Exhibit 10.5


 


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 SCOTT E. LERNER (hereinafter “Lerner”).


 


WHEREAS, Lerner and the Corporation entered into that certain
Employment Agreement dated as of July 18, 2005 (the “Original Agreement”);


 


WHEREAS, Lerner 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 Lerner
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. Lerner 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,
General Counsel and Secretary 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 his by virtue of his position as Executive Vice
President, General Counsel and Secretary 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, general counsel
and secretary of a similar business corporation engaged in a similar
enterprise. Lerner 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.  Lerner 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 Lerner understand and
agree that if and when the Corporation so directs, Lerner shall also provide
services to any subsidiary or other Affiliate (as defined below) by virtue of his
employment under this Agreement.  If so
directed, Lerner agrees to serve as Executive Vice President, General Counsel
and Secretary 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, Lerner shall no longer provide such services
to the subsidiary or other Affiliate. The parties recognize and agree that Lerner
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 Lerner’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 Executive Vice President, General Counsel and Secretary required
under this Agreement, the Corporation agrees to pay Lerner an annual base
salary of Two Hundred Sixty-Five Thousand Dollars ($265,000), 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 Lerner’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. Lerner 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 Lerner the following:


 


(a)                                  Incentive Compensation. Lerner 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 Lerner’s
base salary on the last day of the Annual Bonus Plan performance period. The
percentages of base salary that Lerner 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.  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, Lerner
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. Lerner 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.


 


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


 


(g)                                 Liability Insurance. The Corporation agrees to insure Lerner
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, General
Counsel and Secretary throughout the Term.


 


(h)                                 Professional Meetings and Conferences. Lerner will be permitted to be
absent from the Corporation’s facilities during working days to attend
professional meetings and such continuing education programs as are necessary
for Lerner to maintain such professional licenses and certifications as are
required in the performance of his duties under this Agreement, 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
programs and accomplishment of approved professional duties shall be fully
compensated service time and shall not be considered vacation time. The
Corporation shall reimburse Lerner for all reasonable expenses incurred by him
incident to attendance at approved professional meetings and continuing
education programs, and such reasonable entertainment expenses incurred by
Lerner in furtherance of the Corporation’s interests; provided, however, that
such reimbursement is approved by the Chief Executive Officer of the
Corporation.


 


(i)                                     Registration Fees and Professional Dues.
The Corporation shall reimburse Lerner for registration fees for such
professional licenses and certifications as are required in the performance of
his duties under this Agreement, including bar registration fees for the States
of New Jersey and New York.  In addition,
the Corporation agrees to pay dues and expenses to professional associations
and societies and to such community and service organizations of which Lerner
is a member provided such dues and expenses are approved by the Chief Executive
Officer as being in the best interests of the Corporation.


 


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


 


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(k)                                  Business Expenses. The Corporation shall reimburse Lerner 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 Lerner’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, Lerner
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 Lerner
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)                               Lerner 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 Lerner’s discretion. If during the
Severance Period Lerner is receiving all or any part of the benefits set forth
in subparagraph (i) above and he should die, then Salary Continuation 


 


4

















 


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 Lerner of a general release, in
form and substance satisfactory to Lerner and the Corporation.  The Corporation will provide Lerner 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 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).  Lerner
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, Lerner
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 Lerner 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 Lerner for the compensation owed for said
notice period and in any such event Lerner’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 or the Chief Executive Officer, in
either of their sole discretion, takes action which substantially changes or
alters Lerner’s authority or duties so as to effectively prevent him from
performing the duties of the Executive Vice President, General Counsel and
Secretary 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 Lerner may, at his option and upon written notice to the Board of
Directors within thirty (30) days after the Board’s or Chief Executive Officer’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, Lerner’s duties have been restored.


 


5

















 


(e)                                  Disability.


 


(i)                                    The Corporation, in its sole discretion, may
terminate Lerner’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 Lerner
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 Lerner 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 Lerner from the
performance of his duties shall be made by the Board of Directors in its
discretion. If requested by the Board of Directors, Lerner 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 Lerner, 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 Lerner 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 Lerner
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 Lerner 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 Lerner 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 Lerner’s taxable year following
the taxable year for which the Excise Tax is due.


 


8.                                       Termination for Cause. Lerner’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 Lerner’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 


 


6

















 


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 Lerner
written notice specifying the effective date of such termination. Upon the
effective date of such termination, any and all payments and benefits due Lerner
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 Lerner is not the Executive Vice President,
General Counsel and Secretary 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 Lerner shall have the
right to terminate his employment under this Agreement and shall be entitled to
the benefits set forth in Section 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.  Lerner 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.  Lerner
agrees that during (i) the Term; (ii) the one (1) year period
following the effective date of termination of this Agreement by Lerner
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. 
Lerner 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. Lerner 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”). Lerner 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 


 


7

















 


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 Lerner
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 Lerner.


 


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
Lerner, their respective successors and permitted assigns. The parties
recognize and acknowledge that this Agreement is a contract for the personal
services of Lerner 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 Lerner to the payment of
any tax penalty or interest under such section.


 


17.                                 Enforcing Compliance. If Lerner 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 


 


8

















 


by
Lerner shall be reimbursed wholly and completely by the Corporation if Lerner
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
  Lerner at:

  	
   

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

  



 


19.                                 Other Terms Relating to Code Section 409A.  Lerner’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 Lerner’s taxable year following Lerner’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 Lerner, if
made during the period of time Lerner 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 Lerner 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 Lerner
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).


 


9

















 


(b)                                 Short-Term Deferrals.  It
is intended that payments made under this Agreement due to Lerner’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 Lerner’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 Lerner’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) Lerner’s 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 Lerner’s employment that are
subject to Code section 409A (“Covered Payment”) shall be delayed for
six months following such termination of employment if Lerner 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 Lerner’s termination of employment to the
date of payment.  The interest rate shall
be determined as of the date of Lerner’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 Lerner’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 Lerner (or Lerner’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 Lerner’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 Lerner’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 Lerner
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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SCOTT
  E. LERNER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Scott E. Lerner

  



 


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