Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this
“ Agreement ”), dated as of August 6, 2009,
by and between B&G FOODS, INC. (hereinafter the “
Corporation ”) and WILLIAM F. HERBES (hereinafter
“ Herbes ”).
WHEREAS, subject to the terms of
this Agreement, Corporation desires to employ Herbes as Executive
Vice President of Operations, and Herbes desires to accept such
employment.
NOW THEREFORE, in consideration of
the material advantages accruing to the two parties and the mutual
covenants contained herein, the Corporation and Herbes agree with
each other as follows
1.
Effective Date . For purposes of this Agreement, the
“ Effective Date ” shall mean August 6,
2009.
2.
Employment . Herbes will render full-time professional
services to the Corporation and, as directed by the Corporation, to
its subsidiaries or other Affiliates (as defined in Paragraph 3
below), in the capacity of Executive Vice President of Operations
under the terms and conditions of this Agreement. He will at
all times, faithfully, industriously and to the best of his
ability, perform all duties that may be required of him by virtue
of his position as Executive Vice President of Operations and in
accordance with the directions and mandates of the Board of
Directors of the Corporation. It is understood that these
duties shall be substantially the same as those of an executive
vice president of operations of a similar business corporation
engaged in a similar enterprise, provided , however ,
that upon the Effective Date Herbes will assume responsibility for
the supply chain portions of the Company’s operations
department, including all logistics, purchasing and planning
functions, and co-packer manufacturing but will not assume
responsibility for internal manufacturing until the
Corporation’s Executive Vice President of Manufacturing
retires, which is expected to occur in 2010. Herbes is hereby
vested with authority to act on behalf of the Corporation in
keeping with policies adopted by the Board of Directors, as amended
from time to time. Herbes shall report to the President and
Chief Executive Officer (hereinafter the “ Chief Executive
Officer ”) and the Board of Directors.
3.
Services to Subsidiaries or Other Affiliates . The
Corporation and Herbes understand and agree that if and when the
Corporation so directs, Herbes shall also provide services to any
subsidiary or other Affiliate (as defined below) by virtue of his
employment under this Agreement. If so directed, Herbes
agrees to serve as Executive Vice President of Operations of such
subsidiary or other Affiliate of the Corporation, as a condition of
his employment under this Agreement, and upon the termination of
his employment under this Agreement, Herbes shall no longer provide
such services to the subsidiary or other Affiliate. The parties
recognize and agree that Herbes shall perform such services as part
of his overall professional services to the Corporation but that in
certain circumstances approved by the Corporation he may receive
additional compensation from such subsidiary or other
Affiliate. For purposes of this Agreement, an
“Affiliate” is any corporation or other entity that is
controlled by,
controlling or under common
control with the Corporation. “Control” means the
direct or indirect beneficial ownership of at least fifty (50%)
percent interest in the income of such corporation or entity, or
the power to elect at least fifty (50%) percent of the directors of
such corporation or entity, or such other relationship which in
fact constitutes actual control.
4.
Term of Agreement . The initial term of Herbes’
employment under this Agreement shall commence on the Effective
Date and end on December 31, 2010; provided that unless notice
of termination has been provided in accordance with Paragraph
7(a) at least sixty (60) days prior to the expiration of the
initial term or any additional twelve (12) month term (as provided
below), or unless this Agreement is otherwise terminated in
accordance with the terms of this Agreement, this Agreement shall
automatically be extended for additional twelve (12) month periods
(the “ Term ”).
5.
Base Compensation . During the Term, in consideration for
the services as Executive Vice President of Operations required
under this Agreement, the Corporation agrees to pay Herbes an
annual base salary of Two Hundred Fifty Thousand Dollars
($250,000), or such higher figure as may be determined at an annual
review of his performance and compensation by the Compensation
Committee of the Board of Directors. The annual review of
Herbes’ base salary shall be conducted by the Compensation
Committee of the Board of Directors within a reasonable time after
the end of each fiscal year of the Corporation and any increase
shall be retroactive to January 1 st of the then current
Agreement year. The amount of annual base salary shall be
payable in equal installments consistent with the
Corporation’s payroll payment schedule for other executive
employees of the Corporation. Herbes may choose to select a portion
of his compensation to be paid as deferred income through qualified
plans or other programs consistent with the policy of the
Corporation and subject to any and all applicable federal, state or
local laws, rules or regulations.
6.
Other Compensation and Benefits . During the Term, in
addition to his base salary, the Corporation shall provide Herbes
the following:
(a)
Incentive Compensation . Herbes shall participate in the
Company’s annual bonus plan (the “ Annual Bonus
Plan ”), as shall be adopted and/or modified from time to
time by the Board of Directors or the Compensation Committee.
Annual Bonus Plan awards are calculated as a percentage of
Herbes’ base salary on the last day of the Annual Bonus Plan
performance period. The percentages of base salary that
Herbes is eligible to receive based on performance range from 0% at
“Threshold” to 35% at “Target” and to 70%
at “Maximum,” as such terms are defined in the Annual
Bonus Plan. Notwithstanding the foregoing, for the
performance period in which the Effective Date occurs,
Herbes’ bonus under the Annual Bonus Plan shall be determined
on a pro rata basis applying the percentages set forth above to his
base salary multiplied by a fraction, the numerator of which is the
number of days transpired in the performance period beginning on
the Effective Date and ending on the last day of the performance
period and the denominator of which is the number of days in the
entire performance period. Annual Bonus Plan awards are
payable no later than the 15th day of the third month following the
end of each fiscal year of the Corporation. In addition,
beginning in 2010 Herbes shall be eligible to participate in all
other incentive compensation plans, if any, that
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may be adopted by the
Corporation from time to time and with respect to which the other
executive employees of the Corporation are eligible to
participate.
(b)
Vacation . Herbes shall be entitled to four (4) weeks
of compensated vacation time during each year, to be taken at times
mutually agreed upon between him and the Chief Executive Officer of
the Corporation. Vacation accrual shall be limited to the
amount stated in the Corporation’s policies currently in
effect, as amended from time to time.
(c)
Sick Leave and Disability . Herbes shall be entitled to
participate in such compensated sick leave and disability benefit
programs as are offered to the Corporation’s other executive
employees.
(d)
Medical and Dental Insurance . Herbes, his spouse, and his
dependents, shall be entitled to participate in such medical and
dental insurance programs as are provided to the
Corporation’s other executive employees.
(e)
Executive Benefits And Perquisites . Herbes shall be
entitled to receive all other executive benefits and perquisites to
which all other executive employees of the Corporation are
entitled.
(f)
Automobile and Cellular Phone . The Corporation agrees
to provide Herbes with a monthly automobile allowance of $833.33
and to provide for the use by Herbes of a cellular telephone at the
Corporation’s expense.
(g)
Liability Insurance . The Corporation agrees to insure
Herbes under the appropriate liability insurance policies, in
accordance with the Corporation’s policies and procedures,
for all acts done by him within the scope of his authority in good
faith as Executive Vice President of Operations throughout the
Term.
(h)
Professional Meetings and Conferences . Herbes will be
permitted to be absent from the Corporation’s facilities
during working days to attend professional meetings and to attend
to such outside professional duties as have been mutually agreed
upon between him and the Chief Executive Officer of the
Corporation. Attendance at such approved meetings and
accomplishment of approved professional duties shall be fully
compensated service time and shall not be considered vacation time.
The Corporation shall reimburse Herbes for all reasonable expenses
incurred by him incident to attendance at approved professional
meetings, and such reasonable entertainment expenses incurred by
Herbes in furtherance of the Corporation’s interests;
provided, however, that such reimbursement is approved by the Chief
Executive Officer of the Corporation.
(i)
Professional Dues . The Corporation agrees to pay dues and
expenses to professional associations and societies and to such
community and service organizations of which Herbes is a member
provided such dues and expenses are approved by the Chief Executive
Officer as being in the best interests of the
Corporation.
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(j)
Life Insurance . The Corporation shall provide Herbes with
life insurance coverage on the same terms as such coverage is
provided to all other executive employees of the
Corporation.
(k)
Business Expenses . The Corporation shall reimburse Herbes
for reasonable expenses incurred by him in connection with the
conduct of business of the Corporation and its subsidiaries or
other Affiliates.
7.
Termination Without Cause .
(a)
By the Corporation . The Corporation may, in its discretion,
terminate Herbes’ employment hereunder without cause at any
time upon sixty (60) days prior written
notice or at such later time as may be specified in said
notice. Except as otherwise provided in this Agreement, after
such termination, all rights, duties and obligations of both
parties shall cease.
(i)
Upon the termination of employment pursuant to subparagraph
(a) above, subject to the terms in subparagraph (ii) and
Paragraph 9 below and the requirements of Paragraph 10 below, in
addition to all accrued and vested benefits payable under the
Corporation’s employment and benefit policies, including, but
not limited to, unpaid Annual Bonus Awards and any other incentive
compensation awards earned under the Annual Bonus Plan or any other
incentive compensation plan for any completed performance periods,
Herbes shall be provided with the following Salary Continuation and
Other Benefits (as defined below) for the duration of the Severance
Period (as defined below): (1) salary continuation
payments for each year of the Severance Period in an amount per
year equal to 135% of his then current annual base salary (“
Salary Continuation ”), which Salary Continuation
shall be paid in the same manner and pursuant to the same payroll
procedures that were in effect prior to the effective date of
termination; (2) continuation of medical, dental, life
insurance and disability insurance for him, his spouse and his
dependents, during the Severance Period, as in effect on the
effective date of termination (“ Other Benefits
”), or if the continuation of all or any of the Other
Benefits is not available because of his status as a terminated
employee, a payment equal to the market value of such excluded
Other Benefits; (3) if allowable under the Corporation’s
qualified pension plan in effect on the date of termination, credit
for additional years of service during the Severance Period; and
(4) outplacement services of an independent third party,
mutually satisfactory to both parties, until the earlier of one
year after the effective date of termination, or until he obtains
new employment; the cost for such service will be paid in full by
the Corporation. For purposes of this Agreement (except for
Paragraph 9 below), the “ Severance Period ”
shall mean the period from the date of termination of employment to
the first (1st) anniversary of the date of such
termination.
(ii)
Subject to Paragraph 10 below, in the event Herbes accepts other
employment during the Severance Period, the Corporation shall
continue the Salary Continuation in force until the end of the
Severance Period. All Other Benefits described in
subparagraph (i)(2) and the benefit set forth in (i)(3), other
than all accrued and vested benefits payable under the
Corporation’s employment and benefit policies, shall
cease.
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(iii)
Herbes shall not be required to seek or accept any other
employment. Rather, the election of whether to seek or accept other
employment shall be solely within Herbes’ discretion. If
during the Severance Period Herbes is receiving all or any part of
the benefits set forth in subparagraph (i) above and he should
die, then Salary Continuation remaining during the Severance Period
shall be paid fully and completely to his spouse or such individual
designated by him or if no such person is designated to his
estate.
(b)
Release . The obligation of the Corporation to provide the
Salary Continuation and Other Benefits described in subparagraph
(a) above is contingent upon and subject to the execution and
delivery by Herbes of a general r
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