Exhibit 10.9


 


AMENDED AND RESTATED
TRANSACTION SERVICES AGREEMENT


 


THIS AMENDED AND RESTATED
TRANSACTION SERVICES AGREEMENT, made this 30th day of September, 2004, by and
between Bruckmann, Rosser, Sherrill & Co., Inc., a Delaware corporation (“BRS”),
B&G Foods Holdings Corp., a Delaware corporation (“Holdings”), and B&G
Foods, Inc., a Delaware corporation and wholly-owned subsidiary of Holdings (“B&G”
and together with Holdings, the “Company”).


 


 


W  I  T  N  E  S
S  E  T  H:


 


WHEREAS, BRS, Holdings and
B&G are parties to the Transactions Services Agreement, dated as of August
11, 1997 (the “Existing Transaction Services Agreement”), and desire to
amend and restate the Existing Transaction Services Agreement in its entirety
subject to and effective upon consummation of the contemplated initial public
offering (the “Initial Public Offering”) by Holdings of Enhanced Income
Securities (“EISs”), each initially representing one share of Holdings’
Class A Common Stock, par value $0.01 per share (the “Class A Common Stock”)
and a certain aggregate principal amount of Holdings’ Senior Subordinated Notes
(the “Senior Subordinated Notes”) pursuant to a registration statement
on Form S-1 filed under the Securities Act of 1933, as amended.


 


WHEREAS, immediately prior
to the Initial Public Offering, B&G will be merged with and into Holdings
and Holdings will be renamed B&G Foods, Inc.


 


WHEREAS, the Company desires
to retain BRS to provide business and organizational strategy, financial and
investment management, and merchant and investment banking services to the
Company, upon the terms and conditions hereinafter set forth, and BRS is
willing to undertake such obligations;


 


NOW, THEREFORE, in
consideration of the mutual covenants and agreements hereinafter set forth, the
parties agree as follows:


 


1.             Amendment and
Restatement.  Each party hereto agrees that
effective upon the closing of the Initial Public Offering the Existing
Transaction Services Agreement shall be amended and restated and replaced in
its entirety with this Agreement provided that such closing occurs not later
than December 31, 2004.


 


2.             Appointment.  The Company hereby engages BRS, and BRS
hereby agrees under the terms and conditions set forth herein, to provide
certain services to the Company as described in Section 4 hereof.


 


3.             Term.  The term of this Agreement shall commence on
the date hereof and shall continue until the tenth anniversary of this
Agreement (the “Term”), provided, however, that the Term
shall be automatically extended for successive one-year periods unless either
the Company or BRS shall give written notice to the other at least ninety (90)
days prior thereto that the Term shall not be so extended.


 






















 


4.             Duties of BRS.  BRS shall provide the Company with business,
management, financial, merchant and investment banking and strategic and
corporate advisory services (collectively, the “Services”) in connection
with any acquisition, divestiture, financing or other transaction (each, a “Transaction”)
in which the Company or its subsidiaries may be, or may consider becoming,
involved.  The Services will be provided
at such times and places as may reasonably be determined by BRS.


 


4.1.          Exclusions from “Services”. 
Notwithstanding anything in the foregoing to the contrary, the following
services are specifically excluded from the definition of “Services”:


 


(i)            Independent Accounting Services. 
Accounting Services rendered to the Company or BRS, with prior notice
and consultation with the Company’s management, by an independent accounting
firm or accountant (i.e., an accountant who is not an employee of BRS);


 


(ii)           Legal Services. 
Legal services rendered to the Company, or BRS with prior notice and
consultation with the Company’s management, by an independent law firm or
attorney (i.e., an attorney who is not an employee of BRS); and


 


(iii)          Management Services. 
Management and other business and organizational strategy, financial and
investment management, and merchant and investment banking services.


 


5.             Power of BRS.  So that it may properly perform its duties
hereunder, BRS shall, subject to Section 8 hereof, have the authority
and power to do all things necessary and proper to carry out the duties set
forth in Section 4.


 


6.             Compensation.  As consideration payable to BRS or any of
its affiliates for providing the Services to the Company, the Company shall pay
to BRS:


 


(a)           Upon the consummation of any Transaction, a
transaction fee (“Transaction Fee”) equal to one percent (1%) of the
total Transaction value (which shall be equal to the enterprise value) of such
Transaction.


 


(b)           Actual and direct out-of-pocket expenses
(including fees and disbursements of attorneys, accountants and other
professionals and consultants retained by BRS in connection with the Services
provided hereunder) incurred by BRS and its personnel in performing Services,
which shall be reimbursed to BRS by the Company upon BRS’s rendering of a
statement therefor together with such supporting data as the Company reasonably
shall require.


 


(c)           Notwithstanding any other provision of this Section
6, the Company shall not be required to pay any of the Transaction Fee, (1)
if and to the extent such payment is expressly prohibited by the provisions of
any credit, financing or other agreement, indenture or instrument binding upon
the Company or its properties; provided, however, that if, as a
result of the operation of any such prohibitions, payments otherwise owed
hereunder are not made, such payments shall not be cancelled but rather shall
accrue, and shall be payable by the Company promptly when, and to the extent
that, the Company is no longer prohibited from making such payments, together
with accrued interest


 


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calculated at the rate of
interest then charged under the Company’s then existing credit agreement from
the date such payment was due through the date of payment; or (2) if a majority
of disinterested directors of the Company determines by resolution that such
Transaction Fee should not be paid because the reasonable value of the Services
rendered does not support payment of the Transaction Fee.  Other than the credit agreement and the
indentures to be entered into by the Company on the date of consummation of the
Initial Public Offering, the Company will not enter into any such agreement,
indenture or instrument that restricts payment by the Company of the
Transaction Fee without the prior written approval of BRS.  This Section 6(c) will not prohibit
nor restrict, in any manner, the Company’s obligation to make the payment
specified in Section 6(a), to make reimbursements pursuant to Section
6(b), to provide indemnification pursuant to Section 7, 10
and 17, or to make any other payments contemplated by this Agreement.


 


7.             Indemnification.  In the event that BRS or any of its
affiliates, principals, partners, directors, stockholders, employees, agents
and representatives (collectively, the “Indemnified Parties”) becomes involved
in any capacity in any action, proceeding or investigation in connection with
any matter referred to in or contemplated by this Agreement, or in connection
with its Services, the Company will indemnify and hold harmless the Indemnified
Parties from and against any actual or threatened claims, lawsuits, actions or
liabilities (including out-of-pocket expenses and the fees and expenses of
counsel and other litigation costs and the cost of any preparation or
investigation) of any kind or nature, arising as a result of or in connection
with this Agreement and their Services, activities and decisions hereunder, and
will periodically reimburse BRS for its expenses as described above, except
that the Company will not be obligated to so indemnify any Indemnified Party
if, and to the extent that, such claims, lawsuits, actions or liabilities
against such Indemnified Party directly result from the gross negligence or
willful misconduct of such Indemnified Party as admitted in any settlement by
such Indemnified Party or held in any final, non-appealable judicial or
administrative decision.  In connection
with such indemnification, the Company will promptly remit or pay to BRS any
amounts which BRS certifies to the Company in writing are payable to BRS or
other Indemnified Parties hereunder. 
The reimbursement and indemnity obligations of the Company under this Section
7 shall be in addition to any liability which the Company may otherwise
have, shall extend upon the same terms and conditions to any Indemnified Party,
as the case may be, of BRS and any such affiliate and shall be binding upon and
inure to the benefit of any successors, assigns, heirs and personal
representatives of the Company, BRS, and any such Indemnified Party.  The foregoing provisions shall survive the
termination of this Agreement.


 


8.             Independent Contractors.  Nothing herein shall be construed to create
a joint venture or partnership between the parties hereto or an
employee/employer relationship.  BRS
shall be an independent contractor pursuant to this Agreement.  Neither party hereto shall have any express
or implied right or authority to assume or create any obligations on behalf of
or in the name of the other party or to bind the other party to any contract,
agreement or undertaking with any third party.


 


9.             Notices.  Any notice or other communications required
or permitted to be given hereunder shall be in writing and delivered by hand or
mailed by registered or certified mail, return receipt requested, or by
telecopier to the party to whom it is to be given at its address set forth
herein, or to such other address as the party shall have specified by notice similarly
given.


 


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(i)            If to the Company, to it at:


 


B&G
Foods, Inc.

Four Gatehall Drive, Suite 110

Parsippany, New Jersey 07054


 


Attention:  Robert C. Cantwell


 


(ii)           If to BRS, to it at:


 


126
East 56th Street

29th Floor

New York, New York 10022


 


Attention:  Stephen C. Sherrill


 


10.           Liability.  BRS is not and never shall be liable to any
creditor of the Company and the Company agrees to indemnify and hold each
Indemnified Party harmless from and against any and all such claims of alleged
creditors of the Company and against all costs, charges and expenses (including
reasonable attorneys fees and expenses) incurred or sustained by any
Indemnified Party in connection with any action, suit or proceeding to which it
may be made a party by any alleged creditor of the Company.  Notwithstanding anything contained in this
Agreement to the contrary, the Company agrees and acknowledges that BRS and its
partners, principals, shareholders, directors, officers, employees and
affiliates intend to engage and participate in acquisitions and business
transactions outside of the scope of the relationship created by this Agreement
and they shall not be under any obligation whatsoever to make such
acquisitions, business transactions or other opportunities through the Company
or offer such acquisitions, business transactions or other opportunities to the
Company.


 


11.           Assignment.  This Agreement shall inure to the benefit of
and be binding upon the parties and their successors and assigns.  However, neither this Agreement nor any of
the rights of the parties hereunder may be transferred or assigned by either
party hereto, except that (i) if the Company shall merge or consolidate with or
into, or sell or otherwise transfer substantially all its assets to, another
corporation which assumes the Company’s obligations under this Agreement, the
Company may assign its rights hereunder to that corporation, and (ii) BRS may
assign its rights and obligations hereunder to any other person or entity
controlled, directly or indirectly, by Bruce C.  Bruckmann, Harold O. 
Rosser, Stephen C. Sherrill, Thomas J. Baldwin and/or Paul D. Kaminski.  Any attempted transfer or assignment in
violation of this Section 11 shall be void.


 


12.           Entire Agreement.  This Agreement contains the entire agreement
between the parties hereto and supersedes all prior agreements and
undertakings, oral and written, among the parties hereto with respect to the
subject matter hereof.


 


13.           Section Headings.  The section headings contained herein are
included for convenience or references only and shall not constitute a part of
this Agreement for any other purpose.


 


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14.           Counterparts.  This Agreement may be executed in
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.


 


15.           Applicable Law.  This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts made and to be performed entirely within such State, regardless of
the law that might be applied under principles of conflicts of law.


 


16.           Severability.  Any section, clause, sentence, provision,
subparagraph or paragraph of this Agreement held by a court of competent
jurisdiction to be invalid, illegal or ineffective shall not impair, invalidate
or nullify the remainder of this Agreement, but the effect thereof shall be
subparagraph or paragraph so held to be invalid, illegal or ineffective.


 


17.           Taxes.  The amount of any payment paid by the
Company under this Agreement shall be increased by the amount, if any, of any
taxes (other than income taxes) or other governmental charges levied in respect
of such payments, so that BRS is made whole for such taxes or charges.


 


IN WITNESS WHEREOF, the
parties hereto have signed this Agreement as of the day and year first above
written.


 


	
   

  	
  BRUCKMANN, ROSSER, SHERRILL & CO., INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Stephen C. Sherrill

  	
   

  
	
   

  	
   

  	
  Stephen C. Sherrill

  	
   

  
	
   

  	
   

  	
  Managing Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  B&G FOODS HOLDINGS CORP.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Robert C. Cantwell

  	
   

  
	
   

  	
   

  	
  Robert C. Cantwell

  	
   

  
	
   

  	
   

  	
  Executive Vice President of Finance

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  B&G FOODS, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Robert C. Cantwell

  	
   

  
	
   

  	
   

  	
  Robert C. Cantwell

  	
   

  
	
   

  	
   

  	
  Executive Vice President of Finance

  



 


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