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.
