Form 8-K
8-K — B&G Foods, Inc.
Accession: 0001104659-26-055718
Filed: 2026-05-05
Period: 2026-04-30
CIK: 0001278027
SIC: 2000 (FOOD & KINDRED PRODUCTS)
Item: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers
Item: Financial Statements and Exhibits
Documents
8-K — tm2613537d1_8k.htm (Primary)
EX-10.1 — EXHIBIT 10.1 - ELLEN M. SCHUM SEPARATION AGREEMENT AND GENERAL RELEASE, DATED AS OF APRIL 30, 2026 (tm2613537d1_ex10-1.htm)
EX-10.2 — EXHIBIT 10.2 - ANDREW D. VOGEL EMPLOYMENT AGREEMENT, DATED AS OF OCTOBER 3, 2022 (tm2613537d1_ex10-2.htm)
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As filed with the Securities and Exchange Commission on May 5, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported):
April 30, 2026
B&G Foods, Inc.
(Exact name of Registrant as specified in its charter)
Delaware
001-32316
13-3918742
(State or Other Jurisdiction
(Commission
(IRS Employer
of Incorporation)
File Number)
Identification No.)
8
Sylvan Way, Parsippany, New
Jersey
07054
(Address of Principal Executive Offices)
(Zip Code)
Registrant’s telephone number, including
area code: (973) 401-6500
Securities registered pursuant to Section 12(b) of
the Act:
Title of each class
Trading Symbol
Name of each exchange on which registered
Common Stock, par value $0.01 per share
BGS
New York Stock Exchange
Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 5.02. Departure of Directors or Certain Officers; Election
of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Departure of Ellen M. Schum, Executive
Vice President and President of Specialty and Interim President of Meals. On April 30, 2026, B&G Foods and Ellen M.
Schum, our Executive Vice President and President of Specialty and Interim President of Meals, mutually agreed that
Ms. Schum’s last day of employment with B&G Foods would be May 1, 2026. We entered into a separation agreement
with Ms. Schum pursuant to which Ms. Schum will receive certain severance and other benefits, including: (1) salary
continuation payments of $492,272, which reflects payment of 100% of her annual base salary for one year following her separation
date, (2) continued payment of B&G Foods’ portion of the cost for one year of continued medical and dental coverage
pursuant to COBRA, (3) a lump sum payment of $10,000, which reflects the estimated market value of life insurance and
disability benefits for one year, (4) one additional year of service credit under our defined benefit pension plan, and
(5) a lump sum payment of $10,000, which amount may be used for career transition services. The separation agreement provides
that all unvested portions of Ms. Schum’s awards of restricted stock and performance share long-term incentive awards
granted under our company’s long-term incentive program have been forfeited as of the separation date. The separation
agreement also includes customary non-disturbance, non-disparagement, confidentiality, non-competition and non-solicitation
provisions and a general release by Ms. Schum of any claims against our company and certain related persons and entities.
A copy of Ms. Schum’s separation agreement
is attached as Exhibit 10.1 to this report.
Departure of Andrew D. Vogel, Executive Vice
President and President of Spices & Flavor Solutions. On May, 1, 2026, Andrew D. Vogel, our Executive Vice President
and President of Spices & Flavor Solutions, terminated his employment with B&G Foods as of the close of business that day.
In a letter to B&G Foods, Mr. Vogel’s attorney stated Mr. Vogel considers himself to be terminated without cause pursuant
to paragraph 8(d) of Mr. Vogel’s employment agreement with our company and asserts that Mr. Vogel is entitled to
termination without cause severance and other benefits under paragraph 8(a) of his employment agreement.
Pursuant to paragraph 8(d) of the employment
agreement, Mr. Vogel may elect to consider himself terminated without cause only if our company “takes action which substantially
changes or alters [his] authority or duties so as to effectively prevent [him] from performing the duties of an Executive Vice President
of [B&G Foods] and President, General Manager or other similar title of one of [B&G Foods’] business units as defined in
[the employment agreement].” As previously communicated to Mr. Vogel and his attorney, it is B&G Foods’ position
that no such substantial change or alteration has occurred and that Mr. Vogel’s title change from Executive Vice President
and President of Meals to Executive Vice President and President of Spices & Flavor Solutions came with substantially the same
responsibilities and authority.
B&G Foods notified Mr. Vogel by letter
dated May 1, 2026 and in earlier communications that B&G Foods rejects Mr. Vogel’s assertion that an
alteration of duties within the meaning of his employment agreement had occurred and that he does not have the right to consider
his termination to be a termination without cause. As such, our company considers Mr. Vogel to have voluntarily resigned from his
employment with B&G Foods effective at the close of business on May 1, 2026. Pursuant to Mr. Vogel’s employment agreement,
a voluntary termination does not entitle Mr. Vogel to any severance or other benefits under paragraph 8(a) of his employment
agreement.
A copy of Mr. Vogel’s employment agreement
is attached as Exhibit 10.2 to this report.
Interim Direct Oversight of the Specialty,
Meals and Spices & Flavor Solutions Business Units. On an interim basis, Kenneth C. “Casey” Keller, our President
and Chief Executive Officer, has assumed Ms. Schum’s and Mr. Vogel’s responsibilities.
- 2 -
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
10.1
Separation Agreement and General Release, dated as of April 30, 2026, between Ellen M. Schum and B&G Foods, Inc.
10.2
Employment Agreement, dated as of October 3, 2022, between Andrew D. Vogel and B&G Foods, Inc.
104
The cover page from this Current Report on Form 8-K, formatted in Inline XBRL and contained in Exhibit 101
- 3 -
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
B&G FOODS, INC.
Dated: May 5, 2026
By:
/s/ Scott E. Lerner
Scott E. Lerner
Executive Vice President,
General Counsel and Secretary
- 4 -
EX-10.1 — EXHIBIT 10.1 - ELLEN M. SCHUM SEPARATION AGREEMENT AND GENERAL RELEASE, DATED AS OF APRIL 30, 2026
EX-10.1
Filename: tm2613537d1_ex10-1.htm · Sequence: 2
Exhibit 10.1
B&G
Foods, Inc.
8 Sylvan Way
Parsippany, NJ 07054
973.401.6500
Confidential
April 30, 2026
Ms. Ellen M. Schum
[Address Redacted]
Re: Separation
Agreement and General Release
Dear Ellen:
Consistent with our discussions concerning
the terms of your separation, this letter constitutes an agreement between you and B&G Foods, Inc. (“B&G Foods”),
on behalf of itself and its subsidiaries (collectively with B&G Foods, the “Company”), setting forth all terms
of your separation from the Company. You are encouraged to read this letter agreement carefully and make certain that you understand
and agree with it before you sign it. If you wish to accept and agree to this letter agreement, you must sign and return it no later
than twenty-one (21) days from when you receive it (and not subsequently revoke it as described below). You are encouraged to review
this letter agreement with your attorney before signing it.
By signing this letter agreement, and
not revoking it, you agree as follows:
1. Separation
Date. It is understood that your last day of employment with the Company shall be May 1,
2026 (the “Separation Date”). You will receive your regular pay and benefits
through your last day of employment. All payments and benefits to which you are entitled
through and following the Separation Date shall be determined solely under this Agreement.
Unless directed otherwise by B&G Foods, you agree that you will work in a cooperative,
professional and diligent manner, in accordance with the terms and conditions of the Employment
Agreement by and between you and B&G Foods, dated as of February 26, 2019,
as amended by the First Amendment to Employment Agreement, dated as of August 1, 2022
(as so amended, your “Employment Agreement”), until and including the
Separation Date and understand that you must do so as a condition for receipt of the Severance
Benefits (as defined below).
2. Severance
and Other Benefits. In consideration of the general release and waiver of all claims
against the Company and the other Releasees (as defined below) and your other promises made
in this letter agreement, and conditioned on your not revoking this letter agreement as described
in paragraph 26 below and remaining in compliance with all of your obligations to the Company,
the Company shall provide you with the following severance payments and other benefits (the
“Severance Benefits”):
A. For
the period commencing on May 2, 2026 and ending on May 1, 2027 (the “Severance
Period”), the Company shall pay you salary continuation payments equal in the aggregate
to $492,272 (less any state, federal, FICA and other applicable taxes required to be withheld
and, as set forth below in subparagraph B, less the amount of medical and dental insurance
contributions), which reflects payment of 100% of your annual base salary, as in effect on
the Separation Date, for the Severance Period. Such payments shall be paid in substantially
equal installments in the same manner and pursuant to the same payroll procedures that were
in effect prior to the Separation Date and shall commence no later than the Company’s
next regular pay day occurring at least ten (10) days following the Effective Date (the
“Initial Severance Payment Date”).
Quality Foods Since 1889
Ellen M. Schum
April 30, 2026
Page 2
B. The
Company shall continue your current medical and dental coverage for you and your eligible
family members on the Company’s medical and dental benefit plans from the Separation
Date through the duration of the Severance Period subject to the terms and conditions of
the plans and pursuant to, and subject to the eligibility requirements of, COBRA. Your contributions
will be the same as those of a currently active participant and will automatically be withheld
on a pre-tax basis from your salary continuation payments set forth in subparagraph A above.
At the end of the Severance Period you will be eligible to continue your coverage pursuant
to COBRA for the remainder, if any, of the COBRA eligibility period at your sole expense,
subject to the terms and conditions of the Company’s medical and dental benefit plans
and COBRA rules and provisions.
C. The
Company shall pay you on the Initial Severance Payment Date a lump sum payment of $10,000.00
(less any state, federal, FICA and other applicable taxes required to be withheld), which
amount reflects the estimated market value of your life insurance and disability insurance
benefits for the duration of the Severance Period that will not be available to you because
of your status as a terminated employee.
D. The
Company shall provide you with one additional year of service under the Company’s qualified
defined benefit pension plan commencing on the Separation Date and ending on the last day
of the Severance Period.
E. The
Company shall pay you on the Initial Severance Payment Date a lump sum payment of $10,000.00
(less any state, federal, FICA and other applicable taxes required to be withheld), which
amount may be used by you to pay for career transition assistance services with an agency
of your choice.
F. If
you should die during the Severance Period, any remaining unpaid amounts owing to you pursuant
to this letter agreement (less any state, federal, FICA and other applicable taxes required
to be withheld) shall be paid in accordance with the terms hereof to your surviving spouse
or, if no surviving spouse, to your estate in the manner designated by your surviving spouse,
if applicable, or the executors of your estate.
You acknowledge and agree
that you are solely responsible for all federal, state and local taxes, if any, other than any employer share of FICA, Medicare, unemployment
or disability contributions, that a government agency may determine is due to it, and that may be ultimately required by law to be paid
with respect to the Severance Benefits. You agree to indemnify and hold harmless the Company and the other Releasees (as defined below)
from any and all taxes and related penalties, should the taxability of the Severance Benefits be challenged by any government tax authority.
If you voluntarily resign
prior to the Separation Date, or if your employment is terminated prior to the Separation Date due to your misconduct or failure to comply
with the requirements of paragraph 1 above, the payment of your salary and your participation in the Company’s benefit plans as
an active employee will immediately cease, and you will not be entitled to the Severance Benefits described in this paragraph 2. You
will be eligible for COBRA, at your sole expense, on the first day of the month following your voluntary resignation or other termination.
Ellen M. Schum
April 30, 2026
Page 3
3. Treatment
Under Long-Term Incentive Agreements. Your separation from the Company shall be treated
as a voluntary resignation as of the Separation Date pursuant to your 2024 Restricted Stock
Award Agreement, 2025 Restricted Stock Award Agreement, 2026 Restricted Stock Agreement,
2024 to 2026 Performance Share Award Agreement, 2025 to 2027 Performance Share Award Agreement
and 2026 to 2028 Performance Share Award Agreement (collectively, the “Equity Award
Agreements”), and all of the unvested portions of your outstanding awards of restricted
stock and performance share long-term incentive awards granted under the Equity Award Agreements
are hereby forfeited as of the Separation Date.
4. Termination
of Certain Other Benefits.
A. Vacation
Pay. You understand and agree that your vacation accrual will cease as of the Separation
Date. You will be paid any unused vacation pay for 2026 earned and accrued from January 1,
2026 through the Separation Date (less any state, federal, FICA and other applicable taxes
required to be withheld) in accordance with the Company’s paid time off policies and
practices and applicable federal and state law.
B. Life
Insurance. You understand and agree that your participation in any life insurance plan
maintained by the Company will automatically terminate on the Separation Date. Subject to
the terms and conditions of the Company’s life insurance plan and applicable law, you
may be able to convert your life insurance to an individual policy by notifying the life
insurance carrier not later than thirty-one (31) days after your life insurance ends.
C. Accidental
Death and Dismemberment Insurance. You understand and agree that your participation in
the Company’s accidental death and dismemberment insurance plan will automatically
terminate on the Separation Date. The accidental death and dismemberment insurance policy
does not include a conversion option.
D. Short-Term
and Long-Term Disability Insurance. You understand and agree that your participation
in the Company’s short-term and long-term disability plans automatically terminates
on the Separation Date. The short-term and long-term disability insurance plans do not include
a conversion option.
E. Other
Benefits. You understand and agree that, except as otherwise stated herein, all other
compensation and benefits that you may currently receive pursuant to your Employment Agreement
or otherwise, including, without limitation, your automobile allowance and company paid cell
phone or cell phone allowance, if any, will also terminate on the Separation Date.
F. 401(k) Defined
Contribution Plan. The Company will separately forward to you a letter with further details
regarding your options with respect to the Company’s 401(k) plan following your
separation from the Company.
G. Unemployment
Insurance. To review possible eligibility for unemployment insurance payments, you should
visit the unemployment insurance office nearest to your residence or apply on-line. You understand
that all decisions concerning your entitlement to unemployment insurance are the responsibility
of the appropriate governmental authority.
Ellen M. Schum
April 30, 2026
Page 4
5. No
Admission of Liability. You understand and agree that nothing in this letter agreement,
including the provision of the Severance Benefits, is or shall be construed or represented
to be an admission of liability of any kind by the Company or any of the Releasees.
6. General
Release and Waiver. In exchange for the Severance Benefits described in paragraph 2 above,
and for other good and valuable consideration, you, on behalf of yourself and your family,
heirs, executors, successors and assigns, hereby unconditionally release and forever discharge
the Company and its past, present and future affiliates, parents, subsidiaries and divisions
and the Company’s and each of the foregoing person’s or entity’s respective
shareholders, directors, officers, managers, employees, agents, attorneys, trustees, employee
benefit plans (and the administrators and fiduciaries thereof) and representatives and any
other person or entity claimed to be jointly or severally liable with any of the foregoing
(all of the foregoing, collectively with the Company, the “Releasees”),
and agree to hold the Releasees harmless from and against, and hereby waive, any and all
claims, causes of action, charges or demands, in law or in equity, whether known or unknown,
which may have existed or which may now exist, or arise, from the beginning of time to the
date on which you sign this letter agreement to the fullest extent such matters may be released
by applicable law. This release includes, without limitation, all claims, causes of action,
charges or demands arising from or relating to your employment with, or separation from employment
with, the Company or otherwise, other than claims that the law does not permit you to waive
by signing this letter agreement.
Without limiting the generality
of the foregoing, this release includes a release of any rights or claims you may have under any and all federal, state or local statutes
and the common law, including, without limitation, the following:
A. Title
VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991, as amended;
B. the
Americans with Disabilities Act of 1990, as amended, and the Rehabilitation Act of 1973,
as amended;
C. the
Family and Medical Leave Act of 1993, as amended;
D. Section 1981
of the Civil Rights Act of 1866, as amended;
E. Section 1985(3) of
the Civil Rights Act of 1871, as amended;
F. the
Age Discrimination in Employment Act of 1967, as amended, and the Older Workers Benefit Protection
Act of 1990, as amended (the “ADEA”);
G. the
Occupational Safety and Health Act, as amended;
H. the
Equal Pay Act, as amended;
I. the
Employee Retirement Income Security Act of 1974, as amended;
J. the
New Jersey Conscientious Employee Protection Act, as amended;
K. any
and all other federal, state or local laws, regulations or common law against discrimination,
including but not limited to the New Jersey Law Against Discrimination and all other laws
and regulations of the State of New Jersey and the New Jersey Department of Labor and Workforce
Development;
Ellen M. Schum
April 30, 2026
Page 5
L. any
and all tort theories of liability, including, without limitation, claims of defamation or
disparagement; and
M. any
and all other federal, state, or local laws, regulations or common law relating to employment,
wages, hours, health and safety, or any other terms and conditions of employment.
This release also includes
a release by you of any claims for wrongful discharge, breach of contract, torts or any other claim in any way related to your employment
with or separation from the Company, including, without limitation, any claim under any policy, agreement or contract (including without
limitation the Employment Agreement and Equity Award Agreements), understanding or promise, written or oral, formal or informal, between
the Company and you, and including any claims for any damages of any nature, including, without limitation, any claims for wages, monetary
or equitable relief, costs and attorneys’ fees. You acknowledge and agree that it is the intention of the parties that the language
relating to the description of claims released in this paragraph 6 shall be given the broadest possible interpretation permitted by law.
Notwithstanding the above,
nothing in this release shall be construed to waive (i) your rights to the Severance Benefits expressly provided for in this
letter agreement; (ii) any claims you may have to the payment of vested benefits under the terms of the Company’s retirement
and benefit plans; (iii) any rights to reimbursement or indemnification you may have in your capacity as an officer or employee
of the Company under the governing documents of the Company, any insurance policy or applicable law for any of your acts (or failures
to act) made in good faith while you were employed by the Company; or (iv) your rights to any vested portions of your Equity Award
Agreements.
7. Workers’
Compensation. This letter is not a waiver of any workers’ compensation claim you
may have; however, you represent that no incident has occurred that could form the basis
for any claim by you against the Company or any other Releasee under the workers’ compensation
laws of any jurisdiction.
8. No
Complaints, Claims or Actions. You represent that you have not filed any complaints,
claims or actions against the Company or any other Releasee with any federal, state or local
agency or court. You also represent and agree that you (a) have received all compensation,
wages, overtime (if applicable), leave (paid or unpaid), bonuses, commissions, payments,
and/or benefits to which you may be entitled and that no other amounts and/or benefits are
due except as expressly provided in this letter agreement; (b) have either been provided
or not been denied any leave requested under the Family and Medical Leave Act or any other
leave law; (c) have not complained of and are not aware of any fraudulent or illegal
activity or any acts that would form the basis of a claim of fraudulent or illegal activity
by any of the Releasees; and (d) have not been subjected to any retaliation or any harassing
or other unlawful behavior that was discriminatory in nature based on age, disability, race,
color, sex, sexual identity, sexual orientation, religion, national origin or any other classification
protected by law.
Ellen M. Schum
April 30, 2026
Page 6
9. No
Other Representations. You represent that no promise or inducement has been offered or
made except as set forth in this letter agreement and that you are entering into this letter
agreement without reliance on any statement or representation not set forth in this letter
agreement by the Company or any person acting on its behalf.
10. No
Assignment or Reservation of Claims. You hereby represent that you have not assigned
or transferred to any person or entity all or any portion of any claim against the Company
or any other Releasee, and you do not reserve any claim against the Company or any other
Releasee from the effect of this letter agreement.
11. Restrictive
Covenants.
A. Non-Disturbance.
You understand and agree that you shall not at any time perform any act that is intended,
or may reasonably be expected to, disrupt, damage, impair, or interfere with the business,
reputation, prospects or operations of the Company or any other Releasee, or their respective
relationships with their respective employees, customers, vendors, agents or representatives.
B. Non-Disparagement.
You agree that you shall not at any time issue or make or cause to be issued or made any
communication, written or oral, that disparages, criticizes or otherwise reflects adversely
upon, or encourages any adverse action against, the Company any of the other Releasees, or
any of their respective products or services, except as required by law. You represent that
you have not made any communication prior to signing this letter agreement that would be
a breach of this provision if it was made after this letter agreement is in effect.
C. Confidentiality.
You acknowledge and agree the confidentiality and non-use agreements set forth in Section 11(d) of
your Employment Agreement shall remain in full force and effect in accordance with their
terms, and you reaffirm that you shall comply with such agreements.
D. Non-Competition.
You agree that from the Separation Date through the duration of the Severance Period, you
shall not, directly or indirectly, be employed or otherwise engaged to provide services anywhere
in the world to any food manufacturer that engages in any activities that are directly competitive
with any significant activities conducted by the Company and whose principal business operations
are in the United States of America (a “Competitor”) if such employment
or provision of services relates to or in any way involves the operations of the Competitor
in the United States.
E. Non-Solicitation.
You understand and agree that the Company has expended and continues to expend significant
time and expense in recruiting and training its employees and that the loss of employees
would cause significant and irreparable harm to the Company. You agree that you shall not
directly or indirectly solicit, hire, recruit, attempt to hire or recruit, or induce the
termination of employment of any employee of the Company from the Separation Date through
the duration of the Severance Period.
Ellen M. Schum
April 30, 2026
Page 7
F. Exceptions
to Restrictive Covenants; Whistleblowing; Trade Secrets. Notwithstanding anything to
the contrary in this paragraph 11, elsewhere in this letter agreement, your Employment Agreement
or in any other agreement between the Company and you or otherwise, you understand and acknowledge
that the Company has informed and hereby informs you that an individual shall not be held
criminally or civilly liable under any federal or state trade secret law for the disclosure
of a trade secret that: (A) is made (i) in confidence to a federal, state, or local
government official, either directly or indirectly, or to an attorney; and (ii) solely
for the purpose of reporting or investigating a suspected violation of law; or (B) is
made in a complaint or other document filed in a lawsuit or other proceeding, if such filing
is made under seal. Additionally, notwithstanding anything to the contrary in this
paragraph 11, elsewhere in this letter agreement, your Employment Agreement or in any other
agreement between the Company and you or otherwise, you understand and acknowledge that the
Company has informed and hereby informs you that an individual who files a lawsuit for retaliation
by an employer for reporting a suspected violation of law may disclose the trade secret to
the attorney of the individual and use the trade secret information in the court proceeding,
if the individual files any document containing the trade secret under seal and does not
disclose the trade secret except pursuant to a court order. Nothing in this paragraph 11,
elsewhere in this letter agreement, your Employment Agreement or in any other agreement between
the Company and you or otherwise shall prohibit you from disclosing the details relating
to a claim of discrimination, retaliation, or harassment. Nothing in this paragraph 11, elsewhere
in this letter agreement, your Employment Agreement or in any other agreement between the
Company and you or otherwise shall be interpreted to limit or interfere with your right to
speak with, provide information to, report good faith suspected violations of law to, or
file a charge with applicable government agencies, including the Equal Employment Opportunity
Commission, the National Labor Relations Board, the Occupational Safety and Health Administration,
the Securities and Exchange Commission or any other applicable federal, state or local governmental
agency, including in accordance with the provisions of any “whistleblower” or
similar provisions of local, state or federal law, or from providing truthful testimony or
information in connection with any governmental proceeding, including but not limited to
any investigation by the Equal Employment Opportunity Commission, the National Labor Relations
Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission
or any other applicable federal, state or local governmental agency, or made in response
to a lawful subpoena or other legal process. You may engage in the foregoing activities,
even if such action would require you to share the Company’s proprietary information
or trade secrets with the government agency, provided that any such information is protected
to the maximum extent permissible and any such information constituting trade secrets is
filed only under seal in connection with any court proceeding. Lastly, nothing in this paragraph
11, elsewhere in this letter agreement, your Employment Agreement or in any other agreement
between the Company and you or otherwise will be interpreted to prohibit you from collecting
any financial incentives in connection with making such reports or require you to notify
or obtain approval by the Company prior to making such reports to a government agency.
12. Breach
of Agreement. The restrictions set forth in paragraph 11 are in addition to, and not
in lieu of, any similar obligations by which you may be bound in favor of the Company. You
understand and agree that the general release and waiver set forth in paragraph 6, the representations
set forth in paragraph 8, and the restrictive covenants set forth in paragraph 11 of this
letter agreement are essential consideration for this letter agreement and an award of damages
may be made for violation thereof. Any such award shall not affect the enforceability of
the general release of all claims made by you or such representations and restrictive covenants.
Consistent with and without limiting the foregoing, you acknowledge and agree that your Severance
Benefits shall be subject to forfeiture and repayment to the Company if you violate paragraphs
6, 8, 10, 11, 14, 16, 17, or 18 or any of the other terms of this letter agreement, or any
other surviving obligation owed to the Company (including without limitation under the Employment
Agreement), without prejudice to any additional relief that may be available to the Company
and without affecting the validity and enforceability of the general release of all claims
made by you. Notwithstanding the foregoing sentence, your Severance Benefits shall not be
subject to forfeiture solely due to a challenge to the validity of the release contained
in this letter agreement pursuant to the ADEA. In addition, in the event of a breach or threatened
breach by you of any of the provisions of this letter agreement, you hereby consent and agree
that the Company shall be entitled to seek, in addition to other available remedies, a temporary
or permanent injunction or other equitable relief against such breach or threatened breach
from any court of competent jurisdiction, without the necessity of showing any actual damages
or that money damages would not afford an adequate remedy, and without the necessity of posting
any bond or other security. The aforementioned equitable relief shall be in addition to,
not in lieu of, legal remedies, monetary damages or other available forms of relief.
Ellen M. Schum
April 30, 2026
Page 8
13. Attorneys’
Fees. Should you breach or threaten to breach any of the terms of or representations
contained in this letter agreement or the post-termination obligations set forth herein,
to the extent authorized by law, you shall be responsible for payment of all reasonable attorneys’
fees and costs that the Company or any other Releasee incurs in the course of enforcing the
terms of the letter agreement, including demonstrating the existence of a breach or threatened
breach and any other contract enforcement efforts.
14. Covenant
Not to Sue. You agree that you will not file, initiate, or join any lawsuit (either individually,
with others, or as part of a class), in any forum, pleading, raising, or asserting any claim
waived in paragraph 6 of this letter agreement, and that if you breach this promise, and
the action is found to be barred in whole or in part by this letter agreement, you shall
be liable for all costs, including attorneys’ fees, incurred by the Company or any
other Releasee in defending the claim, and shall assign to the Company and any such other
Releasee your right and interest to collect any monetary damages awarded to you. Notwithstanding
the foregoing, nothing in this paragraph, this letter agreement, or otherwise precludes you
from challenging the validity of the release above under the requirements of the ADEA, and
you shall not be responsible for reimbursing the costs, including attorneys’ fees,
of the Releasees in connection with such a challenge to the validity of the release. However,
you acknowledge and agree that the release contained in this letter agreement applies to
all claims you have under the ADEA, and that, unless the release is held to be invalid, all
of your claims under the ADEA shall be extinguished. Further, nothing in this letter agreement,
your Employment Agreement or in any other agreement between the Company and you or otherwise
shall preclude or prevent you from filing a charge with, participating in an investigation
by or proceeding before, or providing information to the Equal Employment Opportunity Commission,
the National Labor Relation Board, the Occupational Safety and Health Administration, the
Securities and Exchange Commission or any other applicable federal, state or local governmental
agency, but you acknowledge and agree that you shall not be entitled to or accept any damages
or other relief that otherwise might be obtained on your behalf in any proceeding by any
government agency, private party, class, or otherwise with respect to any claims released
by the above release.
15. OWBPA
Acknowledgements. With respect to the waiver of your rights under the ADEA, you specifically
acknowledge and agree that you are aware of the following rights under the Older Workers
Benefit Protection Act:
A. You
are advised to consult an attorney before executing the waiver herein of your rights under
the ADEA;
B. You
may take up to twenty-one (21) days within which to consider the waiver of your rights herein
under the ADEA. If you execute this letter agreement prior to the expiration of that 21-day
period, you expressly waive the right to take the full 21 days to consider the waiver of
rights herein under the ADEA; and
Ellen M. Schum
April 30, 2026
Page 9
C. For
a period of seven (7) days following the execution of this waiver of rights under the
ADEA, you can revoke this letter agreement as described in paragraph 26, and this letter
agreement shall not become effective or enforceable until the seven-day revocation period
has expired without exercise.
16. Return
of Company Property. You represent and warrant that, on or before the Separation Date,
you have returned to B&G Foods any and all Company documents, materials, records, equipment
and other Company property issued to you or otherwise in your possession or control and have
otherwise complied with Section 11(d)(iii) of the Employment Agreement, and acknowledge
and agree that such return is a condition for receipt of the Severance Benefits. In addition,
you agree to promptly reconcile any outstanding expense accounts.
17. Duty
to Notify. In the event you receive a request or demand, orally, in writing, electronically,
or otherwise, for the disclosure or production of confidential and/or proprietary information
which you created or acquired in the course of your employment, unless prohibited by law
or regulation, you must notify immediately the Company’s General Counsel, by calling
the General Counsel at the following phone number: 973.630.6406. Regardless of whether you
are successful in reaching the General Counsel by telephone, unless prohibited by law or
regulation, you also must notify the General Counsel immediately in writing, via certified
mail, at the following address: B&G Foods, Inc., 8 Sylvan Way, Parsippany, NJ 07054,
Attn: General Counsel. A copy of the request or demand shall be included with the written
notification. You shall wait a minimum of ten (10) days (or the maximum time permitted
by such legal process, if less) after sending the letter before making a disclosure or production
to give the Company time to seek to prohibit and/or restrict the production and/or disclosure
and/or to obtain a protective order with regard thereto, and you agree to reasonably cooperate
with any such efforts by the Company, at the Company’s expense, to disclose only such
information as is required by law, and to use your best efforts to ensure that any such information
disclosed will be afforded confidential treatment.
18. Cooperation.
You agree that, at all times subsequent to the Separation Date, you shall reasonably cooperate,
in a timely and good faith manner, with all reasonable requests for assistance made by the
Company (or its attorneys) relating directly or indirectly to all investigations, legal claims
or any regulatory matter with respect to any matter which occurred during the course of your
employment with the Company, with which you were involved prior to the termination of your
employment, with which you became aware of during the course of your employment, or about
which you may have knowledge. Upon the submission of proper documentation, the Company will
reimburse you for all reasonable expenses (other than your attorneys’ fees, if any)
you incur as a result of such requests for assistance, if any.
19. Governing
Law. This letter agreement and any claim, controversy or dispute arising under or related
to this letter agreement, the relationship of the parties or the interpretation and enforcement
of the rights and duties of the parties to this letter agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey, without reference to the
conflicts of laws principles thereof. You and the Company hereby submit to the exclusive
jurisdiction of the federal and state courts in the State of New Jersey with respect to any
disputes arising under or relating to this letter agreement, and you irrevocably waive any
objection that you may now or hereafter have based on personal jurisdiction or to the laying
of venue of any such action in the aforementioned courts, including without limitation any
objection based on the grounds of forum non conveniens.
Ellen M. Schum
April 30, 2026
Page 10
20. Entire
Agreement. This letter agreement shall constitute the sole and exclusive understanding
between the Company and you concerning the subject matter of this letter agreement, and expressly
supersedes any and all prior agreements or understandings, written or oral, concerning the
subject matter hereof, provided that you acknowledge and agree that Sections 11, 13-19, and
21-23 of the Employment Agreement shall continue in effect in accordance with its terms.
The parties acknowledge and agree that this letter agreement is intended to embody a complete
and final resolution of the employer-employee relationship with the Company. You further
acknowledge and agree that the payments and benefits described in this letter agreement are
all that you are entitled to receive from the Company, and that the Company shall have no
liability or obligation to you in excess of such amounts.
21. Severability.
In the event that one or more of the provisions of this letter agreement is held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions hereof, and if such provision or provisions are not
modified as intended below, this letter agreement shall be construed as if such invalid,
illegal or unenforceable provisions had not been set forth herein. The parties further agree
that in the event that any court determines that any provisions of paragraph 11 or otherwise
of this letter agreement are invalid, illegal or unenforceable unless modified, it is the
intention of the parties that such court, and such court is expressly authorized to, modify
any such unenforceable provisions of this letter agreement in lieu of severing such unenforceable
provisions from this letter agreement in their entirety, whether by rewriting the offending
provision, deleting any or all of the offending provisions, adding additional language to
this letter agreement or by making such other modifications as it deems warranted to carry
out the intent and agreement of the parties as embodied herein to the maximum extent permitted
by law. The parties expressly agree that this letter agreement as so modified by the court
shall be binding upon and enforceable against each of them.
22. No
Amendments or Waivers. This letter agreement may not be waived, amended, supplemented
or otherwise modified, except as mutually agreed in writing by B&G Foods and you.
23. Successors
and Assigns. This letter agreement shall inure to the benefit of the Company and its
successors and assigns. You may not assign this letter agreement or any part hereof. Any
purported assignment by you shall be null and void from the initial date of purported assignment.
24. Notices.
All notices, requests, demands and other communications hereunder shall be in writing and
shall be deemed effective 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. A copy of all such notices, requests, demands and other communications shall also
be sent by email to the parties at the email addresses set forth below, or at such other
email addresses as the parties may designate pursuant to this paragraph.
Ellen M. Schum
April 30, 2026
Page 11
If to the Company:
If to you:
B&G
Foods, Inc.
8 Sylvan Way
Parsippany, NJ 07054
Attn: General Counsel
corporatesecretary@bgfoods.com
Ellen
M. Schum
[Address Redacted]
[Email Address Redacted]
25. Adequate
Review. You are hereby advised to consult with an attorney before signing this letter
agreement. You acknowledge and represent that you have read and fully understand the terms
and conditions of this letter agreement. You further acknowledge and agree that you have
entered into this letter agreement voluntarily and not as the result of coercion, duress
or undue influence. Additionally, you acknowledge and agree that you have been afforded twenty-one
(21) days to consider this letter agreement. If for some reason you decide to sign this letter
agreement before the end of the 21-day period, you do so of your own free will and with the
understanding that you could have taken the entire 21-day period to consider this letter
agreement. Modifications to this letter agreement, whether material or non-material, do not
restart the aforementioned period.
26. Revocation.
You understand that you will have seven (7) days from the date you sign this letter
agreement to revoke it by notifying the Company’s Human Resources Department of your
decision. This letter agreement shall not become effective or enforceable until the revocation
period has expired without exercise (the “Effective Date”). No revocation
of this letter agreement by you shall be effective unless the Company has received written
notice of any revocation prior to the Effective Date.
27. Section 409A.
The parties intend that this letter agreement be interpreted in the least restrictive manner
necessary to be exempt from or comply with Section 409A of the Internal Revenue Code
of 1986, as amended, and the regulations thereunder (“Section 409A”), to
the extent applicable, and without resulting in any increase in the amounts owed hereunder
by the Company. Notwithstanding the foregoing or anything else herein to the contrary, neither
the Company nor any of their respective directors, officers, partners, members, shareholders,
employees, and advisors shall be held liable for any taxes, interest, or other amounts owed
by you as a result of Section 409A. Notwithstanding anything herein to the contrary,
any “deferred compensation” (as defined in Section 409A) payable hereunder
as a result of your termination of employment shall not be paid unless and until you have
undergone a “separation from service” (as defined in Section 409A). No reimbursement
or in-kind benefit provided hereunder shall be subject to liquidation or exchange for another
benefit and the amount available for reimbursement, or in-kind benefits provided, during
any calendar year shall not affect the amount available for reimbursement, or in-kind benefits
to be provided, in a subsequent calendar year. Any reimbursement to which you are entitled
hereunder shall be made no later than the last day of the calendar year following the calendar
year in which such expenses were incurred. If any right to payment hereunder is deemed a
right to an installment payment, such right shall be treated as a right to a series of separate
payments and, accordingly, each installment payment shall at all times be considered a separate
and distinct payment for purposes of Section 409A.
[Signature Page Follows]
Ellen M. Schum
April 30, 2026
Page 12
If you agree with the foregoing, please
so indicate by signing in the space designated below.
We wish you the best in the future.
Sincerely,
/s/ Eric H. Hart
Eric H. Hart
Executive Vice President of Human Resources
and Chief Human Resources Officer
Agreed to and accepted:
/s/
Ellen M. Schum
Ellen M. Schum
Date:
April 30,
2026
EX-10.2 — EXHIBIT 10.2 - ANDREW D. VOGEL EMPLOYMENT AGREEMENT, DATED AS OF OCTOBER 3, 2022
EX-10.2
Filename: tm2613537d1_ex10-2.htm · Sequence: 3
Exhibit 10.2
Employment
Agreement
THIS EMPLOYMENT
AGREEMENT (this “Agreement”), dated as of October 3, 2022, by and between B&G FOODS, INC. (hereinafter
the “Corporation”) and Andrew D. Vogel (hereinafter “Executive”).
WHEREAS, subject
to the terms of this Agreement, Corporation desires to employ Executive as an executive vice president of the Corporation and president
of the Corporation’s meals business unit, and Executive 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 Executive
agree with each other as follows
1. Effective
Date. For purposes of this Agreement, the “Effective Date” shall mean October 3, 2022.
2. Employment.
Executive 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 and President of Meals, under the terms
and conditions of this Agreement. Executive will at all times, faithfully, industriously and to the best of Executive’s ability,
perform all duties that may be required of Executive by virtue of Executive’s position as Executive Vice President of the Corporation
and President of one of the Corporation’s business units 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 and business
unit leader of a similar business corporation engaged in a similar enterprise. Executive 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. Executive shall report to
the President and Chief Executive Officer of the Corporation (the “Chief Executive Officer”) and the Board of Directors.
3. Services
to Subsidiaries or Other Affiliates. The Corporation and Executive understand and agree that if and when the Corporation so directs,
Executive shall also provide services to any subsidiary or other Affiliate (as defined below) by virtue of Executive’s employment
under this Agreement. If so directed, Executive agrees to serve as Executive Vice President and President, General Manager or other similar
title of one of the Corporation’s business units of such subsidiary or other Affiliate of the Corporation, as a condition of Executive’s
employment under this Agreement, and upon the termination of Executive’s employment under this Agreement, Executive shall no longer
provide such services to the subsidiary or other Affiliate. The parties recognize and agree that Executive shall perform such services
as part of Executive’s overall professional services to the Corporation but that in certain circumstances approved by the Corporation
Executive 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 Executive’s employment under this Agreement shall commence on the Effective Date and end
on December 31, 2023; provided that unless notice of termination has been provided in accordance with Paragraph 8(a) (Termination
without Cause by the Corporation) 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 Executive’s term of employment 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. Place
of Performance. The principal place of Executive’s employment shall be the Corporation’s corporate headquarters, which
is currently located in Parsippany, New Jersey; provided that Executive will be required to travel on Corporation business during the
Term as directed by the Chief Executive Officer. Within two hundred seventy (270) days of the Effective Date, Executive shall relocate
his primary residence to permanent housing within fifty-five (55) miles of Parsippany, New Jersey and shall thereafter maintain his primary
residence in permanent housing within fifty-five (55) miles of Parsippany, New Jersey during the Term.
6. Base
Compensation. During the Term, in consideration for the services as Executive Vice President of the Corporation and President of
Meals required under this Agreement, the Corporation agrees to pay Executive an annual base salary of Three Hundred Seventy-Five Thousand
Dollars ($375,000), or such higher figure as may be determined at an annual review of Executive’s performance and compensation
by the Compensation Committee of the Board of Directors, less applicable tax withholdings. The annual review of Executive’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 (other than fiscal 2022) 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. Executive may choose to select a portion of Executive’s 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.
7. Other
Compensation and Benefits. During the Term, in addition to Executive’s base salary, the Corporation shall provide Executive
the following:
(a) One
Time Benefits in Connection with New Hire.
(i) Sign-On
Bonus. The Corporation shall pay Executive a one-time lump sum cash signing bonus of $25,000
(the “Sign-On Bonus”) on the Corporation’s first payroll date after the Effective Date. Executive shall repay
to the Corporation the entire gross amount of the Sign-On Bonus if prior to the first anniversary of the Effective Date Executive terminates
his employment voluntarily or is terminated by the Corporation for cause pursuant to Paragraph 8 below.
- 2 -
(ii) Relocation
Assistance. In connection with Executive’s relocation pursuant to Paragraph 5 hereof, the
Corporation shall pay Executive a relocation assistance payment of $75,000, less applicable tax withholdings (the “Relocation
Assistance Payment”). The Relocation Assistance Payment shall be paid in two installments of $37,500 each. The first installment
shall be paid on the Corporation’s first payroll date following the Effective Date and the second installment shall be paid upon
the completion of Executive’s relocation. The Corporation shall also pay Executive a temporary
living and travel allowance for expenses of temporary housing near the Corporation’s Parsippany headquarters and expenses for travel
from Executive’s current residence to his temporary housing near the Corporation’s Parsippany headquarters of $8,350 per
month, less applicable tax withholdings, until the earlier of the date Executive completes his relocation and the date that is two hundred
seventy (270) days after the Effective Date (the “Temporary Living Payments”). In no event shall the temporary living
and travel allowance payments exceed $75,150 in the aggregate. Executive shall repay to the Corporation an amount equal to the entire
gross amount of the Relocation Assistance Payment and the Temporary Living Payments that the Corporation has paid to Executive and shall
forfeit any unpaid amount of the Relocation Assistance Payment and the Temporary Living Payments if prior to the first anniversary of
the Effective Date Executive (i) does not complete his relocation or (ii) terminates his employment voluntarily or is terminated
by the Corporation for Cause pursuant to Paragraph 9 below.
(b) Incentive
Compensation.
(i) Annual
Bonus Plan. Commencing with the fiscal 2023 performance period, Executive shall participate in the Corporation’s annual bonus
plan (the “Annual Bonus Plan”), as may be adopted and/or modified from time to time by, and at the sole discretion
of, the Board of Directors or the Compensation Committee. Annual Bonus Plan awards are calculated as a percentage of Executive’s
base salary on the December 31st closest to the last day of the Annual Bonus Plan performance period. The percentages
of base salary that Executive shall be eligible to receive in accordance with the Annual Bonus Plan based on performance shall be determined
by the Compensation Committee and it is anticipated that the percentages shall initially range from 0% at “Threshold” to
60% at “Target” and to 120% 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. Except as
expressly modified herein, Executive’s entitlement to any bonus hereunder shall be subject to and in accordance with the terms
of the Annual Bonus Plan.
(ii) Long-Term
Incentive Compensation. Beginning in 2022, Executive shall participate in the Corporation’s long-term incentive plans (the
“Long-Term Incentive Plans”), as may be adopted and/or modified from time to time by, and at the sole discretion of,
the Board of Directors or the Compensation Committee. Executive shall be eligible to earn Long-Term Incentive Plan awards (“LTIAs”)
calculated as a percentage of Executive’s base salary on the grant date of such LTIAs, with such percentage to be determined by
the Compensation Committee. For performance share LTIAs, the percentages of base salary that it is anticipated Executive will be eligible
to earn based on performance range from 30% at “Threshold” to 60% at “Target” to 140% at “Maximum,”
as such terms are defined in the performance share LTIAs. Performance based LTIAs, if earned, are payable no later than the 15th day
of the third month following the end of the final fiscal year of the Corporation of the applicable performance period. Notwithstanding
the foregoing, for the initial grant of performance share LTIAs, which shall be made on the Effective Date, the number of shares Executive
will be eligible to earn (subject to achievement of the performance goals) for the 2022 to 2024 performance period shall be (i) determined
based on the 30-day average stock price through March 25, 2022 that was used to determine the number of shares the Corporation’s
other executive officers are eligible to earn for the 2022 to 2024 performance period and (ii) prorated based on the number of days
remaining in the 2022 to 2024 performance period beginning on the Effective Date and ending on the last day of the performance period
as compared to the total number of days in the performance period. Each year, at the sole discretion of the Compensation Committee, it
is anticipated that Executive will be eligible to receive an LTIA of shares of restricted stock equivalent on the grant date to 20% of
Executive’s base salary. Notwithstanding the foregoing, for the initial grant of shares of restricted stock, which shall be made
on the Effective Date, such grant shall be determined on a pro rata basis applying the percentage set forth above to Executive’s
base salary (and based on the 30-day average stock price through March 25, 2022 used to determine 2022 restricted stock grants for
the Corporation’s other executive officers) multiplied by a fraction, the numerator of which is the number of days remaining in
the vesting period beginning on the Effective Date and ending on the last day of the vesting period and the denominator of which is 1,097.
Except as expressly modified herein, any LTIAs to Executive hereunder shall be subject to and in accordance with the terms of the Long-Term
Incentive Plans and Executive’s applicable award agreement, which shall be in the same form used for the Corporation’s other
executive officers.
- 3 -
(iii) Other
Incentive Compensation. In addition, beginning in 2022, Executive 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.
(c) Vacation.
Executive shall be entitled to five (5) weeks (or twenty-five (25) days) of compensated vacation time during each calendar year,
to be taken at times mutually agreed upon between Executive and the Chief Executive Officer of the Corporation; provided, however,
that during 2022, the number of vacation days will be prorated based on the portion of the calendar year Executive has been employed
by 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.
(d) Sick
Leave and Disability. Executive shall be entitled to participate in such compensated sick leave and disability benefit programs as
are offered to the Corporation’s other executive employees, subject to Executive’s satisfaction of the eligibility requirements
of such programs and subject to applicable law and the terms and conditions of such programs.
(e) Medical
and Dental Insurance. Executive, Executive’s spouse, and Executive’s dependents, shall be entitled to participate in
such medical and dental insurance programs as are provided to the Corporation’s other executive employees, subject to Executive’s
satisfaction of the eligibility requirements of such programs and subject to applicable law and the terms and conditions of such programs.
(f) Executive
Benefits and Perquisites. Executive shall be entitled to receive all other executive benefits and perquisites to which all other
executive employees of the Corporation are entitled, subject to Executive’s satisfaction of the eligibility requirements of such
plans or programs and subject to applicable law and the terms and conditions of such plans or programs.
- 4 -
(g) Automobile
and Cellular Phone. The Corporation agrees to provide Executive with a monthly automobile allowance of $833.33, less applicable tax
withholdings, and a monthly cellular phone allowance of $130.00, less applicable tax withholdings.
(h) Liability
Insurance. The Corporation agrees to insure Executive under the appropriate liability insurance policies, in accordance with the
Corporation’s policies and procedures, for all acts done by Executive within the scope of Executive’s authority in good faith
as an Executive Vice President of the Corporation and President of one of the Corporation’s business units throughout the Term.
(i) Professional
Meetings and Conferences. Executive 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 Executive to maintain such professional licenses
and certifications, if any, as are required in the performance of Executive’s duties under this Agreement, and to attend to such
outside professional duties as have been mutually agreed upon between Executive 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 Executive for all reasonable expenses incurred by Executive incident
to attendance at approved professional meetings and continuing education programs, and such reasonable entertainment expenses incurred
by Executive in furtherance of the Corporation’s interests; provided, however, that such reimbursement is approved
by the Chief Executive Officer of the Corporation.
(j) Registration
Fees and Professional Dues. The Corporation shall reimburse Executive for registration fees for such professional licenses and certifications,
if any, as are required in the performance of Executive’s duties under this Agreement. In addition, the Corporation agrees to pay
dues and expenses to professional associations and societies and to such community and service organizations of which Executive is a
member provided such dues and expenses are approved by the Chief Executive Officer as being in the best interests of the Corporation.
(k) Life
Insurance. The Corporation shall provide Executive with life insurance coverage on the same terms as such coverage is provided to
all other executive employees of the Corporation, subject to Executive’s satisfaction of the eligibility requirements of such coverage
and subject to applicable law and the terms and conditions of such coverage.
(l) Business
Expenses. The Corporation shall reimburse Executive for reasonable expenses incurred by Executive in connection with the conduct
of business of the Corporation and its subsidiaries or other Affiliates in accordance with and subject to the generally applicable expense
reimbursement policies of the Corporation.
- 5 -
8. Termination
Without Cause.
(a) By
the Corporation. The Corporation may, in its sole discretion, terminate Executive’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 (the date of termination set
forth in such notice is herein referred to as the “Termination Date”). Except as provided in Paragraphs 7(a), 8(b),
11, 12, 13, 14, 15 and 20 or as otherwise provided in this Agreement or any applicable LTIA agreement, after such termination, all rights,
duties and obligations of both parties shall cease. At any time during such sixty (60) day notice period, the Corporation may in its
sole discretion: (i) relieve Executive of Executive’s duties and responsibilities (in whole or part), (ii) place Executive
on paid leave-of-absence status, (iii) impose conditions with respect to attending or remaining away from the Corporation’s
places of business, and/or (iv) accelerate the Termination Date, in which case the Corporation shall continue to pay Executive during
the remainder of such 60-day period the compensation that would otherwise be owned to Executive under this Agreement for the remainder
of such 60-day period.
(i) Upon
the termination of employment pursuant to subparagraph (a) above, subject to the terms in subparagraph (ii) and Paragraphs
8(b) and 10 below and the requirements of Paragraph 12 below, in addition to all accrued and vested benefits payable under the Corporation’s
employment and benefit policies, including, but not limited to, earned but unpaid incentive compensation awards under (I) the Annual
Bonus Plan or (II) any other incentive compensation plan for any completed performance periods or any applicable LTIA agreement,
Executive 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
160% of Executive’s 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
commencing on the Corporation’s first payroll date following the date the Release (as defined below) becomes irrevocable or such
later date as provided in Paragraph 8(b) below; (2) continuation of medical, dental, life insurance and disability insurance
for Executive, Executive’s spouse and Executive’s 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 Executive’s status as a terminated employee, a payment equal to the cost to the Corporation as if Executive were not
a terminated employee of such excluded Other Benefits; and (3) 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, with the
cost for such service to be paid in full by the Corporation. For purposes of this Agreement (except for Paragraph 10 below), the “Severance
Period” shall mean the period from the date of termination of Executive’s employment to the first (1st) anniversary of
the date of such termination.
(ii) Subject
to Paragraph 12 below, in the event Executive 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 upon Executive’s commencement of such employment.
- 6 -
(iii) Executive
shall not be required to seek or accept any other employment during the Severance Period. Rather, the election of whether to seek or
accept other employment shall be solely within Executive’s discretion. If during the Severance Period Executive 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 Executive’s spouse or such individual designated by Executive or if no such
person is designated to Executive’s estate.
(b) Release.
The obligation of the Corporation to provide the Salary Continuation and Other Benefits described in Paragraph 8(a) above and the
benefit described in Paragraph 8(a)(i)(3) above is contingent upon and subject to (i) the execution and delivery by Executive
of a general release of claims, in form and substance satisfactory to the Corporation (the “Release”), which Release must
become effective and irrevocable on or prior to the earlier of (x) the date set forth in the Release and (y) the sixtieth (60th)
day after Executive’s termination of employment (the “Release Deadline Date”) and (ii) Executive’s
compliance with the requirements of Paragraph 12. The Corporation will provide Executive with a copy of the Release simultaneously with
or as soon as administratively practicable following (I) the delivery of the notice of termination provided in Paragraph 8(a), (II) the
expiration of the Corporation’s right to cure provided in Paragraph 8(d) or Paragraph 10, or (III) Executive’s
termination of employment due to Executive’s Total Disability provided in Paragraph 8(e). Notwithstanding anything herein to the
contrary, if the period of time in which Executive has to review, execute and revoke the Release begins in one taxable year and ends
in another taxable year, payments and benefits shall not begin until the later of the first payroll date after January 1st
of the year following the year in which Executive’s employment terminated or the first payroll date after the Release becomes irrevocable;
provided that the first installment payment shall include all amounts that would otherwise have been paid or provided to Executive during
the period beginning on the date on which Executive’s employment terminated and ending on the first payment date if no delay had
been imposed. If the Release does not become effective and irrevocable by the Release Deadline Date, then Executive shall forfeit the
payments and benefits described in Paragraphs 8(a)(i)(1)–(3) hereof. In no event will the payments and benefits described
in Paragraphs 8(a)(i)(1)–(3) hereof be paid or provided until the Release becomes effective and irrevocable.
Without limiting
the foregoing, the Release shall provide that for and in consideration of the above Salary Continuation and Other Benefits, Executive
releases and gives up any and all claims and rights which Executive may have against the Corporation, a subsidiary or other Affiliate,
and their respective trustees, officers, managers, employees and agents, including all claims arising from or related to Executive’s
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 of Executive’s employment under this Agreement.
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(c) Voluntary
Termination. Should Executive in Executive’s discretion elect to terminate Executive’s employment under this Agreement,
he shall give the Corporation at least sixty (60) days prior written notice of Executive’s decision to terminate. Except as provided
in Paragraphs 7(a), 11, 12, 13, 14, 15 and 20 or 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, earned but unpaid incentive compensation
awards under (I) the Annual Bonus Plan or (II) any other incentive compensation plan for any completed performance periods
or any applicable LTIA agreement. At any time during such sixty (60) day notice period, the Corporation may in its sole discretion: (i) relieve
Executive of Executive’s duties and responsibilities (in whole or part), (ii) place Executive on paid leave-of-absence status,
(iii) impose conditions with respect to attending or remaining away from the Corporation’s places of business, and/or (iv) accelerate
the Termination Date, in which case the Corporation shall not be required to continue to pay Executive during the remainder of such 60-day
period the compensation that would otherwise be owed to Executive had the Termination Date not occurred.
(d) Alteration
of Duties. If the Board of Directors or the Chief Executive Officer of the Corporation, in either of their sole discretion, takes
action which substantially changes or alters Executive’s authority or duties so as to effectively prevent Executive from performing
the duties of an Executive Vice President of the Corporation and President, General Manager or other similar title of one of the Corporation’s
business units as defined in this Agreement, or requires that Executive’s office be located at and/or principal duties be performed
at a location more than fifty-five (55) miles from the present corporate headquarters of the Corporation located in Parsippany, New Jersey,
then Executive may, at Executive’s 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 Executive terminated without Cause and, subject to the Release requirement of Paragraph
8(b), become entitled to the benefits set forth in Paragraph 8(a), unless within thirty (30) days after delivery of such notice, Executive’s
duties have been restored or the Corporation’s actions have otherwise been cured.
(e) Disability.
(i) The
Corporation, in its sole discretion, may terminate Executive’s employment upon Executive’s Total Disability. In the event
he is terminated pursuant to this subparagraph, subject to the Release requirement of Paragraph 8(b), Executive shall be entitled to
the benefits set forth in Paragraph 8(a), provided however, that the annual base salary component of Salary Continuation shall be reduced
by any amounts paid to Executive 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 Executive from performing Executive’s duties
under this contract for at least four (4) consecutive months. The determination of whether or not a physical or mental condition
would prevent Executive from the performance of Executive’s duties shall be made by the Board of Directors in its sole discretion.
If requested by the Board of Directors, Executive shall submit to a mental or physical examination by an independent physician selected
by the Corporation and reasonably acceptable to Executive to assist the Board of Directors in its determination, and Executive’s
acceptance of such physician shall not be unreasonably withheld or delayed. Failure to comply with this request shall prevent Executive
from challenging the Board’s determination.
(f) Retirement.
The Corporation, in its sole discretion and in accordance with applicable law, may establish a retirement policy for its executive employees,
including Executive, which includes the age for mandatory retirement from employment with the Corporation. Upon the termination of employment
pursuant to such retirement policy, other than as provided in Paragraphs 7(a), 11, 12, 13, 14, 15 and 20 or as otherwise provided in
this Agreement or any applicable LTIA agreement, all rights and obligations under this Agreement shall cease, except that Executive 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 earned but unpaid incentive compensation awards under (I) the Annual Bonus Plan or (II) any other incentive
compensation plan for any completed performance periods.
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(g) Section 280G.
Notwithstanding any other provision of this Agreement, in the event that the amount of payments or other benefits payable to Executive
under this Agreement (including, without limitation, the acceleration of any payment or the accelerated vesting of any payment or other
benefit), together with any payments, awards or benefits payable under any other plan, program, arrangement or agreement maintained by
the Corporation or one of its Subsidiaries or other Affiliates, would constitute an “excess parachute payment” (within the
meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”)), such payments and benefits shall
be reduced (by the minimum possible amounts) in the order set forth below until no amount payable to Executive under this Agreement or
otherwise constitutes an “excess parachute payment” (within the meaning of Section 280G of the Code); provided, however,
that no such reduction shall be made if the net after-tax amount (after taking into account federal, state, local or other income, employment
and excise taxes) to which Executive would otherwise be entitled without such reduction would be greater than the net after-tax amount
(after taking into account federal, state, local or other income, employment and excise taxes) to Executive resulting from the receipt
of such payments and benefits with such reduction. If any payments or benefits payable to Executive are required to be reduced pursuant
to this Paragraph, such payments and/or benefits to Executive shall be reduced in the following order: first, payments that are payable
in cash, with amounts that are payable last reduced first; second, payments due in respect of any equity or equity derivatives included
at their full value under Section 280G (rather than their accelerated value); third, payments due in respect of any equity or equity
derivatives valued at accelerated value under Section 280G, with the highest values reduced first (as such values are determined
under Treasury Regulation Section 1.280G-1, Q&A 24); and fourth, all other non-cash benefits.
All determinations
required to be made under this Paragraph 8(g), including whether a payment would result in an “excess parachute payment”
and the assumptions to be utilized in arriving at such determinations, shall be made by an accounting firm designated by the Corporation
(the “Accounting Firm”) which shall provide detailed supporting calculations both to the Corporation and Executive
as requested by the Corporation or Executive. All fees and expenses of the Accounting Firm shall be borne solely by the Corporation and
shall be paid by the Corporation. Absent manifest error, all determinations made by the Accounting Firm under this Paragraph 8(g) shall
be final and binding upon the Corporation and Executive.
9. Termination
for Cause. Executive’s employment under this Agreement may be terminated by the Corporation immediately upon written notice,
for Cause. For purposes of this Agreement, “Cause” shall exist 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 Executive’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 of Directors or other
superiors; and willful misconduct or gross negligence that results, in the determination of the Board of Directors, 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 Executive written notice specifying the effective date of such termination. Upon the effective
date of such termination, any and all payments and benefits due Executive under this Agreement shall cease except for any accrued and
vested benefits payable under the Corporation’s employment and benefit policies, including any earned but unpaid amounts under
(I) the Annual Bonus Plan or (II) any other incentive compensation plan.
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10. Major
Transaction. If, during the Term, the Corporation consummates a Major Transaction and, following the Major Transaction, Executive
is not an Executive Vice President of the Corporation or President, General Manager or other similar title of one of the Corporation’s
business units with duties and responsibilities substantially equivalent to those described herein and/or is not entitled to substantially
the same benefits as set forth in Paragraph 6 and Paragraph 7(b) through (l) of this Agreement, then Executive shall have the
right to terminate Executive’s employment under this Agreement and, subject to the Release requirement of Paragraph 8(b), shall
be entitled to the benefits set forth in Paragraph 8(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. Executive shall provide the Corporation with written notice
of Executive’s desire to terminate Executive’s 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 Executive’s employment under 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 Executive’s employment under
this Agreement shall not be more than one year following the effective date of the Major Transaction. If, during the Term, the Corporation
consummates a Major Transaction and the Corporation terminates Executive’s employment hereunder without Cause pursuant to subparagraph
8(a) of this Agreement within one year after the Major Transaction, then, subject to the Release requirement of Paragraph 8(b),
Executive shall be entitled to the benefits set forth in Paragraph 8(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. 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.
11. Effect
of Separation or Termination on Board and Officer Positions. Upon separation or termination of Executive’s employment for any
reason, and as a precondition to Executive’s receipt of the Salary Continuation, Other Benefits and other separation benefits set
forth in this Agreement, Executive shall be deemed to have immediately resigned from any and all positions Executive holds as a director,
officer or otherwise with the Corporation or any subsidiary or Affiliate of the Corporation (and this Agreement shall constitute notice
of resignation by Executive without any further action by Executive), to be effective no later than the date of Executive’s employment
separation or termination (or such other date requested or permitted by the Board of Directors of the Corporation), and Executive agrees
to execute and deliver such further instruments as are requested by the Corporation in furtherance of the foregoing.
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12. Restrictive
Covenants and Cooperation.
(a) Non-competition.
Executive agrees that during (i) the Term; (ii) the one (1) year period following the effective date of termination of
this Agreement by Executive pursuant to Paragraph 8(c) (Voluntary Termination); and (iii) the one (1) year period following
the effective date of termination by the Corporation pursuant to Paragraph 9 (Termination For Cause) (the “Restricted Period”),
he shall not, directly or indirectly, be employed by or otherwise provide services to any food manufacturer operating in the United States
of America which engages in activities 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.
(b) Non-solicitation
of Employees. Executive covenants and agrees not to directly or indirectly solicit, hire, recruit, attempt to hire or recruit, or
induce the termination of employment of any employee of the Corporation during the Restricted Period.
(c) Non-disparagement.
Subject to subparagraph (d)(v) below, Executive covenants and agrees that Executive will not at any time make, publish or communicate
to any person or entity or in any public forum any defamatory or disparaging remarks, comments or statements concerning the Corporation
or its businesses, or any of its employees, officers, and existing and prospective customers, suppliers, investors and other associated
third parties.
(d) Confidentiality
of Information.
(i) Confidential
Information. Executive recognizes and acknowledges that following Executive’s execution of this Agreement and during Executive’s
employment by the Corporation, Executive will have access to and/or acquire certain proprietary and confidential information relating
to the business of the Corporation and its subsidiaries or other Affiliates (the “Confidential Information”). For
purposes of this Agreement, “Confidential Information” includes, but is not limited to, all information not generally
known to the public, in spoken, printed, electronic or any other form or medium, relating directly or indirectly to: business processes,
practices, methods, policies, plans, documents, research, operations, strategies, techniques, agreements, contracts, terms of agreements,
transactions, potential transactions, negotiations, pending negotiations, know-how, trade secrets, work-in-process, manuals, records,
systems, supplier information, vendor information, financial information, advertising information, pricing information, credit information,
design information, supplier lists, vendor lists, developments, reports, internal controls, market studies, sales information, revenue,
costs, formulae, recipes, notes, communications, product plans, designs, ideas, specifications, customer information, customer lists,
manufacturing information, factory lists, distributor lists, and buyer lists of the Corporation or its businesses, or of any other person
or entity that has entrusted information to the Corporation in confidence. Executive understands that the above list is not exhaustive,
and that Confidential Information also includes other information that is marked or otherwise identified as confidential or proprietary,
or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the
information is known or used.
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(ii) Restrictions.
Subject to subparagraph (v) below, Executive covenants and agrees: (A) to treat all Confidential Information as strictly confidential;
(B) not to directly or indirectly disclose, publish, communicate or make available Confidential Information, or allow it to be disclosed,
published, communicated or made available, in whole or part, to any entity or person whatsoever (including other employees of the Corporation)
not having a need to know and authority to know and use the Confidential Information in connection with the business of the Corporation
and, in any event, not to anyone outside of the direct employ of the Corporation except as required in the performance of Executive’s
authorized employment duties to the Corporation or with the prior consent of the Corporation in each instance (and then, such disclosure
shall be made only within the limits and to the extent of such duties or consent); (C) not to access or use any Confidential Information,
and not to copy any documents, records, files, media or other resources containing any Confidential Information, or remove any such documents,
records, files, media or other resources from the premises or control of the Corporation, except as required in the performance of Executive’s
authorized employment duties to the Corporation or with the prior consent of the Corporation in each instance (and then, such disclosure
shall be made only within the limits and to the extent of such duties or consent); and (D) not to use or disclose to the Corporation
any confidential, trade secret, or other proprietary information or material of any previous employer or other person, and not to bring
onto the Corporation’s premises any unpublished document or any other property belonging to any former employer without the written
consent of that former employer.
(iii) Exit
Obligations. Upon (i) voluntary or involuntary termination of Executive’s employment or (ii) the Corporation’s
request at any time following Executive’s execution of this Agreement and during Executive’s employment, Executive shall
(a) provide or return to the Corporation any and all property of the Corporation or its subsidiaries or other Affiliates, including
all keys, key cards, access cards, identification cards, security devices, employer credit cards, network access devices, user names
and passwords for Corporation accounts (including but not limited to domain name and social media accounts), computers, cell phones,
smartphones, PDAs, pagers, equipment, manuals, reports, files, books, compilations, work product, e-mail messages, recordings, tapes,
disks, thumb drives or other removable information storage devices, hard drives and data and all documents and materials belonging to
the Corporation and stored in any fashion, including but not limited to those that constitute or contain any Confidential Information
or Work Product (as defined below), that are in the possession or control of Executive, whether they were provided to Executive by the
Corporation or any of its business associates or created by Executive in connection with Executive’s previous employment by the
Corporation; and (b) delete or destroy all copies of any such documents and materials not returned to the Corporation that remain
in Executive’s possession or control, including those stored on any non-Corporation devices, networks, storage locations and media
in Executive’s possession or control.
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(iv) Continuing
Obligations. Executive understands and acknowledges that Executive’s obligations under this Agreement with regard to any particular
Confidential Information shall commence on the date Executive executes this Agreement and shall continue during and after Executive’s
employment by the Corporation until such time as such Confidential Information has become public knowledge other than as a result of
Executive’s breach of this Agreement or breach by those acting in concert with Executive or on Executive’s behalf or who
are otherwise obligated to maintain the confidentiality of such information.
(v) Disclosures
and Communications Permitted or Required by Law. Nothing in this Agreement shall be construed to prevent disclosure of Confidential
Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or
an authorized government agency, or in connection with reporting possible violations of federal law or regulation to any governmental
agency, or making other disclosures that are protected under the whistleblower provisions of applicable law or regulation, provided that
the disclosure does not exceed the extent of disclosure required by such law, regulation or order. Executive shall promptly provide written
notice of any such order to an authorized officer of the Corporation as promptly as practicable after receiving such order, but in any
event sufficiently in advance of making any disclosure to permit the Corporation to contest the order or seek confidentiality protections,
as determined in the Corporation’s sole discretion. Further, in accordance with the Defend Trade Secrets Act of 2016, (I) Executive
shall not be held criminally or civilly liable under any federal or state trade secret law for
the disclosure of a trade secret that: (A) is made (i) in confidence to a federal, state, or local government official, either
directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation
of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under
seal, and (II) if Executive files a lawsuit for retaliation by the Corporation for reporting a suspected violation of law,
Executive may disclose a trade secret to Executive’s attorney and use the trade secret information in the court proceeding, if
Executive files any document containing the trade secret under seal, and does not disclose the trade secret except pursuant to court
order.
(e) Cooperation.
Executive shall, at all times subsequent to the termination of Executive’s employment, reasonably cooperate, in a timely and good
faith manner, with all reasonable requests for assistance made by the Corporation, relating directly or indirectly to all investigations,
legal claims or any regulatory matter with respect to any matter which occurred during the course of Executive’s employment with
the Corporation, with which Executive was involved prior to the termination of Executive’s employment, or with which Executive
became aware of during the course of Executive’s employment. Upon the submission of proper documentation, the Corporation will
reimburse Executive for all reasonable expenses (other than Executive’s attorney’s fees, if any) Executive incurs as a result
of such requests for assistance, if any.
(f) Remedies
for Breach or Threatened Breach. In the event of a breach or threatened breach by Executive of any of the provisions of this Paragraph
12 or any other provision of this Agreement, Executive hereby consents and agrees that the Corporation shall be entitled to, in addition
to other available remedies, a temporary or permanent injunction or other equitable relief against such breach or threatened breach from
any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate
remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall be in addition to,
not in lieu of, legal remedies, monetary damages or other available forms of relief for such breach or threatened breach. Executive further
agrees that (i) any breach or claimed breach of the provisions set forth in this Agreement by, or any other claim Executive may
have against, the Corporation or its subsidiaries or other Affiliates will not be a defense to enforcement of any covenants in this Section 12
and (ii) the circumstances of Executive’s termination of employment with the Corporation will have no impact on Executive’s
obligations to comply with the covenants in this Section 12. The covenants in this Section 12 are intended for the benefit
of the Corporation and its subsidiaries and other Affiliates, as well as their successors and assigns, each of which is an intended third
party beneficiary of and may enforce such covenants.
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13. Representation
and Warranty. Executive represents and warrants that (i) Executive’s employment hereunder and compliance with the terms
and conditions hereof will not conflict with or result in the breach by Executive of any agreement which Executive is a party or by which
Executive may be bound, and (ii) in connection with Executive’s employment or other service with the Corporation or any of
its subsidiaries or Affiliates, Executive will not violate any non-compete, non-solicitation, non-disclosure, or other similar restrictive
covenant or related contractual limitation by which Executive is or may be bound.
14. Proprietary
Rights.
(a) Prior
Inventions. Executive has attached hereto, as Section (i) of Exhibit A, a list describing with particularity
all Inventions (defined below) that were Invented (defined below) by Executive prior to the Term (collectively, “Prior Inventions”)
which: (i) are owned in whole or part by Executive or in which Executive has an interest, (ii) relate in any way to any of
the Corporation’s actual or proposed businesses, products or research and development, and (iii) are not assigned to Corporation
hereunder. If no such list is attached, Executive represents that there are no such Prior Inventions. Executive agrees not to incorporate
into any Corporation product, process or machine any Prior Invention, or any Invention owned by a third party. If notwithstanding the
foregoing during the Term, Executive incorporates any Prior Invention into any Corporation product, process or machine, then Executive
hereby grants to the Corporation a non-exclusive, royalty-free, irrevocable, perpetual, worldwide license (with the right to sublicense)
to make, have made, copy, modify, make derivative works of, use, sell, offer to sell, import, and otherwise distribute such Prior Invention
as part of or in connection with such product, process or machine.
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(b) Work
Product. Executive acknowledges and agrees that all writings, works of authorship, technology, inventions, modifications, designs,
processes, software (including source code and object code), algorithms, data, databases, documentation, formulas, procedures, techniques,
discoveries, ideas and other work product of any nature whatsoever (“Inventions”), that are created, made, discovered,
invented, or otherwise developed, prepared, produced, authored, edited, amended, conceived or reduced to practice by Executive, in whole
or in part, individually or jointly with others (“Invented”) during the period of Executive’s employment by
the Corporation and relating, directly or indirectly, at the time of its conception or reduction to practice to (i) any actual or
proposed business, product or service of the Corporation, (ii) any research or development of the Corporation (regardless of when
or where the Work Product is prepared or whose equipment or other resources is used in preparing the same), (iii) any Invention
or Intellectual Property Rights owned by the Corporation, or (iv) results from any work performed by Executive for or at the direction
of the Corporation, and all printed, physical and electronic copies, all improvements, versions, modifications, enhancements and derivative
works of the foregoing, all rights and claims related to the foregoing, and other tangible embodiments thereof, in each case whether
or not patentable, copyrightable or otherwise protected (collectively, “Work Product”), as well as any and all rights
in and to copyrights, trade secrets, trademarks (and related goodwill), mask works, patents and other Intellectual Property Rights therein
arising in any jurisdiction throughout the world and all related rights of priority under international conventions with respect thereto,
including all pending and future applications and registrations therefor, and continuations, divisions, continuations-in-part, reissues,
extensions and renewals thereof, including without limitation, all associated past, present and future enforcement rights and rights
of priority therein or associated therewith (collectively, “Intellectual Property Rights”), shall be the sole and
exclusive property of the Corporation. For purposes of this Agreement, Work Product includes, but is not limited to, the Corporation
information, including, without limitation, plans, publications, research, strategies, techniques, agreements, documents, contracts,
terms of agreements, negotiations, know-how, computer programs, computer applications, software design, web design, work in process,
databases, manuals, results, developments, reports, graphics, drawings, sketches, market studies, formulae, notes, communications, algorithms,
product plans, product designs, styles, models, audiovisual programs, inventions, unpublished patent applications, original works of
authorship, discoveries, experimental processes, experimental results, specifications, customer information, client information, customer
lists, client lists, manufacturing information, marketing information, advertising information, and sales information.
(c) Assignment
of Inventions. Executive agrees to promptly make full written disclosure to the Corporation of any and all Work Product made during
the Term, as well as any patent application relating to the business of the Corporation that Executive files within the one year period
after termination of this Agreement. Executive hereby sells, assigns and transfers unto the Corporation all right, title and interest
to any invention falling within the Work Product as defined herein, in the United States of America and all foreign countries, including,
but not limited to, patent applications, divisionals, continuations, continuations-in-part, reissues and reexaminations thereof and substitutions
of or for patent applications, and all foreign rights including the right to apply for a patent for the inventions in any and all foreign
countries and the right to claim priority to the filing date of the U.S. or foreign patent application under the International Convention.
Executive hereby authorizes and requests the Commissioner of Patents to issue all patents issuing therefrom to the Corporation, its successors,
assigns and legal representatives.
(d) Work
Made for Hire; Assignment. Executive acknowledges that, by reason of being employed by the Corporation at the relevant times, to
the extent permitted by law, all of the Work Product consisting of copyrightable subject matter is “work made for hire” as
defined in the Copyright Act of 1976 (17 U.S.C. § 101), and such copyrights are therefore owned by the Corporation. To the extent
that the foregoing does not apply, Executive hereby irrevocably sells, assigns and transfers to the Corporation, for no additional consideration,
Executive’s entire right, title and interest in and to all Work Product and Intellectual Property Rights therein, including the
right to sue, counterclaim and recover for all past, present and future infringement, misappropriation or dilution thereof, and all rights
corresponding thereto throughout the world. Nothing contained in this Agreement shall be construed to reduce or limit the Corporation’s
rights, title or interest in any Work Product or Intellectual Property Rights so as to be less in any respect than that the Corporation
would have had in the absence of this Agreement.
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(e) Further
Assurances; Power of Attorney. During and after Executive’s employment, Executive agrees to reasonably cooperate with the Corporation
at the Corporation’s expense to (i) apply for, obtain, perfect and transfer to the Corporation the Work Product and Intellectual
Property Rights in the Work Product in any jurisdiction in the world; and (ii) maintain, protect and enforce the same, including,
without limitation, executing and delivering to the Corporation any and all applications, oaths, declarations, affidavits, waivers, assignments
and other documents and instruments as shall be requested by the Corporation. Executive hereby irrevocably grants the Corporation power
of attorney to execute and deliver any such documents on Executive’s behalf in Executive’s name and to do all other lawfully
permitted acts to transfer the Work Product to the Corporation and further the transfer, issuance, prosecution and maintenance of all
Intellectual Property Rights therein, to the full extent permitted by law, if Executive does not promptly cooperate with the Corporation’s
request (without limiting the rights the Corporation shall have in such circumstances by operation of law). The power of attorney is
coupled with an interest and shall not be affected by Executive’s subsequent incapacity.
(f) Moral
Rights. To the extent any copyrights are assigned under this Agreement, Executive hereby irrevocably waives, to the extent permitted
by applicable law, any and all claims Executive may now or hereafter have in any jurisdiction to all rights of paternity, integrity,
disclosure and withdrawal and any other rights that may be known as “moral rights” with respect to all Work Product and all
Intellectual Property Rights therein. To the extent Executive retains any such moral rights under applicable law, Executive hereby ratifies
and consent to any action that may be taken with respect to such moral rights by or authorized by the Corporation and agrees not to assert
any moral rights with respect thereto. Executive will confirm any such ratification, consent or agreement from time to time as requested
by the Corporation. Furthermore, Executive agrees that notwithstanding any rights of publicity, privacy or otherwise (whether or not
statutory) anywhere in the world and without any further compensation, the Corporation may and is hereby authorized to Executive’s
name, likeness and voice in connection with promotion of its business, products and services and to allow others to do so, and Executive
hereby releases the Corporation from any and all liability arising from such use. Executive acknowledges and agrees that the compensation
Executive received and will receive in connection with the Term that there is reasonable and sufficient consideration for the covenants,
grants and assignments made by Executive under this Agreement, and agree that the Corporation has no obligation to make any additional
payments to Executive hereunder.
(g) No
License. Executive understands that this Agreement does not, and shall not be construed to, grant Executive any license or right
of any nature with respect to any Work Product or Intellectual Property Rights or any Confidential Information, materials, software or
other tools made available to Executive by the Corporation.
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(h) Maintenance
of Records. Executive agrees to keep and maintain adequate and current written records of all Work Product Executive makes (solely
or jointly with others) during the Term. The records may be in the form of notes, sketches, drawings, flow charts, electronic data or
recordings, laboratory notebooks, and any other format. The records will be available to and remain at all times the sole property of
the Corporation and Confidential Information. Executive agrees to return all such records (including all copies thereof) to the Corporation
at the time of termination of the Term with the Corporation.
15. Security
and Access. Executive shall (i) to comply with all of the Corporation’s security policies and procedures as in force from
time to time including computer equipment, telephone systems, voicemail systems, facilities access, key cards, access codes, the Corporation
intranet, internet, social media and instant messaging systems, computer systems, e-mail systems, computer networks, document storage
systems, software, data security, passwords and any and all other the Corporation facilities, IT resources and communication technologies
(“Facilities Information Technology and Access Resources”); (ii) not to access or use any Facilities and Information
Technology Resources except as authorized by the Corporation; and (iii) not to access or use any Facilities and Information Technology
Resources in any manner after the termination of Executive’s previous employment by the Corporation, whether termination is voluntary
or involuntary. Executive agrees to notify the Corporation promptly in the event Executive learns of any violation of the foregoing by
others, or of any other misappropriation or unauthorized access, use, reproduction or reverse engineering of, or tampering with any Facilities
and Information Technology Access Resources or other the Corporation property or materials by others.
16. 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.
17. 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 Chairman of the Board of Directors,
the Chairman of the Compensation Committee, the Chief Executive Officer or any officer of the Corporation authorized to do so by the
Board of Directors or the Compensation Committee, and Executive.
18. Severability;
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. It is the intention of the parties that the covenants contained in this Agreement be reasonable in duration and geographic
scope and in all other respects. Executive agrees that such covenants, including, without limitation, the duration, geographic scope
and activity restrictions of each restriction, are reasonable in light of Executive’s position, and that Executive’s experience
and capabilities are such that the covenants will not prevent Executive from obtaining employment or otherwise earning a living. If for
any reason any court of competent jurisdiction shall find any provisions of any covenant in Section 12 or any other section of this
Agreement to be unreasonable in duration, geographic scope, scope of restriction, or otherwise, it is the intention of the parties that
the restrictions and prohibitions contained therein shall be modified by the court to be effective to the fullest extent allowed under
applicable law in such jurisdiction.
- 17 -
19. Binding
Agreement; Assignment. This Agreement shall be binding upon and inure to the benefit of the Corporation and Executive, their respective
successors and permitted assigns. The parties recognize and acknowledge that this Agreement is a contract for the personal services of
Executive and that this Agreement may not be assigned by Executive nor may the services required of Executive hereunder be performed
by any other person without the prior written consent of the Corporation. The Corporation may assign its rights and/or delegate its obligations
under this Agreement to any of its subsidiaries or other Affiliations or any successor of the Corporation or any of its subsidiaries
or other Affiliates, whether by operation of law, agreement or otherwise.
20. Governing
Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement, the relationship of the parties,
and/or the interpretation and enforcement of the rights and duties of the parties shall be construed and enforced under and in accordance
with the laws of the State of New Jersey, without regard to conflicts of law principles. Anything in this Agreement to the contrary notwithstanding,
the terms of this Agreement shall be interpreted and applied in a manner consistent with the requirements of Code section 409A so as
not to subject Executive to the payment of any tax penalty or interest under such section; provided that neither the Corporation nor
any of its Affiliates shall have any liability to Executive or to any other person for any taxes, interest or penalties relating to this
Agreement, including, without limitation, any arising under Code section 409A.
21. Enforcing
Compliance. If Executive 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 Executive
shall be reimbursed wholly and completely by the Corporation if Executive prevails in such legal proceedings.
22. 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
Parsippany, NJ 07054
Attn: General Counsel
To Executive at:
Executive’s then current address included in the employment records of the Corporation
23. Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed
to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission
shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
- 18 -
24. Other
Terms Relating to Code Section 409A. Executive’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).
If Executive’s termination of employment hereunder does not constitute a “separation from service” within the meaning
of Code section 409A, then any amounts payable hereunder on account of a termination of Executive’s employment and which are subject
to Code section 409A shall not be paid until Executive has experienced a “separation from service” within the meaning of
Code section 409A.
(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 Executive’s taxable year following Executive’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,
and the amount available for reimbursement, or in-kind benefits provided, during any calendar year shall not affect the amount available
for reimbursement, or in-kind benefits to be provided, in a subsequent calendar year.
(ii) Any
reimbursement made under Paragraph 8(a)(i)(2), 8(d), 8(e) or 10 for expenses for medical coverage purchased by Executive, if made
during the period of time Executive 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 Executive 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 Paragraph 8(a)(i)(3), 8(d), 8(e) or 10 for reasonable expenses for outplacement services for
Executive 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 Executive’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 Executive’s
taxable year in which Executive’s 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 Executive’s involuntary
termination of employment under Paragraph 8(a)(i)(1), 8(a)(i)(2), 8(d), 8(e) or 10 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) Executive’s
annualized compensation for Executive’s taxable year preceding the taxable year in which Executive’s 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.
- 19 -
(d) Six-Month
Delay. Anything in this Agreement to the contrary notwithstanding, payments to be made under this Agreement upon termination of Executive’s
employment that are subject to Code section 409A (“Covered Payment”) shall be delayed for six months following such
termination of employment if Executive is a “specified employee” on the date of Executive’s 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 Executive’s
termination of employment to the date of payment. The interest rate shall be determined as of the date of Executive’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
Executive’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 Executive (or Executive’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 Executive’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 Executive’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]
- 20 -
IN WITNESS WHEREOF,
the Corporation and Executive have executed this Agreement as of the day and year first above written.
B&G FOODS, INC.
By:
/s/
Scott E. Lerner
Name:
Scott E. Lerner
Title:
Executive Vice President, General Counsel and Secretary
ANDREW
D. VOgel
/s/ Andrew D. Vogel
[Signature Page to
Employment Agreement]
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