Exhibit 10.2


 


EMPLOYMENT AGREEMENT


 


THIS EMPLOYMENT AGREEMENT (this “Agreement”), dated as of August 6,
2009, by and between B&G FOODS, INC. (hereinafter the “Corporation”)
and WILLIAM F. HERBES (hereinafter “Herbes”).


 


WHEREAS, subject to the terms of this Agreement, Corporation desires to
employ Herbes as Executive Vice President of Operations, and Herbes desires to
accept such employment.


 


NOW THEREFORE, in consideration of the material advantages accruing to
the two parties and the mutual covenants contained herein, the Corporation and Herbes
agree with each other as follows


 


1.             Effective Date.  For purposes of this Agreement, the “Effective
Date” shall mean August 6, 2009.


 


2.             Employment. Herbes
will render full-time professional services to the Corporation and, as directed
by the Corporation, to its subsidiaries or other Affiliates (as defined in
Paragraph 3 below), in the capacity of Executive Vice President of Operations under
the terms and conditions of this Agreement. 
He will at all times, faithfully, industriously and to the best of his
ability, perform all duties that may be required of him by virtue of his
position as Executive Vice President of Operations and in accordance with the
directions and mandates of the Board of Directors of the Corporation.  It is understood that these duties shall be
substantially the same as those of an executive vice president of operations of
a similar business corporation engaged in a similar enterprise, provided,
however, that upon the Effective Date Herbes will assume responsibility
for the supply chain portions of the Company’s operations department, including
all logistics, purchasing and planning functions, and co-packer manufacturing
but will not assume responsibility for internal manufacturing until the Corporation’s
Executive Vice President of Manufacturing retires, which is expected to occur
in 2010.  Herbes is hereby vested with
authority to act on behalf of the Corporation in keeping with policies adopted
by the Board of Directors, as amended from time to time.  Herbes shall report to the President and
Chief Executive Officer (hereinafter the “Chief Executive Officer”) and
the Board of Directors.


 


3.             Services to
Subsidiaries or Other Affiliates. The Corporation and Herbes understand and
agree that if and when the Corporation so directs, Herbes shall also provide
services to any subsidiary or other Affiliate (as defined below) by virtue of his
employment under this Agreement.  If so
directed, Herbes agrees to serve as Executive Vice President of Operations of
such subsidiary or other Affiliate of the Corporation, as a condition of his
employment under this Agreement, and upon the termination of his employment
under this Agreement, Herbes shall no longer provide such services to the
subsidiary or other Affiliate. The parties recognize and agree that Herbes
shall perform such services as part of his overall professional services to the
Corporation but that in certain circumstances approved by the Corporation he
may receive additional compensation from such subsidiary or other
Affiliate.  For purposes of this
Agreement, an “Affiliate” is any corporation or other entity that is controlled
by, 


 

















 


controlling
or under common control with the Corporation. “Control” means the direct or
indirect beneficial ownership of at least fifty (50%) percent interest in the
income of such corporation or entity, or the power to elect at least fifty
(50%) percent of the directors of such corporation or entity, or such other
relationship which in fact constitutes actual control.


 


4.             Term of
Agreement. The initial term of Herbes’ employment under this Agreement
shall commence on the Effective Date and end on December 31, 2010;
provided that unless notice of termination has been provided in accordance with
Paragraph 7(a) at least sixty (60) days prior to the expiration of the initial
term or any additional twelve (12) month term (as provided below), or unless
this Agreement is otherwise terminated in accordance with the terms of this
Agreement, this Agreement shall automatically be extended for additional twelve
(12) month periods (the “Term”).


 


5.             Base
Compensation. During the Term, in consideration for the services as Executive
Vice President of Operations required under this Agreement, the Corporation
agrees to pay Herbes an annual base salary of Two Hundred Fifty Thousand
Dollars ($250,000), or such higher figure as may be determined at an annual
review of his performance and compensation by the Compensation Committee of the
Board of Directors.  The annual review of
Herbes’ base salary shall be conducted by the Compensation Committee of the
Board of Directors within a reasonable time after the end of each fiscal year
of the Corporation and any increase shall be retroactive to January 1st of the then current Agreement year.  The amount of annual base salary shall be
payable in equal installments consistent with the Corporation’s payroll payment
schedule for other executive employees of the Corporation. Herbes may choose to
select a portion of his compensation to be paid as deferred income through
qualified plans or other programs consistent with the policy of the Corporation
and subject to any and all applicable federal, state or local laws, rules or
regulations.


 


6.             Other
Compensation and Benefits. During the Term, in addition to his base salary,
the Corporation shall provide Herbes the following:


 


(a)           Incentive
Compensation. Herbes shall participate in the Company’s annual bonus plan (the
“Annual Bonus Plan”), as shall be adopted and/or modified from time to
time by the Board of Directors or the Compensation Committee.  Annual Bonus Plan awards are calculated as a
percentage of Herbes’ base salary on the last day of the Annual Bonus Plan
performance period.  The percentages of
base salary that Herbes is eligible to receive based on performance range from
0% at “Threshold” to 35% at “Target” and to 70% at “Maximum,” as such terms are
defined in the Annual Bonus Plan.  Notwithstanding
the foregoing, for the performance period in which the Effective Date occurs,
Herbes’ bonus under the Annual Bonus Plan shall be determined on a pro rata
basis applying the percentages set forth above to his base salary multiplied by
a fraction, the numerator of which is the number of days transpired in the
performance period beginning on the Effective Date and ending on the last day
of the performance period and the denominator of which is the number of days in
the entire performance period.  Annual
Bonus Plan awards are payable no later than the 15th day of the third month
following the end of each fiscal year of the Corporation.  In addition, beginning in 2010 Herbes shall
be eligible to participate in all other incentive compensation plans, if any,
that 


 


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may
be adopted by the Corporation from time to time and with respect to which the
other executive employees of the Corporation are eligible to participate.


 


(b)           Vacation. Herbes
shall be entitled to four (4) weeks of compensated vacation time during
each year, to be taken at times mutually agreed upon between him and the Chief
Executive Officer of the Corporation. 
Vacation accrual shall be limited to the amount stated in the
Corporation’s policies currently in effect, as amended from time to time.


 


(c)           Sick Leave and
Disability. Herbes shall be entitled to participate in such compensated
sick leave and disability benefit programs as are offered to the Corporation’s
other executive employees.


 


(d)           Medical and
Dental Insurance. Herbes, his spouse, and his dependents, shall be entitled
to participate in such medical and dental insurance programs as are provided to
the Corporation’s other executive employees.


 


(e)           Executive
Benefits And Perquisites. Herbes shall be entitled to receive all other
executive benefits and perquisites to which all other executive employees of
the Corporation are entitled.


 


(f)            Automobile and
Cellular Phone.  The Corporation
agrees to provide Herbes with a monthly automobile allowance of $833.33 and to
provide for the use by Herbes of a cellular telephone at the Corporation’s
expense.


 


(g)           Liability
Insurance. The Corporation agrees to insure Herbes under the appropriate
liability insurance policies, in accordance with the Corporation’s policies and
procedures, for all acts done by him within the scope of his authority in good
faith as Executive Vice President of Operations throughout the Term.


 


(h)           Professional
Meetings and Conferences. Herbes will be permitted to be absent from the
Corporation’s facilities during working days to attend professional meetings
and to attend to such outside professional duties as have been mutually agreed
upon between him and the Chief Executive Officer of the Corporation.  Attendance at such approved meetings and
accomplishment of approved professional duties shall be fully compensated
service time and shall not be considered vacation time. The Corporation shall
reimburse Herbes for all reasonable expenses incurred by him incident to
attendance at approved professional meetings, and such reasonable entertainment
expenses incurred by Herbes in furtherance of the Corporation’s interests;
provided, however, that such reimbursement is approved by the Chief Executive
Officer of the Corporation.


 


(i)            Professional
Dues. The Corporation agrees to pay dues and expenses to professional
associations and societies and to such community and service organizations of
which Herbes is a member provided such dues and expenses are approved by the
Chief Executive Officer as being in the best interests of the Corporation.


 


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(j)            Life Insurance.
The Corporation shall provide Herbes with life insurance coverage on the same
terms as such coverage is provided to all other executive employees of the
Corporation.


 


(k)           Business Expenses.
The Corporation shall reimburse Herbes for reasonable expenses incurred by him
in connection with the conduct of business of the Corporation and its
subsidiaries or other Affiliates.


 


7.             Termination Without Cause.


 


(a)           By the Corporation. The Corporation may, in its
discretion, terminate Herbes’ employment hereunder without cause at any time
upon sixty  (60) days prior written
notice or at such later time as may be specified in said notice.  Except as otherwise provided in this
Agreement, after such termination, all rights, duties and obligations of both
parties shall cease.


 


(i)            Upon the
termination of employment pursuant to subparagraph (a) above, subject to
the terms in subparagraph (ii) and Paragraph 9 below and the requirements
of Paragraph 10 below, in addition to all accrued and vested benefits payable
under the Corporation’s employment and benefit policies, including, but not
limited to, unpaid Annual Bonus Awards and any other incentive compensation
awards earned under the Annual Bonus Plan or any other incentive compensation
plan for any completed performance periods, Herbes shall be provided with the
following Salary Continuation and Other Benefits (as defined below) for the
duration of the Severance Period (as defined below):  (1) salary continuation payments for
each year of the Severance Period in an amount per year equal to 135% of his then
current annual base salary (“Salary Continuation”), which Salary
Continuation shall be paid in the same manner and pursuant to the same payroll
procedures that were in effect prior to the effective date of termination; (2) continuation
of medical, dental, life insurance and disability insurance for him, his spouse
and his dependents, during the Severance Period, as in effect on the effective
date of termination (“Other Benefits”), or if the continuation of all or
any of the Other Benefits is not available because of his status as a
terminated employee, a payment equal to the market value of such excluded Other
Benefits; (3) if allowable under the Corporation’s qualified pension plan
in effect on the date of termination, credit for additional years of service
during the Severance Period; and (4) outplacement services of an
independent third party, mutually satisfactory to both parties, until the
earlier of one year after the effective date of termination, or until he obtains
new employment; the cost for such service will be paid in full by the
Corporation.  For purposes of this
Agreement (except for Paragraph 9 below), the “Severance Period” shall
mean the period from the date of termination of employment to the first (1st)
anniversary of the date of such termination.


 


(ii)           Subject to
Paragraph 10 below, in the event Herbes accepts other employment during the
Severance Period, the Corporation shall continue the Salary Continuation in
force until the end of the Severance Period. 
All Other Benefits described in subparagraph (i)(2) and the benefit
set forth in (i)(3), other than all accrued and vested benefits payable under
the Corporation’s employment and benefit policies, shall cease.


 


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(iii)          Herbes shall not be
required to seek or accept any other employment. Rather, the election of
whether to seek or accept other employment shall be solely within Herbes’
discretion. If during the Severance Period Herbes is receiving all or any part
of the benefits set forth in subparagraph (i) above and he should die,
then Salary Continuation remaining during the Severance Period shall be paid
fully and completely to his spouse or such individual designated by him or if
no such person is designated to his estate.


 


(b)           Release. The
obligation of the Corporation to provide the Salary Continuation and Other
Benefits described in subparagraph (a) above is contingent upon and
subject to the execution and delivery by Herbes of a general release, in form
and substance satisfactory to Herbes and the Corporation.  The Corporation will provide Herbes with a
copy of a general release satisfactory to the Corporation simultaneously with
or as soon as administratively practicable following the delivery of the notice
of termination provided in Paragraph 7(a), or at or as soon as administratively
practicable following the expiration of the Corporation’s right to cure
provided in Paragraph 7(d) or Paragraph 9, but not later than twenty-one
(21) days before the date payments are required to be begin under Paragraph
7(a).  Herbes shall deliver the executed
release to the Corporation eight days before the date payments are required to
begin under Paragraph 7(a).


 


Without limiting the foregoing, such general release shall provide that
for and in consideration of the above Salary Continuation and Other Benefits, Herbes
releases and gives up any and all claims and rights ensuing from his employment
and termination with the Corporation, which he may have against the Corporation,
a subsidiary or other Affiliate, their respective trustees, officers, managers,
employees and agents, arising from or related to his employment and/or
termination.  This releases all claims,
whether based upon federal, state, local or common law, rules or
regulations.  Such release shall survive
the termination or expiration of this Agreement.


 


(c)           Voluntary
Termination.  Should Herbes in his
discretion elect to terminate this Agreement, he shall give the Corporation at
least sixty (60) days prior written notice of his decision to terminate. Except
as otherwise provided in this Agreement, at the end of the sixty (60) day
notice period, all rights, duties and obligations of both parties to the
Agreement shall cease, except for any and all accrued and vested benefits under
the Corporation’s existing employment and benefit policies, including but not
limited to, unpaid incentive compensation awards earned under the Annual Bonus
Plan or any other incentive compensation plan for any completed performance
periods. At any time during the sixty (60) day notice period, the Corporation
may pay Herbes for the compensation owed for said notice period and in any such
event Herbes’ employment termination shall be effective as of the date of the
payment.


 


(d)           Alteration of
Duties.  If the Board of Directors of
the Corporation or the Chief Executive Officer, in either of their sole
discretion, takes action which substantially changes or alters Herbes’
authority or duties so as to effectively prevent him from performing the duties
of the Executive Vice President of Operations as defined in this Agreement, or
requires that his office be located at and/or principal duties be performed at
a location more than forty-five (45) miles from the present Corporation office
located in Parsippany, New Jersey, then Herbes may, at his option and upon
written notice to the Board of Directors within thirty (30) days after the 


 


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Board’s
or Chief Executive Officer’s action, consider himself terminated without cause
and entitled to the benefits set forth in Paragraph 7(a), unless within thirty
(30) days after delivery of such notice, Herbes’ duties have been restored.


 


(e)           Disability.


 


(i)            The Corporation, in
its sole discretion, may terminate Herbes’ employment upon his Total
Disability. In the event he is terminated pursuant to this subparagraph, he
shall be entitled to the benefits set forth in Paragraph 7(a), provided
however, that the annual base salary component of Salary Continuation shall be
reduced by any amounts paid to Herbes under any disability benefits plan or
insurance policy. For purposes of this Agreement, the term “Total Disability”
shall mean death or any physical or mental condition which prevents Herbes from
performing his duties under this contract for at least four (4) consecutive
months. The determination of whether or not a physical or mental condition
would prevent Herbes from the performance of his duties shall be made by the
Board of Directors in its discretion. If requested by the Board of Directors, Herbes
shall submit to a mental or physical examination by an independent physician
selected by the Corporation and reasonably acceptable to him to assist the
Board of Directors in its determination, and his acceptance of such physician
shall not be unreasonably withheld or delayed. 
Failure to comply with this request shall prevent him from challenging
the Board’s determination.


 


(f)            Retirement.
The Corporation, in its sole discretion, may establish a retirement policy for
its executive employees, including Herbes, which includes the age for mandatory
retirement from employment with the Corporation. Upon the termination of
employment pursuant to such retirement policy, all rights and obligations under
this Agreement shall cease, except that Herbes shall be entitled to any and all
accrued and vested benefits under the Corporation’s existing employment and
benefits policies, including but not limited to unpaid incentive compensation
awards earned under the Annual Bonus Plan or any other incentive compensation plan
for any completed performance periods.


 


(g)           Other Payments.  If Herbes is liable for the payment of any
excise tax (the “Excise Tax”) pursuant to section 4999 of the Internal
Revenue Code of 1986, as amended (the “Code”), or any successor or like
provision, with respect to any payment or property transfers received or to be
received under this Agreement or otherwise, the Corporation shall pay Herbes an
amount (the “Special Reimbursement”) which, after payment of any
federal, state and local taxes, including any further excise tax under Code
section 4999, with respect to or resulting from the Special Reimbursement,
would place Herbes in the same economic position that he would have enjoyed if
the Excise Tax had not applied to such payments.  The Special Reimbursement shall be paid as
soon as practicable following final determination of the amount of the Excise
Tax, but in no event later than the last day of Herbes’ taxable year following
the taxable year for which the Excise Tax is due.


 


8.             Termination for
Cause. Herbes’ employment under this Agreement may be terminated by the
Corporation, immediately upon written notice in the event and only in the event
of the following conduct:  conviction of
a felony or any other crime involving moral turpitude, whether or not relating
to Herbes’ employment; habitual unexcused absence from the 


 


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facilities
of the Corporation; habitual substance abuse; willful disclosure of material
confidential information of the Corporation and/or its subsidiaries or other
Affiliates; intentional violation of conflicts of interest policies established
by the Board of Directors; wanton or willful failure to comply with the lawful
written directions of the Board or other superiors; and willful misconduct or
gross negligence that results in damage to the interests of the Corporation and
its subsidiaries or other Affiliates. Should any of these situations occur, the
Board of Directors and/or the Chief Executive Officer will provide Herbes
written notice specifying the effective date of such termination. Upon the
effective date of such termination, any and all payments and benefits due Herbes
under this Agreement shall cease except for any accrued and vested benefits
payable under the Corporation’s employment and benefit policies, including any
unpaid amounts owed under the Annual Bonus Plan or any other incentive
compensation plan.


 


9.             Major
Transaction. If, during the Term, the Corporation consummates a Major
Transaction and Herbes is not the Executive Vice President of Operations with
duties and responsibilities substantially equivalent to those described herein
and/or is not entitled to substantially the same benefits as set forth in this
Agreement, then Herbes shall have the right to terminate his employment under
this Agreement and shall be entitled to the benefits set forth in Paragraph
7(a), except that the Severance Period shall mean the period from the date of
termination of employment to the second (2nd) anniversary of the date of such
termination.  Herbes shall provide the
Corporation with written notice of his desire to terminate his employment under
this Agreement pursuant to this Paragraph within ninety (90) days of the
effective date of the Major Transaction and the Severance Period shall commence
as of the effective date of the termination of this Agreement, provided the
Corporation has not corrected the basis for such notice within thirty (30) days
after delivery of such notice and further provided that the effective date of
termination of this Agreement shall not be more than one year following the
effective date of the Major Transaction. 
For purposes of this Paragraph, “Major Transaction” shall mean
the sale of all or substantially all of the assets of the Corporation, or a
merger, consolidation, sale of stock or similar transaction or series of
related transactions whereby a third party (including a “group” as
defined in Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended) acquires beneficial ownership, directly or indirectly, of
securities of the Corporation representing over fifty percent (50%) of the
combined voting power of the Corporation; provided, however, that a Major
Transaction shall not in any event include a direct or indirect public offering
of securities of the Corporation, its parent or other Affiliates.


 


10.           Non-Competition.  Herbes agrees that during (i) the Term; (ii) the
one (1) year period following the effective date of termination of this
Agreement by Herbes pursuant to Paragraph 7(c) (Voluntary Termination); and
(iii) the one (1) year period following the effective date of
termination by the Corporation pursuant to Paragraph 8 (Termination For Cause),
he shall not, directly or indirectly, be employed or otherwise engaged to
provide services to any food manufacturer operating in the United States of
America which is directly competitive with any significant activities conducted
by the Corporation or its subsidiaries or other Affiliates whose principal business
operations are in the United States of America. 
Herbes agrees that his entitlement to the benefits set forth in Paragraph
7(a) above is contingent upon his compliance with the requirements of this
Paragraph.


 


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11.           Confidentiality
of Information. Herbes recognizes and acknowledges that during his
employment by the Corporation, he will acquire certain proprietary and
confidential information relating to the business of the Corporation and its
subsidiaries or other Affiliates (the “Information”). Herbes agrees that
during the term of his employment under this Agreement and thereafter, for any
reason whatsoever, he shall not, directly or indirectly, except in the proper
course of exercising his duties under this Agreement, use for his or another
third party’s benefit, disclose, furnish, or make available to any person,
association or entity, the Information. In the event of a breach or threatened
breach by Herbes of the provisions of this Paragraph, the Corporation shall be
entitled to an injunction restraining him from violating the provisions of this
Paragraph. Notwithstanding the foregoing, nothing contained herein shall be
construed as prohibiting the Corporation from pursuing any other remedies
available to it for such breach or threatened breach. For purposes of this
Paragraph, “Information” includes any and all verbal or written
materials, documents, information, products, recipes, formulas, processes,
technologies, programs, trade secrets, customer lists or other data relating to
the business, and operations of the Corporation and/or its subsidiaries or
other Affiliates.


 


12.           Superseding
Agreement. This Agreement constitutes the entire agreement between the
parties and contains all the agreements between them with respect to the
subject matter hereof. It also supersedes any and all other agreements or
contracts, either oral or written, between the parties with respect to the
subject matter hereof.


 


13.           Agreement
Amendments.  Except as otherwise
specifically provided, the terms and conditions of this Agreement may be
amended at any time by mutual agreement of the parties, provided that before
any amendment shall be valid or effective, it shall have been reduced to
writing, approved by the Board of Directors or the Compensation Committee of
the Board of Directors, and signed by the Chairperson of the Board of Directors,
the Chairman of the Compensation Committee or the Chief Executive Officer and Herbes.


 


14.           Invalidity or
Unenforceability Provision.  The invalidity
or unenforceability of any particular provision of this Agreement shall not
affect its other provisions and this Agreement shall be construed in all
aspects as if such invalid or unenforceable provision had been omitted.


 


15.           Binding
Agreement; Assignment.  This
Agreement shall be binding upon and inure to the benefit of the Corporation and
Herbes, their respective successors and permitted assigns. The parties
recognize and acknowledge that this Agreement is a contract for the personal
services of Herbes and that this Agreement may not be assigned by him nor may
the services required of him hereunder be performed by any other person without
the prior written consent of the Corporation.


 


16.           Governing Law.
This Agreement and any claim, controversy or dispute arising under or related
to this Agreement, the relationship of the parties, and/or the interpretation
and enforcement of the rights and duties of the parties shall be construed and
enforced under and in accordance with the laws of the State of New Jersey,
without regard to conflicts of law principles. 
Anything in this Agreement to the contrary notwithstanding, the terms of
this Agreement shall be interpreted and applied in a manner consistent with the
requirements of Code 


 


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section
409A so as not to subject Herbes to the payment of any tax penalty or interest
under such section.


 


17.           Enforcing
Compliance. If Herbes needs to retain legal counsel to enforce any of the
terms of this Agreement either as a result of noncompliance by the Corporation
or a legitimate dispute as to the provisions of the Agreement, then any fees
incurred in such expense by Herbes shall be reimbursed wholly and completely by
the Corporation if Herbes prevails in such legal proceedings.


 


18.           Notices. All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed effective when delivered, if delivered in person,
or upon receipt if mailed by overnight courier or by certified or registered
mail, postage prepaid, return receipt requested, to the parties at the
addresses set forth below, or at such other addresses as the parties may
designate by like written notice:


 


	
  To
  the Corporation at:

  	
  B&G
  Foods, Inc

  
	
   

  	
  Four
  Gatehall Drive

  
	
   

  	
  Suite 110

  
	
   

  	
  Parsippany,
  NJ 07054

  
	
   

  	
  Attn:  General Counsel

  
	
   

  	
   

  
	
  To
  Herbes at:

  	
  his
  then current address included in the employment records of the Corporation

  



 


19.           Other Terms
Relating to Code Section 409A.  Herbes’
right to Salary Continuation, right to Other Benefits, and right to
reimbursements under this Agreement each shall be treated as a right to a
series of separate payments under Treasury Regulation section
1.409A-2(b)(2)(iii).


 


(a)           Reimbursements.  Any reimbursements made or in-kind benefits
provided under this Agreement shall be subject to the following conditions:


 


(i)            The reimbursement of any expense shall be made not later
than the last day of Herbes’ taxable year following Herbes’ taxable year in
which the expense was incurred (unless this Agreement specifically provides for
reimbursement by an earlier date).  The
right to reimbursement of an expense or payment of an in-kind benefit shall not
be subject to liquidation or exchange for another benefit.


 


(ii)           Any reimbursement made under Paragraph 7(a)(i)(2), 7(d), 7(e) or
9 for expenses for medical coverage purchased by Herbes, if made during the
period of time Herbes would be entitled (or would, but for such reimbursement,
be entitled) to continuation coverage under the Corporation’s medical insurance
plan pursuant to COBRA if Herbes had elected such coverage and paid the
applicable premiums, shall be exempt from Code section 409A and the six-month
delay in payment described below pursuant to Treasury Regulation section
1.409A-1(b)(9)(v)(B).


 


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(iii)          Any reimbursement or payment made under Paragraph 7(a)(i)(2),
7(d), 7(e) or 9 for reasonable expenses for outplacement services for Herbes
shall be exempt from Code section 409A and the six-month delay in payment
described below pursuant to Treasury Regulation section 1.409A-1(b)(9)(v)(A).


 


(b)           Short-Term
Deferrals.  It is intended that
payments made under this Agreement due to Herbes’ termination of employment
that are not otherwise subject to Code section 409A, and which are paid on or
before the 15th day of the third month following the end of Herbes’ taxable
year in which his termination of employment occurs, shall be exempt from
compliance with Code section 409A pursuant to the exemption for short-term
deferrals set forth in Treasury Regulation section 1.409A-1(b)(4).


 


(c)           Separation Pay
Upon Involuntary Termination of Employment. 
It is intended that payments made under this Agreement due to Herbes’
involuntary termination of employment under Paragraph 7(a)(i)(2), 7(d), 7(e) or
9 that are not otherwise exempt from compliance with Code section 409A, and
which are separation pay described in Treasury Regulation section
1.409A-1(b)(9)(iii), shall be exempt from compliance with Code section 409A to
the extent that the aggregate amount does not exceed two times the lesser of (i) Herbes’
annualized compensation for his taxable year preceding the taxable year in
which his termination of employment occurs and (ii) the maximum amount
that may be taken into account under a qualified plan pursuant to Code section
401(a)(17) for the year in which the termination of employment occurs.


 


(d)           Six-Month Delay.  Anything in this Agreement to the contrary
notwithstanding, payments to be made under this Agreement upon termination of Herbes’
employment that are subject to Code section 409A (“Covered Payment”)
shall be delayed for six months following such termination of employment if Herbes
is a “specified employee” on the date of his termination of employment.  Any Covered Payment due within such six-month
period shall be delayed to the end of such six-month period.  The Corporation will increase the Covered
Payment to include interest payable on such Covered Payment at the interest
rate described below from the date of Herbes’ termination of employment to the
date of payment.  The interest rate shall
be determined as of the date of Herbes’ termination of employment and shall be
the rate of interest then most recently published in The Wall Street Journal as
the “prime rate” at large U.S. money center banks.  The Corporation will pay the adjusted Covered
Payment at the beginning of the seventh month following Herbes’ termination of
employment. Notwithstanding the foregoing, if calculation of the amounts
payable by any payment date specified in this subsection is not
administratively practicable due to events beyond the control of Herbes (or Herbes’
beneficiary or estate) and for reasons that are commercially reasonable,
payment will be made as soon as administratively practicable in compliance with
Code section 409A and the Treasury Regulations thereunder.  In the event of Herbes’ death during such
six-month period, payment will be made or begin, as the case may be with
respect to a particular payment, in the payroll period next following the payroll
period in which Herbes’ death occurs.


 


For purposes of this Agreement, “specified employee” means an
employee of the Corporation who satisfies the requirements for being designated
a “key employee” under Code section 416(i)(1)(A)(i), (ii) or (iii), without
regard to Code section 416(i)(5), at any time during a 


 


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calendar
year, in which case such employee shall be considered a specified employee for
the twelve-month period beginning on the next succeeding April 1.


 


[Signatures on Next Page]


 


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IN  WITNESS WHEREOF, the Corporation and Herbes
have executed this Agreement as of the day and year first above written.


 


	
   

  	
  B&G
  FOODS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  David L. Wenner

  
	
   

  	
  Name:
  David L. Wenner

  
	
   

  	
  Title:
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WILLIAM
  F. HERBES

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  William F. Herbes

  



 


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