Exhibit 10.1


 


AMENDED AND RESTATED EMPLOYMENT AGREEMENT


 


THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of December 31,
2008, by and between B&G FOODS, INC. (hereinafter the “Corporation”)
and DAVID L. WENNER (hereinafter “Wenner”).


 


WHEREAS, Wenner and the Corporation entered into that certain
Employment Agreement, as amended by a First Amendment dated October 13,
2004 (the “Original Agreement”);


 


WHEREAS, Wenner and the Corporation desire to amend and restate the
Original Agreement in its entirety as set forth herein.


 


NOW THEREFORE, in consideration of the material advantages accruing to
the two parties and the mutual covenants contained herein, the Corporation and
Wenner agree with each other to amend and restate the Original Agreement, and
the Original Agreement is hereby amended and restated in its entirety as
follows


 


1.             Effective Date.  For purposes of this Agreement, the “Effective
Date” shall mean December 31, 2008.


 


2.             Employment. Wenner 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 President and Chief Executive Officer
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 President and Chief Executive
Officer 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 a
president and chief executive officer of a similar business corporation engaged
in a similar enterprise. Wenner 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. 
Wenner shall report solely and directly to the Board of Directors.


 


3.             Services to Subsidiaries or
Other Affiliates. The Corporation and Wenner understand and agree
that if and when the Corporation so directs, Wenner shall also provide services
to any subsidiary or other Affiliate (as defined below) by virtue of his
employment under this Agreement.  If so
directed, Wenner agrees to serve as President and Chief Executive Officer 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, Wenner shall no longer provide such services to the
subsidiary or other Affiliate. The parties recognize and agree that Wenner
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 Wenner’s 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 President and Chief Executive
Officer required under this Agreement, the Corporation agrees to pay Wenner an
annual base salary of Four Hundred Seventy-Three Thousand Dollars ($473,000),
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 Wenner’s
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. Wenner 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 Wenner the following:


 


(a)                                  Incentive
Compensation. Wenner 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 Wenner’s
base salary on the last day of the Annual Bonus Plan performance period. The
percentages of base salary that Wenner is eligible to receive based on
performance range from 0% at “Threshold” to 50% at “Target” and to 100% at “Maximum,”
as such terms are defined in the Annual Bonus Plan.  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, Wenner
shall be eligible to participate in all other incentive compensation plans, if
any, that 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. Wenner 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 Chairperson
of the Board of Directors.  Vacation
accrual shall be limited to the amount stated in the Corporation’s policies
currently in effect, as amended from time to time.


 


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(c)                                  Sick Leave and
Disability. Wenner 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. Wenner, 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. Wenner 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 Wenner with a
monthly automobile allowance of $833.33 and to provide for the use by Wenner of
a cellular telephone at the Corporation’s expense.


 


(g)                                 Liability
Insurance. The Corporation agrees to insure Wenner 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 President and Chief Executive Officer throughout the
Term.


 


(h)                                 Professional
Meetings and Conferences. Wenner 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 Chairperson of the Board of
Directors.  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 Wenner for all reasonable expenses incurred by him
incident to attendance at approved professional meetings, and such reasonable
entertainment expenses incurred by Wenner in furtherance of the Corporation’s
interests; provided, however, that such reimbursement is approved by the
Chairperson of the Board of Directors.


 


(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 Wenner is a member provided such dues and expenses are approved by the
Chairperson of the Board of Directors as being in the best interests of the
Corporation.


 


(j)                                     Life Insurance. The
Corporation shall provide Wenner 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 Wenner for
reasonable expenses incurred by him in connection with the conduct of business
of the Corporation and its subsidiaries or other Affiliates.


 


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7.             Termination
Without Cause.


 


(a)                                  By the
Corporation. The Corporation may, in its discretion, terminate
Wenner’s 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, Wenner shall be provided with the
following Salary Continuation and Other Benefits (as defined below) for a
period of two (2) years (the “Severance Period”):  (1) salary continuation payments for
each year of the Severance Period in an amount per year equal to 150% 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.


 


(ii)           Subject to
Paragraph 10 below, in the event Wenner 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.


 


(iii)          Wenner 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 Wenner’s
discretion. If during the Severance Period Wenner 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 Wenner of a general release, in form
and substance satisfactory to Wenner and the Corporation.  The Corporation will provide Wenner with a
copy of a general release satisfactory to the Corporation simultaneously with
or as soon as administratively 


 


4

















 


practicable
following the delivery of the notice of termination provided in Section 7(a),
or at or as soon as administratively practicable following the expiration of
the Corporation’s right to cure provided in Section 7(d) or Section 9,
but not later than twenty-one (21) days before the date payments are required
to be begin under Section 7(a). 
Wenner shall deliver the executed release to the Corporation eight days
before the date payments are required to begin under Section 7(a).


 


Without limiting the foregoing, such general release shall provide that
for and in consideration of the above Salary Continuation and Other Benefits,
Wenner 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
Wenner 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 Wenner for the compensation owed for said
notice period and in any such event Wenner’s employment termination shall be
effective as of the date of the payment.


 


(d)                                 Alteration of
Duties.  If the Board of Directors of
the Corporation in its sole discretion takes action which substantially changes
or alters Wenner’s authority or duties so as to effectively prevent him from
performing the duties of the President and Chief Executive Officer 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 Wenner may,
at his option and upon written notice to the Board of Directors within thirty
(30) days after the Board’s action, consider himself terminated without cause
and entitled to the benefits set forth in Section 7(a), unless within
thirty (30) days after delivery of such notice, Wenner’s duties have been
restored.


 


(e)                                  Disability.


 


(i)            The Corporation, in its sole
discretion, may terminate Wenner’s 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 Section 7(a), provided however, that the annual
base salary component of Salary Continuation shall be reduced by any amounts
paid to Wenner 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 Wenner 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 


 


5

















 


prevent
Wenner from the performance of his duties shall be made by the Board of
Directors in its discretion. If requested by the Board of Directors, Wenner
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 Wenner, 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 Wenner 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 Wenner 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 Wenner 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 Wenner 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 Wenner’s taxable year following
the taxable year for which the Excise Tax is due.


 


8.             Termination for Cause. Wenner’s
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
Wenner’s employment; habitual unexcused absence from the 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 will provide Wenner written notice specifying the effective
date of such termination. Upon the effective date of such termination, any and
all payments and benefits due Wenner 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 Wenner is not the
President and Chief Executive Officer with duties and 


 


6

















 


responsibilities
substantially equivalent to those described herein and/or is not entitled to
substantially the same benefits as set forth in this Agreement, then Wenner
shall have the right to terminate his employment under this Agreement and shall
be entitled to the benefits set forth in Section 7(a).  Wenner 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.  Wenner agrees that during (i) the Term; (ii) the
one (1) year period following the effective date of termination of this
Agreement by Wenner 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.  Wenner agrees that his entitlement to the
benefits set forth in Section 7(a) above is contingent upon his
compliance with the requirements of this Paragraph.


 


11.           Confidentiality
of Information. Wenner 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”). Wenner 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 Wenner 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.


 


7

















 


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 Chairperson of the
Compensation Committee or the Chief Financial Officer and Wenner.


 


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
Wenner, their respective successors and permitted assigns. The parties
recognize and acknowledge that this Agreement is a contract for the personal
services of Wenner 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 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 section 409A so as not to
subject Wenner to the payment of any tax penalty or interest under such
section.


 


17.           Enforcing Compliance. If Wenner
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 Wenner shall be reimbursed wholly and completely by the Corporation if Wenner
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

  



 


8

















 


	
   

  	
   

  	
  Parsippany,
  NJ 07054

  
	
   

  	
   

  	
  Attn:
  General Counsel

  



 


	
  To
  Wenner at:

  	
   

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

  



 


19.           Other Terms Relating to Code
Section 409A.  Wenner’s
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 Wenner’s taxable year following Wenner’s 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 Section 7(a)(i)(2),
7(d), 7(e) or 9 for expenses for medical coverage purchased by Wenner, if
made during the period of time Wenner 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 Wenner 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).


 


(iii)          Any reimbursement or payment made under Section 7(a)(i)(2),
7(d), 7(e) or 9 for reasonable expenses for outplacement services for
Wenner 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 Wenner’s 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 Wenner’s
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 Wenner’s involuntary termination of employment under Section 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) Wenner’s annualized 


 


9

















 


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
Wenner’s employment that are subject to Code section 409A (“Covered Payment”)
shall be delayed for six months following such termination of employment if
Wenner 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 Wenner’s termination of
employment to the date of payment.  The
interest rate shall be determined as of the date of Wenner’s 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 Wenner’s
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 Wenner (or
Wenner’s 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 Wenner’s 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 Wenner’s 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 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
Wenner have executed this Agreement as of the day and year first above written.


 


	
   

  	
  B&G
  FOODS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Robert C. Cantwell

  
	
   

  	
  Name:
  Robert C. Cantwell

  
	
   

  	
  Title:
     Executive Vice President and

  
	
   

  	
  Chief
  Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DAVID
  L. WENNER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  David L. Wenner

  



 


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