As filed
with the Securities and Exchange Commission on May 14, 2008
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
(State or other
jurisdiction
of incorporation or organization)
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Four
Gatehall Drive, Suite 110
Parsippany, NJ 07054
(Address of
principal executive offices) (Zip Code)
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13-3918742
(I.R.S.
Employer
Identification No.)
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B&G
Foods, Inc. 2008 Omnibus Incentive Compensation Plan
(Full Title of the
Plan)
Scott E.
Lerner
Executive
Vice President, General Counsel and Secretary
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)
With a
copy to:
Adam M. Fox, Esq.
Dechert LLP
1095 Avenue of the Americas
New York, NY 10036
212.698.3500
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
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Accelerated filer
x
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Non-accelerated
filer
o
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Smaller reporting company
o
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(Do not check if a
smaller reporting company)
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CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered
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Amount to be
Registered
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Proposed Maximum
Offering Price Per Share(1)
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Proposed Maximum
Aggregate Offering
Price(1)
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Amount of
Registration Fee
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Class A Common Stock, $0.01 par value per share
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2,000,000 shares
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$
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9.14
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$
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18,280,000
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$
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718.41
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(1)
The registration fee for the shares of Common Stock to
be issued under the B&G Foods, Inc. 2008 Omnibus Incentive
Compensation Plan (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 $9.14 per share, the average of the high and low prices of
the Class A Common Stock, par value $.01 per share (Common Stock) of the
Registrant as reported on the New York Stock Exchange on May 12,
2008. 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.
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
Securities and Exchange Commission (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
Item
3. Incorporation of Documents by
Reference.
The following documents, which we have filed
with the SEC, are incorporated by reference into this registration statement:
(a)
our annual report on Form 10-K for the
year ended December 29, 2007 filed on March 6, 2008;
(b)
our quarterly report on Form 10-Q for
the quarter ended March 29, 2008 filed on April 30, 2008;
(c)
our definitive proxy statement on Schedule
14A filed on April 4, 2008;
(d)
all other documents and reports filed by us
with the SEC pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended, since December 29, 2007; and
(e)
the description of our Class A Common
Stock contained in our registration statement on Form 8-A (Registration No. 001-32316)
filed on May 16, 2007, including any amendment or report filed for the
purpose of updating such description.
We
are also incorporating by reference all other documents and reports that we
will file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act prior to the filing of a post-effective amendment to this
registration statement that indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold. The information that we file with the SEC
after the date of initial filing of this registration statement and prior to
the completion of the offering of the securities under this registration
statement will update and supercede the information contained in this
Registration Statement and incorporated filings.
Item
4. Description of Securities.
Not applicable.
Item
5. Interests of Named Experts and
Counsel.
Not applicable.
Item
6. Indemnification of Directors and
Officers.
Under Section 145 of the Delaware
General Corporation Law, B&G Foods may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of B&G Foods) by
reason of the fact that such person is or was a director, officer, employee, or
agent of B&G Foods, or is or was serving at the request of B&G Foods as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of B&G Foods, and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe such persons conduct was unlawful.
In addition, under Section 145 B&G
Foods may indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in
the right of B&G Foods to procure a judgment in its favor by reason of the
fact that such person is or was a director, officer, employee or agent of
B&G Foods, or is or was serving at the request of B&G Foods as a
director, officer, employee or agent of B&G Foods, or is or was serving at
the request of B&G Foods as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred
by such person in connection with the defense or settlement of such action or
suit if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of B&G Foods and
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to B&G
Foods unless and only to the extent that the Delaware Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Delaware Court of Chancery or such other
court shall deem proper.
Section 145 also provides that to the
extent that a present or former director or officer of a corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to above, or defense of any claim issue or matter therein,
such person shall be indemnified against expenses (including attorneys fees)
actually and reasonably incurred by such person in connection therewith.
Furthermore, Section 145 provides that
nothing in the above-described provisions shall be deemed exclusive of any
other rights to indemnification or advancement of expenses to which any person
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
Under Section 102(b)(7) of the
Delaware General Corporation Law, B&G Foods may in its certificate of
incorporation eliminate or limit the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability: (i) for any breach of the
directors duty of loyalty to the corporation or its stockholders; (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law; (iii) under Section 174 of the Delaware
General Corporation Law (pertaining to certain prohibited acts including
unlawful payment of dividends or unlawful purchase or redemption of the
corporations capital stock); or (iv) for any transaction from which the
director derived an improper personal benefit.
Our certificate of incorporation provides
that our directors shall be entitled to the benefits of all limitations on the
liability of directors generally permissible under Delaware law and that we
shall indemnify all persons whom we are permitted to indemnify to the full
extent permitted under Section 145 of the Delaware General Corporation
Law.
In addition, our bylaws provide for the
indemnification of our directors and officers to the fullest extent permitted
under Delaware law as in effect from time to time and by our certificate of
incorporation.
As permitted by our certificate of
incorporation and bylaws, we have purchased and we maintain directors and
officers liability insurance policies to insure our officers and directors
against certain liabilities.
Item
7. Exemption from Registration Claimed.
Not applicable.
Item
8. Exhibits.
Exhibit No.
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Description
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4.1
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Amended and Restated
Certificate of Incorporation of B&G Foods, Inc. (Filed as
Exhibit 3.1 to B&G Foods Current Report on Form 8-K filed on
October 20, 2004, and incorporated by reference herein)
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4.2
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Amended
and Restated Bylaws of B&G Foods, Inc. (Filed as Exhibit 3.1 to
B&G Foods Current Report on Form 8-K filed on May 25, 2007,
and incorporated by reference herein)
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5.1
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Opinion
of Dechert
LLP
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2
10.1
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B&G
Foods, Inc. 2008 Omnibus Incentive Compensation Plan (Filed as Annex A
to B&G Foods Definitive Proxy Statement on Schedule 14A filed on
April 4, 2008, and incorporated by reference herein)
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23.1
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Consent
of Dechert
LLP
(included in
Exhibit 5.1).
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23.2
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Consent
of KPMG
LLP
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24.1
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Power
of Attorney (included on signature page).
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Item
9. Undertakings
(a)
The undersigned registrant
hereby undertakes:
(1)
To file, during any period
in which offers or sales are being made, a post-effective amendment to this
registration statement:
(i)
To include any prospectus
required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus
any facts or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth in the Calculation
of Registration Fee table in the effective registration statement; and
(iii)
To include any material
information with respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such information in the
registration statement;
provided, however
, that paragraphs (a)(1)(i) and (a)(1)(ii) above
do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(2)
That, for the purpose of
determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial
bona fide
offering
thereof.
(3)
To remove from registration
by means of a post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby
undertakes that, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrants annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plans annual report pursuant to
section 15(d) of the Securities Exchange Act of 1934) that is incorporated
by reference in the registration
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statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial
bona fide
offering thereof.
(c) Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the opinion
of the SEC such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than a payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
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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
14
th
day of May, 2008.
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B&G
FOODS, INC.
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By:
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/s/
David L. Wenner
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David
L. Wenner
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President
and Chief Executive Officer
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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
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Title
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Date
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/s/
David L. Wenner
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President,
Chief Executive Officer
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May 14,
2008
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David
L. Wenner
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and
Director (Principal Executive Officer)
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/s/
Robert C. Cantwell
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Executive
Vice President of Finance,
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May 14,
2008
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Robert
C. Cantwell
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Chief
Financial Officer and Director
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(Principal
Financial and Accounting Officer)
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/s/
Stephen C. Sherrill
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Chairman
of the Board of Directors
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May 14,
2008
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Stephen
C. Sherrill
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/s/
James R. Chambers
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Director
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May 14,
2008
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James
R. Chambers
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/s/
Cynthia T. Jamison
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Director
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May 14,
2008
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Cynthia
T. Jamison
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/s/
Dennis M. Mullen
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Director
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May 14,
2008
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Dennis
M. Mullen
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/s/
Alfred Poe
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Director
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May 14,
2008
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Alfred
Poe
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