POST 8-K
Post Holdings, Inc. (POST)
8-K
2022-11-17
For: 2022-11-16
View Original
Added on
April 09, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The
Securities Exchange Act of 1934
Pursuant to Section 13 OR 15(d) of The
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 16, 2022
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) | |||||||||
| (Address of Principal Executive Offices) | (Zip Code) | ||||||||||
Registrant’s telephone number, including area code: (314 ) 644-7600
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||||||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 2.02. Results of Operations and Financial Condition.
On November 17, 2022, Post Holdings, Inc. (the “Company”) issued a press release announcing results for its fourth fiscal quarter and fiscal year ended September 30, 2022. A copy of the press release is attached hereto as Exhibit 99.1 and incorporated herein by reference.
The information contained in this Item 2.02 and Exhibit 99.1 attached hereto shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that Section, nor shall it be deemed incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such filing.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On November 16, 2022, the Company’s Board of Directors approved the amendment and restatement of the Company’s Amended and Restated Bylaws (the “fifth Amended and Restated Bylaws”), effective November 16, 2022. The fifth Amended and Restated Bylaws revised (i) certain information and procedural requirements for shareholders of the Company to submit proposals to be voted on by shareholders at a meeting in Article I, Section 8, (ii) certain information and procedural requirements for shareholders of the Company to submit director nominations to be voted on by shareholders at a meeting in Article II, Section 1 and (iii) Article II, Section 11 to remove the age restriction for director reelection eligibility.
The foregoing description of the fifth Amended and Restated Bylaws is only a summary of the principal features of the revisions made to the Company’s Amended and Restated Bylaws, does not purport to be complete and is qualified in its entirety by reference to the fifth Amended and Restated Bylaws, a copy of which is filed as Exhibit 3.1 hereto and a marked copy of which showing the amendments is filed as Exhibit 3.2 hereto, which is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. | Description | ||||
| 3.1 | |||||
| 3.2 | |||||
| 99.1 | |||||
| 104 | Cover Page Interactive Data File (the cover page iXBRL tags are embedded within the Inline XBRL document) | ||||
2
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: November 17, 2022 | Post Holdings, Inc. | |||||||
(Registrant) | ||||||||
By: | /s/ Jeff A. Zadoks | |||||||
Name: | Jeff A. Zadoks | |||||||
Title: | EVP & Chief Financial Officer | |||||||
3
Exhibit 3.1
BYLAWS
OF
POST HOLDINGS, INC.
(As Amended and Restated November 16, 2022)
(As Amended and Restated November 16, 2022)
* * *
ARTICLE I - SHAREHOLDERS
SECTION 1. ANNUAL MEETING: The annual meeting of shareholders shall be held at the principal executive office of the Company, or at such other place, if any, either within or without the State of Missouri, or by means of remote communication either solely or in conjunction with a meeting at a physical location, as the Directors may from time to time determine, at 9:00 A.M. on the last Thursday in January in each year, or such other time as may be determined by the Chairman of the Board, or if said day be a legal holiday then on the next succeeding business day, to elect Directors and transact such other business as may properly come before the meeting. At any annual meeting of shareholders only such business shall be conducted, and only such proposals shall be acted upon, as shall have been properly brought before the meeting by the Board of Directors or by a shareholder of record entitled to vote at such meeting.
SECTION 2. SPECIAL MEETINGS: Special meetings of the shareholders or of the holders of any special class of stock of the Company, unless otherwise prescribed by statute or by the Amended and Restated Articles of Incorporation (as they may be amended, restated, or amended and restated from time to time, the “Amended and Restated Articles of Incorporation”), may be called only by the affirmative vote of a majority of the entire Board of Directors or by the Chairman of the Board, or the President by request for such a meeting in writing. Such request shall be delivered to the Secretary of the Company and shall state the purpose or purposes of the proposed meeting. Upon such direction or request, subject to any requirements or limitations imposed by the Company's Amended and Restated Articles of Incorporation, by these Bylaws, or by law, it shall be the duty of the Secretary to call a special meeting of the shareholders to be held at such time as is specified in the request. A special meeting shall be held at the principal executive office of the Company, or at such other place, if any, either within or without the State of Missouri, or by means of remote communication either solely or in conjunction with a meeting at a physical location, as the Directors may determine. Only such business shall be conducted, and only such proposals shall be acted upon, as is specified in the call of any special meeting of shareholders. As used in these Bylaws, the term "entire Board of Directors" means the total number of Directors fixed by, or in accordance with, these Bylaws.
SECTION 3. NOTICE:(a) Unless otherwise required by the laws of Missouri, notice of each meeting of the shareholders, whether annual or special, shall be given except that it shall not be necessary to give notice to any shareholder who properly waives notice before or after the meeting, whether in writing or by electronic transmission or otherwise, and no notice of an adjourned meeting need be given except when required under these Bylaws or by law. Such notice shall state the date, time and place, if any, of the meeting (and the means of remote communications, if any, by which shareholders and proxy holders may be deemed to be present in person at such meeting), and in the case of a special meeting, shall also state the purpose or purposes thereof. Except as otherwise required by law, each notice of a meeting shall be given in any manner permitted by law not less than 10 nor more than 70 days before the meeting and shall state the time and place of the meeting, and unless it is the annual meeting, shall state at whose direction or request the meeting is called and the purposes for which it is called. The attendance of any shareholder at a meeting, without protesting at the beginning of the meeting that the meeting is not lawfully called or convened shall constitute a waiver of notice of such meeting, and the requirement of notice may also be waived in accordance with Section 3 of Article V of these Bylaws. Any previously scheduled meeting of shareholders may be postponed and (unless the Amended and Restated Articles of Incorporation otherwise provide) any special meeting of shareholders may be canceled or postponed, by resolution of the Board of Directors upon public announcement (as defined in Section 8(c) of Article I of these Bylaws) given on or prior to the date previously scheduled for such meeting of shareholders.
(b) Without limiting the manner by which notice may otherwise be given effectively to shareholders, any notice to a shareholder given by the Company may be given by a form of electronic transmission consented to by the shareholder to whom the notice is given. Any such consent shall be revocable by the shareholder by written notice to the Company. Any such consent shall be deemed revoked (i) if the Company is unable to deliver by electronic transmission two consecutive notices given by the Company in accordance with such consent and (ii) such inability becomes known to the Secretary or Assistant Secretary of the Company or to the transfer agent or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action. For purposes of these Bylaws, “electronic
transmission” shall mean any process of communication, not directly involving the physical transfer of paper that is suitable for the retention, retrieval, and reproduction of information by the recipient.
(c) Notice shall be deemed given, if mailed, when deposited in the United States mail with postage prepaid, if addressed to a shareholder at his or her address on the Company’s records. Notice given by electronic transmission shall be deemed given (i) if by facsimile, when directed to a number at which the shareholder has consented to receive notice; (ii) if by electronic mail, when directed to an electronic mail address at which the shareholder has consented to receive notice; (iii) if by posting on an electronic network together with separate notice to the shareholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and (iv) by any other form of electronic transmission, when directed to the shareholder. An affidavit of the Secretary or an Assistant Secretary or the transfer agent or other agent of the Company that notice has been given, whether by a form of electronic transmission or otherwise, shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
SECTION 4. QUORUM: At any meeting of shareholders, a majority of the outstanding shares of the Company entitled to vote thereat, and present in person or represented by proxy, shall constitute a quorum; provided, that in no event shall a quorum consist of less than a majority of the outstanding shares entitled to vote, but less than such quorum shall have the right successively to adjourn the meeting to a specified date not more than 90 days after such adjournment, and no notice need be given of such adjournment to shareholders not present at such meeting. The shareholders present at a meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of such numbers of shareholders as to reduce the remaining shareholders to less than a quorum.
SECTION 5.ACTION BY CONSENT: Unless otherwise prescribed by the Company's Amended and Restated Articles of Incorporation, any action required or permitted to be taken by the shareholders of the Company may, if otherwise allowed by law, be taken without a meeting of shareholders only if consents in writing, setting forth the action so taken, are signed by all of the shareholders entitled to vote with respect to the subject matter thereof.
SECTION 6. VOTING: On all matters to be voted on by holders of voting stock of the Company, each outstanding share of voting stock of the Company shall have one vote. If a quorum is present, the affirmative vote of a majority of the shares represented in person or by proxy and entitled to vote at the meeting shall be the act of the shareholders unless the vote of a greater number of shares is required by the Company's Amended and Restated Articles of Incorporation, by these Bylaws or by law. No person shall be admitted to vote on any shares belonging or hypothecated to the Company. A shareholder may vote either in person or by proxy.
SECTION 7. PROXIES: The following shall constitute valid means by which a shareholder may authorize a person to act for the shareholder as a proxy: (a) a shareholder or the shareholder’s duly authorized attorney-in-fact may execute a writing authorizing another person to act for the shareholder as proxy. Execution may be accomplished by the shareholder or duly authorized attorney-in-fact signing such writing or causing the shareholder’s signature to be affixed to such writing by any reasonable means, including, but not limited to, facsimile signature; or (b) a shareholder may authorize another person to act for the shareholder as proxy by transmitting or authorizing the transmission of a telegram, cablegram, facsimile or other means of electronic transmission, or by telephone, to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such telegram, cablegram, facsimile or other means of electronic transmission, or telephonic transmission shall either set forth or be submitted with information from which it can be determined that the telegram, cablegram, facsimile or other electronic transmission, or telephonic transmission was authorized by the shareholder. If it is determined that such telegrams, cablegrams, facsimiles or other electronic transmissions or telephonic transmissions are valid, the inspectors or, if there are no inspectors, such other persons making such determination shall specify the information upon which they relied.
SECTION 8. BUSINESS TO BE CONDUCTED; ADVANCE NOTICE: (a) At an annual meeting of shareholders, only such business (other than nominations of Directors, which must be made in compliance with, and shall be exclusively governed by Section 1 of Article II of these Bylaws) shall be conducted as shall have been brought before the meeting (i) pursuant to the Company’s notice of the meeting (or any supplement thereto), (ii) by or at the direction of the Board of Directors or any committee thereof or (iii) by any shareholder of the Company who is a shareholder of record at the time of giving of the notice provided for in this Section 8 and at the time of the annual meeting, who shall be entitled to vote at such meeting and who shall have complied with the notice procedures set forth in this Section 8; clause (iii) shall be the exclusive means for a shareholder to submit such business (other than matters properly brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and included in the Company’s notice of meeting before or at an annual meeting of shareholders.
(b) At any special meeting of shareholders, only such business or proposals as are specified in the notice of the meeting may be properly brought before the meeting.
(c) For any such business to be properly brought before an annual meeting by a shareholder of record pursuant to Section 8(a)(iii) of this Article I of these Bylaws, the shareholder must have given timely notice thereof in writing to the Secretary of the Company and any such proposed business must constitute a proper matter for shareholder action. To be timely, a shareholder’s notice, in writing, must be delivered to or mailed to and received by the Secretary of the Company at the principal executive office of the Company not less than 90 days nor more than 120 days prior to the first anniversary of the date of the preceding year’s annual meeting; provided, however, 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 shareholder 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 tenth day following the day on which such public announcement of the date of the annual meeting is first made. In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period (or extend any time period) for the giving of a shareholder’s notice as described above. For purposes of these Bylaws, “public announcement” shall include disclosure in a press release reported by a national news service or in a publicly available document filed or furnished by the Company with the Securities and Exchange Commission pursuant to the Exchange Act.
(d) No business (other than the election of Directors) shall be conducted at an annual meeting except in accordance with the procedures set forth in this Section 8. Except as otherwise provided by law, the Amended and Restated Articles of Incorporation or these Bylaws, the person presiding over the meeting (the “chairman”) may, if the facts warrant, determine that the proposed business was not properly brought before the meeting in accordance with the provisions of this Section 8 (including whether the shareholder or beneficial owner, if any, on whose behalf the proposal is solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of such shareholder’s proposal in compliance with such shareholder’s representation as required by clause (e)(iii)(d) of this Section 8); and if the chairman should so determine, the chairman shall so declare to the meeting, and any such proposed business not properly brought before the meeting shall not be transacted. Notwithstanding the foregoing provisions of this Section 8, a shareholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 8; provided, however that any references in these Bylaws to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the requirements applicable to business proposals to be considered pursuant to Section 8 of this Article I of these Bylaws (including clause (a)(iii) hereof). Nothing in this Section 8 shall be deemed to affect any rights of shareholders to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act. The provisions of this Section 8 shall also govern what constitutes timely notice for purposes of Rule 14a-4(c) of the Exchange Act.
(e) For any such business to be properly brought before a meeting, such shareholder’s notice to the Secretary shall set forth as to each matter he or she proposes to bring before the meeting:
(i)a brief description of the business desired to be brought before the meeting, the text of the proposal or business (including any proposed resolutions for consideration and, in the event that such business includes a proposal to request or otherwise relating to the amendment of these Bylaws, the text of the proposed amendment), the reasons for proposing to conduct such business at the meeting and any material interest of such shareholder (and of the beneficial owner, if any, on whose behalf the proposal is made) in such business;
(ii)a description of all agreements, arrangements and understandings between such shareholder and beneficial owner, if any, and any other person or persons (including their names) in connection with the proposal of such business by such shareholder;
(iii)as to the shareholder giving the notice and the beneficial owner, if any, on whose behalf the proposal is made:
a.the name and address of such shareholder and beneficial owner as they appear in the Company’s shareholder records;
b.(1) the class or series and number of shares of the Company’s capital stock which are directly or indirectly beneficially owned or owned of record by such shareholder and such beneficial owner, (2) any option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the Company or with a value derived in whole or in part from the value of any class or series of shares of the Company, whether or not such instrument or right shall be subject to settlement in the
underlying class or series of capital stock of the Company or otherwise (a “Derivative Instrument”) directly or indirectly owned beneficially by such shareholder or beneficial owner and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of the Company, (3) any proxy, contract, arrangement, understanding or relationship pursuant to which such shareholder or beneficial owner has a right to vote any shares or any security of the Company, (4) any short interest of such shareholder or beneficial owner in any security of the Company (for purposes of these Bylaws, a person shall be deemed to have a short interest in a security if such person directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security), (5) any rights to dividends on the shares of the Company owned beneficially by such shareholder or beneficial owner that are separated or separable from the underlying shares of the Company, (6) any proportionate interest in shares of the Company or Derivative Instruments held, directly or indirectly, by a general or limited partnership or limited liability company in which such shareholder or beneficial owner is a general partner or manager or directly or indirectly, beneficially owns an interest in a general partner or manager, (7) any performance-related fees (other than an asset-based fee) that such shareholder or beneficial owner is entitled to based on any increase or decrease in the value of shares of the Company or Derivative Instruments, if any, as of the date of such notice, including without limitation any such interests held by members of such shareholder’s or beneficial owner’s immediate family sharing the same household, and (8) any other information relating to such shareholder or beneficial owner that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitation of proxies for, as applicable, the proposal and/or the election of directors in a contested election, or is otherwise required, pursuant to Section 14 of the Exchange Act and the rules and regulations thereunder (the foregoing items (1) through (8), individually or collectively, the “Proposing Shareholder Information,” which information shall be supplemented by such shareholder and beneficial owner, if any, not later than 10 days after the record date for the meeting to disclose such ownership or other information as of the record date);
c.a representation that the shareholder is a holder of record of shares of the Company, entitled to vote at the meeting and that the shareholder (or a qualified representative) intends to appear in person at the meeting to propose such business; and
d.a representation that the shareholder or the beneficial owner, if any, intends or is or intends to be part of a group which intends (1) to solicit in favor of the proposal proxies from the holders of shares representing at least the percentage of the Company’s outstanding capital stock required to approve or adopt the proposal by delivering such shareholder’s or beneficial owner’s definitive proxy statement or (2) otherwise to solicit proxies from shareholders in support of such proposal. The meaning of the term “group” shall be within the meaning ascribed to such term under Section 13(d)(3) of the Exchange Act.
The proposed business must not be an improper subject for shareholder action under applicable law, and the shareholder must comply with state law, the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 8.
SECTION 9. ORGANIZATION; CONDUCT OF SHAREHOLDER MEETINGS: (a) Each meeting of shareholders shall be convened by the President, Secretary or other officer or person calling the meeting by notice given in accordance with these Bylaws. The Chairman of the Board, or any person appointed by the Chairman of the Board prior to any meeting of shareholders, shall act as chairman of each meeting of shareholders. In the absence of the Chairman of the Board, or a person appointed by the Chairman of the Board to act as chairman of the meeting, the shareholders present at the meeting shall designate a shareholder present to act as chairman of the meeting. The Secretary of the Company, or a person designated by the chairman shall act as Secretary of each meeting of shareholders. Whenever the Secretary shall act as chairman of the meeting, or shall be absent, the chairman of the meeting shall appoint a shareholder present to act as Secretary of the meeting.
(b) The Board shall be entitled to make such rules or regulations for the conduct of meetings of shareholders as it shall deem appropriate. Subject to such rules and regulations of the Board, if any, the person presiding over the meeting shall have the right and authority to convene and adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of the person presiding over the meeting, are necessary, appropriate or convenient for the proper conduct of the meeting, including, without limitation, establishing an agenda or order of business for the meeting, rules and procedures for maintaining order
at the meeting and the safety of those present, limitations on participation in such meeting to shareholders of record of the Company and their duly authorized and constituted proxies and such other persons as the person presiding over the meeting shall permit, restrictions on entry to the meeting after the time fixed for the commencement thereof, limitations on the time allotted to questions or comments by participants, adjournment of the meeting, either by the person presiding over the meeting or by vote of the shares present in person or by proxy at the meeting, and regulation of the voting or balloting, as applicable, including, without limitation, matters which are to be voted on by ballot, if any. The person presiding over the meeting shall have sole, absolute and complete authority and discretion to decide questions of compliance with the foregoing procedures and his or her ruling thereon shall be final and conclusive. The person presiding over the meeting, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if the person presiding over the meeting should so determine and declare, any such matter or business shall not be transacted or considered. Unless and to the extent determined by the Board or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with rules of parliamentary procedure.
(c) Notwithstanding anything to the contrary in these Bylaws, unless otherwise required by law, if a shareholder (or qualified representative) does not appear at the annual or special meeting of shareholders of the Company to present business or a nomination proposed by such shareholder pursuant to Section 8 of Article I or Section 1 of Article II of these Bylaws, such proposed business shall not be transacted and such nomination shall be disregarded, as the case may be, even though proxies in respect of such vote may have been received by the Company. In order to be considered a qualified representative of the shareholder for purposes of Section 8 of Article I or Section 1 of Article II, a person must be a duly authorized officer, manager or partner of such shareholder or must be authorized by a writing executed by such shareholder or an electronic transmission delivered by such shareholder to act for such shareholder as proxy at the meeting of shareholders, and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of shareholders.
ARTICLE II - BOARD OF DIRECTORS
SECTION 1. ELECTION; TENURE; QUALIFICATIONS; NOMINATIONS: (a) The Board of Directors shall consist of not less than five nor more than twelve members, such Directors to be classified in respect of the time for which they shall severally hold office by dividing them into three classes of approximately equal size, and the number of Directors shall be fixed by a resolution of the Board of Directors adopted from time to time.
(b) In the event of any increase or decrease in the number of Directors, the number of Directors assigned to each class shall be adjusted as may be necessary so that all classes shall be 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. No reduction in the number of Directors shall affect the term of office of any incumbent Director. Subject to the foregoing, the Board of Directors shall determine the class or classes to which any Director shall be assigned and the class or classes which shall be increased or decreased in the event of any increase or decrease in the number of Directors.
(c) With respect to the members of the Board of Directors in office on February 4, 2012, the first class of Directors shall hold office until the first annual meeting of shareholders, the second class of Directors shall hold office until the second annual meeting of shareholders, and the third class of Directors shall hold office until the third annual meeting of shareholders. Thereafter, Directors shall be elected to hold office for a term of three years, and at each annual meeting of shareholders the successors to the class of Directors whose term shall then expire shall be elected for a term expiring at the third succeeding annual meeting after that election or until their successors shall be elected and qualified.
(d) In addition to the qualifications set out in Section 11 of this Article II, only persons who are nominated in accordance with the procedures set forth in these Bylaws shall be eligible as Directors at a meeting of shareholders. Nominations of persons for election to the Board may be made at an annual meeting of shareholders (i) pursuant to the Company’s notice of the meeting (or any supplement thereto), (ii) by or at the direction of the Board or any committee thereof, or (iii) by any shareholder of the Company who is a shareholder of record of the Company at the time of giving of the notice provided for in this Section 1 and at the time of the annual meeting, who shall be entitled to vote for the election of Directors at the meeting and who shall have complied with the notice procedures set forth in this Section 1; clause (iii) shall be the exclusive means for a shareholder to make nominations of persons for election to the Board of Directors at an annual meeting of shareholders.
For any nominations to be properly brought before an annual or special meeting of shareholders pursuant to clause (d)(iii) of this paragraph of these Bylaws, the shareholder must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a shareholder’s notice in writing must be delivered or mailed to and received by the Secretary of the Company at the principal executive office of the Company (i) in the
case of an annual meeting, not less than 120 days nor more than 150 days prior to the first anniversary of the preceding year’s annual meeting (except that in the case of the Company’s annual meeting to be held in 2023, not less than 90 days nor more than 120 days prior to the first anniversary of the preceding year’s annual meeting), provided, however, 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 shareholder must be received not earlier than the 150th day prior to the date of such annual meeting and not later than the close of business on the later of the 120th day prior to the date of such annual meeting or the tenth day following the day on which public announcement (as defined in Section 8(c) of Article I of these Bylaws) of the date of the annual meeting is first made; or (ii) in the case of a special meeting at which the Board of Directors gives notice that Directors are to be elected, not earlier than the 150th day prior to the date of such special meeting and not later than the close of business on the later of the 120th day prior to the date of such special meeting or the tenth day following the day on which public announcement of the date of the meeting and of the nominees proposed by the Board of Directors to be elected at such meeting is first made. In no event shall any adjournment or postponement of a meeting or the announcement thereof commence a new time period (or extend any time period) for the giving of a shareholder’s notice as described above. In the case of a special meeting of shareholders, nominations of persons for election to the Board may be made at a special meeting of shareholders at which Directors are to be elected pursuant to the Company’s notice of meeting (1) by or at the direction of the Board or any committee thereof or (2) provided that the Board has determined that Directors shall be elected at such meeting, by any shareholder of the Company who is a shareholder of record at the time the notice provided in this Section 1(d) is delivered to the Secretary of the Company, who is entitled to vote at the meeting upon such election and who complies with the notice provisions of this Section 1(d) and Section 1(e) through Section 1(h) of this Article II, inclusive.
At the request of the Board, any person nominated by the Board for election as a Director shall furnish to the Secretary that information required to be set forth in a shareholder’s notice of nomination which pertains to the nominee. Notwithstanding anything in this Section 1 to the contrary, in the event that the number of Directors to be elected to the Board at an annual meeting is increased effective at the annual meeting and there is no public announcement by the Company naming all the nominees proposed by the Board for the additional directorships at least 70 days prior to the first anniversary of the preceding year’s annual meeting, a shareholder’s notice required by this Section 1 shall also be considered timely, but only with respect to nominees for such additional directorships, if it shall be delivered to the Secretary at the principal executive office of the Company not later than the close of business on the tenth day following the day on which such public announcement is first made by the Company.
(e) For nominations to be properly brought before an annual or special meeting, such shareholder’s notice to the Secretary shall set forth as to each person whom the shareholder proposes to nominate for election or re-election as a Director:
(i)the name, age, business address and residence of such person;
(ii)the principal occupation or employment of such person currently and for the previous five years;
(iii)a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships between or among such shareholder and beneficial owner, if any, on whose behalf the nomination is being made, and their respective affiliates and associates or others acting in concert therewith (on the one hand) and each proposed nominee and his or her respective affiliates and associates or others acting in concert therewith (on the other hand), including without limitation all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, if any, or any affiliate or associate thereof or person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant;
(iv)such person’s representation that he or she is eligible to serve as a Director pursuant to Section 11 of Article II of these Bylaws and whether such person has acted in any manner contrary to the best interest of the Company, including but not limited to, the violation of any Federal or state law, or breach of any agreement between that person and the Company relating to his or her services as a Director, employee or agent of the Company;
(v)such person’s written consent to being named as a nominee and to serving as a Director if elected; and
(vi)any other information relating to such person that would be required to be disclosed in a proxy statement or other filing required to be made in connection with the solicitation of proxies for election of directors in a contested election, or is otherwise required, pursuant to Section 14 of the Exchange Act and the rules and regulations thereunder.
(f) Such shareholder’s notice shall also set forth as to the shareholder(s) giving the notice and the beneficial owner, if any, on whose behalf the nomination is made;
(i)the name and address of such shareholder and beneficial owner, as they appear in the Company’s shareholder records;
(ii)the Proposing Shareholder Information as defined in Section 8(e) of Article I of these Bylaws;
(iii)a representation that the shareholder is a holder of record of shares of the Company entitled to vote at such meeting and that the shareholder (or a qualified representative) intends to appear in person at the meeting to nominate the person or persons specified in the notice;
(iv)any other information relating to such shareholder or beneficial owner that would be required to be disclosed in a proxy statement or other filing required to be made in connection with the solicitation of proxies for the election of directors in a contested election, or is otherwise required pursuant to Section 14 of the Exchange Act and the rules and regulations thereunder; and
(v)a representation that the shareholder or beneficial owner, if any, intends or is or intends to be part of a group (as defined in Section 8(e) of Article I of these Bylaws) which intends (A) to solicit in favor of such nominee proxies from the holders of shares representing at least 67% of the voting power of shares entitled to vote on the election of directors by delivering such shareholder’s or beneficial owner’s definitive proxy statement and (B) to include a statement to that effect in the shareholder’s or beneficial owner’s proxy statement or form of proxy.
(g) In addition to the qualifications set out in Section 11 of this Article II, to be eligible to be a nominee for election or reelection as a Director of the Company, the prospective nominee (whether nominated by or at the direction of the Board of Directors or by a shareholder), or someone acting on such prospective nominee’s behalf, must deliver (in accordance with any applicable time periods prescribed for delivery of notice under this Section 1) to the Secretary at the principal executive office of the Company a written questionnaire providing such information with respect to the background and qualification of such person and the background of any other person or entity on whose behalf the nomination is being made that would be required to be disclosed to shareholders pursuant to applicable law or the rules and regulations of any stock exchange applicable to the Company, including without limitation (i) all information concerning such persons that would be required to be disclosed in solicitation of proxies for election of Directors pursuant to and in accordance with Regulation 14A under the Exchange Act and (ii) any information the Company may reasonably request to determine the eligibility of the proposed nominee to serve as an independent Director or that could be material to a reasonable shareholder’s understanding of the independence or lack thereof of such nominee (which questionnaire shall be provided by the Secretary upon written request). The prospective nominee must also provide a written representation and agreement, in the form provided by the Secretary upon written request, that such prospective nominee: (A) is not and will not become a party to (1) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such prospective nominee, if elected as a Director of the Company, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Company or (2) any Voting Commitment that could limit or interfere with such prospective nominee’s ability to comply, if elected as a Director of the Company, with such prospective nominee’s fiduciary duties under applicable law; (B) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a Director that has not been disclosed therein; and (C) would be in compliance if elected as a Director of the Company, and will comply with all applicable corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Company. For purposes of this section 1(g) a “nominee” shall include any person being considered to fill a vacancy on the Board of Directors.
(h) A shareholder or beneficial owner, if any, who has delivered a notice of nomination pursuant to this Section 1 shall promptly certify to the Company, and notify the Company in writing, that it has met the requirements set forth in these Bylaws and of Rule 14a-19(a) of the Exchange Act (including, for the avoidance of doubt, Rule 14a-19(a)(3) which provides that “No person may solicit proxies in support of director nominees other than the registrant’s nominees unless such person: . . . Solicits the holders of shares representing at least 67% of the voting power of shares entitled to vote on the election of directors and includes a statement to that effect in
the proxy statement or form of proxy.”) and upon request of the Company shall, not later than five (5) business days prior to the date of the applicable meeting of shareholders, deliver to the Company reasonable evidence of such compliance.
No person shall be eligible for election as a Director of the Company unless the procedures and requirements set forth in this Section 1 are followed, all applicable requirements of the Exchange Act and the rules and regulations thereunder are satisfied and such person is qualified under Section 11 of this Article II. Except as otherwise provided by law, the Amended and Restated Articles of Incorporation or these Bylaws, the person presiding over the meeting (the “chairman”) may, if the facts warrant, determine that a nominee is not qualified, the procedures and requirements prescribed in this Section 1 (including whether the shareholder or beneficial owner, if any, on whose behalf the nomination is made solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of such shareholder’s nominee in compliance with such shareholder’s representation as required by clause (f)(v) of this Section 1) were not followed or all applicable requirements of the Exchange Act and the rules and regulations thereunder were not satisfied; and if the chairman should so determine, the chairman shall so declare to the meeting, and the defective nomination shall be disregarded. Notwithstanding the foregoing provisions of this Section 1, a shareholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 1; provided, however that any references in these Bylaws to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the requirements applicable to nominations to be considered pursuant to Section 1 of this Article II of these Bylaws (including paragraph (d) hereof). Nothing in this Section 1 shall be deemed to affect any rights of the holders of any series of preferred stock of the Company to elect Directors pursuant to any applicable provisions of the Amended and Restated Articles of Incorporation.
SECTION 2. POWERS: The Board of Directors shall have power to manage and control the property and affairs of the Company, and to do all such lawful acts and things which, in their absolute judgment and discretion, they may deem necessary and appropriate for the expedient conduct and furtherance of the Company's business.
SECTION 3. CHAIRMAN: The Directors shall elect one of their members to be Chairman of the Board. The Chairman shall preside at all meetings of the Board, unless absent from such meeting, in which case, if there is a quorum, the Directors present may elect another Director to preside at such meeting.
SECTION 4. MEETINGS: (a) Regular meetings of the Board shall be held on such days and at such times and places either within or without the State of Missouri as shall from time to time be fixed by the Board of Directors. Notice of such regular meetings need not be given. Special meetings of the Board may be held at any day, time and place, within or without the State of Missouri, upon the call of the Chairman of the Board, President or Secretary of the Company, by oral, written, email, telefax or telegraphic notice duly given, sent or mailed to each Director, at such Director's last known address, not less than twenty-four hours before such meeting; provided, however, that any Director may, at any time, in writing or by telegram, waive notice of any meeting at which he or she may not be or may not have been present. Attendance of a Director at any meeting shall constitute a waiver of notice of the meeting except where a Director attends a meeting for the sole and express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any meeting of the Board need be specified in the notice or waiver of notice of such meeting. Rules of procedure for the conduct of such meetings may be adopted by resolution of the Board of Directors.
(b) Members of the Board of Directors or of any committee designated by the Board of Directors may participate in a meeting of the Board of Directors or committee by means of conference telephone or similar communications equipment whereby all persons participating in the meeting can hear each other, and participation in a meeting in this manner shall constitute presence in person at the meeting.
SECTION 5. ACTION BY CONSENT: Any action which is required to be or may be taken at a meeting of the Directors may be taken without a meeting if consents in writing, setting forth the action so taken, are signed by all the Directors.
SECTION 6. QUORUM: A majority of the Board of Directors then in office shall constitute a quorum at all meetings of the Board, and the act of the majority of the Directors present at any meeting at which a quorum is present shall be the act of the Board of Directors, unless a greater number of Directors is required by the Company's Amended and Restated Articles of Incorporation, these Bylaws or by law. At any meeting of Directors, whether or not a quorum is present, the Directors present thereat may adjourn the same from time to time without notice other than announcement at the meeting. A Director who may be disqualified, by reason of personal interest, from voting on any particular matter before a meeting of the Board may nevertheless be counted for the purpose of constituting a quorum of the Board.
SECTION 7. RESIGNATION OF DIRECTORS: Any Director of the Company may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board, the President, or the Secretary of the Company. Any such resignation shall take effect at the time specified therein or, if no time is specified, upon receipt thereof by the Board of Directors or one of the above-named officers of the Company; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective.
SECTION 8. VACANCIES: Vacancies on the Board of Directors and newly created directorships resulting from any increase in the number of Directors to constitute the Board of Directors may be filled only by a majority of the Directors then in office, although less than a quorum, or by a sole remaining Director, until the next election of Directors by the shareholders of the Company at which such class is elected.
SECTION 9. COMPENSATION OF DIRECTORS: The Board of Directors may, by resolution passed by a majority of the Board of Directors, fix the terms and amount of compensation payable to any person for his or her services as Director, if he or she is not otherwise compensated for services rendered as an officer or employee of the Company; provided, however, that any Director may be reimbursed for reasonable and necessary expenses of attending meetings of the Board of Directors, or otherwise incurred for any Company purpose; and provided, further, that members of any special or standing committee of Directors may also be allowed compensation and expenses similarly incurred. Nothing herein contained shall be construed to preclude any Director from serving the Company in any other capacity and receiving compensation therefor.
SECTION 10. COMMITTEES OF THE BOARD OF DIRECTORS: The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate two or more Directors to constitute an Executive Committee of the Board of Directors which shall have and exercise all of the authority of the Board of Directors in the management of the Company, in the intervals between meetings of the Board of Directors. In addition, the Board of Directors may appoint any other committee or committees, with such members, functions, and powers as the Board of Directors may designate. The Board of Directors shall have the power at any time to fill vacancies in, to change the size or membership of, or to dissolve, any one or more of such committees. Each such committee shall have such name as may be determined by the Board of Directors, and shall keep regular minutes of its proceedings and report the same to the Board of Directors for approval as required. At all meetings of a committee, a majority of the committee members then in office shall constitute a quorum for the purpose of transacting business, and the acts of a majority of the committee members present at any meeting at which there is a quorum shall be the acts of the committee. A Director who may be disqualified, by reason of personal interest, from voting on any particular matter before a meeting of a committee may nevertheless be counted for the purpose of constituting a quorum of the committee. Any action which is required to be or may be taken at a meeting of a committee of Directors may be taken without a meeting if consents in writing, setting forth the action so taken, are signed by all the members of the committee.
SECTION 11. QUALIFICATIONS: No person shall be qualified to be elected and to hold office as a Director if such person is determined by a majority of the Board of Directors to have acted in a manner contrary to the best interest of the Company, including, but not limited to, the violation of any Federal or state law, or breach of any agreement between that Director and the Company relating to his or her services as a Director, employee or agent of the Company. A Director need not be a shareholder.
ARTICLE III - OFFICERS
SECTION 1. OFFICERS; ELECTION: The officers of the Company shall be a Chief Executive Officer, a President and a Secretary, each of whom shall be elected by the Board. The Chairman of the Board may from time to time elect and appoint one or more Vice Chairmen of the Board. In addition, the Board or the President may from time to time elect and appoint the senior officers of the Company, including one or more Executive Vice Presidents, one or more Senior Vice Presidents, a Controller, a Treasurer, and such other officers as the Board may deem appropriate. The President may elect and appoint other officers of the Company, including one or more Assistant Secretaries, Assistant Treasurers, Assistant Controllers and other junior officers. Any two or more offices may be held by the same person except the offices of Chairman of the Board and Secretary.
SECTION 2. TERMS; COMPENSATION: All officers of the Company shall hold their respective offices until the first meeting of the Board of Directors after the next succeeding election of the Board of Directors and until their successors shall have been duly elected and qualified, or until their earlier death, resignation or removal. The compensation each officer is to receive from the Company shall be determined in such manner as the Board of Directors shall from time to time prescribe.
SECTION 3. POWERS; DUTIES: Each officer of the Company shall have such powers and duties as may be prescribed by resolution of the Board of Directors or as may be assigned by the Board of Directors or the Chief Executive Officer of the Company.
SECTION 4. REMOVAL: Any officer or agent elected or appointed by the Board of Directors may be removed by the Board of Directors, with or without cause, whenever in its judgment the best interest of the Company will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the officer so removed. The Chairman of the Board may suspend any officer until the Board of Directors shall next convene. Any vacancy occurring in any office of the Company shall be filled by the Board of Directors.
ARTICLE IV - CAPITAL STOCK
SECTION 1. STOCK CERTIFICATES AND UNCERTIFICATED SHARES: (a) The shares of the Company shall be represented by certificates, provided, however, that the Board may provide by resolution that some or all of any classes or series of the Company’s stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Company. Notwithstanding the foregoing, every holder of stock represented by certificates and, upon request, every holder of uncertificated shares shall be entitled to have a certificate, in any form approved by the Board, signed by the Chairman of the Board, the Chief Executive Officer or the President or a Vice President of the Company and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer of the Company, and shall bear the corporate seal of the Company. If the certificate is countersigned by a transfer agent or registrar other than the Company or its employee, any other signature and the corporate seal appearing on certificates of stock may be facsimile, engraved or printed. In case any such officer, transfer agent or registrar who has signed or whose facsimile signature appears on any such certificate shall have ceased to be such officer, transfer agent or registrar before the certificate is issued, such certificate may nevertheless be issued by the Company with the same effect as if such officer, transfer agent or registrar had not ceased to be such officer, transfer agent or registrar at the date of its issue. Every holder of uncertificated shares shall be entitled to receive a statement of holdings as evidence of share ownership.
(b) The Company shall not issue a fraction of a share or a certificate for a fractional share; however, the Board of Directors may issue, in lieu of any fractional share, scrip or other evidence of ownership upon such terms and conditions as it may deem advisable.
(c) All certificates of stock of each class and series shall be numbered appropriately.
SECTION 2. RECORD OWNERSHIP: The Company shall maintain a record of the name and address of the holder of each share of Company stock, the number of shares represented thereby, and the date of issue and the number thereof. The Company shall be entitled to treat the holder of record of any share of stock as the holder in fact thereof, and accordingly it will not be bound to recognize any legal, equitable or other claim of interest in such share on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Missouri.
SECTION 3. TRANSFERS: Transfers of shares of stock shall be made on the books of the Company only by direction of the holder thereof in person or by his or her duly authorized attorney or legal representative. Upon transfer of certificated shares, the old certificates shall be surrendered to the Company by the delivery thereof to the person in charge of the stock and transfer books and ledgers, or to such other persons as the Board may designate, by whom they shall be cancelled and new certificates shall thereupon be issued. In the case of uncertificated shares, transfer shall be made only upon receipt of transfer documentation reasonably acceptable to the Company.
SECTION 4. TRANSFER AGENTS; REGISTRARS: The Board of Directors shall, by resolution, from time to time appoint one or more Transfer Agents, that may be officers or employees of the Company, to make transfers of shares of stock of the Company, and one or more Registrars to register shares of stock issued by or on behalf of the Company. The Board of Directors may adopt such rules as it may deem expedient concerning the issue, transfer and registration of shares of stock of the Company.
SECTION 5. LOST CERTIFICATES: The Company may issue a new certificate in place of any certificate theretofore issued by it which is alleged to have been lost, stolen or destroyed and the Board of Directors may require the owner of the lost, stolen or destroyed certificate or the owner's legal representative to give the Company a bond in a sum and in a form approved by the Board of Directors, and with a surety or sureties which the Board of Directors finds satisfactory, to indemnify the Company and its transfer agents and registrars, if any, against any claim or liability that may be asserted against or incurred by it or any transfer agent or registrar on account of the alleged loss, theft or destruction of any certificate or the issuance of any new certificate. A new certificate may be issued without requiring any bond when, in the judgment of the Board of Directors, it is proper to do so. The Board of Directors may delegate to any officer or officers of the Company any of the powers and authorities contained in this section.
SECTION 6. TRANSFER BOOKS; RECORD DATES: The Board of Directors shall have power to close the stock transfer books of the Company as permitted by law; provided, however, that in lieu of closing the said books, the Board of Directors may fix in advance a date, not exceeding seventy days preceding the date of any meeting of shareholders, or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of shares shall go into effect, as a record date for the determination of the shareholders entitled to notice of, and to vote at, any such meeting, and any adjournment or postponement thereof, or entitled to receive payment of any such dividend, or to any such allotment of rights, or to exercise the rights in respect of any such change, conversion or exchange of shares, and in such case such shareholders and only such shareholders as shall be shareholders of record on the date of closing the transfer books or on the record date so fixed shall be entitled to notice of, and to vote at, such meeting, and any adjournment or postponement thereof, or to receive payment of such dividend, or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any shares after such date of closing of the transfer books or such record date fixed as aforesaid. If the Board of Directors does not close the transfer books or set a record date for the determination of the shareholders entitled to notice of and to vote at any meeting of shareholders, only the shareholders who are shareholders of record at the close of business on the twentieth day preceding the date of the meeting shall be entitled to notice of and to vote at the meeting and upon any adjournment or postponement of the meeting, except that if prior to the meeting written waivers of notice of the meeting are signed and delivered to the Company by all of the shareholders of record at the time the meeting is convened, only the shareholders who are shareholders of record at the time the meeting is convened shall be entitled to vote at the meeting and any adjournment or postponement of the meeting.
ARTICLE V - SEAL, BOOKS, FISCAL YEAR, AMENDMENT
SECTION 1. SEAL: The corporate seal of the Company shall be a circular seal; the words "POST HOLDINGS, INC." shall be embossed in the outer margin; and the words "CORPORATE SEAL 2011 MISSOURI" shall be embossed in the central circular field; an impression of the same is set forth hereon.
SECTION 2. PLACE FOR KEEPING BOOKS AND SEAL: The books of the Company, and its corporate minutes and corporate seal, shall be kept in the custody of the Secretary at the principal executive office of the Company, or at such other place or places and in the custody of such other person or persons as the Board of Directors may from time to time determine.
SECTION 3. NOTICES(a) Whenever, under the provisions of applicable law, the Amended and Restated Articles of Incorporation or these Bylaws, written notice is required to be given to any Director or shareholder, it shall not be construed to require personal notice, but such notice may be given by mail, by depositing the same in the post office or in a letter box, in a post-paid sealed wrapper, addressed to such Director or shareholder at such address as appears on the books of the Company, and such notice shall be deemed to be given at the time when the same shall be thus mailed, or may be given by telefax, telegraphic or other electronic transmission to the extent authorized or allowed by law.
(b) Any person may waive any notice required to be given under these Bylaws. Whenever notice is required to be given pursuant to the law of Missouri, the Amended and Restated Articles of Incorporation or these Bylaws, a written waiver thereof, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting of shareholders or the Board of Directors or a committee thereof shall constitute a waiver of notice of such meeting, except when the shareholder or Director attends such meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the shareholders or the Board of Directors or committee thereof need be specified in any written waiver of notice or any waiver by electronic transmission unless so required by the Amended and Restated Articles of Incorporation or by these Bylaws.
SECTION 4. FISCAL YEAR: The fiscal year of the Company shall commence with the first day of October in each year.
SECTION 5. AMENDMENT: Two-thirds of all of the members of the Board of Directors may amend, alter, change or repeal any provision of these Bylaws; provided, that the Board of Directors shall not have the power to amend, alter, change or repeal this Article V, Section 5 in any manner that alters the shareholders’ power to amend, alter, change or repeal these Bylaws. The shareholders of the Company also may amend, alter, change or repeal any provision of these Bylaws upon the affirmative vote of a majority of all of the outstanding shares of capital stock of the Company entitled to vote thereon; provided, that the shareholders shall not have the power to amend, alter, change or repeal this Article V, Section 5 in any manner that alters the Board of Directors’ power to amend, alter, change or repeal these Bylaws.
Exhibit 3.2
BYLAWS
OF
POST HOLDINGS, INC.
(As Amended and Restated November 18, 2020November 16, 2022)
(As Amended and Restated November 18, 2020November 16, 2022)
* * *
ARTICLE I - SHAREHOLDERS
SECTION 1. ANNUAL MEETING: The annual meeting of shareholders shall be held at the principal executive office of the Company, or at such other place, if any, either within or without the State of Missouri, or by means of remote communication either solely or in conjunction with a meeting at a physical location, as the Directors may from time to time determine, at 9:00 A.M. on the last Thursday in January in each year, or such other time as may be determined by the Chairman of the Board, or if said day be a legal holiday then on the next succeeding business day, to elect Directors and transact such other business as may properly come before the meeting. At any annual meeting of shareholders only such business shall be conducted, and only such proposals shall be acted upon, as shall have been properly brought before the meeting by the Board of Directors or by a shareholder of record entitled to vote at such meeting.
SECTION 2. SPECIAL MEETINGS: Special meetings of the shareholders or of the holders of any special class of stock of the Company, unless otherwise prescribed by statute or by the Amended and Restated Articles of Incorporation (as they may be amended, restated, or amended and restated from time to time, the “Amended and Restated Articles of Incorporation”), may be called only by the affirmative vote of a majority of the entire Board of Directors or by the Chairman of the Board, or the President by request for such a meeting in writing. Such request shall be delivered to the Secretary of the Company and shall state the purpose or purposes of the proposed meeting. Upon such direction or request, subject to any requirements or limitations imposed by the Company's Amended and Restated Articles of Incorporation, by these Bylaws, or by law, it shall be the duty of the Secretary to call a special meeting of the shareholders to be held at such time as is specified in the request. A special meeting shall be held at the principal executive office of the Company, or at such other place, if any, either within or without the State of Missouri, or by means of remote communication either solely or in conjunction with a meeting at a physical location, as the Directors may determine. Only such business shall be conducted, and only such proposals shall be acted upon, as is specified in the call of any special meeting of shareholders. As used in these Bylaws, the term "entire Board of Directors" means the total number of Directors fixed by, or in accordance with, these Bylaws.
SECTION 3. NOTICE:(a) Unless otherwise required by the laws of Missouri, notice of each meeting of the shareholders, whether annual or special, shall be given except that it shall not be necessary to give notice to any shareholder who properly waives notice before or after the meeting, whether in writing or by electronic transmission or otherwise, and no notice of an adjourned meeting need be given except when required under these Bylaws or by law. Such notice shall state the date, time and place, if any, of the meeting (and the means of remote communications, if any, by which shareholders and proxy holders may be deemed to be present in person at such meeting), and in the case of a special meeting, shall also state the purpose or purposes thereof. Except as otherwise required by law, each notice of a meeting shall be given in any manner permitted by law not less than 10 nor more than 70 days before the meeting and shall state the time and place of the meeting, and unless it is the annual meeting, shall state at whose direction or request the meeting is called and the purposes for which it is called. The attendance of any shareholder at a meeting, without protesting at the beginning of the meeting that the meeting is not lawfully called or convened shall constitute a waiver of notice of such meeting, and the requirement of notice may also be waived in accordance with Section 3 of Article V of these Bylaws. Any previously scheduled meeting of shareholders may be postponed and (unless the Amended and Restated Articles of Incorporation otherwise provide) any special meeting of shareholders may be canceled or postponed, by resolution of the Board of Directors upon public announcement (as defined in Section 8(c) of Article I of these Bylaws) given on or prior to the date previously scheduled for such meeting of shareholders.
(b) Without limiting the manner by which notice may otherwise be given effectively to shareholders, any notice to a shareholder given by the Company may be given by a form of electronic transmission consented to by the shareholder to whom the notice is given. Any such consent shall be revocable by the shareholder by written notice to the Company. Any such consent shall be deemed revoked (i) if the Company is unable to deliver by electronic transmission two consecutive notices given by the Company in accordance with such consent and (ii) such inability becomes known to the Secretary or Assistant Secretary of the Company or to the transfer agent or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat such inability
as a revocation shall not invalidate any meeting or other action. For purposes of these Bylaws, “electronic transmission” shall mean any process of communication, not directly involving the physical transfer of paper that is suitable for the retention, retrieval, and reproduction of information by the recipient.
(c) Notice shall be deemed given, if mailed, when deposited in the United States mail with postage prepaid, if addressed to a shareholder at his or her address on the Company’s records. Notice given by electronic transmission shall be deemed given (i) if by facsimile, when directed to a number at which the shareholder has consented to receive notice; (ii) if by electronic mail, when directed to an electronic mail address at which the shareholder has consented to receive notice; (iii) if by posting on an electronic network together with separate notice to the shareholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and (iv) by any other form of electronic transmission, when directed to the shareholder. An affidavit of the Secretary or an Assistant Secretary or the transfer agent or other agent of the Company that notice has been given, whether by a form of electronic transmission or otherwise, shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
SECTION 4. QUORUM: At any meeting of shareholders, a majority of the outstanding shares of the Company entitled to vote thereat, and present in person or represented by proxy, shall constitute a quorum; provided, that in no event shall a quorum consist of less than a majority of the outstanding shares entitled to vote, but less than such quorum shall have the right successively to adjourn the meeting to a specified date not more than 90 days after such adjournment, and no notice need be given of such adjournment to shareholders not present at such meeting. The shareholders present at a meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of such numbers of shareholders as to reduce the remaining shareholders to less than a quorum.
SECTION 5.ACTION BY CONSENT: Unless otherwise prescribed by the Company's Amended and Restated Articles of Incorporation, any action required or permitted to be taken by the shareholders of the Company may, if otherwise allowed by law, be taken without a meeting of shareholders only if consents in writing, setting forth the action so taken, are signed by all of the shareholders entitled to vote with respect to the subject matter thereof.
SECTION 6. VOTING: On all matters to be voted on by holders of voting stock of the Company, each outstanding share of voting stock of the Company shall have one vote. If a quorum is present, the affirmative vote of a majority of the shares represented in person or by proxy and entitled to vote at the meeting shall be the act of the shareholders unless the vote of a greater number of shares is required by the Company's Amended and Restated Articles of Incorporation, by these Bylaws or by law. No person shall be admitted to vote on any shares belonging or hypothecated to the Company. A shareholder may vote either in person or by proxy.
SECTION 7. PROXIES: The following shall constitute valid means by which a shareholder may authorize a person to act for the shareholder as a proxy: (a) a shareholder or the shareholder’s duly authorized attorney-in-fact may execute a writing authorizing another person to act for the shareholder as proxy. Execution may be accomplished by the shareholder or duly authorized attorney-in-fact signing such writing or causing the shareholder’s signature to be affixed to such writing by any reasonable means, including, but not limited to, facsimile signature; or (b) a shareholder may authorize another person to act for the shareholder as proxy by transmitting or authorizing the transmission of a telegram, cablegram, facsimile or other means of electronic transmission, or by telephone, to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such telegram, cablegram, facsimile or other means of electronic transmission, or telephonic transmission shall either set forth or be submitted with information from which it can be determined that the telegram, cablegram, facsimile or other electronic transmission, or telephonic transmission was authorized by the shareholder. If it is determined that such telegrams, cablegrams, facsimiles or other electronic transmissions or telephonic transmissions are valid, the inspectors or, if there are no inspectors, such other persons making such determination shall specify the information upon which they relied.
SECTION 8. BUSINESS TO BE CONDUCTED; ADVANCE NOTICE: (a) At an annual meeting of shareholders, only such business (other than nominations of Directors, which must be made in compliance with, and shall be exclusively governed by Section 1 of Article II of these Bylaws) shall be conducted as shall have been brought before the meeting (i) pursuant to the Company’s notice of the meeting (or any supplement thereto), (ii) by or at the direction of the Board of Directors or any committee thereof or (iii) by any shareholder of the Company who is a shareholder of record at the time of giving of the notice provided for in this Section 8 and at the time of the annual meeting, who shall be entitled to vote at such meeting and who shall have complied with the notice procedures set forth in this Section 8; clause (iii) shall be the exclusive means for a shareholder to submit such business (other than matters properly brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and included in the Company’s notice of meeting before or at an annual meeting of shareholders.
(b) At any special meeting of shareholders, only such business or proposals as are specified in the notice of the meeting may be properly brought before the meeting.
(c) For any such business to be properly brought before an annual meeting by a shareholder of record pursuant to Section 8(a)(iii) of this Article I of these Bylaws, the shareholder must have given timely notice thereof in writing to the Secretary of the Company and any such proposed business must constitute a proper matter for shareholder action. To be timely, a shareholder’s notice, in writing, must be delivered to or mailed to and received by the Secretary of the Company at the principal executive office of the Company not less than 90 days nor more than 120 days prior to the first anniversary of the date of the preceding year’s annual meeting; provided, however, 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 shareholder 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 tenth day following the day on which such public announcement of the date of the annual meeting is first made. In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period (or extend any time period) for the giving of a shareholder’s notice as described above. For purposes of these Bylaws, “public announcement” shall include disclosure in a press release reported by a national news service or in a publicly available document filed or furnished by the Company with the Securities and Exchange Commission pursuant to the Exchange Act.
(d) No business (other than the election of Directors) shall be conducted at an annual meeting except in accordance with the procedures set forth in this Section 8. Except as otherwise provided by law, the Amended and Restated Articles of Incorporation or these Bylaws, the person presiding over the meeting (the “chairman”) may, if the facts warrant, determine that the proposed business was not properly brought before the meeting in accordance with the provisions of this Section 8 (including whether the shareholder or beneficial owner, if any, on whose behalf the proposal is solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of such shareholder’s proposal in compliance with such shareholder’s representation as required by clause (e)(iii)(d) of this Section 8); and if the chairman should so determine, the chairman shall so declare to the meeting, and any such proposed business not properly brought before the meeting shall not be transacted. Notwithstanding the foregoing provisions of this Section 8, a shareholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 8; provided, however that any references in these Bylaws to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the requirements applicable to business proposals to be considered pursuant to Section 8 of this Article I of these Bylaws (including clause (a)(iii) hereof). Nothing in this Section 8 shall be deemed to affect any rights of shareholders to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act. The provisions of this Section 8 shall also govern what constitutes timely notice for purposes of Rule 14a-4(c) of the Exchange Act.
(e) For any such business to be properly brought before a meeting, such shareholder’s notice to the Secretary shall set forth as to each matter he or she proposes to bring before the meeting:
(i)a brief description of the business desired to be brought before the meeting, the text of the proposal or business (including any proposed resolutions for consideration and, in the event that such business includes a proposal to request or otherwise relating to the amendment of these Bylaws, the text of the proposed amendment), the reasons for proposing to conduct such business at the meeting and any material interest of such shareholder (and of the beneficial owner, if any, on whose behalf the proposal is made) in such business;
(ii)a description of all agreements, arrangements and understandings between such shareholder and beneficial owner, if any, and any other person or persons (including their names) in connection with the proposal of such business by such shareholder;
(iii)as to the shareholder giving the notice and the beneficial owner, if any, on whose behalf the proposal is made:
a.the name and address of such shareholder and beneficial owner as they appear in the Company’s shareholder records;
b.(1) the class or series and number of shares of the Company’s capital stock which are directly or indirectly beneficially owned or owned of record by such shareholder and such beneficial owner, (2) any option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the Company or with a value derived in whole or in part from the value of any class or series of shares of the
Company, whether or not such instrument or right shall be subject to settlement in the underlying class or series of capital stock of the Company or otherwise (a “Derivative Instrument”) directly or indirectly owned beneficially by such shareholder or beneficial owner and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of the Company, (3) any proxy, contract, arrangement, understanding or relationship pursuant to which such shareholder or beneficial owner has a right to vote any shares or any security of the Company, (4) any short interest of such shareholder or beneficial owner in any security of the Company (for purposes of these Bylaws, a person shall be deemed to have a short interest in a security if such person directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security), (5) any rights to dividends on the shares of the Company owned beneficially by such shareholder or beneficial owner that are separated or separable from the underlying shares of the Company, (6) any proportionate interest in shares of the Company or Derivative Instruments held, directly or indirectly, by a general or limited partnership or limited liability company in which such shareholder or beneficial owner is a general partner or manager or directly or indirectly, beneficially owns an interest in a general partner or manager, (7) any performance-related fees (other than an asset-based fee) that such shareholder or beneficial owner is entitled to based on any increase or decrease in the value of shares of the Company or Derivative Instruments, if any, as of the date of such notice, including without limitation any such interests held by members of such shareholder’s or beneficial owner’s immediate family sharing the same household, and (8) any other information relating to such shareholder or beneficial owner that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitation of proxies for, as applicable, the proposal and/or the election of directors in a contested election, or is otherwise required, pursuant to Section 14 of the Exchange Act and the rules and regulations thereunder (the foregoing items (1) through (8), individually or collectively, the “Proposing Shareholder Information,” which information shall be supplemented by such shareholder and beneficial owner, if any, not later than 10 days after the record date for the meeting to disclose such ownership or other information as of the record date);
c.a representation that the shareholder is a holder of record of shares of the Company, entitled to vote at the meeting, and that the shareholder (or a qualified representative) intends to appear in person or by proxy at the meeting to propose such business; and
d.a representation that as to whether the shareholder or the beneficial owner, if any, intends or is or intends to be part of a group which intends (1) to solicit in favor of the proposal proxies from the holders of shares representing deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Company’s outstanding capital stock required to approve or adopt the proposal by delivering such shareholder’s or beneficial owner’s definitive proxy statement or (2) otherwise to solicit proxies from shareholders in support of such proposal. The meaning of the term “group” shall be within the meaning ascribed to such term under Section 13(d)(3) of the Exchange Act.
The proposed business must not be an improper subject for shareholder action under applicable law, and the shareholder must comply with state law, the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 8.
SECTION 9. ORGANIZATION; CONDUCT OF SHAREHOLDER MEETINGS: (a) Each meeting of shareholders shall be convened by the President, Secretary or other officer or person calling the meeting by notice given in accordance with these Bylaws. The Chairman of the Board, or any person appointed by the Chairman of the Board prior to any meeting of shareholders, shall act as chairman of each meeting of shareholders. In the absence of the Chairman of the Board, or a person appointed by the Chairman of the Board to act as chairman of the meeting, the shareholders present at the meeting shall designate a shareholder present to act as chairman of the meeting. The Secretary of the Company, or a person designated by the chairman shall act as Secretary of each meeting of shareholders. Whenever the Secretary shall act as chairman of the meeting, or shall be absent, the chairman of the meeting shall appoint a shareholder present to act as Secretary of the meeting.
(b) The Board shall be entitled to make such rules or regulations for the conduct of meetings of shareholders as it shall deem appropriate. Subject to such rules and regulations of the Board, if any, the person presiding over the meeting shall have the right and authority to convene and adjourn the meeting, to prescribe
such rules, regulations and procedures and to do all such acts as, in the judgment of the person presiding over the meeting, are necessary, appropriate or convenient for the proper conduct of the meeting, including, without limitation, establishing an agenda or order of business for the meeting, rules and procedures for maintaining order at the meeting and the safety of those present, limitations on participation in such meeting to shareholders of record of the Company and their duly authorized and constituted proxies and such other persons as the person presiding over the meeting shall permit, restrictions on entry to the meeting after the time fixed for the commencement thereof, limitations on the time allotted to questions or comments by participants, adjournment of the meeting, either by the person presiding over the meeting or by vote of the shares present in person or by proxy at the meeting, and regulation of the voting or balloting, as applicable, including, without limitation, matters which are to be voted on by ballot, if any. The person presiding over the meeting shall have sole, absolute and complete authority and discretion to decide questions of compliance with the foregoing procedures and his or her ruling thereon shall be final and conclusive. The person presiding over the meeting, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if the person presiding over the meeting should so determine and declare, any such matter or business shall not be transacted or considered. Unless and to the extent determined by the Board or the person presiding over the meeting, meetings of shareholders shall not be required to be held in accordance with rules of parliamentary procedure.
(c) Notwithstanding anything to the contrary in these Bylaws, unless otherwise required by law, if a shareholder (or qualified representative) does not appear at the annual or special meeting of shareholders of the Company to present business or a nomination proposed by such shareholder pursuant to Section 8 of Article I or Section 1 of Article II of these Bylaws, such proposed business shall not be transacted and such nomination shall be disregarded, as the case may be, even though proxies in respect of such vote may have been received by the Company. In order to be considered a qualified representative of the shareholder for purposes of Section 8 of Article I or Section 1 of Article II, a person must be a duly authorized officer, manager or partner of such shareholder or must be authorized by a writing executed by such shareholder or an electronic transmission delivered by such shareholder to act for such shareholder as proxy at the meeting of shareholders, and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of shareholders.
ARTICLE II - BOARD OF DIRECTORS
SECTION 1. ELECTION; TENURE; QUALIFICATIONS; NOMINATIONS: (a) The Board of Directors shall consist of not less than five nor more than twelve members, such Directors to be classified in respect of the time for which they shall severally hold office by dividing them into three classes of approximately equal size, and the number of Directors shall be fixed by a resolution of the Board of Directors adopted from time to time.
(b) In the event of any increase or decrease in the number of Directors, the number of Directors assigned to each class shall be adjusted as may be necessary so that all classes shall be 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. No reduction in the number of Directors shall affect the term of office of any incumbent Director. Subject to the foregoing, the Board of Directors shall determine the class or classes to which any Director shall be assigned and the class or classes which shall be increased or decreased in the event of any increase or decrease in the number of Directors.
(c) With respect to the members of the Board of Directors in office on February 4, 2012, the first class of Directors shall hold office until the first annual meeting of shareholders, the second class of Directors shall hold office until the second annual meeting of shareholders, and the third class of Directors shall hold office until the third annual meeting of shareholders. Thereafter, Directors shall be elected to hold office for a term of three years, and at each annual meeting of shareholders the successors to the class of Directors whose term shall then expire shall be elected for a term expiring at the third succeeding annual meeting after that election or until their successors shall be elected and qualified.
(d) In addition to the qualifications set out in Section 11 of this Article II, only persons who are nominated in accordance with the procedures set forth in these Bylaws shall be eligible as Directors at a meeting of shareholders. Nominations of persons for election to the Board may be made at an annual meeting of shareholders (i) pursuant to the Company’s notice of the meeting (or any supplement thereto), (ii) by or at the direction of the Board or any committee thereof, or (iii) by any shareholder of the Company who is a shareholder of record of the Company at the time of giving of the notice provided for in this Section 1 and at the time of the annual meeting, who shall be entitled to vote for the election of Directors at the meeting and who shall have complied with the notice procedures set forth in this Section 1; clause (iii) shall be the exclusive means for a shareholder to make nominations of persons for election to the Board of Directors at an annual meeting of shareholders.
For any nominations to be properly brought before an annual or special meeting of shareholders pursuant to clause (d)(iii) of this paragraph of these Bylaws, the shareholder must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a shareholder’s notice in writing must be delivered or mailed to and received by the Secretary of the Company at the principal executive office of the Company (i) in the case of an annual meeting, not less than 12090 days nor more than 150120 days prior to the first anniversary of the preceding year’s annual meeting (except that in the case of the Company’s annual meeting to be held in 2023, not less than 90 days nor more than 120 days prior to the first anniversary of the preceding year’s annual meeting), provided, however, 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 shareholder must be received not earlier than the 150120th day prior to the date of such annual meeting and not later than the close of business on the later of the 12090th day prior to the date of such annual meeting or the tenth day following the day on which public announcement (as defined in Section 8(c) of Article I of these Bylaws) of the date of the annual meeting is first made; or (ii) in the case of a special meeting at which the Board of Directors gives notice that Directors are to be elected, not earlier than the 150120th day prior to the date of such special meeting and not later than the close of business on the later of the 12090th day prior to the date of such special meeting or the tenth day following the day on which public announcement of the date of the meeting and of the nominees proposed by the Board of Directors to be elected at such meeting is first made. In no event shall any adjournment or postponement of a meeting or the announcement thereof commence a new time period (or extend any time period) for the giving of a shareholder’s notice as described above. In the case of a special meeting of shareholders, nominations of persons for election to the Board may be made at a special meeting of shareholders at which Directors are to be elected pursuant to the Company’s notice of meeting (1) by or at the direction of the Board or any committee thereof or (2) provided that the Board has determined that Directors shall be elected at such meeting, by any shareholder of the Company who is a shareholder of record at the time the notice provided in this Section 1(d) is delivered to the Secretary of the Company, who is entitled to vote at the meeting upon such election and who complies with the notice provisions of this Section 1(d) and Section 1(e) through Section 1(h) of this Article II, inclusive.
At the request of the Board, any person nominated by the Board for election as a Director shall furnish to the Secretary that information required to be set forth in a shareholder’s notice of nomination which pertains to the nominee. Notwithstanding anything in this Section 1 to the contrary, in the event that the number of Directors to be elected to the Board at an annual meeting is increased effective at the annual meeting and there is no public announcement by the Company naming all the nominees proposed by the Board for the additional directorships at least 70 days prior to the first anniversary of the preceding year’s annual meeting, a shareholder’s notice required by this Section 1 shall also be considered timely, but only with respect to nominees for such additional directorships, if it shall be delivered to the Secretary at the principal executive office of the Company not later than the close of business on the tenth day following the day on which such public announcement is first made by the Company.
(e) For nominations to be properly brought before an annual or special meeting, such shareholder’s notice to the Secretary shall set forth as to each person whom the shareholder proposes to nominate for election or re-election as a Director:
(i)the name, age, business address and residence of such person;
(ii)the principal occupation or employment of such person currently and for the previous five years;
(iii)a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships between or among such shareholder and beneficial owner, if any, on whose behalf the nomination is being made, and their respective affiliates and associates or others acting in concert therewith (on the one hand) and each proposed nominee and his or her respective affiliates and associates or others acting in concert therewith (on the other hand), including without limitation all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, if any, or any affiliate or associate thereof or person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant;
(iv)such person’s representation that he or she is eligible to serve as a Director pursuant to Section 11 of Article II of these Bylaws and whether such person has acted in any manner contrary to the best interest of the Company, including but not limited to, the violation of
any Federal or state law, or breach of any agreement between that person and the Company relating to his or her services as a Director, employee or agent of the Company;
(v)such person’s written consent to being named as a nominee and to serving as a Director if elected; and
(vi)any other information relating to such person that would be required to be disclosed in a proxy statement or other filing required to be made in connection with the solicitation of proxies for election of directors in a contested election, or is otherwise required, pursuant to Section 14 of the Exchange Act and the rules and regulations thereunder.
(f) Such shareholder’s notice shall also set forth as to the shareholder(s) giving the notice and the beneficial owner, if any, on whose behalf the nomination is made;
(i)the name and address of such shareholder and beneficial owner, as they appear in the Company’s shareholder records;
(ii)the Proposing Shareholder Information as defined in Section 8(e) of Article I of these Bylaws;
(iii)a representation that the shareholder is a holder of record of shares of the Company entitled to vote at such meeting, and that the shareholder (or a qualified representative) intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice;
(iv)any other information relating to such shareholder or beneficial owner that would be required to be disclosed in a proxy statement or other filing required to be made in connection with the solicitation of proxies for the election of directors in a contested election, or is otherwise required pursuant to Section 14 of the Exchange Act and the rules and regulations thereunder; and
(v)a representation that as to whether the shareholder or beneficial owner, if any, intends or is or intends to be part of a group (as defined in Section 8(e) of Article I of these Bylaws) which intends (A) to solicit in favor of such nominee proxies from the holders of shares representing at least 67% of the voting power of shares entitled to vote on the election of directors by delivering such shareholder’s or beneficial owner’s definitive proxy statement and (B) to include a statement to that effect in the shareholder’s or beneficial owner’s proxy statement or form of proxy (i) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Company’s outstanding capital stock required to elect the nominee, or (ii) otherwise solicit proxies from shareholders in support of such nominee.
(g) In addition to the qualifications set out in Section 11 of this Article II, to be eligible to be a nominee for election or reelection as a Director of the Company, the prospective nominee (whether nominated by or at the direction of the Board of Directors or by a shareholder), or someone acting on such prospective nominee’s behalf, must deliver (in accordance with any applicable time periods prescribed for delivery of notice under this Section 1) to the Secretary at the principal executive office of the Company a written questionnaire providing such information with respect to the background and qualification of such person and the background of any other person or entity on whose behalf the nomination is being made that would be required to be disclosed to shareholders pursuant to applicable law or the rules and regulations of any stock exchange applicable to the Company, including without limitation (i) all information concerning such persons that would be required to be disclosed in solicitation of proxies for election of Directors pursuant to and in accordance with Regulation 14A under the Exchange Act and (ii) any information the Company may reasonably request to determine the eligibility of the proposed nominee to serve as an independent Director or that could be material to a reasonable shareholder’s understanding of the independence or lack thereof of such nominee (which questionnaire shall be provided by the Secretary upon written request). The prospective nominee must also provide a written representation and agreement, in the form provided by the Secretary upon written request, that such prospective nominee: (A) is not and will not become a party to (1) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such prospective nominee, if elected as a Director of the Company, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Company or (2) any Voting Commitment that could limit or interfere with such prospective nominee’s ability to comply, if elected as a Director of the Company, with such prospective nominee’s fiduciary duties under applicable law; (B) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a Director that has not
been disclosed therein; and (C) would be in compliance if elected as a Director of the Company, and will comply with all applicable corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Company. For purposes of this section 1(g) a “nominee” shall include any person being considered to fill a vacancy on the Board of Directors.
(h) A shareholder or beneficial owner, if any, who has delivered a notice of nomination pursuant to this Section 1 shall promptly certify to the Company, and notify the Company in writing, that it has met the requirements set forth in these Bylaws and of Rule 14a-19(a) of the Exchange Act (including, for the avoidance of doubt, Rule 14a-19(a)(3) which provides that “No person may solicit proxies in support of director nominees other than the registrant’s nominees unless such person: . . . Solicits the holders of shares representing at least 67% of the voting power of shares entitled to vote on the election of directors and includes a statement to that effect in the proxy statement or form of proxy.”) and upon request of the Company shall, not later than five (5) business days prior to the date of the applicable meeting of shareholders, deliver to the Company reasonable evidence of such compliance.
No person shall be eligible for election as a Director of the Company unless the procedures and requirements nominated in accordance with the procedures set forth in this Section 1 are followed, all applicable requirements of the Exchange Act and the rules and regulations thereunder are satisfied and such person is qualified under Section 11 of this Article II. Except as otherwise provided by law, the Amended and Restated Articles of Incorporation or these Bylaws, the person presiding over the meeting (the “chairman”) may, if the facts warrant, determine that a nominee is not qualified, or a nomination was not properly made in accordance with the procedures and requirements prescribed in this Section 1 (including whether the shareholder or beneficial owner, if any, on whose behalf the nomination is made solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of such shareholder’s nominee in compliance with such shareholder’s representation as required by clause (f)(v) of this Section 1) were not followed or all applicable requirements of the Exchange Act and the rules and regulations thereunder were not satisfied; and if the chairman should so determine, the chairman shall so declare to the meeting, and the defective nomination shall be disregarded. Notwithstanding the foregoing provisions of this Section 1, a shareholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 1; provided, however that any references in these Bylaws to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the requirements applicable to nominations to be considered pursuant to Section 1 of this Article II of these Bylaws (including paragraph (d) hereof). Nothing in this Section 1 shall be deemed to affect any rights of the holders of any series of preferred stock of the Company to elect Directors pursuant to any applicable provisions of the Amended and Restated Articles of Incorporation.
SECTION 2. POWERS: The Board of Directors shall have power to manage and control the property and affairs of the Company, and to do all such lawful acts and things which, in their absolute judgment and discretion, they may deem necessary and appropriate for the expedient conduct and furtherance of the Company's business.
SECTION 3. CHAIRMAN: The Directors shall elect one of their members to be Chairman of the Board. The Chairman shall preside at all meetings of the Board, unless absent from such meeting, in which case, if there is a quorum, the Directors present may elect another Director to preside at such meeting.
SECTION 4. MEETINGS: (a) Regular meetings of the Board shall be held on such days and at such times and places either within or without the State of Missouri as shall from time to time be fixed by the Board of Directors. Notice of such regular meetings need not be given. Special meetings of the Board may be held at any day, time and place, within or without the State of Missouri, upon the call of the Chairman of the Board, President or Secretary of the Company, by oral, written, email, telefax or telegraphic notice duly given, sent or mailed to each Director, at such Director's last known address, not less than twenty-four hours before such meeting; provided, however, that any Director may, at any time, in writing or by telegram, waive notice of any meeting at which he or she may not be or may not have been present. Attendance of a Director at any meeting shall constitute a waiver of notice of the meeting except where a Director attends a meeting for the sole and express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any meeting of the Board need be specified in the notice or waiver of notice of such meeting. Rules of procedure for the conduct of such meetings may be adopted by resolution of the Board of Directors.
(b) Members of the Board of Directors or of any committee designated by the Board of Directors may participate in a meeting of the Board of Directors or committee by means of conference telephone or similar communications equipment whereby all persons participating in the meeting can hear each other, and participation in a meeting in this manner shall constitute presence in person at the meeting.
SECTION 5. ACTION BY CONSENT: Any action which is required to be or may be taken at a meeting of the Directors may be taken without a meeting if consents in writing, setting forth the action so taken, are signed by all the Directors.
SECTION 6. QUORUM: A majority of the Board of Directors then in office shall constitute a quorum at all meetings of the Board, and the act of the majority of the Directors present at any meeting at which a quorum is present shall be the act of the Board of Directors, unless a greater number of Directors is required by the Company's Amended and Restated Articles of Incorporation, these Bylaws or by law. At any meeting of Directors, whether or not a quorum is present, the Directors present thereat may adjourn the same from time to time without notice other than announcement at the meeting. A Director who may be disqualified, by reason of personal interest, from voting on any particular matter before a meeting of the Board may nevertheless be counted for the purpose of constituting a quorum of the Board.
SECTION 7. RESIGNATION OF DIRECTORS: Any Director of the Company may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board, the President, or the Secretary of the Company. Any such resignation shall take effect at the time specified therein or, if no time is specified, upon receipt thereof by the Board of Directors or one of the above-named officers of the Company; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective.
SECTION 8. VACANCIES: Vacancies on the Board of Directors and newly created directorships resulting from any increase in the number of Directors to constitute the Board of Directors may be filled only by a majority of the Directors then in office, although less than a quorum, or by a sole remaining Director, until the next election of Directors by the shareholders of the Company at which such class is elected.
SECTION 9. COMPENSATION OF DIRECTORS: The Board of Directors may, by resolution passed by a majority of the Board of Directors, fix the terms and amount of compensation payable to any person for his or her services as Director, if he or she is not otherwise compensated for services rendered as an officer or employee of the Company; provided, however, that any Director may be reimbursed for reasonable and necessary expenses of attending meetings of the Board of Directors, or otherwise incurred for any Company purpose; and provided, further, that members of any special or standing committee of Directors may also be allowed compensation and expenses similarly incurred. Nothing herein contained shall be construed to preclude any Director from serving the Company in any other capacity and receiving compensation therefor.
SECTION 10. COMMITTEES OF THE BOARD OF DIRECTORS: The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate two or more Directors to constitute an Executive Committee of the Board of Directors which shall have and exercise all of the authority of the Board of Directors in the management of the Company, in the intervals between meetings of the Board of Directors. In addition, the Board of Directors may appoint any other committee or committees, with such members, functions, and powers as the Board of Directors may designate. The Board of Directors shall have the power at any time to fill vacancies in, to change the size or membership of, or to dissolve, any one or more of such committees. Each such committee shall have such name as may be determined by the Board of Directors, and shall keep regular minutes of its proceedings and report the same to the Board of Directors for approval as required. At all meetings of a committee, a majority of the committee members then in office shall constitute a quorum for the purpose of transacting business, and the acts of a majority of the committee members present at any meeting at which there is a quorum shall be the acts of the committee. A Director who may be disqualified, by reason of personal interest, from voting on any particular matter before a meeting of a committee may nevertheless be counted for the purpose of constituting a quorum of the committee. Any action which is required to be or may be taken at a meeting of a committee of Directors may be taken without a meeting if consents in writing, setting forth the action so taken, are signed by all the members of the committee.
SECTION 11. QUALIFICATIONS: No person shall be qualified to be elected and to hold office as a Director if such person is determined by a majority of the Board of Directors to have acted in a manner contrary to the best interest of the Company, including, but not limited to, the violation of any Federal or state law, or breach of any agreement between that Director and the Company relating to his or her services as a Director, employee or agent of the Company. A Director need not be a shareholder. A Director shall not be eligible for reelection after his or her 72nd birthday unless the Corporate Governance and Compensation Committee of the Board of Directors determines that such Director continues to meet the criteria for board service and recommends to the Board of Directors that he or she stand for reelection notwithstanding his or her age.
ARTICLE III - OFFICERS
SECTION 1. OFFICERS; ELECTION: The officers of the Company shall be a Chief Executive Officer, a President and a Secretary, each of whom shall be elected by the Board. The Chairman of the Board may from time to time elect and appoint one or more Vice Chairmen of the Board. In addition, the Board or the President may from time to time elect and appoint the senior officers of the Company, including one or more Executive Vice Presidents, one or more Senior Vice Presidents, a Controller, a Treasurer, and such other officers as the Board may deem appropriate. The President may elect and appoint other officers of the Company, including one or more Assistant Secretaries, Assistant Treasurers, Assistant Controllers and other junior officers. Any two or more offices may be held by the same person except the offices of Chairman of the Board and Secretary.
SECTION 2. TERMS; COMPENSATION: All officers of the Company shall hold their respective offices until the first meeting of the Board of Directors after the next succeeding election of the Board of Directors and until their successors shall have been duly elected and qualified, or until their earlier death, resignation or removal. The compensation each officer is to receive from the Company shall be determined in such manner as the Board of Directors shall from time to time prescribe.
SECTION 3. POWERS; DUTIES: Each officer of the Company shall have such powers and duties as may be prescribed by resolution of the Board of Directors or as may be assigned by the Board of Directors or the Chief Executive Officer of the Company.
SECTION 4. REMOVAL: Any officer or agent elected or appointed by the Board of Directors may be removed by the Board of Directors, with or without cause, whenever in its judgment the best interest of the Company will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the officer so removed. The Chairman of the Board may suspend any officer until the Board of Directors shall next convene. Any vacancy occurring in any office of the Company shall be filled by the Board of Directors.
ARTICLE IV - CAPITAL STOCK
SECTION 1. STOCK CERTIFICATES AND UNCERTIFICATED SHARES: (a) The shares of the Company shall be represented by certificates, provided, however, that the Board may provide by resolution that some or all of any classes or series of the Company’s stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Company. Notwithstanding the foregoing, every holder of stock represented by certificates and, upon request, every holder of uncertificated shares shall be entitled to have a certificate, in any form approved by the Board, signed by the Chairman of the Board, the Chief Executive Officer or the President or a Vice President of the Company and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer of the Company, and shall bear the corporate seal of the Company. If the certificate is countersigned by a transfer agent or registrar other than the Company or its employee, any other signature and the corporate seal appearing on certificates of stock may be facsimile, engraved or printed. In case any such officer, transfer agent or registrar who has signed or whose facsimile signature appears on any such certificate shall have ceased to be such officer, transfer agent or registrar before the certificate is issued, such certificate may nevertheless be issued by the Company with the same effect as if such officer, transfer agent or registrar had not ceased to be such officer, transfer agent or registrar at the date of its issue. Every holder of uncertificated shares shall be entitled to receive a statement of holdings as evidence of share ownership.
(b) The Company shall not issue a fraction of a share or a certificate for a fractional share; however, the Board of Directors may issue, in lieu of any fractional share, scrip or other evidence of ownership upon such terms and conditions as it may deem advisable.
(c) All certificates of stock of each class and series shall be numbered appropriately.
SECTION 2. RECORD OWNERSHIP: The Company shall maintain a record of the name and address of the holder of each share of Company stock, the number of shares represented thereby, and the date of issue and the number thereof. The Company shall be entitled to treat the holder of record of any share of stock as the holder in fact thereof, and accordingly it will not be bound to recognize any legal, equitable or other claim of interest in such share on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Missouri.
SECTION 3. TRANSFERS: Transfers of shares of stock shall be made on the books of the Company only by direction of the holder thereof in person or by his or her duly authorized attorney or legal representative. Upon transfer of certificated shares, the old certificates shall be surrendered to the Company by the delivery thereof to
the person in charge of the stock and transfer books and ledgers, or to such other persons as the Board may designate, by whom they shall be cancelled and new certificates shall thereupon be issued. In the case of uncertificated shares, transfer shall be made only upon receipt of transfer documentation reasonably acceptable to the Company.
SECTION 4. TRANSFER AGENTS; REGISTRARS: The Board of Directors shall, by resolution, from time to time appoint one or more Transfer Agents, that may be officers or employees of the Company, to make transfers of shares of stock of the Company, and one or more Registrars to register shares of stock issued by or on behalf of the Company. The Board of Directors may adopt such rules as it may deem expedient concerning the issue, transfer and registration of shares of stock of the Company.
SECTION 5. LOST CERTIFICATES: The Company may issue a new certificate in place of any certificate theretofore issued by it which is alleged to have been lost, stolen or destroyed and the Board of Directors may require the owner of the lost, stolen or destroyed certificate or the owner's legal representative to give the Company a bond in a sum and in a form approved by the Board of Directors, and with a surety or sureties which the Board of Directors finds satisfactory, to indemnify the Company and its transfer agents and registrars, if any, against any claim or liability that may be asserted against or incurred by it or any transfer agent or registrar on account of the alleged loss, theft or destruction of any certificate or the issuance of any new certificate. A new certificate may be issued without requiring any bond when, in the judgment of the Board of Directors, it is proper to do so. The Board of Directors may delegate to any officer or officers of the Company any of the powers and authorities contained in this section.
SECTION 6. TRANSFER BOOKS; RECORD DATES: The Board of Directors shall have power to close the stock transfer books of the Company as permitted by law; provided, however, that in lieu of closing the said books, the Board of Directors may fix in advance a date, not exceeding seventy days preceding the date of any meeting of shareholders, or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of shares shall go into effect, as a record date for the determination of the shareholders entitled to notice of, and to vote at, any such meeting, and any adjournment or postponement thereof, or entitled to receive payment of any such dividend, or to any such allotment of rights, or to exercise the rights in respect of any such change, conversion or exchange of shares, and in such case such shareholders and only such shareholders as shall be shareholders of record on the date of closing the transfer books or on the record date so fixed shall be entitled to notice of, and to vote at, such meeting, and any adjournment or postponement thereof, or to receive payment of such dividend, or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any shares after such date of closing of the transfer books or such record date fixed as aforesaid. If the Board of Directors does not close the transfer books or set a record date for the determination of the shareholders entitled to notice of and to vote at any meeting of shareholders, only the shareholders who are shareholders of record at the close of business on the twentieth day preceding the date of the meeting shall be entitled to notice of and to vote at the meeting and upon any adjournment or postponement of the meeting, except that if prior to the meeting written waivers of notice of the meeting are signed and delivered to the Company by all of the shareholders of record at the time the meeting is convened, only the shareholders who are shareholders of record at the time the meeting is convened shall be entitled to vote at the meeting and any adjournment or postponement of the meeting.
ARTICLE V - SEAL, BOOKS, FISCAL YEAR, AMENDMENT
SECTION 1. SEAL: The corporate seal of the Company shall be a circular seal; the words "POST HOLDINGS, INC." shall be embossed in the outer margin; and the words "CORPORATE SEAL 2011 MISSOURI" shall be embossed in the central circular field; an impression of the same is set forth hereon.
SECTION 2. PLACE FOR KEEPING BOOKS AND SEAL: The books of the Company, and its corporate minutes and corporate seal, shall be kept in the custody of the Secretary at the principal executive office of the Company, or at such other place or places and in the custody of such other person or persons as the Board of Directors may from time to time determine.
SECTION 3. NOTICES(a) Whenever, under the provisions of applicable law, the Amended and Restated Articles of Incorporation or these Bylaws, written notice is required to be given to any Director or shareholder, it shall not be construed to require personal notice, but such notice may be given by mail, by depositing the same in the post office or in a letter box, in a post-paid sealed wrapper, addressed to such Director or shareholder at such address as appears on the books of the Company, and such notice shall be deemed to be given at the time when the same shall be thus mailed, or may be given by telefax, telegraphic or other electronic transmission to the extent authorized or allowed by law.
(b) Any person may waive any notice required to be given under these Bylaws. Whenever notice is required to be given pursuant to the law of Missouri, the Amended and Restated Articles of Incorporation or these Bylaws, a written waiver thereof, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting of shareholders or the Board of Directors or a committee thereof shall constitute a waiver of notice of such meeting, except when the shareholder or Director attends such meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the shareholders or the Board of Directors or committee thereof need be specified in any written waiver of notice or any waiver by electronic transmission unless so required by the Amended and Restated Articles of Incorporation or by these Bylaws.
SECTION 4. FISCAL YEAR: The fiscal year of the Company shall commence with the first day of October in each year.
SECTION 5. AMENDMENT: Two-thirds of all of the members of the Board of Directors may amend, alter, change or repeal any provision of these Bylaws; provided, that the Board of Directors shall not have the power to amend, alter, change or repeal this Article V, Section 5 in any manner that alters the shareholders’ power to amend, alter, change or repeal these Bylaws. The shareholders of the Company also may amend, alter, change or repeal any provision of these Bylaws upon the affirmative vote of a majority of all of the outstanding shares of capital stock of the Company entitled to vote thereon; provided, that the shareholders shall not have the power to amend, alter, change or repeal this Article V, Section 5 in any manner that alters the Board of Directors’ power to amend, alter, change or repeal these Bylaws.
Exhibit 99.1
Post Holdings Reports Results for the Fourth Quarter and Fiscal Year 2022
St. Louis - November 17, 2022 - Post Holdings, Inc. (NYSE:POST), a consumer packaged goods holding company, today reported results for the fourth fiscal quarter and fiscal year ended September 30, 2022.
Highlights:
•Fourth quarter net sales of $1.6 billion; operating profit of $131.9 million; net earnings from continuing operations of $83.9 million and Adjusted EBITDA of $279.7 million
•Fiscal year net sales of $5.9 billion; operating profit of $415.6 million; net earnings from continuing operations of $735.0 million and Adjusted EBITDA of $963.5 million
•Generated $384.2 million in cash from continuing operations in fiscal year 2022
•Fiscal year 2023 Adjusted EBITDA (non-GAAP) expected to range between $990-$1,040 million
Basis of Presentation
On March 10, 2022, Post’s distribution to its shareholders of 80.1% of its interest in BellRing Brands, Inc. (“BellRing”) was completed. Accordingly, the historical results of the BellRing business have been presented as discontinued operations in Post’s financial statements for all periods.
Fourth Quarter Consolidated Operating Results
Net sales were $1,579.1 million, an increase of 16.5%, or $223.2 million, compared to $1,355.9 million in the prior year period. Gross profit was $392.6 million, or 24.9% of net sales, an increase of 18.1%, or $60.1 million, compared to $332.5 million, or 24.5% of net sales, in the prior year period. Results for the fourth quarter of 2022 reflected pricing actions across the business which offset input and freight inflation. Supply chain disruptions eased slightly during the fourth quarter of 2022 but continued to drive higher manufacturing costs and customer order fulfillment rates below optimal levels.
Selling, general and administrative (“SG&A”) expenses were $223.8 million, or 14.2% of net sales, an increase of 9.9%, or $20.1 million, compared to $203.7 million, or 15.0% of net sales, in the prior year period. Operating profit was $131.9 million, an increase of 55.7%, or $47.2 million, compared to $84.7 million in the prior year period.
Net earnings from continuing operations were $83.9 million, an increase of 910.8%, or $75.6 million, compared to $8.3 million in the prior year period. Net earnings from continuing operations included the following:
| Three Months Ended September 30, | |||||||||||
(in millions) | 2022 | 2021 | |||||||||
Gain on extinguishment of debt, net (1) | $ | (81.7) | $ | — | |||||||
Income on swaps, net (1) | (45.1) | (17.2) | |||||||||
Loss on investment in BellRing (1) | 45.7 | — | |||||||||
United Kingdom (“U.K.”) tax reform expense (1) | 0.5 | 0.7 | |||||||||
| Equity method loss, net of tax | 17.8 | 17.4 | |||||||||
Net earnings attributable to noncontrolling interests (2) | 2.5 | 7.6 | |||||||||
(1) Discussed later in this release and were treated as adjustments for non-GAAP measures. | |||||||||||
(2) Primarily reflected the allocation of 69.0% of Post Holdings Partnering Corporation’s (“PHPC”) consolidated net earnings to noncontrolling interests. | |||||||||||
Diluted earnings from continuing operations per common share were $1.32, compared to $0.06 in the prior year period. Adjusted net earnings from continuing operations were $54.1 million, or $0.85 per diluted common share, compared to $6.8 million, or $0.11 per diluted common share, in the prior year period.
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Adjusted EBITDA was $279.7 million, an increase of 31.9%, or $67.7 million, compared to $212.0 million in the prior year period.
The prior year period included net earnings from discontinued operations, net of tax and noncontrolling interest of $21.6 million. Net earnings were $83.9 million, or $1.32 per diluted common share, compared to $29.9 million, or $0.39 per diluted common share, in the prior year period.
Fiscal Year 2022 Consolidated Operating Results
Net sales were $5,851.2 million, an increase of 17.5%, or $870.5 million, compared to $4,980.7 million in the prior year. Gross profit was $1,467.5 million, or 25.1% of net sales, an increase of 2.8%, or $39.4 million, compared to $1,428.1 million, or 28.7% of net sales, in the prior year.
SG&A expenses were $904.7 million, or 15.5% of net sales, an increase of 12.1%, or $97.7 million, compared to $807.0 million, or 16.2% of net sales, in the prior year. SG&A expenses in fiscal year 2022 included $32.1 million of transaction costs, which were primarily related to the BellRing distribution and were treated as an adjustment for non-GAAP measures. Operating profit was $415.6 million, a decrease of 14.8%, or $72.1 million, compared to $487.7 million in the prior year.
Net earnings from continuing operations were $735.0 million, an increase of 600.7%, or $630.1 million, compared to $104.9 million in the prior year. Net earnings from continuing operations included the following:
| Year Ended September 30, | |||||||||||
(in millions) | 2022 | 2021 | |||||||||
(Gain) loss on extinguishment of debt, net (1) | $ | (72.6) | $ | 93.2 | |||||||
Income on swaps, net (1) | (268.0) | (122.8) | |||||||||
Gain on investment in BellRing (1) | (437.1) | — | |||||||||
U.K. tax reform expense (1) | 0.9 | 40.0 | |||||||||
| Equity method loss, net of tax | 67.1 | 43.9 | |||||||||
Net earnings attributable to noncontrolling interests (2) | 7.5 | 7.0 | |||||||||
(1) Discussed later in this release and were treated as adjustments for non-GAAP measures. | |||||||||||
(2) Primarily reflected the allocation of 69.0% of PHPC’s consolidated net earnings to noncontrolling interests. | |||||||||||
Diluted earnings from continuing operations per common share were $11.75, compared to $1.44 in the prior year. Adjusted net earnings from continuing operations were $105.5 million, or $1.68 per diluted common share, compared to $74.6 million, or $1.14 per diluted common share, in the prior year.
Adjusted EBITDA was $963.5 million, an increase of 8.3%, or $74.1 million, compared to $889.4 million in the prior year.
Net earnings from discontinued operations, net of tax and noncontrolling interest were $21.6 million, compared to $61.8 million in the prior year. Net earnings were $756.6 million, or $12.09 per diluted common share, compared to $166.7 million, or $2.38 per diluted common share, in the prior year.
Recent Acquisitions and Divestiture
The below table lists Post’s recent acquisitions, including the acquisition date, the fiscal year in which the acquisition was completed and the segment in which the results of the acquisition are reported.
| Acquisition | Acquisition Date | Fiscal Year | Segment | ||||||||
| Lacka Foods Limited (“Lacka”) (a U.K. based distributor of protein-based ready-to-drink (“RTD”) shakes) | April 5, 2022 | 2022 | Weetabix | ||||||||
| Private label ready-to-eat (“RTE”) cereal business of TreeHouse Foods, Inc. | June 1, 2021 | 2021 | Post Consumer Brands | ||||||||
Egg Beaters liquid egg brand | May 27, 2021 | 2021 | Refrigerated Retail | ||||||||
| Almark Foods business and related assets | February 1, 2021 | 2021 | Foodservice and Refrigerated Retail | ||||||||
Peter Pan nut butter brand (“Peter Pan”) | January 25, 2021 | 2021 | Post Consumer Brands | ||||||||
On December 1, 2021, Post sold the Willamette Egg Farms business (“Willamette”); its operating results were previously reported in the Refrigerated Retail segment.
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Post Consumer Brands
North American RTE cereal and Peter Pan nut butters.
For the fourth quarter, net sales were $587.6 million, an increase of 12.6%, or $65.9 million, compared to the prior year period. Volumes increased 2.1% primarily driven by growth in Peter Pan nut butters, Pebbles, private label cereal and Malt-O-Meal bag cereal, partially offset by declines in Honey Bunches of Oats. Segment profit was $82.0 million, an increase of 23.3%, or $15.5 million, compared to the prior year period. Segment Adjusted EBITDA was $115.4 million, an increase of 9.7%, or $10.2 million, compared to the prior year period.
For fiscal year 2022, net sales were $2,242.7 million, an increase of 17.1%, or $327.4 million, compared to the prior year. Segment profit was $314.6 million, a decrease of 0.6%, or $2.0 million, compared to the prior year. Segment Adjusted EBITDA was $456.5 million, a decrease of 0.9%, or $4.0 million, compared to the prior year.
Weetabix
Primarily U.K. RTE cereal, muesli and protein-based RTD shakes.
For the fourth quarter, net sales were $116.8 million, a decrease of 8.2%, or $10.4 million, compared to the prior year period, and included $6.7 million in net sales from the Lacka acquisition. Additionally, net sales reflected a foreign currency exchange rate headwind of approximately 1,500 basis points. Volumes declined 2.9%; excluding the benefit from the Lacka acquisition, volumes declined 9.4% as growth in private label products was offset by declines in branded products. Segment profit was $27.7 million, a decrease of 15.5%, or $5.1 million, compared to the prior year period. Segment Adjusted EBITDA was $37.0 million, a decrease of 13.3%, or $5.7 million, compared to the prior year period.
For fiscal year 2022, net sales were $477.3 million, flat compared to the prior year. Segment profit was $109.5 million, a decrease of 5.1%, or $5.9 million, compared to the prior year. Segment Adjusted EBITDA was $146.7 million, a decrease of 4.0%, or $6.1 million, compared to the prior year.
Foodservice
Primarily egg and potato products.
For the fourth quarter, net sales were $625.5 million, an increase of 36.9%, or $168.7 million, compared to the prior year period. Volumes increased 3.6%, with egg volumes up 5.2% and potato volumes up 2.1%. Segment profit was $70.0 million, an increase of 393.0%, or $55.8 million, compared to the prior year period. Segment profit for the fourth quarter of 2022 was negatively impacted by a provision for legal settlements of $13.8 million, which was treated as an adjustment for non-GAAP measures. Segment Adjusted EBITDA was $109.6 million, an increase of 97.1%, or $54.0 million, compared to the prior year period.
For fiscal year 2022, net sales were $2,095.0 million, an increase of 29.7%, or $479.4 million, compared to the prior year. Segment profit was $151.0 million, an increase of 144.7%, or $89.3 million, compared to the prior year. Segment profit for fiscal year 2022 was negatively impacted by a provision for legal settlements of $13.8 million, which was treated as an adjustment for non-GAAP measures. Segment Adjusted EBITDA was $292.3 million, an increase of 48.4%, or $95.3 million, compared to the prior year.
Refrigerated Retail
Primarily side dish, egg, cheese and sausage products.
For the fourth quarter, net sales were $249.2 million, a decrease of 0.8%, or $1.9 million, compared to the prior year period. Net sales in the fourth quarter of 2021 included $10.1 million related to the divested Willamette business. Volumes declined 15.0%; excluding the contribution from Willamette in the prior year period, volumes declined 7.1% primarily driven by declines in egg (resulting from reduced supply driven by avian influenza and elasticities resulting from inflation-driven price increases) and cheese (resulting from the decision to exit certain low-margin business and some distribution losses). Volume information by product is disclosed in a table presented later in this release. Segment profit was $16.1 million, an increase of 335.1%, or $12.4 million, compared to the prior year period. Segment Adjusted EBITDA was $35.8 million, an increase of 49.2%, or $11.8 million, compared to the prior year period.
For fiscal year 2022, net sales were $1,036.6 million, an increase of 6.4%, or $62.1 million, compared to the prior year. Segment profit was $57.1 million, a decrease of 24.8%, or $18.8 million, compared to the prior year. Adjusted EBITDA was $137.8 million, a decrease of 9.2%, or $13.9 million, compared to the prior year.
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Interest, (Gain) Loss on Extinguishment of Debt, Income on Swaps, Investment in BellRing and Income Tax
Interest expense, net was $72.2 million in the fourth quarter of 2022, compared to $82.9 million in the fourth quarter of 2021, and was $317.8 million in fiscal year 2022, compared to $332.6 million in fiscal year 2021.
Gain on extinguishment of debt, net of $81.7 million was recorded in the fourth quarter of 2022 in connection with Post’s repayment of $638.4 million in total principal amounts to extinguish a portion of certain senior notes. Gain on extinguishment of debt, net of $72.6 million was recorded in fiscal year 2022 primarily in connection with Post’s repayment of $1,552.3 million in total principal amounts to extinguish a portion of certain senior notes. Loss on extinguishment of debt, net of $93.2 million was recorded in fiscal year 2021 in connection with Post’s repayment of its 5.00% senior notes due August 2026.
Income on swaps, net relates to mark-to-market adjustments on interest rate swaps. Income on swaps, net was $45.1 million in the fourth quarter of 2022, compared to $17.2 million in the fourth quarter of 2021, and was $268.0 million in fiscal year 2022, compared to $122.8 million in fiscal year 2021.
Loss on investment in BellRing of $45.7 million was recorded in the fourth quarter of 2022 in connection with a non-cash mark-to-market adjustment on Post’s retained equity interest in BellRing to its fair value based on the trading value of BellRing’s common stock as of September 30, 2022. Gain on investment in BellRing of $437.1 million was recorded in fiscal year 2022.
Income tax expense was $42.4 million in the fourth quarter of 2022, an effective income tax rate of 28.9%, compared to a benefit of $4.8 million in the fourth quarter of 2021, an effective income tax rate of (16.8)%. Income tax expense was $85.7 million in fiscal year 2022, an effective income tax rate of 9.6%, compared to $58.2 million in fiscal year 2021, an effective income tax rate of 27.2%. For fiscal year 2022, the effective income tax rates differed significantly from the statutory tax rates primarily as a result of discrete income tax benefit items related to a non-cash mark-to-market adjustment on Post’s retained equity interest in BellRing and Post’s equity method loss attributable to 8th Avenue Food & Provisions, Inc. (“8th Avenue”). For fiscal year 2021, the effective income tax rates differed significantly from the statutory tax rates primarily as a result of enacted tax law changes in the U.K., which resulted in a $40.0 million income tax expense recorded in fiscal year 2021.
Share Repurchases
During the fourth quarter of 2022, Post repurchased 1.1 million shares of its common stock for $100.0 million at an average price of $90.30 per share. During fiscal year 2022, Post repurchased 4.9 million shares of its common stock for $438.9 million at an average price of $90.02 per share. Average price per share repurchased during fiscal year 2022 was $103.79 prior to the BellRing distribution and $81.53 subsequent to the BellRing distribution. Subsequent to the end of the fourth quarter of 2022 and as of November 16, 2022, Post repurchased 0.2 million shares of its common stock for $16.7 million at an average price of $82.76 per share. As of November 16, 2022, Post had $283.3 million remaining under its share repurchase authorization.
Outlook
Post management expects Adjusted EBITDA for fiscal year 2023 to be between $990-$1,040 million.
Post management expects fiscal year 2023 capital expenditures to range between $300-$325 million, which includes $100-$110 million investment in RTD shake manufacturing, precooked and cage-free eggs and North American RTE cereal manufacturing optimization.
Post provides Adjusted EBITDA guidance only on a non-GAAP basis and does not provide a reconciliation of its forward-looking Adjusted EBITDA non-GAAP guidance measure to the most directly comparable GAAP measure due to the inherent difficulty in forecasting and quantifying certain amounts that are necessary for such reconciliation, including adjustments that could be made for gain/loss on investment in BellRing, income/expense on swaps, net, equity method investment adjustment, mark-to-market adjustments on commodity and foreign exchange hedges, warrant liabilities and equity securities, provision for legal settlements, gain/loss on assets held for sale, gain/loss on sale of business, transaction and integration costs and other charges reflected in Post’s reconciliations of historical numbers, the amounts of which, based on historical experience, could be significant. For additional information regarding Post’s non-GAAP measures, see the related explanations presented under “Use of Non-GAAP Measures.”
Use of Non-GAAP Measures
Post uses certain non-GAAP measures in this release to supplement the financial measures prepared in accordance with United States (“U.S.”) generally accepted accounting principles (“GAAP”). These non-GAAP measures include total segment profit, Adjusted net earnings from continuing operations, Adjusted diluted earnings from continuing operations per common share, Adjusted EBITDA and segment Adjusted EBITDA. The reconciliation of each of these non-GAAP measures to the most
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directly comparable GAAP measure is provided later in this release under “Explanation and Reconciliation of Non-GAAP Measures.”
Management uses certain of these non-GAAP measures, including Adjusted EBITDA and segment Adjusted EBITDA, as key metrics in the evaluation of underlying company and segment performance, in making financial, operating and planning decisions and, in part, in the determination of bonuses for its executive officers and employees. Additionally, Post is required to comply with certain covenants and limitations that are based on variations of EBITDA in its financing documents. Management believes the use of these non-GAAP measures provides increased transparency and assists investors in understanding the underlying operating performance of Post and its segments and in the analysis of ongoing operating trends. Non-GAAP measures are not prepared in accordance with GAAP, as they exclude certain items as described later in this release. These non-GAAP measures may not be comparable to similarly titled measures of other companies. For additional information regarding Post’s non-GAAP measures, see the related explanations provided under “Explanation and Reconciliation of Non-GAAP Measures.”
Conference Call to Discuss Earnings Results and Outlook
Post will host a conference call on Friday, November 18, 2022 at 9:00 a.m. EST to discuss financial results for the fourth quarter and fiscal year 2022 and fiscal year 2023 outlook and to respond to questions. Robert V. Vitale, President and Chief Executive Officer, and Jeff A. Zadoks, Executive Vice President and Chief Financial Officer, will participate in the call.
Interested parties may join the conference call by dialing (800) 267-6316 in the United States and (203) 518-9783 from outside of the United States. The conference identification number is POSTQ422. Interested parties are invited to listen to the webcast of the conference call, which can be accessed by visiting the Investors section of Post’s website at www.postholdings.com.
A replay of the conference call will be available through Friday, November 25, 2022 by dialing (800) 839-3742 in the United States and (402) 220-2979 from outside of the United States. A webcast replay also will be available for a limited period on Post’s website in the Investor Relations section.
Prospective Financial Information
Prospective financial information is necessarily speculative in nature, and it can be expected that some or all of the assumptions underlying the prospective financial information described above will not materialize or will vary significantly from actual results. For further discussion of some of the factors that may cause actual results to vary materially from the information provided above, see “Forward-Looking Statements” below. Accordingly, the prospective financial information provided above is only an estimate of what Post’s management believes is realizable as of the date of this release. It also should be recognized that the reliability of any forecasted financial data diminishes the farther in the future that the data is forecasted. In light of the foregoing, the information should be viewed in context and undue reliance should not be placed upon it.
Forward-Looking Statements
Certain matters discussed in this release and on Post’s conference call are forward-looking statements, including Post’s Adjusted EBITDA outlook for fiscal year 2023 and Post’s capital expenditure outlook for fiscal year 2023. 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, and include all statements regarding future performance, earnings projections, events or developments. There are a number of risks and uncertainties that could cause actual results to differ materially from the forward-looking statements made herein. These risks and uncertainties include, but are not limited to, the following:
•significant volatility in the cost or availability of inputs to Post’s businesses (including freight, raw materials, energy and other supplies);
•Post’s ability to increase its prices to offset cost increases and the potential for such price increases to impact demand for Post’s products;
•disruptions or inefficiencies in Post’s supply chain, including as a result of inflation, labor shortages, insufficient product or raw material availability, limited freight carrier availability, Post’s reliance on third parties for the supply of materials for or the manufacture of many of Post’s products, public health crises (including the COVID-19 pandemic), climatic events, agricultural diseases and pests, fires and evacuations related thereto and other events beyond Post’s control;
•Post’s high leverage, Post’s ability to obtain additional financing (including both secured and unsecured debt), Post’s ability to service its outstanding debt (including covenants that restrict the operation of Post’s businesses) and a downgrade or potential downgrade in Post’s credit ratings;
5
•Post’s ability to hire and retain talented personnel, increases in labor-related costs, the ability of Post’s employees to safely perform their jobs, including the potential for physical injuries or illness, employee absenteeism, labor strikes, work stoppages and unionization efforts;
•changes in economic conditions, the occurrence of a recession, disruptions in the U.S. and global capital and credit markets, changes in interest rates and fluctuations in foreign currency exchange rates;
•Post’s ability to continue to compete in its product categories and Post’s ability to retain its market position and favorable perceptions of its brands;
•the impacts of public health crises (including the COVID-19 pandemic), such as negative impacts on demand for Post’s foodservice and on-the-go products, Post’s ability to manufacture and deliver its products, workforce availability, the health and safety of Post’s employees, operating costs, the global economy and capital markets and Post’s operations generally;
•Post’s ability to anticipate and respond to changes in consumer and customer preferences and behaviors and introduce new products;
•allegations that Post’s products cause injury or illness, product recalls and withdrawals and product liability claims and other related litigation;
•Post’s ability to identify, complete and integrate or otherwise effectively execute acquisitions or other strategic transactions and effectively manage its growth;
•risks related to the intended tax treatment of the transactions Post undertook, and intends to undertake, related to divestitures of Post’s interest in BellRing;
•the possibility that PHPC, a publicly-traded special purpose acquisition company in which Post indirectly owns an interest (through PHPC Sponsor, LLC, Post’s wholly-owned subsidiary), may not consummate a suitable partnering transaction within the prescribed two-year time period, that the partnering transaction may not be successful or that the activities for PHPC could be distracting to Post’s management;
•conflicting interests or the appearance of conflicting interests resulting from several of Post’s directors and officers also serving as directors or officers of one or more other companies;
•Post’s ability to successfully implement business strategies to reduce costs;
•impairment in the carrying value of goodwill or other intangibles;
•legal and regulatory factors, such as compliance with existing laws and regulations, as well as new laws and regulations and changes to existing laws and regulations and interpretations thereof, affecting Post’s businesses, including current and future laws and regulations regarding tax matters, food safety, advertising and labeling, animal feeding and housing operations, data privacy and climate change and other environmental matters;
•the loss of, a significant reduction of purchases by or the bankruptcy of a major customer;
•costs, business disruptions and reputational damage associated with information technology failures, cybersecurity incidents or information security breaches;
•the failure or weakening of the RTE cereal category and consolidations in the retail and foodservice distribution channels;
•the ultimate impact litigation or other regulatory matters may have on Post;
•costs associated with the obligations of Bob Evans Farms, Inc. (“Bob Evans”) in connection with the sale and separation of its restaurants business in April 2017, including certain indemnification obligations under the restaurants sale agreement and Bob Evans’s payment and performance obligations as a guarantor for certain leases;
•Post’s ability to protect its intellectual property and other assets and to continue to use third party intellectual property subject to intellectual property licenses;
•the ability of Post’s and its customers’ private brand products to compete with nationally branded products;
•the impact of national or international disputes, political instability, terrorism, war or armed hostilities, such as the ongoing conflict in Ukraine, including on the global economy, capital markets, Post’s supply chain, commodity, energy and freight availability and costs and information security;
•risks associated with Post’s international businesses;
•changes in critical accounting estimates;
•losses or increased funding and expenses related to Post’s qualified pension or other postretirement plans;
•significant differences in Post’s actual operating results from any of Post’s guidance regarding Post’s future performance;
•Post’s and PHPC’s ability to satisfy the requirements of Section 404 of the Sarbanes-Oxley Act of 2002; and
•other risks and uncertainties described in Post’s and PHPC’s filings with the SEC.
These forward-looking statements represent Post’s judgment as of the date of this release. Post disclaims, however, any intent or obligation to update these forward-looking statements.
6
About Post Holdings, Inc.
Post Holdings, Inc., headquartered in St. Louis, Missouri, is a consumer packaged goods holding company with businesses operating in the center-of-the-store, refrigerated, foodservice and food ingredient categories. Its businesses include Post Consumer Brands, Weetabix, Michael Foods and Bob Evans Farms. Post Consumer Brands is a leader in the North American ready-to-eat cereal category and also markets Peter Pan® nut butters. Weetabix is home to the United Kingdom’s number one selling ready-to-eat cereal brand, Weetabix®. Michael Foods and Bob Evans Farms are leaders in refrigerated foods, delivering innovative, value-added egg and refrigerated potato side dish products to the foodservice and retail channels. Post participates in the global convenient nutrition category through its minority ownership of BellRing Brands, Inc., a publicly-traded holding company offering ready-to-drink shake and powder protein products. Post participates in the private brand food category through its ownership interest in 8th Avenue Food & Provisions, Inc., a leading, private brand centric, consumer products holding company. For more information, visit www.postholdings.com.
Contact:
Investor Relations
Jennifer Meyer
(314) 644-7665
Media Relations
Lisa Hanly
(314) 665-3180
7
CONSOLIDATED STATEMENTS OF OPERATIONS (Unaudited)
(in millions, except per share data)
| Three Months Ended September 30, | Year Ended September 30, | ||||||||||||||||||||||
| 2022 | 2021 | 2022 | 2021 | ||||||||||||||||||||
| Net Sales | $ | 1,579.1 | $ | 1,355.9 | $ | 5,851.2 | $ | 4,980.7 | |||||||||||||||
| Cost of goods sold | 1,186.5 | 1,023.4 | 4,383.7 | 3,552.6 | |||||||||||||||||||
| Gross Profit | 392.6 | 332.5 | 1,467.5 | 1,428.1 | |||||||||||||||||||
| Selling, general and administrative expenses | 223.8 | 203.7 | 904.7 | 807.0 | |||||||||||||||||||
| Amortization of intangible assets | 36.5 | 36.7 | 146.0 | 143.2 | |||||||||||||||||||
| Other operating expense (income), net | 0.4 | 7.4 | 1.2 | (9.8) | |||||||||||||||||||
| Operating Profit | 131.9 | 84.7 | 415.6 | 487.7 | |||||||||||||||||||
| Interest expense, net | 72.2 | 82.9 | 317.8 | 332.6 | |||||||||||||||||||
| (Gain) loss on extinguishment of debt, net | (81.7) | — | (72.6) | 93.2 | |||||||||||||||||||
| Income on swaps, net | (45.1) | (17.2) | (268.0) | (122.8) | |||||||||||||||||||
| Loss (gain) on investment in BellRing | 45.7 | — | (437.1) | — | |||||||||||||||||||
| Other income, net | (5.8) | (9.5) | (19.8) | (29.3) | |||||||||||||||||||
| Earnings before Income Taxes and Equity Method Loss | 146.6 | 28.5 | 895.3 | 214.0 | |||||||||||||||||||
| Income tax expense (benefit) | 42.4 | (4.8) | 85.7 | 58.2 | |||||||||||||||||||
| Equity method loss, net of tax | 17.8 | 17.4 | 67.1 | 43.9 | |||||||||||||||||||
| Net Earnings from Continuing Operations, Including Noncontrolling Interests | 86.4 | 15.9 | 742.5 | 111.9 | |||||||||||||||||||
| Less: Net earnings attributable to noncontrolling interests from continuing operations | 2.5 | 7.6 | 7.5 | 7.0 | |||||||||||||||||||
| Net Earnings from Continuing Operations | 83.9 | 8.3 | 735.0 | 104.9 | |||||||||||||||||||
| Net earnings from discontinued operations, net of tax and noncontrolling interest | — | 21.6 | 21.6 | 61.8 | |||||||||||||||||||
| Net Earnings | $ | 83.9 | $ | 29.9 | $ | 756.6 | $ | 166.7 | |||||||||||||||
| Earnings from Continuing Operations per Common Share: | |||||||||||||||||||||||
| Basic | $ | 1.39 | $ | 0.06 | $ | 12.07 | $ | 1.46 | |||||||||||||||
| Diluted | $ | 1.32 | $ | 0.06 | $ | 11.75 | $ | 1.44 | |||||||||||||||
| Earnings from Discontinued Operations per Common Share: | |||||||||||||||||||||||
| Basic | $ | — | $ | 0.34 | $ | 0.35 | $ | 0.96 | |||||||||||||||
| Diluted | $ | — | $ | 0.33 | $ | 0.34 | $ | 0.94 | |||||||||||||||
| Earnings per Common Share: | |||||||||||||||||||||||
| Basic | $ | 1.39 | $ | 0.40 | $ | 12.42 | $ | 2.42 | |||||||||||||||
| Diluted | $ | 1.32 | $ | 0.39 | $ | 12.09 | $ | 2.38 | |||||||||||||||
| Weighted-Average Common Shares Outstanding: | |||||||||||||||||||||||
| Basic | 59.2 | 63.5 | 60.9 | 64.2 | |||||||||||||||||||
| Diluted | 63.8 | 64.6 | 62.7 | 65.3 | |||||||||||||||||||
8
CONSOLIDATED BALANCE SHEETS (Unaudited)
(in millions)
| September 30, 2022 | September 30, 2021 | ||||||||||
| ASSETS | |||||||||||
| Current Assets | |||||||||||
| Cash and cash equivalents | $ | 586.5 | $ | 664.5 | |||||||
| Restricted cash | 3.6 | 7.1 | |||||||||
| Receivables, net | 544.2 | 452.4 | |||||||||
| Inventories | 549.1 | 476.6 | |||||||||
| Investment in BellRing | 94.8 | — | |||||||||
| Current investments held in trust | 346.8 | — | |||||||||
| Current assets of discontinued operations | — | 385.7 | |||||||||
| Prepaid expenses and other current assets | 98.4 | 99.8 | |||||||||
| Total Current Assets | 2,223.4 | 2,086.1 | |||||||||
| Property, net | 1,751.9 | 1,830.5 | |||||||||
| Goodwill | 4,349.6 | 4,501.6 | |||||||||
| Other intangible assets, net | 2,712.2 | 2,924.4 | |||||||||
| Equity method investments | 4.1 | 70.7 | |||||||||
| Investments held in trust | — | 345.0 | |||||||||
| Other assets of discontinued operations | — | 308.4 | |||||||||
| Other assets | 266.8 | 348.0 | |||||||||
| Total Assets | $ | 11,308.0 | $ | 12,414.7 | |||||||
| LIABILITIES AND SHAREHOLDERS’ EQUITY | |||||||||||
| Current Liabilities | |||||||||||
| Current portion of long-term debt | $ | 1.1 | $ | 1.1 | |||||||
| Accounts payable | 452.7 | 384.2 | |||||||||
| Current liabilities of discontinued operations | — | 248.9 | |||||||||
| Other current liabilities | 370.0 | 415.0 | |||||||||
| Total Current Liabilities | 823.8 | 1,049.2 | |||||||||
| Long-term debt | 5,956.6 | 6,441.6 | |||||||||
| Deferred income taxes | 688.4 | 729.1 | |||||||||
| Other liabilities of discontinued operations | — | 627.7 | |||||||||
| Other liabilities | 266.9 | 507.9 | |||||||||
| Total Liabilities | 7,735.7 | 9,355.5 | |||||||||
| Redeemable Noncontrolling Interest | 306.6 | 305.0 | |||||||||
| Shareholders’ Equity | |||||||||||
| Preferred stock | — | — | |||||||||
| Common stock | 0.9 | 0.9 | |||||||||
| Additional paid-in capital | 4,748.2 | 4,253.5 | |||||||||
| Retained earnings | 1,109.0 | 347.3 | |||||||||
| Accumulated other comprehensive (loss) income | (262.9) | 42.9 | |||||||||
| Treasury stock, at cost | (2,341.2) | (1,902.2) | |||||||||
| Total Shareholders’ Equity Excluding Noncontrolling Interests | 3,254.0 | 2,742.4 | |||||||||
| Noncontrolling interests | 11.7 | 11.8 | |||||||||
| Total Shareholders’ Equity | 3,265.7 | 2,754.2 | |||||||||
| Total Liabilities and Shareholders’ Equity | $ | 11,308.0 | $ | 12,414.7 | |||||||
9
SELECTED CONDENSED CONSOLIDATED CASH FLOWS FROM CONTINUING OPERATIONS
INFORMATION (Unaudited)
INFORMATION (Unaudited)
(in millions)
| Year Ended September 30, | |||||||||||
| 2022 | 2021 | ||||||||||
| Cash provided by (used in): | |||||||||||
| Operating activities | $ | 384.2 | $ | 362.1 | |||||||
| Investing activities, including capital expenditures of $255.3 and $190.9 | (220.2) | (792.0) | |||||||||
| Financing activities | (237.2) | (46.6) | |||||||||
| Effect of exchange rate changes on cash, cash equivalents and restricted cash | (8.3) | 3.4 | |||||||||
| Net decrease in cash, cash equivalents and restricted cash | $ | (81.5) | $ | (473.1) | |||||||
SEGMENT INFORMATION (Unaudited)
(in millions)
| Three Months Ended September 30, | Year Ended September 30, | ||||||||||||||||||||||||||||
| 2022 | 2021 | 2022 | 2021 | ||||||||||||||||||||||||||
| Net Sales | |||||||||||||||||||||||||||||
| Post Consumer Brands | $ | 587.6 | $ | 521.7 | $ | 2,242.7 | $ | 1,915.3 | |||||||||||||||||||||
| Weetabix | 116.8 | 127.2 | 477.3 | 477.5 | |||||||||||||||||||||||||
| Foodservice | 625.5 | 456.8 | 2,095.0 | 1,615.6 | |||||||||||||||||||||||||
| Refrigerated Retail | 249.2 | 251.1 | 1,036.6 | 974.5 | |||||||||||||||||||||||||
| Eliminations and Corporate | — | (0.9) | (0.4) | (2.2) | |||||||||||||||||||||||||
| Total | $ | 1,579.1 | $ | 1,355.9 | $ | 5,851.2 | $ | 4,980.7 | |||||||||||||||||||||
| Segment Profit | |||||||||||||||||||||||||||||
| Post Consumer Brands | $ | 82.0 | $ | 66.5 | $ | 314.6 | $ | 316.6 | |||||||||||||||||||||
| Weetabix | 27.7 | 32.8 | 109.5 | 115.4 | |||||||||||||||||||||||||
| Foodservice | 70.0 | 14.2 | 151.0 | 61.7 | |||||||||||||||||||||||||
| Refrigerated Retail | 16.1 | 3.7 | 57.1 | 75.9 | |||||||||||||||||||||||||
| Total segment profit | 195.8 | 117.2 | 632.2 | 569.6 | |||||||||||||||||||||||||
| General corporate expenses and other | 58.1 | 23.0 | 196.8 | 52.6 | |||||||||||||||||||||||||
| Interest expense, net | 72.2 | 82.9 | 317.8 | 332.6 | |||||||||||||||||||||||||
| (Gain) loss on extinguishment of debt, net | (81.7) | — | (72.6) | 93.2 | |||||||||||||||||||||||||
| Income on swaps, net | (45.1) | (17.2) | (268.0) | (122.8) | |||||||||||||||||||||||||
| Loss (gain) on investment in BellRing | 45.7 | — | (437.1) | — | |||||||||||||||||||||||||
| Earnings before Income Taxes and Equity Method Loss | $ | 146.6 | $ | 28.5 | $ | 895.3 | $ | 214.0 | |||||||||||||||||||||
SUPPLEMENTAL REFRIGERATED RETAIL SEGMENT INFORMATION (Unaudited)
The below table presents volume percentage changes for the current quarter compared to the prior year quarter for products within the Refrigerated Retail segment.
| Product | Volume Percentage Change | |||||||
All (1) | (15.0%) | |||||||
| Side dishes | (1.1%) | |||||||
Egg (2) | (37.9%) | |||||||
| Cheese | (21.7%) | |||||||
| Sausage | (1.2%) | |||||||
(1) Excluding the contribution from Willamette in the prior year period, volume percentage change was (7.1)%. | ||||||||
(2) Excluding the contribution from Willamette in the prior year period, volume percentage change was (13.3)%. | ||||||||
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EXPLANATION AND RECONCILIATION OF NON-GAAP MEASURES
Post uses certain non-GAAP measures in this release to supplement the financial measures prepared in accordance with U.S. generally accepted accounting principles (“GAAP”). These non-GAAP measures include total segment profit, Adjusted net earnings from continuing operations, Adjusted diluted earnings from continuing operations per common share, Adjusted EBITDA and segment Adjusted EBITDA. The reconciliation of each of these non-GAAP measures to the most directly comparable GAAP measure is provided in the tables following this section. Non-GAAP measures are not prepared in accordance with GAAP, as they exclude certain items as described below. These non-GAAP measures may not be comparable to similarly titled measures of other companies.
Total segment profit
Total segment profit represents the aggregation of the segment profit for each of Post’s reportable segments, which for all segments is each segment’s earnings/loss before income taxes and equity method earnings/loss before impairment of property, goodwill and other intangible assets, facility closure related costs, restructuring expenses, gain/loss on assets and liabilities held for sale, gain/loss on sale of businesses and facilities, gain on/adjustment to bargain purchase, interest expense and other unallocated corporate income and expenses. Post believes total segment profit is useful to investors in evaluating Post’s operating performance because it facilitates period-to-period comparison of results of segment operations.
Adjusted net earnings from continuing operations and Adjusted diluted earnings from continuing operations per common share
Post believes Adjusted net earnings from continuing operations and Adjusted diluted earnings from continuing operations per common share are useful to investors in evaluating Post’s operating performance because they exclude items that affect the comparability of Post’s financial results and could potentially distort an understanding of the trends in business performance.
Adjusted net earnings from continuing operations and Adjusted diluted earnings from continuing operations per common share are adjusted for the following items:
a.Gain/loss on investment in BellRing: Post has excluded the impact of its gain/loss on investment in BellRing due to the inherent volatility associated with such amount based on changes in market pricing variations and as the amount and frequency of such adjustments are not consistent. Additionally, Post believes that these gains and losses do not reflect expected ongoing future operating income and expenses and do not contribute to a meaningful evaluation of Post’s current operating performance or comparisons of Post’s operating performance to other periods.
b.Income/expense on swaps, net: Post has excluded the impact of mark-to-market adjustments on interest rate swaps due to the inherent uncertainty and volatility associated with such amounts based on changes in assumptions with respect to estimates of fair value and economic conditions and as the amount and frequency of such adjustments are not consistent.
c.Debt premiums and tender fees paid/discounts received, net: Post has excluded payments and other expenses for premiums and tender fees on debt extinguishment, net of gains realized on debt repurchased at a discount, as such payments are inconsistent in amount and frequency. Additionally, Post believes that these costs do not reflect expected ongoing future operating expenses and do not contribute to a meaningful evaluation of Post’s current operating performance or comparisons of Post’s operating performance to other periods.
d.Mark-to-market adjustments on commodity and foreign exchange hedges and warrant liabilities: Post has excluded the impact of mark-to-market adjustments on commodity and foreign exchange hedges and warrant liabilities due to the inherent uncertainty and volatility associated with such amounts based on changes in assumptions with respect to fair value estimates. Additionally, these adjustments are primarily non-cash items and the amount and frequency of such adjustments are not consistent.
e.Transaction costs and integration costs: Post has excluded transaction costs related to professional service fees and other related costs associated with signed and closed business combinations and divestitures, costs incurred in connection with Post’s distribution of its interest in BellRing, costs associated with setting up a special purpose acquisition company and integration costs incurred to integrate acquired or to-be-acquired businesses as Post believes that these exclusions allow for more meaningful evaluation of Post’s current operating performance and comparisons of Post’s operating performance to other periods. Post believes such costs are generally not relevant to assessing or estimating the long-term performance of acquired assets as part of Post or the performance of the divested assets, and such costs are not factored into management’s evaluation of potential acquisitions or Post’s performance after completion of an acquisition or the evaluation to divest an asset or set up a special purpose acquisition company. In addition, the frequency and amount of such charges varies significantly based on the size and timing of the transaction and the maturity of the businesses being acquired or divested. Also, the size, complexity and/or volume of past transactions, which often drive the magnitude of such expenses, may not be indicative of the size, complexity and/or volume of future transactions. By excluding these expenses, management is better able to evaluate Post’s ability to utilize its existing assets and estimate the long-term value that acquired assets will generate for Post.
f.Provision for legal settlements: Post has excluded gains and losses recorded to recognize the anticipated or actual resolution of certain litigation as Post believes such gains and losses do not reflect expected ongoing future operating
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income and expenses and do not contribute to a meaningful evaluation of Post’s current operating performance or comparisons of Post’s operating performance to other periods.
g.Gain on/adjustment to bargain purchase: Post has excluded gains recorded for acquisitions in which the fair value of the assets acquired exceeded the purchase price and adjustments to such gains as such amounts are inconsistent in amount and frequency. Post believes such gains and adjustments are generally not relevant to assessing or estimating the long-term performance of acquired assets as part of Post, and such amounts are not factored into the performance of acquisitions after their completion.
h.Mark-to-market adjustments on equity securities: Post has excluded the impact of mark-to-market adjustments on investments in equity securities due to the inherent volatility associated with such amounts based on changes in market pricing variations and as the amount and frequency of such adjustments are not consistent. Additionally, these adjustments are primarily non-cash items and do not contribute to a meaningful evaluation of Post’s current operating performance or comparisons of Post’s operating performance to other periods.
i.Gain/loss on assets held for sale: Post has excluded gains and losses recorded to adjust the carrying value of facilities and other assets classified as held for sale as the amount and frequency of such adjustments are not consistent. Additionally, Post believes that these gains and losses do not reflect expected ongoing future operating income and expenses and do not contribute to a meaningful evaluation of Post’s current operating performance or comparisons of Post’s operating performance to other periods.
j.Restructuring and facility closure costs: Post has excluded certain costs associated with facility closures as the amount and frequency of such adjustments are not consistent. Additionally, Post believes that these costs do not reflect expected ongoing future operating expenses and do not contribute to a meaningful evaluation of Post’s current operating performance or comparisons of Post’s operating performance to other periods.
k.Gain/loss on sale of business: Post has excluded gains and losses recorded on divestitures as the amount and frequency of such adjustments are not consistent. Additionally, Post believes that these gains and losses do not reflect expected ongoing future operating income and expenses and do not contribute to a meaningful evaluation of Post’s current operating performance or comparisons of Post’s operating performance to other periods.
l.Asset disposal costs: Post has excluded costs recorded in connection with the disposal of certain assets which were never put into use as the amount and frequency of these costs are not consistent. Additionally, Post believes that these costs do not reflect expected ongoing future operating expenses and do not contribute to a meaningful evaluation of Post’s current operating performance or comparisons of Post’s operating performance to other periods.
m.Costs expected to be indemnified, net: Post has excluded certain costs incurred and expected to be indemnified in connection with damaged assets and gains related to indemnification proceeds received above the carrying value of damaged assets, as Post believes such gains and losses do not reflect expected ongoing future operating income and expenses and do not contribute to a meaningful evaluation of Post’s current operating performance or comparisons of Post’s operating performance to other periods.
n.Inventory revaluation adjustment on acquired businesses: Post has excluded the impact of fair value step-up adjustments to inventory in connection with business combinations as such adjustments represent non-cash items, are not consistent in amount and frequency and are significantly impacted by the timing and size of Post’s acquisitions.
o.Purchase price adjustment on acquisition: Post has excluded adjustments to the purchase price of an acquisition in excess of one year beyond the acquisition date as such amounts are inconsistent in amount and frequency. Post believes such costs are generally not relevant to assessing or estimating the long-term performance of acquired assets as part of Post, and such amounts are not factored into the performance of acquisitions after completion of acquisitions.
p.Adjustment to tax receivable agreement (“TRA”) liability: Post has excluded adjustments to BellRing’s TRA liability with Post as the amount and frequency of such adjustments are not consistent. Additionally, Post believes that these adjustments do not contribute to a meaningful evaluation of Post’s current operating performance or comparisons of Post’s operating performance to other periods.
q.Advisory income: Post has excluded advisory income received from 8th Avenue as Post believes such income does not contribute to a meaningful evaluation of Post’s current operating performance or comparisons of Post’s operating performance to other periods.
r.Noncontrolling interest adjustment: Post has included an adjustment to reflect the removal of the portion of the non-GAAP adjustments related to PHPC which are attributable to noncontrolling interest (“NCI”) in the calculation of Adjusted net earnings from continuing operations and Adjusted diluted earnings from continuing operations per common share.
s.Income tax effect on adjustments: Post has included the income tax impact of the non-GAAP adjustments using a rate described in the applicable footnote of the reconciliation tables, as Post believes that its GAAP effective income tax rate as reported is not representative of the income tax expense impact of the adjustments.
t.U.K. tax reform expense: Post has excluded the impact of the income tax expense recorded during fiscal years 2022 and 2021 which reflected the remeasurement of Post’s U.K. deferred tax assets and liabilities considering a 25% U.K. corporate income tax rate for future periods. Post believes that the expense as reported is not representative of Post’s
12
current income tax position and exclusion of the expense allows for more meaningful comparisons of Post’s operating performance to other periods.
Adjusted EBITDA and segment Adjusted EBITDA
Post believes that Adjusted EBITDA is useful to investors in evaluating Post’s operating performance and liquidity because (i) Post believes it is widely used to measure a company’s operating performance without regard to items such as depreciation and amortization, which can vary depending upon accounting methods and the book value of assets, (ii) it presents a measure of corporate performance exclusive of Post’s capital structure and the method by which the assets were acquired and (iii) it is a financial indicator of a company’s ability to service its debt, as Post is required to comply with certain covenants and limitations that are based on variations of EBITDA in its financing documents. Post believes that segment Adjusted EBITDA is useful to investors in evaluating Post’s operating performance because it allows for assessment of the operating performance of each reportable segment. Management uses Adjusted EBITDA to provide forward-looking guidance and uses Adjusted EBITDA and segment Adjusted EBITDA to forecast future results.
Adjusted EBITDA and segment Adjusted EBITDA reflect adjustments for income tax expense/benefit, interest expense, net and depreciation and amortization, and the following adjustments discussed above: gain/loss on investment in BellRing, income/expense on swaps, net, mark-to-market adjustments on commodity and foreign exchange hedges and warrant liabilities, transaction costs and integration costs, provision for legal settlements, gain on/adjustment to bargain purchase, mark-to-market adjustments on equity securities, gain/loss on assets held for sale, restructuring and facility closure costs, gain/loss on sale of business, asset disposal costs, costs expected to be indemnified, net, inventory revaluation adjustment on acquired businesses, purchase price adjustment on acquisition, adjustment to TRA liability and advisory income. Additionally, Adjusted EBITDA and segment Adjusted EBITDA reflect adjustments for the following items:
u.Gain/loss on extinguishment of debt, net: Post has excluded gains and losses recorded on extinguishment of debt, inclusive of payments for premiums, the write-off of debt issuance costs and tender fees and the write-off of net unamortized debt premiums, net of gains realized on debt repurchased at a discount, as such gains and losses are inconsistent in amount and frequency. Additionally, Post believes that these gains and losses do not reflect expected ongoing future operating income and expenses and do not contribute to a meaningful evaluation of Post’s current operating performance or comparisons of Post’s operating performance to other periods.
v.Non-cash stock-based compensation: Post’s compensation strategy includes the use of stock-based compensation to attract and retain executives and employees by aligning their long-term compensation interests with shareholders’ investment interests. Post has excluded non-cash stock-based compensation as non-cash stock-based compensation can vary significantly based on reasons such as the timing, size and nature of the awards granted and subjective assumptions which are unrelated to operational decisions and performance in any particular period and does not contribute to meaningful comparisons of Post’s operating performances to other periods.
w.Equity method investment adjustment: Post has included adjustments for the 8th Avenue equity investment loss and Post’s portion of income tax expense/benefit, interest expense, net and depreciation and amortization for Weetabix’s unconsolidated investment accounted for using equity method accounting.
x.Noncontrolling interest adjustment: Post has included adjustments for (i) the portion of PHPC’s consolidated net earnings/loss which was allocated to NCI, resulting in Adjusted EBITDA including 100% of the consolidated Adjusted EBITDA of PHPC, as Post believes this basis contributes to a more meaningful evaluation of the consolidated operating company performance and (ii) income tax expense/benefit, interest expense, net and depreciation and amortization for Weetabix’s consolidated investment which is attributable to the noncontrolling owners of Weetabix’s consolidated investment.
13
RECONCILIATION OF NET EARNINGS FROM CONTINUING OPERATIONS
TO ADJUSTED NET EARNINGS FROM CONTINUING OPERATIONS (Unaudited)
(in millions)
| Three Months Ended September 30, | Year Ended September 30, | |||||||||||||||||||||||||
| 2022 | 2021 | 2022 | 2021 | |||||||||||||||||||||||
| Net Earnings from Continuing Operations | $ | 83.9 | $ | 8.3 | $ | 735.0 | $ | 104.9 | ||||||||||||||||||
| Adjustments: | ||||||||||||||||||||||||||
| Loss (gain) on investment in BellRing | 45.7 | — | (437.1) | — | ||||||||||||||||||||||
| Income on swaps, net | (45.1) | (17.2) | (268.0) | (122.8) | ||||||||||||||||||||||
| Debt discounts (received) / premiums and tender fees paid | (85.5) | — | (72.0) | 74.3 | ||||||||||||||||||||||
| Mark-to-market adjustments on commodity and foreign exchange hedges and warrant liabilities | 17.4 | (7.3) | 14.0 | (54.2) | ||||||||||||||||||||||
| Transaction costs | 1.0 | 1.7 | 32.1 | 5.8 | ||||||||||||||||||||||
| Provision for legal settlements | 13.8 | — | 13.8 | 15.0 | ||||||||||||||||||||||
| Adjustment to (gain on) bargain purchase | — | 1.2 | — | (11.4) | ||||||||||||||||||||||
| Mark-to-market adjustments on equity securities | (0.8) | 2.7 | 1.4 | (9.6) | ||||||||||||||||||||||
| Loss on assets held for sale | 0.4 | — | (9.4) | (0.5) | ||||||||||||||||||||||
| Integration costs | 1.3 | 2.5 | 11.1 | 4.1 | ||||||||||||||||||||||
| Restructuring and facility closure costs | 1.8 | 0.1 | 11.1 | 0.4 | ||||||||||||||||||||||
| Loss on sale of business | — | — | 6.3 | — | ||||||||||||||||||||||
| Asset disposal costs | — | 6.0 | 6.1 | 6.0 | ||||||||||||||||||||||
| Costs expected to be indemnified, net | (4.4) | — | (1.6) | — | ||||||||||||||||||||||
| Inventory revaluation adjustment on acquired businesses | — | 1.6 | 0.6 | 3.4 | ||||||||||||||||||||||
| Purchase price adjustment on acquisition | — | — | (1.2) | — | ||||||||||||||||||||||
| Adjustment to TRA liability | — | — | — | 0.4 | ||||||||||||||||||||||
| Advisory income | (0.2) | (0.2) | (0.6) | (0.6) | ||||||||||||||||||||||
| Noncontrolling interest adjustment | 1.3 | 6.3 | 5.6 | 5.2 | ||||||||||||||||||||||
| Total Net Adjustments | (53.3) | (2.6) | (687.8) | (84.5) | ||||||||||||||||||||||
Income tax effect on adjustments (1) | 23.0 | 0.4 | 57.4 | 14.2 | ||||||||||||||||||||||
| U.K. tax reform expense | 0.5 | 0.7 | 0.9 | 40.0 | ||||||||||||||||||||||
| Adjusted Net Earnings from Continuing Operations | $ | 54.1 | $ | 6.8 | $ | 105.5 | $ | 74.6 | ||||||||||||||||||
(1) For all periods, income tax effect on adjustments was calculated on all items, except loss (gain) on investment in BellRing, income on swaps, net, transaction costs and adjustment to (gain on) bargain purchase, using a rate of 24.5%, the sum of Post’s U.S. federal corporate income tax rate plus Post’s blended state income tax rate, net of federal income tax benefit. Income tax effect for income on swaps, net was calculated using a rate of 21.5%. Income tax effect for loss (gain) on investment in BellRing and adjustment to (gain on) bargain purchase were calculated using a rate of 0.0%. Income tax effect for transaction costs was calculated using a rate of 12.0% for the three months and year ended September 30, 2022 and 24.5% for the three months and year ended September 30, 2021. | ||||||||||||||||||||||||||
14
RECONCILIATION OF DILUTED EARNINGS FROM CONTINUING OPERATIONS PER COMMON SHARE
TO ADJUSTED DILUTED EARNINGS FROM CONTINUING OPERATIONS PER COMMON SHARE (Unaudited)
| Three Months Ended September 30, | Year Ended September 30, | |||||||||||||||||||||||||
| 2022 | 2021 | 2022 | 2021 | |||||||||||||||||||||||
| Diluted Earnings from Continuing Operations per Common Share | $ | 1.32 | $ | 0.06 | $ | 11.75 | $ | 1.44 | ||||||||||||||||||
Adjustment to Diluted Earnings from Continuing Operations per Common Share for impact of redeemable noncontrolling interest and interest expense, net of tax, related to convertible senior notes (1) | — | 0.07 | (0.02) | 0.17 | ||||||||||||||||||||||
| Adjustments: | ||||||||||||||||||||||||||
| Loss (gain) on investment in BellRing | 0.72 | — | (6.97) | — | ||||||||||||||||||||||
| Income on swaps, net | (0.71) | (0.27) | (4.27) | (1.88) | ||||||||||||||||||||||
| Debt discounts (received) / premiums and tender fees paid | (1.34) | — | (1.15) | 1.14 | ||||||||||||||||||||||
| Mark-to-market adjustments on commodity and foreign exchange hedges and warrant liabilities | 0.27 | (0.11) | 0.22 | (0.83) | ||||||||||||||||||||||
| Transaction costs | 0.01 | 0.03 | 0.51 | 0.09 | ||||||||||||||||||||||
| Provision for legal settlements | 0.22 | — | 0.22 | 0.23 | ||||||||||||||||||||||
| Adjustment to (gain on) bargain purchase | — | 0.02 | — | (0.17) | ||||||||||||||||||||||
| Mark-to-market adjustments on equity securities | (0.01) | 0.04 | 0.02 | (0.15) | ||||||||||||||||||||||
| Loss on assets held for sale | — | — | (0.15) | (0.01) | ||||||||||||||||||||||
| Integration costs | 0.02 | 0.04 | 0.18 | 0.06 | ||||||||||||||||||||||
| Restructuring and facility closure costs | 0.03 | — | 0.18 | 0.01 | ||||||||||||||||||||||
| Loss on sale of business | — | — | 0.10 | — | ||||||||||||||||||||||
| Asset disposal costs | — | 0.09 | 0.10 | 0.09 | ||||||||||||||||||||||
| Costs expected to be indemnified, net | (0.07) | — | (0.03) | — | ||||||||||||||||||||||
| Inventory revaluation adjustment on acquired businesses | — | 0.02 | 0.01 | 0.05 | ||||||||||||||||||||||
| Purchase price adjustment on acquisition | — | — | (0.02) | — | ||||||||||||||||||||||
| Advisory income | — | — | (0.01) | (0.01) | ||||||||||||||||||||||
| Noncontrolling interest adjustment | 0.02 | 0.10 | 0.09 | 0.08 | ||||||||||||||||||||||
| Total Net Adjustments | (0.84) | (0.04) | (10.97) | (1.30) | ||||||||||||||||||||||
Income tax effect on adjustments (2) | 0.36 | 0.01 | 0.91 | 0.22 | ||||||||||||||||||||||
| U.K. tax reform expense | 0.01 | 0.01 | 0.01 | 0.61 | ||||||||||||||||||||||
| Adjusted Diluted Earnings from Continuing Operations per Common Share | $ | 0.85 | $ | 0.11 | $ | 1.68 | $ | 1.14 | ||||||||||||||||||
(1) Represents the exclusion of the portion of the PHPC deemed dividend (which represents remeasurements to the redemption value of the redeemable NCI) that exceeded fair value and interest expense, net of tax, associated with the convertible notes, both of which were treated as adjustments to income available to common shareholders for diluted earnings from continuing operations per common share. Post believes this exclusion allows for more meaningful comparison of performance to other periods. | ||||||||||||||||||||||||||
(2) For all periods, income tax effect on adjustments was calculated on all items, except loss (gain) on investment in BellRing, income on swaps, net, transaction costs and adjustment to (gain on) bargain purchase, using a rate of 24.5%, the sum of Post’s U.S. federal corporate income tax rate plus Post’s blended state income tax rate, net of federal income tax benefit. Income tax effect for income/expense on swaps, net was calculated using a rate of 21.5%. Income tax effect for loss (gain) on investment in BellRing and adjustment to (gain on) bargain purchase were calculated using a rate of 0.0%. Income tax effect for transaction costs was calculated using a rate of 12.0% for the three months and year ended September 30, 2022 and 24.5% for the three months and year ended September 30, 2021. | ||||||||||||||||||||||||||
15
RECONCILIATION OF NET EARNINGS FROM CONTINUING OPERATIONS TO ADJUSTED EBITDA (Unaudited)
(in millions)
| Three Months Ended September 30, | Year Ended September 30, | ||||||||||||||||||||||
| 2022 | 2021 | 2022 | 2021 | ||||||||||||||||||||
| Net Earnings from Continuing Operations | $ | 83.9 | $ | 8.3 | $ | 735.0 | $ | 104.9 | |||||||||||||||
| Income tax expense (benefit) | 42.4 | (4.8) | 85.7 | 58.2 | |||||||||||||||||||
| Interest expense, net | 72.2 | 82.9 | 317.8 | 332.6 | |||||||||||||||||||
| Depreciation and amortization | 94.7 | 97.9 | 380.2 | 366.5 | |||||||||||||||||||
| Loss (gain) on investment in BellRing | 45.7 | — | (437.1) | — | |||||||||||||||||||
| Income on swaps, net | (45.1) | (17.2) | (268.0) | (122.8) | |||||||||||||||||||
| (Gain) loss on extinguishment of debt, net | (81.7) | — | (72.6) | 93.2 | |||||||||||||||||||
| Non-cash stock-based compensation | 17.5 | 12.1 | 65.8 | 48.7 | |||||||||||||||||||
| Equity method investment adjustment | 17.8 | 17.4 | 67.1 | 44.1 | |||||||||||||||||||
| Mark-to-market adjustments on commodity and foreign exchange hedges and warrant liabilities | 17.4 | (7.3) | 14.0 | (54.2) | |||||||||||||||||||
| Transaction costs | 1.0 | 1.7 | 32.1 | 5.8 | |||||||||||||||||||
| Provision for legal settlements | 13.8 | — | 13.8 | 15.0 | |||||||||||||||||||
| Adjustment to (gain on) bargain purchase | — | 1.2 | — | (11.4) | |||||||||||||||||||
| Mark-to-market adjustments on equity securities | (0.8) | 2.7 | 1.4 | (9.6) | |||||||||||||||||||
| Loss on assets held for sale | 0.4 | — | (9.4) | (0.5) | |||||||||||||||||||
| Integration costs | 1.3 | 2.5 | 11.1 | 4.1 | |||||||||||||||||||
| Restructuring and facility closure costs | 1.8 | 0.1 | 11.1 | 0.4 | |||||||||||||||||||
| Loss on sale of business | — | — | 6.3 | — | |||||||||||||||||||
| Asset disposal costs | — | 6.0 | 6.1 | 6.0 | |||||||||||||||||||
| Noncontrolling interest adjustment | 2.0 | 7.1 | 5.9 | 5.2 | |||||||||||||||||||
| Costs expected to be indemnified, net | (4.4) | — | (1.6) | — | |||||||||||||||||||
| Inventory revaluation adjustment on acquired businesses | — | 1.6 | 0.6 | 3.4 | |||||||||||||||||||
| Purchase price adjustment on acquisition | — | — | (1.2) | — | |||||||||||||||||||
| Adjustment to TRA liability | — | — | — | 0.4 | |||||||||||||||||||
| Advisory income | (0.2) | (0.2) | (0.6) | (0.6) | |||||||||||||||||||
| Adjusted EBITDA | $ | 279.7 | $ | 212.0 | $ | 963.5 | $ | 889.4 | |||||||||||||||
| Adjusted EBITDA as a percentage of Net Sales | 17.7 | % | 15.6 | % | 16.5 | % | 17.9 | % | |||||||||||||||
16
RECONCILIATION OF SEGMENT PROFIT TO ADJUSTED EBITDA (Unaudited)
THREE MONTHS ENDED SEPTEMBER 30, 2022
(in millions)
| Post Consumer Brands | Weetabix | Foodservice | Refrigerated Retail | Corporate/ Other | Total | ||||||||||||||||||||||||||||||
| Segment Profit | $ | 82.0 | $ | 27.7 | $ | 70.0 | $ | 16.1 | $ | — | $ | 195.8 | |||||||||||||||||||||||
| General corporate expenses and other | — | — | — | — | (58.1) | (58.1) | |||||||||||||||||||||||||||||
| Other expense, net | — | — | — | — | (5.8) | (5.8) | |||||||||||||||||||||||||||||
| Operating Profit | 82.0 | 27.7 | 70.0 | 16.1 | (63.9) | 131.9 | |||||||||||||||||||||||||||||
| Other expense, net | — | — | — | — | 5.8 | 5.8 | |||||||||||||||||||||||||||||
| Depreciation and amortization | 32.1 | 9.7 | 32.2 | 19.7 | 1.0 | 94.7 | |||||||||||||||||||||||||||||
| Non-cash stock-based compensation | — | — | — | — | 17.5 | 17.5 | |||||||||||||||||||||||||||||
| Mark-to-market adjustments on commodity and foreign exchange hedges and warrant liabilities | — | 0.1 | (2.0) | — | 19.3 | 17.4 | |||||||||||||||||||||||||||||
| Transaction costs | — | — | — | — | 1.0 | 1.0 | |||||||||||||||||||||||||||||
| Provision for legal settlements | — | — | 13.8 | — | — | 13.8 | |||||||||||||||||||||||||||||
| Mark-to-market adjustments on equity securities | — | — | — | — | (0.8) | (0.8) | |||||||||||||||||||||||||||||
| Loss on assets held for sale | — | — | — | — | 0.4 | 0.4 | |||||||||||||||||||||||||||||
| Integration costs | 1.3 | — | — | — | — | 1.3 | |||||||||||||||||||||||||||||
| Restructuring and facility closure costs | — | — | — | — | 1.8 | 1.8 | |||||||||||||||||||||||||||||
| Noncontrolling interest adjustment | — | (0.5) | — | — | — | (0.5) | |||||||||||||||||||||||||||||
| Costs expected to be indemnified, net | — | — | (4.4) | — | — | (4.4) | |||||||||||||||||||||||||||||
| Advisory income | — | — | — | — | (0.2) | (0.2) | |||||||||||||||||||||||||||||
| Adjusted EBITDA | $ | 115.4 | $ | 37.0 | $ | 109.6 | $ | 35.8 | $ | (18.1) | $ | 279.7 | |||||||||||||||||||||||
| Adjusted EBITDA as a percentage of Net Sales | 19.6 | % | 31.7 | % | 17.5 | % | 14.4 | % | — | 17.7 | % | ||||||||||||||||||||||||
17
RECONCILIATION OF SEGMENT PROFIT TO ADJUSTED EBITDA (Unaudited)
THREE MONTHS ENDED SEPTEMBER 30, 2021
(in millions)
| Post Consumer Brands | Weetabix | Foodservice | Refrigerated Retail | Corporate/ Other | Total | ||||||||||||||||||||||||||||||
| Segment Profit | $ | 66.5 | $ | 32.8 | $ | 14.2 | $ | 3.7 | $ | — | $ | 117.2 | |||||||||||||||||||||||
| General corporate expenses and other | — | — | — | — | (23.0) | (23.0) | |||||||||||||||||||||||||||||
| Other income, net | — | — | — | — | (9.5) | (9.5) | |||||||||||||||||||||||||||||
| Operating Profit | 66.5 | 32.8 | 14.2 | 3.7 | (32.5) | 84.7 | |||||||||||||||||||||||||||||
| Other income, net | — | — | — | — | 9.5 | 9.5 | |||||||||||||||||||||||||||||
| Depreciation and amortization | 34.6 | 10.4 | 31.7 | 20.3 | 0.9 | 97.9 | |||||||||||||||||||||||||||||
| Non-cash stock-based compensation | — | — | — | — | 12.1 | 12.1 | |||||||||||||||||||||||||||||
| Mark-to-market adjustments on commodity and foreign exchange hedges and warrant liabilities | — | — | 3.7 | — | (11.0) | (7.3) | |||||||||||||||||||||||||||||
| Transaction costs | — | — | — | — | 1.7 | 1.7 | |||||||||||||||||||||||||||||
| Adjustment to bargain purchase | — | — | — | — | 1.2 | 1.2 | |||||||||||||||||||||||||||||
| Mark-to-market adjustments on equity securities | — | — | — | — | 2.7 | 2.7 | |||||||||||||||||||||||||||||
| Integration costs | 2.5 | — | — | — | — | 2.5 | |||||||||||||||||||||||||||||
| Restructuring and facility closure costs | — | — | — | — | 0.1 | 0.1 | |||||||||||||||||||||||||||||
| Asset disposal costs | — | — | 6.0 | — | — | 6.0 | |||||||||||||||||||||||||||||
| Noncontrolling interest adjustment | — | (0.5) | — | — | — | (0.5) | |||||||||||||||||||||||||||||
| Inventory revaluation adjustment on acquired businesses | 1.6 | — | — | — | — | 1.6 | |||||||||||||||||||||||||||||
| Advisory income | — | — | — | — | (0.2) | (0.2) | |||||||||||||||||||||||||||||
| Adjusted EBITDA | $ | 105.2 | $ | 42.7 | $ | 55.6 | $ | 24.0 | $ | (15.5) | $ | 212.0 | |||||||||||||||||||||||
| Adjusted EBITDA as a percentage of Net Sales | 20.2 | % | 33.6 | % | 12.2 | % | 9.6 | % | — | 15.6 | % | ||||||||||||||||||||||||
18
RECONCILIATION OF SEGMENT PROFIT TO ADJUSTED EBITDA (Unaudited)
YEAR ENDED SEPTEMBER 30, 2022
(in millions)
| Post Consumer Brands | Weetabix | Foodservice | Refrigerated Retail | Corporate/ Other | Total | ||||||||||||||||||||||||||||||
| Segment Profit | $ | 314.6 | $ | 109.5 | $ | 151.0 | $ | 57.1 | $ | — | $ | 632.2 | |||||||||||||||||||||||
| General corporate expenses and other | — | — | — | — | (196.8) | (196.8) | |||||||||||||||||||||||||||||
| Other income, net | — | — | — | — | (19.8) | (19.8) | |||||||||||||||||||||||||||||
| Operating Profit | 314.6 | 109.5 | 151.0 | 57.1 | (216.6) | 415.6 | |||||||||||||||||||||||||||||
| Other expense, net | — | — | — | — | 19.8 | 19.8 | |||||||||||||||||||||||||||||
| Depreciation and amortization | 133.1 | 37.5 | 127.5 | 78.4 | 3.7 | 380.2 | |||||||||||||||||||||||||||||
| Non-cash stock-based compensation | — | — | — | — | 65.8 | 65.8 | |||||||||||||||||||||||||||||
| Mark-to-market adjustments on commodity and foreign exchange hedges and warrant liabilities | — | 0.1 | (4.5) | — | 18.4 | 14.0 | |||||||||||||||||||||||||||||
| Transaction costs | — | 0.6 | — | — | 31.5 | 32.1 | |||||||||||||||||||||||||||||
| Provision for legal settlements | — | — | 13.8 | — | — | 13.8 | |||||||||||||||||||||||||||||
| Mark-to-market adjustments on equity securities | — | — | — | — | 1.4 | 1.4 | |||||||||||||||||||||||||||||
| Gain on assets held for sale | — | — | — | — | (9.4) | (9.4) | |||||||||||||||||||||||||||||
| Integration costs | 8.8 | — | — | 2.3 | — | 11.1 | |||||||||||||||||||||||||||||
| Restructuring and facility closure costs | — | — | — | — | 11.1 | 11.1 | |||||||||||||||||||||||||||||
| Loss on sale of business | — | — | — | — | 6.3 | 6.3 | |||||||||||||||||||||||||||||
| Asset disposal costs | — | — | 6.1 | — | — | 6.1 | |||||||||||||||||||||||||||||
| Noncontrolling interest adjustment | — | (1.6) | — | — | — | (1.6) | |||||||||||||||||||||||||||||
| Costs expected to be indemnified, net | — | — | (1.6) | — | — | (1.6) | |||||||||||||||||||||||||||||
| Inventory revaluation adjustment on acquired businesses | — | 0.6 | — | — | — | 0.6 | |||||||||||||||||||||||||||||
| Purchase price adjustment on acquisition | — | — | — | — | (1.2) | (1.2) | |||||||||||||||||||||||||||||
| Advisory income | — | — | — | — | (0.6) | (0.6) | |||||||||||||||||||||||||||||
| Adjusted EBITDA | $ | 456.5 | $ | 146.7 | $ | 292.3 | $ | 137.8 | $ | (69.8) | $ | 963.5 | |||||||||||||||||||||||
| Adjusted EBITDA as a percentage of Net Sales | 20.4 | % | 30.7 | % | 14.0 | % | 13.3 | % | — | 16.5 | % | ||||||||||||||||||||||||
19
RECONCILIATION OF SEGMENT PROFIT TO ADJUSTED EBITDA (Unaudited)
YEAR ENDED SEPTEMBER 30, 2021
(in millions)
| Post Consumer Brands | Weetabix | Foodservice | Refrigerated Retail | Corporate/ Other | Total | ||||||||||||||||||||||||||||||
| Segment Profit | $ | 316.6 | $ | 115.4 | $ | 61.7 | $ | 75.9 | $ | — | $ | 569.6 | |||||||||||||||||||||||
| General corporate expenses and other | — | — | — | — | (52.6) | (52.6) | |||||||||||||||||||||||||||||
| Other income, net | — | — | — | — | (29.3) | (29.3) | |||||||||||||||||||||||||||||
| Operating Profit | 316.6 | 115.4 | 61.7 | 75.9 | (81.9) | 487.7 | |||||||||||||||||||||||||||||
| Other income, net | — | — | — | — | 29.3 | 29.3 | |||||||||||||||||||||||||||||
| Depreciation and amortization | 122.0 | 39.0 | 126.0 | 75.5 | 4.0 | 366.5 | |||||||||||||||||||||||||||||
| Non-cash stock-based compensation | — | — | — | — | 48.7 | 48.7 | |||||||||||||||||||||||||||||
| Equity method investment adjustment | — | 0.2 | — | — | — | 0.2 | |||||||||||||||||||||||||||||
| Mark-to-market adjustments on commodity and foreign exchange hedges and warrant liabilities | — | — | 3.0 | — | (57.2) | (54.2) | |||||||||||||||||||||||||||||
| Transaction costs | — | — | — | — | 5.8 | 5.8 | |||||||||||||||||||||||||||||
| Provision for legal settlements | 15.0 | — | — | — | — | 15.0 | |||||||||||||||||||||||||||||
| Adjustment to bargain purchase | — | — | — | — | (11.4) | (11.4) | |||||||||||||||||||||||||||||
| Mark-to-market adjustments on equity securities | — | — | — | — | (9.6) | (9.6) | |||||||||||||||||||||||||||||
| Gain on assets held for sale | — | — | — | — | (0.5) | (0.5) | |||||||||||||||||||||||||||||
| Integration costs | 3.8 | — | 0.3 | — | — | 4.1 | |||||||||||||||||||||||||||||
| Restructuring and facility closure costs | — | — | — | — | 0.4 | 0.4 | |||||||||||||||||||||||||||||
| Asset disposal costs | — | — | 6.0 | — | — | 6.0 | |||||||||||||||||||||||||||||
| Noncontrolling interest adjustment | — | (1.8) | — | — | — | (1.8) | |||||||||||||||||||||||||||||
| Inventory revaluation adjustment on acquired businesses | 3.1 | — | — | 0.3 | — | 3.4 | |||||||||||||||||||||||||||||
| Adjustment to TRA liability | — | — | — | — | 0.4 | 0.4 | |||||||||||||||||||||||||||||
| Advisory income | — | — | — | — | (0.6) | (0.6) | |||||||||||||||||||||||||||||
| Adjusted EBITDA | $ | 460.5 | $ | 152.8 | $ | 197.0 | $ | 151.7 | $ | (72.6) | $ | 889.4 | |||||||||||||||||||||||
| Adjusted EBITDA as a percentage of Net Sales | 24.0 | % | 32.0 | % | 12.2 | % | 15.6 | % | — | 17.9 | % | ||||||||||||||||||||||||
20