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HEINZ H J CO - 10-Q - 20050301 - EXHIBIT_10
Exhibit 10(a)(xxvii)
RESTRICTED STOCK UNIT AWARD AND AGREEMENT
[DATE]
Dear _______________:
H. J. Heinz Company is pleased to confirm that, effective as of ____________
(the "Effective Date"), you have been granted an award of Restricted Stock Units
("RSUs") for Fiscal Year ____ in accordance with the terms and conditions of the
H.J. Heinz Company Fiscal Year 2003 Stock Incentive Plan (the "Plan"). This
Award is also made under and governed by the terms and conditions of this letter
agreement ("Agreement"), which shall control in the event of a conflict with the
terms and conditions of the Plan. For purposes of this Agreement, the "Company"
shall refer to H. J. Heinz Company and its Subsidiaries. Unless otherwise
defined in this Agreement, all capitalized terms used in this Agreement shall
have the same defined meanings as in the Plan.
1. RSU Award. You have been awarded a total of ____________ RSUs for Fiscal
Year ____.
2. RSU Account. RSUs entitle you to receive a corresponding number of shares
of H. J. Heinz Company Common Stock ("Common Stock") in the future, subject
to the conditions and restrictions set forth in this Agreement, including,
without limitation, the vesting conditions set forth in Paragraph 3 below.
Your RSUs will be credited to a separate account established and maintained
by the Company on your behalf. Until the Distribution Date (as defined
herein), your RSUs are treated as deferred compensation amounts, the value
of which is subject to change based on increases or decreases in the market
price of the Common Stock. Because the RSUs are not actual shares of Common
Stock, you cannot exercise voting rights on them until the Distribution
Date.
3. Vesting. You will become vested in the RSUs credited to your account
according to the following schedule:
You will become 100% vested in the RSUs upon the fifth anniversary of the
Effective Date. None of the RSUs will become vested prior to this date.
4. Termination of Employment. The termination of your employment with the
Company will have the following effect on your RSUs:
(a) Retirement, Disability or Involuntary Termination without Cause. If
the termination of your employment with the Company is the result of
Retirement, Disability, or involuntary termination without Cause, any
RSUs granted hereunder that remain unvested as of your Date of
Termination shall continue to vest in accordance with the vesting
schedule set forth in Paragraph 3 above, subject to the requirements
of Paragraph 5 of this Agreement.
(b) Death. In the event that you should die while you are
continuing to perform services for the Company, any RSUs that remain
unvested as of the date of your death shall continue to vest in
accordance with the vesting schedule set forth in Paragraph 3 above.
(c) Change in Control. In the event of a Change in Control, any RSUs that
remain unvested as of the date of the Change in Control shall
immediately become vested unless your RSU award is replaced by an
award of equivalent value provided by the Surviving Corporation, which
replacement award vests not later than the replaced award and, to the
extent not previously vested, vests in full in the event of any
involuntary termination of your employment with the Surviving
Corporation following the Change in Control (other than an involuntary
termination for Cause).
(d) Other Termination. If your employment with the Company terminates for
any reason other than as set forth in subparagraphs (a), (b) and (c)
above, including without limitation as a result of any voluntary
termination of employment or an involuntary termination for Cause, any
RSUs granted hereunder that remain unvested as of your Date of
Termination shall be immediately forfeited and cancelled.
5. Non-Solicitation/Confidential Information. In partial consideration for
the RSUs granted to you hereunder, you agree that you shall not, during the
term of your employment by the Company and for 12 months after termination
of your employment, regardless of the reason for the termination, either
directly or indirectly, solicit, take away or attempt to solicit or take
away any other employee of the Company, either for your own purpose or for
any other person or entity. You further agree that you shall not, during
the term of your employment by the Company or at any time thereafter, use
or disclose the Confidential Information (as defined below) except as
directed by, and in furtherance of the business purposes of, the Company.
You acknowledge that the breach or threatened breach of this Paragraph 5
will result in irreparable injury to the Company for which there is no
adequate remedy at law because, among other things, it is not readily
susceptible of proof as to the monetary damages that would result to the
Company. You consent to the issuance of any restraining order or
preliminary restraining order or injunction with respect to any conduct by
you that is directly or indirectly a breach or threatened breach of this
Paragraph 5. Any breach by you of the provisions of this Paragraph 5 will,
at the option of the Company and in addition to all other rights and
remedies available to the Company at law, in equity or under this
Agreement, result in the immediate forfeiture of all of your rights in any
RSUs that remain unvested as of the date of such breach.
"Confidential Information" as used herein shall mean technical or business
information not readily available to the public or generally known in the
trade,
including but not limited to inventions; ideas; improvements; discoveries;
developments; formulations; ingredients; recipes; specifications; designs;
standards; financial data; sales, marketing and distribution plans,
techniques and strategies; customer and supplier information; equipment;
mechanisms; manufacturing plans; processing and packaging techniques; trade
secrets and other confidential information, knowledge, data and know-how of
the Company, whether or not they originated with you, or information which
the Company received from third parties under an obligation of
confidentiality.
6. Dividends. An amount equal to the dividends payable on the shares of
Common Stock represented by the RSUs will be paid directly to you as soon
as practicable following the date on which a dividend is declared by the
Company. These payments will be calculated based upon the number of RSUs
credited to your account as of the date that a dividend is declared. These
payments will be reported as income to the applicable taxing authorities,
and federal, state, local and/or foreign income and/or employment taxes
will be withheld from such payments as and to the extent required by
applicable law.
7. Distribution. All RSU distributions will be made in the form of actual
shares of Common Stock and will be distributed to you on one of the
following dates (each, a "Distribution Date"):
(a) Default Distribution Date. Shares of Common Stock representing your
RSUs will be distributed to you when the RSUs vest, unless you make an
election to defer receipt to a later date, as provided in subparagraph
(b) below.
(b) Deferred Distribution Date. You may elect to defer distribution of
your RSUs to a date subsequent to the Default Distribution Date by
providing a written election form to the Company by no later than
________________. A copy of the election form is attached.
(c) Executive Officer/Management Committee Member Exception. If you are a
named executive officer of the Company on the Distribution Date (as
listed in the proxy statement filed by the Company most recent to the
Distribution Date) or are a member of the Company's Management
Committee on the Distribution Date, the Distribution Date will
automatically be deferred to the close of business on the last day of
your employment with the Company.
Certificates representing the distributed shares of Common Stock will be
delivered to the firm maintaining your account as soon as practicable after
a Distribution Date occurs. Notwithstanding the foregoing, all vested RSUs
will be immediately distributed to you at the close of business on the last
day of your employment with the Company, or as soon as practicable
thereafter, if you
terminate employment with the Company for any reason including death,
disability, retirement or Change of Control of the Company.
8. Impact on Benefits. None of the RSUs being credited to your account are
deemed to be a replacement for award opportunity under the Company's
Shareholder Success Plan (SSP), and no portion of your RSU Award will be
included as compensation for the year of the grant for purposes of the H.J.
Heinz Company Supplemental Executive Retirement Plan and the H.J. Heinz
Company Employees Retirement and Savings Excess Plan.
9. Tax Withholding. On the Distribution Date, the Company will withhold a
number of shares of Common Stock that is equal, based on the Fair Market
Value of the Common Stock on the Distribution Date, to the amount of the
federal, state, local, and/or foreign income and/or employment taxes
required to be collected or withheld with respect to the distribution.
10. Non-Transferability. Your RSUs may not be sold, transferred, pledged,
assigned or otherwise encumbered except by will or the laws of descent and
distribution. You may also designate a beneficiary(ies) in the event that
you die before a Distribution Date occurs, who shall succeed to all your
rights and obligations under this Agreement and the Plan. A beneficiary
election form is attached. If you do not designate a beneficiary, your RSUs
will pass to the person or persons entitled to receive them under your
will. If you shall have failed to make a testamentary disposition of your
RSUs in your will or shall have died intestate, your RSUs will pass to the
legal representative or representatives of your estate.
11. Employment At-Will. You acknowledge and agree that nothing in this
Agreement or the Plan shall confer upon you any right with respect to
future awards or continuation of your employment, nor shall it constitute
an employment agreement or interfere in any way with your right or the
right of Company to terminate your employment at any time, with or without
cause, and with or without notice.
12. Collection and Use of Personal Data. You consent to the collection, use,
and processing of personal data (including name, home address and telephone
number, identification number and number of RSUs held) by the Company or a
third party engaged by the Company for the purpose of implementing,
administering and managing the Plan and any other stock option or stock
incentive plans of the Company (the "Plans"). You further consent to the
release of personal data to such a third party administrator, which, at the
option of the Company, may be designated as the exclusive broker in
connection with the Plans. You hereby waive any data privacy rights with
respect to such data to the extent that receipt, possession, use,
retention, or transfer of the data is authorized hereunder.
13. Future Awards. The Plan is discretionary in nature and the Company may
modify, cancel or terminate it at any time without prior notice in
accordance with the terms of the Plan. While RSUs or other awards may be
granted under the Plan on one or more occasions or even on a regular
schedule, each grant is a one time event, is not an entitlement to an award
of RSUs in the future, and does not create any contractual or other right
to receive an award of RSUs, compensation or benefits in lieu of RSUs or
any other compensation or benefits in the future.
14. Compliance with Stock Ownership Guidelines. All RSUs granted to you under
this Agreement shall be counted as shares of Common Stock that are owned by
you for purposes of satisfying the minimum share requirements under the
Company's Simplified Stock Ownership Guidelines ("SOG"). Notwithstanding
the foregoing, you acknowledge and agree that, with the exception of the
number of shares of Common Stock withheld to satisfy income tax withholding
requirements pursuant to Paragraph 9 above, the shares of Common Stock
represented by the RSUs granted to you hereunder cannot be sold or
otherwise transferred, even after the Distribution Date, unless and until
you have met SOG's minimum share ownership requirements. The Management
Development & Compensation Committee will not approve additional RSU awards
to you unless you are in compliance with the terms of this Paragraph 14 and
the SOG requirements.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without
regard to its choice of law provisions.
THIS RSU AWARD IS SUBJECT TO YOUR ON-LINE ACCEPTANCE OF THE TERMS AND CONDITIONS
OF THIS AGREEMENT.
H. J. HEINZ COMPANY
By:
Accepted:
Date:
BENEFICIARY DESIGNATION
Upon my death, the vested Restricted Stock Units earned by me under all
Restricted Stock Unit Agreements shall be paid to the beneficiary(ies) I
designate below. This designation supercedes any prior beneficiary designation I
have made regarding my Restricted Stock Unit account balance, and shall remain
in effect unless and until I file a subsequent Beneficiary Designation Form with
the Company.
Primary Beneficiary Designation
The vested Restricted Stock Units distributable to me shall be paid, in equal
portions unless otherwise indicated, to the following Primary Beneficiary(ies)
then surviving:
Name Relationship Date of Birth Social Security Number
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Contingent Beneficiary Designation
If none of the above-named Primary Beneficiaries survives me, the vested
Restricted Stock Units distributable to me shall be paid, in equal portions
unless otherwise indicated, to the following Contingent Beneficiary(ies) then
surviving:
Name Relationship Date of Birth Social Security Number
---- ------------ ------------- ----------------------
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Signature Date
Exhibit 10(a)(xxviii)
RESTRICTED STOCK UNIT AWARD AND AGREEMENT
[DATE]
Dear _______________:
H. J. Heinz Company is pleased to confirm that, effective as of __________, you
have been granted an award of Restricted Stock Units ("RSUs") for Fiscal Year
____ in accordance with the terms and conditions of the H.J. Heinz Company
Fiscal Year 2003 Stock Incentive Plan (the "Plan"). This Award is also made
under and governed by the terms and conditions of this letter agreement
("Agreement"), which shall control in the event of a conflict with the terms and
conditions of the Plan. For purposes of this Agreement, the "Company" shall
refer to H. J. Heinz Company and its Subsidiaries. Unless otherwise defined in
this Agreement, all capitalized terms used in this Agreement shall have the same
defined meanings as in the Plan.
1. RSU Award. You have been awarded a total of ____________ RSUs for Fiscal
Year ____.
2. RSU Account. RSUs entitle you to receive a corresponding number of shares
of H. J. Heinz Company Common Stock ("Common Stock") in the future, subject
to the conditions and restrictions set forth in this Agreement, including,
without limitation, the vesting conditions set forth in Paragraph 3 below.
Your RSUs will be credited to a separate account established and maintained
by the Company on your behalf. Until the Distribution Date (as defined
herein), your RSUs are treated as deferred compensation amounts, the value
of which is subject to change based on increases or decreases in the market
price of the Common Stock. Because the RSUs are not actual shares of Common
Stock, you cannot exercise voting rights on them until the Distribution
Date.
3. Vesting. You will become vested in the RSUs credited to your account
according to the following schedule:
You will become 100% vested in the RSUs upon the fifth anniversary of the
Effective Date. None of the RSUs will become vested prior to this date.
4. Termination of Employment. The termination of your employment with the
Company will have the following effect on your RSUs:
(a) Retirement, Disability or Involuntary Termination without Cause. If
the termination of your employment with the Company is the result of
Retirement, Disability, or involuntary termination without Cause, any
RSUs granted hereunder that remain unvested as of your Date of
Termination shall continue to vest in accordance with the vesting
schedule set forth in Paragraph 3 above, subject to the requirements
of Paragraph 5 of this Agreement.
(b) Death. In the event that you should die while you are continuing to
perform services for the Company, any RSUs that remain unvested as of
the date of your death shall continue to vest in accordance with the
vesting schedule set forth in Paragraph 3 above.
(c) Change in Control. In the event of a Change in Control, any RSUs that
remain unvested as of the date of the Change in Control shall
immediately become vested unless your RSU award is replaced by an
award of equivalent value provided by the Surviving Corporation, which
replacement award vests not later than the replaced award and, to the
extent not previously vested, vests in full in the event of any
involuntary termination of your employment with the Surviving
Corporation following the Change in Control (other than an involuntary
termination for Cause).
(d) Other Termination. If your employment with the Company terminates for
any reason other than as set forth in subparagraphs (a), (b) and (c)
above, including without limitation as a result of any voluntary
termination of employment or an involuntary termination for Cause, any
RSUs granted hereunder that remain unvested as of your Date of
Termination shall be immediately forfeited and cancelled.
5. Non-Solicitation/Confidential Information. In partial consideration for
the RSUs granted to you hereunder, you agree that you shall not, during the
term of your employment by the Company and for 12 months after termination
of your employment, regardless of the reason for the termination, either
directly or indirectly, solicit, take away or attempt to solicit or take
away any other employee of the Company, either for your own purpose or for
any other person or entity. You further agree that you shall not, during
the term of your employment by the Company or at any time thereafter, use
or disclose the Confidential Information (as defined below) except as
directed by, and in furtherance of the business purposes of, the Company.
You acknowledge that the breach or threatened breach of this Paragraph 5
will result in irreparable injury to the Company for which there is no
adequate remedy at law because, among other things, it is not readily
susceptible of proof as to the monetary damages that would result to the
Company. You consent to the issuance of any restraining order or
preliminary restraining order or injunction with respect to any conduct by
you that is directly or indirectly a breach or threatened breach of this
Paragraph 5. Any breach by you of the provisions of this Paragraph 5 will,
at the option of the Company and in addition to all other rights and
remedies available to the Company at law, in equity or under this
Agreement, result in the immediate forfeiture of all of your rights in any
RSUs that remain unvested as of the date of such breach.
"Confidential Information" as used herein shall mean technical or business
information not readily available to the public or generally known in the
trade,
including but not limited to inventions; ideas; improvements; discoveries;
developments; formulations; ingredients; recipes; specifications; designs;
standards; financial data; sales, marketing and distribution plans,
techniques and strategies; customer and supplier information; equipment;
mechanisms; manufacturing plans; processing and packaging techniques; trade
secrets and other confidential information, knowledge, data and know-how of
the Company, whether or not they originated with you, or information which
the Company received from third parties under an obligation of
confidentiality.
6. Dividends. An amount equal to the dividends payable on the shares of
Common Stock represented by the RSUs will be paid directly to you as soon
as practicable following the date on which a dividend is declared by the
Company. These payments will be calculated based upon the number of RSUs
credited to your account as of the date that a dividend is declared. These
payments will be reported as income to the applicable taxing authorities,
and federal, state, local and/or foreign income and/or employment taxes
will be withheld from such payments as and to the extent required by
applicable law.
7. Distribution. All RSU distributions will be made in the form of actual
shares of Common Stock and will be distributed to you on one of the
following dates (each, a "Distribution Date"):
(a) Default Distribution Date. Shares of Common Stock representing your
RSUs will be distributed to you when the RSUs vest, unless the
Distribution Date is automatically deferred as provided in
subparagraph (b) below.
(b) Executive Officer/Management Committee Member Exception. If you are a
named executive officer of the Company on the Distribution Date (as
listed in the proxy statement filed by the Company most recent to the
Distribution Date) or are a member of the Company's Management
Committee on the Distribution Date, the Distribution Date will
automatically be deferred to the close of business on the last day of
your employment with the Company.
Certificates representing the distributed shares of Common Stock will be
delivered to the firm maintaining your account as soon as practicable after
a Distribution Date occurs. Notwithstanding the foregoing, all vested RSUs
will be immediately distributed to you at the close of business on the last
day of your employment with the Company, or as soon as practicable
thereafter, if you terminate employment with the Company for any reason
including death, disability, retirement or Change of Control of the
Company.
8. Impact on Benefits. None of the RSUs being credited to your account are
deemed to be a replacement for award opportunity under the Company's
Shareholder Success Plan (SSP), and no portion of your RSU Award will be
included as compensation for the year of the grant for purposes of the H.J.
Heinz Company Supplemental Executive Retirement Plan and the H.J. Heinz
Company Employees Retirement and Savings Excess Plan.
9. Tax Withholding. On the Distribution Date, the Company will withhold a
number of shares of Common Stock that is equal, based on the Fair Market
Value of the Common Stock on the Distribution Date, to the amount of the
federal, state, local, and/or foreign income and/or employment taxes
required to be collected or withheld with respect to the distribution.
10. Non-Transferability. Your RSUs may not be sold, transferred, pledged,
assigned or otherwise encumbered except by will or the laws of descent and
distribution. You may also designate a beneficiary(ies) in the event that
you die before a Distribution Date occurs, who shall succeed to all your
rights and obligations under this Agreement and the Plan. A beneficiary
election form is attached. If you do not designate a beneficiary, your RSUs
will pass to the person or persons entitled to receive them under your
will. If you shall have failed to make a testamentary disposition of your
RSUs in your will or shall have died intestate, your RSUs will pass to the
legal representative or representatives of your estate.
11. Employment Rights. You acknowledge and agree that nothing in this
Agreement or the Plan shall confer upon you any right with respect to
future awards or continuation of your employment, nor shall it constitute
an employment agreement or interfere in any way with your right or the
right of Company to terminate your employment at any time, with or without
cause, and with or without notice, subject to the terms of any written
employment contract that you may have with the Company that is signed by
both you and an authorized representative of the Company.
12. Collection and Use of Personal Data. You consent to the collection, use,
and processing of personal data (including name, home address and telephone
number, identification number and number of RSUs held) by the Company or a
third party engaged by the Company for the purpose of implementing,
administering and managing the Plan and any other stock option or stock
incentive plans of the Company (the "Plans"). You further consent to the
release of personal data (a) to such a third party administrator, which, at
the option of the Company, may be designated as the exclusive broker in
connection with the Plans, or (b) to any affiliated company within the
definition of the Company, wherever located. You hereby waive any data
privacy rights with respect to such data to the extent that receipt,
possession, use, retention, or transfer of the data is authorized
hereunder.
13. Future Awards. The Plan is discretionary in nature and the Company may
modify, cancel or terminate it at any time without prior notice in
accordance with the terms of the Plan. While RSUs or other awards may be
granted under the Plan on one or more occasions or even on a regular
schedule, each grant is a one time
event, is not an entitlement to an award of RSUs in the future, and does
not create any contractual or other right to receive an award of RSUs,
compensation or benefits in lieu of RSUs or any other compensation or
benefits in the future.
14. Compliance with Stock Ownership Guidelines. All RSUs granted to you under
this Agreement shall be counted as shares of Common Stock that are owned by
you for purposes of satisfying the minimum share requirements under the
Company's Simplified Stock Ownership Guidelines ("SOG"). Notwithstanding
the foregoing, you acknowledge and agree that, with the exception of the
number of shares of Common Stock withheld to satisfy income tax withholding
requirements pursuant to Paragraph 9 above, the shares of Common Stock
represented by the RSUs granted to you hereunder cannot be sold or
otherwise transferred, even after the Distribution Date, unless and until
you have met SOG's minimum share ownership requirements. The Management
Development & Compensation Committee will not approve additional RSU awards
to you unless you are in compliance with the terms of this Paragraph 14 and
the SOG requirements.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without
regard to its choice of law provisions.
THIS RSU AWARD IS SUBJECT TO YOUR ON-LINE ACCEPTANCE OF THE TERMS AND CONDITIONS
OF THIS AGREEMENT.
H. J. HEINZ COMPANY
By:
Accepted:
Date:
BENEFICIARY DESIGNATION
Upon my death, the vested Restricted Stock Units earned by me under all
Restricted Stock Unit Agreements shall be paid to the beneficiary(ies) I
designate below. This designation supercedes any prior beneficiary designation I
have made regarding my Restricted Stock Unit account balance, and shall remain
in effect unless and until I file a subsequent Beneficiary Designation Form with
the Company.
Primary Beneficiary Designation
The vested Restricted Stock Units distributable to me shall be paid, in equal
portions unless otherwise indicated, to the following Primary Beneficiary(ies)
then surviving:
Name Relationship Date of Birth Social Security Number
---- ------------ ------------- ----------------------
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Contingent Beneficiary Designation
If none of the above-named Primary Beneficiaries survives me, the vested
Restricted Stock Units distributable to me shall be paid, in equal portions
unless otherwise indicated, to the following Contingent Beneficiary(ies) then
surviving:
Name Relationship Date of Birth Social Security Number
---- ------------ ------------- ----------------------
------------- ------------ ------------- ----------------------
------------- ------------ ------------- ----------------------
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Signature Date
Exhibit 10(a)(xxix)
RESTRICTED STOCK UNIT AWARD AND AGREEMENT
[DATE]
Dear _____________________:
H. J. Heinz Company is pleased to confirm that, effective as of ____________
(the "Effective Date"), you have been granted an award of Restricted Stock Units
("RSUs") for Fiscal Year _____ in accordance with the terms and conditions of
the H.J. Heinz Company Fiscal Year 2003 Stock Incentive Plan (the "Plan"). This
Award is also made under and governed by the terms and conditions of this letter
agreement ("Agreement"), which shall control in the event of a conflict with the
terms and conditions of the Plan. For purposes of this Agreement, the "Company"
shall refer to H. J. Heinz Company and its Subsidiaries. Unless otherwise
defined in this Agreement, all capitalized terms used in this Agreement shall
have the same defined meanings as in the Plan.
1. RSU Award. You have been awarded a total of ____________ RSUs for Fiscal
Year ____.
2. RSU Account. RSUs entitle you to receive a corresponding number of shares
of H. J. Heinz Company Common Stock ("Common Stock") in the future, subject
to the conditions and restrictions set forth in this Agreement, including,
without limitation, the vesting conditions set forth in Paragraph 3 below.
Your RSUs will be credited to a separate account established and maintained
by the Company on your behalf. Until the Distribution Date (as defined
herein), your RSUs are treated as deferred compensation amounts, the value
of which is subject to change based on increases or decreases in the market
price of the Common Stock. Because the RSUs are not actual shares of Common
Stock, you cannot exercise voting rights on them until the Distribution
Date.
3. Vesting. You will become vested in the RSUs credited to your account
according to the following schedule:
You will become 100% vested in the RSUs upon the third anniversary of the
Effective Date. None of the RSUs will become vested prior to this date.
4. Termination of Employment. The termination of your employment with the
Company will have the following effect on your RSUs:
(a) Retirement, Disability or Involuntary Termination without Cause. If
the termination of your employment with the Company is the result of
Retirement, Disability, or involuntary termination without Cause, any
RSUs granted hereunder that remain unvested as of your Date of
Termination shall continue to vest in accordance with the vesting
schedule set forth in Paragraph 3 above, subject to the requirements
of Paragraph 5 of this Agreement.
(b) Death. In the event that you should die while you are continuing to
perform services for the Company, any RSUs that remain unvested as of
the date of your death shall continue to vest in accordance with the
vesting schedule set forth in Paragraph 3 above.
(c) Change in Control. In the event of a Change in Control, any RSUs that
remain unvested as of the date of the Change in Control shall
immediately become vested unless your RSU award is replaced by an
award of equivalent value provided by the Surviving Corporation, which
replacement award vests not later than the replaced award and, to the
extent not previously vested, vests in full in the event of any
involuntary termination of your employment with the Surviving
Corporation following the Change in Control (other than an involuntary
termination for Cause).
(d) Other Termination. If your employment with the Company terminates for
any reason other than as set forth in subparagraphs (a), (b) and (c)
above, including without limitation as a result of any voluntary
termination of employment or an involuntary termination for Cause, any
RSUs granted hereunder that remain unvested as of your Date of
Termination shall be immediately forfeited and cancelled.
5. Non-Solicitation/Confidential Information. In partial consideration for the
RSUs granted to you hereunder, you agree that you shall not, during the
term of your employment by the Company and for 12 months after termination
of your employment, regardless of the reason for the termination, either
directly or indirectly, solicit, take away or attempt to solicit or take
away any other employee of the Company, either for your own purpose or for
any other person or entity. You further agree that you shall not, during
the term of your employment by the Company or at any time thereafter, use
or disclose the Confidential Information (as defined below) except as
directed by, and in furtherance of the business purposes of, the Company.
You acknowledge that the breach or threatened breach of this Paragraph 5
will result in irreparable injury to the Company for which there is no
adequate remedy at law because, among other things, it is not readily
susceptible of proof as to the monetary damages that would result to the
Company. You consent to the issuance of any restraining order or
preliminary restraining order or injunction with respect to any conduct by
you that is directly or indirectly a breach or threatened breach of this
Paragraph 5. Any breach by you of the provisions of this Paragraph 5 will,
at the option of the Company and in addition to all other rights and
remedies available to the Company at law, in equity or under this
Agreement, result in the immediate forfeiture of all of your rights in any
RSUs that remain unvested as of the date of such breach.
-12-
"Confidential Information" as used herein shall mean technical or business
information not readily available to the public or generally known in the
trade, including but not limited to inventions; ideas; improvements;
discoveries; developments; formulations; ingredients; recipes;
specifications; designs; standards; financial data; sales, marketing and
distribution plans, techniques and strategies; customer and supplier
information; equipment; mechanisms; manufacturing plans; processing and
packaging techniques; trade secrets and other confidential information,
knowledge, data and know-how of the Company, whether or not they originated
with you, or information which the Company received from third parties
under an obligation of confidentiality.
6. Dividends. An amount equal to the dividends payable on the shares of Common
Stock represented by the RSUs will be paid directly to you as soon as
practicable following the date on which a dividend is declared by the
Company. These payments will be calculated based upon the number of RSUs
credited to your account as of the date that a dividend is declared. These
payments will be reported as income to the applicable taxing authorities,
and federal, state, local and/or foreign income and/or employment taxes
will be withheld from such payments as and to the extent required by
applicable law.
7. Distribution. All RSU distributions will be made in the form of actual
shares of Common Stock and will be distributed to you on one of the
following dates (each, a "Distribution Date"):
(a) Default Distribution Date.Shares of Common Stock representing your
RSUs will be distributed to you when the RSUs vest, unless you make an
election to defer receipt to a later date, as provided in subparagraph
(b) below.
(b) Deferred Distribution Date. You may elect to defer distribution of
your RSUs to a date subsequent to the Default Distribution Date by
providing a written election form to the Company by no later than
_____________________. A copy of the election form is attached.
(c) Executive Officer/Management Committee Member Exception. If you are a
named executive officer of the Company on the Distribution Date (as
listed in the proxy statement filed by the Company most recent to the
Distribution Date) or are a member of the Company's Management
Committee on the Distribution Date, the Distribution Date will
automatically be deferred to the close of business on the last day of
your employment with the Company.
Certificates representing the distributed shares of Common Stock will be
delivered to the firm maintaining your account as soon as practicable after
a Distribution Date occurs. Notwithstanding the foregoing, all vested RSUs
will be immediately distributed to you at the close of business on the last
day of your
employment with the Company, or as soon as practicable thereafter, if you
terminate employment with the Company for any reason including death,
disability, retirement or Change of Control of the Company.
8. Impact on Benefits. None of the RSUs being credited to your account are
deemed to be a replacement for award opportunity under the Company's
Shareholder Success Plan (SSP), and no portion of your RSU Award will be
included as compensation for the year of the grant for purposes of the H.J.
Heinz Company Supplemental Executive Retirement Plan and the H.J. Heinz
Company Employees Retirement and Savings Excess Plan.
9. Tax Withholding. On the Distribution Date, the Company will withhold a
number of shares of Common Stock that is equal, based on the Fair Market
Value of the Common Stock on the Distribution Date, to the amount of the
federal, state, local, and/or foreign income and/or employment taxes
required to be collected or withheld with respect to the distribution.
10. Non-Transferability. Your RSUs may not be sold, transferred, pledged,
assigned or otherwise encumbered except by will or the laws of descent and
distribution. You may also designate a beneficiary(ies) in the event that
you die before a Distribution Date occurs, who shall succeed to all your
rights and obligations under this Agreement and the Plan. A beneficiary
election form is attached. If you do not designate a beneficiary, your RSUs
will pass to the person or persons entitled to receive them under your
will. If you shall have failed to make a testamentary disposition of your
RSUs in your will or shall have died intestate, your RSUs will pass to the
legal representative or representatives of your estate.
11. Employment At-Will. You acknowledge and agree that nothing in this
Agreement or the Plan shall confer upon you any right with respect to
future awards or continuation of your employment, nor shall it constitute
an employment agreement or interfere in any way with your right or the
right of Company to terminate your employment at any time, with or without
cause, and with or without notice.
12. Collection and Use of Personal Data. You consent to the collection, use,
and processing of personal data (including name, home address and telephone
number, identification number and number of RSUs held) by the Company or a
third party engaged by the Company for the purpose of implementing,
administering and managing the Plan and any other stock option or stock
incentive plans of the Company (the "Plans"). You further consent to the
release of personal data to such a third party administrator, which, at the
option of the Company, may be designated as the exclusive broker in
connection with the Plans. You hereby waive any data privacy rights with
respect to such data to the extent that receipt, possession, use,
retention, or transfer of the data is authorized hereunder.
-14-
13. Future Awards. The Plan is discretionary in nature and the Company may
modify, cancel or terminate it at any time without prior notice in
accordance with the terms of the Plan. While RSUs or other awards may be
granted under the Plan on one or more occasions or even on a regular
schedule, each grant is a one time event, is not an entitlement to an award
of RSUs in the future, and does not create any contractual or other right
to receive an award of RSUs, compensation or benefits in lieu of RSUs or
any other compensation or benefits in the future.
14. Compliance with Stock Ownership Guidelines. All RSUs granted to you under
this Agreement shall be counted as shares of Common Stock that are owned by
you for purposes of satisfying the minimum share requirements under the
Company's Simplified Stock Ownership Guidelines ("SOG"). Notwithstanding
the foregoing, you acknowledge and agree that, with the exception of the
number of shares of Common Stock withheld to satisfy income tax withholding
requirements pursuant to Paragraph 9 above, the shares of Common Stock
represented by the RSUs granted to you hereunder cannot be sold or
otherwise transferred, even after the Distribution Date, unless and until
you have met SOG's minimum share ownership requirements. The Management
Development & Compensation Committee will not approve additional RSU awards
to you unless you are in compliance with the terms of this Paragraph 14 and
the SOG requirements.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without
regard to its choice of law provisions.
THIS RSU AWARD IS SUBJECT TO YOUR ON-LINE ACCEPTANCE OF THE TERMS AND CONDITIONS
OF THIS AGREEMENT.
H. J. HEINZ COMPANY
By: ______________________________
Accepted: ______________________________
Date: ______________________________
BENEFICIARY DESIGNATION
Upon my death, the vested Restricted Stock Units earned by me under all
Restricted Stock Unit Agreements shall be paid to the beneficiary(ies) I
designate below. This designation supercedes any prior beneficiary designation I
have made regarding my Restricted Stock Unit account balance, and shall remain
in effect unless and until I file a subsequent Beneficiary Designation Form with
the Company.
Primary Beneficiary Designation
The vested Restricted Stock Units distributable to me shall be paid, in equal
portions unless otherwise indicated, to the following Primary Beneficiary(ies)
then surviving:
Name Relationship Date of Birth Social Security Number
---- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
|
Contingent Beneficiary Designation
If none of the above-named Primary Beneficiaries survives me, the vested
Restricted Stock Units distributable to me shall be paid, in equal portions
unless otherwise indicated, to the following Contingent Beneficiary(ies) then
surviving:
Name Relationship Date of Birth Social Security Number
---- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
|
Signature Date
Exhibit 10(a)(xxx)
RESTRICTED STOCK UNIT AWARD AND AGREEMENT
[DATE]
Dear _____________________:
H. J. Heinz Company is pleased to confirm that, effective as of __________, you
have been granted an award of Restricted Stock Units ("RSUs") for Fiscal Year
_____ in accordance with the terms and conditions of the H.J. Heinz Company
Fiscal Year 2003 Stock Incentive Plan (the "Plan"). This Award is also made
under and governed by the terms and conditions of this letter agreement
("Agreement"), which shall control in the event of a conflict with the terms and
conditions of the Plan. For purposes of this Agreement, the "Company" shall
refer to H. J. Heinz Company and its Subsidiaries. Unless otherwise defined in
this Agreement, all capitalized terms used in this Agreement shall have the same
defined meanings as in the Plan.
1. RSU Award. You have been awarded a total of ____________ RSUs for Fiscal
Year _____.
2. RSU Account. RSUs entitle you to receive a corresponding number of shares
of H. J. Heinz Company Common Stock ("Common Stock") in the future, subject
to the conditions and restrictions set forth in this Agreement, including,
without limitation, the vesting conditions set forth in Paragraph 3 below.
Your RSUs will be credited to a separate account established and maintained
by the Company on your behalf. Until the Distribution Date (as defined
herein), your RSUs are treated as deferred compensation amounts, the value
of which is subject to change based on increases or decreases in the market
price of the Common Stock. Because the RSUs are not actual shares of Common
Stock, you cannot exercise voting rights on them until the Distribution
Date.
3. Vesting. You will become vested in the RSUs credited to your account
according to the following schedule:
You will become 100% vested in the RSUs upon the third anniversary of the
Effective Date. None of the RSUs will become vested prior to this date.
4. Termination of Employment. The termination of your employment with the
Company will have the following effect on your RSUs:
(a) Retirement, Disability or Involuntary Termination without Cause. If
the termination of your employment with the Company is the result of
Retirement, Disability, or involuntary termination without Cause, any
RSUs granted hereunder that remain unvested as of your Date of
Termination shall continue to vest in accordance with the vesting
schedule set forth in Paragraph 3 above, subject to the requirements
of Paragraph 5 of this Agreement.
(b) Death. In the event that you should die while you are continuing to
perform services for the Company, any RSUs that remain unvested as of
the date of your death shall continue to vest in accordance with the
vesting schedule set forth in Paragraph 3 above.
(c) Change in Control. In the event of a Change in Control, any RSUs that
remain unvested as of the date of the Change in Control shall
immediately become vested unless your RSU award is replaced by an
award of equivalent value provided by the Surviving Corporation, which
replacement award vests not later than the replaced award and, to the
extent not previously vested, vests in full in the event of any
involuntary termination of your employment with the Surviving
Corporation following the Change in Control (other than an involuntary
termination for Cause).
(d) Other Termination. If your employment with the Company terminates for
any reason other than as set forth in subparagraphs (a), (b) and (c)
above, including without limitation as a result of any voluntary
termination of employment or an involuntary termination for Cause, any
RSUs granted hereunder that remain unvested as of your Date of
Termination shall be immediately forfeited and cancelled.
5. Non-Solicitation/Confidential Information. In partial consideration for the
RSUs granted to you hereunder, you agree that you shall not, during the
term of your employment by the Company and for 12 months after termination
of your employment, regardless of the reason for the termination, either
directly or indirectly, solicit, take away or attempt to solicit or take
away any other employee of the Company, either for your own purpose or for
any other person or entity. You further agree that you shall not, during
the term of your employment by the Company or at any time thereafter, use
or disclose the Confidential Information (as defined below) except as
directed by, and in furtherance of the business purposes of, the Company.
You acknowledge that the breach or threatened breach of this Paragraph 5
will result in irreparable injury to the Company for which there is no
adequate remedy at law because, among other things, it is not readily
susceptible of proof as to the monetary damages that would result to the
Company. You consent to the issuance of any restraining order or
preliminary restraining order or injunction with respect to any conduct by
you that is directly or indirectly a breach or threatened breach of this
Paragraph 5. Any breach by you of the provisions of this Paragraph 5 will,
at the option of the Company and in addition to all other rights and
remedies available to the Company at law, in equity or under this
Agreement, result in the immediate forfeiture of all of your rights in any
RSUs that remain unvested as of the date of such breach.
"Confidential Information" as used herein shall mean technical or business
information not readily available to the public or generally known in the
trade, including but not limited to inventions; ideas; improvements;
discoveries; developments; formulations; ingredients; recipes;
specifications; designs; standards; financial data; sales, marketing and
distribution plans, techniques and strategies; customer and supplier
information; equipment; mechanisms; manufacturing plans; processing and
packaging techniques; trade secrets and other confidential information,
knowledge, data and know-how of the Company, whether or not they originated
with you, or information which the Company received from third parties
under an obligation of confidentiality.
6. Dividends. An amount equal to the dividends payable on the shares of Common
Stock represented by the RSUs will be paid directly to you as soon as
practicable following the date on which a dividend is declared by the
Company. These payments will be calculated based upon the number of RSUs
credited to your account as of the date that a dividend is declared. These
payments will be reported as income to the applicable taxing authorities,
and federal, state, local and/or foreign income and/or employment taxes
will be withheld from such payments as and to the extent required by
applicable law.
7. Distribution. All RSU distributions will be made in the form of actual
shares of Common Stock and will be distributed to you on one of the
following dates (each, a "Distribution Date"):
(a) Default Distribution Date. Shares of Common Stock representing your
RSUs will be distributed to you when the RSUs vest, unless the
Distribution Date is automatically deferred as provided in
subparagraph (b) below.
(b) Executive Officer/Management Committee Member Exception. If you are a
named executive officer of the Company on the Distribution Date (as
listed in the proxy statement filed by the Company most recent to the
Distribution Date) or are a member of the Company's Management
Committee on the Distribution Date, the Distribution Date will
automatically be deferred to the close of business on the last day of
your employment with the Company.
Certificates representing the distributed shares of Common Stock will be
delivered to the firm maintaining your account as soon as practicable after
a Distribution Date occurs. Notwithstanding the foregoing, all vested RSUs
will be immediately distributed to you at the close of business on the last
day of your employment with the Company, or as soon as practicable
thereafter, if you terminate employment with the Company for any reason
including death, disability, retirement or Change of Control of the
Company.
8. Impact on Benefits. None of the RSUs being credited to your account are
deemed to be a replacement for award opportunity under the Company's
Shareholder Success Plan (SSP), and no portion of your RSU Award will be
included as compensation for the year of the grant for purposes of the H.J.
Heinz Company Supplemental Executive Retirement Plan and the H.J. Heinz
Company Employees Retirement and Savings Excess Plan.
9. Tax Withholding. On the Distribution Date, the Company will withhold a
number of shares of Common Stock that is equal, based on the Fair Market
Value of the Common Stock on the Distribution Date, to the amount of the
federal, state, local, and/or foreign income and/or employment taxes
required to be collected or withheld with respect to the distribution.
10. Non-Transferability. Your RSUs may not be sold, transferred, pledged,
assigned or otherwise encumbered except by will or the laws of descent and
distribution. You may also designate a beneficiary(ies) in the event that
you die before a Distribution Date occurs, who shall succeed to all your
rights and obligations under this Agreement and the Plan. A beneficiary
election form is attached. If you do not designate a beneficiary, your RSUs
will pass to the person or persons entitled to receive them under your
will. If you shall have failed to make a testamentary disposition of your
RSUs in your will or shall have died intestate, your RSUs will pass to the
legal representative or representatives of your estate.
11. Employment Rights. You acknowledge and agree that nothing in this Agreement
or the Plan shall confer upon you any right with respect to future awards
or continuation of your employment, nor shall it constitute an employment
agreement or interfere in any way with your right or the right of Company
to terminate your employment at any time, with or without cause, and with
or without notice, subject to the terms of any written employment contract
that you may have with the Company that is signed by both you and an
authorized representative of the Company.
12. Collection and Use of Personal Data. You consent to the collection, use,
and processing of personal data (including name, home address and telephone
number, identification number and number of RSUs held) by the Company or a
third party engaged by the Company for the purpose of implementing,
administering and managing the Plan and any other stock option or stock
incentive plans of the Company (the "Plans"). You further consent to the
release of personal data (a) to such a third party administrator, which, at
the option of the Company, may be designated as the exclusive broker in
connection with the Plans, or (b) to any affiliated company within the
definition of the Company, wherever located. You hereby waive any data
privacy rights with respect to such data to the extent that receipt,
possession, use, retention, or transfer of the data is authorized
hereunder.
13. Future Awards. The Plan is discretionary in nature and the Company may
modify, cancel or terminate it at any time without prior notice in
accordance with the terms of the Plan. While RSUs or other awards may be
granted under the Plan on one or more occasions or even on a regular
schedule, each grant is a one time event, is not an entitlement to an award
of RSUs in the future, and does not create any contractual or other right
to receive an award of RSUs, compensation or benefits in lieu of RSUs or
any other compensation or benefits in the future.
14. Compliance with Stock Ownership Guidelines. All RSUs granted to you under
this Agreement shall be counted as shares of Common Stock that are owned by
you for purposes of satisfying the minimum share requirements under the
Company's Simplified Stock Ownership Guidelines ("SOG"). Notwithstanding
the foregoing, you acknowledge and agree that, with the exception of the
number of shares of Common Stock withheld to satisfy income tax withholding
requirements pursuant to Paragraph 9 above, the shares of Common Stock
represented by the RSUs granted to you hereunder cannot be sold or
otherwise transferred, even after the Distribution Date, unless and until
you have met SOG's minimum share ownership requirements. The Management
Development & Compensation Committee will not approve additional RSU awards
to you unless you are in compliance with the terms of this Paragraph 14 and
the SOG requirements.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without
regard to its choice of law provisions.
THIS RSU AWARD IS SUBJECT TO YOUR ON-LINE ACCEPTANCE OF THE TERMS AND CONDITIONS
OF THIS AGREEMENT.
H. J. HEINZ COMPANY
By: ______________________________
Accepted: ______________________________
Date: ______________________________
BENEFICIARY DESIGNATION
Upon my death, the vested Restricted Stock Units earned by me under all
Restricted Stock Unit Agreements shall be paid to the beneficiary(ies) I
designate below. This designation supercedes any prior beneficiary designation I
have made regarding my Restricted Stock Unit account balance, and shall remain
in effect unless and until I file a subsequent Beneficiary Designation Form with
the Company.
Primary Beneficiary Designation
The vested Restricted Stock Units distributable to me shall be paid, in equal
portions unless otherwise indicated, to the following Primary Beneficiary(ies)
then surviving:
Name Relationship Date of Birth Social Security Number
---- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
|
Contingent Beneficiary Designation
If none of the above-named Primary Beneficiaries survives me, the vested
Restricted Stock Units distributable to me shall be paid, in equal portions
unless otherwise indicated, to the following Contingent Beneficiary(ies) then
surviving:
Name Relationship Date of Birth Social Security Number
---- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
--------------------------------------- ---------------------
Signature Date
|
Exhibit 10(a)(xxxi)
PERFORMANCE UNIT AWARD AGREEMENT
[DATE]
Dear ____________________:
H. J. Heinz Company is pleased to confirm that, effective as of __________, you
have been granted a Performance Unit Award in accordance with the terms and
conditions of the H. J. Heinz Company Fiscal Year 2003 Stock Incentive Plan (the
"Plan"). This Performance Unit Award is also made under and pursuant to this
letter agreement ("Agreement"), the terms and conditions of which shall govern
and control in the event of a conflict with the terms and conditions of the
Plan. For purposes of this Agreement, the "Company" shall refer to H. J. Heinz
Company and its Subsidiaries. Unless otherwise defined in this Agreement, all
capitalized terms used in this Agreement shall have the same defined meanings as
in the Plan.
1. Performance Unit Award. The annual unadjusted target value of the
Performance Units awarded to you under this Agreement is $____________. The
total target award opportunity for the Performance Period is equal to twice
this amount, subject to prorating pursuant to Paragraph 3 below (the "Award
Opportunity"). Your actual Award will be paid as a percentage of the Award
Opportunity, as determined pursuant to Paragraph 2 below (the "Payout
Percentage"). The "Performance Period" means the two-year period spanning
the Company's Fiscal Year __ and Fiscal Year __.
2. Performance Goals. The Payout Percentage will be determined based upon the
level of success the Company achieves during the Performance Period
relative to the Performance Goals established by the Management Development
and Compensation Committee of the Board of Directors as set forth below.
[PERFORMANCE GOALS]
3. Payment of Performance Award. Your Performance Unit Award, if earned, will
be paid promptly after the end of the Performance Period, subject to
Paragraphs 4 and 5 below. If your employment with the Company began after
the commencement of the Performance Period, the actual amount of your Award
will be pro-rated based upon the number of months that you were employed by
the Company (in an eligible position) during the Performance Period. The
Performance Unit Award will be paid in cash; provided, however, that in the
event that you are an executive covered by the Company's Stock Ownership
Guidelines and you have not yet attained the requisite level of stock
ownership, your Performance Award will be paid in the form of shares of
Heinz Common Stock, which you would be expected to thereafter retain in
accordance with the Stock Ownership Guidelines. Notwithstanding the
foregoing or any other provision or term of this Agreement to the contrary,
you must have been employed by the Company in an eligible position for a
minimum of twelve (12) months during the Performance Period in order to be
eligible to receive payment of a Performance Unit Award hereunder.
4. Termination of Employment. The termination of your employment with the
Company will have the following effect on your Performance Unit Award:
(a) Termination of Employment During First Year of Performance Period. In
the event that your employment with the Company ends during the first
year of the Performance Period for any reason, including without
limitation as a result of death, disability, retirement, voluntary
termination or involuntary termination with or without Cause, your
Performance Unit Award will automatically be forfeited.
(b) Termination of Employment During Second Year of Performance Period.
(i) Death, Disability or Retirement. In the event that your
employment with the Company ends during the second year of
the Performance Period as the result of your Death,
Retirement, or Disability, you will receive a Performance
Unit Award at the end of the Performance Period determined
in accordance with Paragraph 2 above, prorated through the
date your employment ends or the date of your disability, as
applicable.
(ii) Involuntary Termination without Cause. In the event your
employment with the Company ends during the second year of
the Performance Period as the result of an Involuntary
Termination without Cause, the MD&CC may, in its sole
discretion, authorize the payment of a Performance Unit
Award at the end of the Performance Period, determined in
accordance with Paragraph 2 above, prorated through your
last day of employment with the Company.
(iii) Other Termination. In the event your employment with the
Company ends during the second year of the Performance
Period as the result of any reason other than as set forth
in subparagraphs 4(b)(i) and 4(b)(ii) above, including
without limitation any voluntary termination of employment
or an involuntary termination for Cause, your Performance
Unit Award will automatically be forfeited.
(c) Change in Control. In the event of a Change in Control (as defined in
IRS Notice 2005-1, Section IV, Q&A-12) during the Performance Period,
payment of this Performance Award will be immediately accelerated. The
amount of the Performance Award will be prorated as of the date the
Change in Control become effective, and shall be determined based upon
verifiable Company performance as of such date.
5. Non-Solicitation/Confidential Information. In partial consideration for the
Performance Unit Award granted to you hereunder, you agree that you shall
not, during the term of your employment by the Company and for 12 months
after termination of your employment, regardless of the reason for the
termination, either directly or indirectly, solicit, take away or attempt
to solicit or take away any other employee of the Company, either for your
own purpose or for any other person or entity. You further agree that you
shall not, during the term of your employment by the Company or at any time
thereafter, use or disclose the Confidential Information (as defined below)
except as directed by, and in furtherance of the business purposes of, the
Company. You acknowledge that the breach or threatened breach of this
Paragraph 5 will result in irreparable injury to the Company for which
there is no adequate remedy at law because, among other things, it is not
readily susceptible of proof as to the monetary damages that would result
to the Company. You consent to the issuance of any restraining order or
preliminary restraining order or injunction with respect to any conduct by
you that is directly or indirectly a breach or threatened breach of this
Paragraph 5.
"Confidential Information" as used herein shall mean technical or business
information not readily available to the public or generally known in the
trade, including but not limited to inventions; ideas; improvements;
discoveries; developments; formulations; ingredients; recipes;
specifications; designs; standards; financial data; sales, marketing and
distribution plans, techniques and strategies; customer and supplier
information; equipment; mechanisms; manufacturing plans; processing and
packaging techniques; trade secrets and other confidential information,
knowledge, data and know-how of the Company, whether or not they originated
with you, or information which the Company received from third parties
under an obligation of confidentiality.
6. Impact on Benefits. The Performance Unit Award, if earned, will not be
eligible for contributions under any of the Company's retirement and other
benefit plans, including but not limited to the Company's Supplemental
Executive Retirement Plan, the Savings Plan or the Company Match plan.
7. Tax Withholding. When your Performance Unit Award is paid, the Company will
withhold the amount of money (or, if applicable, the number of shares of
Common Stock that is equal, based on the Fair Market Value of the Common
Stock on the payment date) to the amount of the federal, state, local,
and/or foreign income and/or employment taxes required to be collected or
withheld with respect to the payment.
8. Non-Transferability. Your Performance Unit Award may not be sold,
transferred, pledged, assigned or otherwise encumbered except by will or
the laws of descent and distribution. You may also designate a
beneficiary(ies) in the event that you die before the Performance Unit
Award is paid, who shall succeed to all your rights and obligations under
this Agreement and the Plan, subject to Paragraph 4 above. A beneficiary
election form is attached.
9. Employment At-Will. You acknowledge and agree that nothing in this
Agreement or the Plan shall confer upon you any right with respect to
future awards or continuation of your employment, nor shall it constitute
an employment agreement or interfere in any way with your right or the
right of Company to terminate your employment at any time, with or without
cause, and with or without notice.
10. Collection and Use of Personal Data. You consent to the collection, use,
and processing of personal data (including name, home address and telephone
number, identification number) by the Company or a third party engaged by
the Company for the purpose of implementing, administering and managing the
Plan and any other stock option or stock or long-term incentive plans of
the Company (the "Plans"). You further consent to the release of personal
data to such a third party administrator, which, at the option of the
Company, may be designated as the exclusive broker in connection with the
Plans. You hereby waive any data privacy rights with respect to such data
to the extent that receipt, possession, use, retention, or transfer of the
data is authorized hereunder.
11. Future Awards. The Plan is discretionary in nature and the Company may
modify, cancel or terminate it at any time without prior notice in
accordance with the terms of the Plan. While Performance Unit Awards or
other awards may be granted under the Plan on one or more occasions or even
on a regular schedule, each grant is a one time event, is not an
entitlement to an award of cash or stock in the future, and does not create
any contractual or other right to receive a Performance Award or other
compensation or benefits in the future.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without
regard to its choice of law provisions.
THIS PERFORMANCE UNIT AWARD IS SUBJECT TO YOUR SIGNING BOTH COPIES OF THIS
AGREEMENT AND RETURNING ONE SIGNED AND DATED COPY TO THE COMPANY.
H. J. HEINZ COMPANY
By: ______________________________
Accepted: ______________________________
Date: ______________________________
BENEFICIARY DESIGNATION
Upon my death, the Performance Award earned by me under all Performance Award
Agreements shall be paid to the beneficiary(ies) I designate below. This
designation supercedes any prior beneficiary designation I have made regarding
my Performance Awards, and shall remain in effect unless and until I file a
subsequent Beneficiary Designation Form with the Company.
Primary Beneficiary Designation
All Performance Awards earned by and payable to me shall be paid, in equal
portions unless otherwise indicated, to the following Primary Beneficiary(ies)
then surviving:
Name Relationship Date of Birth Social Security Number
---- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
|
Contingent Beneficiary Designation
If none of the above-named Primary Beneficiaries survives me, the Performance
Awards earned by and payable to me shall be paid, in equal portions unless
otherwise indicated, to the following Contingent Beneficiary(ies) then
surviving:
Name Relationship Date of Birth Social Security Number
---- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
-------------------- ------------ ------------- ----------------------
|
Signature Date
.
.
.
EXHIBIT 12
H. J. HEINZ COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
Nine Months
Ended
January 26,
2005
-------------
(Thousands of
Dollars)
Fixed Charges:
Interest expense*......................................... $175,369
Capitalized interest...................................... --
Interest component of rental expense...................... 22,231
--------
Total fixed charges.................................... $197,600
--------
Earnings:
Income from continuing operations before income taxes..... $777,349
Add: Interest expense*.................................... 175,369
Add: Interest component of rental expense................. 22,231
Add: Amortization of capitalized interest................. 1,512
--------
Earnings as adjusted................................... $976,461
--------
Ratio of earnings to fixed charges........................ 4.94
========
|
* Interest expense includes amortization of debt expense and any discount or
premium relating to indebtedness.
EXHIBIT 31(A)
I, William R. Johnson, Chairman, President and Chief Executive Officer of
H. J. Heinz Company certify that:
1. I have reviewed this quarterly report on Form 10-Q of H. J. Heinz
Company;
2. Based on my knowledge, this report does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were
made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as
of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being
prepared;
b) [Paragraph omitted pursuant to SEC Release Nos. 33-8238 and
34-47986]
c) Evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of
the period covered by this report based on such evaluation;
d) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the period covered by
this report that has materially affected, or is reasonably likely to
materially affect, the registrant's internal control over financial
reporting; and
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to the
registrant's auditors and the audit committee of the registrant's board of
directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design
or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to record,
process, summarize, and report financial information; and
b) Any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's internal
control over financial reporting.
Date: February 28, 2005
By: /s/ WILLIAM R. JOHNSON
.......................................
Name: William R. Johnson
Title: Chairman, President and
Chief Executive Officer
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EXHIBIT 31(B)
I, Arthur B. Winkleblack, Executive Vice President and Chief Financial
Officer of H. J. Heinz Company certify that:
1. I have reviewed this quarterly report on Form 10-Q of H. J. Heinz
Company;
2. Based on my knowledge, this report does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were
made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as
of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being
prepared;
b) [Paragraph omitted pursuant to SEC Release Nos. 33-8238 and
34-47986]
c) Evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of
the period covered by this report based on such evaluation;
d) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the period covered by
this report that has materially affected, or is reasonably likely to
materially affect, the registrant's internal control over financial
reporting; and
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to the
registrant's auditors and the audit committee of the registrant's board of
directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design
or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to record,
process, summarize, and report financial information; and
b) Any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's internal
control over financial reporting.
Date: February 28, 2005
By /s/ ARTHUR B. WINKLEBLACK
..........................................
Name: Arthur B. Winkleblack
Title: Executive Vice President and
Chief Financial Officer
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EXHIBIT 32(A)
CERTIFICATION BY THE CHIEF EXECUTIVE OFFICER RELATING TO A
PERIODIC REPORT CONTAINING FINANCIAL STATEMENTS
I, William R. Johnson, Chairman, President and Chief Executive Officer, of
H. J. Heinz Company, a Pennsylvania corporation (the "Company"), hereby certify
that, to my knowledge:
1. The Company's periodic report on Form 10-Q for the period ended January
26, 2005 (the "Form 10-Q") fully complies with the requirements of Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended; and
2. The information contained in the Form 10-Q fairly presents, in all
material respects, the financial condition and results of operations of the
Company.
Date: February 28, 2005
/s/ WILLIAM R. JOHNSON
..........................................
Name: William R. Johnson
Title: Chairman, President and
Chief Executive Officer
|
EXHIBIT 32(B)
CERTIFICATION BY THE CHIEF FINANCIAL OFFICER RELATING TO A
PERIODIC REPORT CONTAINING FINANCIAL STATEMENTS
I, Arthur B. Winkleblack, Executive Vice President and Chief Financial
Officer of H. J. Heinz Company, a Pennsylvania corporation (the "Company"),
hereby certify that, to my knowledge:
1. The Company's periodic report on Form 10-Q for the period ended January
26, 2005 (the "Form 10-Q") fully complies with the requirements of Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended; and
2. The information contained in the Form 10-Q fairly presents, in all
material respects, the financial condition and results of operations of the
Company.
Date: February 28, 2005
/s/ ARTHUR B. WINKLEBLACK
..........................................
Name: Arthur B. Winkleblack
Title: Executive Vice President
and Chief Financial Officer
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