Exhibit 10.4


 


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 JAMES H. BROWN (hereinafter “Brown”).


 


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


 


WHEREAS, Brown 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 Brown
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. Brown 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 Manufacturing 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
Manufacturing 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 manufacturing of a similar business corporation engaged in a
similar enterprise. Brown 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.  Brown 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 Brown understand and
agree that if and when the Corporation so directs, Brown shall also provide
services to any subsidiary or other Affiliate (as defined below) by virtue of his
employment under this Agreement.  If so
directed, Brown agrees to serve as Executive Vice President of Manufacturing 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, Brown shall no longer provide such services to the
subsidiary or other Affiliate. The parties recognize and agree that Brown 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 Brown’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 of Manufacturing required under this
Agreement, the Corporation agrees to pay Brown an annual base salary of Two
Hundred Fifty-Five Thousand Dollars ($255,000), 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 Brown’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. Brown 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 Brown the following:


 


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


 


2

















 


(c)                                  Sick Leave and Disability. Brown 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. Brown, 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. Brown 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,
either directly or through a monetary allowance, for the use by Brown of an
automobile and cellular telephone.  The
selection of said automobile, or alternatively, the amount of the car allowance
that will allow Brown to purchase or lease an automobile, shall be subject to
approval by the Chief Executive Officer of the Corporation.


 


(g)                                 Liability Insurance. The Corporation agrees to insure Brown
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
Manufacturing throughout the Term.


 


(h)                                 Professional Meetings and Conferences. Brown 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 Brown for all reasonable expenses incurred by him
incident to attendance at approved professional meetings, and such reasonable
entertainment expenses incurred by Brown 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 Brown 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 Brown 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 Brown for
reasonable expenses incurred by him in connection with the conduct of business
of the Corporation and its subsidiaries or other Affiliates.


 


3

















 


7.                                       Termination Without Cause.


 


(a)                                  By the Corporation. The Corporation may, in its discretion,
terminate Brown’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, Brown
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 Brown
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)                               Brown 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 Brown’s discretion. If during the Severance
Period Brown 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 


 


4

















 


execution
and delivery by Brown of a general release, in form and substance satisfactory
to Brown and the Corporation.  The
Corporation will provide Brown 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).  Brown
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, Brown
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 Brown 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 Brown for the compensation owed for said notice
period and in any such event Brown’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 Brown’s authority or duties so as to effectively prevent him from
performing the duties of the Executive Vice President of Manufacturing 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 Brown
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, Brown’s duties have been restored.


 


(e)                                  Disability.


 


(i)                                     The Corporation, in its sole discretion, may
terminate Brown’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 


 


5

















 


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


 


8.                                       Termination for Cause. Brown’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 Brown’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 and/or the Chief Executive Officer
will provide Brown written notice specifying the effective date of such
termination. Upon the effective date of such termination, any and all payments
and benefits due Brown under this Agreement shall cease except for any accrued
and vested benefits payable 


 


6

















 


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 Brown is not the Executive Vice President
of Manufacturing 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 Brown 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. 
Brown 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.  Brown
agrees that during (i) the Term; (ii) the one (1) year period
following the effective date of termination of this Agreement by Brown 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.  Brown 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. Brown 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”). Brown 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 Brown 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 


 


7

















 


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 Brown.


 


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


 


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


 


8

















 


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
  Brown at:

  	
   

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

  



 


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


 


9

















 


(c)                                  Separation Pay Upon Involuntary Termination
of Employment.  It is intended that payments made under this
Agreement due to Brown’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) Brown’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 Brown’s employment that are
subject to Code section 409A (“Covered Payment”) shall be delayed for
six months following such termination of employment if Brown 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 Brown’s termination of employment to the
date of payment.  The interest rate shall
be determined as of the date of Brown’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 Brown’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 Brown (or Brown’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 Brown’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 Brown’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]


 


10

















 


IN  WITNESS WHEREOF, the Corporation and Brown
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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JAMES
  H. BROWN

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  James H. Brown

  



 


11