As filed with the Securities and Exchange Commission on August 13, 2010

Registration No. 333-             

 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

 

FORM S-8

 

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

 

B&G FOODS, INC.

(Exact name of registrant as specified in its charter)

 

Delaware

 

Four Gatehall Drive, Suite 110
Parsippany, NJ 07054

 

13-3918742

(State or other jurisdiction

 

(Address of principal executive offices) (Zip Code)

 

(I.R.S. Employer

of incorporation or organization)

 

 

 

Identification No.)

 

B&G Foods, Inc. 2008 Omnibus Incentive Compensation Plan

(Full Title of the Plan)

 

 

Scott E. Lerner

Executive Vice President, General Counsel, Secretary and Chief Compliance Officer

Four Gatehall Drive, Suite 110

Parsippany, NJ 07054

(Name and address of agent for service)

 

973.401.6500

(Telephone number, including area code, of agent for service)

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company.  See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.  (Check one):

 

Large accelerated filer  o

 

Accelerated filer  x

 

Non-accelerated filer  o

 

Smaller reporting company  o

 

 

 

 

(Do not check if a smaller reporting company)

 

 

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities to be Registered

 

Amount to be
Registered

 

Proposed Maximum
Offering Price Per Share(1)

 

Proposed Maximum
Aggregate Offering
Price(1)

 

Amount of
Registration Fee

 

Common Stock, par value $0.01 per share

 

2,500,000 shares

 

$

10.77

 

$

26,925,000

 

$

1,920

 

(1)          The registration fee for the shares of Common Stock to be issued under the B&G Foods, Inc. 2008 Omnibus Incentive Compensation Plan, as amended (the “Plan”) was calculated in accordance with Rule 457(c) and (h) of the Securities Act of 1933, as amended (the “Securities Act”), based on a price of $10.77  per share, the average of the high and low prices of the Common Stock, par value $0.01 per share (“Common Stock”) of the Registrant as reported on the New York Stock Exchange on August 11, 2010.  In addition, pursuant to Rule 416 under the Securities Act, this registration statement also covers an indeterminate amount of (a) interests to be offered or sold pursuant to the employee benefit plan described herein and (b) shares of Common Stock which become issuable under the Plan by reason of any stock dividend, stock split, recapitalization or similar transaction that results in an increase in the number of outstanding shares of the Registrant.

 

 

 


 

REGISTRATION OF ADDITIONAL SECURITIES

 

Pursuant to General Instruction E of Form S-8, this registration statement on Form S-8 registers additional securities of the same class as other securities for which a registration statement on Form S-8 of the Registrant relating to the Plan is effective.  A prior registration statement on Form S-8 (File No. 333-150903) was filed by the Registrant with the SEC on May 14, 2008 that registered 2,000,000 shares of Common Stock issuable under the Plan. This registration statement registers an additional 2,500,000 shares of Common Stock issuable under the Plan.

 

PART I

 

INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS

 

Information required in Part I of Form S-8 to be contained in a prospectus meeting the requirements of Section 10(a) of the Securities Act of 1933, as amended, is not required to be filed with the SEC and is omitted from this registration statement in accordance with the explanatory note to Part I of Form S-8 and Rule 428 under the Securities Act.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Pursuant to General Instruction E of Form S-8, the Registrant hereby incorporates by reference the registration statement on Form S-8 previously filed by the Registrant with the SEC on May 14, 2008 (File No. 333-150903), except to the extent that the items in this registration statement update such information contained therein.

 

Item 5.  Interests of Named Experts and Counsel.

 

The legality of the securities described herein has been passed upon for the Registrant by Scott E. Lerner, Executive Vice President, General Counsel, Secretary and Chief Compliance Officer for the Registrant.  As of August 13, 2010, Mr. Lerner beneficially owned 22,546 shares of Common Stock.

 

Item 8.  Exhibits.

 

Exhibit No.

 

Description

 

 

 

5.1

 

Opinion of Scott E. Lerner, General Counsel of B&G Foods, Inc., as to the legality of the securities being registered.

 

 

 

10.1

 

B&G Foods, Inc. 2008 Omnibus Incentive Compensation Plan, as amended on May 18, 2010 (Filed as Exhibit 10.1 to B&G Foods’ Quarterly Report on Form 10-Q filed on July 27, 2010, and incorporated by reference herein).

 

 

 

23.1

 

Consent of Scott E. Lerner, General Counsel of B&G Foods, Inc. (included in Exhibit 5.1).

 

 

 

23.2

 

Consent of KPMG LLP.

 

 

 

24.1

 

Power of Attorney (included on signature page).

 

2


 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Parsippany, New Jersey, on the 13 th  day of August, 2010.

 

 

B&G FOODS, INC.

 

 

 

By:

/s/ David L. Wenner

 

 

David L. Wenner

 

 

President and Chief Executive Officer

 

SIGNATURES AND POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints David L. Wenner, Robert C. Cantwell and Scott E. Lerner, and each of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

B&G FOODS, INC.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ David L. Wenner

 

President, Chief Executive Officer

 

August 13, 2010

David L. Wenner

 

and Director

 

 

 

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ Robert C. Cantwell

 

Executive Vice President of Finance,

 

August 13, 2010

Robert C. Cantwell

 

Chief Financial Officer and Director

 

 

 

 

(Principal Financial and Accounting Officer)

 

 

 

 

 

 

 

/s/ Stephen C. Sherrill

 

Chairman of the Board of Directors

 

August 13, 2010

Stephen C. Sherrill

 

 

 

 

 

 

 

 

 

/s/ Cynthia T. Jamison

 

Director

 

August 13, 2010

Cynthia T. Jamison

 

 

 

 

 

 

 

 

 

/s/ Dennis M. Mullen

 

Director

 

August 13, 2010

Dennis M. Mullen

 

 

 

 

 

 

 

 

 

/s/ Alfred Poe

 

Director

 

August 13, 2010

Alfred Poe

 

 

 

 

 

3

Exhibit 5.1

 

 

 

 

 

B&G Foods, Inc.

 

 

 

 

Four Gatehall Drive

 

 

 

 

Suite 110

 

 

 

 

Parsippany, NJ 07054

 

 

 

 

Tel:   (973) 401-6500

 

 

 

 

Fax:   (973) 630-6550

 

 

 

 

 

August 13, 2010

 

B&G Foods, Inc.

Four Gatehall Drive, Suite 110

Parsippany, New Jersey  07054

 

Re:          Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

I am Executive Vice President, General Counsel, Secretary and Chief Compliance Officer of B&G Foods, Inc., a Delaware corporation (the “ Company ”), and have acted in my capacity as General Counsel in connection with the preparation and filing of a registration statement on Form S-8 (the “ Registration Statement ”) to be filed today by the Company with the Securities and Exchange Commission (the “ Commission ”) under the Securities Act of 1933, as amended (the “ Securities Act ”).  The Registration Statement relates to the proposed issuance by the Company of an aggregate of up to 2,500,000 shares of Common Stock, par value $0.01 per share, of the Company (the “ Shares ”) pursuant to the B&G Foods, Inc. 2008 Omnibus Incentive Compensation Plan, as amended (the “ Plan ”).

 

In rendering the opinion expressed below, I have examined and relied upon originals, or copies certified or otherwise identified to my satisfaction, of such records, documents, agreements, certificates, corporate records and other instruments, and examined such questions of law as I have deemed necessary or appropriate for the purposes of rendering this opinion.  In my examination, I have assumed the genuineness of all signatures, the authenticity of all documents submitted to me as original documents, the conformity to original documents of all documents submitted to me as copies and the legal capacity of natural persons.  As to any facts material to this opinion that I have not independently verified, I have relied upon statements and representations of officers and representatives of the Company, public officials and others.

 

Based upon and subject to the foregoing and to the other assumptions, qualifications, limitations and exceptions set forth in this letter, I am of the opinion that when the Shares are issued and delivered in accordance with the terms and conditions of the Plan and any relevant agreements thereunder, the Shares will be duly authorized, validly issued, fully paid and non-assessable.

 

I am a member of the Bar of the State of New York, and I am licensed in New Jersey to provide legal advice to the Company pursuant to a limited license granted in accordance with Rule 1:27-2 of the Supreme Court of the State of New Jersey.  The opinions expressed herein are limited to the General Corporation Law of the State of Delaware and I express no opinion concerning any other laws.

 

I hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement.  I also hereby consent to the use of my name wherever appearing in the Registration Statement.  In giving this consent, I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.  This opinion is expressed as of the date hereof, and I disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.

 

Quality Foods Since 1889

 


 

B&G Foods, Inc.

August 13, 2010

Page 2

 

This opinion letter is being furnished to the Company in accordance with the requirements of Item 601(b)(5)(i) of Regulation S-K of the Securities Act and is solely for the benefit of the Company and such other persons as are entitled to rely upon it pursuant to applicable provisions of the Securities Act.  No opinion is expressed herein as to any matter, other than as to the legality of the Shares as set forth above.  This opinion may not be used, quoted, relied upon or referred to for any purpose other than the foregoing purpose.  In particular, but without limitation, this opinion may not be used, quoted, relied upon or referred to by any lawyer or law firms providing one or more subsequent legal opinions, without my prior written consent.

 

Very truly yours,

 

 

 

/s/ Scott E. Lerner

 

 

 

Scott E. Lerner

 

General Counsel

 

 

Exhibit 23.2

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

The Board of Directors

B&G Foods, Inc.:

 

We consent to the use of our reports dated March 1, 2010, with respect to the consolidated balance sheets of B&G Foods, Inc. and subsidiaries as of January 2, 2010 and January 3, 2009 and the related consolidated statements of operations, changes in stockholders’ equity and comprehensive income and cash flows for the years ended January 2, 2010, January 3, 2009 and December 29, 2007, the related financial statement schedule, and the effectiveness of internal control over financial reporting as of January 2, 2010, incorporated herein by reference.

 

/s/ KPMG LLP

 

Short Hills, New Jersey

August 13, 2010