SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
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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:
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4 (c))
Securities registered pursuant to Section 12(b) of the Act:
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(Nasdaq Global Select Market)
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|| |
At-the-Market Offering Program
On October 28, 2022, Bed Bath & Beyond Inc. (the “Company”) filed a prospectus supplement with the U.S. Securities and Exchange Commission (“SEC”) registering additional shares (“Shares”) of its common stock, par value $0.01 per share (“Common Stock”) for sale under the Company’s “at the market offering” program (the “ATM Program”), pursuant to the Company’s existing Open Market Sale AgreementSM (the “Sale Agreement”) with Jefferies LLC (the “Sales Agent”), dated August 31, 2022. Prior to the date hereof, 12,000,000 Shares were sold under the Sale Agreement. The Shares will be sold pursuant to the Company’s shelf registration statement on Form S-3 (Registration No. 333-267173), which was filed with the SEC on August 31, 2022. A prospectus supplement relating to the ATM Program and the additional Shares available thereunder (the “Prospectus Supplement”) has been filed today with the SEC. Pursuant to the Prospectus Supplement and the accompanying base prospectus, the Company may offer and sell Shares having an aggregate sales price of up to $150 million. The Company is not obligated to sell any Shares under the Sale Agreement, and may at any time suspend offers under the Sale Agreement or terminate the Sale Agreement. The Sales Agent will be entitled to compensation as provided under the terms of the Sale Agreement.
The Company made certain customary representations, warranties and covenants concerning the Company and its Common Stock in the Sale Agreement and agreed to provide indemnification and contribution to the Sales Agent against certain civil liabilities, including liabilities under the Act.
The Company currently intends to use the net proceeds, if any, after deducting the Sales Agent’s commission and the Company’s offering expenses, that it receives upon the issuance and sale of Shares to or through the Sales Agent for general corporate purposes, including to drive immediate strategic priorities such as rebalancing the Company’s assortment and inventory, and addressing the Company’s debt.
Subject to the terms and conditions of the Sale Agreement, the Sales Agent will use its commercially reasonable efforts to sell, on the Company’s behalf, the Shares that may be offered by the Company from time to time under the Sale Agreement. The sales, if any, of the Shares made under the Sale Agreement will be made by means of ordinary brokers’ transactions on the Nasdaq Global Select Market or otherwise at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices. Actual sales will depend on a variety of factors to be determined by the Company from time to time.
The above description of the Sale Agreement does not purport to be a complete statement of the parties’ rights and obligations under the Sale Agreement and is qualified in its entirety by reference to the terms of the form of Sale Agreement filed as Exhibit 1.1 hereto and incorporated herein by reference. The legal opinion of Cleary Gottlieb Steen & Hamilton LLP relating to the legality of the Shares is attached as Exhibit 5.1 to this Current Report on Form 8-K.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any security nor shall there be any sale of these securities in any state in which such offer, solicitation or sales would be unlawful prior to registration or qualification under the securities laws of any such state.
In October 2022, the Company became aware that an outside party had improperly accessed, via a phishing scam, data on the hard drive and certain shared drives to which one of its employees had access. The Company is reviewing the accessed data to determine whether these drives contain any sensitive and/or personally identifiable information. At this time the Company has no reason to believe that any such sensitive or personally identifiable information was accessed or that this event would be likely to have a material impact on the Company.
|Item 9.01|| |
Financial Statements and Exhibits.
|1.1||Open Market Sale AgreementSM, dated August 31, 2022, by and between Bed Bath & Beyond Inc. and Jefferies LLC (incorporated by reference to Exhibit 1.1 to the Company’s Form 8-K filed with the Commission on August 31, 2022).|
|5.1||Opinion of Cleary Gottlieb Steen & Hamilton LLP.|
|23.1||Consent of Cleary Gottlieb Steen & Hamilton LLP (included in Exhibit 5.1 hereto).|
|104||Cover Page Interactive Data File (embedded within the Inline XBRL document).|
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 thereunto duly authorized.
|BED BATH & BEYOND INC.|
|Date: October 28, 2022||By:|| |
/s/ Arlene Hong
Executive Vice President, Chief Legal Officer &
|CRAIG B. BROD||MICHAEL J. ALBAND||ELANA S. BRONSON|
RICHARD J. COOPER
JEFFREY S. LEWIS
PAUL J. SHIM
VICTOR L. HOU
ROGER A. COOPER
KYLE A. HARRIS
One Liberty Plaza
New York, NY 10006-1470
T: +1 212 225 2000
F: +1 212 225 3999
|STEVEN L. WILNER||AMY R. SHAPIRO||ARON M. ZUCKERMAN|
|DAVID C. LOPEZ||JENNIFER KENNEDY PARK||KENNETH S. BLAZEJEWSKI|
|MICHAEL A. GERSTENZANG||ELIZABETH LENAS||MARK E. MCDONALD|
|LEV L. DASSIN||LUKE A. BAREFOOT||F. JAMAL FULTON|
|JORGE JUANTORENA||JONATHAN S. KOLODNER||PAUL V. IMPERATORE|
MICHAEL D. WEINBERGER
DIANA L. WOLLMAN
JEFFREY A. ROSENTHAL
MICHAEL D. DAYAN
CARMINE D. BOCCUZZI, JR.
JEFFREY D. KARPF
KIMBERLY BROWN BLACKLOW
FRANCISCO L. GESTERO
FRANCESCA L. ODELL
WILLIAM L. MCRAE
JOON H. KIM
MARGARET S. PEPONIS
LISA M. SCHWEITZER
JUAN G. GIRÁLDEZ
MEYER H FEDIDA
ADRIAN R. LEIPSIC
ADAM J. BRENNEMAN
ARI D. MACKINNON
JAMES E. LANGSTON
AUDRY X. CASUSOL
DAVID H. HERRINGTON
KIMBERLY R. SPOERRI
AARON J. MEYERS
DANIEL C. REYNOLDS
CHARLES W. ALLEN
JULIA L. PETTY
PENELOPE L. CHRISTOPHOROU
BOAZ S. MORAG
HEIDE H. ILGENFRITZ
HELENA K. GRANNIS
JOHN V. HARRISON
JONATHAN D.W. GIFFORD
SUSANNA E. PARKER
EUROPE & MIDDLE EAST
|DUANE MCLAUGHLIN||ABENA A. MAINOO||DAVID W.S. YUDIN|
CHANTAL E. KOROULA
BENET J. OREILLY
ADAM E. FLEISHER
SEAN A. ONEAL
GLENN P. MCGRORY
MATTHEW P. SALERNO
HUGH C. CONROY, JR
JOHN A. KUPIEC
MAURICE R. GINDE
KATHERINE R. REAVES
KARA A. HAILEY
BRANDON M. HAMMER
|D: +1 212 225 2632|
October 28, 2022
Bed Bath & Beyond Inc.
650 Liberty Avenue
Union, New Jersey 07083
Ladies and Gentlemen:
We have acted as counsel to Bed Bath & Beyond Inc., a New York corporation (the Company), in connection with its proposed offering pursuant to a registration statement on Form S-3, as amended as of its most recent effective date (October 28, 2022), insofar as it relates to the Securities (as defined below) (as determined for purposes of Rule 430B(f)(2) under the Securities Act of 1933, as amended (the Securities Act)) (as so amended, including the documents incorporated by reference therein, the Registration Statement), and the prospectus, dated August 31, 2022 (the Base Prospectus), as supplemented by the prospectus supplement thereto, dated October 28, 2022 (the Prospectus Supplement and, together with the Base Prospectus, the Prospectus), of up to $150,000,000 aggregate sales price of shares of the Companys common stock, par value $0.01 per share (the Securities), under an at-the-market offering program (the Program).
In arriving at the opinion expressed below, we have reviewed the following documents:
the Registration Statement;
an executed copy of the Open Market Sale AgreementSM relating to the Program dated August 31, 2022 (the Sales Agreement), between the Company and Jefferies LLC; and
copies of the Companys Amended and Restated Certificate of Incorporation and Amended and Restated By-Laws certified by the Secretary of State of the State of New York and the corporate secretary of the Company, respectively
Clearly Gottlieb Steen & Hamilton LLP or an affiliated entity has an office in each of the locations listed above.
Bed Bath & Beyond Inc., p. 2
In addition, we have reviewed the originals or copies certified or otherwise identified to our satisfaction of all such corporate records of the Company and such other documents, and we have made such investigations of law, as we have deemed appropriate as a basis for the opinion expressed below.
In rendering the opinion expressed below, we have assumed the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. In addition, we have assumed and have not verified the accuracy as to factual matters of each document we have reviewed.
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that when issued, sold and paid for in accordance with the terms of the Sales Agreement, the Securities will be validly issued by the Company and fully paid and nonassessable.
In rendering the foregoing opinion, we have assumed the accuracy of, and compliance with, the representations, warranties and covenants contained in the Sales Agreement relating to the offer and sale of the Securities.
The foregoing opinion is limited to the Business Corporation Law of the State of New York.
We hereby consent to the use of our name in the Prospectus Supplement under the heading Legal Matters as counsel for the Company that has passed on the validity of the Securities and to the filing of this opinion letter as Exhibit 5.1 to the Companys Current Report on Form 8-K dated October 28, 2022. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission thereunder.
The opinion expressed herein is rendered on and as of the date hereof, and we assume no obligation to advise you or any other person, or to make any investigations as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinion expressed herein.
|Very truly yours,|
|CLEARY GOTTLIEB STEEN & HAMILTON LLP|
By: /s/ David Lopez
|David Lopez, a Partner|