2015, Post acquired the PowerBar brand and Active Nutrition International. The PowerBar brand was founded in 1986.

BellRing Distribution, LLC

BellRing Distribution, LLC

2503 S. Hanley Road

St. Louis, Missouri 63144

Telephone: (314) 644-7600

New BellRing is a wholly owned subsidiary of Post, formed in the State of Delaware on October 20, 2021 for the purpose of effecting the transactions. Immediately prior to the distribution, Post will cause New BellRing to convert into a Delaware corporation and the units representing limited liability company interests of New BellRing shall be converted into additional shares of New BellRing Common Stock. Prior to the completion of the transactions, Post will distribute at least 80.1% of its shares of New BellRing Common Stock to holders of Post Common Stock. In the merger of Merger Sub and BellRing, each holder of shares of BellRing Class A Common Stock will be entitled to receive, with respect to each share of Class A Common Stock held by such holder, (i) an amount of per share cash consideration equal to a pro rata portion of the amount by which the aggregate principal amount of the New BellRing debt exceeds the amount of cash required to repay the outstanding indebtedness of BellRing under its credit agreement as described under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—Merger Consideration” beginning on page 84 and (ii) one share of New BellRing Common Stock. At the completion of the transactions, New BellRing, named BellRing Brands, Inc., will be a public company, the successor issuer to BellRing and listed under the ticker symbol “BRBR” on the NYSE, and will not be a “controlled company.”

BellRing Merger Sub Corporation

BellRing Merger Sub Corporation

2503 S. Hanley Road

St. Louis, Missouri 63144

Telephone: (314) 644-7600

Merger Sub is a newly-formed corporation, incorporated in the State of Delaware on October 20, 2021, for the purpose of effecting the merger. In the merger, Merger Sub will merge with and into BellRing, with BellRing as the surviving company.

 

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THE TRANSACTIONS

This section of the proxy statement/prospectus describes material aspects of the proposed transactions. This summary may not contain all of the information that is important to you. You should carefully read this entire proxy statement/prospectus, including the full text of the transaction agreement, which is attached as Annex A, and the other documents we refer you to for a more complete understanding of the transactions. In addition, important business and financial information about New BellRing and BellRing are included and incorporated by reference into this proxy statement/prospectus and important business. Please see the section of this proxy statement/prospectus entitled “Where You Can Find More Information; Incorporation by Reference” beginning on page 130.

Transaction Structure

The transaction agreement provides for a separation transaction by Post, a debt exchange, a distribution and a merger. Each set of transactions is summarized below:

The Separation

Post Contribution

Pursuant to the transaction agreement and in connection with the separation, Post will contribute to New BellRing (i) all of the BellRing LLC Units held by it and the sole outstanding share of BellRing Class B Common Stock and (ii) an amount in cash equal to the amount of the Post negative capital account, in exchange for (x) New BellRing debt securities in an amount described under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—New BellRing Debt Financing” beginning on page 81 and (y) limited liability company interests of New BellRing.

The “Post negative capital account” is an amount equal to the estimated taxable gain Post would realize if Post were to dispose of its interest in BellRing LLC for no consideration other than a release of Post’s share of BellRing LLC’s liabilities allocable to Post under the IRC, as determined by Post in its reasonable discretion. The amount of the Post negative capital account will be determined prior to the date on which the New BellRing debt financing transactions described under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—New BellRing Debt Financing” beginning on page 81 are pursued, and therefore is not known as of the date of this proxy statement/prospectus. As of September 30, 2021, the most recent practicable date prior to the date of this proxy statement/prospectus, Post’s good faith estimate of the Post negative capital account, assuming the disposal of its interest in BellRing LLC occurred on such date, is approximately $569.3 million.

Pursuant to the transaction agreement, Post will also undertake certain other transactions to effect the separation as described in the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—The Separation—Other Separation Transactions” beginning on page 82.

After giving effect to the separation, New BellRing will own the sole outstanding share of BellRing Class B Common Stock and all of the BellRing LLC Units beneficially owned by Post prior to the separation.

New BellRing Debt Financing

New BellRing Maximum Debt Amount

The aggregate principal amount of the indebtedness that will be incurred by New BellRing in connection with the transactions, including the New BellRing debt securities and the New BellRing loans (as defined below), will not exceed the New BellRing maximum debt amount. The “New BellRing maximum debt amount” is an amount, determined by Post in good faith in consultation with BellRing, not to exceed the lesser of (i) $1 billion and (ii) the maximum amount of indebtedness that would result in the New BellRing leverage ratio not exceeding

 

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4.00x on a pro forma basis after giving effect to the transactions. The “New BellRing leverage ratio” is the ratio of New BellRing and its subsidiaries’ consolidated indebtedness to New BellRing and its subsidiaries’ consolidated earnings before interest, taxes, depreciation and amortization, in each case, calculated in a manner consistent with the definition of “Total Net Leverage Ratio” under the BellRing LLC credit agreement for the most recently completed four fiscal quarters of BellRing for which financial statements are available.

The New BellRing maximum debt amount will depend on various factors, including the earnings of BellRing and its subsidiaries, and will be determined prior to the date on which the New BellRing debt financing transactions are pursued. Accordingly, the New BellRing maximum debt amount is not known as of the date of this proxy statement/prospectus.

New BellRing Debt Securities

Pursuant to the transaction agreement, prior to the distribution, New BellRing will issue to Post the New BellRing debt securities. The aggregate principal amount of the New BellRing debt securities (the “New BellRing debt securities amount”) issued to Post will equal (i) the Post negative capital account plus (ii) (x) the excess of the aggregate principal amount of the New BellRing debt over the BellRing LLC debt repayment amount multiplied by (y) the percentage of the outstanding BellRing LLC Units that is held by Post. As of January 14, 2022, the most recent practicable date prior to the date of this proxy statement/prospectus, Post held approximately 71.5% of the outstanding BellRing LLC Units. Certain additional terms of the New BellRing debt securities are described in the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—New BellRing Debt Financing—New BellRing Debt Securities.”

Post Debt Exchange

Following the issuance of such New BellRing debt securities but prior to the distribution, Post expects to exchange the New BellRing debt securities issued to it by New BellRing for satisfaction of certain debt obligations of Post in the debt exchange. Following the debt exchange, the exchanging parties, or their affiliates, are expected to sell the New BellRing debt securities to third-party investors. Certain additional terms of the debt exchange are described in the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—New BellRing Debt Financing—Post Debt Exchange” beginning on page 82.

New BellRing Loans

Additionally, pursuant to the transaction agreement, New BellRing will enter into the New BellRing loans. The aggregate principal amount of the New BellRing loans will not exceed, together with the New BellRing debt securities amount, the New BellRing maximum debt amount. Certain additional terms of the New BellRing loans are described in the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—New BellRing Debt Financing—New BellRing Loans” beginning on page 82.

As a result of these financing transactions, the indebtedness of New BellRing immediately following the completion of the transactions is expected to be greater than the indebtedness of BellRing as of the date of this proxy statement/prospectus.

The Distribution

Following the separation, and prior to the effective time of the merger, Post will complete the distribution. Post may distribute its shares of New BellRing Common Stock through a spin-off, an exchange offer or as a combination of a spin-off and an exchange offer with or without a clean-up spin-off. As of the date of this proxy statement/prospectus, Post expects to distribute the shares of New BellRing Common Stock to shareholders of Post pursuant to a spin-off.

 

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The Merger

Following the completion of the separation and distribution, Merger Sub will merge with and into BellRing, and BellRing will be the surviving corporation in the merger. As a result of the merger, BellRing will become a direct, wholly owned subsidiary of New BellRing, with New BellRing as the new public parent company of BellRing.

Pursuant to the merger, holders of shares of BellRing Class A Common Stock will be entitled to receive, with respect to each share of BellRing Class A Common Stock, (i) the per share cash consideration and (ii) one share of New BellRing Common Stock. The “per share cash consideration” will be an amount in cash equal to (i) the aggregate cash consideration amount divided by (ii) the number of shares of BellRing Class A Common Stock issued and outstanding as of immediately prior to the merger effective time. The “aggregate cash consideration amount” will be an amount equal to (x) the excess of the aggregate principal amount of the New BellRing debt over the BellRing LLC debt repayment amount multiplied by (y) the percentage of the outstanding BellRing LLC Units that is held by BellRing. An example calculation of the per share cash consideration under certain assumed conditions is set forth under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—Merger Consideration” beginning on page 84.

The separation, debt exchange, distribution and merger are referred to collectively as the “transactions.” The terms of the transactions are set forth in the transaction agreement, which is described in this proxy statement/prospectus and attached to this proxy statement/prospectus as Annex A.

Background of the Transactions

In November 2018, Post announced that the Post Board of Directors approved a plan to separate its Active Nutrition business into a distinct, publicly traded company. In connection with the IPO, the entities comprising Post’s Active Nutrition business were separated from Post and became direct or indirect subsidiaries of BellRing LLC. BellRing was formed on March 20, 2019 for purposes of completing the IPO and serving as a holding company with no material assets other than its ownership of BellRing LLC Units and indirect interests in the subsidiaries of BellRing LLC.

On October 21, 2019, BellRing completed the IPO, and BellRing Class A Common Stock began trading on the New York Stock Exchange under the ticker symbol “BRBR”. Upon completion of the IPO, Post owned the sole outstanding share of BellRing Class B Common Stock, which, for so long as Post or its affiliates own more than 50% of the BellRing LLC Units, would represent approximately 67% of the total voting power of the BellRing Common Stock. In the aggregate, the holders of shares of BellRing Class A Common Stock were entitled to approximately 33% of the total voting power of BellRing Common Stock. The BellRing Board of Directors was initially composed of five directors following completion of the IPO, and Post had the right to designate up to three directors as its nominees under an investors rights agreement entered into in connection with the IPO. Also, in connection with the IPO, Post and BellRing entered into various arrangements, including an employee matters agreement, a tax receivable agreement, a tax matters agreement, a limited liability company agreement with respect to BellRing LLC and a master services agreement, all of which are more fully discussed in, or filed as exhibits to, BellRing’s Annual Report on Form 10-K for the year ended September 30, 2021 filed on November 19, 2021, which is incorporated by reference into this proxy statement/prospectus.

Following the IPO, including throughout 2020 and the first half of 2021, the BellRing Board of Directors and BellRing’s senior management regularly reviewed and considered BellRing’s performance, strategy, competitive position, opportunities and prospects in light of the then-current business and economic environments, as well as the composition of BellRing’s stockholder base and BellRing’s resulting governance structure, as Post remained the holder of more than 50% in voting power of the outstanding shares of BellRing Common Stock throughout this period. Also during this timeframe, Post periodically considered its strategic plans and opportunities, including with respect to its ownership stake in BellRing.

 

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On or around June 30, 2021, the Post management team began discussions with its financial advisor, J.P. Morgan Securities LLC (“J.P. Morgan”), regarding various aspects of the transactions, and asked J.P. Morgan to begin preparing illustrative transaction structures. On or around July 1, 2021, the Post management team also engaged Cleary Gottlieb Steen & Hamilton LLP (“Cleary Gottlieb”) to act as legal advisor to Post.

On July 2, 2021, Mr. Robert V. Vitale, the President and Chief Executive Officer of Post and Executive Chairman of the BellRing Board of Directors, met with Darcy Horn Davenport, the President and Chief Executive Officer of BellRing and a member of the BellRing Board of Directors, Paul Rode, the Chief Financial Officer of BellRing, and Craig L. Rosenthal, Senior Vice President and General Counsel of BellRing, in Oakland, California. At this meeting, Mr. Vitale informed Ms. Davenport and Messrs. Rode and Rosenthal that Post was contemplating exploring a potential transaction involving the distribution of a significant portion of its interest in BellRing to shareholders of Post.

Beginning around July 16, 2021, Mr. Vitale reached out separately to each independent director on the BellRing Board of Directors to advise them of Post’s intent to distribute a large portion of Post’s ownership in BellRing, and advised them of certain steps they may wish to begin planning, including creation of a special committee of the BellRing Board of Directors to advise BellRing, and engagement of independent financial and legal advisors. Between July 16 and July 21, 2021, Mr. Vitale met with, or discussed by phone with, each BellRing Board member, to describe the potential transaction.

On August 3, 2021, the Strategy and Financial Oversight Committee of the Post Board of Directors held a regularly scheduled quarterly meeting, with members of Post management and other members of the Post Board of Directors present. Mr. Vitale presented a potential transaction involving the distribution of a significant portion of Post’s interest in BellRing to shareholders of Post, including the rationale for such transaction and next steps. Later in the day on August 3, 2021, the Post Board of Directors held a regularly scheduled quarterly meeting, with members of Post management in attendance. Mr. Vitale reviewed with the Post Board of Directors, and the Post Board of Directors approved, resolutions to evaluate, and negotiate with BellRing, the distribution of a significant portion of Post’s interest in BellRing to shareholders of Post.

On August 4, 2021, the BellRing Board of Directors held a regularly scheduled quarterly meeting, with members of BellRing management in attendance, at which Mr. Vitale presented a potential transaction that Post intended to pursue involving, among other things, the distribution of a significant portion of Post’s interest in BellRing to shareholders of Post in a transaction that would also involve the payment of cash consideration to BellRing’s stockholders. It also was noted during this discussion that Post intended to issue a press release the following day disclosing its plan to explore a distribution of a significant portion of its interest in BellRing to shareholders of Post. Following this initial discussion, to facilitate a full and fair evaluation of the potential transactions along the lines of what Post was exploring, the BellRing Board of Directors formed the BellRing Special Committee, which is comprised of Elliot H. Stein, Jr., Thomas P. Erickson and Chonda J. Nwamu, each of whom is a BellRing director, is not a member of BellRing management, is not affiliated with Post and does not otherwise have a material interest in the potential transactions. The BellRing Board of Directors authorized the BellRing Special Committee to, among other things, review, evaluate and negotiate on behalf of BellRing the terms and conditions of the potential transactions and make a recommendation to the BellRing Board of Directors relating to the potential transactions. The BellRing Board of Directors also authorized the BellRing Special Committee to retain independent financial and legal advisors, as well as other consultants or experts, as it determines are necessary or appropriate to assist and advise it in performing its responsibilities and duties.

On August 5, 2021, Post issued a press release announcing its plan to distribute a significant portion of its interest in BellRing to shareholders of Post.

Between August 6, 2021 and August 23, 2021, Mr. Stein, the Chairman of the BellRing Special Committee, and Mr. Rosenthal interviewed and evaluated potential financial and legal advisors who are independent of Post. Following these meetings, the BellRing Special Committee selected Lazard Frères & Co. LLC (“Lazard”) as its

 

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financial advisor and Simpson Thacher & Bartlett LLP (“Simpson Thacher”) as its legal advisor. The BellRing Special Committee determined to retain Lazard and Simpson Thacher based on, among other factors, their independence from Post and their qualifications, experience and reputation in advising clients in connection with mergers and acquisitions and other corporate transactions, including transactions comparable to the potential transactions announced by Post.

On August 25, 2021, the BellRing Special Committee held a meeting, with members of BellRing management and representatives of Lazard and Simpson Thacher in attendance, to discuss preliminary matters related to the potential transactions. The representatives of Lazard discussed with the BellRing Special Committee the trading price of BellRing Common Stock following Post’s announcement of the potential transactions and considerations regarding the post-transaction capital structure of BellRing and the refinancing of BellRing’s existing indebtedness in connection with the potential transactions. The representatives of Simpson Thacher reviewed with the BellRing Special Committee certain legal considerations and the directors’ fiduciary duties under applicable law, noting that the focus of the BellRing Special Committee would be on evaluating and negotiating the potential transactions for the benefit of BellRing stockholders other than Post.

On August 27, 2021, Post directed representatives of J.P. Morgan to send a presentation to Lazard setting forth proposed transaction steps to effectuate the potential transactions. The presentation contemplated that Post would contribute its share of BellRing Class B Common Stock, all of its membership interests of BellRing LLC and cash to a new holding company for the BellRing business, New BellRing, in exchange for all of the then-outstanding equity of New BellRing and certain newly issued New BellRing indebtedness. New BellRing then would convert to a Delaware corporation, and Post would then distribute at least 80.1% of its shares of New BellRing Common Stock to Post shareholders in a pro-rata distribution, an exchange offer or a combination of both, depending on market conditions. Also pursuant to the proposed transaction steps, upon completion of the distribution of New BellRing Common Stock to Post shareholders, Merger Sub, a wholly-owned subsidiary of New BellRing, would merge with and into BellRing, with BellRing as the surviving corporation and a wholly-owned subsidiary of New BellRing. Post would transfer the New BellRing indebtedness received in the potential transactions to certain of Post’s existing creditors in exchange for certain of Post’s outstanding indebtedness. The potential transactions outlined in the materials provided to Lazard contemplated New BellRing incurring $940 million of indebtedness, reflecting an illustrative example based on then-current estimates as to amounts of indebtedness that would result in a pro forma net leverage ratio for New BellRing equal to approximately 4.0x after the completion of the potential transactions.

Between August 27, 2021 and September 21, 2021, representatives of Lazard, Simpson Thacher, J.P. Morgan, Cleary Gottlieb and Ernst & Young LLP (“E&Y”), tax advisor to Post, held a number of discussions regarding the proposed transaction structure and related considerations.

Also during this time period, representatives of Post and BellRing periodically discussed process matters related to the potential transactions, including updates related to the work being performed by Post’s and the BellRing Special Committee’s advisors.

On September 10, 2021, representatives of Lazard and Simpson Thacher held a meeting with BellRing’s senior management regarding the proposed transaction structure and related considerations, including considerations regarding the potential capital structure of New BellRing after completion of the potential transactions.

On September 16, 2021, representatives of Cleary Gottlieb sent representatives of Simpson Thacher a draft transaction agreement. The draft transaction agreement proposed, among other things, that the transaction agreement would be unilaterally adopted by Post, as the holder of more than 50% in voting power of the outstanding shares of BellRing Common Stock, and provided for the ability of the BellRing Board of Directors to change its recommendation that BellRing stockholders vote in favor of the transaction agreement under certain circumstances. In addition, in order to maximize Post’s ability to transfer New BellRing indebtedness to Post’s

 

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creditors in a tax-free manner, the draft transaction agreement proposed that the New BellRing indebtedness incurred in connection with the potential transactions would be comprised of senior unsecured notes with a 10-year maturity and a five-year non-call period. The draft transaction agreement further proposed that Post would manage negotiations associated with the issuance of New BellRing indebtedness, including through selecting bookrunning managing placement agents and purchasers and preparing the definitive documentation for such issuance.

On September 21, 2021, representatives of Cleary Gottlieb and Simpson Thacher discussed certain terms of the draft transaction agreement and an overview of the ancillary agreements contemplated by the draft transaction agreement.

In addition, throughout the balance of September 2021, representatives of Post and BellRing held periodic meetings to discuss process matters related to the potential transactions. These representatives also discussed during some of these meetings the potential services to be provided by Post to BellRing pursuant to the amended and restated master service agreement, which Post proposed be entered into in connection with the completion of the potential transactions.

On September 24, 2021, the BellRing Special Committee held a meeting, with members of BellRing management and representatives of Lazard and Simpson Thacher in attendance, to discuss various updates regarding the potential transactions. The representatives of Simpson Thacher reviewed with the BellRing Special Committee legal considerations applicable to its consideration of the potential transactions, including the fiduciary duties of members of the BellRing Special Committee under applicable law and the role and responsibilities of the BellRing Special Committee in evaluating and negotiating the potential transactions. Representatives of Simpson Thacher then reviewed with the BellRing Special Committee the draft transaction agreement. In connection with this review, the BellRing Special Committee also discussed the ability of Post, as the holder of more than 50% of the voting power of the outstanding shares of BellRing Common Stock, to unilaterally adopt the potential transactions under the draft transaction agreement proposed by Post. After discussion, the BellRing Special Committee directed Simpson Thacher to continue to seek to improve the terms of the transaction agreement, including to include a condition in such agreement requiring that the potential transactions also be approved by the holders of a majority in voting power of the outstanding shares of BellRing Common Stock other than Post and its affiliates. Also during this meeting, representatives of Lazard presented to the BellRing Special Committee Lazard’s preliminary financial analysis and considerations in connection with the potential transactions, including an overview of the impact of the potential transactions on New BellRing’s capital structure as well as various strategic benefits and considerations for BellRing stockholders (other than Post and its affiliates) associated with pursuing the potential transactions, including the advantage of having a much more liquid trading market for shares of BellRing Class A Common Stock following the potential transactions and allowing Post to dispose of a substantial portion of its ownership in BellRing and BellRing LLC in an orderly manner that would be less disruptive to the public trading market for the shares of BellRing Class A Common Stock than open market sales. The BellRing Special Committee discussed with Simpson Thacher and Lazard, among other things, the proposal from Post regarding the New BellRing indebtedness to be incurred in connection with the potential transactions and the proposed terms of the BellRing debt securities and the impact that such proposed incurrence potentially would have on BellRing’s operational flexibility following the completion of the potential transactions. The BellRing Special Committee directed Lazard and Simpson Thacher to continue to seek revisions to the terms of indebtedness to be incurred by New BellRing that would allow New BellRing greater flexibility following the completion of the potential transactions. Following discussion, the BellRing Special Committee reviewed the matters presented at the meeting and potential next steps. The BellRing Special Committee then met in executive session with only management and the representatives of Simpson Thacher present, and representatives of Simpson Thacher reviewed with the BellRing Special Committee in such executive session the relationship letter that Lazard prepared for the BellRing Special Committee, which letter set forth, among other things, that Lazard had not, as of the date of the letter and during the two years prior to such date, been engaged by or received fees from Post or any of its affiliates in connection with the provision of financial advisory services.

 

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On October 1, 2021, representatives of Simpson Thacher sent representatives of Cleary Gottlieb a revised draft transaction agreement. Based on the instruction of the BellRing Special Committee, the draft transaction agreement was revised to require, in addition to the approval of Post, approval of the holders of a majority in voting power of the outstanding shares of BellRing Common Stock other than Post and its affiliates. The revised draft transaction agreement provided that obtaining such “majority-of-the-minority” approval would be a condition to completing the transactions contemplated by the transaction agreement. The revised draft transaction agreement did not make a counterproposal as to the New BellRing indebtedness to be incurred in connection with the potential transactions because the parties’ negotiation as to the terms of the New BellRing indebtedness remained ongoing.

Also on October 1, 2021, Lazard and J.P. Morgan held a meeting to further discuss, among other things, the pro forma capital structure of New BellRing following the completion of the potential transactions.

On October 4, 2021, the BellRing Special Committee entered into an engagement letter with Lazard to formalize the retention of Lazard as financial advisor to assist the BellRing Special Committee in connection with the potential transactions.

On October 5, 2021, BellRing’s senior management and representatives of Lazard held a meeting to further review, among other things, BellRing’s organic growth initiatives, mergers-and-acquisitions pipeline and capital allocation considerations in connection with Lazard’s review of the potential pro forma capital structure of New BellRing following the potential transactions.

Also on October 5, 2021, representatives of Cleary Gottlieb and Simpson Thacher discussed terms of the draft transaction agreement and process matters related to the potential transactions.

On October 6 and 7, 2021, Lazard and J.P. Morgan held meetings to further discuss, among other things, the potential pro forma capital structure of New BellRing following the potential transactions. Representatives of Lazard continued to note during these meetings that the BellRing Special Committee was focused on seeking to ensure that any resultant capital structure of New BellRing would allow New BellRing to have sufficient flexibility following the completion of the transaction to pursue its current operational plans, as well as to capitalize on any attractive strategic alternatives that may become available in the future.

On October 7, 2021, representatives of Cleary Gottlieb sent representatives of Simpson Thacher a revised draft transaction agreement. The revised draft transaction agreement noted that Post continued to consider the proposal by the BellRing Special Committee that the transaction agreement include a “majority-of-the-minority” approval as a condition to completing the transactions contemplated by the transaction agreement.

On October 8, 2021, the BellRing Special Committee held a meeting, with members of BellRing management and representatives of Lazard and Simpson Thacher in attendance, to discuss further the potential transactions. The representatives of Simpson Thacher updated the BellRing Special Committee on, among other things, the terms of the revised draft transaction agreement received the day earlier from Cleary Gottlieb, reporting, among other things, that the revised draft noted that Post continued to consider the proposal by the BellRing Special Committee that the transaction agreement include a “majority-of-the-minority” approval as a condition to completing the transactions contemplated by the transaction agreement. The representatives of Lazard reviewed with the BellRing Special Committee, among other things, progress on the development by BellRing’s senior management of projected financial information to assist the BellRing Special Committee in connection with its evaluation of the potential transactions, including analyzing the implications of the indebtedness to be incurred by New BellRing in connection with the potential transactions and on the execution of BellRing’s strategic plans. In connection with this review, the BellRing Special Committee again determined that representatives of Lazard and Simpson Thacher should continue to seek revisions to the terms of indebtedness to be incurred by New BellRing that would allow New BellRing greater flexibility following the completion of the potential transactions. Also at this meeting, in an executive session, the BellRing Special Committee discussed that

 

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Mr. Vitale expressed a willingness to continue to serve as Executive Chairman of the BellRing Board of Directors following the completion of the potential transactions and the benefits of having Mr. Vitale continue in that role. Representatives of Simpson Thacher discussed with the BellRing Special Committee that compensation arrangements relating to Mr. Vitale continuing to serve as Executive Chairman would need to be determined in due course. Please see the section of this proxy statement/prospectus entitled “The Transactions—Interests of Directors and Executive Officers in the Transactions” beginning on page 65.

Following the meeting of the BellRing Special Committee on October 8, 2021, representatives of Cleary Gottlieb, Simpson Thacher and E&Y held a meeting to discuss certain proposed terms of the New BellRing indebtedness and possible revisions to such terms to allow New BellRing greater flexibility to repay a portion of the indebtedness prior to the expiration of the non-call period.

In the evening on October 8, 2021, representatives of Cleary Gottlieb sent representatives of Simpson Thacher drafts of the master service agreement, a registration rights agreement, an amended and restated trademark and domain name license agreement and an amended and restated legal engagement letter that Post proposed be entered into in connection with the completion of the potential transactions. The draft master service agreement provided for the provision of certain transitional services to New BellRing for a term of up to three years following the completion of the potential transactions, subject to certain termination rights.

On October 9, 2021, representatives of Cleary Gottlieb sent representatives of Simpson Thacher a draft tax matters agreement that Post proposed be entered into in connection with the completion of the potential transactions. The draft tax matters agreement proposed that New BellRing would indemnify Post if the transactions become taxable as a result of certain actions taken by BellRing or New BellRing or as a result of certain changes in ownership of the stock of BellRing or New BellRing after completion of the potential transactions. Under the draft tax matters agreement, New BellRing would also be prohibited from taking certain actions that could cause the potential transactions to become taxable, including in certain circumstances the issuance and repurchase of New BellRing equity.

On October 13, 2021, the BellRing Board of Directors held a meeting, with members of BellRing management in attendance. At the meeting, among other things, the BellRing Board of Directors noted that the BellRing Special Committee, after having engaged independent legal and financial advisors, had requested certain revisions be made to the resolutions pursuant to which the BellRing Special Committee was formed on August 4, 2021. These revisions expressly provided that the BellRing Board of Directors would not approve the potential transactions without the prior favorable recommendation of the BellRing Special Committee. Following discussion, the BellRing Board of Directors unanimously approved the resolutions as so revised.

On October 14, 2021, the Post Board of Directors reviewed the terms of the potential transactions and authorized management of Post to finalize the transaction terms and enter into the transaction agreement.

Also on October 14, 2021, based on the instruction of the BellRing Special Committee, representatives of Lazard sent Post, through representatives of J.P. Morgan, a proposal regarding the terms of the New BellRing indebtedness. The proposal contemplated various changes to what was initially proposed by Post so as to provide more flexibility within the potential post-closing New BellRing capital structure, including by providing that a portion of the indebtedness be comprised of first-lien senior secured loans that, among other things, are prepayable at any time without penalty or premium. The proposal was also designed so as to not undermine Post’s tax and business objectives that were a fundamental precept of the potential transactions, and further contemplated that the remaining portion of the indebtedness would be comprised of senior unsecured notes with a 10-year maturity and a five-year non-call period, during which period New BellRing would only be able to redeem the notes if it paid noteholders a make-whole premium.

 

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At various times during the month of October 2021, representatives of Simpson Thacher and Lewis Rice LLC (“Lewis Rice”), an additional legal advisor to Post and BellRing, held discussions and had other communications regarding the indebtedness to be incurred by New BellRing and related matters in connection with the potential transactions.

On October 15, 2021, the BellRing Special Committee held a meeting, with members of BellRing management and representatives of Lazard and Simpson Thacher in attendance, to discuss various updates regarding the potential transactions. The representatives of Lazard reviewed the proposal regarding the terms of the New BellRing indebtedness that was conveyed to Post on October 14, 2021. The representatives of Lazard also updated the BellRing Special Committee on strategic capital allocation priorities of BellRing’s senior management, which priorities were expected to be discussed by Ms. Davenport and Mr. Rode at the next meeting of the BellRing Special Committee. In addition, among other matters, the BellRing Special Committee reviewed with Simpson Thacher the terms of the draft tax matters agreement, discussing, among other things, the proposed allocation of responsibility for certain tax liabilities between New BellRing and Post and the restrictions that would be imposed on New BellRing in connection with the potential transactions, in order to preserve the tax-free nature of the potential transactions, during a certain period following the completion of the potential transactions. The BellRing Special Committee, following discussion, determined that Lazard and Simpson Thacher should seek from Post additional flexibility for New BellRing under the tax matters agreement to issue equity securities in connection with acquisitions and conduct repurchases and redemptions of equity securities up to a certain threshold.

Also on October 15, 2021 and periodically throughout the balance of October until the entry into the transaction agreement, representatives of Post and BellRing met to discuss process matters related to the potential transactions.

On October 16, 2021, representatives of Simpson Thacher sent representatives of Cleary Gottlieb a revised draft transaction agreement. The revised draft transaction agreement reflected the proposal, based on the instruction of the BellRing Special Committee, that a portion of the New BellRing indebtedness incurred in connection with the potential transactions would be comprised of first-lien senior secured loans that, among other things, would be prepayable at any time without penalty or premium and that the remaining portion of the indebtedness would be comprised of senior unsecured notes with a 10-year maturity and a five-year non-call period, during which period New BellRing would be able to redeem the notes if it paid noteholders a make-whole premium. The revised draft transaction agreement contemplated the incurrence of $940 million of total indebtedness, consistent with the parties’ earlier estimates as to amounts of indebtedness that would result in a pro forma net leverage ratio for New BellRing equal to approximately 4.0x.

On October 17, 2021, representatives of Simpson Thacher sent representatives of Cleary Gottlieb a revised draft tax matters agreement. The revised draft tax matters agreement proposed exceptions from the post-transaction restrictions on New BellRing, including exceptions that would allow New BellRing to issue and repurchase its equity up to certain thresholds.

On October 18, 2021, representatives of Cleary Gottlieb and Simpson Thacher held a meeting to discuss terms of the draft transaction agreement and process matters related to the potential transactions. In this meeting, representatives of Cleary Gottlieb reported that Post would accept the proposal by the BellRing Special Committee that any transaction agreement would require, in addition to the approval of Post, approval of the holders of majority in voting power of the outstanding BellRing Common Stock other than Post and its affiliates.

Also on October 18, 2021, BellRing’s senior management and representatives of Lazard held a meeting to further discuss, among other things, strategic capital allocation priorities and pro forma leverage ratio and cash position analyses for New BellRing.

 

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On October 20, 2021, Lazard and J.P. Morgan held a meeting to further discuss, among other things, the pro forma capital structure of New BellRing following the potential transactions, including the possible terms of any new indebtedness that may be incurred in connection with the potential transactions.

On October 21, 2021, representatives of Cleary Gottlieb and Simpson Thacher held a meeting to negotiate certain terms of the tax matters agreement. Representatives of Cleary Gottlieb noted during the course of this meeting that, for tax reasons, Post was not prepared to agree to the exceptions proposed by the BellRing Special Committee that would allow New BellRing to issue and repurchase its equity up to certain thresholds.

Later on October 21, 2021, the BellRing Special Committee held a meeting, with members of BellRing management and representatives of Lazard and Simpson Thacher in attendance, to review with BellRing management its strategic plan and the potential implications of the potential transactions on such strategic plan. This included discussing with Ms. Davenport, and reviewing with Simpson Thacher, the limitations under the draft tax matters agreement that would be expected to be imposed on New BellRing’s ability to engage in certain transactions following the completion of the potential transactions. Ms. Davenport and Mr. Rode discussed BellRing’s current and near-term strategic priorities, and Mr. Rode also reviewed with the BellRing Special Committee the BellRing projected financial information prepared by management, as summarized in the section of this proxy statement/prospectus entitled “The Transactions—Certain Unaudited Prospective Financial Information” beginning on page 63, and the related impact of the indebtedness contemplated to be incurred in the transactions on New BellRing’s operational flexibility. Finally, Mr. Rosenthal updated the BellRing Special Committee on the terms of the draft amended and restated master services agreement and how such terms differed from or were similar to the master services agreement in place at that time. Also during this meeting, among other things, the members of the BellRing Special Committee, together with representatives of Lazard, discussed various potential benefits and considerations for BellRing stockholders (other than Post and its affiliates) presented by the potential transactions. Following discussion, the BellRing Special Committee determined that its advisors should seek to finalize negotiations of mutually agreeable definitive documentation for its review and potential approval.

Between October 21, 2021 and October 26, 2021, representatives of Simpson Thacher, Cleary Gottlieb and Lewis Rice exchanged a number of drafts of, and had a number of discussions regarding, the draft transaction agreement, the draft tax matters agreement, the draft amended and restated master services agreement and other ancillary agreements and continued to negotiate various issues in such draft agreements, including the mechanism for determining the amount of indebtedness to be incurred by New BellRing, the terms of the New BellRing indebtedness and the nature of the role of Post and New BellRing in negotiating and implementing the New BellRing indebtedness. Also, on October 23, 2021, representatives of Cleary Gottlieb, Simpson Thacher, Lazard, J.P. Morgan and E&Y met to discuss various aspects of the proposed structure of the potential transactions, including details as to the potential transaction steps, the terms of the New BellRing indebtedness and the impact of such indebtedness on New BellRing and Post. The representatives discussed the overall amount of New BellRing indebtedness contemplated and the terms of the indebtedness that would allow New BellRing flexibility to repay a portion of such indebtedness early, either without penalty or subject to a make-whole payment. In connection with these negotiations during this timeframe, the draft transaction agreement was revised to impose an overall limit on the amount of New BellRing indebtedness that could be incurred in connection with the transactions, capping indebtedness at either $1 billion or a pro forma net leverage ratio for New BellRing equal to 4.0x, whichever amount is less.

On the evening of October 26, 2021, the BellRing Special Committee held a meeting, with members of BellRing management and representatives of Lazard and Simpson Thacher in attendance, to consider, among other things, the proposed transaction agreement provided to the BellRing Special Committee prior to such meeting, subject to stockholder approval. The representatives of Lazard presented updated analyses of the pro forma capital structure of New BellRing following the completion of the potential transactions, including the impact of the anticipated leverage profile of New BellRing on its operational flexibility, and also discussed with the BellRing Special Committee various issues including the potential benefits and considerations for BellRing stockholders (other

 

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than Post and its affiliates) presented by the potential transactions, as described under the section of this proxy statement/prospectus entitled “The Transactions—Recommendations of the BellRing Special Committee and BellRing Board of Directors and Reasons for the Transactions” beginning on page 58. The representatives of Simpson Thacher reviewed with the BellRing Special Committee considerations applicable to its consideration of the potential transactions, including the fiduciary duties of members of the BellRing Special Committee under applicable law and the role and responsibilities of the BellRing Special Committee in evaluating and negotiating the potential transactions. The BellRing Special Committee also reviewed with Simpson Thacher the terms of the proposed transaction agreement and ancillary agreements, discussing, among other things, the limitation in the proposed transaction agreement on the amount of indebtedness that New BellRing was expected to incur in connection with the potential transactions and other contractual parameters regarding the terms of the New BellRing debt securities. Following further discussion, the BellRing Special Committee unanimously determined that the transaction agreement and the transactions contemplated therein, including the merger, are advisable and in the best interests of BellRing and its stockholders (other than Post, New BellRing or any of their respective affiliates), declared advisable and in the best interests of BellRing and its stockholders (other than Post, New BellRing or any of their respective affiliates) that BellRing enter into the transaction agreement and recommended that the BellRing Board of Directors approve and declare advisable the transaction agreement and approve the execution, delivery and performance of the transaction agreement and the completion of the transactions contemplated therein, including the merger, and recommend to BellRing stockholders that they adopt the transaction agreement.

Also on October 26, 2021, following the meeting of the BellRing Special Committee, the BellRing Board of Directors held a meeting, with members of BellRing management and representatives of Lazard and Simpson Thacher in attendance, to consider and act upon, among other things, the recommendation of the BellRing Special Committee with respect to the proposed transaction agreement. The meeting was a joint meeting with the board of managers of BellRing LLC. Mr. Vitale presided over the meeting, and a representative of Simpson Thacher reviewed for the BellRing Board of Directors the role and mandate of the BellRing Special Committee and the process undertaken by the BellRing Special Committee, together with its advisors, in evaluating the potential transactions. The representative of Simpson Thacher reviewed the terms of the proposed transaction agreement, which was being recommended for approval by the BellRing Special Committee, and responded to questions from the directors. Following further discussion, based on the recommendation of the BellRing Special Committee, the BellRing Board of Directors unanimously determined that the transaction agreement and the transactions contemplated therein, including the merger, are advisable and in the best interests of BellRing and its stockholders, approved and declared advisable the transaction agreement and approved the execution, delivery and performance of the transaction agreement and the completion of the transactions contemplated therein, including the merger, and directed that the transaction agreement be submitted to BellRing stockholders for adoption and recommended that stockholders of BellRing adopt the transaction agreement.

Following the meeting of the BellRing Board of Directors, Post, BellRing, New BellRing and Merger Sub entered into the transaction agreement.

On October 27, 2021, before the commencement of stock exchange trading hours, Post and BellRing issued a joint press release announcing their entry into the transaction agreement.

Recommendations of the BellRing Special Committee and BellRing Board of Directors and Reasons for the Transactions

Recommendation of the BellRing Special Committee

The BellRing Special Committee was formed for the purpose of evaluating the transactions contemplated by the transaction agreement. The BellRing Special Committee, with the advice and assistance of Simpson Thacher and Lazard, its own independent legal and financial advisors, evaluated and negotiated the terms of the transactions over the course of almost three months of deliberations.

 

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On October 26, 2021, the BellRing Special Committee unanimously (i) determined that the transaction agreement and the transactions contemplated therein, including the merger, are advisable and in the best interests of BellRing and its stockholders (other than Post, New BellRing or any of their respective affiliates), (ii) declared advisable and in the best interests of BellRing and its stockholders (other than Post, New BellRing or any of their respective affiliates) that BellRing enter into the transaction agreement and (iii) recommended that the BellRing Board of Directors approve and declare advisable the transaction agreement and approve the execution, delivery and performance of the transaction agreement and the completion of the transactions contemplated therein, including the merger, and recommend to BellRing stockholders that they adopt the transaction agreement.

In reaching these determinations and recommendations, the BellRing Special Committee consulted with BellRing management and received advice from Simpson Thacher and Lazard, and considered the following potentially positive factors, which are not intended to be exhaustive and are not presented in any relative order of importance:

 

   

the increase in BellRing’s independence of ownership, eliminating Post’s majority voting control of BellRing Common Stock and the BellRing Board of Directors, as well as Post’s majority ownership of the BellRing LLC Units;

 

   

the enhanced independence of governance by BellRing, permitting BellRing to increase or accelerate growth and investment plans, make independent cash flow deployment decisions and consider other strategic alternatives such as mergers and acquisitions;

 

   

the enhanced liquidity of BellRing Common Stock in the public trading market by increasing the float of New BellRing’s shares immediately after the transactions are completed as compared to the number of beneficial owners of BellRing Common Stock prior to the transactions;

 

   

the removal of the perceived “overhang” with respect to the BellRing Common Stock that currently exists as a result of Post’s majority voting control of BellRing Common Stock, including the fact that such overhang could be depressing the market price of the BellRing Common Stock;

 

   

the simplification of BellRing’s capital structure and reduction in the reporting and administrative burden of maintaining an additional class of equityholders in BellRing LLC;

 

   

the transactions will allow Post to dispose of a substantial portion of its ownership in BellRing and BellRing LLC in an orderly manner that should be less disruptive to the public trading market for the shares of BellRing Common Stock than open market sales;

 

   

the enhanced attractiveness of BellRing’s equity-based compensation plans, thereby increasing BellRing’s ability to attract and retain quality executives and other employees;

 

   

the ability of BellRing to take advantage of the robust debt financing markets in connection with the incurrence of indebtedness by New BellRing in the transactions;

 

   

the fact that a portion of the merger consideration in connection with the transactions will be payable in cash to holders of BellRing Class A Common Stock; and

 

   

the transactions should allow New BellRing to become eligible for index inclusion because it is expected that, following the completion of the transactions, New BellRing will satisfy the S&P Index criteria related to public float that BellRing does not currently satisfy.

The BellRing Special Committee also considered the following uncertainties, risks and potentially negative factors in its deliberations concerning the transactions, which are not intended to be exhaustive and are not presented in any relative order of importance:

 

   

the incurrence by New BellRing of indebtedness in connection with the transactions could limit New BellRing’s ability to fund working capital, capital expenditures and other general corporate purposes, to accommodate growth by reducing funds otherwise available for other corporate purposes, and to compete and plan for, or react to, changes in its business or industry or economic conditions;

 

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the restrictions under the New BellRing indebtedness that do not provide New BellRing with maximum flexibility with regard to paying down such indebtedness;

 

   

the risk that the full strategic and financial benefits expected to result from the transactions may not be realized fully or at all or may take longer to realize than expected;

 

   

the provisions of the transaction agreement placing restrictions on BellRing’s operations during the period between the signing of the transaction agreement and the completion of the transactions;

 

   

under the restrictions to be agreed to by New BellRing under the tax matters agreement with Post, including the restrictions that for the two-year period following completion of the transactions, and subject to certain exceptions, New BellRing (i) would be prohibited from entering into any agreement, understanding, arrangement or substantial negotiations pursuant to which any person or persons would, directly or indirectly, acquire or have the right to acquire New BellRing equity interests and (ii) would be prohibited from selling or transferring, or ceasing to actively engage in, its active trade or business for purposes of Section 355(b) of the IRC;

 

   

by becoming independent from Post, BellRing would lose any positive perceptions from which it may benefit as a result of being associated with a company of Post’s stature and industry recognition;

 

   

the possible diversion of management’s time and attention from BellRing’s ongoing business due to the substantial time and effort necessary to complete the transactions;

 

   

the fact that the negotiation, consideration and performance of the transactions have required and will require BellRing to incur various costs and expenses; and

 

   

the fact that certain executive officers and directors of BellRing have or may have interests with respect to the transactions in addition to their interests as stockholders of BellRing. Please see the section of this proxy statement/prospectus entitled “The Transactions—Interests of Directors and Executive Officers in the Transactions” beginning on page 65.

The BellRing Special Committee concluded, however, that the uncertainties, risks and potentially negative factors relevant to the transactions were outweighed by the potential benefits.

The BellRing Special Committee also considered a number of factors relating to the procedural safeguards involved in the negotiation of the transactions, including those discussed below, each of which it believed supported its determination and recommendation and provided assurance of the fairness of the transactions to BellRing’s stockholders (other than Post and its affiliates):

 

   

the fact that the BellRing Special Committee was established by the BellRing Board of Directors and was authorized and was delegated all of the power and authority of the BellRing Board of Directors to investigate, evaluate and negotiate the transactions;

 

   

the fact that the BellRing Special Committee is comprised solely of independent and disinterested directors, who are not officers or employees of BellRing or representatives of Post;

 

   

the fact that the BellRing Special Committee had no obligation to recommend that the BellRing Board of Directors approve the transactions and had the power to “say no” to any proposal from Post and/or to terminate any and all negotiations with Post at any time;

 

   

the fact that the BellRing Special Committee held six formal meetings during the course of negotiations with Post to discuss the status of the negotiations with Post and to review the terms of the proposed transaction agreement and the ancillary agreements contemplated by the transactions and that during such time the BellRing Special Committee had, together with Simpson Thacher and Lazard, full access as needed to BellRing management;

 

   

the fact that the BellRing Special Committee was aware that it had no obligation to recommend the transactions;

 

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the fact that the BellRing Special Committee considered the scope of the due diligence investigation of BellRing and Post conducted by members of BellRing management and evaluated the results thereof;

 

   

the fact that, at the direction of the BellRing Special Committee, with the assistance of Simpson Thacher and Lazard, active negotiations occurred with representatives of Post regarding the transaction agreement and the ancillary agreements contemplated by the transactions;

 

   

the fact that, in its view, the material terms of the transaction agreement and the ancillary agreements, taken as a whole, were reasonable for an arms’-length transaction of this type, including as it relates to the representations and warranties made by Post, New BellRing and BellRing in the transaction agreement, the restrictions on the operation of BellRing’s business from the signing of the transaction agreement until the completion of the transactions and the other covenants of BellRing in the transaction agreement and the conditions to each party’s obligation to complete the transactions;

 

   

the fact that the transactions are conditioned on the adoption of the transaction agreement by holders (other than Post, New BellRing or any of their respective affiliates) of a majority in voting power of the outstanding shares of BellRing Common Stock (other than shares of BellRing Common Stock owned or controlled by Post, New BellRing or any of their respective affiliates); and

 

   

the fact that, under the transaction agreement, the BellRing Special Committee has the ability, under certain circumstances, to change, qualify, withhold, withdraw or modify its recommendations that stockholders vote to adopt the transaction agreement.

In considering the recommendation of the BellRing Special Committee that the BellRing Board of Directors approve the transaction agreement, BellRing stockholders should be aware that certain executive officers and directors of BellRing have or may have interests with respect to the transactions in addition to their interests as stockholders of BellRing. Please see the section of this proxy statement/prospectus entitled “The Transactions—Interests of Directors and Executive Officers in the Transactions” beginning on page 65.

The above discussion of the information and factors considered by the BellRing Special Committee is not intended to be exhaustive and may not include all factors considered, but indicates the material positive and negative factors considered by the BellRing Special Committee. In view of the wide variety of factors considered in connection with their evaluation of the transactions, and the complexity of these matters, in reaching its determination and recommendation, the BellRing Special Committee did not quantify, rank or assign any relative or specific weight to any of the foregoing factors, and individual members of the BellRing Special Committee may have considered various factors differently. The BellRing Special Committee did not undertake to make any specific determination as to whether any specific factor, or any particular aspect of any factor, supported or did not support its ultimate recommendation. Moreover, in considering the information and factors described above, individual members of the BellRing Special Committee may have given differing weights to differing factors. The BellRing Special Committee based its unanimous recommendation on the totality of the information presented to it and the factors they considered. It should be noted that this explanation of the reasoning of the BellRing Special Committee and certain information presented in this section is forward-looking in nature and, therefore, that information should be read in light of the factors discussed in the section entitled “Cautionary Statement Regarding Forward-Looking Statements” beginning on page 38.

Recommendation of the BellRing Board of Directors

On October 26, 2021, following the meeting of the BellRing Special Committee, the BellRing Board of Directors, based on the recommendation of the BellRing Special Committee, unanimously (i) determined that the transaction agreement and the transactions contemplated therein, including the merger, are advisable and in the best interests of BellRing and its stockholders, (ii) approved and declared advisable the transaction agreement and approved the execution, delivery and performance of the transaction agreement and the completion of the transactions contemplated therein, including the merger, and (iii) directed that the transaction agreement be submitted to BellRing stockholders for adoption and recommended that stockholders of BellRing adopt the transaction agreement.

 

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In reaching these determinations and recommendations, the BellRing Board of Directors considered the following factors, which are not intended to be exhaustive and are not presented in any relative order of importance:

 

   

the BellRing Special Committee unanimously (i) determined that the transaction agreement and the transactions contemplated therein, including the merger, are advisable and in the best interests of BellRing and its stockholders (other than Post, New BellRing or any of their respective affiliates), (ii) declared advisable and in the best interests of BellRing and its stockholders (other than Post, New BellRing or any of their respective affiliates) that BellRing enter into the transaction agreement and (iii) recommended that the BellRing Board of Directors approve and declare advisable the transaction agreement and approve the execution, delivery and performance of the transaction agreement and the completion of the transactions contemplated therein, including the merger, and recommend to BellRing stockholders that they adopt the transaction agreement; and

 

   

the fact that the BellRing Special Committee consists solely of BellRing directors who are not members of BellRing management, who are not and will not be (or are not expected to be) affiliated with Post and who do not otherwise have a material interest in the transactions, other than their interests described under the section of this proxy statement/prospectus entitled “The Transactions—Interests of Directors and Executive Officers in the Transactions” beginning on page 65.

In considering the recommendation of the BellRing Board of Directors, based on the recommendation of the BellRing Special Committee, to vote at the special meeting for the transaction agreement proposal in accordance with its terms and the DGCL, BellRing stockholders should be aware that certain executive officers and directors of BellRing have or may have interests with respect to the transactions in addition to their interests as stockholders of BellRing. Please see the section of this proxy statement/prospectus entitled “The Transactions—Interests of Directors and Executive Officers in the Transactions” beginning on page 65.

The above discussion of the information and factors considered by the BellRing Board of Directors is not intended to be exhaustive and may not include all factors considered, but indicates the material positive and negative factors considered by the BellRing Board of Directors. In view of the wide variety of factors considered in connection with their evaluation of the transactions, and the complexity of these matters, in reaching its determination and recommendation, the BellRing Board of Directors did not quantify, rank or assign any relative or specific weight to any of the foregoing factors, and individual members of the BellRing Board of Directors may have considered various factors differently. The BellRing Board of Directors did not undertake to make any specific determination as to whether any specific factor, or any particular aspect of any factor, supported or did not support its ultimate recommendation. Moreover, in considering the information and factors described above, individual members of the BellRing Board of Directors may have given differing weights to differing factors. The BellRing Board of Directors based its unanimous recommendation on the totality of the information presented to it and the factors they considered. It should be noted that this explanation of the reasoning of the BellRing Board of Directors and certain information presented in this section is forward-looking in nature and, therefore, that information should be read in light of the factors discussed in the section of this proxy statement/prospectus entitled “Cautionary Statement Regarding Forward-Looking Statements” beginning on page 38.

Post’s Reasons for the Transactions

The Post Board of Directors and the management of Post periodically conduct reviews of Post’s strategic plans and opportunities, including with respect to its ownership stake in BellRing. As part of such a review, the Post Board of Directors and the management of Post determined that distributing a significant portion of its ownership interest in BellRing was in the best interests of Post and Post shareholders. The Post Board of Directors received advice from its own legal advisor and its own financial advisor, and considered the following potentially positive factors, which are not intended to be exhaustive and are not presented in any relative order of importance:

 

   

offering Post shareholders the opportunity to own New BellRing Common Stock directly rather than indirectly through Post;

 

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Post’s enhanced resources to pursue acquisition opportunities of businesses aligned with Post’s portfolio strategies resulting from retirement of outstanding debt from the debt exchange and anticipated equity exchange;

 

   

the potential increase in trading liquidity in New BellRing Common Stock by increasing the float;

 

   

the belief of the Post Board of Directors that a completely independent BellRing, as a subsidiary of New BellRing with a mostly-distributed common stock, will better enable BellRing to pursue its strategic plans and create additional long-term value for former BellRing stockholders;

 

   

the elimination of the overhang and potential price disruptions in BellRing Common Stock which could arise as a result of Post selling stock over a period of time;

 

   

the elimination of potential limitations arising from Post’s right to veto proposals by BellRing to issue shares of its common stock for purposes of funding strategic acquisitions or management compensation plans, if stockholder approval thereof would be required under NYSE rules;

 

   

the provision to New BellRing of a more effective tool for management compensation by increasing trading liquidity as well as eliminating potential limitations arising from Post’s ability to block proposals by BellRing to issue shares of common stock for purposes of funding management compensation plans; and

 

   

the attraction of new stockholders to New BellRing.

The Post Board of Directors and the management of Post also considered the following uncertainties, risks and potentially negative factors in their deliberations concerning the transactions, which are not intended to be exhaustive and are not presented in any relative order of importance:

 

   

the potential tax liabilities that could arise as a result of the transactions;

 

   

the lack of assurance that all conditions to the parties’ obligations to complete the transactions will be satisfied or waived, and as a result, the possibility that the transactions might not be completed;

 

   

the potential difference between the interests of certain of Post’s directors and executive officers, the interests of certain of BellRing’s directors and executive officers and the interests of BellRing stockholders in the transactions described under “The Transactions—Interests of Directors and Executive Officers in the Transactions” beginning on page 71;

 

   

the costs of effecting the transactions, including the legal, accounting and financial advisor costs that Post will incur in connection with implementing the transactions; and

 

   

the possible diversion of management’s time and attention from Post’s ongoing business due to the substantial time and effort necessary to complete the transactions.

The Post Board of Directors and the management of Post concluded, however, that the uncertainties, risks and potentially negative factors relevant to the transactions were outweighed by the potential benefits.

Certain Unaudited Prospective Financial Information

While BellRing periodically provides public guidance to investors regarding certain financial performance metrics, such guidance is typically limited to the then-current fiscal year, and BellRing does not, as a matter of course, make public projections as to future sales, earnings or other results for extended periods due to, among other reasons, the uncertainty, unpredictability and subjectivity of the underlying assumptions and estimates. In connection with the BellRing Special Committee’s evaluation of the transactions, however, at the direction of the BellRing Special Committee, senior management of BellRing prepared and supplied to the BellRing Special Committee in connection with its evaluation of the transactions and Lazard for its use in connection with its

 

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financial analyses certain projected financial information which is summarized below. The inclusion of any such projected financial information in this proxy statement/prospectus should not be regarded as an indication that BellRing (or New BellRing), the BellRing Board of Directors or the BellRing Special Committee considered, or now considers, such projected financial information to be a reliable predictor of future results. Readers of this proxy statement/prospectus should not place undue reliance on such projected financial information. There can be no assurances that such projected financial information will be realized, and actual results may differ materially from those included in this proxy statement/prospectus.

The BellRing projected financial information was prepared solely for use in connection with evaluating and analyzing the transactions and not with a view toward public disclosure or soliciting proxies, or with a view toward compliance with the published guidelines established by the SEC or the American Institute of Certified Public Accountants for preparation or presentation of projected financial information, or GAAP. The BellRing projected financial information included in this proxy statement/prospectus has been prepared by, and is the responsibility of, BellRing’s senior management. PricewaterhouseCoopers LLP has not audited, reviewed, examined, compiled nor applied agreed-upon procedures with respect to the BellRing projected financial information and, accordingly, PricewaterhouseCoopers LLP does not express an opinion or any other form of assurance with respect thereto. The PricewaterhouseCoopers LLP reports incorporated by reference in this proxy statement/prospectus relate to BellRing’s previously issued financial statements. The PricewaterhouseCoopers LLP reports do not extend to the BellRing projected financial information and should not be read to do so.

Although senior management of BellRing believes that there is a reasonable basis for the BellRing projected financial information it has prepared, based on information available at the time it was prepared, BellRing cautions stockholders that future results could be materially different from those included in this proxy statement/prospectus. The BellRing projected financial information is subjective in many respects and, as a result, is subject to multiple interpretations and periodic revisions, based on actual experience and prevailing industry and general economic conditions. Because the BellRing projected financial information covers multiple years, such information by its nature becomes less predictive with each successive year. The BellRing projected financial information is based upon numerous estimates, judgments, and assumptions that are inherently uncertain, difficult to predict, and beyond BellRing’s control. Although such estimates, judgments, and assumptions were considered reasonable by BellRing’s senior management as of the date of preparation of the BellRing projected financial information, actual results may differ for any number of reasons, including general economic and industry conditions, competition and the risks discussed in this proxy statement/prospectus under the sections entitled “Cautionary Statement Regarding Forward-Looking Statements” and “Risk Factors” beginning on pages 38 and 29, respectively. The BellRing projected financial information also reflects assumptions as to certain business decisions that are subject to change. There can be no assurance that the underlying assumptions will be achieved or that the projected results will be realized, and actual results will likely differ, and may differ materially, from those reflected in the BellRing projected financial information, whether or not the transactions are completed. As a result, the BellRing projected financial information cannot be considered a reliable predictor of future operating results, and this information should not be relied on as such.

The BellRing projected financial information does not take into account the possible financial and other effects on BellRing or New BellRing of the transactions and does not attempt to predict or suggest future results following the transactions. The BellRing projected financial information does not give effect to the transactions, including the impact of negotiating or executing the transaction agreement, the expenses that may be incurred in connection with completing the transactions, the effect on BellRing of any business or strategic decision or action that has been or will be taken as a result of the transaction agreement having been executed, or the effect of any business or strategic decisions or actions that would likely have been taken if the transaction agreement had not been executed, but that were instead altered, accelerated, postponed or not taken in anticipation of the transactions. Further, the BellRing projected financial information does not take into account the effect on BellRing of any possible failure of the transactions to occur. For the foregoing reasons, and considering that the special meeting will be held several months after the BellRing projected financial information was prepared, as well as the uncertainties inherent in any forecasting information, readers of this proxy statement/prospectus are

 

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cautioned not to place undue reliance on the financial projections. BellRing urges all BellRing stockholders to review its most recent SEC filings for a description of its reported financial results. For a description of, and instructions as to how to obtain, this information, please see the section of this proxy statement/prospectus entitled “Where You Can Find More Information; Incorporation by Reference” beginning on page 130.

The inclusion of the BellRing projected financial information in this proxy statement/prospectus will not be deemed an admission or representation by BellRing that such information is viewed by BellRing as material information of BellRing (either before or after completion of the transactions). The BellRing projected financial information is included in this proxy statement/prospectus because it was provided to the BellRing Special Committee in connection with its evaluation of the transactions and Lazard for its use in connection with its financial analyses.

The BellRing projected financial information contains certain non-GAAP financial measures that management of BellRing believes are helpful in understanding BellRing’s financial performance. Financial measures included in projections provided to a board of directors or a financial advisor in connection with a business combination transaction, such as the BellRing projected financial information, are excluded from the definition of “non-GAAP financial measures” under the rules of the SEC, and therefore such financial measures are not subject to SEC rules regarding disclosures of non-GAAP financial measures, which would otherwise require a reconciliation of a non-GAAP financial measure to a GAAP financial measure. Reconciliations of non-GAAP financial measures were not provided to or relied upon by the BellRing Special Committee in connection with its evaluation of the transactions. Accordingly, no reconciliation of the financial measures included in the BellRing projected financial information is provided in this proxy statement/prospectus.

None of BellRing or any of its affiliates (including New BellRing), or their respective advisors, officers, directors or other representatives, can provide any assurance that actual results will not differ from the BellRing projected financial information, and none of them undertakes any obligation to update, or otherwise revise or reconcile, the BellRing projected financial information to reflect circumstances existing after the date the BellRing projected financial information was prepared or to reflect the occurrence of future events. Except as required by applicable securities laws, neither BellRing nor New BellRing intends to make publicly available any update or other revision to the BellRing projected financial information, even in the event that any or all of the underlying assumptions upon which they were based prove to be inaccurate or inappropriate for any reason.

None of BellRing or any of its affiliates (including New BellRing), or their respective advisors, officers, directors or other representatives, has made or makes any representation to any BellRing stockholder or any other person regarding the ultimate performance of BellRing or New BellRing. BellRing has made no representation to Post, in the transaction agreement or otherwise, concerning the BellRing projected financial information.

The BellRing projected financial information for fiscal year 2022 that BellRing senior management made available to the BellRing Special Committee in connection with its evaluation of the transactions and Lazard for its use in connection with its financial analyses assumed, consistent with BellRing’s public guidance to investors regarding certain financial performance metrics, that net sales and Adjusted EBITDA each would grow 9% to 13% over fiscal year 2021, resulting in a net sales range of $1.36 billion to $1.41 billion and an Adjusted EBITDA range of $255 million to $265 million. The BellRing projected financial information for fiscal years 2023, 2024 and 2025 that BellRing senior management made available to the BellRing Special Committee in

connection with its evaluation of the transactions and Lazard for its use in connection with its financial analyses assumed that net sales growth and Adjusted EBITDA would be within BellRing’s long-term algorithm, which provides for organic net sales growth of approximately 10% to 12% and Adjusted EBITDA margin of approximately 18% to 20% of net sales, applying the same assumed growth rates to future years as the assumed growth rates for fiscal year 2022 included in BellRing’s public guidance to investors regarding certain financial performance metrics. Information regarding certain financial measures used by BellRing, and BellRing’s public guidance to investors regarding certain financial performance metrics, can be found in annual, quarterly and current reports, proxy statements and other information that BellRing has filed with the SEC. For a description

 

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of, and instructions as to how to obtain, this additional information, please see the section of this proxy statement/prospectus entitled “Where You Can Find More Information; Incorporation by Reference” beginning on page 130.

Using the BellRing projected financial information, Lazard calculated net leverage of New BellRing, which calculations were approved by BellRing management for use by Lazard for purposes of its financial analyses. This information was also used by the BellRing Special Committee for purposes of its evaluation of the transactions.

 

            Year Ended September 30,  
     At Closing      2022E      2023E      2024E      2025E  

Net Leverage (1)

     4.0x        3.6x        2.6x        1.7x        0.9x  

 

(1)

Net leverage for a particular year is calculated as the total debt net of cash and cash equivalents divided by Adjusted EBITDA, in each case, as of September 30 of such year and assumes that (i) BellRing does not incur additional indebtedness incremental to the indebtedness incurred at the completion of the transactions and (ii) any excess cash flow generated by BellRing is not distributed to its stockholders or used in connection with strategic transactions.

Voting by Directors and Executive Officers of BellRing

As of the close of business on January 14, 2022, the most recent practicable date prior to the date of this proxy statement/prospectus, BellRing’s directors, executive officers and their respective affiliates held 329,867 shares of BellRing Class A Common Stock (including any RSUs that vest within 60 days of January 14, 2022, any vested RSUs deferred by directors until retirement from the BellRing Board of Directors and shares of BellRing Class A Common Stock which could be acquired upon the exercise of vested options or options that vest within 60 days of January 14, 2022) and zero shares of BellRing Class B Common Stock. This is expected to represent less than 1% of the voting power of the shares of BellRing Common Stock expected to be outstanding and entitled to vote as of the record date for the special meeting. BellRing currently expects that its directors and executive officers will vote their shares of BellRing Common Stock in favor of the proposals to be considered at the special meeting, although none of them is obligated to do so.

Interests of Directors and Executive Officers in the Transactions

The directors of New BellRing following the completion of the transactions will consist of the following six members who are the same as the current BellRing directors: Robert V. Vitale, Executive Chairman, Darcy Horn Davenport, Thomas P. Erickson, Jennifer Kuperman, Chonda J. Nwamu and Elliot H. Stein, Jr. The executive officers of BellRing immediately prior to the effective time of the transactions will be the initial executive officers of New BellRing.

In considering the recommendation of the BellRing Board of Directors, based on the recommendation of the BellRing Special Committee, to vote at the special meeting for the transaction agreement proposal in accordance with its terms and the DGCL, stockholders of BellRing should be aware that members of the BellRing Board of Directors and members of BellRing’s executive management teams have relationships, agreements or arrangements that provide them with interests in the transactions that may be in addition to or differ from those of BellRing’s stockholders, including:

 

   

the continued employment of BellRing’s executive officers as New BellRing’s executive officers and the continued service of BellRing’s directors as directors of New BellRing;

 

   

the indemnification, advancement and exculpation of officers and directors of BellRing by New BellRing for their services as such up to the time of the completion of the merger;

 

   

the fact that Robert V. Vitale is a member of the Post Board of Directors, and President and Chief Executive Officer, of Post, as well as the Executive Chairman of the BellRing Board of Directors. As

 

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of January 14, 2022, Post held approximately 97.5 million BellRing LLC Units, equal to approximately 71.5% of the economic interest in BellRing LLC, and one share of BellRing Class B Common Stock, which represented 67% of the total voting power of the outstanding BellRing Common Stock;

 

   

the fact that Jennifer Kuperman is a member of the Post Board of Directors as well as a member of the BellRing Board of Directors; and

 

   

the fact that Mr. Vitale is expected to remain Executive Chairman of the New BellRing Board of Directors, and Ms. Kuperman is expected to remain a member of the New BellRing Board of Directors, following the completion of the transactions.

Pursuant to authority delegated to the Corporate Governance and Compensation Committee by the BellRing Board of Directors and in recognition of the substantial time commitment made by, and that will continue to be made by, members of the BellRing Special Committee, and additional responsibilities assumed by members of the BellRing Special Committee in fulfilling their duties as members of the BellRing Special Committee, the Corporate Governance and Compensation Committee of the BellRing Board of Directors authorized the grant on November 11, 2021 to members thereof of such number of RSUs pursuant to the 2019 BellRing LTIP, rounded down to the nearest whole unit, with a Fair Market Value (as defined in the 2019 BellRing LTIP) of (i) in the case of the Chairperson of the BellRing Special Committee, $35,000 or (ii) in the case of each other member of the BellRing Special Committee, $30,000. Each grant of RSUs will have a Term (as defined in the 2019 BellRing LTIP) of three years, with one third of the RSUs vesting annually on each anniversary of November 11, 2021. The grant and vesting of such RSUs was not, and is not, contingent on the BellRing Special Committee approving or recommending the transactions or on the completion of the transactions.

As compensation for continuing to serve as Executive Chairman of the BellRing Board of Directors, Mr. Vitale is expected to receive a New BellRing equity grant as well as director retainer fees. BellRing has retained a compensation consultant to advise on potential compensation structures for Mr. Vitale, including the potential size and terms of any such equity grant and any such director retainer fees. Mr. Vitale’s compensation for continuing to serve as Executive Chairman of the BellRing Board of Directors is expected to be set following the completion of the transactions.

Nonqualified stock options to purchase Post Common Stock held by Ms. Davenport have vested by their terms. It is contemplated, however, that the employee matters agreement will provide that, to the extent that such stock options remain outstanding at the completion of the spin-off or exchange offer, as applicable, Ms. Davenport’s vested Post stock options will be adjusted in a manner and at a time consistent with other equity awards issued by Post under its equity incentive plans and may be amended to extend their exercise period to 10 years from the date of grant of such stock options, as described in the section of this proxy statement/prospectus entitled “Ancillary Agreements—Amended and Restated Employee Matters Agreement” beginning on page 99. As of the date of this proxy statement/prospectus, no final determination as to the treatment of Ms. Davenport’s Post stock options has been made.

Cash-settled Post RSUs held by Mr. Rode vest by their terms when BellRing is no longer an affiliate of Post. It is contemplated, however, that the employee matters agreement will provide that, to the extent that such cash-settled Post RSUs remain outstanding at the completion of the spin-off or exchange offer, as applicable, such awards will be adjusted in a manner and at a time consistent with other equity awards issued by Post under its equity incentive plans, as described in the section of this proxy statement/prospectus entitled “Ancillary Agreements—Amended and Restated Employee Matters Agreement” beginning on page 99. As of the date of this proxy statement/prospectus, no final determination as to the treatment of Mr. Rode’s cash-settled Post RSUs has been made.

Additionally, stock-settled Post RSUs held by Ms. Davenport, Mr. Rode, and Douglas J. Cornille vest by their terms on April 22, 2022, and stock-settled Post RSUs held by Robin Singh vest by their terms on April 16, 2022. The stock-settled Post RSUs provide that in the event of the termination of the grantee’s employment from the

 

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Post group (which occurs at such time as Post and BellRing are no longer affiliated), the grantee will forfeit all RSUs that are not vested as of the time of termination. It is contemplated that the employee matters agreement will provide that, to the extent that such stock-settled Post RSUs remain outstanding at the completion of the spin-off or exchange offer, as applicable, such awards will be adjusted in a manner and at a time consistent with other equity awards issued by Post under its equity incentive plans and may be accelerated at the time Post and BellRing are no longer affiliated if such awards do not vest by their terms prior to completion of the transactions or the disaffiliation, respectively, as described in the section of this proxy statement/prospectus entitled “Ancillary Agreements—Amended and Restated Employee Matters Agreement” beginning on page 99. As of the date of this proxy statement/prospectus, no final determination as to the treatment of the stock-settled Post RSUs held by certain BellRing executive officers has been made.

The BellRing Special Committee was aware of these relationships, agreements and arrangements during its evaluation of the transactions and in making its decision to recommend that the BellRing Board of Directors approve and declare advisable the transaction agreement and approve the execution, delivery and performance of the transaction agreement and the completion of the transactions contemplated therein, including the merger, and recommend to BellRing stockholders that they adopt the transaction agreement.

Item 402(t) of Regulation S-K under the Exchange Act requires disclosure with respect to named executive officers of an acquiring company and a target company of “golden parachute” or similar compensation arrangements between such officers and such companies concerning compensation that will be received by such officers based on or otherwise relating to a merger transaction. No final determination has been made as to compensation arrangements that may be received by any of BellRing’s named executive officers based on or otherwise relating to the transactions, and no disclosure is required under Item 402(t) of Regulation S-K. In addition, Section 14A(b) of the Exchange Act and Rule 14(a)-21(c) under the Exchange Act require that companies provide their stockholders with the opportunity to vote to approve, on an advisory non-binding basis, any “golden parachute compensation” for named executive officers of a registrant that is based on or otherwise relates to a merger transaction. Because disclosure is not required pursuant to Item 402(t) of Regulation S-K, there is no requirement to include a separate resolution, subject to such an advisory vote, to approve any such arrangements.

Accounting Treatment

After the completion of the transactions, BellRing’s Up-C structure will no longer be in place. As a result, New BellRing’s consolidated statements of operations will no longer reflect net earnings attributable to noncontrolling interests, which will result in a higher effective tax rate more closely aligned with other C corporations in the U.S. Furthermore, the noncontrolling interest amount on BellRing’s consolidated balance sheet immediately prior to completion of the transactions will be reclassified, resulting in a decrease to stockholders’ deficit.

Exchange of Shares of BellRing Class A Common Stock in the Merger

New BellRing has appointed Computershare as exchange agent (the “exchange agent”) for the purpose of exchanging outstanding shares of BellRing Class A Common Stock for shares of New BellRing Common Stock. Promptly after the date the merger is completed, the exchange agent will send to each record holder of certificated shares of BellRing Class A Common Stock a letter of transmittal and instructions for exchanging their certificates for the applicable merger consideration. Accounts holding shares of BellRing Class A Common Stock in book-entry form will be debited as of the effective time of the merger and promptly thereafter credited with the applicable number of shares of New BellRing Common Stock. No letters of transmittal will be delivered to holders of shares in book-entry form, and holders of book-entry shares of BellRing Class A Common Stock will not need to take any action to receive their shares of New BellRing Common Stock in the merger. For additional information regarding the treatment of certificated shares or shares held in book-entry form, please see the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—Conversion of Shares; Exchange of Certificates” beginning on page 85.

 

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Dividend Policy

New BellRing does not anticipate any payment of quarterly dividends for the foreseeable future. The declaration and payment of dividends will be at the discretion of the New BellRing board of directors and will be dependent upon its future earnings, financial condition and capital requirements.

Listing

It is a condition to the merger that the shares of New BellRing Common Stock to be issued in the merger shall have been authorized for listing on the NYSE. If the merger is completed, New BellRing will be the successor issuer to BellRing and New BellRing Common Stock will be listed on the NYSE and BellRing Common Stock will cease to be listed.

Regulatory Approvals

The completion of the transactions is not subject to the receipt of any regulatory approvals.

 

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APPRAISAL RIGHTS

If the merger is completed, holders of shares of BellRing Class A Common Stock who have complied with the applicable requirements and procedures of Section 262 will be entitled to demand appraisal of their shares of BellRing Class A Common Stock and receive, in lieu of the merger consideration, a cash payment equal to the “fair value” of their shares of BellRing Class A Common Stock, as determined by the Delaware Court of Chancery (the “Court of Chancery”), in accordance with Section 262, plus interest, if any, on the amount determined to be the fair value, subject to the provisions of Section 262, as further described herein. Such appraised value may be greater than, the same as, or less than, the merger consideration. Any holder of shares of BellRing Class A Common Stock contemplating the exercise of such appraisal rights should review carefully the provisions of Section 262, particularly the procedural steps required to properly demand and perfect such rights and is encouraged to consult personal legal counsel. All references in this summary of appraisal rights to a “stockholder” or “holders” of shares of BellRing Class A Common Stock are to the record holder or holders of such shares as of immediately prior to the effective time of the merger and as to which appraisal rights are asserted. A person having a beneficial interest in shares of BellRing Class A Common Stock held of record in the name of another person, such as a bank, broker or other nominee, must act promptly to cause the record holder to follow the steps summarized below and in a timely manner to perfect appraisal rights.

THE FOLLOWING SUMMARY IS NOT A COMPLETE STATEMENT OF THE LAW PERTAINING TO APPRAISAL RIGHTS UNDER SECTION 262 AND IS QUALIFIED IN ITS ENTIRETY BY THE FULL TEXT OF SECTION 262, A COPY OF WHICH IS ATTACHED AS ANNEX G TO THIS PROXY STATEMENT/PROSPECTUS AND IS INCORPORATED BY REFERENCE INTO THIS PROXY STATEMENT/PROSPECTUS. THE FOLLOWING SUMMARY DOES NOT CONSTITUTE ANY LEGAL OR OTHER ADVICE NOR DOES IT CONSTITUTE A RECOMMENDATION THAT BELLRING STOCKHOLDERS EXERCISE APPRAISAL RIGHTS UNDER SECTION 262.

Under Section 262, if the merger is completed, holders of record of shares of BellRing Class A Common Stock immediately prior to the effective time who (i) do not cast their vote in favor of the transaction agreement proposal, (ii) properly demand appraisal for such holder’s shares of BellRing Class A Common Stock and continuously hold their BellRing shares for which they have demanded appraisal through the effective time and (iii) comply with all of the other procedures set forth in Section 262 will be entitled to have their shares of BellRing Class A Common Stock appraised by the Court of Chancery and to receive in lieu of the merger consideration, a cash payment equal to the “fair value” of such shares, exclusive of any element of value arising from the accomplishment or expectation of the merger, together with interest, if any, on the amount determined to be the fair value, as determined by such court and subject to Section 262, as further described herein.

Under Section 262, BellRing is required not less than 20 days before the special meeting to notify each of the holders of shares of BellRing Class A Common Stock who is entitled to exercise appraisal rights that appraisal rights are available for any or all of such shares, and is required to include in such notice a copy of Section 262. This proxy statement/prospectus constitutes a formal notice of appraisal rights under Section 262, and the full text of Section 262 is attached as Annex G to this proxy statement/prospectus. Any holder of shares of BellRing Class A Common Stock who wishes to exercise such appraisal rights, or who wishes to preserve such holder’s right to do so, should review the following discussion and Annex G carefully because failure to comply exactly with all of the procedures specified may result in a termination or loss of appraisal rights under Section 262.

Under Delaware law, the procedures to properly demand and perfect appraisal rights must be carried out by and in the name of those registered as the holders of record of shares of BellRing Class A Common Stock with certain limited exceptions specified herein. Stockholders who are the beneficial owners but not the holders of record of shares of BellRing Class A Common Stock (such as shares held in the name of a bank, broker or other nominee) and who wish to demand appraisal of their shares of BellRing Class A Common Stock held beneficially but not of record, are advised to consult promptly with the holders of record as to the timely exercise of such rights and to cause such holders of record to make the appropriate demand and to otherwise comply with the requirements of Section 262.

 

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FAILURE TO COMPLY EXACTLY WITH ALL OF THE PROCEDURES SET FORTH IN SECTION 262 MAY RESULT IN A TERMINATION OR LOSS OF APPRAISAL RIGHTS UNDER SECTION 262.

Any stockholder wishing to exercise appraisal rights is urged to consult legal counsel before attempting to exercise such rights.

If a stockholder elects to exercise appraisal rights under Section 262, the record stockholder must do ALL of the following:

 

   

NOT vote their shares of BellRing Class A Common Stock “FOR” the transaction agreement proposal;

 

   

deliver a written demand for appraisal of such shares of BellRing Class A Common Stock that complies with Section 262 before the vote is taken on the transaction agreement proposal at the special meeting, which demand should be delivered to BellRing Brands, Inc., Attention: Corporate Secretary, 2503 S. Hanley Road, St. Louis, Missouri 63144, and must reasonably inform BellRing of the identity of the stockholder and that the stockholder is demanding appraisal; and

 

   

continuously hold of record such shares of BellRing Class A Common Stock through the merger effective time.

In addition, you or another stockholder who has complied with the requirements of Section 262 (or any person who is the beneficial owner of shares of BellRing Class A Common Stock held either in a voting trust or by a nominee on behalf of such person and for which such record holder has complied with such requirements), or BellRing as the surviving corporation in the merger, must file a petition in the Court of Chancery requesting a determination of the fair value of all shares entitled to appraisal within 120 days after the effective time of the merger. BellRing is under no obligation to file any petition and has no present intention of doing so. You must also comply with all of the applicable procedures and requirements set forth in Section 262.

Any stockholder who votes “FOR” the transaction agreement proposal will not be entitled to exercise appraisal rights with respect thereto but rather, will receive the merger consideration in respect of their shares of BellRing Class A Common Stock, without interest, subject to the terms and conditions of the transaction agreement.

The right to appraisal will be terminated or lost unless it is perfected by complying with all of the procedures set forth in Section 262, the text of which is attached as Annex G to this proxy statement/prospectus. Voting against or failing to vote on the transaction agreement proposal, or providing a proxy to vote against or abstain from voting on the transaction agreement proposal, does not by itself constitute a demand for appraisal. A separate written demand for appraisal must be properly executed by the record holder of shares of BellRing Class A Common Stock and delivered to BellRing as described herein.

In addition, because the BellRing Class A Common Stock is listed on a national securities exchange and is expected to continue be listed on such exchange immediately prior to the completion of the merger, the Court of Chancery will dismiss appraisal proceedings as to all shares of BellRing Class A Common Stock unless (i) the total number of shares entitled to appraisal exceeds 1% of the outstanding shares of BellRing Class A Common Stock eligible for appraisal or (ii) the value of the consideration provided in the merger for such total number of shares entitled to appraisal exceeds $1 million. At least one of these ownership thresholds must be met in order for BellRing stockholders to be entitled to seek appraisal with respect to such shares of BellRing Class A Common Stock.

Written Demand by the Record Holder

Holders of shares of BellRing Class A Common Stock who wish to exercise their appraisal rights of their shares must deliver to BellRing a written demand for appraisal of the holder’s shares of BellRing Class A Common Stock before the vote is taken to approve the transaction agreement proposal at the special meeting. Any demands for appraisal should be delivered to BellRing at BellRing Brands, Inc., Attention: Corporate Secretary, 2503 S. Hanley Road, St. Louis, Missouri 63144.

 

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As provided under Section 262, failure of a holder of shares of BellRing Class A Common Stock to make a written demand for appraisal (or failure of a beneficial owner of shares of BellRing Class A Common Stock to cause the record holder of such shares of BellRing Class A Common Stock to demand an appraisal of such BellRing shares) within the time limits provided in Section 262 will result in the loss of such holder’s appraisal rights. The written demand for appraisal must be executed by or for the holder of record of shares of BellRing Class A Common Stock. The demand should reasonably inform BellRing of the identity of such stockholder and that such stockholder is demanding appraisal. If such shares of BellRing Class A Common Stock are owned of record in a fiduciary or representative capacity, such as by a trustee, executor, administrator, guardian or attorney-in-fact, execution of the demand must be made in such capacity, and if such shares of BellRing Class A Common Stock are owned of record by more than one person, such as in a joint tenancy or tenancy in common, the demand must be executed by or for all joint owners. An authorized agent, including one of two or more joint owners, may execute the demand for appraisal for a stockholder of record; provided, however, that the agent must identify the record owner(s) and expressly disclose the fact that, in executing the demand, the agent is acting as agent for the record owner(s).

Within 10 days after the effective time of the merger, BellRing, as the surviving corporation in the merger, must give notice that the merger has become effective to each stockholder of BellRing who has demanded appraisal in accordance with Section 262 and who did not vote in favor of the proposal to adopt the transaction agreement.

Filing a Petition for Appraisal

Within 120 days after the merger effective time, but not thereafter, either BellRing as the surviving corporation in the merger or any holder of shares of BellRing Class A Common Stock who has complied with the provisions of Section 262 and is entitled to appraisal rights thereunder may commence an appraisal proceeding by filing a petition in the Court of Chancery, demanding a determination of the fair value of the shares entitled to appraisal held by all such stockholders. BellRing, as the surviving corporation in the merger, has no obligation to file such petition and has no present intention to file a petition, and holders should not assume that the surviving corporation will file a petition for appraisal. In the event that the surviving corporation does not file such petition, it is the obligation of the holders of BellRing Class A Common Stock to initiate all necessary action to perfect their appraisal rights with respect to shares of BellRing Class A Common Stock within the time prescribed in Section 262. If, within 120 days after the effective time of the merger, no petition has been filed as provided above, all rights to appraisal will be lost and those shares will be deemed to have been converted at the first effective time into the consideration set forth in the merger agreement, without interest. Accordingly, any BellRing stockholder who wishes to perfect such stockholder’s appraisal rights should initiate all necessary action to perfect her, his or its appraisal rights within the time and in the manner prescribed in Section 262. Notwithstanding the foregoing, at any time within 60 days after the merger effective time, any BellRing stockholder who has not commenced an appraisal proceeding or joined such proceeding as a named party can withdraw her, his or its demand for appraisal and accept the merger consideration without interest by delivering to BellRing, as the surviving corporation in the merger, a written withdrawal of such stockholder’s demand and an acceptance of the merger.

Within 120 days after the merger effective time, any holder of shares of BellRing Class A Common Stock who has complied with the requirements for exercise of appraisal rights will be entitled, upon written request, to receive from BellRing, as the surviving corporation in the merger, a statement setting forth the aggregate number of shares of BellRing Class A Common Stock not voted in favor of the transaction agreement proposal with respect to which demands for appraisal have been received and the aggregate number of holders of such shares of BellRing Class A Common Stock. BellRing must give this statement to the requesting stockholder within 10 days after receipt of the written request for such a statement or within ten days after the expiration of the period for delivery of demands for appraisal, whichever is later. A beneficial owner of shares of BellRing Class A Common Stock held either in a voting trust or by a nominee on behalf of such beneficial owner may, in such beneficial owner’s own name, file a petition seeking appraisal or request from BellRing the foregoing statements. As noted, however, the demand for appraisal can only be made by on behalf of a holder of record.

 

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If a petition for an appraisal is timely filed with the Court of Chancery by a BellRing stockholder or any such beneficial owner, service of a copy thereof must be made upon BellRing, which will then be obligated within 20 days after such service to file with the Register in Chancery of the Court of Chancery of the State of Delaware (the “Register in Chancery”) a duly verified list containing the names and addresses of all BellRing stockholders who have demanded payment for their shares of BellRing Class A Common Stock and with whom agreements as to the value of their shares of BellRing Class A Common Stock have not been reached. The Register in Chancery, if so ordered by the Court of Chancery, must give notice of the time and place fixed for the hearing of such petition to BellRing and all of the stockholders shown on such duly verified list in accordance with Section 262. As required by Section 262, the Court of Chancery is empowered to conduct a hearing on such petition to determine those BellRing stockholders who have complied with Section 262 and who have become entitled to exercise appraisal rights thereunder. The Court of Chancery may require the BellRing stockholders who have demanded appraisal of their shares of BellRing Class A Common Stock to submit their stock certificates representing shares of BellRing Class A Common Stock to the Register in Chancery for notation thereon of the pendency of the appraisal proceeding and, if any such BellRing stockholder fails to comply with such direction, the Court of Chancery may dismiss the proceedings as to such stockholder. Additionally, and notwithstanding anything herein to the contrary, the Court of Chancery shall dismiss the appraisal proceeding unless (a) the total number of shares entitled to appraisal exceeds 1% of the outstanding shares of BellRing Class A Common Stock eligible for appraisal or (b) the value of the consideration provided in the merger for such total number of shares of BellRing Class A Common Stock exceeds $1 million.

At any time within 60 days after the effective time of the merger, any stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party will have the right to withdraw such demand for appraisal and to accept the terms offered in the merger (without interest) by delivering to BellRing, as the surviving corporation in the merger, a written withdrawal of such stockholder’s demand and an acceptance of the merger; after this period, such stockholders may withdraw such demand for appraisal only with the consent of BellRing as the surviving corporation in the merger. Notwithstanding the foregoing, no appraisal proceeding in the Court of Chancery shall be dismissed as to any stockholder without the approval of the Court of Chancery, and such approval may be conditioned upon such terms as the Court of Chancery deems just, provided, however, that this provision shall not affect the right of any stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party to withdraw such stockholder’s demand for appraisal and to accept the terms offered in the merger (without interest) within 60 days of the effective time of the merger.

Determination of Fair Value

After determining the stockholders entitled to appraisal, the Court of Chancery will appraise the “fair value” of the shares of BellRing Class A Common Stock, exclusive of any element of value arising from the accomplishment or expectation of the merger, together with interest, if any, to be paid upon the amount determined to be the fair value. Unless the Court of Chancery in its discretion determines otherwise for good cause shown, and except with respect to advance payments described below, interest on the amount determined to be the fair value will accrue from the effective time of the merger through the date of payment of the judgment, be compounded quarterly, and will accrue at 5% over the Federal Reserve discount rate (including any surcharges) as established from time to time during the period between the effective time of the merger and the date of payment of the judgment. At any time before the entry of judgment in the proceedings, BellRing may pay to each stockholder entitled to appraisal an amount in cash (which will be treated as an advance against the payment due to such holder of shares of BellRing Class A Common Stock), in which case interest must accrue thereafter only upon the sum of (i) the difference, if any, between the amount so paid and the fair value of the shares of BellRing Class A Common Stock as determined by the Court of Chancery and (ii) interest theretofore accrued, unless paid at that time. BellRing is under no obligation to make such voluntary cash payment prior to such entry of judgment.

Stockholders considering the exercise of appraisal rights should be aware that the fair value of their BellRing shares as determined under Section 262 could be greater than, the same as or less than the value of the merger consideration. In determining “fair value,” the Court of Chancery must take into account all relevant factors.

 

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In Weinberger v. UOP, Inc., the Delaware Supreme Court discussed the factors that could be considered in determining fair value in an appraisal proceeding, stating that “proof of value by any techniques or methods which are generally considered acceptable in the financial community and otherwise admissible in court” should be considered, and that “fair price obviously requires consideration of all relevant factors involving the value of a company.” The Delaware Supreme Court stated that, in making this determination of fair value, the Court must consider market value, asset value, dividends, earnings prospects, the nature of the enterprise and any other facts that could be ascertained as of the date of the merger that throw any light on future prospects of the merged corporation. Section 262 provides that fair value is to be “exclusive of any element of value arising from the accomplishment or expectation of the merger.” In Cede & Co. v. Technicolor, Inc., the Delaware Supreme Court stated that such exclusion is a “narrow exclusion [that] does not encompass known elements of value,” but which rather applies only to the speculative elements of value arising from such accomplishment or expectation. In Weinberger, the Delaware Supreme Court also stated that “elements of future value, including the nature of the enterprise, which are known or susceptible of proof as of the date of the merger and not the product of speculation, may be considered.”

The costs of the appraisal proceeding may be determined by the Court of Chancery and taxed upon the parties as the Court deems equitable under the circumstances. Upon application of a BellRing stockholder, the Court may also order that all or a portion of the expenses incurred by a BellRing stockholder in connection with an appraisal, including, without limitation, reasonable attorneys’ fees and the fees and expenses of experts utilized in the appraisal proceeding, be charged pro rata against the value of all the shares of BellRing Class A Common Stock entitled to be appraised. Absent such an order, each party is responsible for her, his or its own expenses.

From the merger effective time, no stockholder who has demanded appraisal rights in compliance with Section 262 will be entitled to vote such shares of BellRing Class A Common Stock for any purpose or to receive payment of dividends or other distributions on any shares of BellRing Class A Common Stock (except dividends or other distributions, if any, payable to stockholders of record as of a record date prior to the merger effective time).

If any BellRing stockholder who demands appraisal of such stockholder’s shares of BellRing Class A Common Stock under Section 262 fails to perfect, or effectively withdraws or loses, such stockholder’s right to appraisal, as provided in the DGCL, the shares of BellRing Class A Common Stock of such stockholder will be deemed converted at the merger effective time into the right to receive the merger consideration, without interest thereon, subject to any taxes required to be withheld under applicable law and follow the applicable exchange procedures in order to receive payment of the merger consideration.

If no petition for an appraisal is filed, or if a BellRing stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party delivers to BellRing a written withdrawal of the demand for an appraisal and acceptance of the merger consideration, either within 60 calendar days after the merger effective time or thereafter with the written approval of BellRing, then the right of such stockholder to an appraisal shall cease. Notwithstanding the foregoing, no appraisal proceeding in the Court of Chancery will be dismissed as to any BellRing stockholders, however, without the approval of the Court of Chancery, which may be conditioned on such terms as the Court of Chancery deems just; provided, however, that such requirement will not affect the right of any BellRing stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party to withdraw such stockholder’s demand for appraisal and to accept the terms offered pursuant to the merger (without interest) within 60 calendar days after the merger effective time.

If you wish to exercise your appraisal rights, you must not vote your shares in favor of the transaction agreement proposal, and you must comply with the procedures set forth in Section 262. If you fail to take any required step in connection with the exercise of appraisal rights, it may result in the termination or waiver of your appraisal rights.

The foregoing summary of the rights of BellRing stockholders to seek appraisal rights under Delaware law does not purport to be a complete statement of the procedures to be followed by BellRing stockholders desiring to

 

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exercise any appraisal rights available thereunder and is qualified in its entirety by reference to Section 262. The proper exercise of appraisal rights requires adherence to the applicable provisions of the DGCL. A copy of Section 262 is attached as Annex G to this proxy statement/prospectus and is incorporated by reference into this proxy statement/prospectus.

FAILURE TO COMPLY EXACTLY WITH ALL OF THE PROCEDURES SET FORTH IN SECTION 262 MAY RESULT IN A TERMINATION OR LOSS OF APPRAISAL RIGHTS UNDER SECTION 262.

 

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BOARD OF DIRECTORS AND MANAGEMENT OF NEW BELLRING FOLLOWING THE PROPOSED TRANSACTIONS

The New BellRing Board of Directors following the merger will consist of the following six members that are the same as the current BellRing directors: Robert V. Vitale, Executive Chairman, Darcy Horn Davenport, Thomas P. Erickson, Jennifer Kuperman, Chonda J. Nwamu and Elliot H. Stein, Jr.

The executive officers of BellRing immediately prior to the effective time of the merger will be the initial executive officers of New BellRing.

 

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MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES

The following is a general discussion of the U.S. federal income tax consequences of the merger to U.S. holders (as defined below) of BellRing Class A Common Stock. The following discussion is based on the IRC, the Treasury Regulations promulgated under the IRC, and interpretations of such authorities by the courts and the IRS, all as they exist as of the date of this proxy statement/prospectus, and all of which are subject to change or subject to differing interpretations, possibly with retroactive effect, so as to result in U.S. federal income tax consequences different from those discussed below. Any such change could affect the accuracy of the statements and conclusions set forth in this discussion. This discussion assumes that the merger will be completed in accordance with the transaction agreement and as further described in this proxy statement/prospectus. None of Post, BellRing or New BellRing intends to request any ruling from the IRS as to the U.S. federal income tax consequences of the merger. Consequently, no assurance can be given that the IRS will not challenge the conclusions described in this discussion or that a court would not sustain such a challenge.

This discussion is limited to holders of shares of BellRing Class A Common Stock that are U.S. holders and hold such stock as a capital asset within the meaning of Section 1221 of the IRC (generally, property held for investment). Further, this discussion does not purport to consider all aspects of U.S. federal income taxation that may be relevant to U.S. holders in light of their particular circumstances, nor does it apply to U.S. holders subject to special treatment under the U.S. federal income tax laws, such as: tax-exempt entities; partnerships, S corporations or other pass-through entities; “controlled foreign corporations;” “passive foreign investment companies;” former citizens or long-term residents of the U.S.; persons who acquired their shares of BellRing Class A Common Stock in connection with the performance of services pursuant to the exercise of employee stock options or otherwise as compensation; persons that hold their shares of BellRing Class A Common Stock in a tax-deferred account (such as an individual retirement account or a plan qualifying under Section 401(k) of the IRC); banks, insurance companies and other financial institutions; regulated investment companies and real estate investment trusts; dealers or brokers in securities, commodities or foreign currencies; traders who elect to apply a mark-to-market method of accounting; persons who have a functional currency other than the U.S. dollar; persons who hold their shares of BellRing Class A Common Stock as part of a straddle, hedge, conversion, constructive sale, synthetic security, integrated investment or other risk-reduction transaction for U.S. federal income tax purposes; persons required to accelerate the recognition of any item of gross income with respect to their shares of BellRing Class A Common Stock as a result of such income being recognized on an applicable financial statement; persons who actually or constructively own more than 5% of BellRing Class A Common Stock or persons that are otherwise subject to special treatment under the IRC.

This discussion does not address any U.S. federal estate, gift or other non-income tax consequences or any state, local or non-U.S. tax consequences.

For purposes of this discussion, a U.S. holder is a beneficial owner of shares of BellRing Class A Common Stock that is, for U.S. federal income tax purposes:

 

   

an individual who is a citizen or a resident of the U.S.;

 

   

a corporation, or other entity treated as a corporation for U.S. federal income tax purposes, organized in or under the laws of the U.S., any state thereof or the District of Columbia;

 

   

an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or

 

   

a trust, if (i) a court within the U.S. is able to exercise primary jurisdiction over its administration and one or more U.S. persons (within the meaning of Section 7701(a)(30) of the IRC) have the authority to control all substantial decisions of the trust or (ii) the trust has a valid election in effect to be treated as a U.S. person for U.S. federal income tax purposes.

If an entity or an arrangement treated as a partnership for U.S. federal income tax purposes holds shares of BellRing Class A Common Stock, the tax treatment of a partner in the partnership generally will depend upon the

 

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status of the partner, the activities of the partnership and certain determinations made at the partner level. Accordingly, any entity treated as a partnership for U.S. federal income tax purposes that holds shares of BellRing Class A Common Stock, and any partners in such partnerships, should consult their tax advisors regarding the tax consequences of the merger.

BellRing’s stockholders should consult their own tax advisors about the tax consequences of the transactions in light of their own particular circumstances, including the tax consequences under state, local, non-U.S., estate and gift and other tax laws and the possible effects of any changes in applicable tax laws.

Tax Opinions

Completion of the distribution, merger and certain related transactions are conditioned on, among other things, (i) the receipt by Post of the 355 tax opinion and (ii) the receipt by BellRing of the BellRing tax opinion. The tax opinions will be based on certain assumptions and on representation letters provided by Post, BellRing and New BellRing to be delivered on or before the time of the completion of the distribution and merger. In addition, the tax advisors’ ability to provide the tax opinions will depend on the absence of changes in existing facts or law between the date of the registration statement of which this prospectus forms a part and the closing date of the merger. The failure of any factual representation or assumption to be true, correct and complete in all material respects, or any undertaking to be fully complied with, could result in either or both of the tax advisors being unable to deliver the tax opinions or could affect the validity of the tax opinions, and the tax consequences of the distribution could differ from those described below.

The tax opinions will not be binding on the IRS. As discussed above, none of Post, BellRing or New BellRing intends to request any ruling from the IRS as to the U.S. federal income tax consequences of the distribution or merger, and there is no guarantee that the IRS or a court will agree with the conclusions set forth in the tax opinions.

In addition, Post’s obligations to effect the distribution and to complete the merger are subject to the satisfaction or, to the extent permitted by law, waiver by Post of receipt by Post of the 355 tax opinion. BellRing’s obligations to complete the merger are similarly subject to the satisfaction or, to the extent permitted by law, waiver by BellRing of its receipt of the BellRing tax opinion. It is not currently anticipated that the condition to obtain the 355 tax opinion or BellRing tax opinion will be waived.

Treatment of the Merger

The merger (or the alternative transaction structure under circumstances described in the transaction agreement) is intended to qualify as a “reorganization” within the meaning of Section 368(a) of the IRC. Pursuant to the conditions to completion of the transaction agreement, BellRing will receive a tax opinion from Simpson Thacher & Bartlett LLP (or another nationally recognized accounting firm or law firm), dated the date on which the merger is completed, that, for U.S. federal income tax purposes, the merger (or the alternative transaction structure under circumstances described in the transaction agreement) will be treated as a “reorganization” within the meaning of Section 368(a) of the IRC. Such tax opinion will be based on certain assumptions and on representation letters provided by BellRing and New BellRing to be delivered at the time of the completion of the merger and will not be binding on the IRS. As discussed above, neither BellRing nor New BellRing intends to request any ruling from the IRS as to the U.S. federal income tax consequences of the merger, and there is no guarantee that the IRS or a court will treat the merger (or the alternative transaction structure under circumstances described in the transaction agreement) as a “reorganization” within the meaning of Section 368(a) of the IRC. Provided that the merger (or the alternative transaction structure under circumstances described in the transaction agreement) qualifies as a “reorganization” under Section 368(a) of the IRC, the material U.S. federal income tax consequences of the merger to a U.S. holder will be as follows:

 

   

New BellRing will not recognize income, gain or loss in the merger;

 

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a U.S. holder will recognize gain (but not loss) in an amount equal to the lesser of (1) the excess, if any, of (i) the sum of the cash and the fair market value of the New BellRing Common Stock received over (ii) such U.S. holder’s tax basis in its BellRing Class A Common Stock and (2) the amount of cash received by such U.S. holder;

 

   

a U.S. holder’s aggregate tax basis in the shares of New BellRing Common Stock received will be equal to such U.S. holder’s aggregate tax basis in its BellRing Class A Common Stock surrendered in exchange for the New BellRing Common Stock increased by the amount of taxable gain, if any, such U.S. holder recognizes on the exchange and decreased by the amount of cash received; and

 

   

a U.S. holder’s holding period for the New BellRing Common Stock received in the merger will include the holding period for the BellRing Class A Common Stock surrendered in the merger.

Any gain or loss recognized will generally be capital gain or loss, and will be long-term capital gain or loss if, as of the effective date of the merger, the U.S. holder’s holding period for the relevant shares is greater than one year. For U.S. holders of BellRing Class A Common Stock that are non-corporate holders, long-term capital gain generally will be taxed at a U.S. federal income tax rate that is lower than the rate for ordinary income or for short-term capital gains. The deductibility of capital losses is subject to limitations.

If a U.S. holder of BellRing Class A Common Stock acquired different blocks of BellRing Class A Common Stock at different times or at different prices, such U.S. holder’s holding period and basis will be determined separately with respect to each block of BellRing Class A Common Stock.

All or part of the gain a U.S. holder recognizes could be treated as ordinary dividend income rather than capital gain if (i) such U.S. holder is a significant shareholder of New BellRing or (ii) if taking into account constructive ownership rules, such U.S. holder’s percentage ownership in New BellRing after the merger is not less than what such U.S. holder’s percentage ownership would have been if such U.S. holder had received New BellRing Common Stock rather than cash in the merger. This could happen, for example, because of a U.S. holder’s purchase of additional New BellRing Common Stock, a purchase of New BellRing Common Stock by a person related to such U.S. holder or a share repurchase by New BellRing from other holders of New BellRing Common Stock. Because the possibility of dividend treatment depends upon a U.S. holder’s particular circumstances, including the application of certain constructive ownership rules, each U.S. holder should consult its own tax advisor regarding the potential tax consequences of the merger. Under the constructive ownership rules, a stockholder may be deemed to own stock that is owned by other persons, such as a family member, a trust, a corporation or other entities. If you are an individual, certain dividends may be subject to reduced rates of taxation, equal to the rates applicable to long-term capital gains. However, individuals who do not meet a minimum holding period requirement during which they are not protected from a risk of loss or who elect to treat the dividend income as “investment income” pursuant to Section 163(d)(4) of the IRC will not be eligible for the reduced rates of taxation. Each U.S. holder should consult its tax advisor regarding the application of the foregoing rules to its particular circumstances.

If BellRing, Post, New BellRing and Merger Sub execute the alternative transaction structure under circumstances described in the transaction agreement, provided that the alternative transaction structure qualifies as a “reorganization” under Section 368(a) of the IRC, the material U.S. federal income tax consequences of the merger to a U.S. holder will be as described above.

If the merger (or the alternative transaction structure under circumstances described in the transaction agreement) were determined not to be a “reorganization” within the meaning of Section 368(a) of the IRC, then, in general, for U.S. federal income tax purposes:

 

   

BellRing would not recognize income, gain or loss in the merger; and

 

   

U.S. holders of shares of BellRing Class A Common Stock would be considered to have made a taxable disposition of their shares of BellRing Class A Common Stock to New BellRing. Such U.S.

 

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holders would generally recognize taxable gain or loss on their receipt of shares of New BellRing Common Stock in an amount equal to the difference between (i) the fair market value of such shares of New BellRing Common Stock and (ii) the U.S. holder’s aggregate tax basis in the shares of BellRing Class A Common Stock surrendered, as described above, and such U.S. holder’s holding period with respect to such shares of New BellRing Common Stock would begin on the day after the merger.

Information Reporting and Backup Withholding

Proceeds received in connection with the merger may be subject to information reporting to the IRS and U.S. backup withholding at the applicable statutory rate (currently 24%). Backup withholding will not apply, however, to a U.S. holder who furnishes a correct taxpayer identification number and makes other required certifications, or who is otherwise exempt from backup withholding and establishes such exempt status. Backup withholding is not an additional tax. Amounts withheld as backup withholding may be credited against a U.S. holder’s U.S. federal income tax liability, and a U.S. holder generally may obtain a refund of any excess amounts withheld under the backup withholding rules by timely filing the appropriate claim for refund with the IRS and furnishing any required information.

A U.S. holder that receives New BellRing Common Stock as a result of the merger will generally be required to retain records pertaining to the merger. In addition, if immediately prior to the merger a U.S. holder owned 5% or more (by vote or value) of the total outstanding stock of BellRing or BellRing securities with a basis of $1 million or more, such U.S. holder will also generally be required to file a statement with its U.S. federal income tax return for the tax year in which the merger occurs setting forth the names and employer identification numbers of BellRing and New BellRing, the date of the merger, and the fair market value and basis of such U.S. holder’s BellRing Class A Common Stock surrendered in the merger and the fair market value of the New BellRing Common Stock received in the merger.

HOLDERS OF BELLRING CLASS A COMMON STOCK SHOULD CONSULT THEIR TAX ADVISORS REGARDING THE SPECIFIC TAX CONSEQUENCES OF THE MERGER TO THEM, INCLUDING THE APPLICABILITY AND EFFECT OF FEDERAL, STATE, LOCAL AND NON-U.S. INCOME AND OTHER TAX LAWS, IN LIGHT OF THEIR PARTICULAR CIRCUMSTANCES.

 

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THE TRANSACTION AGREEMENT AND PLAN OF MERGER

The following summary describes the material provisions of the transaction agreement and is qualified in its entirety by reference to the complete text of the transaction agreement, a copy of which is attached as Annex A hereto and is incorporated by reference into this proxy statement/prospectus. The provisions of the transaction agreement are extensive and not easily summarized. Accordingly, this summary may not contain all of the information about the transaction agreement that is important to you. We encourage you to read the transaction agreement carefully in its entirety for a more complete understanding of the transaction agreement. The transaction agreement and this summary of its terms have been included with this proxy statement/prospectus to provide you with information regarding the terms of the transaction agreement and are not intended to provide any other factual information about Post, BellRing, New BellRing or Merger Sub. Information about Post, BellRing, New BellRing and Merger Sub can be found elsewhere in this proxy statement/prospectus.

Overview

On October 26, 2021, BellRing, Post, New BellRing and Merger Sub entered into the transaction agreement, which provides for, among other things:

 

   

the contribution of Post’s interest in BellRing LLC to New BellRing, which is described in further detail under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger —The Separation” beginning on page 80;

 

   

the incurrence by New BellRing of certain indebtedness, which is described in further detail under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger —New BellRing Debt Financing” beginning on page 81;

 

   

the distribution of Post’s interest in New BellRing to Post shareholders, which is described in further detail under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger —The Distribution” beginning on page 83; and

 

   

the merger of Merger Sub with and into BellRing, with BellRing surviving and becoming a subsidiary of New BellRing, a new public holding company and the successor issuer to BellRing, which is described in further detail under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—The Merger” beginning on page 84.

Pursuant to the merger, holders of shares of BellRing Class A Common Stock will receive, with respect to each share of Class A Common Stock held by each such holder, (i) an amount of per share cash consideration equal to a pro rata portion of the amount by which the aggregate principal amount of the New BellRing debt exceeds the amount of cash required to repay the outstanding indebtedness of BellRing under its credit agreement as described under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger —Merger Consideration” beginning on page 84 and (ii) one share of New BellRing Common Stock.

Immediately following the completion of the transactions, assuming that Post distributes 80.1% of the shares of New BellRing Common Stock held by it in connection with the distribution, (i) holders of shares of BellRing Class A Common Stock as of immediately prior to the merger are expected to own approximately 28.5% of the outstanding shares of New BellRing Common Stock, (ii) holders of shares of Post Common Stock as of immediately prior to the distribution are expected to own approximately 57.3% of the outstanding shares of New BellRing Common Stock, and (iii) Post is expected to own approximately 14.2% of the outstanding shares of New BellRing Common Stock.

The Separation

Post Contribution

Pursuant to the transaction agreement and in connection with the separation, Post will contribute to New BellRing (i) all of the BellRing LLC Units held by it and the sole outstanding share of BellRing Class B

 

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Common Stock and (ii) an amount in cash equal to the amount of the Post negative capital account, in exchange for (x) New BellRing debt securities in an amount described under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—New BellRing Debt Financing” below and (y) limited liability company interests of New BellRing.

The “Post negative capital account” is an amount equal to the estimated taxable gain Post would realize if Post were to dispose of its interest in BellRing LLC for no consideration other than a release of Post’s share of BellRing LLC’s liabilities allocable to Post under the IRC, as determined by Post in its reasonable discretion. The amount of the Post negative capital account will be determined prior to the date on which the New BellRing debt financing transactions described under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—New BellRing Debt Financing” below are pursued, and therefore is not known as of the date of this proxy statement/prospectus. As of September 30, 2021, the most recent practicable date prior to the date of this proxy statement/prospectus, Post’s good faith estimate of the Post negative capital account, assuming the disposal of its interest in BellRing LLC occurred on such date, is approximately $569.3 million.

Other Separation Transactions

Pursuant to the transaction agreement, Post will also undertake the following transactions in connection with the separation:

 

   

New BellRing Tax Election. Prior to the completion of the debt exchange, New BellRing will make an election to be taxed as a corporation.

 

   

BellRing LLC Loan. Immediately prior to the distribution, New BellRing will lend to BellRing LLC an amount in cash equal to (i) the BellRing LLC debt repayment amount minus (ii) BellRing LLC’s cash and cash equivalents in excess of the amount of cash and cash equivalents required for its ordinary course working capital needs and any fees and expenses incurred in connection with the transactions. The “BellRing LLC debt repayment amount” is the repayment amount, as of the completion of the transactions, of all principal, interest, penalties, fees and other obligations with respect to BellRing LLC’s outstanding indebtedness under the BellRing LLC credit agreement. As of January 14, 2022, the most recent practicable date prior to the date of this proxy statement/prospectus, assuming the completion of the transactions occurred on such date, the BellRing LLC debt repayment amount would have been $520 million (which was the BellRing LLC debt repayment amount as of such date).

 

   

New BellRing Conversion. Immediately prior to the distribution, Post will cause New BellRing to convert into a Delaware corporation and the limited liability company interests of New BellRing will be converted into shares of New BellRing Common Stock.

New BellRing Debt Financing

New BellRing Maximum Debt Amount

The aggregate principal amount of the indebtedness that will be incurred by New BellRing in connection with the transactions, including the New BellRing debt securities and the New BellRing loans, will not exceed the New BellRing maximum debt amount. The “New BellRing maximum debt amount” is an amount, determined by Post in good faith in consultation with BellRing, not to exceed the lesser of (i) $1 billion and (ii) the maximum amount of indebtedness that would result in the New BellRing leverage ratio not exceeding 4.00x on a pro forma basis after giving effect to the transactions. The “New BellRing leverage ratio” is the ratio of New BellRing and its subsidiaries’ consolidated indebtedness to New BellRing and its subsidiaries’ consolidated earnings before interest, taxes, depreciation and amortization, in each case, calculated in a manner consistent with the definition of “Total Net Leverage Ratio” under the BellRing LLC credit agreement for the most recently completed four fiscal quarters of BellRing for which financial statements are available.

 

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The New BellRing maximum debt amount will depend on various factors, including the earnings of BellRing and its subsidiaries, and will be determined prior to the date on which the New BellRing debt financing transactions are pursued. Accordingly, the New BellRing maximum debt amount is not known as of the date of this proxy statement/prospectus.

New BellRing Debt Securities

Pursuant to the transaction agreement, prior to the distribution, New BellRing will issue to Post the New BellRing debt securities. The aggregate principal amount of the New BellRing debt securities (the “New BellRing debt securities amount”) issued to Post will equal (i) the Post negative capital account plus (ii) (x) the excess of the aggregate principal amount of the New BellRing debt over the BellRing LLC debt repayment amount multiplied by (y) the percentage of the outstanding BellRing LLC Units that is held by Post.

As of January 14, 2022, the most recent practicable date prior to the date of this proxy statement/prospectus, Post held approximately 71.5% of the outstanding BellRing LLC Units.

Pursuant to the transaction agreement, the New BellRing debt securities will have a term of ten years. Additionally, during the first five years of this term, the New BellRing debt securities will be redeemable by New BellRing in whole or in part only if New BellRing pays holders of such securities a make whole premium, calculated with a discount rate based on U.S. Treasury notes with a maturity closest to the date that is five years after the date the New BellRing debt securities are issued plus 50 basis points. The New BellRing debt securities will also be subject to covenants and other terms and conditions that are consistent in all material respects with market practice for issuers with the investment rating assigned to New BellRing taking into account the transactions (including (x) the requirement of New BellRing to offer to repurchase the New BellRing debt securities from holders at 101% of the aggregate principal amount, plus accrued and unpaid interest thereon, in connection with certain change of control transactions, (y) customary mandatory offer provisions associated with asset sales and other similar events, subject to reinvestment provisions) and (z) customary “cleanup” redemptions of New BellRing in connection with certain change of control transactions).

Following the merger, BellRing and its subsidiaries will guarantee the New BellRing debt securities on a senior unsecured basis on or as promptly as practicable after the date that is two weeks following the closing date of the merger, pari passu in right of payment with other senior debt of BellRing and its subsidiaries.

Post Debt Exchange

Following the issuance of such New BellRing debt securities but prior to the distribution, Post expects to exchange the New BellRing debt securities issued to it by New BellRing for satisfaction of certain debt obligations of Post in the debt exchange. Following the debt exchange, the exchanging parties, or their affiliates, are expected to sell the New BellRing debt securities to third-party investors.

New BellRing Loans

Additionally, pursuant to the transaction agreement, New BellRing will enter into the New BellRing loans. The aggregate principal amount of the New BellRing loans will not exceed, together with the New BellRing debt securities amount, the New BellRing maximum debt amount described under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—New BellRing Maximum Debt Amount” beginning on page 81.

As a result of these financing transactions, the indebtedness of New BellRing immediately following the completion of the transactions is expected to be greater than the indebtedness of BellRing as of the date of this proxy statement/prospectus.

 

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Pursuant to the transaction agreement, the New BellRing loans will be senior secured first-lien borrowings that have a term of four or five years and will be prepayable at any time, without premium or penalty. The New BellRing loans will be subject to covenants and other terms and conditions that are consistent in all material respects with market practice for borrowers with the investment rating assigned to New BellRing taking into account the transactions (including (i) a customary provision to the effect that a change of control transaction constitutes an event of default giving lenders the right to cause the principal amount of the borrowings and any accrued but unpaid interest thereon immediately due and payable and (ii) other customary prepayment provisions).

Following the merger, BellRing and its subsidiaries will guarantee the New BellRing loans on a secured first-lien basis on the closing date of the merger, pari passu in right of payment with other senior debt of BellRing and its subsidiaries.

Terms and Conditions of the New BellRing Debt Financing

Post will manage the negotiations in connection with the borrowing and/or issuance and offering, syndication and/or sale of the New BellRing debt securities and New BellRing loans in consultation with BellRing, except that the precedent documentation for the New BellRing debt securities and New BellRing loans and the terms and conditions of the New BellRing Debt Securities and New BellRing loans, including the guarantee structure, covenants, registration rights and “baskets,” shall be subject to prior written approval by BellRing. Please see the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—Covenants Relating to the New BellRing Debt Financing” beginning on page 90.

As a result of these financing activities, New BellRing will have substantial indebtedness following the completion of the transactions, which will be an increase from BellRing’s current level of indebtedness. The documentation governing the New BellRing debt has not been finalized and, accordingly, the actual terms of the New BellRing debt may differ from those described in this proxy statement/prospectus. There can be no assurance that all or any portion of the New BellRing debt and the debt exchange may occur on terms favorable to New BellRing, or at all.

The Distribution

Following the separation, and prior to the effective time of the merger, Post will complete the distribution. Post may elect to distribute its shares of New BellRing Common Stock through a spin-off, an exchange offer or as a combination of a spin-off and an exchange offer with or without a clean-up spin-off. Post will consult with BellRing in good faith in connection with making such election. Upon the distribution, the sole outstanding share of BellRing Class B Common Stock will be automatically cancelled and will no longer exist, without consideration given to New BellRing.

To the extent the distribution is effected as a spin-off, Post will cause a number of shares of New BellRing Common Stock equal to the distributed amount (or a lesser amount as may be available for distribution in the event of a clean-up spin-off) to be distributed pro rata to the holders of the Post Common Stock, with no action of such holders necessary to receive such distribution.

Post may alternatively, or in conjunction with a spin-off, elect to effect the distribution as an exchange offer. To the extent the distribution is effected as an exchange offer, each Post shareholder may elect to exchange a number of shares of Post Common Stock in exchange for shares of New BellRing Common Stock, at the exchange ratio set by Post. If the exchange offer is not fully subscribed, Post will distribute the remaining shares of New BellRing Common Stock, up to the distributed amount, to Post shareholders in a clean-up spin-off.

As of the date of this proxy statement/prospectus, Post expects to distribute the shares of New BellRing Common Stock to shareholders of Post pursuant to a spin-off.

 

 

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The Merger

Following the completion of the separation and distribution, Merger Sub will merge with and into BellRing, and BellRing will be the surviving corporation in the merger. As a result of the merger, BellRing will become a direct, wholly owned subsidiary of New BellRing, with New BellRing as the new public parent company of BellRing.

Merger Consideration

Pursuant to the merger, holders of shares of BellRing Class A Common Stock will be entitled to receive, with respect to each share of BellRing Class A Common Stock, (i) the per share cash consideration and (ii) one share of New BellRing Common Stock.

The “per share cash consideration” will be an amount in cash equal to (i) the aggregate cash consideration amount divided by (ii) the number of shares of BellRing Class A Common Stock issued and outstanding as of immediately prior to the merger effective time. The “aggregate cash consideration amount” will be an amount equal to (x) the excess of the aggregate principal amount of the New BellRing debt over the BellRing LLC debt repayment amount multiplied by (y) the percentage of the outstanding BellRing LLC Units that is held by BellRing.

As of January 14, 2022, the most recent practicable date prior to the date of this proxy statement/prospectus, BellRing held approximately 28.5% of the outstanding BellRing LLC Units.

The following table sets forth the per share cash consideration under the “Illustrative Per Share Cash Consideration” column in the table below based on an assumed aggregate principal amount of the New BellRing debt under the “Principal Amount of New BellRing Debt” column set forth opposite such amount. Each of the illustrative per share cash consideration amounts is also based on the following additional assumptions:

 

   

the BellRing LLC debt repayment amount will be $520 million (which was the BellRing LLC debt repayment amount as of January 14, 2022, the most recent practicable date prior to the date of this proxy statement/prospectus);

 

   

the percentage of the outstanding BellRing LLC Units that is held by BellRing will be approximately 28.5%, which was the percentage held by BellRing as of January 14, 2022, the most recent practicable date prior to the date of this proxy statement/prospectus; and

 

   

the number of shares of BellRing Class A Common Stock issued and outstanding will be 38,887,851, which was the number of issued and outstanding shares as of January 14, 2022, the most recent practicable date prior to the date of this proxy statement/prospectus.

There can be no assurance that these assumptions will prove to be accurate, and the actual per share cash consideration will likely differ, and may differ materially, from the per share cash consideration shown under the “Illustrative Per Share Cash Consideration” column.

 

Principal Amount of New BellRing Debt

  

Illustrative Per Share Cash Consideration

$950 million

  

$3.15

$975 million

  

$3.33

$1 billion

  

$3.52

Effective Time and Completion of the Merger

BellRing will file a certificate of merger with the Delaware Secretary of State no later than the second business day after the date on which the last condition to completing the merger is satisfied or, where permissible, waived or at such other time as BellRing and Post may agree. The merger will become effective at the time and on the date on which those documents are filed, or later if the parties so agree and specify in those documents.

 

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We cannot assure you when, or if, all of the conditions to completion of the merger will be satisfied or, where permissible, waived. Please see the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—Conditions to Completion of the Transactions—Conditions to Completion of the Merger” beginning on page 91. The parties intend to complete the merger as promptly as practicable, subject to receipt of the BellRing stockholder approval and the satisfaction (or waiver) of the other conditions to the completion of the merger.

Treatment of BellRing Equity Awards

At the merger effective time, New BellRing will assume all outstanding unexercised and unexpired options to purchase shares of BellRing Common Stock or outstanding RSUs or other equity awards with respect to BellRing Common Stock outstanding under the 2019 BellRing LTIP, whether or not then vested. The equity awards assumed by New BellRing will continue to have and be subject to the same terms and conditions as set forth in the 2019 BellRing LTIP and related agreements and New BellRing will assume and perform all obligations of BellRing under the 2019 BellRing LTIP and related agreements. However, such equity awards will be in reference to the number of shares of New BellRing Common Stock equal to the number of shares of BellRing Common Stock that were subject to the BellRing equity award immediately prior to the merger effective time, and such awards may also be adjusted to account for the cash consideration payable to holders of BellRing Class A Common Stock in the merger.

Conversion of Shares; Exchange of Certificates

At the merger effective time, each share of BellRing Class A Common Stock issued and outstanding immediately prior to the effective time of the merger, other than any dissenting shares and shares owned by BellRing or its subsidiaries, will be automatically converted into and become the right to receive (i) an amount of per share cash consideration equal to a pro rata portion of the amount by which the aggregate principal amount of the New BellRing debt exceeds the amount of cash required to repay the outstanding indebtedness of BellRing under its credit agreement as described under the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—Merger Consideration” beginning on page 84 and (ii) one share of New BellRing Common Stock.

Promptly after the merger effective time, the exchange agent will mail a letter of transmittal to each holder of record of a stock certificate which, immediately prior to the merger effective time, represented outstanding shares of BellRing Class A Common Stock, which at the merger effective time were converted into the right to receive the merger consideration. This mailing will contain instructions on how to surrender shares of BellRing Class A Common Stock in exchange for the merger consideration the holder is entitled to receive under the transaction agreement. When a holder of shares of BellRing Class A Common Stock delivers BellRing Class A Common Stock certificates to the exchange agent along with a properly executed letter of transmittal and any other required documents, such stock certificates will be cancelled.

No dividends or other distributions with respect to BellRing Class A Common Stock with a record date after the merger effective time will be paid to the holder of any unsurrendered stock certificates with respect to the shares of New BellRing Common Stock that the holder thereof has the right to receive upon the surrender thereof, and no cash payment in lieu of any fractional shares of New BellRing Common Stock will be paid to any such holder, in each case until the holder of such stock certificate surrenders such stock certificate.

Accounts holding shares of BellRing Class A Common Stock in book-entry form will be debited as of the effective time of the merger and promptly thereafter credited with the applicable number of shares of New BellRing Common Stock. No letters of transmittal will be delivered to holders of shares in book-entry form, and holders of book-entry shares of BellRing Class A Common Stock will not need to take any action to receive their shares of New BellRing Common Stock in the merger.

Dissenting Shares

Holders of shares of BellRing Class A Common Stock that are issued and outstanding immediately prior to the merger effective time are entitled to appraisal rights under Section 262. If a stockholder successfully exercises

 

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and perfects its appraisal rights under Section 262, its shares will not be converted into the right to receive the merger consideration contemplated by the transaction agreement, and instead, such stockholder will solely be entitled to the appraisal rights granted under Section 262. Additionally, if a stockholder fails to properly exercise and perfect its appraisal rights pursuant to Section 262, its shares of BellRing Class A Common Stock will be converted solely into the right to receive the merger consideration contemplated by the transaction agreement, without interest.

Directors and Officers after the Completion of the Transactions

The New BellRing Board of Directors following the transactions will be comprised of the members of the BellRing Board of Directors immediately prior to the transactions, which as of the date of this proxy statement/prospectus, are the following individuals: Robert V. Vitale, Executive Chairman, Darcy Horn Davenport, Thomas P. Erickson, Jennifer Kuperman, Chonda J. Nwamu and Elliot H. Stein, Jr.

The executive officers of BellRing immediately prior to the effective time of the transactions will be the initial executive officers of New BellRing.

The directors and executive officers of BellRing immediately prior to the merger effective time will be the directors and executive officers of the surviving corporation.

Please see the section of this proxy statement/prospectus entitled “The Transactions—Interests of Directors and Executive Officers in the Transactions” beginning on page 65.

Certificate of Incorporation and Bylaws of New BellRing

Upon the conversion of New BellRing into a corporation in connection with the transactions, the certificate of incorporation and bylaws of New BellRing will be in the form attached as Annexes B and C to this proxy statement/prospectus, respectively, until thereafter amended as provided therein or by applicable law. Additional information about the certificate of incorporation and bylaws of New BellRing that will be in effect immediately after the merger is completed can be found in the sections of this proxy statement/prospectus entitled “Description of New BellRing Capital Stock” and “Comparison of Rights of New BellRing and BellRing Stockholders Before and After the Transactions” beginning on pages 101 and 113, respectively.

Representations and Warranties

Reciprocal Representations and Warranties

The representations and warranties made by Post, New BellRing and BellRing relate to, among other things:

 

   

corporate organization and similar corporate matters;

 

   

authorization of the transaction agreement, absence of conflicts and governmental approvals; and

 

   

fees payable to brokers and other advisors.

Post Representations and Warranties

In addition, the representations and warranties made by Post to BellRing relate to, among other things:

 

   

information supplied in connection with this proxy statement/prospectus and the registration statement of which it is a part;

 

   

ownership by Post of BellRing Class B Common Stock;

 

   

ownership by Post of BellRing LLC Units;

 

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legal proceedings; and

 

   

compliance with laws.

New BellRing Representations and Warranties

In addition, the representations and warranties made by New BellRing, on behalf of itself and Merger Sub, to BellRing relate to, among other things:

 

   

capital structure;

 

   

absence of material assets and liabilities;

 

   

legal proceedings; and

 

   

compliance with laws.

BellRing Representations and Warranties

In addition, the representations and warranties made by BellRing relate to, among other things:

 

   

capital structure;

 

   

requisite corporate approvals;

 

   

documents filed with the SEC and absence of certain liabilities;

 

   

information supplied in connection with this proxy statement/prospectus and the registration statement of which it is a part; and

 

   

no interest in New BellRing Common Stock (or Post Common Stock) or rights to acquire, or other benefits or rights of, any shares of New BellRing or Post Common Stock.

The representations and warranties contained in the transaction agreement have been negotiated with the principal purpose of establishing the circumstances in which a party may have the right not to close the transaction and merger if the representations and warranties of the other party prove to be untrue due to a change in circumstance or otherwise, and allocate risk between the parties, rather than establishing matters as facts. The representations and warranties may also be subject to disclosures not reflected in the transaction agreement and to a contractual standard of materiality different from that generally applicable to stockholders. Furthermore, you should not rely on the covenants in the transaction agreement as actual limitations on the respective businesses of Post, BellRing, New BellRing or Merger Sub because any party may take certain actions that are either expressly permitted in the confidential disclosures to the transaction agreement or as otherwise consented to by the appropriate party, which consent may be given without prior notice to the public.

Conduct of Business Pending the Merger

Post has agreed not to cause or permit New BellRing to, and New BellRing has agreed not to, and not to cause or permit Merger Sub to, among other things, undertake the following actions without the written consent of BellRing (subject to certain exceptions specified in the transaction agreement), which may not be unreasonably withheld, delayed or conditioned:

 

   

amend the organizational documents of New BellRing or Merger Sub;

 

   

dispose of or encumber the share of BellRing Class B Common Stock held by Post or any BellRing LLC Units;

 

   

make any changes in the capital structure of New BellRing or Merger Sub;

 

   

enter into any transaction or any contract which is not contemplated by the transaction agreement and the transactions contemplated by the transaction agreement; or

 

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take any action that would prevent, materially delay or materially impair the completion of the merger and the other transactions contemplated in the transaction agreement or the ability of New BellRing to perform in all material respects under the transaction agreement.

In addition, New BellRing may not, and may not permit Merger Sub to, except consistent with the transaction agreement or with the consent of BellRing, engage in any business or activity.

BellRing has agreed not to, and not to permit its respective subsidiaries to, among other things, undertake the following actions without the consent of Post (subject to certain exceptions specified in the transaction agreement, including as reasonably necessary or appropriate in response to the COVID-19 pandemic), which may not be unreasonably withheld, delayed or conditioned:

 

   

issue shares, securities, equity interests or capital stock of BellRing or any of its subsidiaries, other than in connection with existing stock-based awards pursuant to the 2019 BellRing LTIP or related agreements in the ordinary course consistent with past practice; as consideration in connection with any acquisition by merging or consolidating with, or by purchasing all of or a substantial equity interest in, or by any other manner, any entity or division, business or equity interest of any entity that is not prohibited by the terms of the transaction agreement; in connection with any pledge, or the creation of any lien, pursuant to the BellRing LLC credit agreement; or in connection with transactions solely between its wholly owned subsidiaries;

 

   

pay any dividend on the BellRing Common Stock, other than regular quarterly dividends consistent with past practice and repurchases by BellRing of BellRing Common Stock;

 

   

split, combine or reclassify any shares of BellRing Common Stock;

 

   

amend or waive any rights under, or accelerate vesting under, the 2019 BellRing LTIP or any right to acquire capital stock of BellRing or similar agreement;

 

   

directly or indirectly acquire any person (other than a subsidiary of BellRing) if such acquisition would reasonably be expected to materially impede or delay the ability of the parties to satisfy the conditions to the merger;

 

   

make any investment in any person (other than a subsidiary of BellRing) if such investment would reasonably be expected to materially impede or delay the ability of the parties to satisfy the conditions to the merger;

 

   

other than in the ordinary course of business consistent with past practice, enter into any contract providing for payments in excess of $100,000 that would be breached by, or would require the consent of a third party in order to continue in full force upon, or would result in the acceleration of any obligation or vesting of any benefit as a result of, the completion of the transactions; or

 

   

agree to take any of the foregoing actions.

BellRing Board Recommendation Change

The transaction agreement also provides that the BellRing Board of Directors (based on the recommendation of the BellRing Special Committee) may not withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Post or New BellRing, its recommendation to BellRing stockholders to vote in favor of adoption of the transaction agreement (any such withdrawal or modification, a “BellRing board recommendation change”), except that the BellRing Board of Directors (based on the recommendation of the BellRing Special Committee) may make a BellRing board recommendation change if it or the BellRing Special Committee determines in good faith (after consultation with legal counsel) that the failure to effect a BellRing board recommendation change would reasonably be likely to constitute a violation of applicable law or be expected to be inconsistent with its fiduciary duties under applicable law.

 

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BellRing Stockholders Meeting

As soon as practicable following the date of the transaction agreement, BellRing will call and hold a meeting, whether annual or special, of its stockholders for the purpose of obtaining the BellRing stockholder approval. The obligation to call and hold such stockholders meeting will not be affected by, among other things, a BellRing board recommendation change or the withdrawal or modification of the BellRing Board of Directors’ approval, or the BellRing Special Committee’s recommendation that such BellRing Board of Directors approve, the transactions and the merger.

Post Voting Agreement

Pursuant to the transaction agreement, Post has agreed to vote all of its beneficially owned shares of BellRing Common Stock in favor of the adoption of the transaction agreement. As of the date of this proxy statement/prospectus, Post beneficially owns the sole outstanding share of BellRing Class B Common Stock, which currently represents 67% of the total voting power of the outstanding BellRing Common Stock.

Director and Officer Indemnification

From and after the merger effective time, the surviving corporation will indemnify the individuals who at or prior to the merger effective time were directors or officers of BellRing, New BellRing or Merger Sub with respect to all acts or omissions by them in their capacities as such at any time prior to the merger effective time, to the fullest extent (i) required by the BellRing organizational documents, New BellRing organizational documents or New BellRing subsidiary organizational documents, as in effect on the date of the transaction agreement, (ii) required by any indemnification agreement between BellRing, New BellRing or Merger Sub and any such director or officer as in effect on the date of the transaction agreement or as of the merger effective time and (iii) permitted under applicable law. The surviving corporation will also, for six years following the merger effective time, subject to certain limitations, maintain coverage under a directors and officers liability insurance policy with respect to claims arising from facts or events that occurred on or before the completion of the transactions contemplated by the transaction agreement at a level at least equal to that which BellRing is maintaining prior to the merger.

Indemnification Obligations of Post and New BellRing

New BellRing will, on the terms and subject to the limitations set forth in the transaction agreement, from and after the closing, indemnify, defend and hold harmless Post and its affiliates from and against any losses incurred by Post and its affiliates to the extent arising out of or relating to the assets and businesses owned or operated by New BellRing and its affiliates before and after the closing, including any losses to the extent resulting from any Liability (as defined therein) of New BellRing and its affiliates, whether incurred before or after the closing. Further, Post will, from and after the closing, indemnify, defend and hold harmless New BellRing and its affiliates from and against any losses incurred by New BellRing and its affiliates to the extent arising out of or relating to the assets and businesses owned or operated by Post and its affiliates before and after the closing, including any losses to the extent resulting from any Liability of Post and its affiliates, whether incurred before or after the closing. These indemnification obligations exclude, among other things, any matters relating to taxes. For a description of the allocation of tax-related obligations, please see the section of this proxy statement/prospectus entitled “Ancillary Agreements—Tax Matters Agreement” beginning on page 97.

Ancillary Agreements

Post, New BellRing and BellRing have agreed (i) during the pre-closing period, to negotiate and agree in good faith to the terms of the amended and restated employee matters agreement, and (ii) to execute and deliver, and cause their affiliates to execute and deliver, as applicable, such agreement prior to or upon the Closing. The material terms of the other ancillary agreements are summarized in the section of this proxy statement/prospectus entitled “Ancillary Agreements” beginning on page 96.

 

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Post, New BellRing and BellRing agree to execute and deliver, and cause their affiliates to execute and deliver, as applicable, the tax matters agreement, the amended and restated master services agreement, the registration rights agreement, the amended and restated trademark and domain name license agreement, and the amended and restated legal engagement letter, each in the forms attached as exhibits to the transaction agreement, prior to or upon the completion of the transactions.

Covenants Relating to the New BellRing Debt Financing

Post will manage the negotiations in connection with the borrowing and/or issuance and offering, syndication and/or sale of the New BellRing debt securities and New BellRing loans in consultation with BellRing, except that the precedent documentation for the New BellRing debt securities and New BellRing loans and the terms and conditions of the New BellRing debt securities and New BellRing loans, including the guarantee structure, covenants, registration rights and “baskets,” shall be subject to prior written approval by BellRing.

Post Debt Exchange

The transaction agreement provides that Post will use its reasonable best efforts to cause the debt exchange to be completed in a process to be managed by Post, keep BellRing reasonably informed of all material developments related to the debt exchange, and provide BellRing with copies of the material definitive documents and other documentation relating to the debt exchange as reasonably requested by BellRing. Post will manage, in consultation with BellRing, the negotiations in connection with the completion of the debt exchange and the selection of advisors (and will keep BellRing informed of all material developments) and the advisors for Post, BellRing and New BellRing are required to take all actions reasonably necessary to facilitate the borrowing and/or issuance of the New BellRing debt, the debt exchange, and any subsequent offering, syndication, and/or sale of the New BellRing debt securities as reasonably directed by Post. The transaction agreement contains covenants requiring Post and BellRing to cooperate in the preparation of documents and the making of required filings and coordinate their activities in connection with the borrowing and/or issuance of the New BellRing debt, the completion of the debt exchange, any subsequent offering or sale of the New BellRing debt securities and the other components of the financing.

Alternative Transaction Structure

Pursuant to the transaction agreement, in the event that BellRing cannot obtain the BellRing tax opinion as a result of the failure of the merger to satisfy the requirements of Section 368(a)(2)(E)(ii) of the IRC (which would generally be the case if the aggregate cash consideration amount exceeds 20% of the fair market value of the cash and shares of New BellRing Common Stock received by holders of shares of BellRing Class A Common Stock), Merger Sub will form a new Delaware corporation that is a direct, wholly owned subsidiary of New BellRing (“Alternative Merger Sub”), and BellRing, Post, New BellRing and Merger Sub will undertake the transactions contemplated by the agreement in the form of (i) a merger of Alternative Merger Sub with and into BellRing, with BellRing as the surviving corporation and (ii) immediately thereafter, a merger of BellRing with and into Merger Sub, with Merger Sub as the surviving corporation (such steps (i) and (ii) together, the “alternative transaction structure”). In connection with the adoption and execution of the alternative transaction structure, BellRing, Post, New BellRing and Merger Sub will negotiate in good faith such amendments to the transaction agreement as may be reasonably required in order to execute the alternative transaction structure and each of BellRing, Post and New BellRing shall continue to use commercially reasonable efforts to obtain the BellRing tax opinion, which opinion will address the alternative transaction structure. As a result of the alternative transaction structure, Merger Sub would succeed to BellRing’s assets and liabilities and be a direct, wholly owned subsidiary of New BellRing, with New BellRing as the new public parent company of BellRing.

 

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Additional Agreements

Post, BellRing and New BellRing have agreed to cooperate with each other and, among other things, to use reasonable best efforts to promptly:

 

   

take all actions necessary under the transaction agreement and applicable laws to complete the transaction and merger as soon as practicable;

 

   

obtain all approvals, consents, registrations, permits, authorizations and other confirmations required by applicable laws or applicable regulatory authorities; and

 

   

supply any information or materials required by applicable laws or applicable regulatory materials.

Notwithstanding the foregoing, pursuant to the transaction agreement, neither BellRing nor New BellRing (nor Post on behalf of New BellRing) may, without the other party’s prior written consent, commit to any divestiture transaction or agree to any restriction on its business in furtherance of obtaining the approval of any governmental authority. The transaction agreement also contains covenants relating to cooperation in the preparation of this proxy statement/prospectus and additional agreements relating to, among other things, consultation regarding transition matters, access to information, confidentiality, notification of certain matters and public announcements.

Fees and Expenses

Each party will pay the fees and expenses it incurs in connection with the transaction agreement and the transactions contemplated by the transaction agreement, whether or not the merger is completed, except that Post will be responsible for all out of pocket, third party fees and expenses related to the borrowing and/or issuance of the debt exchange. In the event the merger is completed. New BellRing will be responsible for (i) fees related to the borrowing and/or issuance of the New BellRing debt (other than those incurred with respect to each party’s advisors), and (ii) fees related to printing, mailing, and filing the New BellRing registration statements (including this proxy statement/prospectus) and other SEC filings relating to the transactions. In the event that the merger is not completed, these same fees and expenses will be borne by Post and BellRing pro rata in proportion to their indirect ownership of BellRing LLC Units as of the date of the transaction agreement.

Role of the BellRing Special Committee

Prior to the effective time of the merger, the BellRing Special Committee will be consulted regarding matters involving communications in connection with the transactions contemplated by the transaction agreement. In connection therewith, the BellRing Special Committee and its legal and financial advisors will have an opportunity to review and comment on all communication materials, including materials for rating agency presentations, road shows, bank information memoranda and other customary marketing materials. The parties to the transaction agreement will give reasonable and good faith consideration to the inclusion of comments provided by the BellRing Special Committee or its legal or financial advisors.

Conditions to Completion of the Transactions

Conditions to Completion of the Merger

Each of BellRing’s, Post’s, New BellRing’s and Merger Sub’s obligations to complete the merger are subject to the satisfaction or waiver of each of the following conditions:

 

   

the separation and distribution have been completed in accordance with the transaction agreement and applicable law (which distribution is also subject to certain conditions, which are described in the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—Conditions to Completion of the Distribution” beginning on page 93);

 

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the affirmative vote to adopt the transaction agreement has been received by (i) holders of a majority in voting power of the outstanding shares of BellRing Common Stock and (ii) holders (other than Post, New BellRing or any of their respective affiliates) of a majority in voting power of the outstanding shares of BellRing Common Stock (other than shares of BellRing Common Stock owned or controlled by Post, New BellRing or any of their respective affiliates);

 

   

no law, injunction, judgment or ruling prohibiting the completion of the transactions or making the completion of the transactions illegal is in effect;

 

   

the New BellRing registration statements having been declared effective by the SEC and not subject to any stop order or initiated or threatened proceedings seeking a stop order; and

 

   

the shares of New BellRing Common Stock deliverable to certain stockholders of BellRing in the merger, as contemplated in the transaction agreement, having been approved for listing on the NYSE, subject to official notice of issuance.

BellRing’s obligations to complete the merger also are subject to the satisfaction or waiver of each of the following additional conditions:

 

   

the accuracy of the representations and warranties of Post and New BellRing, except as would not, individually or in the aggregate, have a material adverse effect (as defined below) on New BellRing;

 

   

Post’s performance in all material respects of all obligations that are required by the transaction agreement to be performed on or prior to the completion of the merger;

 

   

each of New BellRing and Merger Sub having performed in all material respects all of their respective obligations required by the transaction agreement to be performed on or prior to the completion of the merger;

 

   

each of the parties (other than BellRing and its subsidiaries) to the transaction agreement and the ancillary agreements shall have entered into such agreements and performed in all material respects all obligations required to be performed by such party under such agreements and each such agreement shall be in effect;

 

   

BellRing’s receipt of the BellRing tax opinion that the merger (or the alternative transaction structure under circumstances described in the transaction agreement) will qualify as a “reorganization” within the meaning of Section 368(a) of the IRC or, alternatively, as a transaction qualifying for nonrecognition of gain and loss under Section 351 of the IRC; and

 

   

there shall not have been any change, circumstance, effect, development or occurrence that, individually or in the aggregate, has resulted in or would reasonably be expected to result in a New BellRing material adverse effect.

Post’s, New BellRing’s and Merger Sub’s obligations to complete the merger also are subject to the satisfaction or waiver of each of the following additional conditions:

 

   

the accuracy of the representations and warranties of BellRing, except as would not, individually or in the aggregate, have a material adverse effect (as defined below) on BellRing;

 

   

BellRing’s performance in all material respects of all obligations that are required by the transaction agreement to be performed on or prior to the completion of the merger; and

 

   

Post’s receipt of the 355 tax opinion that the distribution, together with certain contributions made by Post to New BellRing, will qualify as a tax-free reorganization within the meaning of Sections 368(a) and 355 of the IRC and a distribution eligible for nonrecognition within the meaning of Sections 355 and 361 of the IRC, and that the debt exchange and equity exchange will each qualify as a distribution in connection with the separation and distribution eligible for nonrecognition under Section 361(c) of the IRC.

 

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For purposes of the transaction agreement, the term “material adverse effect” means, with respect to any party, any fact, circumstance, effect, change, event, occurrence or development (an “Effect”), that, individually or in the aggregate with other Effects,

 

   

has, or would reasonably be expected to have, a material adverse effect on the business, properties, assets, liabilities (contingent or otherwise), results of operations or condition (financial or otherwise) of such party and its subsidiaries taken as a whole; or

 

   

materially impairs the ability of such party and its affiliates to complete, or prevents or materially impedes or delays, the transactions contemplated by the transaction agreement.

No Effect resulting from any of the following, either individually or in the aggregate, shall constitute or be taken into account in determining whether there has been a material adverse effect:

 

   

any change or development relating to the U.S. economy in general;

 

   

any change or development affecting the industry in which such party operates in general;

 

   

changes in any laws or regulations or applicable accounting regulations or principles or the interpretations thereof;

 

   

changes in GAAP or the interpretation thereof;

 

   

the execution and delivery of the transaction agreement or the announcement or performance of the transaction agreement and the transactions, including, to the extent arising therefrom, any termination of, reduction in or similar negative impact on relationships, contractual or otherwise, with any customers, suppliers, distributors, partners or employees of BellRing or any of its subsidiaries (in each case, other than in respect of required consents and approvals);

 

   

acts of war or terrorism or natural disasters or other calamities;

 

   

the fact, in and of itself (and not the underlying causes thereof) that New BellRing or any of its subsidiaries or BellRing failed to meet any projections, forecasts, or revenue or earnings predictions for any period;

 

   

any change, in and of itself (and not the underlying causes thereof) in the stock price of Post Common Stock or BellRing Class A Common Stock; or

 

   

any action taken or omission to take action by BellRing that is caused by, or done at the direction of, Post or its affiliates.

However, with respect to the first four bullets above, any such Effect shall be taken into account if and to the extent it disproportionally affects such party and its subsidiaries, taken as a whole, compared to other companies operating in the industries in which such party and its subsidiaries operate.

Conditions to Completion of the Distribution

New BellRing and Post will not complete the distribution unless each of the following conditions is satisfied or waived:

 

   

the separation shall have been completed substantially in accordance with the separation plan contemplated in the transaction agreement;

 

   

the affirmative vote to adopt the transaction agreement has been received by (i) holders of a majority in voting power of the outstanding shares of BellRing Common Stock and (ii) holders (other than Post, New BellRing or any of their respective affiliates) of a majority in voting power of the outstanding shares of BellRing Common Stock (other than shares of BellRing Common Stock owned or controlled by Post, New BellRing or any of their respective affiliates);

 

   

the shares of New BellRing Common Stock deliverable in the distribution have been approved for listing on the NYSE, subject to official notice of issuance;

 

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the debt exchange shall have been completed in accordance with the transaction agreement; and

 

   

the Post Board of Directors shall have received, and BellRing shall have been furnished a copy of, an opinion by an independent nationally recognized appraisal firm as to the solvency of New BellRing and Post, in each case after giving effect to the separation, the issuance of the New BellRing debt, and the completion of the distribution.

Termination

New BellRing and BellRing may terminate the transaction agreement, and abandon the transactions contemplated in the transaction agreement, at any time, with the consent of the sole member or the board of directors (as applicable) of New BellRing and the BellRing Board of Directors (based on the recommendation of the BellRing Special Committee), respectively, prior to the completion of the merger, by mutual written consent.

Either BellRing, with the prior approval of the BellRing Special Committee, or New BellRing may terminate the transaction agreement by written notice to the other party:

 

   

if the transactions contemplated by the transaction agreement are not completed prior to July 26, 2022 (except that the right to terminate the transaction agreement based on the foregoing will not be available to any party whose action or failure to act has been the primary cause of or primarily resulted in the failure of the transactions to occur on or before such date and such action or failure to act constitutes a material breach of the transaction agreement);

 

   

if any final, nonappealable order or injunction prohibits the completion of the transactions contemplated by the transaction agreement or a law or regulation makes the completion of such transactions illegal (except that the right to terminate the transaction agreement based on the foregoing will not be available to any party whose action or failure to act has been the primary cause of or primarily resulted in the failure of the transactions to occur on or before such date and such action or failure to act constitutes a material breach of the transaction agreement); or

 

   

if the BellRing stockholder approval is not obtained at the BellRing stockholders meeting or at any adjournment or postponement thereof.

BellRing may terminate the transaction agreement with the prior approval of the BellRing Board of Directors (based on the recommendation of the BellRing Special Committee) by written notice to Post and New BellRing if there has been a breach or failure by Post and/or New BellRing of any of its representations, warranties, covenants or agreements in the transaction agreement such that the related conditions to completion would not be satisfied and such breach or failure is incapable of being cured by July 26, 2022 or, if capable of being cured, has not been cured by Post or New BellRing within thirty days following receipt of written notice thereof from BellRing (except that the right to terminate the transaction agreement based on the foregoing will not be available to BellRing if it is in then in breach of any of its representations, warranties, covenants or agreements in the transaction agreement that would give rise to a failure of the condition to completion of the merger related to such representations, warranties, covenants or agreements).

Post or New BellRing may terminate the transaction agreement by written notice to BellRing if:

 

   

there has been a breach or failure to perform by BellRing of any of its representations, warranties, covenants or agreements in the transaction agreement such that the related conditions to completion would not be satisfied and such breach or failure cannot be cured by July 26, 2022 or, if capable of being cured, has not been cured by BellRing within thirty days following receipt of written notice thereof from New BellRing (except that the right to terminate the transaction agreement based on the foregoing will not be available to Post or New BellRing if either is in then in breach of any of its representations, warranties, covenants or agreements in the transaction agreement that would give rise

 

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to a failure of the condition to completion of the merger related to such representations, warranties, covenants or agreements); or

 

   

prior to the receipt of the approval of BellRing stockholders, a BellRing board recommendation change (as recommended by the BellRing Special Committee) has occurred.

Effect of Termination

In the event the transaction agreement is terminated as described above, the transaction agreement will become null and void and none of Post, BellRing, New BellRing or Merger Sub, or their respective directors, officers and affiliates, will have any liability under the transaction agreement, other than liability for fraud or any willful breach of the transaction agreement. Certain designated provisions of the transaction agreement, including the payment of fees and expenses and confidentiality restrictions, will survive the termination of the transaction agreement.

Amendment, Extension and Waiver

The transaction agreement may be amended in writing by action taken or authorized by BellRing’s, Post’s and New BellRing’s respective boards of directors or sole member, as applicable (but in the case of BellRing, only following approval thereof by the BellRing Special Committee), at any time before or after receipt of the BellRing stockholder approval. Following approval of the transactions by the stockholders of BellRing, however, there cannot be any amendment which by law would require further approval of the transaction agreement by BellRing stockholders.

At any time before the completion of the merger, BellRing, Post, New BellRing or Merger Sub may, by written action taken or authorized by their respective boards of directors (and, in the case of BellRing, following approval by the BellRing Special Committee), to the extent legally allowed:

 

   

waive any inaccuracies in the representations and warranties contained in the transaction agreement;

 

   

extend the time for the performance of any of the obligations or other acts provided for in the transaction agreement; and

 

   

waive compliance with any of the agreements or conditions contained in the transaction agreement.

 

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ANCILLARY AGREEMENTS

Amended and Restated Master Services Agreement

In connection with the transactions, Post, the surviving corporation, New BellRing, BellRing and BellRing LLC have agreed to amend and restate that certain master services agreement dated as of October 21, 2019, the form of which is attached as Annex D hereto and incorporated by reference into this proxy statement/prospectus. Pursuant to the amended and restated master services agreement, Post will continue to provide, or cause to be provided, some combination of the following services to New BellRing and its subsidiaries following the completion of the transactions:

 

   

assistance with certain finance, internal audit, treasury, information technology support, insurance, accounting and tax matters, including assistance with certain public company reporting obligations;

 

   

the use of office space;

 

   

payroll processing and benefits administration services;

 

   

tax compliance services; and

 

   

such other services as to which Post and New BellRing may agree.

The fees for such services will be negotiated and mutually agreed upon by Post and BellRing prior to the closing. In general, the services to be provided by Post will begin on the date of the closing and will continue for the periods specified in the amended and restated master services agreement, but not to exceed three years, subject to any subsequent extension or earlier termination as agreed to by the parties.

The parties may, by mutual written agreement, effect changes to the services provided for in the amended and restated master services agreement. In addition, Post may terminate (i) the amended and restated master services agreement or any services provided thereunder in the event of a change of control of Post, or a change of control of New BellRing or the sale of all or substantially all of the consolidated assets of Post or New BellRing, (ii) the amended and restated master services agreement or any services provided thereunder upon six months’ notice, or, if Post stops providing a service for its own operations, upon 60 days’ notice, (iii) any services provided to a subsidiary of New BellRing in the event of a change of control of the subsidiary or the sale of all or substantially all of its assets, (iv) any services provided to a business line or operating division of New BellRing or its subsidiaries in the event of a sale of such business line or operating division and (v) any services, if any, provided by Post’s Canadian subsidiary, Post Foods Canada Inc., in the event of a change in control of Post Foods Canada Inc. New BellRing may terminate the amended and restated master services agreement with respect to one or more particular services being received upon such notice as provided for in the amended and restated master services agreement.

Registration Rights Agreement

As part of the transactions and the merger, BellRing and Post will terminate that certain Investor Rights Agreement, effective as of October 21, 2019, and New BellRing will enter into a registration rights agreement with Post (the “registration rights agreement”), the form of which is attached as Annex E hereto and incorporated by reference into this proxy statement/prospectus. The registration rights agreement will provide Post with certain demand, shelf and piggyback registration rights with respect to its shares of New BellRing Common Stock, including the following:

 

   

Post and its affiliates will have the right to cause New BellRing to conduct up to two demand registrations in any twelve-month period, subject to certain customary restrictions, which demand registrations may take the form of a shelf registration;

 

   

Post and its affiliates will have the right to cause New BellRing to use commercially reasonable efforts to file and have declared effective a shelf registration statement on Form S-3 with respect to all of their shares of New BellRing Common Stock; and

 

   

Post and its affiliates will have the right to participate in certain registered offerings by New BellRing.

 

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The registration rights agreement also will contain customary provisions relating to cooperation with the registration process, black-out periods and customary securities law indemnity provisions in favor of the selling stockholders. With certain customary exceptions, New BellRing will be required to bear all registration expenses, other than underwriting discounts and commissions and transfer taxes, associated with any registration of shares pursuant to the registration rights agreement. Registration rights may be transferred by Post and its affiliates, subject to certain restrictions. No predetermined penalties or liquidated damages will be payable by New BellRing if it fails to comply with the registration rights agreement.

The registration rights agreement will terminate when Post holds less than 2.5% of the total number of outstanding shares of New BellRing Common Stock.

Tax Matters Agreement

In connection with the transactions, Post, BellRing and New BellRing will enter into the tax matters agreement, the form of which is attached as Annex F hereto and incorporated by reference into this proxy statement/prospectus. The tax matters agreement will govern the parties’ respective rights, responsibilities and obligations with respect to taxes, including taxes arising in the ordinary course of business and taxes, if any, incurred as a result of the failure of the transactions to qualify for their intended tax treatment. The tax matters agreement will address U.S. federal, state, local and non-U.S. tax matters, and sets forth the respective obligations of the parties with respect to the filing of tax returns, the administration of tax contests and assistance and cooperation on tax matters. This summary is qualified in its entirety by reference to the form of tax matters agreement, which is filed as an exhibit to the registration statement of which this prospectus forms a part.

In general, the tax matters agreement will govern the rights and obligations of Post, on the one hand, and New BellRing, on the other hand, after the distribution with respect to taxes for both pre-distribution and post-distribution periods. Under the tax matters agreement, Post will generally be responsible for pre-distribution taxes relating to both its retained business and certain pre-distribution taxes of New BellRing. New BellRing will generally be responsible for post-distribution taxes attributable to the Active Business (as defined in the tax matters agreement). In addition, in certain circumstances and subject to certain conditions, each party will be responsible for taxes imposed on Post that arise from the failure of the distribution, the merger and certain related transactions to qualify as tax-free transactions to the extent such failure to qualify is attributable to certain actions taken by such party (or, in certain circumstances, is attributable to actions taken by other persons) as described below.

Pursuant to the tax matters agreement, New BellRing is expected to indemnify Post for (i) all taxes for which New BellRing is responsible, as described above, and (ii) all taxes incurred by reason of certain actions or events, or by reason of any breach by New BellRing or any of its subsidiaries of any of its respective representations, warranties or covenants under the tax matters agreement that, in each case, affect the intended tax-free treatment of the transactions.

Pursuant to the tax matters agreement, Post is expected to (i) indemnify New BellRing for the taxes for which Post is responsible, as described above, and (ii) taxes attributable to a failure of the transactions to qualify as tax free, to the extent incurred by any action or failure to take any action within the control of Post.

The tax matters agreement will prohibit Post, BellRing and New BellRing from taking actions (or refraining from taking actions) that could reasonably be expected to cause the transactions to fail to qualify for their intended tax treatment. In particular, for two years after the distribution, New BellRing in general may not:

 

   

issue any equity securities or securities that could be converted into New BellRing’s equity securities, including as acquisition currency for a merger or acquisition (but excluding certain equity compensation for New BellRing employees), redeem or repurchase New BellRing equity securities or New BellRing debt, or enter into any transaction pursuant to which New BellRing stock would be acquired, whether by merger or otherwise;

 

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cease, or permit certain of its wholly owned subsidiaries to cease, the active conduct of the Active Business or from holding certain assets held at the time of the distribution;

 

   

dissolve, liquidate or take any action that is a liquidation for U.S. federal income tax purposes, (other than pursuant to the merger);

 

   

approve or allow an extraordinary contribution to New BellRing by its stockholders in exchange for stock, redeem or otherwise repurchase (directly or indirectly) any of the New BellRing Common Stock or amend its certificate of incorporation or other organizational documents if such amendment or other action would affect the relative voting rights of its capital stock, or redeem or otherwise repurchase (directly or indirectly) any of the debt obligations issued pursuant to the Debt Exchange; or

 

   

sell or transfer 30% or more of the gross assets of the Active Business, other than pursuant to sales or transfers of assets in the ordinary course of business, cash acquisitions of assets from unrelated persons in arm’s-length transactions, transfers to a person that is disregarded as an entity separate from the transferor for U.S. federal income tax purposes, mandatory or optional repayment (or pre-payment) of any indebtedness of New BellRing or its subsidiaries or a sale or transfer among New BellRing and its subsidiaries.

Nevertheless, New BellRing may be permitted to take any of the actions described above during the two-year period following the distribution if Post obtains an IRS private letter ruling or, in certain circumstances, BellRing tax counsel delivers an unqualified “will”-level tax opinion in form and substance reasonably satisfactory to Post) to the effect that the action will not affect the tax-free status of the transactions. Notwithstanding the above, under the tax matters agreement, New BellRing may make certain stock issuances that meet certain safe harbors provided in Section 1.355-7(d) of the Treasury Regulations so long as such issuances are not inconsistent with any applicable formal or informal written guidance provided by the IRS in connection with any IRS ruling request or any applicable assumptions, representations and warranties, covenants or certificates relied upon in any unqualified “will”-level tax opinion.

The tax matters agreement will be binding on and inure to the benefit of any permitted assignees and any successor to any of the parties of the tax matters agreement. The tax matters agreement may be amended only by a written instrument signed by each of the parties, and any right may be waived only in a written instrument signed by the party against whom the waiver is to be effective. No failure or delay by any party to the tax matters agreement to exercise a right operates as a waiver thereof.

Amended and Restated Employee Matters Agreement

As part of the contemplated transactions, BellRing, New BellRing and BellRing LLC will enter into an amended and restated employee matters agreement with Post (the “employee matters agreement”). The terms of the employee matters agreement have not yet been finalized. The employee matters agreement is expected to cover a wide range of compensation and benefits matters, including the matters described below. Changes to these terms, some of which may be material, may be made prior to the completion of the transactions.

 

   

RSU awards issued to employees of BellRing, BellRing LLC or their subsidiaries (or their predecessors) under certain Post equity incentive plans, which remain unsettled or outstanding as of the date of the transactions, will either: (i) accelerate at the time that Post and BellRing are no longer affiliated, or (ii) vest or be forfeited, in each case, based on their original terms. With respect to nonqualified stock option awards held by Ms. Davenport under certain Post equity incentive plans, such non-qualified stock option awards may be amended to extend their exercise period to 10 years from the date of grant of such options. BellRing will reimburse Post for the accounting cost related to the monthly expense and any accounting charges or costs resultant from any accounting modification of an equity award including, but not limited to, any extension of any exercise period or any acceleration or change in vesting provision. In addition, BellRing will reimburse Post for the employer-related payroll expense, and any other financial obligations relating to any such outstanding awards while outstanding. Any RSUs denominated in Post Common Stock and options to purchase Post Common Stock will be adjusted in a manner and at a time consistent with other equity awards issued by Post under its equity incentive plans.

 

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BellRing, New BellRing, BellRing LLC and Post will, and will cause their respective subsidiaries to, take such commercially reasonable actions with regard to benefit and payroll carriers and vendors, and contracts regarding the same, as may be reasonably necessary or appropriate in order to transition relevant contracts, to fulfill their respective obligations under the amended and restated master services agreement and to ensure continuity of employee benefits for employees of BellRing or its subsidiaries.

 

   

The BellRing Brands, Inc. Employee Benefits Trustees Committee will determine the future treatment of the Post Common Stock fund held in the BellRing Brands, Inc. 401(k) Plan.

 

   

BellRing, New BellRing, BellRing LLC and Post will work in good faith to administer the notional accounts held by certain employees of BellRing or its subsidiaries under the Post Holdings, Inc. Deferred Compensation Plan for Key Employees and the Post Holdings, Inc. Executive Savings Investment Plan (collectively, the “Post nonqualified plans”) for so long as such notional accounts remain under the Post nonqualified plans.

 

   

Except as otherwise provided in the employee matters agreement, BellRing, New BellRing and BellRing LLC will, or will cause their subsidiaries to, assume or retain, pay, perform, fulfill and discharge: (i) all liabilities under all employee benefit plans and arrangements sponsored or maintained or contributed to by BellRing, New BellRing or BellRing LLC, and all employee benefit plans and arrangements assumed or adopted by BellRing, New BellRing or BellRing LLC, and (ii) all liabilities, whenever incurred, with respect to the employment or termination of employment of BellRing, New BellRing and BellRing LLC employees and former BellRing, New BellRing and BellRing LLC employees and their dependents and beneficiaries.

Additionally, under the employee matters agreement, BellRing, New BellRing and BellRing LLC will use commercially reasonable efforts to maintain effective registration statements with the SEC with respect to the 2019 BellRing LTIP or any successor plan, and any equity awards issued thereunder.

BellRing, New BellRing, BellRing LLC and Post may terminate the employee matters agreement by mutual consent, and Post may terminate the employee matters agreement in the event of a change of control of Post, or a change of control of BellRing or the sale of all or substantially all of its consolidated assets.

 

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CERTAIN INFORMATION RELATING TO NEW BELLRING AND BELLRING

New BellRing’s business and operations after the completion of the transactions will be substantially the same as those of BellRing. Certain information relating to BellRing is incorporated by reference into this proxy statement/prospectus from BellRing’s publicly available SEC filings. As such, investors should carefully review the following sections:

 

   

The description of BellRing’s Business, found under Item 1 of the Form 10-K;

 

   

Certain Risk Factors describing the major risks to BellRing’s business, found under Item 1A of the Form 10-K;

 

   

Management’s Discussion and Analysis, found under Item 7 of the Form 10-K;

 

   

Directors, Executive Officers and Corporate Governance, found under Item 10 of the Form 10-K;

 

   

Compensation of Officers and Directors, found in the Proxy Statement for BellRing’s 2022 Annual Meeting of Stockholders;

 

   

Security Ownership of Certain Stockholders, found in the Proxy Statement for BellRing’s 2022 Annual Meeting of Stockholders;

 

   

Certain Relationships and Related Transactions, and Corporate Governance – Director Independence and Role of the Independent Lead Director, found in the Proxy Statement for BellRing’s 2022 Annual Meeting of Stockholders; and

 

   

Audited Consolidated Financial Statements of BellRing as of September 30, 2021 and 2020 and for the years ended September 30, 2021, 2020 and 2019, found under Item 8 of the Form 10-K.

If you desire copies of any of these documents, you may contact BellRing at its address or telephone number indicated under the section of this proxy statement/prospectus entitled “Where You Can Find More Information; Incorporation by Reference” beginning on page 130.

 

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DESCRIPTION OF NEW BELLRING CAPITAL STOCK

The following is a summary description of the registered securities of New BellRing as of the effective time of the merger. This description is not complete and is qualified in its entirety by reference to the full text of the New BellRing certificate of incorporation, a form of which is attached as Annex B to this proxy statement/prospectus, to the full text of the New BellRing bylaws, a form of which is attached as Annex C to this proxy statement/prospectus, and the applicable provisions of Delaware law. In connection with its conversion into a Delaware corporation and the merger of Merger Sub with and into BellRing, New BellRing will change its name to BellRing Brands, Inc. and BellRing will change its name to BellRing Intermediate Holdings, Inc.

Capital Stock

After giving effect to the conversion of New BellRing from a limited liability company to a corporation, the New BellRing certificate of incorporation will provide that New BellRing may issue up to 500 million shares of common stock of New BellRing, par value $0.01 per share, and 50 million shares of preferred stock of New BellRing, par value $0.01 per share. New BellRing Common Stock is expected to be listed on the NYSE under the ticker symbol “BRBR”.

Common Stock

Voting

The holders of New BellRing Common Stock will be entitled to one vote for each share held by such holder on the applicable record date, on all matters on which stockholders are generally entitled to vote.

Dividends

The holders of New BellRing Common Stock will be entitled to receive dividends when, as and if declared by the New BellRing Board of Directors out of legally available funds.

Liquidation or Dissolution

Upon New BellRing’s liquidation or dissolution, the holders of New BellRing Common Stock will be entitled to share ratably in those of New BellRing’s assets that are legally available for distribution to stockholders after payment of liabilities and subject to the special rights and preferences, if any, of any holders of preferred stock then outstanding.

Other Matters

New BellRing Common Stock will have no preemptive rights pursuant to the terms of the New BellRing certificate of incorporation. There will be no redemption or sinking fund provisions applicable to New BellRing Common Stock. After giving effect to the conversion of New BellRing from a limited liability company to a corporation, the outstanding shares of New BellRing Common Stock will be fully paid and non-assessable.

Preferred Stock

The rights of holders of New BellRing Common Stock may be materially limited or qualified by the rights, powers and preferences of any preferred stock that New BellRing may issue in the future.

New BellRing will be authorized to issue up to 50 million shares of preferred stock. The New BellRing Board of Directors will be authorized, subject to limitations prescribed by Delaware law and the New BellRing certificate of incorporation, to determine the terms and conditions of the preferred stock, including whether the shares of preferred stock will be issued in one or more series, the number of shares to be included in each series and the powers (including voting powers), designations, preferences and rights of the shares. The New BellRing Board of

 

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Directors will also be authorized to designate any qualifications, limitations or restrictions on the shares without any further vote or action by New BellRing’s stockholders, subject to applicable rules of the NYSE and Delaware law.

Authorizing the New BellRing Board of Directors to establish preferred stock eliminates delays associated with seeking stockholder approval of the creation of a particular class or series of preferred stock. The rights of the holders of New BellRing Common Stock will be subject to the rights of holders of any preferred stock issued at any time, including in the future. The issuance of preferred stock, while providing desirable flexibility in connection with possible acquisitions and other corporate purposes, may have the effect of delaying, deferring or preventing a change in control of New BellRing and may adversely affect the voting and other rights of the holders of New BellRing Common Stock, which could have an adverse impact on the market price of New BellRing Common Stock. These provisions also could make it more difficult for New BellRing’s stockholders to effect certain corporate actions, including the election of directors.

Corporate Opportunities

The DGCL permits the adoption of a provision in a corporation’s certificate of incorporation renouncing any interests or expectancy of a corporation in, or in being offered an opportunity to participate in, specified business opportunities or specified classes or categories of business opportunities that are presented to the corporation or to one or more of its directors, officers or stockholders.

The New BellRing certificate of incorporation will include certain provisions regulating and defining the conduct of New BellRing’s affairs to the extent that they may involve Post and its directors, officers, employees, agents and affiliates (except that New BellRing and its subsidiaries are not deemed affiliates of Post or its affiliates for purposes of these provisions) and New BellRing’s rights, powers, duties and liabilities and those of its directors, officers, managers, employees and agents in connection with its relationship with Post. In general, and except as may be set forth in any agreement between New BellRing and Post, these provisions will provide that Post and its affiliates may carry on and conduct any business of any kind, nature or description, whether or not such business is competitive with or in the same or similar lines of business as New BellRing; Post and its affiliates may do business with any of New BellRing’s customers, vendors and lessors; and Post and its affiliates may make investments in any kind of property in which New BellRing may make investments. In addition, these provisions will provide that New BellRing renounces any interest or expectancy to participate in any business of Post or its affiliates.

Moreover, the New BellRing certificate of incorporation will provide that New BellRing renounces any interests or expectancy in corporate opportunities which become known to (i) any of its directors, officers, managers, employees or agents who also are directors, officers, employees, agents or affiliates of Post or its affiliates (except that New BellRing and its subsidiaries are not deemed affiliates of Post or its affiliates for the purposes of the provision) or (ii) Post or its affiliates. The provision will generally provide that neither Post nor New BellRing’s directors, officers, managers, employees or agents who also are directors, officers, employees, agents or affiliates of Post or its affiliates will be liable to New BellRing or its stockholders for breach of any fiduciary duty solely by reason of the fact that any such person pursues or acquires any corporate opportunity for the account of Post or its affiliates, directs, recommends or transfers such corporate opportunity to Post or its affiliates or does not offer or communicate information regarding such corporate opportunity to New BellRing or any person controlled by New BellRing because such person has directed or intends to direct such opportunity to Post or one of its affiliates. This renunciation will not extend to corporate opportunities expressly offered to one of New BellRing’s directors, officers, managers, employees or agents, solely in his or her capacity as a director, officer, manager, employee or agent of New BellRing.

These provisions in the New BellRing certificate of incorporation will cease to apply at such time as (i) New BellRing and Post and its affiliates are no longer affiliates of one another and (ii) none of the directors, officers, employees, agents or affiliates of Post serve as New BellRing’s directors, officers, managers, employees or agents.

 

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Anti-Takeover Effects of the New BellRing Certificate of Incorporation and New BellRing Bylaws

The New BellRing certificate of incorporation and the New BellRing bylaws will contain certain provisions that are intended to enhance the likelihood of continuity and stability in the composition of the New BellRing Board of Directors and which may have the effect of delaying, deferring or preventing a future takeover or change in control of New BellRing unless such takeover or change in control is approved by the New BellRing Board of Directors.

These provisions will include:

Action by Written Consent; Special Meetings of Stockholders

The New BellRing certificate of incorporation and New BellRing bylaws will provide that stockholder action can be taken only at an annual or special meeting of stockholders and cannot be taken by any consent in lieu of a meeting. The New BellRing bylaws will also provide that, except as otherwise required by law, special meetings of the stockholders can only be called by the affirmative vote of a majority of New BellRing’s entire Board of Directors, the Chairperson of the New BellRing Board of Directors or New BellRing’s President. Except as described above, stockholders are not permitted to call a special meeting or to require the New BellRing Board of Directors to call a special meeting.

Advance Notice Procedures

The New BellRing bylaws will contain provisions requiring that advance notice be delivered to New BellRing of any business to be brought by a stockholder before an annual meeting and providing for procedures to be followed by stockholders in nominating persons for election to the New BellRing Board of Directors. Ordinarily, the stockholder must give notice in writing to New BellRing’s Secretary not less than 90 days nor more than 120 days prior to the date of the first anniversary of the prior year’s annual meeting (and for purposes of calculating this date with respect to the first annual meeting, the annual meeting for the prior year shall be deemed to have been held on the date of the most recent annual meeting of stockholders of BellRing held before the date the merger is completed) except that, in the event that the date of the meeting is more than 30 days before or more than 60 days after such anniversary date, notice by the stockholder must be received not earlier than the 120th day prior to the date of such annual meeting and not later than the close of business on the later of the 90th day prior to the date of such annual meeting or the 10th day following the day on which public announcement of the date of the annual meeting is first made. For stockholder proposals, the notice must include a description of the proposal, the reasons for the proposal and other specified matters. The New BellRing Board of Directors may reject any proposals or nominations that have not followed these procedures or that are not a proper subject for stockholder action in accordance with the provisions of applicable law. Although the New BellRing bylaws will not otherwise give the New BellRing Board of Directors the power to approve or disapprove stockholder nominations of candidates or proposals regarding other business to be conducted at a special or annual meeting, the New BellRing bylaws may have the effect of precluding the conduct of certain business or the nomination of certain individuals at a meeting if the proper procedures are not followed or may discourage or deter a potential acquirer from conducting a solicitation of proxies to elect its own slate of directors or otherwise attempting to obtain control of us.

Directors, and Not Stockholders, Fix the Size of the New BellRing Board of Directors

The New BellRing certificate of incorporation and New BellRing bylaws will provide that the number of New BellRing’s directors will be fixed from time to time exclusively pursuant to a resolution adopted by the New BellRing Board of Directors, but in no event will it consist of less than five nor more than twelve directors.

 

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Vacancies and Newly-Created Directorships on the New BellRing Board of Directors

Subject to the special rights of holders of any outstanding series of preferred stock, any vacancy on the New BellRing Board of Directors occurring for any reason, and any newly created directorships which occur by reason of an increase in the number of directors, will be filled only by the majority of the remaining directors, even if less than a quorum or by a sole remaining director. These provisions could make it more difficult for stockholders to affect the composition of the New BellRing Board of Directors.

Classified Board of Directors; Removal of Directors

The New BellRing certificate of incorporation and New BellRing bylaws will provide that the New BellRing Board of Directors is divided into three classes of directors serving staggered three-year terms. The number of directors assigned to each class is as equal as reasonably possible. With respect to the members of the New BellRing Board of Directors in office as of the date of the certificate of incorporation, the first class of directors will hold office until the first annual stockholders’ meeting for election of directors, the second class of directors will hold office until the second annual stockholders’ meeting for election of directors, and the third class of directors will hold office until the third annual stockholders’ meeting for election of directors. Each class will thereafter hold office until the third annual stockholders’ meeting for election of directors following the most recent election of such class and until their successors are duly elected and qualified. With only a portion of the New BellRing Board of Directors up for election each year, the existence of a classified board of directors could render more difficult or discourage an attempt to obtain control of New BellRing because it would take more than one annual meeting to do so. In addition, the New BellRing certificate of incorporation will provide that its directors may only be removed for cause, which could also make it more difficult to change the composition of the New BellRing Board of Directors.

Authorized but Unissued Shares

New BellRing’s authorized but unissued shares of common stock and preferred stock are available for future issuance without stockholder approval, subject to applicable rules of the NYSE and Delaware law. These additional shares may be utilized for a variety of corporate purposes, including future public offerings or private offerings to raise additional capital, corporate acquisitions and employee benefit plans and equity grants. The existence of authorized but unissued shares of common stock and preferred stock could render more difficult or discourage an attempt to obtain control of a majority of New BellRing Common Stock by means of a proxy contest, tender offer, merger or otherwise. New BellRing does not intend to solicit approval of its stockholders for issuance of authorized but unissued shares of New BellRing Common Stock and preferred stock, unless the New BellRing Board of Directors believes that approval is advisable or is required by applicable rules of the NYSE or Delaware law.

Amendments to Certificate of Incorporation and Bylaws

The DGCL generally provides that a corporation may amend its certificate of incorporation upon a resolution of its board of directors proposing the amendment and its submission to the stockholders for their approval upon the affirmative vote of holders of a majority of the voting power entitled to vote thereon. The New BellRing certificate of incorporation provides that it may be amended in accordance with and upon the vote prescribed by Delaware law, except that the indemnification provisions of the certificate of incorporation may be amended (or a provision inconsistent with the indemnification provisions adopted) only upon the affirmative vote of not less than 85% of all of the voting power of all of the outstanding shares of New BellRing Common Stock then entitled to vote in the election of directors, voting together as a single class.

The DGCL provides that the power to adopt, amend or repeal the bylaws of a corporation is held by the stockholders of the corporation, except that a corporation may, in its certificate of incorporation, confer the power to adopt, amend or repeal its bylaws upon the board of directors of the corporation, but the fact that such

 

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power has been so conferred upon the board of directors will not divest the stockholders of such power or limit their power to adopt, amend or repeal the bylaws. New BellRing’s certificate of incorporation and bylaws provide that the board of directors may amend, alter, change or repeal any provision of the bylaws. New BellRing’s certificate of incorporation and bylaws also provide that stockholders may amend, alter, change or repeal any provision of the bylaws upon the affirmative vote of a majority of all of the voting power of New BellRing entitled to vote thereon.

Directors’ Liability; Indemnification of Directors and Officers

The DGCL permits a corporation, in its certificate of incorporation, to limit or eliminate, subject to certain statutory limitations, the liability of directors to the corporation or its stockholders for monetary damages for breaches of fiduciary duty, except for liability:

 

   

for any breach of the director’s duty of loyalty to the corporation or its stockholders;

 

   

for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;

 

   

in respect of certain unlawful dividend payments or stock redemptions or repurchases; and

 

   

for any transaction from which the director derives an improper personal benefit.

The DGCL permits a corporation, under specified circumstances, to indemnify its directors, officers, employees and agents against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by them in connection with any action, suit or proceeding by reason of the fact that they were or are directors, officers, employees or agents of the corporation, if such directors, officers, employees or agents acted in good faith and in a manner they 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 reason to believe their conduct was unlawful. In a derivative action or suit (i.e., one by or in the right of the corporation), indemnification may be made only for expenses actually and reasonably incurred by directors, officers, employees and agents in connection with the defense or settlement of an action or suit, and only with respect to a matter as to which they have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification will be made if such person has been adjudged liable to the corporation, unless and only to the extent that the court in which the action or suit was brought determines upon application that the defendant directors, officers, employees or agents are fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability. The DGCL also permits corporations to advance expenses incurred by an officer or director of the corporation in defending any civil, criminal, administrative or investigative action, suit or proceeding 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 indemnified by the corporation.

The New BellRing certificate of incorporation will limit the liability of directors to the fullest extent permitted by the DGCL and provides that New BellRing will provide its directors and officers with customary indemnification and advancement. New BellRing intends to enter into customary indemnification agreements with each of its directors and certain of its executive officers that provide them, in general, with customary indemnification and advancement in connection with their service to New BellRing or on New BellRing’s behalf.

Exclusive Forum

The DGCL permits a corporation to require, and not prohibit, in its certificate of incorporation or bylaws, internal corporate claims to be brought (only) in Delaware. Under Section 115 of the DGCL, “internal corporate claims” means claims, including claims in the right of the corporation, (i) that are based upon a violation of a duty by a current or former director or officer or stockholder in such capacity, or (ii) as to which the DGCL confers jurisdiction upon the Court of Chancery.

 

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Section 12 of the New BellRing certificate of incorporation will provide that, unless New BellRing consents in writing to the selection of an alternative forum, the Court of Chancery (or, if the Court of Chancery does not have subject matter jurisdiction, the federal district court for the State of Delaware) is the exclusive forum for the following types of actions or proceedings under Delaware statutory or common law:

 

   

any derivative action or proceeding brought on New BellRing’s behalf;

 

   

any action asserting a breach of fiduciary duty;

 

   

any action asserting a claim against New BellRing arising pursuant to the DGCL; and

 

   

any action asserting a claim against New BellRing that is governed by the internal affairs doctrine.

Section 12 will not apply to suits brought to enforce a duty or liability created by the Exchange Act, for which the U.S. federal courts have exclusive jurisdiction. New BellRing’s certificate of incorporation also will provide that U.S. federal courts will, to the fullest extent permitted by law, be the sole and exclusive forum for the resolution of any complaint asserting a cause of action or proceeding arising under the Securities Act. Further, to the fullest extent permitted by law, any person or entity purchasing or otherwise acquiring or holding any interest in New BellRing Common Stock will be deemed to have notice of Section 12 of New BellRing’s certificate of incorporation.

Although the New BellRing certificate of incorporation will contain the exclusive forum provision described above, it is possible that a court could find that such a provision is inapplicable for a particular claim or action or that such provision is unenforceable. The exclusive forum provision shall not relieve New BellRing of its duties to comply with the federal securities laws and the rules and regulations thereunder, and New BellRing stockholders will not be deemed to have waived New BellRing’s compliance with these laws, rules and regulations.

 

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NEW BELLRING SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

The following table presents, as of January 14, 2022, the most recent date for which information was available prior to the filing of this proxy statement/prospectus, information relating to the beneficial ownership of New BellRing Common Stock by: (i) each person known by New BellRing to own beneficially more than 5% of New BellRing, (ii) each executive officer of New BellRing and (iii) all current executive officers of New BellRing as a group. New BellRing is a member-managed Delaware limited liability company and does not have any directors or managers.

Unless otherwise indicated, the beneficial owners listed below may be contacted at New BellRing’s corporate headquarters located at 2503 S. Hanley Road St. Louis, Missouri 63144.

 

Name and Address of Beneficial Owner    Percentage of New BellRing Owned  

Post Holdings, Inc.

     100

Robert V. Vitale, President

     0

Jeff A. Zadoks, Vice President

     0

Diedre J. Gray, Secretary

     0

Matthew J. Mainer, Treasurer

     0

All current named executive officers as a group (4 persons)

     0

 

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BELLRING SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

The following table presents, as of January 14, 2022, the most recent practicable date for which information was available prior to the filing of this proxy statement/prospectus, information relating to the beneficial ownership of BellRing Class A Common Stock and BellRing Class B Common Stock by: (i) each person known by BellRing to own beneficially more than 5% of the outstanding shares of BellRing Class A Common Stock or BellRing Class B Common Stock, (ii) each director of BellRing, (iii) each named executive officer of BellRing and (iv) all current directors and executives officers of BellRing as a group. As of January 14, 2022, there were 38,887,851 shares of BellRing Class A Common Stock and one share of BellRing Class B Common Stock outstanding, respectively.

Unless otherwise indicated, the beneficial owners listed below may be contacted at BellRing’s corporate headquarters located at 2503 S. Hanley Road St. Louis, Missouri 63144. Except as noted, all such persons possess, to BellRing’s knowledge, sole voting and dispositive power with respect to the shares listed. In general, “beneficial ownership” includes those shares an individual has the power to vote or transfer, and options or other equity awards that are vested or exercisable or that become vested and/or exercisable within 60 days. The percentage of votes for all classes of capital stock is based on (i) the sole share of BellRing Class B Common Stock outstanding representing 67% of the total voting power of BellRing Common Stock and (ii) the shares of BellRing Class A Common Stock outstanding representing the remaining portion of the total voting power of BellRing Common Stock.

 

 

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     BellRing Class A Common Stock     BellRing Class B Common Stock     Percent of
Votes
 
Name and Address of Beneficial Owner    Number of
Shares Owned
    % of Class
Owned (18)
    Number of
Shares Owned
     % of Class
Owned (19)
    %  

Post Holdings, Inc.
2503 S. Hanley Rd.
St. Louis, Missouri 63144

     97,474,180 (1)      71.3     1        100     67

Route One Investment Company, L.P.
One Letterman Drive
Bldg D-Main, Suite DM200
San Francisco, California 94129

     5,165,991 (2)      13.2                  4.4

Vanguard Group Inc.
P.O. Box 2600
Valley Forge, Pennsylvania 19482

     3,795,633 (3)      9.7                  3.2

BlackRock, Inc.
55 East 52nd Street
New York, New York 10055

     3,289,715 (4)      8.4                  2.8

Franklin Resources, Inc.
One Franklin Parkway
San Mateo, California 94403

     2,742,139 (5)      7.0                  2.3
Point72 Asset Management, L.P.            
Point72 Capital Advisors, Inc.            

Cubist Systematic Strategies, LLC

           
Point72 Hong Kong Limited            

Steven A. Cohen
72 Cummings Point Road
Stamford, Connectictut 06902

     1,983,182 (6)      5.1                  1.7

Robert V. Vitale

     10,300 (7)      *                    *  

Darcy Horn Davenport

     165,560 (8)      *                    *  

Thomas P. Erickson

     15,048 (9)      *                    *  

Jennifer Kuperman

     14,034 (10)      *                    *  

Chonda J. Nwamu

     393 (11)      *                    *  

Elliot H. Stein, Jr.

     10,461 (12)      *                    *  

Paul A. Rode

     39,130 (13)      *                    *  

Douglas J. Cornille

     24,611 (14)      *                    *  

Craig L. Rosenthal

     25,161 (15)      *                    *  

R. Lee Partin

     10,248 (16)      *                    *  

Robin Singh

     14,921 (17)      *                    *  

All executive officers and directors as a group (11 persons)

     329,867       *                    *  

 

*

The percentage of shares beneficially owned does not exceed 1% of the class or voting power (of all classes).

(1)

Represents the shares of BellRing Class A Common Stock that may be acquired upon the redemption of BellRing LLC Units held by Post. Subject to the terms of the amended and restated limited liability company agreement of BellRing LLC, BellRing LLC Units may be redeemed for, at the option of BellRing LLC (as determined by its board of managers), shares of BellRing Class A Common Stock, or for cash. The redemption of BellRing LLC Units for shares of BellRing Class A Common Stock would be at an initial redemption rate of one share of BellRing Class A Common Stock for one BellRing LLC Unit, subject to customary redemption rate adjustments for stock splits, stock dividends and reclassifications.

(2)

The shares set forth in the table reflect the number of shares beneficially owned as of September 30, 2021, based on a Form 13F-HR dated November 15, 2021, filed by Route One Investment Company, L.P. According to the Form 13F-HR, Route One Investment Company, L.P. exercises sole investment power with respect to all shares and has sole voting power with respect to all shares.

(3)

The shares set forth in the table reflect the number of shares beneficially owned as of September 30, 2021, based on a Form 13F-HR dated November 12, 2021, filed by Vanguard Group Inc. According to the Form

 

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  13F-HR, Vanguard Group Inc. exercises sole investment power with respect to 3,700,575 shares, shared-defined investment power for 95,058 shares, shared voting power with respect to 66,846 shares and no voting power with respect to 3,728,787 shares.
(4)

The shares set forth in the table reflect the number of shares beneficially owned as of September 30, 2021, based on a Form 13F-HR dated November 9, 2021, filed by BlackRock Inc. According to the Form 13F-HR, BlackRock Inc. exercises sole investment power with respect to all shares, sole voting power with respect to 3,235,026 shares and no voting power with respect to 54,689 shares.

(5)

The shares set forth in the table reflect the number of shares beneficially owned as of September 30, 2021, based on a Form 13F-HR dated November 12, 2021, filed by Franklin Resources, Inc. According to the Form 13F-HR, Franklin Resources, Inc. exercises shared-defined investment power with respect to all shares, sole voting power with respect to 2,740,639 shares and no voting power with respect to 1,500 shares.

(6)

The shares set forth in the table reflect the number of shares beneficially owned as of January 7, 2022, based on a Schedule 13G dated January 7, 2022, filed by Point72 Asset Management, L.P., Point72 Capital Advisors, Inc., Cubist Systematic Strategies, LLC, Point72 Hong Kong Limited and Steven A. Cohen. According to the Schedule 13G, Steven A. Cohen exercises shared voting power with respect to all shares.

(7)

Includes 10,300 shares of BellRing Class A Common Stock outstanding.

(8)

Includes (i) 85,830 shares of BellRing Class A Common Stock outstanding and (ii) 79,730 shares of BellRing Class A Common Stock which could be acquired upon the exercise of vested options or options that vest within 60 days of January 14, 2022.

(9)

Includes (i) 4,066 RSUs that vest within 60 days of January 14, 2022, (ii) 4,395 RSUs that the director has elected to defer until retirement from the BellRing Board of Directors and (iii) 6,587 indirect interests in shares of BellRing Class A Common Stock held under BellRing’s Deferred Compensation Plan for Directors.

(10)

Includes (i) 4,066 RSUs that vest within 60 days of January 14, 2022, (ii) 4,395 RSUs that the director has elected to defer until retirement from the BellRing Board of Directors and (iii) 5,573 indirect interests in shares of BellRing Class A Common Stock held under BellRing’s Deferred Compensation Plan for Directors.

(11)

Includes 393 indirect interests in shares of BellRing Class A Common Stock held under BellRing’s Deferred Compensation Plan for Directors.

(12)

Includes (i) 2,000 shares of BellRing Class A Common Stock, (ii) 4,066 RSUs that vest within 60 days of January 14, 2022 and (iii) 4,395 RSUs that the director has elected to defer until retirement from the BellRing Board of Directors.

(13)

Includes (i) 27,593 shares of BellRing Class A Common Stock outstanding and (ii) 11,537 shares of BellRing Class A Common Stock which could be acquired upon the exercise of vested options or options that vest within 60 days of January 14, 2022.

(14)

Includes 24,611 shares of BellRing Class A Common Stock outstanding.

(15)

Includes 25,161 shares of BellRing Class A Common Stock outstanding.

(16)

Includes 10,248 shares of BellRing Class A Common Stock outstanding.

(17)

Includes 14,921 shares of BellRing Class A Common Stock outstanding.

(18)

Except for Post, the percentage of BellRing Class A Common Stock beneficially owned was calculated based upon 38,887,851 shares of Class A common stock issued and outstanding as of January 14, 2022, plus the number of RSUs that vest within 60 days of that date (12,198 shares), plus the number of vested RSUs deferred by certain directors until retirement from the BellRing Board of Directors (13,185 shares), plus the number of shares of BellRing Class A Common Stock which could be acquired upon the exercise of vested options, or options that vest within 60 days of that date (91,267 shares), by all directors and executive officers. For Post, the number of shares outstanding was increased by the addition of the number of shares of BellRing Class A Common Stock issuable upon the redemption of BellRing LLC Units held by Post.

(19)

The percentage of BellRing Class B Common Stock beneficially owned was calculated based upon one share of BellRing Class B Common Stock issued and outstanding as of January 14, 2022.

 

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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

Post, New BellRing and BellRing or their respective subsidiaries, in each case as applicable, have entered into or, in connection with the completion of the transactions, will enter into, certain agreements governing the relationship between such parties following the separation. These agreements are summarized in the section of this prospectus entitled “Ancillary Agreements” beginning on page 96.

 

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COMPARISON OF RIGHTS OF NEW BELLRING AND BELLRING STOCKHOLDERS BEFORE AND AFTER THE TRANSACTIONS

Like BellRing, New BellRing has been formed in the State of Delaware and will be incorporated in Delaware following New BellRing’s conversion to a Delaware corporation. Its certificate of incorporation and bylaws following the transactions will be substantially similar to BellRing’s amended and restated certificate of incorporation and amended and restated bylaws prior to the transactions. Therefore, the rights of stockholders of New BellRing after the transactions, as a matter of state law and under the relevant organizational documents, will be substantially similar to the rights of stockholders of BellRing prior to the transactions. The following is a description of (i) the terms of the BellRing Class A Common Stock and Class B Common Stock under BellRing’s certificate of incorporation (the “BellRing certificate of incorporation”) and bylaws (the “BellRing bylaws”) and (ii) the terms of the New BellRing Common Stock under New BellRing’s certificate of incorporation (the “New BellRing certificate of incorporation”) and bylaws (the “New BellRing bylaws”), which are attached as Annexes B and C, respectively, to this proxy statement/prospectus and incorporated by reference into this proxy statement/prospectus. This description is not complete and is qualified in its entirety by reference to the full text of the New BellRing certificate of incorporation and New BellRing bylaws, and the applicable provisions of Delaware law.

 

BellRing Class A and Class B Common Stock
Under BellRing’s Current Amended and Restated Certificate
of Incorporation and Bylaws

 

New BellRing Common Stock
Under the New BellRing Certificate of Incorporation
and New BellRing Bylaws

Authorized Capital Stock
BellRing is authorized to issue up to 500 million shares of BellRing Class A Common Stock, one share of BellRing Class B Common Stock and 50 million shares of preferred stock.   New BellRing is authorized to issue up to 500 million shares of New BellRing Common Stock and 50 million shares of preferred stock. See Section 4.1 of Annex B.
Voting Rights

So long as Post holds in the aggregate more than 50% of the BellRing LLC Units then (i) each holder of BellRing Class A Common Stock is entitled to one vote per share on all matters to be voted upon by the stockholders generally and (ii) the holder of the share of BellRing Class B Common Stock is entitled to a number of votes equal to 67% of the total voting power of the outstanding BellRing Common Stock, on all matters to be voted upon by stockholders generally.

 

In the event that Post holds in the aggregate 50% or less of the BellRing LLC Units, then the holder of the share of BellRing Class B Common Stock will be entitled to a number of votes equal to the number of BellRing LLC Units held by all persons other than BellRing and its subsidiaries, but may only cast a number of such votes on its own behalf equal to the number of BellRing LLC Units held by Post. If any of the BellRing LLC Units are held by persons other than BellRing, any of its subsidiaries or Post, the holder of the share of Class B Common Stock will be entitled to cast the remainder of the votes to which it is entitled in accordance with instructions and directions from the non-affiliated member(s) of BellRing LLC.

 

Holders of New BellRing Common Stock are entitled to one vote for each share of such stock held on all matters to be voted upon by the stockholders generally. See Section 5.1(i) of Annex B.

 

Holders of New BellRing Common Stock will vote as a single class on all matters with respect to which stockholders are generally entitled to vote under applicable law. See Section 5.1(i) of Annex B.

 

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The holders of BellRing Class A Common Stock and the holder of the share of Class B Common Stock will vote together as a single class on all matters (including the election of directors) submitted to a vote of stockholders, unless otherwise required by the certificate of incorporation or applicable law. Delaware law may require the holders of BellRing Class A Common Stock and the holder of Class B Common Stock to vote as separate classes in the event of certain amendments to the certificate of incorporation affecting the unique rights, powers or preferences or other aspects of the BellRing Class A Common Stock or Class B Common Stock, respectively, or so as to affect them adversely. The certificate of incorporation further provides that the holders of the outstanding shares of BellRing Class A Common Stock and BellRing Class B Common Stock shall each be entitled to vote separately upon any amendment to the certificate of incorporation (including by merger, consolidation, reorganization or similar event) that would alter or change the powers, preferences or special rights of the shares of such class of common stock in a manner that affects them adversely.  
Dividend Rights
Subject to applicable law and the rights, if any, of the holders of any outstanding series of preferred stock (or any class or series of capital stock having a preference senior to or the right to participate with the BellRing Class A Common Stock as to the payment of dividends), dividends of cash or property may be declared and paid on the BellRing Class A Common Stock out of the assets of BellRing that are by law available, at the times and in the amounts as the BellRing Board of Directors may determine. The holder of BellRing Class B Common Stock will not participate in any dividends declared by the BellRing Board of Directors. No stock dividend, stock split, reverse stock split, combination of stock, reclassification or recapitalization may be declared or made on the BellRing Class A Common Stock unless such adjustment has been reflected in the same economically equivalent manner on all BellRing LLC Units. Stock dividends with respect to BellRing Class A Common Stock may only be paid with shares of BellRing Class A Common Stock.   Subject to applicable law and the special rights, if any, of the holders of any outstanding series of preferred stock, dividends of cash, shares of New BellRing Common Stock or property may be declared and paid on the New BellRing Common Stock out of the assets of BellRing that are by law available, at the times and in the amounts as the New BellRing Board of Directors may determine. See Section 5.1(ii) of Annex B.
Structure and Classification of Board; Number of Directors
The number of directors constituting the entire BellRing Board of Directors is fixed by resolution of the BellRing Board of Directors, and will not be less than five nor   The number of directors constituting the entire New BellRing Board of Directors will be fixed by resolution of the New BellRing Board of Directors,

 

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more than twelve. The directors will be divided into three classes, as nearly equal in number as reasonably possible, except that one class may be one greater or one less in number than the other two classes. At each annual meeting of stockholders, successors to the class of directors whose term expires at that annual meeting will be elected for a three year term (and until their respective successors shall have been elected and qualified in each class or until their earlier death, resignation or removal), so that the term of one class of directors will expire in each year.   but will not be less than five nor more than twelve. The directors will be divided into three classes, as nearly equal in number as reasonably possible, except that one class may be one greater or one less in number than the other two classes. At each annual meeting of stockholders, successors to the class of directors whose term expires at that annual meeting will be elected for a three year term (and until their respective successors shall have been elected and qualified in each class or until their earlier death, resignation or removal), so that the term of one class of directors will expire in each year. See Section 7.1 of Annex B.
Removal of Directors
Members of the BellRing Board of Directors may be removed with or without cause by the affirmative vote of not less than a majority of the voting power of all of the outstanding shares of capital stock then entitled to vote in the election of directors, voting together as a single class.   Members of the New BellRing Board of Directors may be removed only for cause and only by the affirmative vote of not less than a majority of the voting power of all of the outstanding shares of capital stock of New BellRing then entitled to vote in the election of directors, voting together as a single class. See Section 7.2 of Annex B.
Director Vacancies and Newly Created Directorships
Subject to the rights of any outstanding series of BellRing preferred stock and Post under an investors rights agreement with BellRing, any vacancies on the BellRing Board of Directors which occur for any reason prior to the expiration of the term of office of the class in which the vacancy occurs, including newly created directorships which occur by reason of an increase in the number of directors, may be filled by (i) the BellRing Board of Directors, acting by the affirmative vote of a majority of the remaining directors then in office (even if less than a quorum) or by a sole remaining director, (ii) at a special meeting of stockholders of BellRing called for such purpose or (iii) prior to first date on which Post ceases to own of record more than 50% of the outstanding BellRing LLC Units (such date, the “Triggering Event”), by written consent of one or more stockholders of BellRing, in each case, until the next election of directors by the stockholders of BellRing at which such class is elected.   Subject to the rights of any outstanding series of New BellRing preferred stock, any vacancies on the New BellRing Board of Directors which occur for any reason, and any newly created directorships which occur by reason of an increase in the number of directors, may be filled only by the majority of the remaining directors (even if less than a quorum) or by a sole remaining director. See Section 7.3 of Annex B.
Stockholder Action by Written Consent
Prior to the Triggering Event, any action required to be taken or that may be taken at an annual or special meeting of stockholders of BellRing, may be taken without a meeting, without prior notice and written a   Subject to the rights of any outstanding series of New BellRing preferred stock, any action required to be taken or that may be taken at an annual or special meeting of stockholders of New BellRing may be

 

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vote, if a consent or consents in writing setting forth the action so taken, have been signed by the holder or holders of capital stock of BellRing having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.

 

Subject to the rights of any outstanding series of BellRing preferred stock, from and after the Triggering Event, any action required to be taken or that may be taken at an annual or special meeting of stockholders of BellRing may be effected only at a duly called annual or special meeting of the stockholders of BellRing and may not be effected by any consent in writing by such stockholders.

  effected only at a duly called annual or special meeting of the stockholders of New BellRing and may not be effected by any consent by such stockholders. See Section 6.1 of Annex B.
Special Stockholder Meeting
Special meetings of the stockholders of BellRing may be called only by (i) the affirmative vote of a majority of the BellRing Board of Directors, (ii) the Chairperson of the BellRing Board of Directors, (iii) the Secretary of BellRing, on the request of Post for such a meeting in writing, so long as Post and its subsidiaries (other than BellRing and its subsidiaries) own of record, in the aggregate, more than 50% of the BellRing LLC Units or (iv) the President of BellRing.   Special meetings of the stockholders of New BellRing may be called only by (i) the affirmative vote of a majority of the New BellRing Board of Directors, (ii) the Chairperson of the New BellRing Board of Directors or (iii) the President of New BellRing. See Section 2 of Annex C.
Rights Upon Liquidation
In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of BellRing, after payment or provision for payment of the debts and other liabilities of BellRing and of the preferential and other amounts, if any, to which the holders of BellRing preferred stock will be entitled, the holders of all outstanding shares of BellRing Common Stock will be entitled to receive, pari passu, an amount per share equal to the par value thereof, and thereafter the holders of all outstanding shares of BellRing Class A Common Stock will be entitled to receive the remaining assets of BellRing available for distribution ratably in proportion to the number of shares of BellRing Class A Common Stock held by each such holder. The holder of the share of BellRing Class B Common Stock, as such, will not be entitled to receive any assets of BellRing in excess of the par value thereof in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of BellRing.   In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of New BellRing, after payment or provision for payment of the debts and other liabilities of New BellRing, and subject to the special rights, if any, of holders of any outstanding series of New BellRing preferred stock, the holders of all outstanding shares of New BellRing Common Stock will be entitled to receive, pari passu, the remaining assets of New BellRing available for distribution ratably in proportion to the number of shares held by each such stockholder. See Section 5.1(iii) of Annex B.

 

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Restrictions on Business Combinations with Interested Stockholders

BellRing has opted out of Section 203 of the DGCL. In general, Section 203 prohibits a publicly held Delaware corporation who has not opted out of its restrictions from engaging in a business combination, such as a merger, with a person or group owning 15% or more of the corporation’s voting stock (or a person or group who is an affiliate or associate of the corporation and has owned 15% or more of the corporation’s voting stock at any time during the prior three years) for a period of three years following the date on which the person became an interested stockholder, unless (with certain exceptions) the business combination or the transaction in which the person became an interested stockholder is approved in a prescribed manner.

 

However, the BellRing certificate of incorporation includes a provision that generally replicates the restrictions on business combinations with interested stockholders set forth in Section 203 of the DGCL, except that Post and its affiliates, successors and assigns are exempt from such restriction.

  New BellRing has not opted out of Section 203 of the DGCL, and therefore New BellRing will be subject to the restrictions on business combinations set forth in Section 203 of the DGCL. In general, Section 203 prohibits a publicly held Delaware corporation who has not opted out of its restrictions from engaging in a business combination, such as a merger, with a person or group owning 15% or more of the corporation’s voting stock (or a person or group who is an affiliate or associate of the corporation and has owned 15% or more of the corporation’s voting stock at any time during the prior three years) for a period of three years following the date on which the person became an interested stockholder, unless (with certain exceptions) the business combination or the transaction in which the person became an interested stockholder is approved in a prescribed manner.
Exclusive Forum
Unless BellRing consents in writing to the selection of an alternative forum, the Court of Chancery will be the exclusive forum for the following types of actions or proceedings under Delaware statutory or common law: (i) any derivative action or proceeding brought on BellRing’s behalf; (ii) any action asserting a breach of fiduciary duty; (iii) any action asserting a claim against BellRing arising pursuant to the DGCL and (iv) any action asserting a claim against New BellRing that is governed by the internal affairs doctrine. This exclusive forum provision will not apply to suits brought to enforce a duty or liability created by the Exchange Act, for which the U.S. federal courts have exclusive jurisdiction. Further, U.S. federal courts will, the fullest extent permitted by law, be the sole and exclusive forum for the resolution of any complaint asserting a cause of action or proceeding arising under the Securities Act.   Unless New BellRing consents in writing to the selection of an alternative forum, the Court of Chancery (or, if the Court of Chancery does not have subject matter jurisdiction, the federal district court for the State of Delaware) will be the exclusive forum for the following types of actions or proceedings under Delaware statutory or common law: (i) any derivative action or proceeding brought on New BellRing’s behalf; (ii) any action asserting a breach of fiduciary duty; (iii) any action asserting a claim against New BellRing arising pursuant to the DGCL and (iv) any action asserting a claim against New BellRing that is governed by the internal affairs doctrine. This exclusive forum provision will not apply to suits brought to enforce a duty or liability created by the Exchange Act, for which the U.S. federal courts have exclusive jurisdiction. Further, U.S. federal courts will, the fullest extent permitted by law, be the sole and exclusive forum for the resolution of any complaint asserting a cause of action or proceeding arising under the Securities Act. See Section 12 of Annex B.

 

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Other Rights

The share of BellRing Class B Common Stock may only be owned by Post and may not be owned or held by or transferred to any person other than Post; provided, however, that Post may (a) grant one or more proxies to, or enter into one or more voting arrangements with, non-affiliated members of BellRing LLC in certain circumstances and (b) transfer the share of the BellRing Class B Common Stock in connection with any distribution of its ownership interest in BellRing LLC by means of a spin-off or split-off to its stockholders.

 

The BellRing certificate of incorporation provides that issuance of shares of BellRing Class A Common Stock upon the exercise by a holder of BellRing LLC Units of its right to redeem its BellRing LLC Units for shares of BellRing Class A Common Stock will generally be made without charge to such holder for any transfer taxes, stamp taxes or duties or other similar tax in respect of the issuance.

  Following the completion of the transactions contemplated by the transaction agreement, New BellRing will not have any Class B Common Stock, and its common stock will not be affected by any units of BellRing LLC.

 

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THE SPECIAL MEETING

This proxy statement/prospectus is dated February 3, 2022 and is expected first to be mailed to stockholders on or about that date and constitutes notice of the special meeting in conformity with the requirements of the DGCL.

This proxy statement/prospectus is being provided to BellRing stockholders as part of a solicitation of proxies by the BellRing Board of Directors for use at the special meeting and any adjournments or postponements thereof. BellRing stockholders are encouraged to read this proxy statement/prospectus, and the documents incorporated by reference into this proxy statement/prospectus, carefully and in their entirety.

Date; Time and Place

The special meeting is scheduled to be held at 10:00 a.m. Central Time on March 8, 2022 at 2600 S. Hanley Rd., St. Louis, Missouri 63144, unless postponed to a later date.

In the event that, as a result of public health and travel concerns or recommendations that public health officials may issue in light of the COVID-19 pandemic, the BellRing Board of Directors determines to hold the special meeting virtually in addition to, or in lieu of, holding the special meeting in person, BellRing will announce that fact as promptly as practicable after making this determination, and details on how to participate in the special meeting will be made available in the press release announcing such determination and will also be posted on its website at https://bellring.com.

Purposes of the Special Meeting

At the special meeting, stockholders will be asked to:

 

   

adopt the transaction agreement in accordance with its terms and the DGCL; and

 

   

adjourn or postpone the special meeting, if necessary or appropriate, to solicit additional proxies if there are not sufficient votes at the time of the special meeting to adopt the transaction agreement in accordance with its terms and the DGCL.

No other matters will be presented for a vote at the special meeting unless a new notice of meeting is given. If any other matters are properly presented at the special meeting for consideration, however, the holders of the proxies, if properly authorized, will have discretion to vote on these matters in accordance with their best judgment.

When this proxy statement/prospectus refers to the “special meeting,” it is also referring to any adjournment or postponement thereof, if necessary or appropriate.

Record Date; Quorum; Voting Information; Required Votes

The holders of record of BellRing Common Stock as of the close of business on February 1, 2022, the record date for the special meeting, are entitled to receive notice of, and to vote at, the special meeting and any adjournment or postponement thereof. As of the close of business on the record date, 38,887,851 shares of BellRing Class A Common Stock were outstanding and entitled to vote and one share of BellRing Class B Common Stock was outstanding and entitled to vote. Each holder of shares of BellRing Class A Common Stock is entitled to cast one vote on each matter submitted to the stockholders for each share of BellRing Class A Common Stock held on the record date. The holder of the share of BellRing Class B Common Stock is entitled to a number of votes equal to 67% of the total voting power of the outstanding BellRing Common Stock on each matter submitted to the stockholders.

 

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Shares entitled to vote at the special meeting may vote on the approval of the transaction agreement proposal at the special meeting only if a quorum exists at the special meeting. The presence at the special meeting, in-person or by proxy, of the holders of shares of BellRing Common Stock representing a majority of the votes entitled to be cast at the special meeting will constitute a quorum for the transaction of business at the special meeting. Post is the holder of the share of BellRing Class B Common Stock and is therefore entitled to a number of votes equal to 67% of the total voting power of the outstanding BellRing Common Stock on each matter submitted to the stockholders.

Accordingly, it is expected that a quorum will be present at the special meeting because Post committed in the transaction agreement to vote its shares at the meeting. Once a share is represented for any purpose at the special meeting, it will be deemed present for the purpose of determining whether a quorum exists. Shares voted “FOR” and “AGAINST” and abstentions will be counted for purposes of determining the presence of a quorum. In accordance with applicable rules, banks, brokers and other nominees who hold shares of common stock in “street name” for their customers do not have discretionary authority to vote the shares with respect to the proposals. Accordingly, shares held in “street name” (that is, shares held through a bank, broker or other nominee) will not be counted for purposes of determining the presence of a quorum unless the bank, broker or other nominee has been instructed to vote on at least one of the proposals. In addition, other shares that are not present in person or by proxy at the special meeting will not be counted towards the presence of a quorum.

Approval of the transaction agreement proposal requires the affirmative vote of (i) holders of a majority in voting power of the outstanding shares of BellRing Common Stock and (ii) holders (other than Post, New BellRing or any of their respective affiliates) of a majority in voting power of the outstanding shares of BellRing Common Stock (other than shares of BellRing Common Stock owned or controlled by Post, New BellRing or any of their respective affiliates), in favor of adoption of the transaction agreement.

If BellRing’s stockholders fail to adopt the transaction agreement upon a vote at the special meeting, each of Post and BellRing will have the right to terminate the transaction agreement, as described in the section of this proxy statement/prospectus entitled “The Transaction Agreement and Plan of Merger—Termination” beginning on page 94.

The adjournment or postponement of the special meeting, if necessary or appropriate, to solicit additional proxies if there are not sufficient votes at the time of the special meeting to adopt the transaction agreement in accordance with its terms and the DGCL must be approved by the affirmative vote of the holder of a majority of the votes present in person or by proxy at the special meeting.

An abstention from voting on the transaction agreement proposal will have the same effect as a vote against the transaction agreement proposal. An abstention on the adjournment proposal, and if a stockholder’s shares are not present in person or by proxy at the special meeting, will have no effect on the adjournment proposal. However, if you direct an “abstention” from voting on the adjournment proposal with respect to your shares, or if your shares are otherwise present in person or by proxy at the special meeting, your abstention or failure to vote on the adjournment proposal will have the same effect as a vote against the adjournment proposal.

Pursuant to the transaction agreement, Post has agreed to cause the share of BellRing Class B Common Stock beneficially owned by it, currently representing 67% of the total voting power of the outstanding BellRing Common Stock, to be voted in favor of the adoption of the transaction agreement.

As of January 14, 2022, the most recent practicable date prior to the date of this proxy statement/prospectus: (i) BellRing’s directors and executive officers held less than 1% of the voting power of the shares of BellRing Common Stock entitled to vote at BellRing’s special meeting of stockholders; (ii) no affiliates of BellRing’s directors and executive officers held shares entitled to vote at BellRing’s special meeting of stockholders; and (iii) Robert V. Vitale, New BellRing’s President, held 10,300 shares of BellRing Class A Common Stock entitled to vote at BellRing’s special meeting of stockholders. As of January 14, 2022, the most recent practicable date

 

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prior to the date of this proxy statement/prospectus, none of New BellRing’s other executive officers and their affiliates hold shares entitled to vote at BellRing’s special meeting of stockholders.

New BellRing’s stockholders are not required to vote on any of the special meeting proposals and New BellRing will not hold a special meeting of stockholders in connection with the transactions. Similarly, Post’s stockholders are not required to vote on any of the special meeting proposals, and Post will not hold a special meeting of its shareholders in connection with the transactions.

Recommendation of the BellRing Special Committee; Recommendation of the BellRing Board of Directors

On October 26, 2021, the BellRing Special Committee unanimously (i) determined that the transaction agreement and the transactions contemplated therein, including the merger, are advisable and in the best interests of BellRing and its stockholders (other than Post, New BellRing or any of their respective affiliates), (ii) declared advisable and in the best interests of BellRing and its stockholders (other than Post, New BellRing or any of their respective affiliates) that BellRing enter into the transaction agreement and (iii) recommended that the BellRing Board of Directors approve and declare advisable the transaction agreement and approve the execution, delivery and performance of the transaction agreement and the completion of the transactions contemplated therein, including the merger, and recommend to BellRing stockholders that they adopt the transaction agreement.

On October 26, 2021, the BellRing Board of Directors, based on the recommendation of the BellRing Special Committee, unanimously (i) determined that the transaction agreement and the transactions contemplated therein, including the merger, are advisable and in the best interests of BellRing and its stockholders, (ii) approved and declared advisable the transaction agreement and approved the execution, delivery and performance of the transaction agreement and the completion of the transactions contemplated therein, including the merger, and (iii) directed that the transaction agreement be submitted to BellRing stockholders for adoption and recommended that stockholders of BellRing adopt the transaction agreement.

The BellRing Board of Directors, based on the recommendation of the BellRing Special Committee, recommends that stockholders vote “FOR” the transaction agreement proposal and “FOR” the adjournment proposal.

How to Vote

Stockholders of record described above may cause their votes to be cast by telephone, by Internet, by mail or in person at the special meeting.

(1) Voting by telephone: You can vote by calling the toll-free telephone number listed on the enclosed proxy card.

(2) Voting by Internet: You can vote via the Internet by logging into the website included on the enclosed proxy card and following the prompts using the control number located on the proxy card.

(3) Voting by mail: You can vote by mail (if you request printed copies of the proxy materials by mail) by completing, signing and dating the enclosed proxy card (or the voting instruction form provided by the record holder if shares of BellRing Common Stock are held in the name of a bank, broker or other nominee) and returning it in the enclosed postage-paid envelope.

(4) Voting in person: Shares held directly in your name as stockholder of record may be voted in person at the special meeting. If you choose to vote your shares in person at the special meeting, please bring your enclosed proxy card and current, government-issued photo identification. Shares held in “street name” may be voted in person by you only if you obtain a signed legal proxy from your bank, broker or other nominee giving you the right to vote the shares. In the event that, as a result of public health and travel concerns or recommendations that public health officials may issue in light of the COVID-19 pandemic, the BellRing Board of Directors determines to hold the special meeting virtually in addition to, or in lieu of, holding the

 

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special meeting in person, you will be able to attend the special meeting online via live audio-only webcast, where, by logging into the website, you may vote and submit questions during the special meeting webcast.

Stockholders of Record

Stockholders of record can authorize someone other than the individual(s) named on the proxy card or notice to attend the special meeting and vote on their behalf by crossing out the individual(s) named on the proxy card or notice and inserting the name, address and email address of the individual being authorized. We ask that you request registration of an authorized representative for the special meeting by forwarding an image of your updated proxy card or notice to the transfer agent either by email to legalproxy@computershare.com or by mail to the transfer agent to BellRing Brands Legal Proxy, P.O. Box 43001, Providence, Rhode Island 02940.

Beneficial Owners of Shares

Beneficial owners of shares can authorize someone other than the individual(s) named on the legal proxy obtained from their banks, brokers or other nominees to attend the special meeting or vote on their behalf by providing a written authorization to the individual being authorized along with a legal proxy. Contact information for the authorized individual, including name, address and email address, should be provided to register the authorized representative. Requests for registration of an authorized representative for the special meeting, along with the contact information specified above and an image of your legal proxy, should be directed to the transfer agent either by email to legalproxy@computershare.com or by mail to the transfer agent to BellRing Brands Legal Proxy, P.O. Box 43001, Providence, Rhode Island 02940. If a BellRing stockholder signs its proxy card without indicating its vote, its shares will be voted “FOR” the transaction agreement proposal and “FOR” the adjournment proposal.

Solicitation of Proxies

BellRing will bear the entire cost of soliciting proxies from its stockholders. In addition to solicitation of proxies by mail, proxies may be solicited in person, by telephone or other electronic communications, such as emails or postings on BellRing’s website by BellRing’s directors, officers and employees, who will not receive additional compensation for these services. BellRing has retained Georgeson LLC to assist in the solicitation of proxies for an initial fee of $16,500 plus reimbursement for certain expenses incurred in conjunction with the delivery of its services. Banks, brokers and other nominees will be requested to forward soliciting material to beneficial owners of stock held of record by them, and BellRing may be required to reimburse those persons for their reasonable expenses in doing so.

Revocation of Proxies

If a holder of record of BellRing Common Stock has properly completed and submitted its proxy card or submitted a proxy to vote their shares by Internet or telephone, the BellRing stockholder can revoke such proxy and change his, her or its vote in any of the following ways:

 

   

by sending a signed written notice of revocation to the corporate secretary of BellRing, bearing a later date than your original proxy and stating that you revoke your proxy, and mailing it so that it is received prior to the special meeting;

 

   

by properly completing, signing and dating a new proxy card bearing a later date and properly submitting it so that it is received prior to the special meeting;

 

   

submitting a new proxy via telephone or by logging onto the Internet website specified on the proxy card in the same manner a stockholder would to submit its proxy electronically or by calling the telephone number specified on the proxy card prior to the special meeting, in each case if the BellRing stockholder is eligible to do so and following the instructions on the proxy card; or

 

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by attending the special meeting and voting in person, which will automatically cancel any proxy previously given, or revoking your proxy in person at the special meeting.

Simply attending the special meeting will not revoke a proxy. In the event of multiple online or telephone proxies by a stockholder, each proxy will supersede the previous proxy and the last proxy given will be deemed to be the final proxy of the stockholder unless such proxy is revoked at the special meeting.

If your shares of BellRing Common Stock are held by a bank, broker or other nominee, you are considered the beneficial owner of shares held in “street name,” and your bank, broker or other nominee is considered the stockholder of record with respect to those shares. Your bank, broker or other nominee will provide you, as the beneficial owner, a package describing the procedure for voting your shares. You should follow the instructions provided by them to vote your shares. You are invited to attend the special meeting; however, you may not vote these shares in person at the special meeting unless you obtain a signed legal proxy, executed in your favor, from your bank, broker or other nominee that holds your shares, giving you the right to vote the shares in person at the special meeting, and you bring the signed legal proxy to the special meeting.

Adjournments or Postponements

Although it is not currently expected, the special meeting may be adjourned or postponed, if necessary or appropriate, for the purpose of soliciting additional proxies if there are not sufficient votes at the time of the special meeting to approve the transaction agreement proposal. Any adjournment of the special meeting may be made at the special meeting if approved by the affirmative vote of the holders of a majority of the votes present in person or by proxy at the special meeting. Any adjournment or postponement of the special meeting for the purpose of soliciting additional proxies will allow BellRing stockholders who have already sent in their proxies to revoke them at any time prior to their use at the special meeting as adjourned or postponed.

The proposal to approve the adjournment or postponement of the special meeting, if necessary or appropriate, relates only to an adjournment or postponement of the special meeting occurring for purposes of soliciting additional proxies for the approval of the transaction agreement proposal. The BellRing Board of Directors retains full authority to adjourn or postpone the special meeting for any other purpose, including the absence of a quorum, or to postpone the special meeting before it is convened, without the consent or approval of any stockholders.

Questions and Additional Information

If BellRing stockholders have more questions about the transactions or how to submit their proxy, or if they need additional copies of this proxy statement/prospectus or the accompanying proxy card or voting instructions, please contact:

Georgeson LLC

1290 Avenue of the Americas, 9th Floor

New York, New York 10104

Telephone: (866) 482-5136 (toll free)

The vote of BellRing stockholders is important. Please complete, sign, date and return the proxy card or submit the proxy and/or voting instructions via the Internet or by telephone promptly.

Requirements for Advance Notification of Stockholder Meetings, Nominations and Proposals

New BellRing’s bylaws will provide that, if one of New BellRing’s stockholders desires to submit a proposal or nominate persons for election as directors at an annual stockholders’ meeting, the stockholder’s written notice must be received by New BellRing not less than 90 days nor more than 120 days prior to the anniversary date of

 

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the date of the immediately preceding annual meeting of stockholders, which date shall, for purposes of New BellRing’s first annual meeting of stockholders after its shares of common stock are first publicly traded, be deemed to be February 11, 2022, which was the date of the most recent annual meeting of stockholders of BellRing held before the date the merger is completed. However, if the annual meeting is called for a date that is not within 30 days before or 60 days after such anniversary date, notice by a stockholder must be received by New BellRing not earlier than the 120th day prior to the date of such annual meeting and not later than the close of business on the later of the 90th day prior to the date of such annual meeting or the 10th day following the day on which public disclosure of the date of the annual meeting was first made.

 

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PROPOSAL NO. 1—THE TRANSACTION AGREEMENT PROPOSAL

Overview

Holders of shares of BellRing Common Stock are being asked to adopt the transaction agreement. BellRing stockholders should read carefully this proxy statement/prospectus in its entirety for more detailed information concerning the transaction agreement, which is attached as Annex A to this proxy statement/prospectus. For additional information regarding the transactions and a summary of certain terms of the transaction agreement, please see the sections of this proxy statement/prospectus entitled “The Transactions” and “The Transaction Agreement and Plan of Merger” beginning on pages 48 and 80, respectively. You are urged to read carefully the transaction agreement in its entirety before voting on this proposal.

Vote Required for Approval

Approval of the transaction agreement proposal requires the affirmative vote of (i) holders of a majority in voting power of the outstanding shares of BellRing Common Stock and (ii) holders (other than Post, New BellRing or any of their respective affiliates) of a majority in voting power of the outstanding shares of BellRing Common Stock (other than shares of BellRing Common Stock owned or controlled by Post, New BellRing or any of their respective affiliates) vote “FOR” the transaction agreement proposal.

Failure to vote by proxy or to vote in person or by proxy at the special meeting and abstentions will have the effect of voting against the transaction agreement proposal.

The transactions are conditioned upon the approval of the transaction agreement proposal.

Recommendation of the BellRing Board of Directors

BASED ON THE RECOMMENDATION OF THE BELLRING SPECIAL COMMITTEE, THE BELLRING BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT THE BELLRING STOCKHOLDERS VOTE “FOR” THE TRANSACTION AGREEMENT PROPOSAL.

 

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PROPOSAL NO. 2—THE ADJOURNMENT PROPOSAL

Overview

The adjournment proposal, if adopted, will allow the BellRing Board of Directors to adjourn or postpone the special meeting to a later date or dates, if necessary, to permit further solicitation of proxies if, based upon the tabulated vote at the time of the special meeting, there are not sufficient votes to approve the transaction agreement proposal.

If the adjournment proposal is not approved by BellRing stockholders, the special meeting still may be adjourned or postponed, including by the person presiding over the meeting pursuant to the BellRing bylaws.

Vote Required for Approval

The adjournment proposal will be adopted only if stockholders holding shares of BellRing Common Stock representing at least a majority in voting power of the outstanding shares of BellRing Common Stock present in person or by proxy at the BellRing special meeting vote “FOR” the adjournment proposal.

If you do not vote on the adjournment proposal and your shares are not present in person or by proxy at the special meeting, your failure to vote on the adjournment proposal will have no effect on the adjournment proposal. However, if you direct an “abstention” from voting on the adjournment proposal with respect to your shares or if your shares are otherwise present in person or by proxy at the special meeting, your abstention or failure to vote on the adjournment proposal will have the same effect as a vote against the adjournment proposal. If your shares are registered in the name of a broker, bank or other nominee, and you do not provide voting instructions on the adjournment proposal, your failure to provide such instructions will have no effect on the outcome of the adjournment proposal so long as you do not provide voting instructions with respect to the transaction agreement proposal. In the event that your shares are registered in the name of a broker, bank or other nominee, and you do not provide voting instructions on the adjournment proposal but provide voting instructions on the transaction agreement proposal, your failure to provide instructions on the adjournment proposal will have the same effect as a vote against the adjournment proposal.

The transactions are not conditioned upon the approval of the adjournment proposal.

Recommendation of the BellRing Board of Directors

BASED ON THE RECOMMENDATION OF THE BELLRING SPECIAL COMMITTEE, THE BELLRING BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT THE BELLRING STOCKHOLDERS VOTE “FOR” THE APPROVAL OF THE ADJOURNMENT PROPOSAL.

 

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LEGAL MATTERS

The validity of the shares of New BellRing Common Stock to be issued in the merger will be passed upon for New BellRing by Cleary Gottlieb Steen & Hamilton LLP.

 

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EXPERTS

The financial statements of BellRing Brands, Inc. and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control over Financial Reporting) incorporated in this proxy statement/prospectus by reference to BellRing Brands, Inc.’s Annual Report on Form 10-K for the year ended September 30, 2021 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.

 

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HOUSEHOLDING OF PROXY MATERIALS

SEC rules allow delivery of a single proxy statement to stockholders to households at which two or more stockholders reside. Accordingly, stockholders sharing an address who previously have been notified by their bank, broker or other nominee will receive only one copy of the proxy statement and annual report to stockholders, unless the stockholder has provided contrary instructions. Individual proxy cards or voting instruction forms (or electronic voting facilities) will, however, continue to be provided for each stockholder account. This procedure, referred to as “householding,” reduces the volume of duplicate information received by stockholders, as well as BellRing’s expenses. Stockholders having multiple accounts may have received householding notifications from their respective banks, brokers or other nominees and, consequently, such stockholders may receive only one proxy statement and annual report to stockholders. Stockholders who prefer to receive separate copies of the proxy statement and annual report to stockholders, either now or in the future, may request to receive separate copies of the proxy statement and annual report to stockholders by notifying BellRing’s corporate secretary and those materials will be delivered promptly. Stockholders currently sharing an address with another stockholder who wish to have only one proxy statement and annual report to stockholders delivered to the household in the future also should contact BellRing’s corporate secretary. BellRing’s corporate secretary may be reached by telephone at (314) 219-1646 or by mail at BellRing’s principal executive offices at BellRing Brands, Inc., 2503 S. Hanley Road, St. Louis, Missouri 63144, Attention: Corporate Secretary.

 

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WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BY REFERENCE

BellRing files annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any reports, statements or other information that the companies file at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. BellRing’s public filings also are available in electronic format to the public from commercial document retrieval services and at the Internet website maintained by the SEC at http://www.sec.gov. You also can review BellRing’s SEC filings on its web site at BellRing.com. Information included on BellRing’s website is not a part of this proxy statement/prospectus.

New BellRing has filed a registration statement on Form S-4 to register with the SEC the issuance of the shares of New BellRing Common Stock to be issued to BellRing stockholders in the merger. You should rely only on the information contained in this proxy statement/prospectus or on information which BellRing has incorporated by reference into this proxy statement/prospectus. This proxy statement/prospectus is a part of such registration statement and constitutes a prospectus of New BellRing and a proxy statement of BellRing for the special meeting of BellRing stockholders. This proxy statement/prospectus does not contain all of the information set forth in the registration statement because certain parts of the registration statement are omitted as provided by the rules and regulations of the SEC. You may inspect and copy the registration statement at the SEC’s reference room or web addresses listed above.

The SEC allows BellRing to incorporate by reference information into this proxy statement/prospectus, which means that it can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference into this proxy statement/prospectus is deemed to be part of this proxy statement/prospectus, except for any information superseded by information contained directly in this proxy statement/prospectus. This proxy statement/prospectus incorporates by reference the documents described below that BellRing has previously filed with the SEC, as well as the annexes to this proxy statement/prospectus. These documents contain important information about BellRing and its financial condition.

The following documents listed below that BellRing has previously filed with the SEC are incorporated by reference into this proxy statement/prospectus:

 

   

the Form 10-K;

 

   

the Definitive Proxy Statement for the 2022 Annual Meeting filed on December 29, 2021; and

 

   

the Current Reports on Form 8-K filed on October 27, 2021 (only such portions that are filed and not furnished) and December 17, 2021, respectively.

All documents that BellRing files pursuant to Sections 13(a), 13(c), 14 or 15(d) under the Exchange Act from the date of this proxy statement/prospectus to the date on which the special meeting is held, including any adjournments or postponements thereof, shall also be deemed to be incorporated by reference into this proxy statement/ prospectus. Notwithstanding anything herein to the contrary, any information furnished under Item 2.02 or Item 7.01 of BellRing’s Current Reports on Form 8-K and any other information which is furnished, but not filed, with the SEC, is not incorporated by reference into this proxy statement/prospectus.

You may obtain any of the documents incorporated by reference into this proxy statement/prospectus from the SEC’s public reference room or the SEC’s Internet website described above. Documents incorporated by reference into this proxy statement/prospectus also are available from BellRing without charge, excluding all exhibits unless specifically incorporated by reference in such documents. Stockholders may obtain documents incorporated by reference into this proxy statement/prospectus by requesting them in writing or by telephone from BellRing at the following address:

BellRing Brands, Inc.

2503 S. Hanley Road

St. Louis, Missouri 63144

Telephone: (314) 219-1646

Attention: Corporate Secretary

 

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If you would like to request documents, please do so by March 1, 2022 to receive them before the special meeting. If you request any incorporated documents, BellRing will strive to mail them to you by first class mail, or another equally prompt means, within one business day of receipt of your request.

You should rely only on the information contained in this proxy statement/prospectus to vote your shares at the special meeting of BellRing stockholders. Neither New BellRing nor BellRing has authorized anyone to provide you with information that differs from that contained in this proxy statement/prospectus. This proxy statement/prospectus is dated February 3, 2022. You should not assume that the information contained in this proxy statement/prospectus is accurate as of any date other than that date, and neither the mailing of this proxy statement/prospectus to stockholders nor the issuance of shares of New BellRing Common Stock in the merger shall create any implication to the contrary.

 

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Annex A

 

TRANSACTION AGREEMENT AND PLAN OF MERGER

by and among

BELLRING BRANDS, INC.,

POST HOLDINGS, INC.,

BELLRING DISTRIBUTION, LLC

and

BELLRING MERGER SUB CORPORATION

dated as of October 26, 2021


Table of Contents

TABLE OF CONTENTS

 

ARTICLE I The Separation

     A-2  

Section 1.1.

   The Separation      A-2  

Section 1.2.

   Reorganization Documents      A-3  

ARTICLE II The Distribution

     A-3  

Section 2.1.

   Form of Distribution      A-3  

Section 2.2.

   Manner of Distribution      A-3  

Section 2.3.

   Conditions to Distribution      A-4  

Section 2.4.

   Additional Matters      A-5  

Section 2.5.

   Delivery of Shares      A-5  

Section 2.6.

   Plan of Reorganization      A-6  

Section 2.7.

   Qualification as Reorganization      A-6  

ARTICLE III The Merger

     A-6  

Section 3.1.

   The Merger      A-6  

Section 3.2.

   Closing      A-6  

Section 3.3.

   Effective Time of the Merger      A-6  

Section 3.4.

   Effects of the Merger      A-7  

Section 3.5.

   Certificate of Incorporation and Bylaws of the Surviving Corporation and SpinCo      A-7  

Section 3.6.

   Directors and Officers of the Surviving Corporation and SpinCo      A-7  

Section 3.7.

   Post-Closing Transactions      A-7  

ARTICLE IV Effect of the Merger on the Capital Stock of the Constituent Corporations; Exchange of Certificates

     A-7  

Section 4.1.

   Effect on Capital Stock      A-7  

Section 4.2.

   Exchange of Certificates and Book-Entry Shares      A-8  

Section 4.3.

   Dissenting Shares      A-11  

Section 4.4.

   Certain Adjustments      A-11  

ARTICLE V Representations and Warranties of Post

     A-11  

Section 5.1.

   Organization, Standing and Corporate Power      A-12  

Section 5.2.

   Authority; Noncontravention      A-12  

Section 5.3.

   Governmental Approvals      A-12  

Section 5.4.

   Information Supplied      A-13  

Section 5.5.

   Post Owned BellRing Securities      A-13  

Section 5.6.

   No Brokers or Other Advisors      A-13  

Section 5.7.

   Legal Proceedings      A-14  

Section 5.8.

   Compliance with Laws      A-14  

Section 5.9.

   No Other Representations or Warranties      A-14  

ARTICLE VI Representations and Warranties of SpinCo

     A-14  

Section 6.1.

   Organization, Standing and Power      A-14  

Section 6.2.

   Authority; Noncontravention      A-16  

Section 6.3.

   Governmental Approvals      A-17  

Section 6.4.

   Undisclosed Liabilities      A-17  

Section 6.5.

   Legal Proceedings      A-17  

Section 6.6.

   Compliance with Laws      A-17  

Section 6.7.

   No Other Representations or Warranties      A-17  

ARTICLE VII Representations and Warranties of BellRing

     A-18  

Section 7.1.

   Organization, Standing and Corporate Power      A-18  

Section 7.2.

   Capitalization      A-18  

Section 7.3.

   Authority; Noncontravention      A-19  

Section 7.4.

   Governmental Approvals      A-20  

Section 7.5.

   SEC Documents      A-20  

Section 7.6.

   Information Supplied      A-20  

 

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Section 7.7.

   Brokers and Other Advisors      A-21  

Section 7.8.

   No SpinCo Interest      A-21  

Section 7.9.

   No Other Representations or Warranties      A-21  

ARTICLE VIII Additional Covenants and Agreements

     A-21  

Section 8.1.

   SpinCo Written Consent      A-21  

Section 8.2.

   Post Voting Agreement      A-21  

Section 8.3.

   Preparation of the SpinCo Registration Statements, BellRing Proxy Statement; Stockholder Meeting      A-22  

Section 8.4.

   Conduct of Business by SpinCo Pending the Transactions      A-24  

Section 8.5.

   Conduct of Business by BellRing Pending the Transactions      A-25