8-K

As filed withthe Securities and Exchange Commission on August 30, 2022

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of report (Date of earliest event reported):  August 30, 2022

Registrant’s telephone number, including

area code:  (973) 401-6500

Securities registered pursuant to Section 12(b) of the Act:

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:

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 8.01 Other Events.

In August 2021, we entered into an “at-the-market” (ATM) equity offering sales agreement (which we refer to in this report as the sales agreement) with BofA Securities, Inc., Barclays Capital Inc., Deutsche Bank Securities Inc., RBC Capital Markets, LLC, BMO Capital Markets Corp., Citigroup Global Markets Inc., Goldman Sachs & Co. LLC, Citizens Capital Markets, Inc., SMBC Nikko Securities America, Inc. and TD Securities (USA) LLC, as sales agents relating to our offering and sale of up to 7,500,000 shares of our common stock, par value $0.01 per share, from time to time through an ATM equity offering program. To date, we have sold 6,547,627 shares of our common stock pursuant to the sales agreement and an automatic shelf registration statement on Form S-3 we filed with the Securities and Exchange Commission (SEC) on August 7, 2019 (File No. 333-233099) (which we refer to in this report as the 2019 shelf registration statement) and a prospectus supplement filed with the SEC on August 23, 2021 and the accompanying prospectus filed with the SEC on August 7, 2019. Following the expiration of the 2019 shelf registration statement on August 7, 2022 pursuant to Rule 415(a)(5), we filed a new automatic shelf registration statement on August 9, 2022 (File No. 333-266708) (which we refer to in this report as the 2022 shelf registration statement), that became immediately effective pursuant to Rule 462(e).

Today, August 30, 2022, we filed a prospectus supplement that relates to up to 952,373 shares of our common stock, representing the balance of the 7,500,000 shares that may be sold pursuant to the sales agreement, that we may offer and sell under the 2022 shelf registration statement pursuant to the prospectus supplement and the accompanying prospectus, and in accordance with the terms of the sales agreement.

Pursuant to the sales agreement, future sales of shares, if any, may be made (1) in ordinary brokers’ transactions, to or through a market maker, on or through the NYSE or any other market venue where the securities may be traded, in transactions that are deemed to be “at-the-market offerings” as defined in Rule 415 under the Securities Act of 1933, as amended and (2) in such privately negotiated transactions, which may include block trades, as otherwise agreed between us and any sales agent, or through a combination of any such methods of sale. The sales agents may also sell our shares of common stock by any other method permitted by law.

Each sales agent will be entitled to compensation of up to 2.00% of the gross sales price for any shares of our common stock sold through it as sales agent under the sales agreement. The net proceeds we receive from the sale of our common stock in the ATM offering will be the gross proceeds received from such sales less the commissions and any other costs we may incur in issuing the shares of our common stock. Subject to the terms and conditions of the sales agreement, the sales agents are not required to sell any specific number or dollar amount of shares but will use their commercially reasonable efforts to sell on our behalf any shares to be offered under the sales agreement. Under the terms of the sales agreement, we also may sell shares to the sales agents as principal for their own accounts, at a price agreed upon at the time of the transaction, and we will describe the agreement in a separate pricing supplement. The offering of common stock pursuant to the sales agreement will terminate upon the earlier of (1) the sale of the remaining 952,373 shares of common stock and (2) the termination by us or the sales agents of the sales agreement pursuant to its terms.

The timing and amount of any sales will be determined by a variety of factors considered by B&G Foods. We intend to use the net proceeds from any sales of our common stock under the ATM offering for general corporate purposes, which could include, among other things, repayment, refinancing, redemption or repurchase of long-term debt or possible acquisitions.

The remaining shares sold under the sales agreement, if any, will be offered, issued and sold pursuant to the 2022 shelf registration statement, including the prospectus, dated August 9, 2022 and the prospectus supplement, dated August 30, 2022, filed with the SEC pursuant to Rule 424(b) under the Securities Act of 1933, as amended.

The sales agreement contains customary representations and warranties and indemnification obligations. The foregoing description of the sales agreement is not complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed as Exhibit 1.1 to this report and is incorporated herein by reference.

A copy of the legal opinion and consent of Dechert LLP, relating to the validity of the shares to be issued in the ATM offering, is filed as Exhibit 5.1 and 23.1, respectively, to this report.

Item 9.01. Financial Statements and Exhibits.

SIGNATURE

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.

Exhibit 5.1

August 30, 2022

B&G Foods, Inc.

Four Gatehall Drive

Parsippany, New Jersey 07054

Ladies and Gentlemen:

We have acted as counsel to B&G Foods, Inc., a Delaware corporation (the “Company”), in connection with the sale from time to time of up to 952,373 of shares of the Company’s common stock, par value $0.01 per share (the “Offered Shares”), pursuant to the Registration Statement on Form S-3 (File No. 333-266708) (together with the information deemed to be part thereof, the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), on August 9, 2022, including the base prospectus contained therein, dated August 9, 2022 (the “Base Prospectus”), and the prospectus supplement, dated August 30, 2022, for the offering of the Offered Shares (the “Prospectus Supplement,” and together with the Base Prospectus and all documents incorporated by reference therein, the “Prospectus”).

The Offered Shares are to be sold by the Company pursuant to the ATM Equity Offering^SM^ Sales Agreement, dated August 23, 2021, by and between the Company and BofA Securities, Inc., Barclays Capital Inc., Deutsche Bank Securities Inc., RBC Capital Markets, LLC, BMO Capital Markets Corp., Citigroup Global Markets Inc., Goldman Sachs & Co. LLC, Citizens Capital Markets, SMBC Nikko Securities America, Inc. and TD Securities (USA) LLC (the “Sales Agreement”).

This opinion letter (the “Opinion”) is being furnished to the Company in accordance with the requirements of Item 601(b)(5) under Regulation S-K of the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement, other than as to the validity of the Offered Shares as set forth below.

In rendering this Opinion, we have examined and relied on originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and others, and such other documents as we have deemed necessary or appropriate as a basis for rendering this Opinion, including the following documents:

As to the facts upon which this Opinion is based, we have relied, to the extent we deem proper, upon certificates of public officials and certificates and written statements of agents, officers, directors, employees and representatives of, and accountants for, the Company and we have assumed in this regard the truthfulness of such certifications and statements. We have not independently established the facts so relied on.

In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as original documents, the conformity to original documents of all documents submitted to us as copies, the legal capacity of natural persons who are signatories to the documents examined by us and the legal power and authority of all persons signing on behalf of the parties to all documents (other than the Company). We have further assumed that there has been no oral modification of, or amendment or supplement (including any express or implied waiver, however arising) to, any of the agreements, documents or instruments used by us to form the basis of the opinion expressed below.

On the basis of the foregoing and subject to the assumptions, qualifications and limitations set forth in this letter, we are of the opinion, as of the date hereof, that the Offered Shares have been duly authorized for issuance by the Company and, when the Offered Shares have been (i) duly issued and sold in accordance with the Registration Statement and the Prospectus and (ii) delivered to the purchaser or purchasers thereof against receipt by the Company of such lawful consideration therefor in accordance with the terms of the Sales Agreement and at a price per share not less than the per share par value of the Company’s common stock, the Offered Shares will be validly issued, fully paid and non-assessable.

Our opinions set forth herein are based solely upon the General Corporation Law of the State of Delaware as in effect on the date hereof, and we express no opinion with respect to any other laws, rules or regulations (including, without limitation, the application of the securities or “Blue Sky” laws of any state to the offer and/or sale of the Offered Shares). The opinions expressed herein are based upon the law as in effect and the documentation and facts known to us on the date hereof.

We hereby consent to the filing of this Opinion as an exhibit to the Company’s current report on Form 8-K filed with the Commission on August 30, 2022 and to the use of our name in the Prospectus under the caption “Legal Matters.” In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act and the rules and regulations of the Commission thereunder.

This Opinion is furnished to you in connection with the Prospectus relating to the offer and sale of the Offered Shares and is not to be used, circulated, quoted or otherwise relied upon for any other purpose, except as expressly provided in the preceding paragraph. This Opinion is furnished as of the date hereof and we disclaim any undertaking to update this Opinion after the date hereof or to advise you of any subsequent changes of the facts stated or assumed herein or of any subsequent changes in applicable law.