Exhibit
10.4


 


FIRST AMENDMENT


TO THE


BIRDS EYE FOODS NON-QUALIFIED 401(K) PLAN


 


This Amendment is adopted by Birds Eye Foods, Inc.,
a corporation organized and existing under and by virtue of the laws of the
State of Delaware (the “Employer”).


 


WITNESSETH


 


WHEREAS, the Employer has adopted the BIRDS EYE
FOODS NON-QUALIFIED 401(K) PLAN (the “Plan”); and


 


WHEREAS, the Employer has reserved the right to
amend the Plan; and


 


WHEREAS, the Employer now wishes to amend the Plan
in order to bring it into compliance with the provisions of Section 409A
of the Internal Revenue Code (the “Code”);


 


NOW, THEREFORE, the Plan is hereby amended as
follows:


 


1.             This Amendment shall apply to all participants who have
accrued a benefit under the Plan after December 31, 2004. For any
participant who has not accrued a benefit under the Plan since prior to January 1,
2005, the provisions of the Plan, as in effect prior to this First Amendment,
shall continue in full force and effect.


 


2.             Section 3.03 of the Plan is hereby amended to add the
following subsection (d) at the end thereof:


 


(d)           Notwithstanding the
foregoing provisions of this Section 3.03, any Participant in the Plan who
has accrued a benefit after December 31, 2004 shall elect to defer a
percentage of Compensation, or shall elect to defer all or a portion of the
Participant’s EIP award, only if such election is entered into before the end
of the calendar year preceding the year in which such Compensation and/or such
EIP award is to be paid; provided, however, that such election shall not
apply to any bonus which constitutes a portion of the Participant’s
Compensation if such bonus (i) relates to the Employer’s fiscal year, (ii) is
not “performance based compensation”, as such term is used under Section 409A
of the Code, and (iii) if the Employer has committed in a year prior to
the year of payment to pay the bonus in a subsequent calendar year.


 

















 


3.             Section 8.02 of the Plan is hereby amended to add the
following sentence at the end thereof:


 


Notwithstanding the
foregoing provisions of this Section 8.02, in the event the Account under
this Plan for any Participant who has accrued a benefit after December 31,
2004 has a value of $5,000 or less at the time payments are to commence, the
Committee shall pay out the entire value of such Participant’s Account in a
single payment.


 


4.             Section 8.03 of the Plan is hereby amended to add the
following paragraph at the end thereof:


 


Notwithstanding the
foregoing provisions of this Section 8.03, for any Participant who has
accrued a benefit under the Plan after December 31, 2004, a distribution
from the Plan on account of severe financial hardship shall be allowed if the
Committee determines that the Participant has incurred an unforeseeable
emergency, as defined below.  For purposes
of this Section 8.03 an “unforeseeable emergency” shall mean a severe
financial hardship of the Participant, the Participant’s spouse, the
Participant’s Beneficiary, or the Participant’s dependent (as defined under Section 409A
of the Code), resulting from (i) an illness or accident of the
Participant, Participant’s spouse, Participant’s Beneficiary, or the
Participant’s dependent (as defined under Section 409A of the Code), (ii) loss
of the Participant’s property from casualty, not covered by insurance, or (iii) other
similar extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the Participant. 
In determining whether an unforeseeable emergency exists, the Committee
shall consider any relevant guidance provided under Section 409A of the
Code.  The amount of any distribution
pursuant to this paragraph shall be limited to the amount reasonably necessary
to satisfy the emergency, which may include the amounts necessary to pay any
taxes or penalties reasonably anticipated to result from the distributions.


 


5.             Certain benefits under this Plan may be treated as
non-qualified deferred compensation subject to Section 409A of the
Code.  In order that this Plan complies
with Section 409A, for any Participant who has accrued a benefit under the
Plan after December 31, 2004, (i) distributions are payable solely
upon the Participant’s separation from service, as such term is used in Section 409A,
with the Employer, on a specified date or pursuant to a fixed schedule, upon an
unforeseeable emergency, or death, (ii) if the Participant is determined
to be a “specified employee,” as such term is defined in Section 409A, of
a “corporation with publicly traded stock,” as such phrase is used in Section 409A,
then all distributions under this Plan which are


 


2

















 


subject to Section 409A
shall be delayed for a period of six (6) months after the date of the
Participant’s separation from service with the Employer, (iii) distributions
under this Plan shall not be accelerated under the terms of this Plan, (iv) the
Plan does not provide for any “subsequent elections,” as such terms are used in
Section 409A, and (v) the benefits under this Plan are not, and shall
not be, funded through a trust located outside the United States.  It is the intention of the Employer that the
Plan comply with Section 409A.  As
such, the terms and provisions of the Plan shall be construed and interpreted
to the extent possible in a manner consistent with such intent.


 


IN WITNESS WHEREOF, this First Amendment has been
executed this 25th day of October, 2008.


 


	
   

  	
  BIRDS
  EYE FOODS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Lois Warlick-Jarvie

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:
  Lois Warlick-Jarvie

  
	
   

  	
   

  
	
   

  	
  Title:
  Senior Vice President, Administration

  



 


3